(Delivered on 17/12/2019)

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1.         Appellant Nos. 1&2 have preferred  the present appeal  challenging  the judgment  and order dated 16/03/2018 passed by the  learned  Additional District Consumer Forum, Nagpur   in Consumer Complaint  No. RBT/CC/13/812  by which  the complaint  filed  by the  complainant /respondent   came to be partly allowed and  appellant  No. / O.P. was directed  to pay compensation   of   an amount of Rs. 1,00,000/-  within  30 days along with interest.  (Appellant and respondent shall hereinafter be referred  to by their  original  nomenclature)

2.         Short facts leading  to  the present appeal  may be narrated briefly   as under:-

            Complainant –  Mr. Suresh  Teja Chawan is resident  of Nagpur and was the owner of vehicle  namely Ashoka Leyland Truck bearing registration  No. MH-40/Y-2250. Complainant  had insured  the truck with  O.P. namely HDFC Ergo General  Insurance  Co. Ltd. had  comprehensively   insured the vehicle   with O.P.Nos. 1&2 and period of insurance  was from   05/12/2012 to 04/12/2013. The complainant had also paid premium of Rs. 35,980/-. The complainant  has contended that  in the  intervening  night  between  18/09/2013 and 19/09/2013 all the  four wheels along with  the rims  of Ashok Leyland truck  were  stolen  when the truck was parked in front of  house of the complainant.  The complainant  thereafter promptly lodged  report (F.I.R.) with Kalamana Police Station  and also gave necessary  intimation to the O.P.Nos. 1&2.  Complainant  also produced  bills regarding  purchase of tyres to the tune  of Rs. 82,400/-. The O.P.Nos. 1&2 gave assurance  that they will clear the claim of  complainant to the tune  of Rs. 1,00,000/- towards tyres and rims and so the complainant  waited for a long time. However, subsequently  the O.P.Nos. 1&2 repudiated the claim on the ground that the theft of four tyres  and rims  was not covered  in the Insurance  Policy.  The complainant thereafter  issued legal notice  to the O.Ps.  on 19/10/2013 and O.Ps. also gave reply.  The complainant has contended that the O.P.Nos. 1&2 had indulged in deficiency in service by not satisfying the  claim. Complainant  was  therefore left with no other   option   but  to file the Complaint under Section 12 of the Consumer Protection Act, 1986.

3.         O.P.  Nos. 1&2 appeared and resisted the complaint by filing their written version.  It is not disputed  that  the complainant  approached  the O.P. No. 1 and requested for  issuing  the policy  for the vehicle which was goods  carrying  commercial  vehicle.  It is also not disputed  that  the O.P. No. 1 issued policy   which  was  valid  for the period  from 05/12/2012 to 04/12/2013. However,  the O.P. Nos. 1&2 had contended  that  the complainant  were not  entitled  for the claim under  the insurance  policy  regarding theft of four tyres along with rims as the complainant  had not paid any additional  premium  for covering  risk   as per  IMT-123.  As per IMT 21(a) the  insurer was not  liable  under section 1 of the policy  for damage to lamps, tyres, tubes etc. The O.P. Nos. 1&2 for also denied that there was any  deficiency in service or unfair trade practice  on the part of the  O.Ps.  Complaint filed by the complainant – Mr. Suresh  Teja Chawan was not tenable  in law and so  the same  deserves  to be dismissed.

4.         The learned Additional District Consumer Forum thereafter went through the  evidence affidavits  filed  by the  complainant- Suresh Chawan   as well as  O.P.Nos. 1&2.  The learned District Consumer Forum also went through the written notes of argument  filed by  both  the parties  on record.  The learned Additional District Consumer Forum after  appreciating  the  oral and documentary  evidence on record  came to the  conclusion  that  the theft of tyres along with rims was duly  covered  in the  Insurance  Policy  issued by  the O.,P.Nos. 1&2.  The learned Additional District Consumer Forum also reached to the  conclusion  that  the Exclusion  Clause  mentioned  in the insurance policy  was not  applicable  and  so the learned  Additional  District Consumer Forum allowed the complaint and directed the O.P.Nos. 1&2 namely HDFC Ergo General Insurance Co. Ltd.   to pay compensation   to the tune of  Rs. 1,00,000/- along with  interest at the rate of 9% p.a.  and Rs. 10,000/- towards mental  harassment  and Rs. 5,000/- towards cost  of litigation. Against this  order dated 16/03/2018 passed by the  learned  Additional  District Consumer Forum, Nagpur, the  appellant / O.P. have come up in appeal.

5.         We have heard, Mr. C.B. Pande, learned advocate for the appellant/O.P. and Mr. Sitani learned advocate for the  respondent/complainant.  We have also gone through the written notes of argument placed on record  by the learned advocate for appellant /O.P.  as well as respondent/complainant.  We have also perused the documents placed on record.

6.         Prior to dealing with  the contentions raised  before us, it is  necessary  to mention that  there is no  serious dispute  regarding  the  fact that  the complainant  was the owner of Ashok Leyland  Truck and  further  the same  was insured  by  O.P. Nos. 1&2 and period  of insurance  was from 05/12/2012 to 04/12/2013. It is also  not  seriously  disputed that  theft  of four tyres  along with  rims had taken  place in  the intervening  night  on 18/09/2013 and 19/09/2013.

