The Appeal is preferred against final order dated 25.03.2021 delivered by Ld. D.C.D.R.F., Alipurduar in CC 25 of 2018.
The fact of the case in nut shell one Sunirmal Das of Birpara registered a consumer complaint U/S 12 CP Act, 1986 on 29.08.2018 to the score that the complainant has purchased one vehicle Maruti Suzuki Model SWIFT DZIRE from Pooder Car World i.e., OP No. 4 for a consideration of Rs 7,18,413/- by issuing cheques. The complainant insured his vehicle with the O.Ps. The said vehicle Bearing No. WB-70H-4041 was insured for the period 13/04/2017 till 12/04/2018. The said vehicle was generated being policy no, 98000031170305237020 covering the risk of the policy period by receiving appropriate policy premium by the O.P from the complainant. Thereafter, on 28/07/2017 two persons came to the driver and requested him to lift them in Jaigaon in the said vehicle and the driver proceeded towards Jaigaon with the said two persons. But the driver did not return on that day and when he came back after three days, he disclosed the complainant that the said persons has hijacked the said vehicle from him. The complainant searched the vehicle but in vain and the vehicle is untraced till date and the complainant lodged F.I.R. on 29/07/2017 being Alipurduar PS. Case No. 398/2017 U/S 365, 379 IPC. The complainant communicated the matter with the O. Ps and made issuance claim against the insured vehicle. The complainant also made several correspondences with the O. Ps and the complainant also filled up "Claim Form" provided by Cooch Behar office as well as Siliguri office. The complainant also visited Siliguri office of "Claim Form" with all papers but all was in vain. The O. Ps did not pay the insurance claim to the complainant. Further case of the complainant is that in "Certificate of Registration / Form No. 23/State Transport Department APD RTO/Govt. of West Bengal, it was written in a column that vehicle was for private use.
On 27/07/2018 the insured got a letter from O.P No. 2 Vide Claim No. 9800003117039001071/131 stating that "Policy does not cover the use for hire... we are extremely sorry for the convenience caused to you." Finally, the complainant got a letter from O.P No. 2 Vide No. 512300/Theft/Legal dated 14/08/2018 specifying that the instant matter/"file has been closed on 27/07/32018 and the rejection letter already sent to the insured. The complainant made several attempts but the O. Ps did not pay the insured claim which is deficiency in service on the part of O.Ps.
Hence, the case has been filed by the complainant against the O. Ps with a prayer to direct the O. Ps to pay Rs. 7,90,673/- with interest @ 18% per annum and also prays to direct the O. Ps to pay Rs. 1,00,000/- for mental agony and sufferings and also to direct the O. Ps to pay Rs. 50,000/- for deficiency in their service and also the O.P may direct to pay Rs. 20,000/ towards cost of litigation.
In the instant case all the four O. Ps have appeared before this Forum to contest the case by filing separate Written Version denying all the materials allegation leveled by the complainant against them and prayed for dismissal of the case.
The positive of the OP (Insurance Company) is that the vehicle in question was registered to be used as private purpose, while the owner and the driver of the vehicle had hired the vehicle to two persons at the time of incident which was not authorized in terms of the agreement of insurance and Motor Vehicle Registration. The complainant and the O. Ps have filed evidence-in-affidavit as well as, Written Argument in support of their respective cases. Both the parties also filed documents.
Ld. Forum after completion of hearing come to conclusion that the complainant was entitled to get the insurance claim and the instant case was disposed in favour of the complainant.
Being aggrieved with the final order of the LD. Forum the OP insurance company has challenged the said final order in appeal and contended that the insured has violated the terms and condition of insurance policy while Ld. Forum through mistake, error and misconception of fact has delivered the Final Order which is liable to be set aside.
The appeal was registered and admitted in due course and notice was sent to the respondent. The respondent No. 1 who happened to be the complainant of the case has contested the appeal through Ld. Advocate.
Ld. Advocate Mr. J. Pawa has conducted the hearing on behalf of appellant while Ld. Advocate D. Dhar, N. Mohpal, and S. Ghosh Majumdar has participated in hearing on behalf of respondent No. 1 Sunirmal Das.
Decision with Reasons
Admitted position is that the vehicle in question was covered with first party insurance and it was not a commercial vehicle and the owner and driver was not authorized to give the vehicle in hire to any third party.
According to the case of Respondent No. 1 and the Contents of FIR speaks that on 28.07.2017, two persons came to the driver of the vehicle at Alipurduar and approached him to carry them in the vehicle for their journey upto Joygraun. Driver then at about 11.30 a.m. took them towards Joygram and did not return back till the time of G.D.E. at 16.35 hrs. on 29.07.2017 lodged at Alipurduar P.S.
On the basis of such G.D.E. No. 1824 date 29.07.2017, Alipurduar P.S., registered a case by treating the said G.D.E. as FIR bearing No. 398 dated 19.07.2017 U/S 365/379 IPC. S.I. A. Ali Mia investigated the case who established the fact of stealing away of the vehicle by the unknown miscreants and submitted the F.R.T.
