State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Jan Aalam on 19 May, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 02 / 2010
National Insurance Company Limited
having its Registered Office at 3, Middleton Street
P.O. Box No. 9229, Kolkata through
Regional Manager, Regional Office at
56, Rajpur Road, Dehradun
......Appellant / Opposite Party
Versus
Jan Aalam S/o Sh. Sabir Ahmed
R/o House No. 1, Ahbab Nagar, Jwalapur
District Haridwar
......Respondent / Complainant
Sh. Sudhanshu Dwivedi, Learned Counsel for the Appellant
Sh. Pradeep Kumar Agrawal, Learned Counsel for Respondent
Coram: Hon'ble Justice Irshad Hussain, President
Smt. Kusum Lata Sharma, Member
Dated: 19/05/2010
ORDER
(Per: Justice Irshad Hussain, President):
This is insurer's appeal against the order dated 04.12.2009 passed by the District Forum, Haridwar, allowing consumer complaint No. 319 of 2008 with costs of Rs. 1,500/- and further directing the insurance company to pay sum of Rs. 5,59,740/- to the complainant with interest @9% p.a. pendentelite and future, by way of indemnification of the loss occasioned to the complainant on account of theft of newly purchased Bolero SLX (maxi cab) carrying registration No. UA-08-J-5767 on 09.06.2007 from Noida (Uttar Pradesh) during the period of insurance coverage. The claim preferred by the complainant was repudiated vide communication dated 01.01.2009 made to the complainant on the ground that the vehicle was being driven in violation of the provisions of Motor 2 Vehicles Act, 1988 as well as policy terms and conditions, by reason of the commercial vehicle having being driven without a valid permit in the State of Uttar Pradesh, although the permit was for the State of Uttarakhand for the period from 12.06.2007 to 11.06.2012. The insurance company has also taken the stand that the complainant had furnished forged temporary permit to the insurance company in support of his claim. This was denied by the complainant and the District Forum went on to allow the consumer complaint per force the decision of the Hon'ble Apex Court rendered in the matter of National Insurance Company Limited Vs. Nitin Khandelwal; IV (2008) CPJ 1 (SC) and wherein it had been held that breach of policy condition is not germane in case of theft of vehicle.
2. Having heard the learned counsel for the parties in the light of the facts, circumstances and the latest decision of the Hon'ble Apex Court, we are of the view that the appeal is fit to be partly allowed by making modification in the order impugned to the extent that the complainant has to be held entitled to 75% of the admissible claim, i.e., 75% of sum of Rs. 5,59,740/-, the amount at which the vehicle was insured.
3. The reasons for our decision are that the fact of theft of the vehicle was not in dispute and it was also not in dispute that on the date of the theft of the vehicle, no permit had been issued by the transport authority to ply the vehicle. In other words, the permit was granted for the State of Uttarakhand for the period from 12.06.2007 to 11.06.2012, although the vehicle was stolen on 09.06.2007. It was also the fact that the vehicle was insured by the insurance company w.e.f. 21.05.2007, knowing it very well that permit to ply it as a commercial vehicle has not been granted by the transport authority. As has been the case, the vehicle was being driven on the date of the 3 incident of theft in violation of the provisions of the Motor Vehicles Act, 1988 as well as policy terms and conditions and since the breach in view of the afore-mentioned decision of the Hon'ble Apex Court, was not germane for settling the insurance claim, the repudiation of the claim was not justified. It shall also be of no consequence that the insurance company alleged that the complainant tried to get the claim settled on the basis of forged temporary permit, which fact has been denied by the complainant. Although submission in that respect was also made before us by the learned counsel for the insurance company, but in the totality of the circumstances of the case, the submission would be of no avail to have the complainant non-suited in the case. In other words, the breach of the policy condition not being germane in the case of theft of the vehicle, the claim of the complainant was legally required to be settled by the insurance company and this having not been done, the District Forum was justified in holding that the insurance company made deficiency in service and rightly proceeded to pass an order in favour of the complainant, although in our view and considering the latest legal position, the compensation awarded was on the higher side.
4. The legal position as now stand settled by the latest decision of the Hon'ble Apex Court in the matter of Amalendu Sahoo Vs. Oriental Insurance Company Limited; II (2010) CPJ 9 (SC), is that the claim even in the case of theft where breach of the warranty / condition of the policy including limitation as to the use of the vehicle is not germane, the claim need to be settled on non-standard basis and in such a case upto 75% of the admissible claim. In the reported case, the Hon'ble Apex Court also referred to the afore-mentioned decision in the case of Nitin Khandelwal (supra) and, as such, we feel forced to say that the complainant was entitled to be allowed compensation upto 75% of the admissible claim, i.e., 75% of sum of Rs. 5,59,740/-, 4 the insured sum of the vehicle. Since the District Forum awarded compensation to the tune of insured sum of the vehicle, the same need to be reduced to 75% of the admissible claim. Further, the interest awarded @9% p.a. is also on the higher side and we have, in most of the cases, been awarding interest @7% p.a. and, therefore, the order impugned need to be modified in that regard also.
5. For the reasons aforesaid, the complainant has to be held entitled to compensation of Rs. 4,19,805/- (75% of Rs. 5,59,740/-) with interest @7% p.a. from the date of filing of the consumer complaint till payment and Rs. 1,500/- towards costs, as awarded by the District Forum.
6. In view of above, the appeal succeed partly and is to be allowed accordingly.
7. Appeal is partly allowed. Order impugned dated 04.12.2009 of the District Forum is modified and the appellant - insurance company is directed to pay compensation of Rs. 4,19,805/- to the complainant - respondent together with interest @7% p.a. from the date of filing of the consumer complaint till payment and Rs. 1,500/- towards costs, as awarded by the District Forum. Costs of the appeal made easy.
(SMT. KUSUM LATA SHARMA) (JUSTICE IRSHAD HUSSAIN) K