HON'BLE MR. ASHIS KUMAR BASU, MEMBER                          

 Order No. 06

Date : 27.11.2019

The record is put up for order.

1.The  appeal under section 15 of the Consumer Protection Act, 1986 ( hereinafter referred to as the Act ) is directed against the judgment and order dated 14.12.2017 passed by the Ld. District Consumer Dispute Redressal Forum, Burdwan ( the District Forum, for short ) in Consumer Complaint No.139 of 2015 preferred by the appellant.

2. The dispute in the present case arises out of complaint filed by the Complainant – Respondent in relation to repudiation of an insurance claim for theft of a Tipper dumper.

3. The appellant is aggrieved as the Ld. District Forum is erred in fact and as well as law  by passing the order in  favour of Respondent-Complainant.  Ld. Forum below acted  illegally  having material irregularities in the impugned order.  Ld. Forum below had not exercised its  jurisdiction  which was vested in it by law and exercised its jurisdiction which is not vested in it.

4. The appellant also aggrieved  as the Ld. District Forum did not consider the terms and conditions of the insurance policy along with the law of the land that a vehicle  cannot be driven on the without valid driving license and it must have road permit. Despite of these laws of the land, Ld District Forum ordered Appellant-OP to pay total sum insured deducting 5% for depreciation. Hence the impugned order is bad in law and liable to be set aside.

5. The appellant also aggrieved  as the Ld. Forum did not consider that Appellant- OP1 called for record from RTO for related information and consequently the said record revealed that the driving license  possessed by the driver at the time of incident was not bonafide.  The said vehicle without any permit is  also  a clear violation of terms and condition of the policy. Therefore, the impugned judgment is liable to be set aside.

6. The appellant also aggrieved that in the instant case , there was no deficiency in service on the part of Appellant-OP 1. In spite of that, for sake of argument, if it is taken that Appellant  OP is liable to pay insurance claim , in that case also the liability  should be limited to maximum 75% of the total IDV of the vehicle though the direction of the Ld. Apex Court cannot be applicable here as the cases are not similar in nature.  But the Ld. Forum in the impugned order  directed to Appellant OP to pay  insured amount  deducting 5% as depreciation  along with compensation though there is no  deficiency in service Hence the Ld. Forum did not act judiciously.

7.  The Appellant-OP prays for admission of the appeal and to aside the impugned order along with any other relief (s) that the Ld. Commission deems fit and proper.

8. The fact in brief is the Complainant, Shyam Bahadur, S/O Sri Churamoni Bahadur, resident of Kirtaniya Para,P.O. and P.S. Raniganj, Dist: Burdwan . is the owner of a Tipper Dumper, having Registration No. WB39A2349 which has been engaged transporting coal in the region of Lal Natia to Pirpainty  Railway yard, Bhagalpur, Bihar.  The said vehicle was covered under Insurance policy bearing  policy no 150403/31/630005898 issued by Branch Manager, National Insurance Co. Ltd, Benachity Branch , Nachan Road , P.O. Durgapur, Dist: Burdwan. whose validity was from 23.03.2010 to 28.03.2011 where total sum insured to the tune of Rs.1602160/-.  While Bombom Singh, the driver of the said dumper was returning from Pirpainty Coal Dump after unloading coal,  it has been stolen near Pirpainty on 08.10.10 and an FIR was lodged at Pirpainty P.S. Dist: Bhagalpur, Bihar, FIR No. 228/10 dt.12.10. 2010 U/S 381/34 IPC. In course of investigation, two  persons were arrested  but the stolen Tipper Dumper was not recovered till now and the theft case was informed to the RTA, Durgapur on 26.11.2010. The Respondent-Complainant  informed  the theft of the vehicle to the Appellant-Insurance Co. Durgapur Branch on 20.10.2010 over phone and e-mail and lastly through a letter dated 17.08.2011.  Appellant issued claim form  to the complainant and appointed an investigator who submitted report on 10.12.2010 detecting that the vehicle had the temporary permit which is valid from 03.09.2010 to 30.09.2010. Respondent-Complainant was asked to submit Driving  license and permit of the vehicle by the  Appellant which were already sent to the Surveyor  and Sr. Branch Manager,  National Insurance Co. Ltd, Benachity Branch, Durgapur. In  course of verification of driving license by  another investigator, appointed  by the appellant, it is also revealed  that the driving license of Bombom Singh being no. WB41/030875  submitted for the claim has been actually issued in the name of one Arman Khan S/O Salam Khan issued on 23.05.2004 by RTA , Burdwan  having validity upto 02.04.2010.  Appellant –OP repudiated the claim for insurance of Complainant on the ground of gross violation of terms and condition of the policy.

