National Consumer Disputes Redressal
National Insurance Co. Ltd. vs J. P. Leasing & Finance Pvt. Ltd. on 16 September, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 643 OF 2005 (From the order dated 20.12.2004 in Appeal No. A-993/1998 of the State Commission, DELHI ) NATIONAL INSURANCE CO. LTD. .. Petitioner(s) Branch Office Deen Dayal Upadhyay Bhawan 7-E, Jhandewalan NEW DELHI 110 055 Through : Deputy Manager Regional Office 1 Jeevan Bharati Building Connaught Circus New Delhi 110 001 Vs. J. P. LEASING & FINANCE PVT. LTD. .. Respondent(s) 118, Shahpur Jat New Delhi 110 016 BEFORE: HONBLE MR. JUSTICE B.N.P. SINGH, PRESIDING MEMBER HON'BLE MR. S.K. NAIK, MEMBER For the Petitioner: MR. KISHORE RAWAT, ADVOCATE For the Respondent: MR. NIRMAL SINGH, ADVOCATE Dated 16th September, 2009 ORDER
JUSTICE B.N.P. SINGH The factual matrix are that while vehicle bearing No. DL-2C/C-7505 insured with petitioner insurance company as a private car for the period from 01.07.1992 to 30.06.1993 for assured value of Rs. 2,22,000/- was taken by Sh.
R.K. Goswami, the driver, to a locality in Uttar Pradesh, on hire, he was administered poisonous substance and after he became unconscious, they whisked away with the vehicle. The police was accordingly informed at Kanpur on 28.07.1992. After police submitted final report as untraced, neither there being recovery of the vehicle nor apprehension of miscreants, claim was lodged by the respondent owner with the petitioner insurance company. The Insurance Company appointed Surveyors and also Investigators to investigate claim and submit report to the company. It seems that during investigation of the claim, Surveyor and also the Investigator, namely, Surendrapal Associates interrogated a number of persons including R.K. Goswami, the driver and those who were shown to have accompanied him while taking vehicle to Uttar Pradesh, and had stayed in a hotel at Ferozabad and also in a hotel at Vaishali at Kanpur. The Surveyor and Investigator having noticed discrepant statements of the persons interrogated by them and also based on certain observations made by them, expressed strong suspicion about genuineness of theft of vehicle in question and insurance company inspired by these reports repudiated claim of the respondent owner on 03.11.1993. Aggrieved respondent took matter to the District Forum filing a consumer complaint, which on analyzing evidence and also attending circumstances of the case, granted substantial relief awarding compensation of Rs. 2,21,795/- along-with interest @ 12% p.a. from 07.12.1992. Litigation cost of Rs. 1,000/- too was awarded by the District Forum. The appeal too, preferred before the State Commission by aggrieved insurance company did not find favour, as while disposing of the appeal, State Commission modified award by reducing to 10% thereupon as depreciated value of the vehicle. The award of interest @ 12% p.a. also was reduced to 9% p.a. which was now payable from the date of repudiation of claim.
The learned counsel for both the parties addressed issues which are in controversy. Even in back-drop of modification of the award reducing basic award, the interest and also its applicability for the period, the respondent had not chosen to assail finding of the State Commission, presumably on getting contended with the relief granted by the State Commission. Though lot of contentions are raised, we would like to discuss those which are relevant for consideration. Mr. Rawat while assailing the finding recorded by fora below would strenuously urge that even though the report of the Surveyors carry weight for consideration by courts, fora below had materially over-looked them while adjudicating the issue holding that in a matter like theft when a case had been registered with the police, the only option which lies before the Surveyors or the Investigators while investigating the claim, was to render assistance to the police in investigating the case of theft registered with them than to embark upon their own investigation. Contentions are raised that if these findings recorded by State Commission are to prevail in the matter of investigation of claim, the significance of the Surveyors and Investigators in investigating the claim would be completely lost and the insurance company would be left with no option but to simply honour the claim of the insured. Though arguments look quite attractive, are bereft of merit for the simple reason that after a cognizable offence has been registered with the police authority which is a statutory body to investigate the matter, it is the investigation of the police which should be given credence to set the law in motion.
