Per – Hon’ble Mr. Justice S. B. Mhase, President
Heard Adv. Mehta proxy advocate for KMC Legal Venture on behalf of the Appellant and Adv. U. S. Jagdale on behalf of the Respondent.
[2] This appeal takes an exception to an order dated 5/12/2009 passed by the District Consumer Disputes Redressal Forum, Thane in Consumer Complaint No.401 of 2008. By this order the Appellant/original Opponent No.1 has been directed to pay an amount of `7,66,137/- together with interest thereon @ 9% p.a. It is further directed that out the said amount an amount of `5,51,000/- together with interest thereon @ 9% p.a., is to be paid to the original Opponent No.2, namely – ICICI Bank Ltd., and the balance amount shall be paid to the Respondent No.1/original Complainant. The Appellant/original Opponent No.1 was also directed to pay to the Respondent No.1/original Complainant an amount of `10,000/- by way of compensation towards mental agony besides costs of `5,000/-. Aforesaid amounts were directed to be paid within a period of 30 days from the date of receipt of the order and failing which aforesaid amounts were to carry penal interest @ 3% p.a., as from the date of order. Feeling aggrieved by the impugned order, the Appellant/original Opponent No.1, namely – ICICI Lombard General Insurance Company Ltd., has preferred this appeal.
[2] On 10/5/2007, the Respondent No.1/original Complainant purchased a motor vehicle – ‘Chevrolet Tavera B3’ bearing RTO Registration No.MH-43-D-3586 for an amount of `7,93,138/- and the said vehicle was comprehensively insured with the Appellant/original Opponent No.1. The insured vehicle had a sitting capacity of 07 passengers including the driver and the said insured vehicle was having a tourist license. The Respondent No.1/original Complainant after taking the insurance cover had given the said insured vehicle on hire basis to one Mr. Ananda Mahadeo Dhanavade who was supposed to run the insured vehicle and to pay amount of installments and also certain payments to the Respondent No.1/original Complainant. Theft in respect of insured vehicle had taken place. These facts are not in dispute.
[3] After the theft of the insured vehicle a claim was lodged with the Appellant/original Opponent No.1 but it was repudiated by the Appellant/original Opponent No.1 and, therefore, present consumer complaint was filed. Said complaint was allowed by impugned order, as stated above.
[4] First ground which has been raised by the Learned Counsel for the Appellant is in respect of Condition No.35 of the terms & conditions of the insurance policy. However, it is pertinent to note that said condition is not applicable to the present case because that condition is applicable to four wheeled vehicles with carrying capacity not exceeding six passengers and motorized two wheelers. In the present case, the insured vehicle was having capacity of carrying seven passengers and, therefore, benefit of the said condition cannot be taken by the Appellant Insurance Company. Learned Counsel for the Appellant/original Opponent No.1 tried to point out that insurance policy which was issued by the insurance company in respect of the insured vehicle in question was in respect of a four wheeled vehicle with carrying capacity not exceeding six passengers. On perusal of the customer copy of the Cover Note bearing No.PCVE5204612 dated 7/5/2007 issued by an authorized signatory of the Appellant Insurance Company to the Respondent No.1/original Complainant in respect of the insured vehicle, it is evident that the insured vehicle was having a licensed capacity to carry seven passengers and the vehicle was comprehensively insured with the Appellant Insurance Company. Firstly, what we feel is that the Appellant Insurance Company has manipulated the documents because there is no material on the record apart from the Customer Copy of Cover Note to show that insurance policy was handed over to the Respondent No.1/original Complainant. Secondly, assuming for a sake of moment that insurance policy was handed over to the Respondent No.1/original Complainant yet, what we find that proposal made by the Respondent No.1/original Complainant was in respect of a motor vehicle having licensed capacity to carry seven passengers and it was for the Appellant Insurance Company either to accept the said proposal or to reject it. Appellant Insurance Company cannot issue any other insurance policy unless a reciprocal proposal is made and accepted by the Respondent No.1/original Complainant. However, at no point of time as against the proposal made by the Respondent No.1/original Complainant a counter-proposal was made by the Appellant Insurance Company and that was accepted by the Respondent No.1/original Complainant. So, elementary principles of contract being materialized have not been followed and such a unilateral insurance policy could not have been issued by the Appellant Insurance Company and, therefore, said policy document cannot be accepted in support of the claim made by the Appellant Insurance Company.
[5] Secondly, Learned Counsel for the Appellant Insurance Company invited our attention to Condition No.34 from the terms & conditions of insurance policy. However, said condition is not applicable to the facts and circumstances in the present because said condition speaks about use of commercial type vehicles for both commercial and private purposes and the said clause is applicable only in respect of Commercial Vehicle Policies. In the present case, the insured vehicle was registered as a tourist vehicle and it was not used for private purposes and there was no license issued for plying the insured vehicle for private purposes also. Therefore, Condition No.34 of the policy document has no application in the present case.
[6] Last submission made by the Learned Counsel for the Appellant Insurance Company is that the Respondent No.1/original Complainant is not a ‘consumer’ within the meaning of Section-2(1)(d) of the Consumer Protection Act, 1986. He tried to take us through an agreement dated 14/5/2007 executed between the Respondent No.1/original Complainant, as the owner of the insured vehicle, with Mr. Ananda Mahadeo Dhanavade, as the Hirer, wherein rights were created in favour of the Hirer to claim the amount by subrogation. However, that agreement would not help the Appellant Insurance Company in any manner for the simple reasons that the insurance policy in question is directly taken by the Respondent No.1/original Complainant from the Appellant Insurance Company on payment of insurance premium and there is no privity of contract between the Appellant Insurance Company and the third party Hirer. Thus, we find that there is no substance in the appeal. Hence, the appeal is rejected. No order as to costs. Order accordingly.
Pronounced and dictated on 13th March, 2012
