Haryana

Ambala

CC/150/2016

Nirmal Singh - Complainant(s)

Versus

The Oriental Inss Co. - Opp.Party(s)

Rohin Kumar

13 Feb 2018

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                        Complaint No.   150 of 2016

                                                        Date of instt:      16.03.2016

                                                        Date of decision: 13.02.2018

 

Nirmal Singh aged 30 years son of Shri Lachman Dass resident fo village Kulchandu Tehsil Jagadhri District Yamuna Nagar.

                                                                           ...Complainant.

Versus

1. The Oriental Insurance Company Limited. LIC Building Ambala City, through its Branch Manager.
2. The Oriental Insurance Company Limited Head Office at Oriental House A 25/27, Asaf Ali Road, New Delhi through its Managing Director.

 

                                                                         …Opposite party.

Complaint under section 12 of

 

BEFORE:  SH. DINA NATH ARORA, PRESIDENT.  

                SH. PUSHPENDER KUMAR, MEMBER                   

                   SH. ANAMIKA GUPTA, MEMBER

 

Present: -    Sh. Rohin Kumar, counsel for complainant.

                   Ms. Suraj Rashmi Sharma, counsel for Ops.

 

Order

 

                   In nutshell, the facts of the complaint are that the complainant is owner of car No.HR-02-AE-4410 make Tata Indigo ECS and the same was got financed from Mahindra & Mahindra Financial Services Limited Jagadhari. He got the said vehicle insured with OPs vide policy No.121500/31/2015/01/50009933 having validity from 12.07.2014 to 11.07.2015.  On 03.12.2014 said vehicle got robbed at Pyayu Maniyari Pul, Near Kundli Border District Sonepat and regarding this FIR No.360 dated 03.12.2014 under Section 395/397 IPC was also registered. The complainant got submitted the claim with Op No.1 by furnishing all requisite documents including the non-traceable report of the police dated 25.04.2015 but the OPs did not settle the claim despite lapsing of sufficient time. The complainant visited the Op No.1 and also got served legal notice in order to settle the claim but to no avail. The act and conduct of the Ops clearly amounts to deficiency in service on their part. In evidence the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C9.

2.                Upon notice, OPs appeared and filed joint reply wherein several preliminary objections such as maintainability and cause of action etc. have been taken. It has been submitted that the insurance company is not liable to pay any claim as the car was not used as private car for his own house rather the same was being plied as Taxi against the terms and conditions of the insurance policy and this fact was very much clear from the statement of Punit Batra who hired the taxi from Jatin Arora and even in the FIR it has also been mentioned that the car was running as a taxi. The complainant has not submitted untraceable report issued by Illaqa Magistrate regarding the robbery as alleged by the complainant.  There is no deficiency in service on the part of OPs. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RB and documents Annexure R1 to Annexure R5.

3.                We have heard learned counsels for the parties and carefully gone through the case file. It is not disputed that the complainant is owner of   vehicle Car No.HR02-AE-4410 and the same was insured with OPs for the period from 12.07.2014 to 11.07.2015.  As per Ops the vehicle in question was being used by the complainant for commercial purpose as the same was being plied as Taxi on the public road without permit which comes within fundamental breach of the terms and conditions of the insurance policy as well as provisions of the Motor Vehicles Act, 1988.  Whereas learned counsel for the complainant has argued that the nature of use of the vehicle was not a relevant factor because the vehicle was robbed during the subsistence of the policy in question and the insurance company is liable to indemnify the loss suffered by him because he has paid premium for getting the vehicle in question insured but the insurance company has not settled the claim.  Counsel for complainant has argued that if, this Forum come to this conclusion, there is any breach of the conditions of the policy, this Forum can decide the claim of the complainant on non-standard basis as per the judgment of Hon’ble Supreme Court title as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C).

4.                          Perusal of the case file reveals that the vehicle in question was being used a taxi and this fact finds support from the statement Annexure R3 made by one Puneet Batra wherein it has been stated that the vehicle in question was booked and at the time of incident he was returning from Delhi. There is enough on the record to show that the vehicle was being used as taxi but despite that the insurance company cannot reject the claim toto or withhold the same. The law laid down by Hon’ble Supreme Court case titled National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C) is fully applicable in the present case and the claim of the complainant is liable to be accepted on non-standard basis. In the said case Hon’ble Supreme Court titled as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), Hon’ble Supreme Court has observed thus:

                   “In the present case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. 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. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.

5.                Keeping in view the above discussion as well as the law laid down in National Insurance Company Vs. Nitin Kandelwal  (supra)  we have no hitch to partly allow the present complaint. Accordingly, the present complaint is hereby partly allowed with costs on non-standard basis (75% of admissible claim as that is applicable only where the breach is insignificant & not maturity fundamentals to the loss) and Ops are directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)      To pay the 75% of Insured Declared Value of vehicle in question which comes to Rs.3,64,800/- from the date of complaint alongwith interest @ 9% till its realization subject to furnishing of surety bond/indemnity bond for insured amount.

(ii)     Also to pay a sum of Rs.5,000/- on account of litigation charge, mental harassment & agony alongwith cost of litigation.

                   Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on: 13.02.2018                                  (D.N. ARORA)

                                                                                       President

    

 

                                                                    (PUSHPENDER KUMAR)

                                                                                         Member

 

 

 

                                                                     (ANAMIKA GUPTA)

                                                                                        Member