9.   The Complainant filed a complaint U/S 12 of the Act before LD. DCDRF, Burdwan         against National Insurance Co. Ltd. Benachity Branch, Nachan Road, P.O. Durgapur-713213 , Dist: Burdwan , W.B. represented by the Branch Manager, OP No. 1 for unfair trade practice as well as deficiency in service under section 2(1)(d) of the Act for repudiation of claim for theft of the vehicle, Tipper Dumper. In the said case being no. CC/139/2018 , complainant sought the direction of the Ld. District Forum, Burdwan to pay Rs. 15,20,000/- for loss of the vehicle as per DAV, Rs.3,20,000/- for loss of business during period of theft of the vehicle ( April  2012 to March 2015 ) and  Rs. 20,000/-  as cost of suit and other related expenditure.  

10.  In the observation of Ld.DCDRF, Burdwan mentioned  the case of Ld. NCDRC as reported in 2014(4)CPR759(NC), “ that in case of theft of vehicle the breach of condition is not germane.” Ld. DCDRF also mentioned the argument of the complainant that” Driving license and permit cannot be treated as proximate cause of peril which is theft and similar observation was taken by the Hon’ble State Commission, Calcutta in FA/196/2009 decided on 16.02.2010 and reported in 2010(2) CPR pages-469, that claim cannot be repudiated by the insurance Co. on the ground that the vehicle was not registered. It is well proved that the vehicle in question was stolen. Ultimately, the ld. DCDRF  allowed the complaint on contest  against OP No.1 and dismissed  against OP No.2 without any cost. The OP No.1 was directed to pay Rs.15,20,000/-towards value of the vehicle to the complainant.  The OP No.1 is further directed to pay Rs. 3000/- towards compensation for mental pain, agony and harassment to the complainant along with  to pay Rs. 2000/- as litigation cost. All the above directions have to be complied with  within 45 days fro the date of order. In case of noncompliance interest @8% will have to incurred by the OP No. 1.

11. In brief notes of argument , the appellant-Insure Co. contended that the vehicle in question had been stolen on 08.10.2010 and the corresponding FIR was lodged on 12.10.2010 U/S 381/34 of IPC i.e. after 4 days of  alleged theft of the vehicle where the Pirpainty Police Station is only 5 K.M. distance from the place of occurrence.  Similarly, Complainant informed OP 1 about the theft of the vehicle on 20.10.2010 i.e. after 12 days from date of occurrence. Appellant argued that it is mandatory to lodge an FIR and inform the Insurance Co. immediately after occurrence  of the incident. Therefore, it was a violation of the terms and condition of the policy. Appellant appointed an investigator regarding theft of the vehicle and the corresponding report showed that the said vehicle had temporary permit valid from 03.09.2010 to 30.09.2010. From this detection it is evident that the tipper dumper as plying without valid permit at the time of theft flouting the statutory terms and conditions of the policy.  It is also revealed through the report of second investigator that the driving license submitted by the Complainant for claim was not issued in favour of Bombom Singh, the driver of the stolen vehicle but it was issued in the name of  Arman Khan which was valid upto 02.04.2010.  Hence it is proved that at the time of  the theft, Bombom Singh had used fake driving license and in fact he did not have any  effective driving license.

