IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President<br /> <br /> <br /> 2. G.V.Balasubramanya<br /> B.E., LL.M - Member<br /> <br /> CC 212/06 DATED 29-11-2006<br /> <br /> Complainant K.P.Sunder, R/at D.No.1511/B, Rajkamal Road, Devaraja Mohalla, Mysore.<br /> (By Sri.B.S.Shubhakara, Advocate)<br /> Vs. <br /> Opposite Party United India Insurance Company Limited, D.O. – I, D.No.1134, Prince of Wales Road, Chamarajapuram, Mysore-570 005.<br /> (By Sri.V.Vishwanath, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 27-07-2006<br /> Date of appearance of O.P. : 16-08-2006<br /> Date of order : 29-11-2006<br /> Duration of Proceeding : 3 ½ MONTHS<br /> <br /> <br /> <br /> <br /> <br /> PRESIDENT <br /> MEMBER<br /> <br /> <br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The Complainant Sri.K.P.Sunder has come up with this complaint under section 12 of the Consumer Protection Act, 1986 against the opponent namely United India Insurance Co. Ltd., Mysore Branch, who are hereinafter referred to as the complainant and opponent for the sake of convenience, with the allegations that he is the R.C. owner of Toyota Qualis vehicle bearing No.KA-09-W-3118 insured with the opponent, which was valid till 25.12.2004. That he is a businessmen was using the vehicle for his business purpose. That on 02.03.2004 when he had parked his vehicle at his house, his brother K.P.Shanmugham took the vehicle without his consent along with his known and unknown friends reached Dharmastala on 03.03.2004 at 5.30 am stayed in a lodge by parking the vehicle in front of the said lodge. That is brother went sleep and when he woke up at 2.30 pm he saw the vehicle and his friends were not found, thereafter his brother gave a complaint to Belthangadi police. That he was informed about the missing of the vehicle and again he contacted the police, but they were not able to trace it and therefore, the police had given an endorsement. Thereafter, Bangalore police recovered the said vehicle and transferred it to Belthangadi police. In the mean time, he had informed the opponent about the theft of the vehicle and recovery of the vehicle, which was got released in their favour from the Court and found the vehicle had been extensionally damaged and when got assessed from the Surveyor of the opponent, he gave the estimation of the repairs at Rs.2,69,550/- and as per the estimate loss was found to the tune of Rs.89,610. Thereafter, the opponent addressed a letter to them informing that the claim of the reimbursement of the loss to the complaint could not be considered as the vehicle insured with them was used for hire and thereby rejected the claim and further stated that the vehicle was not used for hiring and he has requested for compensation of Rs.2,69,550/- and Rs.10,000/- towards mental agony and other expenses.<br /> 2. The opponent has filed objection to this complaint admitting that the vehicle in question was insured with them valid up to 25.12.2004, but has denied his knowledge about theft and giving a complaint, and further stated that the FIR lodged on the basis of the complaint of the brother of the complainant, reveals that the vehicle had been used for hire by the brother of the complainant and it is, he who has given complaint to the police admitting that the vehicle was taken for hire to Dharmasthala and those persons with the vehicle was found missing. It is further contended that using of the vehicle for hire, amounts to contravention of clauses of the insurance, as such is not liable to compensate the loss to the complainant and thereby has prayed for dismissal of the complaint.<br /> 3. In proof of the allegations and the contentions raised by them the complainant has filed his affidavit in lieu of his evidence wherein the official of the opponent has also filed affidavit evidence. Some documents like estimate of damages, copy of the insurance policy and FIR are produced. The brother of the complainant namely K.P.Shanmugham has also filed his affidavit evidence. Heard the counsel for both the parties and perused the records.<br /> 4. On the above allegations, following points for determination arise.<br /> 1. Whether the Complainant proves that the Opponent has failed to compensate the loss suffered due to damage to the insured vehicle and there is deficiency of service? <br /> 2. Whether the opponent proves that the insured vehicle had been used for hire, which is in contravention of the clauses of the Insurance and therefore it is not liable to reimburse the loss?<br /> 3. What order?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the negative.<br /> Point no.2 : In the affirmative.<br /> Point no.3 : See the final order.