The case of the complainant in brief is that the complainant was the owner of Mahindra & Mahindra Bolero vehicle being Registration No.AS-06/AC-0099 which was duly insured with OP at Dibrugarh Branch office after being paid requisite premium. The number of the said policy was 53010131120100004018 having validity w.e.f. 20.08.2012 to 19.08.2013 and the sum assured Rs.3,80,000/-. Unfortunately, during validity of the above policy period on 02.05.13 at about 2:30AM the vehicle was stolen while it was kept parking inside the residence of the complainant. Immediately, the complainant lodged an FIR at Barbaruah Police Station which was registered as Barbaruah P.S. Case No.99/2013 U/s 379 IPC and was also registered as G.R. Case No.1299/13. But, the said case was ended as F.R. after due investigation vide F.R. No.70 dated 28.08.13. The complainant informed about the stealing of the vehicle to the OP immediately after stealing the vehicle and also made claim from the OP as per procedure. The complainant submitted the original copy of the insurance policy, certified copy of F.I.R., order sheet and F.R. along with the claim petition. The OP in the second week of April, 2015 disbursed an amount of Rs.2,84,000/- being 75% IDV of Rs.3,80,000/- on the ground that the complainant’s vehicle was commercial and it had no road permit at the time of theft. The complainant being aggrieved on it, raised objection and accepted the offered amount on protest and claimed Rs.96,000/- being 25% of the claim amount. The complainant in his complaint petition admitted that the vehicle was with Oil India Limited, Duliajan, Assam on contract basis on OIL duty for the period from 20.12.2011 to 19.12.2012. but after the completion of said contract Oil India released the vehicle and since then it was kept at the residence of the complainant without plying on the road for any commercial purpose. The OP by deducting Rs.96,000/- as 25% of the total claim amount is directly attributable to the negligence of OP being a clear case of deficiency in service on the part of OP. The complainant suffered physical and mental harassment for non-payment of rest 25%. As such, the complainant prayed for payment of balance amount of Rs.96,000/- to the complainant being 25% of the total claim amount with interest and also claimed Rs.50,000/- as compensation for harassment and mental agony.
After registering the case notice was issued to the OP who contested the case by filing written statement stating inter -alia that claim petition is not maintainable in law as well as on fact. The OP admitted the fact that the vehicle Mahindra & Mahindra Bolero bearing Registration No.AS-06/AC-0099 was duly covered with valid insurance policy at the relevant time of theft with the OP. But the OP stated that the complainant himself used the vehicle for commercial purpose without having any valid road permit while the theft was committed. As such, the complainant is not liable to get full payment as claimed by him. The OP already considered the case of the complainant as per provision of insurance rule and in absence of the valid road permit allowed the claim to the extent of 75% of the insured declared value of the vehicle. The OP after considering all the matter of rules and after due investigation paid 75% IDV and remain 25% was deducted due to violation of road permit. Hence, the OP is neither negligent nor deficient in service in providing the just amount of loss of the said vehicle which was duly acknowledged by the complainant. Since, there is no deficiency of service on the part of OP it is prayed to dismiss the complaint petition with cost.
In this case complainant gave his evidence by swearing affidavit and exhibited as many as 5 (five) documents in support of his case. On the other hand, OP examined one Sri Bipul Gogoi, Administrative Office of New India Assurance Company Limited, Divisional Office, Dibrugarh as DW-1 and exhibited one document as Ext-A to rebut the case of the complainant.
Heard argument advanced by learned counsel for both the parties.