 Appellant also argued that, all the valid contracts are followed by the Indian Contract Act 1872 and insurance policy  comes under the ambit of  this Act as it is also a contract between insurer and insured.  So it is obligatory for both the parties to abide by the terms and conditions of the contract mentioned in the insurance policy. It is said that insurance policy is a contract of UBERRIMAE FIDIE which implies a contract based on utmost good faith. If the insured fail to comply the terms and conditions of the policy which is specifically mentioned, the insurer is not liable to pay compensation accordingly.

 Hence the appellant is justified by repudiating  the claim of the complainant.

12.  In the brief notes of argument, Tata Motor Finance Ltd, the Proforma Respondent, OP No.2 in case no.CC/139/2015 ,contended that  they are the financer of the Tipper Dump owned by the  complainant.  The proforma  Respondent was made a party as hypothecation of the vehicle was  done by them. An Arbitration proceedings were started against complainant where an arbitral award was delivered in favour of proforma respondent. On 31.03.2018 the Respondent herein settled the loan account and the contract is terminated on 04.04.2018 accordingly. Therefore , the case  be dismissed against the Proforma Respondent.

13.  In the written argument, Complainant- respondent cited  the case reported in 2005(1) CPR 1(NC).  Complainant claims as per observation of Ld. NCDRC , he is a consumer and the case is maintainable . Initially , complainant did not have any knowledge that the driving license  was a fake one and the driver did not have any valid driving license. Complainant claimed  that fake Driving Licence was not the proximate cause of the perils as it was a theft.  Complainant cited the case reported in 2014 (4) CPR 799 (NC ) where the Hon’ble NCDRC held that in  case of theft of vehicle the breach of condition  is not germen. Complainant also mentioned another judgement delivered by  Hon’ble NCDRC in RP/1894/2008 dated 22/05/2015 where it is held that in case of theft nature of its use cannot be made its basis of repudiation. Complainant cited cases in this regard. Regarding delay  of intimation , Complainant relied the case  M/S  Galada Power  and Telecommunication Ltd. versus United India Insurance Co. Ltd. where Hon’ble Apex Court  observed that  “ the letter of repudiation does not whisper about  delay in lodging claim, it can safely be concluded that the insurer had waived the right which was in its favour under duration cause.  Hence the repudiation of insurance claim is unjustified”.

14.   We have heard the arguments advanced by the lawyers of both parties and perused the material on record. It is true that  Shyam Bahadur, the complainant Respondent No. 1 is the owner of the tipper dumper  being registration no.WB39A/2349, engaged  in coal transport at Pirpaity Rly yeard, Bhagalpur. It is used for the earnings of his livelihood .The said dumper was under insurance  coverage  of National Insurance Co. Ltd. with the validity from 23.03.2010 to28.03.2010 which was stolen  near Pirpainty 08.10.2010. An FIR was lodged at Pirpainty P.S. on 12.10.2010 and the appellant has been informed of the incidents on 20.10.2010. Two persons were arrested including driver of the vehicle Bombom Singh. Complainant  submitted  claim form  for loss of vehicle. Appellant appointed investigator  who detected that the vehicle  had a temporary permit having validity from 03.09.2010 to 30.09.2010 which clearly showed that the vehicle did not have any valid permit at the time theft case. Later on a second investigator was appointed  to verify the driving  license  and he reported  that the driving license was not in the name of the driver Bombom Singh , but it was issued in favour of Arman Khan whose validity was upto 02.04.2010 That  means at the time of theft case the driver used a fake driving license and he had no valid effective driving license. The appellant repudiates the claim on the ground  that the complainant has been plying the vehicle without any permit and the driver has no effective driving license  which tantamounts to violation of statutory condition of the policy. 

15.  It is mentioned in the “Standard Form For Commercial Vehicle Package Policy” under the head DEDUCTIBLE :  that  “ The Company shall not be liable for each and every claim under Section-1 ( loss of or damage to the vehicle insured ) of this policy in respect of deductible stated in schedule”.

