Per Shri Narendra Kawde – Hon’ble Member:
(1) This appeal takes an exception to an order dated 18/09/2003 in Consumer Complaint No.75/2003 (Madhukar Pandurang Khot V/s.The New India Assurance Co. Ltd.) passed by the District Consumer Disputes Redressal Forum, Sangli (‘The District Forum’ in short). By the said order the District Forum allowed the complaint of the present Respondent/original Complainant and directed the Appellant Insurance Company to pay an amount of `67,823/- with interest @ 9% per annum together with cost of litigation of `1,000/-. Aggrieved and dissatisfied with the impugned order the Appellant Insurance Company has preferred this appeal on the ground that the ill fated vehicle was insured as a Private Car and when the accident took place it was carrying the passengers against payment of `5/- each. The vehicle was used for hire or reward in breach of policy terms and conditions. The Ld.District Forum did not appreciate this fact on record and allowed the consumer complaint under non-standard claims i.e. directing thereby to pay 75% of the damages to the original Complainant/present Respondent.
(2) Heard Ld.Advocate for the Appellant Insurance Company as the Respondent or his Advocate preferred to remain absent at the time of final hearing. This is an old matter placed on record for hearing and disposal. At the time of final hearing we preferred to hear the same in the absence of Respondent. The Ld.Advocate submitted that though during the validity period of the Insurance Policy the accident occurred to the insured vehicle yet the policy did not cover hire and reward as at the time of accident four passengers were being carried away against the payment of `5/- each. This fact is on record. The Respondent/original Complainant has attested his signature on the statement and during the cross-examination it was not denied. It was within the knowledge of the Respondent/original Complainant that the vehicle was carrying passengers against the payment in utter violation of terms and conditions of the policy. He further pleaded that the Ld.District Forum wrongly interpreted the judgement of Hon’ble Apex Court in the matter of B.V. Nagraj V/s. Oriental Insurance Co. Ltd. reported in II(1996)CPJ 28 and awarded non-standard claim by the impugned order.
(3) We have perused the record. There is no dispute of subsistence of contract between the parties at the time of accident. The Ld.District Forum observed that there is a statement from the Complainant and the passengers that the vehicle was given to carry and deliver newspapers on rental basis. There is no denial of signature attested thereon by the Respondent/original Complainant. Since there is breach of conditions stipulated in the policy by diverting the use of insured vehicle i.e. mainly deployment on rental basis and additionally fare paying passengers, the statement of the Ld.Advocate for the Appellant Insurance Company is tenable in as much as there is a breach of terms and conditions of the policy. We, therefore, find that the District Forum erred in arriving at the conclusion and passing the impugned order allowing the consumer complaint. In view of the facts and circumstances of the case, the impugned order is required to be quashed and set aside. The appeal thus having substantive merit. We, therefore, hold accordingly and pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Impugned order dated 18.09.2003 passed in Consumer Complaint No.75/2003 is quashed and set aside. In the result consumer complaint stands dismissed.
(iii) In the given circumstances, parties to bear their own costs.
Pronounced on 28th March, 2012.