DECISION AND REASONS THEREOF :
Upon going through the evidence of both the parties and their documentary evidence it is found that one Mahindra & Mahindra Bolero bearing Registration No.AS-06/AC-0099 owned by the complainant was duly insured with OP who issued Policy No.53010131120100004018 having validity with effect from 20.08.12 to 19.08.13 as a comprehensive package policy for sum assured Rs.3,80,000/-. Ext-1 is the said insurance policy. During the validity period of the policy on 02.05.13 at about 2:30AM the said Bolero vehicle was stolen while the vehicle was parked inside the residential campus of the complainant. The complainant immediately on the next morning lodged an F.I.R. at Barbaruah Police Station vide P.S. Case No.99/2013 u/s 379 IPC which was also registered as G.R. Case No.1299/2013. During investigation police failed to trace the said vehicle and submitted F.R. vide F.R. No.70 dated 28.08.13. Ext-2 is the said F.I.R., F.R. and acceptance order in G.R. Case No.1299/13. The complainant immediately after being stolen the vehicle informed the matter to the OP and lodged a claim before the OP and submitted the insurance policy, Certified copy of F.I.R. and order sheet of F.R. and its acceptance with the claim form. The OP after due investigation paid Rs.2,84,000/- to the complainant being 75% of IDV of Rs.3,80,000/- on the ground that the vehicle being commercial did not have road permit at the time of theft. The complainant being dissatisfied with the above amount raised objection vide Ext-3 letter dated 27.04.15 which was received on 29.04.15 by OP demanding total IDV of Rs.3,80,000/-. Ext-4 is the protest letter. However, the complainant received the amount of Rs.2,84,000/- on protest. The OP subsequently replied that they cannot accept the objection vide Ext-5. PW-1 in the evidence admitted that his vehicle was placed at Oil India Limited, Duliajan, Assam to ply the vehicle on contract basis for the period from 20.12.11 19.12.12 but after completion of said contract the vehicle was released from Oil India Limited, Duliajan and since then the vehicle was kept at his residence in idle condition without plying on the road for any commercial use. The complainant alleged that OPs by deducting 25% of IDV caused most inconvenience and loss to the complainant intentionally which is attributable to the deficiency in service and breach of terms and condition of the policy.
One Mr. Bipul Gogoi, Administrative Officer of the New India Assurance Company, Dibrugarh Branch admitted that Mahindra & Mahindra Bolero vehicle bearing Registration No. AS-06/AC-0099 was duly covered with valid insurance policy at the time of committing theft. Further, it is stated that stolen vehicle was insured as commercial vehicle which was used for commercial purpose. But the vehicle did not have valid and effective road permit. As such, for having no valid permit at the time of the theft, the claimant is not liable to get full payment as claimed for. The OPs after investigation and due consideration of the claim as per provision of the Insurance rule extended 75% of IDV of the vehicle i.e. Rs.2,84,000/- for not having valid road permit which is duly accepted by the claimant. The OPs after being paid 75% of IDV as per Insurance rule has not committed any deficiency in service.
Learned counsel for the complainant submitted that the OP on the basis of Circular No.HO:MTD:2013 CIR.15 IBD.ADMN 73 dated 03.04.13 deducted 25% of total IDV for not having the valid permit. But, said circular is not admissible in the present case since the OP issued the present policy on 20.08.12. The circular was subsequent to the issuance of the policy for which the policy and rule of the said circular is not binding on the complainant. Further, in the body of the policy no such terms and condition is found for which the OP cannot deduct 25% of the IDV. Besides, learned counsel for the complainant submitted that the complainant has not violated section 66 of M.V. Act because after completion of the contractual period of Oil India Limited, Duliajan the vehicle was kept in his residence in idle condition without plying in the road for any commercial use. As such, it is prayed to pass an order directing OP to pay Rs.96,000/-, the remaining 25% of the IDV.
Considering the evidence of both the parties and also considering the submission made by learned counsel for the complainant it is admitted fact that the vehicle was duly covered with the valid insurance policy at the material time of stealing.
