For the Complainant : Mr.S.V.Chaubal, Advocate
For the Opposite Party : Smt.D.S. Kulkarni, Advocate
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Per :- Mr. J. L. Deshpande, President Place : Bandra
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::::: JUDGMENT :::::
Facts giving rise to this complaint may be stated, in brief, as follows :-
The Opposite party is Insurance Company. The Complainant had purchased Cheverolet / Tavera Jeep and it was insured with the Opposite party and the policy was valid and was in force. The Complainant had parked his vehicle at Samaj Mandir Hall, Subhash Nagar, Chembur in the night of 25.06.2009.
2 In the morning of 26.06.2009, when the Complainant went to the place of parking, he found that the vehicle was not there. The Complainant then went to the Chembur Police Station and FIR was lodged. Despite search taken by the Complainant and despite investigation conducted by the Police, the vehicle could not be traced out.
3 In the meantime, the Complainant submitted the claim with the Opposite party to pay compensation under the Insurance Policy towards theft of the vehicle. The Opposite party vides their letter, dated, 08.02.2010 repudiated the claim on the ground that the vehicle was being used by the Complainant for hire business (taxi) and thus there was breach of condition of the policy. The Complainant then filed present complaint to recover amount of the compensation from the Opposite party under policy of the Insurance.
4 The Opposite party –Insurance Company contested the complaint by filing written version of defence and justified the repudiation of the claim on the ground that the Complainant was supposed to use the vehicle for personal use and not for any other purpose. In this case, the vehicle was being used for business purpose and thus there was breach of condition of the policy. Thus the Opposite party denied allegations that there was deficiency in service on the part of the Opposite party.
5 The Complainant filed affidavit of evidence of rejoinder and reiterated that the Opposite party was liable to pay compensation as per the policy of the Insurance. The Opposite party-Insurance Company filed affidavit of evidence of its Regional Manager –Mr.B.K.Shivaji. The Complainant filed his affidavit of evidence as well as relevant documents. Both the sides filed written notes of arguments.
6 We heard learned advocates for both the sides. We have gone through the complaint, written version of defence, affidavit of evidence, documents and written notes of the arguments. Following points arises for our consideration and our findings thereon are as follows.
Nos. | Points | Findings |
1 | Whether the Complainant has proved that the Opposite party is guilty of deficiency in service on account of repudiation of the claim of the Complainant ? | Yes |
2 | Whether the Complainant is entitled to recover compensation from the Opposite party under policy of Insurance ? | Yes, 75% of the sum Insured. |
3 | What order ? | Complaint is partly allowed. |
REASONS FOR FINDINGS :-
7 There is no dispute about the fact that the Complainant had purchased Cheverolet / Tavera Jeep and it was insured with the Opposite party. Copy of the certificate of the Insurance is produced by the Complainant at exhibit-A along with the complaint and policy was valid. According to the Complainant, the vehicle was parked near Samaj Mandir Hall, Subhash Nagar, Chembur, in the night of 25.06.2009 and in the morning of 26.06.2009, the Complainant went to the place of the parking and found that the vehicle was missing. The Complainant went to Chembur Police Station and lodged FIR in the same morning. Copy of FIR is produced by the Complainant and contents of the same fully support version of the Complainant regarding theft of the vehicle. According to the Complainant despite taking search as well as investigations by Police, the vehicle could not be traced out. This version of the Complainant get supports from copy of the report submitted by Chembur Police Station to Metropolitan Magistrate, Chembur, Mumbai. Thus the fact that the Complainant had insured the vehicle with the Opposite party is established. It is established that it was lost due to the theft.
8 The Opposite party repudiated the claim of the Complainant only on the ground that the vehicle was insured for personal use of the Complainant but the Complainant had used the same as taxi and thus there was breach of condition of the policy. The Complainant in the complaint itself has admitted that the Complainant used to offer his vehicle to the Officers of the Company, as per their need. This shows that the Complainant had used this vehicle to earn income by giving the vehicle on hire basis. The Opposite party referred to this aspect of the matter and repudiated the claim on the ground that the vehicle was not used by the Complainant only for personal use but as taxi.
9 It was submitted by Learned Advocate for the Complainant that in the matter Insurance, the use of the vehicle is immaterial and Insurance Company is bound to pay compensation if it is proved that the vehicle is lost due to theft.
10 In support of this contention, learned advocate for the Complainant has relied upon the decision of Hon’ble National Consumer Disputes Redressal Commission, Delhi, in the case of Oriental Insurance Co. Ltd., Versus Sanjeev Kumar [(2009)(2) CPR 168 (NC)]. In that case, Hon’ble National Commission held that ‘where vehicle registered as passenger vehicle was being used as taxi at the time of theft, Insurance Company was liable to settle claim on non-standard basis to pay 75% of the admissible claim’. Learned advocate for the Complainant has also relied upon the Hon’ble Supreme Court decision in the case of National Insurance Company Ltd. Versus Nitin Khandelwal (2008) 11 Supreme Court Cases 259. In that case, Hon’ble Supreme Court held that in the case of theft of vehicle, nature of use of vehicle can not be looked into and the Insurance Company can not repudiate the claim on that basis. Thus decisions rendered by Hon’ble Supreme Court and the Hon’ble National Commission support the contention of the Complainant that the Opposite party is guilty of deficiency in service on account of repudiation of the claim of the Complainant.
However, it appears from the observations in the judgment of the Hon’ble National Commission as well as Hon’ble Supreme Court, referred Supra, that the Opposite party –Insurance Company is liable to pay 75% of the sum insured in such cases. In the present case certificate of Insurance shows that sum insured was Rs.6,00,000/-. Therefore, the Opposite party is liable to pay 75% of the sum insured i.e. 75% of the Rs.6,00,000/- which comes to Rs.4,50,000/-. Since the Opposite party had repudiated the claim erroneously and on unjustifiable ground, the Opposite party is liable to pay interest on the outstanding amount from the date of repudiation. In view of the above decisions and findings, we proceed to pass the following order.
::::: ORDER :::::
(1) Complaint is partly allowed.
(2) The Opposite party is directed to pay 75% of sum insured i.e. 75% of Rs.6,00,000/- = Rs.4,50,000/- with interest thereon @9% from 08.02.2010 till the date of payment.
(3) The Opposite party shall also pay costs in sum of Rs.5,000/- towards compensation to the Complainant.
(4) Certified copies of this order to be furnished to both the parties, free of costs, as per rule.
