STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 276 of 2018

The National Insurance Company Limited, Branch Office:- Pradhan Path, Loharpatti, Motihari, PO & PS- Motihari (East Champaran) address as the Complaint and as the order:- Branch Manager, National Insurance Company Limited, 2^nd Floor, Sharan Complex, Station Road, Near Town Hall, Motihari, East Champaran represented before Hon’ble State Commission through its Regional Manager, National Insurance Company Ltd, Regional Office, Sone Bhawan, 4^th Floor, Birchand Patel Marg, Patna- 800001

                                                                                                                                                … Opposite Parties/Appellants

Versus

Ram Naresh Singh, Son of Late Hari Singh, Resident of Ratansayar, PO- Nunfarha, PS- Patahi, District- East Champaran

                                                                                                                                                 …. Complainant/Respondent

Counsel for the Appellant: Adv. Sanjay Kumar Sharan

Counsel for the Respondent: Adv. Rajesh Kumar

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Dated 15.05.2023

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed on behalf of Appellant/opposite party for setting aside the order dated 07.05.2018 passed by the Ld. District Consumer Forum, East Champaran at Motihari in Complaint Case no. 158 of 2016 whereby and whereunder the Ld. District Consumer Forum has allowed the Complaint case filed on behalf of complainant and directed appellant to pay insured amount of Rs. 1,90,000/- along with interest @9% p.a as well as Rs. 5,000/- as cost of litigation.
2. Briefly stated the facts of case is that complainant had purchased a tempo bearing registration no. BR-05P-9910 which was insured by the National Insurance Company Ltd. for the period 11.09.2013 to 10.09.2014.
3. Complainant along with his family members travelled on Tempo to Someswar Nath Mandir, Areraj to perform puja and parked the vehicle out side the temple and after performing puja when he came outside he found that tempo was stolen and accordingly he instituted an FIR giving rise to Govindganj PS case no. 177 of 2014 dated 24.08.2014 under section 379 of IPC.
4. Police investigated the case but Tempo could not be recovered and submitted final form on 30.12.2014 in the court of CJM, Motihari as case to be true but without any clue and final form was accepted by the court on 10.06.2015.
5. Thereafter, complainant on 20.07.2015 submitted his claim to the insurance company for payment of insured amount but no action was taken by the insurance company to settle his claim and as such he gave a legal notice to the insurance company but same was not replied as  such complainant filed the consumer complaint case before the District Consumer Forum, East Champaran at Motihari for payment of insured amount along with compensation for physical and mental harassment as well as cost of litigation.
6. Complainant purchased the vehicle on loan being provided by the Central Bank of India for which he had deposited Rs. 55,000/- as margin money upon which Rs. 2,20,000/- loan amount was santioned by the bank. Complainant had also furnished surety by depositing fixed deposit as surety for repayment of the loan and due to non settlement of his claim the Central Bank filed a certificate case for realization of the loan amount.
7. Notices were issue to the opposite parties /insurance company and they filed their written statement stating therein that the complaint case is not maintainable and there is no cause of action for filing the complainant case and there is no deficiency in service by the insurance company. Complainant has violated the terms and conditions of the insurance policy and was plying the commercial vehicle on a public road without valid permit as such insurance company is not liable to indemnify the complainant for the loss suffered by him and repudiated the claim of complainant by letter dated 08.11.2016 on the ground that complainant inspite of several request/reminder did not submit the permit and accordingly, the claim case was closed as no claim.
8. The District Consumer Forum after hearing both the parties and considering the materials available on record allowed the complaint case filed by complainant on the basis of judgment and order of Apex Court  according to which in case of theft of vehicle breach of condition is not germane.
9. The District Consumer Forum has further held that complainant on 22.08.2014 came to Areraj temple along with his family members to perform puja and parked the tempo out side the temple and when he came back after performing puja he found that tempo was stolen. The District Consumer Forum held that the tempo was used to carry the family members and there was no commercial purpose rather it was private visit to the temple with family members for which no permit is required and allowed the complaint case filed by complainant, against which appeal has been preferred by the insurance company.
10. It is submitted on behalf of counsel for the appellant that insurance company had rightly repudiated the claim as tempo was being plied on the public road without any valid permit and same was in violation of terms and condition of insurance policy as well as Motor Vehicle Act.
11. Counsel for the appellant has relied upon a judgment and order of National Commission in case of New India Insurance Co. Ltd. Vs Rajesh Yadav since reported in 2013 (2) CPJ, 398 (NC) in which also the vehicle was stolen and there was delay in intimation to the insurance company and the vehicle was plying without any valid permit and the National Commission upheld the order of repudiation for the reason that vehicle was being plied on a different route and outside the state for which no permit was issued as well as there was delay in intimation to the insurance company and same was fatal as it deprived insurance company of its legitimate right to enquire into the theft. 
12. The counsel for the appellant has further relied upon judgment of National Commission in case of Kailash Chandrakant Bhalerao & Ors Vs. ICICI Lombard General Insurance Co. decided on 11.02.2015 in which it has been held that if the owner of the vehicle has not taken proper care and caution for security and safety of his vehicle and if same gets stolen the owner is not entitled for reimbursement of loss suffered by him same being in violation of terms and condition of insurance policy
13. In present case the insurance company has repudiated the claim only on the ground that the vehicle was being plied on the road without any valid permit as such insurance company is estopped from taking any other plea for repudiation of claim of insurance company.
14. Having heard ld. Counsel for the parties and considering the materials available on record this Commission finds that the Apex Court under similar circumstances where the vehicle was stolen had categorically held that in case of theft breach of conditions of insurance policy or violation of provisions of Motor Vehicle Act can not be looked into and claim is to be settled on non standard basis as held in Amlendu Sahoo Vs. Oriental Insurance Co. Ltd., (2010)4SCC536 and National Insurance Company Ltd. Vs. Nitin Khandelwal, (2008)11 SCC 259.
15.  For the reasons as stated above, the judgment and order dated 07.05.2018 passed by the Ld. District Consumer Forum, East Champaran at Motihari in Complaint Case no. 158 of 2016 is modified to the extent that claim has to be settled on non standard basis (75%) and rate of interest is reduced from 9% to 8% p.a.
16.  The appeal is accordingly disposed of with aforesaid modification.

(Ram Prawesh Das)                                                                          (Sanjay Kumar,J)

       Member                                                                                             President

Md. Fariduzzama