Per Justice Shri S.B.Mhase, Hon’ble President:-

This appeal can be disposed of at the stage of admission itself. 

          There is delay application filed on record to condone the delay of 46 days.  However, the delay has been as stating that it is caused due to administrative grounds.  Though the respondent has very vehemently opposed, we are in favour of condoning  the same.  We find that delay has been properly explained by the appellant.  Therefore, we condone the delay. 

          This appeal takes an exception to an order passed by District Consumer Disputes Redressal Forum, Solpaur in consumer complaint no.131/2009 decided on 03/08/2009.  The appellant is an original opponent while respondent is a original complainant.

          District Consumer Disputes Redressal Forum by the said order has directed the insurance company/appellant to pay an amount of `1,06,776/- with interest @ 9% p.a. from 28/09/2007.  Said amount is directed to be paid within period of 30 days.  Towards the cost Rs.1,000/- has been granted by District Consumer Redressal Forum.

          Admitted facts are as follows:

          That the respondent/complainant is owner of Tempo track bearing no. MH13/AC/0198.  Said vehicle was insured with the appellant/opponent/insurance company for period from 02/11/2005 to 01/11/2006.  Said vehicle met with an accident on 03/06/2006.  Surveyor has carried out a survey and it is found that vehicle has suffered damage up to `1,06,776/-.  Since the said amount was not paid, complaint was filed in the District Consumer Redressal Forum, Solapur.

          Insurance company has repudiated the claim on a ground that said vehicle was used by the respondent/complainant contrary to the terms and conditions of the insurance policy.  According to them, said vehicle was a private vehicle which could not have been used for hire and reward.  It is to be noted that in the insurance policy there is a limitation clause which states that, “  The policy covers use of the vehicle for any purpose other than

a)    Hire or Reward.

b)    Carriage of Goods (other than samples or personal luggage)

C) Organized racing

d) Pace Making.

e) Speed Testing and Reliability Trials.

f) Use in connection with Motor Trade.”

          Therefore as per terms and conditions of the policy, vehicle cannot be used for hire and reward.  Therefore, we have to find out that as to whether said vehicle was used for hire or reward.  Ld.Counsel invited our attention to the first information report.  In the first information report lodged by the police sub-inspector/Mr.Dhawale, it is stated that on the basis of information given by witness-Shri Hanmant Jagnnath Phate and Dnyaneshwar Sambhaji Bagal that said vehicle was taken on rental by the passengers in the vehicle from complainant.  After taking said vehicle on rent 10+1 persons had visited Pune to see a patient in Ruby Hall Hospital.  Thereafter, they visited  Village  Alandi and Dehu and while returning back, the vehicle had met with an accident at 11.45 p.m. .  Three persons died in the said accident.  It is further to be noted that statement of  Shri Hanmant J.Phate is on record and said witness had stated that on 03/06/2006, he and Dnyaneshwar Sambhaji Bagal  etc. 9-10 persons hired the vehicle on rent from  Pandharpur to visit the patinent/ Rambhau Bagal, who was admitted at Ruby Hall Hospital , Pune  and thereafter, they came to Pune.  After having seen the patient, they have visited Dehu, Alandi and started journey to Pune.  On the way of return, the vehicle met with an accident.  There is statement of Mr.Dnyaneshwar Sambhaji Bagal recorded by the police wherein he has stated that the said vehicle was on hire basis to go to Pune.  Investigation paper shows that vehicle has been taken on hire basis.  They have visited Pune and while returning bank the vehicle met with an accident.  This material is placed on record of the District Consumer Disputes Redressal Forum.  Though it is well settled rule in criminal trial that the statement recorded by the police is not admissible, however, these statements can be the material to show that vehicle was taken on hire basis.  On the basis of investigation report, it can be safely inferred that vehicle was on hire and reward basis when it met with an accident and respondent has given said vehicle to those persons on rent when the vehicle met with an accident.  It was on hire basis with the persons who were traveling in the vehicle and thereby, the respondent has violated the terms and conditions of the insurance policy.  Under these circumstances, it was obligatory to file his own affidavit stating that he has not given his vehicle on hire basis and should have explained in what circumstances the vehicle was given to such persons.  That affidavit is not filed on record.  Apart form that it was also possible for him to file the affidavits of those witnesses whose statements have been recorded by the police to show that vehicle was not on hired basis.  Such attempt was not made by the respondent/complainant.  Therefore, we have no hesitation in accepting the investigation papers and come to the conclusion that vehicle was given by respondent on hire basis at the relevant time.  We have also noted that the RTO license was granted for carrying 9 + 1 persons. 

          On going through record, we find that there were 10 plus one persons in the said vehicle which is equally contravention to the terms of the insurance policy and legislation certificate.  All these aspects have been ignored by the District Consumer Disputes Redressal Forum and order has been passed.  This is a clear cut violation of insurance policy and insurance company has rightly repudiated the claim.  Order passed by the District Consumer Disputes Redressal Forum is not sustainable in law.  Hence, we pass the following order:-

                                                :-ORDER-:

1.                 Appeal is allowed

2.                 Order passed by the District Consumer Disputes Redressal Forum in consumer complaint no.131/2009 is hereby quashed and set aside. 

3.                 In the facts and circumstances of the case there is no order as to cost. 

4.                 The amount which has been deposited by the appellant/insurance company at the time of filing of appeal be returned to appellant.

5.                 Dictated on dais in presence of parties.

6.                 Copies of the order herein be furnished to the parties.