7.         Coming now to the foremost contention raised  by the learned advocate for the appellant, it  is submitted that the learned Additional District Consumer Forum has not properly interpreted the Terms and Conditions of the insurance policy issued by the O.Ps.  In this  regard  the learned advocate  for the appellant  has specifically  drawn our attention  to Clause  IMT-21 which  deals with    Exclusion  Clause.  In the light of  this  exclusionary   clause  in IMT-21 it is submitted  by learned advocate for the appellant  that  though  complainant - Mr. Suresh  Chawan  had taken  the insurance policy  against  theft for the  whole truck , yet  theft of tyres , tubes  and  Mad Guard were not covered  in the insurance policy  taken by the complainant.  According  to the learned advocate for the appellant,  the respondent /complainant  was under obligation  to pay a  separate  premium  which was not paid.  The learned advocate  for the respondent/complainant  has countered  this argument  and  has submitted  that there was  no necessity  at all to pay separate premium  for the loss of tyres  against  theft. The learned advocate  for the  respondent /complainant  has emphasised before us that the  insurance  policy  taken by the  complainant  was a Comprehensive  insurance policy  and so there was no need  to pay  any separate  premium  and  secondly  the exclusion  clause  cannot  be invoked. It would be therefore pertinent   to deal with the said exclusion clause mentioned in LMT-21(a) which reads as under,

            “Special  Exclusion :-Except in the case of total loss of  the vehicle  insured the  insurer shall not be liable under section 1 of the policy for  loss  or damage   to lamps, tyres  tubes mudguards bonnet  side parts bumpers and paid work.”

8.         We have duly considered the same and also gone through the other terms and conditions of the insurance policy, copy of which has been placed on record.  We have also gone through the judgment delivered by the learned Additional District Consumer Forum. However,  on going  through  the contents of  the entire  insurance policy, we are of the view that  the Exclusion  Clause  will have to be  seen and  examined  in the light of the contents  of the  entire insurance  policy. We also find that the insurance policy taken by the complainant was a comprehensive policy.

9.         During the course of argument, the learned advocate  for the respondent /complainant  has placed  reliance  upon one judgment  of the Hon’ble  Supreme  Court  in the case  of National Insurance Co. Ltd. Vs.  Nitin  Khandelwal,  in Appeal  (Civil)   No. 3409 of 2008, decided on 08/05/ 2008. In that case  the facts  were that  appeal was  preferred  against the order  passed by the  Hon’ble National Commission and theft of  vehicle  had taken place.  Similarly  the learned  advocate  for the  respondent /complainant  has  also relied  upon one judgment   in the case of  United  India  Insurance Co. Ltd. Vs.  Devinder Kumar   in First Appeal No. 344 of 2004, decided on 10/02/2010  by  State  Consumer Commission, Punjab. In that case  also  the facts  were identical  and  the Insurance Company  had  taken  the similar plea that  not extra premium  was paid  to  insure tyres  with  the truck for the full value. In that case also reference was made to other judgment. We have also gone through the judgment of Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Vs.  Nitin  Khandelwal(cited supra). In that  case  it was observed by the Hon’ble Supreme Court that  in case of violation  of condition  of  policy  the claim ought to be settled on non standard  basis. But in  the present  case  before us  the  appellant /O.P. has  invoked  the exclusion  clause  to   repudiate  the claim  on the ground that  extra premium  was not paid. We find ourselves unable to accept this contention, in view of the fact that  the insurance policy  taken by the  respondent /complainant  was a comprehensive  policy  and so there was  no question  of  paying  extra premium  regarding  theft of  tyres, tubes etc. We find that  the learned Additional District Consumer Forum has also  dealt with  this  aspect and has given  finding  that  the exclusion  clause  as mentioned  in  IMT-21 of terms  and conditions of the policy  would not be applicable.  We do not find any material on record so as to disagree with the same.  Before parting  with the  matter we find  it necessary  also  to deal with  another  judgment  of Hon’ble National Commission  on which  reliance  has been placed  by the learned advocate  for the  appellant namely in the case of  M/s. Vardhman Agencies Vs. United  India  Insurance Co. Ltd. in Revision Petition No. 831 of 2008, decided on 12/10/2015. In that case the facts were that Energy Saving Lamps were damaged in the flood and similar stand was taken by the insurance company.  But in that  case  the learned Additional District Consumer Forum had not  dealt with  the terms  of policy  and so we are of the view that  this judgment  in the case  of  M/s. Vardhman Agencies Vs. United  India  Insurance Co. Ltd. will not go to help the case of  appellant.

10.       Consequently,  we are unable to accept  the submissions advanced  on behalf  of the appellant  and we  do not  see any reason  or material  to  interfere  with  the findings given by the Additional District Consumer Forum, Nagpur. We therefore pass the following order.

ORDER

i.          Appeal is hereby dismissed.

ii.          Appellant to bear his cost as well as cost of respondent.

iii.         Copy of order be furnished to both the parties, free of cost.