Under head CONDITION : “ Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim  and thereafter the insuredshall give all such information and assistance as Company shall require. …  In case of theft  or criminal act which may be the subject of a claim inder this policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction  of the offender”.  In the instant case  the complainant could not explain why he lodged the FIR after 4 days where the distance of P.S was only 5 KM  and afterwards informed appellant Insurance  Co. after 12 days from date of occurrence through e-mail and phone.

If we take an in-depth study of this case , it reveals that being a huge structure, how the Tipper Dumper has been stolen is really very unnatural. The complainant did not give any details of the theft case such as where and whose custody  the vehicle was at the time of theft. How  the arrested accused person other than the driver  got the key of the vehicle, is not at all clear as the vehicle cannot move suomotu. From record it appears that the vehicle is not stolen forcefuly. Undoubtedly it  indicates the negligence , callousness and laches  on the part of the driver. Appellant did not divulge  the  whereabouts of the driver at the time of theft.  

16.  Appellant claimed that he is well conversant of rules and regulations of motor vehicles Act. Through investigator it was well proved  that the appellant has been running the vehicle without any  valid permit. It is a pertinent question why  the appellant handover his vehicle to the driver for transporting coal  without any permit.  In  section 66(1) of Motor Vehicles Act, 1986 , under the head  Necessity for permits : “ No owner of a  motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carring any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority  or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.”

17. In course of  verification  of driving license, the second investigator, appointed by the appellant , reported that the driving license submitted by the complainant was not in the name of  Bombom Singh but in the name of one Arman Khan which was valid up to 02.04.2010. It proves that the  driver used a fake driving  license and he did not have any valid effective driving license at the time of theft and the said vehicle was plying without any valid license and permit which are the most essential condition for running a vehicle. It is quite natural and desirable that the complainant would give great attention  about the permit and driving license of his vehicle for which as he had taken a huge loan of Rs.1495000/- from financer.  The driver should have kept the vehicle in a secured  place or in the garage. Complainant claimed that he did not know that his driver had no valid driving license and the vehicle did not have any valid road permit which is not tenable in this case. This also proves the utter negligence indifferent attitude  on the part of complainant. Here it would be very pertinent to mention that the Hon’ble Apex Court held in the   case of  United Insurance Co. Ltd. Vs. M/S  Harchand Rai Chandanlal , Civil Appeal No. 6277 of 2004 ( Arising out of SLP(C) No.19771 of 2003 } decided on 24.09.2004  “ The definition given in the policy is binding on both the parties. The policy is a contract between the parties and both parties are bound by the terms of contract. ….. The terms of the policy have to be construed as it is and we cannot add or subtract something. ……… It is settled law  that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein.  

18. Going through above facts and figures we are of the opinion that respondent No. 1 most unreasonably violated the essential  terms and condition  of the insurance policy which are binding  upon him . Being the owner of Tipper dumper, he did not give his attention to the permit of the vehicle and driving license of the driver flouting the statutes mentioned in the policy . The theft of the vehicle  has been occurred  due to his  irresponsible  act and utter negligence.   Therefore,  the appellant has rightly repudiated  the  insurance claim  the  respondent- complainant as he grossly violated the terms and conditions of the policy.  We are of the view that there is no deficiency in service and unfair trade practice on the part of the Appellant.  Hence the appellant-OP No. 1 is not liable to pay compensation to the complainant-respondent for theft of Tipper dumper. Ld. Forum below as  we find did not ponder over the facts in issue as discussed by this Commission in body of this judgement. We think that Ld. Forum below erred in law and in fact in passing in impugned judgement and the judgement as such can not sustain accordingly.

                                                                                Ordered  

The instant Appeal being  and the same is allowed on contest.

The impugned Judgement /Order passed by the Ld. DCDRF, Burdwan  in Case No. CC/139/2015 dated 14.12.2017 is set aside.

We make no order as to cost.

 Let a copy of the judgment be supplied to the parties free of cost immediately.