Added to this, the statements recorded by investigating agency of the police under section 161 of Cr.P.C. would carry weight for determining the genuineness of the incident, be it a matter of theft or otherwise. Pursuant to registration of the police case, the police submitted untraceable report as for the vehicle and also miscreants and in this back-drop, genuineness of the incident of the theft cannot possibly be disputed simply on the anvil of discrepant statements of the driver and his associates which they rendered before the Investigator and also on certain observations made by them.
The validity of claim of the insured is sought to be countered by insurance company holding that since vehicle in question was transferred by the insured J.P. Leasing & Finance Pvt. Ltd to R.K. Goswami under a lease agreement, the said Finance Company ceased to have insurable interest, and on this score too, we do not feel impressed to accept the contentions raised, in view of communication made by insured to the Superintendent of Police informing the latter on 07.09.1992 that the aforesaid vehicle was given on lease-rent-basis, to R.K. Goswami, the driver.
If this communication made by the company was to be given credence, the insurable interest still vests with the insured company. We, however, feel puzzled in view of pleadings of the insurance company which they raised in their written statement before the District Forum, as insurance company had totally negated insurance of vehicle in question with them. We may profitably put on record extract of the relevant part of the written statement which reads as follows :
That the petitioner had never been insured vehicle No. DL-2C-C 7505 to the O.P. Company.
This part of the written statement submitted by the insurance company was in fact factually incorrect.
The finding of the State Commission is sought to be impeached also on premises that even though the vehicle was insured as a private vehicle for domestic purposes, it was used for hire and reward for carrying passengers at the time of the incident.
Plethora of decisions were referred to by the learned counsel for the petitioner which we would like to discuss with brevity for application of the ratio decided therein.
In case of Jay Singh Rao Dadu Patil & Anr. Vs. Qutubuddin Ismail Soudhagar & Anr.
reported in I (1998) ACC 210, what fell for consideration before Honble High Court was liability of the registered owner of the vehicle to indemnify the loss suffered by the victim. Facts of the case before us have a distinct background.
It was held by the Honble Apex court in case of Dr. T.V. Jose Vs. Chacko P.M. & Ors. Reported in 2001 ACJ 2059 that the owner of the vehicle was still liable in absence of transfer of registration in the record of RTO. The ratio decided in this case too had no application with the case under consideration.
The observations were made by the Honble Apex court in case of National Insurance Company Ltd. Vs. Harjeet Rice Mills reported in III (2005) CPJ 6 (SC) that the report of the Private Investigator could not be looked into in light of Section 64 U.M. (C) of Insurance Act - Private Investigators were not lincensed and also that investigation report was not on the record, Honble court held that insurance company should have been given opportunity to prove investigation report. This is also not the case with us.
In case of Joginder Singh Vs. Oriental Insurance Company Ltd. & Ors. reported in IV (2008) CPJ 240 (NC), the National Commission held that in case the vehicle was used in contrast to its insurance as for its use, there was violation of terms and conditions of the policy and insurance company in that back drop was not liable. Facts of this case too are distinct for application in the instant case. That apart, we endorse finding of the State Commission that in matter of theft of the vehicle, the valid claim of the insured cannot be defeated for alleged breach of terms and conditions of the policy, and without further dilating on the matter, we would refer to a decision of the Honble Apex court in case of National Insurance Company Ltd. Vs. Nitin Khandelwal reported in 2008 ACJ 2035. We feel tempted to put on record the extract of the relevant part of observations made by the Honble Apex :-
In the case in hand, the vehicle has been snatched or stolen. In the case of theft of the vehicle, breach of condition is not germane. The appellant Insurance company was liable to indemnify the owner of the vehicle .
In view of the aforesaid narration of facts and also consideration of the issues involved, we fully endorse the finding recorded by the State Commission and dismiss the revision petition, that being bereft of merit. However, there will be no order as to cost.
J (B.N.P. SINGH) PRESIDING MEMBER (S.K. NAIK) MEMBER Dd/16