UTPAL KUMAR BHATTACHARYA, MEMBER 

           Instant appeal u/S 15 of the Consumer Protection Act, 1986 has been filed challenging the judgment and order No. 23 dated 04.06.2015 passed by the Ld. District Forum, Unit –I , Kolkata , in complaint case No. 149/2012 allowing the complaint with the directions as under:

“            That the case is allowed on contest with cost against O.P Nos. 1 and 2 and without cost against O.P. No. 3. O.P Nos. 1 and 2 are jointly and / or severally directed to pay 75% of the sum assured of the insurance policy i.e. Rs. 6,99,319/- (Rupees six lakhs ninetynine thousand three hundred nineteen) only on non standard basis to O.P. and No. 3 and are further directed to pay to the complainant compensation of Rs. 10,000/- ( Rupees ten thousand) only for harassment and mental agony and litigation cost of Rs. 5,000/- ( Rupees five thousand) only within 30 days from the date of communication of this order, i.e. an interest @ 10 % p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.”

            The facts of the case, in succinct , are that the Respondent No.1 / Complainant purchased a Mahindra Scorpio LX (Red) on 25.02.2009 at a cost of Rs. 8,23,545/- only obtaining financial assistance from the Respondent No. 2 /OP No. 3. Said vehicle, after purchase , was insured with Appellants/OPs 1 and 2 Insurance Company under Insurance Policy No. 3385 /00305968/000/00 having the period of coverage from 29.01.2010 to 28.01.2011 against a policy premium of Rs. 18,359/- .

            The said vehicle along with the driver was sent to one Mr. Nair , the friend of the Respondent No.1 / Complainant, on request for his personal use for a period of 3 days w.e.f  05.03.2010 to 08.03.2010  . The vehicle , while in use by the said Mr. Nair during the said period of 3 days , used to be kept / parked in a garage near the ‘Himalaya Plaza’ at Dankuni . On 08.03.2010 , the said vehicle along with six other vehicles , similarly hired for the same purpose were stolen from the said locations.

            All the drivers were seen unconscious at the spot wherefrom the vehicles were allegedly theft and were put to the hospital for treatment . An FIR was lodged with the Dankuni P.S. and the Case No. 18/2010 was initiated on the strength of the said FIR . The Respondent No.1 / Complainant was also informed about the incident by the said Mr. Nair.

            Since, the vehicle was very much within the period of Insurance Coverage , the Complainant submitted his insurance claim to the Appellant/OP No.1 with all supporting papers . The claim , so submitted against the insured and theft vehicle , however, was repudiated by the Appellant/OP No.1 on the ground that the Respondent No.1 / Complainant violated the policy condition pertaining to ‘limitation as to use’ . There was also a gross violation as pointed out by the Appellant /OP No.1 on the part of the Respondent No.1 / Complainant who , as alleged , had given the subject vehicle ,a registered private one , on hire basis to a third person for use  and the subject vehicle was theft when the same was under use of the said third person happened to be a friend of the Respondent No.1 / Complainant .

            The Respondent No.1 / Complainant, being aggrieved with the repudiation of his claim by the Appellants /OPs 1 and 2 , filed the complaint case before the Ld. District Forum . The impugned judgment and order arose from the said complaint .

            Heard the Ld. Advocates appearing on behalf of both sides.

           The Ld. Advocate appearing on behalf of the Appellant/OP No.1 submitted that the subject vehicle was given to the Appellant /OP No.1 on hire . With a view to a establishing the veracity of the aforesaid contention the Ld. Advocate brought the notice of the Bench  to the advertisement published in the Sunmarg by one named Ajay Gupta, running page 55  where the vehicles were requested for supply on hired basis in connection with shooting  of one film . It would be further evident from running page 47 , being the copy of the FIR lodged with the Dankuni P.S , that Mr. Nair , the said friend of Respondent No.1 / Complainant , responded to the said Advertisement giving on hire some vehicles including the subject vehicle.

            The Ld. Advocate continued that the purpose of hiring of one vehicle for shooting a film was definitely for deriving benefit .

            A registered private vehicle given on hire was definitely something in violation of the terms and conditions for private use . As further submitted, the shooting of a film , since related to deriving financial benefit, the use of the vehicle can , in no way, be interpreted for any purpose other than commercial one .

            The Ld. Advocate continued further that the incident of theft was taken place on 08.03.2010 and the Appellant/OP No.1 was informed by the Respondent / Complainant about the incident on 11.03.2010 which has been wrongly recorded at inner page -2 , para -2 , in the  impugned order. The Respondent/Complainant, in the light of the above , informed the Complainant three  days after the incident had taken place which prevented the Appellant/OP No.1 to take up immediate investigation for ascertaining the nature of the incident.

            In support of his argument, the Ld. Advocate cited before the Bench the observation of the Hon’ble Supreme Court in Civil Appeal No. 396 of 2009 arising out of SLP © No. 19513 of 2006 reported in 2009 (i) TAC 809 (SC) wherein the Hon’ble Apex Court was pleased to observe the orders of the Ld. State Commission and Hon’ble National Commission not sustainable as both the Commissions observed in appeals against the order of the Ld. District Forum that the vehicle being used by the person not having a valid licence and the same was used for commercial purpose were not any fundamental breaches of the policy without indicating any reason for their arriving at the above decision. The Hon’ble Apex Court set aside the orders.