Ld. Advocate of the appellant submits during hearing that the complainant (respondent no.1) informed the said appellant (O. Ps) on 26/10/2017 i.e., after about 3 (three) months and informed the concerned RTO on 17/10/2017 i.e., after above 2 ½ months about the said incident.
From the contents of the FIR/GDE dated 29/07/2017 and also the FRT dated 31/10/2017 submitted by the 1/0 in c/w the aforesaid case, it has been clearly made out that the said vehicle was being used for hire or reward purpose at the relevant point of time whereas the said vehicle was registered and insured as a private car i.e., for personal use.
Hence, there has been a fundamental breach of terms and conditions of the insurance policy, because the use of vehicle for commercial purpose as a taxi is duly proved.
The appellant finally rejected / repudiated the claim of the complainant on the specific ground that the vehicle was used for hire e commercial purpose at the relevant time of loss whereas the policy issued was a "Private Car Package Policy" and accordingly informed the complainant (Respondent no. 1) in this regard Vide letter dated 27/07/2018.
The Ld., Lower Commission failed to appreciate and consider that there was a clear violation of the private car package policy since the vehicle in question was being used for hire or commercial purpose.
The Ld. Lower Commission failed to appreciate and consider the policy that IDV (Insured Declared Value) of the insured vehicle was Rs. 6,81,573/ only as mentioned in the policy and by ignoring the same, has passed an award of Rs. 7,90,673/- towards the insurance amount, as claimed by the complainant (respondent no.1).
Ld. Advocate of the appellant in support of his client’s case referred Judicial decisions as follows:
- Revision Petition No. 3045 of 2015 (N.C.)
Rajesh Kumar Vs. National Insurance Co. Ltd. & Ors.
Decided on 20 February, 2017
ii) Civil Appeal No. 2703 of 2009 (S.C.)
Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.
Decided on 25 March, 2010
iii) Civil Appeal No. 396 of 2009 (S.C.),
National Insurance Co. Ltd.' Vs. Meena Aggarwal
Decided on 23 January, 2009
iv) Appeal (Civil) No. 3409 of 2008 (S.C.)
National Insurance Co. Ltd. Vs. Nitin Khandelwal
Decided on 8 May, 2008
After going through the valuable arguments canvassed in this case from the end of Ld. Legal Counsels of both sides and after considering the facts and circumstance of the case it is established that the vehicle is question was not authorized to carry passengers in lieu of money as it was not a commercial vehicle and if any road traffic accident happens with the involvement of the said vehicle then the owner of the vehicle losses the right to claim compensation within the insurance courage due to violation of terms and condition of the policy. But if such vehicle is theft away by passengers who was given complimentary service for carrying or lift them from one place to another then the said act and conduct of the driver does not show that the branch of the policy was not so fundamental to bring the insurance contract to an end.
Hon’ble S.C has taken this view in Civil Appeal No. 21552of 2017 in the case of Manjeet Singh Vs National Insurance Company (referred by Respondent).
In this case it is proved beyond any doubt that the driver of the vehicle was carrying two persons who requested him to lift them to Joygaon. But it not proved that the persons were permitted to travel by paying fare.
Rather the Judgement of Hon’ble S.C. referred above, in case of theft of vehicle, if the passengers by threatening or applying force upon the driver theft away the vehicle then such type of breach of condition of policy does not snatch away the right of the insured in claiming compensation from the insurer.
Ld. Advocate has rightly pointed out that the vehicle which was theft away purchased by the complainant by paying Rs.7,18,413/- and as per policy coverage the insurance company liability was fixed up to Rs. 7,50,000/- and the insured declared value of the vehicle was Rs.6,81,573/- while through mistake Ld. Forum fixed the insurance amount to Rs.7,90,673/-.
So, the maximum liability of the insurance company should be Rs.6,81,573/-
The insurance Company has repudiated the claim on the perception that in spite of restriction not to hire the vehicle to third party and in FRT of police as mentioned that the vehicle was hired by two persons the insurance company on anticipation of such breach of insurance contract has repudiated the claim. So major deficiency of service in the part of appellant/insurance could not be established. So, the decision of Hon’ble forum cannot be discarded but need to be modified in appeal.
Hance it is Order,
That the instant appeal be and the same is partly allow on contest without cost.
The Judgement and Final Order dated 25.03.2021 delivered by Ld. DCDRC Alipurduar in CC No. 25 of 2018 modified to the effect that the insurance company /appellant shall pay Rs.6,81,573/- instead of Rs. 7,90,673/- as insurance amount with interest @ 8% PA since the date of insurance claim 26.10.2017.
The order of compensation awarded to the tune of Rs.50,000/- in favour of Complainant for mental agony and sufferings is rescinded. The litigation cost remains the same as awarded.
If the appellant pays the amount as determined by this Bench with in two months from this day no further interest to be imposed for not carrying out the order of Ld. Forum in due course.
Let a copy of this order be supplied to the parties free of cost and same to be communicated to Ld. D.C.D.R.C., Alipurduar.
