KUNDAN KUMAR KUMAI

This is an appeal preferred u/s 15 of the Consumer Protection Act, 1986 against the order dated 19/12/2022 passed by the Ld. DCDRF, Raiganj, Uttar Dinajpur in CC/03/2020.

The Appellant’s case in brief is that the Appellant/Complainant had purchased one Mahindra & Mahindra Scorpio M2 DICR bearing no. WB-60K-7045 with Insurance Policy being no. OG-202414-1801-00000313 from the Respondent no.1/OP no.1/Insurance Co., valid from 20/6/1990 till midnight of 19/6/2020 from local agent Respondent no.2/OP no.2. On 20/6/2019 when the brother-in-law of the Appellant/Complainant was going towards Purnia for his friend’s marriage party on N.H. 31, when he met with an accident being dashed by vehicle bearing no. NL 01Q-6105. The husband of the Appellant/Complainant immediately lodged a written complainant before the IC Sadar, Purnia Police Station on 20/6/2019 itself against which Sadar P.S. Case being no.313/19 dated 20/6/2019 u/s 279/337 of the IPC had been started. The Appellant/Complainant immediately informed the matter to the Respondent/Insurance Co. also through a letter, duly received by them. The Appellant/Complainant took the vehicle to Khokan Motor Works Pvt. Ltd., Siliguri for repairing and a quotation was generated amounting to Rs.1036911/- (Rupees ten lakhs thirty-six thousand nine hundred eleven) only.

After submitting the claim for the loss suffered the Respondent/Insurance Co. directed the Appellant/Complainant to submit all the documents. The Appellant/Complainant submitted the documents, as directed. The Appellant/Complainant also contacted with the local agent of the Respondent/Insurance Co., but the Respondent/Insurance Co. issued the letter dated 01/10/2019 & 14/10/2019 repudiating the claim on violation of the two conditions of the Policy. Despite the above, the Appellant/Complainant requested the Respondent/Insurance Co. on several occasions, but in vain. Finding no alternative, the Appellant/Complainant lodged this complaint before the Ld. DCDRF, Raiganj, Uttar Dinajpur with necessary prayers.

The Respondent/Insurance Co. as well as the local agent filed a combined written version, to contest the claim wherein it was mentioned that on the appointment of the investigator it was found that the vehicle was having 10 passengers including driver whereas as per the RTO, the sitting capacity was 9 including the driver. That apart the vehicle being registered as a private one had been used for commercial purpose. Moreover, the loss of the said vehicle amounting to Rs.256998/- (Rupees two lakhs fifty-six thousand nine hundred ninety-eight) only. It was thereafter prayed that the case be dismissed.

After going through the materials and evidence on record, the Ld. DCDRF, Raiganj, Uttar Dinajpur passed the impugned order dismissing the claim.

Being aggrieved by the impugned order the instant appeal was preferred on the ground that the Ld. DCDRF had erred in law and facts while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellant at the time of final hearing submitted that the accident had been caused during the validity of the Insurance Policy from 20/6/2019 till midnight of 19/6/2020. As such the
Respondent/Insurance Co. was duty bound to release the claimed amount. He therefore prayed for allowing the appeal by setting aside the impugned order.

Ld. Advocate for the Respondent/Insurance Co. on the other hand countered that the Respondent/Complainant had violated the terms and conditions of the Policy on two counts viz. by using the vehicle for commercial purpose when the vehicle was registered for private use and for excess carriage of no. of the persons i.e. 10 instead of the permissible limit of 9. On violation of the above conditions itself the claim had been repudiated.

The fact of accident within the validity of the Insurance Policy is not disputed. In such a scenario, whether the repudiation by the Respondent/Insurance Co. on the ground stated above can be justified or not. In this regard, the Hon’ble Supreme Court in Amalendu Sahu Vs. Oriental Insurance Co. Ltd. had opined that safety measures on the ground of the vehicle used on hire, the Insurance Company could not repudiate the claim in-to-to. Similarly, in National Insurance Co. Vs. Nitin Khandelwal the Hon’ble Supreme Court had observed that in case of theft of vehicle nature of use of the vehicle could not be looked into and the Insurance Co. could not repudiate the claim on that basis. In Kamalesh Vs. Shriram General Insurance Co. Ltd. the Hon’ble Supreme Court had laid down that in such cases the principle of non-standard basis should be applied. In the instant case also the infraction notwithstanding, the Appellant is entitled to get 75% of the claimed on non-standard basis which would amount to 75% of 5,00,000/- (Rupees five lakhs) only i.e. Rs.3,75,000/- (Rupees three lakhs seventy-five thousand) only. Under the circumstance, the instant appeal succeeds.

It is therefore

ORDERED

That the instant appeal be and the same is allowed on contest, but without cost.

The impugned order is hereby set aside.

The Respondent/Insurance Company is directed to pay the Appellant the amount of Rs.3,75,000/- (Rupees three lakhs seventy-five thousand) only within 45 days from the date of receipt of this order.

Copy of this order be sent to the parties free of cost.

Copy of this order be sent to the Ld. DCDRF, Raiganj, Uttar Dinajpur for necessary information.