            The Ld. Advocate further cited that decision of the Hon’ble Apex Court reported in ( 2010) 10 SCC 567 [Suraj Mal Newas Oil Mills Pvt. Ltd. –vs- United India Insurance Company Ltd. and Anr. ] emphasizing on mandatory compliance of the terms and conditions of the policy .

            The decisions of Hon’ble National Commission in revision Petition No. 3045 of 2015 [ Rajesh Kumar –vs- National Insurance Co. Ltd. ] , in revision petition No. 3528 and 3543 of 2008 reported in II (2015) CPJ 469 (NC) [Jatindra Singh and Anr. –vs- Oriental Insurance Co. and Anr. ] and revision petition No. 4290 of 2010 reported in II (2015) CPJ 196 (NC) [Iffco Tokyo General Insurance Co. Ltd. –vs- Gaurav Bhargava] were also referred to by the Ld. Advocate indicating therein the same reason of non-adherence to the terms and conditions of the policy as the reason for dismissing the said petitions.

            The impugned order, as the Ld. Advocate concluded , was passed without taking into  consideration the degree of lapses , as aforesaid, on the part of the Respondent/Complainant and accordingly, needed to be set aside.

            Per contra , the Ld. Advocate appearing on behalf of the Respondent No.1 / Complainant, submitted that the only plea that the Appellant/OP No.1 company had taken was the theft of the vehicle . The delayed intimation of the theft , as the Ld. Advocate submitted further, was not pleaded earlier and therefore, should not be taken cognizance of  at present. In this context, the Ld. Advocate referred to the decision of the Hon’ble Supreme Court in Civil Appeal No. 638 of 1980 dated 08.04.1987 wherein the Hon’ble Apex Court was pleased to observe that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it.

            The Ld. Advocate drew the notice of the Bench  to para -2 of page -2 of the impugned judgment and order where there was mention about providing due intimation to Respondent No.2 /OP No. 3 about the incident within 3 days by the Respondent No.1 / Complainant.

            As submitted , the news paper advertisement which had no admissibility as evidence was awarded highest evidentiary value by the Ld. Advocate for the Appellant/OP No.1. Referring to the letter dated August , 28, 2010 addressed to the Respondent No.1 / Complainant at running page -44 , the Ld. Advocate pointed out that ‘limitations as to use’ was identified as the sole point of violation of the terms and conditions of the policy.

            The Ld. Advocate referred to the decision of the Hon’ble Supreme Court in Civil Appeal No. 3409 of 2008 reported in ( 2008) 11 SCC 259 [National Insurance Co. Ltd. –vs- Nitin Khandanwal] wherein the Hon’ble Supreme Court , in an identical issue, affirmed the order of dismissal of the Insurance Company’s appeal with an observation that in case of theft of a vehicle , the nature of use of the vehicle should not be looked into and the Insurance Company should not repudiate the claim on that basis.

            With the submission as above , the Ld. Advocate concluded praying for dismissing the Appeal affirming the impugned judgment and order.

            The Ld. Advocate appearing for Respondent No.2/OP No. 2 did not submit anything since there was  no directions against his client in the impugned judgment and order.

            Perused the papers on record . The friend of the Respondent No.1 / Complainant to whom the subject vehicle was handed over appeared to have hired the vehicle for offering the same to one Sri Ajay Gupta for the purpose of shooting of a film .

            The excerpts of the ‘Sanmarg’ showing advertisements published by the said Sri Gupta only corroborated the facts that the said friend, Mr. Nair,  received the vehicle from the Respondent No.1 / Complainant for sending the same to Sri Gupta on hire for the purpose as above.

            There was , therefore, no doubt that the vehicle was sent on hire although the same was registered for the purpose of private use . Further, it was unbelievable that the vehicle which was handed over to a friend for the purpose of giving the same on hire for shooting of a film would not derive any financial benefit for the Respondent No.1 / Complainant . Therefore, the use of the vehicle for commercial purpose , as claimed by the Appellant , also appeared to be having some elements of truth .

            There was , however, no gainsaying the fact that the subject vehicle was stolen. The decision of the Hon’ble Supreme Court in the case of the theft of a vehicle was very clear and free from any kind of ambiguity as well.

            In this context, we may recall the decision of the Hon’ble Apex Court in Civil Appeal No. 3409 of 2008 [National Insurance Co. Ltd. –vs- Nitin Khandanwal] supra wherein while affirming the decisions of the State Commission and Hon’ble National Commission, the Hon’ble Apex Court was pleased to observe that the subject vehicle, since stolen , the breach of condition was not germane. Upholding the decision of the State Commission towards settlement of the claim on non-standard basis and that the Hon’ble National Commission affirming the aforesaid decision of the State Commission , the Hon’ble Apex Court further observed that the law was well settled to the effect that in case of theft of vehicle , nature of use of the vehicle should not be looked into and the Insurance Company should not repudiate the claim on that basis.

            We , in consideration of the totality of the case , do not find any reason for not being at one with the impugned judgment and order which appeared to be in the lines of the law, well settled in view of the above decision of the Hon’ble Apex Court.

         We are , therefore, inclined to decide that the judgment and order passed by the Ld. District Forum does not deserve any intervention from this end.

            Hence,

                                                            Ordered

That the Appeal be and the same is dismissed on context without costs . The impugned judgment and order is affirmed.