ORDER

Per: RamPraweshDas (Member)

Dated-22.01.2024

1.        The present appeal is being  preferred against the order dated 28.04.2016 passed in complaint no.117/2012 by the Learned District Consumer Forum at Gopalganj whereby and where under the complaint preferred by the complainant has been dismissed without appreciating the evidence on record and without considering  the principle settled by the Hon’ble Commission.

2.      The facts of the case as briefly stated is that the complainant  is an registered owner of the Bolero vehicle bearing registration no.HR13C 3700 which was insured with the opposite party Reliance General Insurance company with policy no.240170231 1004065 valid from 24.02.2011 to 23.02.2012 and sum assured amount of Rs.22,500/-.

3.               During  the validity of Insurance Policy the said vehicle was stolen from the door of the driver namely Md. Hasnain on 27.02.2011. The complainant registered F.I.R with the Manjhagarh Police station giving rise to P.s. case no.27/11 and also informed to the Insurance Company for the same. The policy after investigation submitted charge sheet against the driver. The complainant submitted an application along with relevant papers before Insurance Company to settle the Insurance claim but was not settled on one pretext or the other. Thereafter complainant sent the legal notice against the opposite party on 18.07.2012 and its reminder on 02.08.2012 but the opposite  party made denial to receive it, consequently complainant has filed the instant case against the opposite party claiming the amount of insurance coverage and Rs.100,000/-for mental and physical harassment and litigation cost of the case.

4.           The Opposite party after notice filed written statement stating therein that the theft vehicle was insured as a private vehicle whereas it was being used as a commercial purposes and it was kept under the custody of the driver for using this vehicle as commercial purposes. This was the clear violation of terms and conditions of the Insurance policy  besides this the complainant did not take proper care and caution towards looking after vehicle and was negligent in leaving the vehicle at the door of the driver and in his custody who was a resident of the other remote village at some distance.The driver of vehicle played fraud with the opposite party lodged false case of theft of vehicle before police who investigated the case and found false case and submitted charge sheet againstthe driver itself.There was no deficiency in service on the part of the Insurance Company and the complainant is not entitled for any relief against the opposite party and hence the complaint liable to be dismissed. The complainant in support of his complain submitted documentary evidence and produced four witnesses in favour of his case. The opposite party has not produced any evidence in support of his written statement.

5.             After being heard both the parties and gone through the evidence adduced before the commission and perused the materials available on records. The District Commission has held that the theft vehicle was insured as a private vehicle but it was used as commercial purposes which violated terms and condition of the policy hence repudiation of claim by the opposite party is justified. There is no deficiency in service,negligency and default on the part of the opposite party hence the District Commission has justiciably passed the impugned order and dismissed the complainant.

6.          After being aggrieved by and dissatisfied with thisimpugned order the appellant has filed this appeal for adjudication.

7.                    Grounds of appeal:-

                         That the order passed by the district forum is bad in law and facts both and is fit to be dismissed. The order under appeal passed without considering and discussing the documentary evidence filed and oral evidence adduced before the commission and without appreciating the principle settled by the Hon’ble supreme Court and Hon’ble National Commission, the learned Forum failed to appreciate the mandatory provision of the Insurance Act and regulation framed by the IRDA while passing the order.  The learned forum failed to appreciate that the opposite parties have not provedand no material evidence has been produced for qualify of willful in fringement or violation of the conditions of the policy. The appellant placed reliance upon the judgment of Hon’ble National Commission in S. Bhagat Singh case that if the driver distionestly took away the vehicle the case would be covered under illustration “D” appended to the definition of theft given in section-379 of IPC and  the driver would be deemed to have committed theft of the vehicle.

8.                    Both the parties have filed written notes of argument and oral argument also  advanced by them.

9.                     The appellant  placed reliance upon the judgment of S. Bhgat Singh Vs. the oriental Insurance Comp. Ltd has been referred in venkateshwariBorewells  Vs. Insurance Co. Ltd. reported in 111 2002 CPJ 308 NI. and (2) National Insurance company Ltd. vs. Nitin Khandelwal  appeal  (Civil) 3409/2008 by Apex court which is more relevant to this in hand case.

                         Which is reproduced as follows :-

“13. In the case in hand, the vehicle has been snatched or stolen, in the case of theft of vehicle breachof condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.

            14. In the instant case, State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstance in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.”

10.                I have gone through the impugned order of District Forum, perused the materials available on records and heard both the rival parties we found the nature, fact and circumstances of this case in hand is similar to this case of NithinKhandewal hence in this case the insurer has insured his vehicle as private but used as a commercial purposes as found by the District Commission. Hence the Insurance Company is liable to settle insurance claim on non- standeredbasis because in the case of theft of vehicle breach of condition is not Jermane. The Insurance Company is liable to indemnify the owner of the vehicle when the insured has obtained comprehensive policy for the loss caused to the insured.

11.                      Accordingly, the order of the District Commission is hereby set aside and 75% of sum Insurance coverage of the vehicle shall be paid to the appellant along with Rs.40,000/- as compensation and Rs.20,000/- as litigation cost failing which 8% of interest p.a. shall be payable from the date of filing of the complainant before District Forum within three month of this order.   

12.A copy of this order be supplied to both the parties free of cost as mandated by the C.P. Act 2019.Order be uploaded forthwith on the confonet of the State Commission.

13.            Let the file be consigned in the record room along with copy of this order.