Dt. 12.05.2016

DEBASIS BHATTACHARYA, PRESIDING MEMBER

            This appeal has arisen out of order dated 30.12.13 in CC No. 403/13 before the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas (in short, District Forum) . By the impugned order, the case has been allowed. Being aggrieved  and dissatisfied with the same, the OP No.1 thereof has preferred this appeal.

            The case of the Complainant is that he  is the registered owner of  a vehicle being Sumo Gold EX 9 STR bearing No. WB-22-U-4347, purchased on 29.05.12, on hire purchase scheme, at a cost of Rs. 7,92,000/- and got the vehicle insured with the OP No.1 under  Private Car Package Policy being No. 2311200529981200000 for the period from 23.06.13 to 22.06.14 , of an IDV of Rs. 5,50,000/- . On 17.07.13, at about 01 A.M.  the vehicle met with an accident , near Koila Depo on the southern side of Basanti Highway under Tiljala P.S. and became badly damaged as it slipped  to the roadside Nayanjuli.  Accordingly, Tiljala P.S. Case No. 576 dated 17.07.13, u/s 279/427, IPC, was started . After getting back the vehicle by the order of the Ld. ACJM, Alipore on 25.07.13, he took the vehicle to Ghosh Brothers Automobiles (India) Pvt. Ltd. which is the authorized workshop of Tata Motors, who gave an estimate of Rs. 5,83,163/- and also charges for keeping the vehicle at Rs. 200/- per day. Accordingly, he lodged insurance claim before the OP No.1 on 26.07.13, but after about 40 days, the OP No.1 sent a letter dated 05.09.13 informing the Complainant of closure of the claim, as ‘No Claim’. So, this case.

            On the other hand, the case of the OP No.1 is that the vehicle was registered as private  vehicle and insurance policy was so issued . But, the said vehicle was being used against hire and reward at the time of the alleged accident , which is a specific violation of the terms  and conditions of the policy. So, the claim of the Complainant was bonafidely repudiated and intimated to the Complainant by way of a letter. Thus, the case be dismissed.

            It is to be considered if the impugned order is sustainable in law and in facts or to be interfered with as prayed for by the Appellant.

                                                Decision with reasons :

            Ld. Advocate for the Appellant submits that the Private  Car Package Policy of an IDV of Rs. 5,50,000/-  was taken by the Respondent No.1. But, he used the vehicle on hire and reward basis, which prompted the Appellant to repudiate the claim of the Respondent. An investigation was held and it was found that the vehicle was used on hire and reward basis on the date of accident, which is a clear breach of the terms and conditions of the policy, for which the Appellant repudiated the claim within 40 days time. So, there was no deficiency in service and no cause for harassment and mental agony for the Respondent No.1. The award of Rs. 20,000/- in the impugned order is not a justified one. Further, 75% of the sum insured has been ordered which has no justification. It was specifically mentioned in the policy that it does cover use of the vehicle for any purpose other than hire and reward , etc. The investigator  found that the vehicle was used on hire and reward on the date of the incident / accident.  The Surveyor made a detailed report in the matter of assessment of loss also.

            Ld. Advocate for the Respondent No.1 submits that it is not at all proved that the vehicle was used on commercial purpose at any time or at the time of the accident. The Investigator has not given his evidence before the Ld. District Forum. There has been estimate for repairing of the vehicle by the Authorized Centre, being OP No. 2 / Respondent No.2. He has relied upon a decision  of the Hon’ble Supreme Court as reported in 2010 CTJ 485 (SC) ( CP ) , where it  was laid down that in a case of violation of the condition of the Insurance Policy as to the nature of user of the vehicle, the Insurance Company can not repudiate the claim of the insured in toto.  He has also relied upon another decision of the Hon’ble National Commission in RP No. 1224/2014 , where the Insurance Company was directed to pay 75% of the assessed amount to the Petitioner / Complainant along with interest.

            There is no proof as such of hire and reward user of the vehicle at the relevant point of accident of the vehicle. Accordingly, the impugned order justifying the claim of the Complainant is a rightful one. However, compensatory amount of Rs. 20,000/- is not permissible in this case. Accordingly, the appeal is allowed in part. The impugned order is modified. Hence,

                                                            Ordered

That the appeal be and the same is allowed in part against the OP No.1. The impugned order is modified as below. OP No.1 is directed to settle the claim of the Complainant by paying 75% of the sum insured , i.e., Rs. 4,12,500/- to the Complainant within the time fixed, otherwise to pay an interest @9% p.a. till realization. Litigation cost of Rs. 3,000/- is kept intact. Compensatory amount of Rs. 20,000/- is struck of .