<br /> REASONS<br /> <br /> 6. Points no. 1 & 2:- The fact that a vehicle bearing NO.KA-09-W-3118 had been insured with the opponent to meet certain eventualities is not in dispute between the parties. It is the case of the complainant that vehicle insured with the opponent was being used by him for his personal use, for his business purpose. That his younger brother had taken that vehicle without his consent and it was stolen on 03.03.2004 and therefore the vehicle was never used for hire and stated that he has not contravened the clauses of the insurance. On the contrary, the opponent by relying upon a copy of the FIR filed to the jurisdictional court by Belthangadi police, on the basis of a complaint given by the brother of the complainant namely K.P.Shanmugham has contended that the younger brother of the complainant himself, has stated that the vehicle had been used for hire and it is those people who travelled in the vehicle have stolen the vehicle and later on caused damages to the vehicle, as such hiring of the vehicle amounts to contravention of the conditions of insurance policy, which excludes the liability and therefore it is not liable to compensate the complainant. <br /> 7. In the affidavit filed by the complainant, he has by reiterating the complaint allegations has sworn to, that his younger brother took the vehicle without his consent with the known and unknown friends and he without knowing the contents of the complaint prepared by the police without reading it has put him thumb. It could be seen from the copy of the FIR filed in this case, it is not that the complaint of theft was prepared by the police on the oral information given by the younger brother of the complainant. But, it is a typed complaint signed by the younger brother of the complainant and given to the police, wherein the police have put an endorsement for having received the same on 03.03.2004. Therefore, it can not be said that police had prepared the complaint and took the signature of the younger brother of the complainant. The complainant in his complaint has stated that his younger brother was illiterate and put his thumb impression on the paper prepared by the police, but it is not so. His younger brother has signed in the complaint in English, and it is not their case that K.P.Shanmugham is totally illiterate, but only learnt to put his signature in English. In the absence of such an explanation, we can not believe that K.P.Shanmugham was totally illiterate or ignorant, so as to believe that he only put his signature on the papers prepared by the police. The Mahazar drawn by the police and written complaint given by the younger brother of the complainant go to show that younger brother himself has given the complaint to the police on his own, stating that his vehicle was hired by some persons and have stolen it away.<br /> 8. It is further found from the complainant, that his younger brother K.P.Shanmugham took the vehicle along with his some known friends and unknown friends. We agree that his brother going with some known friends, but how can he entertained some unknown friends with whom he had no contact or aquitance. Therefore, the inference that can be drawn here is that he had taken unknown friends to the vehicle as they had hired his vehicle to go to Dharmastala. <br /> 9. The learned counsel appearing for the Complainant argued that even assuming for a while, that the vehicle was used for hire do not amounts to controversion of the clauses of the insurance and relied upon three decisions, reported in I (2005) CPJ 585; I (2005) CPJ 436; IV (2004) CPJ 251 and CPJ 553 and argued that the violation of the clauses of the insurance policy is not fundamental in nature and therefore the opponent is liable to compensate the complainant. The first two decisions and 4th decision relied by the counsel have no relevant the facts of this case. As the facts of those cases are different from facts of this case. In the 3rd decision relied by him, the Chhattisgarh State Consumer Disputes Redressal Commission to of course has held that Labourers traveling in the goods vehicle is not fundamental in nature and the labourers traveling in vehicle have not contributed to the accident and thereby held that complainant should get reimbursement of the damages caused. Therefore, it is clear that allowing the labourers to travel in the goods vehicle by itself has not contributed to the damage to the vehicle and there is no nexus between carrying the labourers and the damage caused and thereby held that the complainant is entitled for reimbursement. That means, the labourers who were traveling in the goods vehicle themselves had not contributed to the damage of the vehicle or loss as such it was not fundamental. But, in the case on hand it could be seen that the persons who had been taken in the insured car were strangers had hired the vehicle to go to Dharmastala and it is they who had allegedly committed theft of the insured vehicle. Therefore, it is act of the persons who hired the vehicle have contributed to the damage or loss therefore amounts to violation of the condition of the policy, which fall within the exclusion clause and as such the opponent is not liable to compensate the damages. As the result, we answer the above points accordingly and pass the following order:-<br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 29th November 2006)<br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> (G.V.Balasubramanya)<br /> Member<br /> <br /> <br />