Per :- Hon’ble Mr. P. N. Kashalkar, Presiding Judicial Member
Adv. Karina Kripalani proxy advocate for R. Bhargavan & Associates is present on behalf of the Appellant. She files letter of authority. It is taken on the record. Respondent is absent. Heard.
[2] This is an appeal filed by the Appellant/original Opponent, namely – The New India Assurance Company Ltd., (hereinafter referred to as ‘the insurance company’ for the sake of brevity) against the judgment and order dated 18/6/2003 passed by the District Consumer Disputes Redressal Forum, Satara (hereinafter referred to as ‘the District Forum’ for the sake of brevity) in Consumer Complaint No.148 of 2002, Mr. Sunil Shamrao Jadhav Vs. New India Assurance Company Ltd. Allowing the consumer complaint partly, the District Forum directed the insurance company to pay to the Respondent/original Complainant (hereinafter referred to as ‘the Complainant’ for the sake of brevity) an amount of `2,67,750/- together with interest thereon @ 18% p.a., as from 19/2/2000 besides an amount in sum of `10,000/- by way of compensation towards mental agony and `3,500/- towards costs of litigation. As such, the insurance company has filed this appeal taking strong exception to the order passed against it by the District Forum. Facts, to the extent material, may be stated as under:-
[3] The Complainant owned a ‘Commander’ jeep of ‘Mahindra’ make bearing RTO Registration No.MH-11-H-5721 (hereinafter referred to as ‘the insured vehicle’ for the sake of brevity). He had insured the said vehicle with the insurance company. Insured declared value of the insured vehicle was of `3,15,000/-. While the insurance policy was in force, the insured vehicle was taken by one Mr. Dilip Pawar to Mumbai and from the custody of Mr. Dilip Pawar the insured vehicle was stolen from Mumbai on 11/1/2000. Mr. Dilip Pawar had lodged a First Information Report (FIR) as regards theft of the insured vehicle with RCF Police Station at Chembur, Mumbai. However, the insured vehicle could not be traced out. Hence, the Complainant, namely – Mr. Sunil Shamarao Jadhav, lodged an insurance claim with the insurance company. By a letter dated 14/1/2002, the insurance company repudiated the claim on the ground that the insured (Respondent/original Complainant herein) had committed breach of terms and conditions of the insurance policy. Feeling aggrieved by such repudiation of his claim, the Complainant filed a consumer complaint claiming an amount of `3,15,000/- together with interest thereon @ 18% p.a., besides an amount of `25,000/- by way of compensation towards mental agony and `10,000/- towards litigation charges. He filed certain documents alongwith an affidavit in support of the claim. The insurance company filed its written version and contested the complaint and pleaded specifically that the Complainant, the owner of the insured vehicle and the insured, had given the insured vehicle to Mr. Dilip Pawar under an agreement for a period of eleven months. In the process, the Complainant committed breach of terms and conditions of the contract of insurance. The Complainant had given vehicle on hire amount of `10,000/-. The insured vehicle was used for ‘commercial purpose’ and, therefore, the claim under the insurance policy was not payable. The insurance company, therefore, pleaded that the complaint may be dismissed with costs. Upon considering the pleadings, affidavits and documents placed on the record, the District Forum allowed the complaint and directed the insurance company to pay to the Complainant an amount of `2,67,750/- together with interest thereon @ 18% p.a., as mentioned in the opening sentence of this judgment and also directed the insurance company to pay compensation and costs to the Complainant. Aggrieved by this order, the insurance company has filed this appeal.
[4] We are finding that the award passed by the District Forum is bad in law and cannot be allowed to sustain in law inasmuch as the vehicle in question which was insured with the insurance company by the Respondent/original Complainant was in fact given in exclusive custody of one Mr. Dilip Pawar and Mr. Dilip Pawar had taken the insured vehicle for using it to Mumbai. While the insured vehicle was stationed at Mumbai, on 11/1/2000, the insured vehicle was stolen away and, therefore, Mr. Dilip Pawar had lodged a FIR with the RCF Police Station at Chembur, Mumbai. If, we peruse the FIR lodged by Mr. Dilip Pawar, it would reveal that he had taken the insured vehicle from the Respondent/original Complainant, namely – Mr. Sunil Jadhav on 11/12/1999 for a period of eleven months on hire and hire charges were of `10,000/-. Mr. Dilip Pawar had hired the insured vehicle for a period of eleven months and accordingly, said insured vehicle was brought by him at Mumbai and it was stolen from Mumbai. There is also on record appended at page (40) of the compilation, an agreement in respect of insured vehicle for a period of eleven months executed between Mr. Sunil Jadhav (the Respondent/original Complainant), as the owner of the insured vehicle and Mr. Dilip Pawar, the person who had lodged the FIR. In this agreement, it was clearly mentioned that the insured vehicle is owned by Mr. Sunil Jadhav and it has been given to Mr. Dilip Pawar and if anything happens to the insured vehicle, Mr. Dilip Pawar would be exclusively liable for compensation payable to the owner. While handing over the possession of the insured vehicle as per the agreement, three witnesses have signed this agreement alongwith the owner of the vehicle. It is also signed by Mr. Dilip Pawar. These two documents, namely – the FIR and the agreement, would clearly show that the insured vehicle was given exclusively in the custody of Mr. Dilip Pawar, resident of Chembur, Mumbai; and this is in terms of the agreement to be in force for a period of eleven months. These two documents would clearly mean that the Complainant had parted with the possession of the insured vehicle and given it in the exclusive possession of Mr. Dilip Pawar, resident of Mumbai, whereas the Complainant is a resident of Jadhav-Wadi, Taluka – Phaltan, District – Satara. So, the Complainant had surely parted with the possession of the insured vehicle owned and insured by him and had given exclusive custody thereof to Mr. Dilip Pawar, who was to look after the insured vehicle as if it was his own and in terms of agreement for a period of eleven months executed between the Complainant and Mr. Dilip Pawar, Mr. Dilip Pawar was to indemnify to the Complainant, the owner of the insured vehicle, for any loss or damage sustained to the insured vehicle. Mr. Dilip Pawar had mentioned in his FIR lodged with the RCF Police Station at Chembur, Mumbai that he had hired the insured vehicle for hire charges of `10,000/-. When this is so, certainly the Respondent/original Complainant has committed breach of terms and conditions of the insurance policy. Insured vehicle was to be used for personal use by the owner and it cannot be employed or engaged for ‘commercial purpose’ and by change of user the insured vehicle was given for ‘commercial purpose’ to Mr. Dilip Pawar by the Respondent/original Complainant in contravention of the policy conditions and on the very same ground, the insurance company had rightly repudiated his claim by sending a repudiation letter dated 14/1/2002. The District Forum ignored these salient features of the case and directed the insurance company to pay the claim amount which direction in our view is not sustainable in law. The Respondent/original Complainant had used the insured vehicle for ‘commercial purpose’. He had given the insured vehicle on hire to Mr. Dilip Pawar and thereby he clearly committed breach of terms and conditions of the insurance policy and as such, he forfeited his right to claim any amount from the insurance company under the said insurance policy. In the circumstances, by allowing this appeal, said award will have to be quashed and set aside.
Hence, we proceed to pass the following order:-
ORDER
Appeal is allowed.
Impugned order dated 18/6/2003 passed by the District Consumer Disputes Redressal Forum, Satara in Consumer Complaint No.148 of 2003 hereby is quashed and set aside. Consequently, the consumer complaint stands dismissed.
No order as to costs.
Inform the parties accordingly.
Pronounced and dictated on 10th January, 2012