So far the submission made by learned counsel for the complainant regarding non-plying of the vehicle in the road for any commercial purpose is concerned, it is found clear that while the vehicle was stolen the complainant had no valid permit for plying the vehicle as commercial purpose after termination of contract from Oil India Limited, Duliajan. The contract was terminated on 19.12.12 whereas the vehicle was stolen on 02.05.13 i.e. after five months. The vehicle cannot lie idle in the premises of the complainant without use. The vehicle was registered for commercial purpose and from perusal of Ext-1, the Insurance policy the vehicle was insured as commercial vehicle. Under the circumstances non-availability of road permit is violation of the terms and condition of section 66 of the M.V. Act. It is true that when the stealing took place the vehicle was not being used as commercial purpose, it was parked at the residence of the complainant nevertheless the fact remains that it continued to be registered as commercial vehicle. Keeping the vehicle in the residence of the complainant while the stolen took place does not change the position. The vehicle being a commercial vehicle could not ply on the road without satisfying the relevant position of the M.V. Act like those for permit, fitness and registration. In this case the vehicle was stolen but breach of condition is not the germane. The OP is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. As such, the OP indemnified the complainant by paying 75% of the IDV and settled the claim on non standard basis which we think is proper. On consideration of the totality of the fact and circumstances of the case the law seems to be well settled that in case of theft of the vehicle, nature of the use of the vehicle cannot be looked into main thing is whether the vehicle is commercial vehicle or not and whether the claimant has violated the rules. In this case the complainant has violated the rule by not having valid permit and accordingly, the OP satisfied the claim of the complainant as per provision of rules on non-standard basis. As there was a violation of condition of policy regarding the use of the vehicle keeping this aspect in view the OP have righty paid the claim of the complainant on non-standard basis.
So far the submission made by learned counsel for the complainant as to the Circular No. HO:MTD:2013 CIR.15 IBD.ADMN 73 dated 03.04.13 is concerned, it is to be mentioned here that the circular has no relevancy in this case since Hon’ble Supreme Court has issued guidelines in number of judgments.
In this context, we may refer the following observation of their Lordship’s of the Apex Court in Amalendu Sahu vs. Oriental Insurance Co. Ltd. 2010 SAR (Civil) 405 S.C.
“12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh reported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputed Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited v. Nitin Khandelwal reported in 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:-
“..The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.”
13. In this case Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.
14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out it in its judgment the guidelines issued by the Insurance Company about settling all such non-standard claims. The said guidelines are set out below:-
Sr. No. Description Percentage
of Settlement
- Under declaration of Deduct 3 years’
of Licensed carrying difference in
capacity premium from
the amount of claim or deduct 25% of
claim amount, whichever is higher.
- Overloading of vehicles Pay claims not
Beyond Licensed carrying exceeding 75% of
Capacity admissible claim.
- Any other breach of Pay upto 75% of
Warranty/condition of admissible claim.”
Policy including limitation
as to use.
The fact of the present case are identical of above cases where the complainant without having valid road permit at the time of committing theft kept the vehicle in his residence though the vehicle was registered as commercial vehicle as well as insured commercial vehicle. As such, keeping of the ratio in the case of National Insurance Company Limited vs. Nitin Khandelwal (2008) (7) S.C.A.L.E. 351 reiterated in the case of Amalendu Sahu this Forum has agreed to accept the claim of the complainant on non-standard basis keeping in view of the guideline as above. The Insurance Company i.e. OP have rightly indemnified and satisfied the owner of the vehicle, i.e. the complainant by paying 75% of the claim of the complainant on non-standard basis on account of breach of condition of the insurance policy by the complainant. The claimant cannot claim the rest of 25% for violation of insurance rule by not having the road permit. The complainant cannot claim the remaining 25% of IDV by taking plea that the vehicle remain idle in his residence or was not used for commercial purpose since the vehicle was registered as commercial transport as well insured as commercial vehicle. The OP have indemnified the complainant for the vehicle on non-standard basis as per guideline of the Hon’ble Supreme Court. Accordingly, we find that OP has not committed any deficiency in service while settling the claim.
In view of the above, the case of the complainant is dismissed without cost.
