State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Sanjay Kumar on 2 August, 2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Appeal Case No. 211 of 2010 Date of institution: 27.05.2010 Date of decision : 02.08.2011 New India Assurance Co. Ltd. Having its regional office at SCO 36-37, Sector-17-A, Chandigarh through its duly constituted attorney Shri K.B.Bindal, Manager. . Appellant Versus Sanjay Kumar son of Sh.Din Dayal R/o H.No.295, Village Mohali, District Mohali. Second address: H.No.137, village Palsora, U.T.Chandigarh. .. Respondent. Appeal U/S 15 of the Consumer Protection Act,1986 QUORUM : Justice Sham Sunder, President Mrs. Neena Sandhu, Member
Present: Sh. Parminder Singh, Advocate for the appellant.
Sh.Munish Kumar,Advocate for the respondent.
Per Justice Sham Sunder , President This appeal is directed against the order dated 23.3.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint with costs of Rs.5000/- and directed the OP (now appellant) to pay to the complainant(now respondent) full claim amount of Rs.1,27,680/- alongwith Rs.50,000/- as compensation for harassment. It was also directed that the OP shall pay the aforesaid amounts within 30 days from the date of receipt of a copy of the order, failing which, the OP would be liable to pay the same alongwith penal interest from the date of filing the complaint i.e. 6.12.2009 till the amount is actually paid.
2. The facts, in brief, are that on the night intervening 20/21-1-2009 the vehicle of the complainant APE Auto bearing registration No. PB-65-H-0314, duly insured with OP Insurance Company vide annexure C-2, was stolen, when it was parked in front of his house. The report with regard to the theft of the vehicle was lodged vide FIR No.32, dated 23.1.2009 under Section 379 IPC at P.S. Sector 39, Chandigarh annexureC-3. The complainant also lodged claim with the OP Insurance Company. All the necessary documents including untraced report annexure C4 were also furnished to the Insurance Company. The Investigator/Surveyor of the OP Company, furnished his report, annexure C-5. A legal notice was sent by the complainant to the OP and in reply to the same vide annexure C10, the complainant, was intimated that his claim had been repudiated as he did not fulfill the terms of the policy. It was further stated that the complainant had purchased the vehicle for earning his livelihood, after getting it financed from M/s. K.C.Leasing Ltd. It was further stated that the aforesaid acts of the OP, amounted to deficiency, in service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) was filed by him.
3. The OP, in its written reply, admitted the factual matrix of the case. It was admitted that during the investigation conducted by the Investigator Col. G.S.Sandhu, it was found that the vehicle, in question, was insured from 21.8.2008 to 20.8.2009 in the name of Sanjay Kumar of Mohali vide policy annexure R1. It was stated that the complainant himself failed to complete all the formalities and supply the documents to the Insurance Company inspite of issuance of a number of letters annexure R3 to R5. It was further stated that the vehicle, in question, was being used by the complainant for ferrying passengers within the limits of M.C.Mohali only whereas it had been stolen from U.T., Chandigarh.
It was further stated that the route permit annexure R6 did not cover the date of loss. It was further stated that, though the theft had taken place on 21.1.2009, yet, the period of validity of the route permit was from 9.10.2009 to 8.10.2014. It was further stated that accordingly the claim of the complainant was closed as No Claim vide letter dated 15.10.2009 anneuxure R7. It was denied that the OP was deficient, in rendering service, or indulged into unfair trade practice.
4. The parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the District Forum accepted the complaint and passed the order, in the manner, referred to, in the opening para of this order.
6. Feeling aggrieved, the instant appeal was filed, by the appellant/OP.
7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
8. The Counsel for the appellant, submitted that the claim of the complainant could not be processed promptly as he did not supply the requisite documents, for settling his claim, in time, despite issuance of a number of reminders to him. He further submitted that, ultimately, it was found that the period of validity of the route permit which the complainant was holding, in respect of the vehicle, in question, was from 9.10.2009 to 8.10.2014, whereas, the theft took place on 21.1.2009. It was further submitted that since there was breach of condition of the Policy, on account of the aforesaid reason, the claim of the complainant was closed as no claim. He further submitted that the District Forum committed a grave error in allowing the complaint, in the manner, referred to above. It was further submitted that the order of the District Forum, being illegal, is liable to be set aside.
9. On the other hand, the Counsel for the respondent, submitted that the vehicle, in question, was insured with the OP on the date when the theft of the same was committed. An FIR was lodged and the claim was submitted to the OP. It was further submitted that all the documents were also supplied to the OP, but it intentionally delayed the settlement of claim. He further submitted that, on the other hand, on flimsy ground, that the complainant had no valid permit for plying the vehicle, on the date of theft, the OP arbitrarily closed the case as no claim. He further submitted that the mere fact that, on the date, when theft of the vehicle took place, the complainant had no valid permit, which fact had no nexus with the same (theft), the claim of the complainant could not be repudiated, for such minor breach. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
10. After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in our considered opinion, the appeal is liable to be partly accepted, for the reasons, to be recorded hereinafter. There is, no dispute, about the factum that the vehicle in question was insured with the OP for the period from 21.8.2008 to 20.8.2009 . It was during the currency of the insurance policy, that theft of the vehicle, in question, which was insured by the complainant, for using the same as taxi, for earning his livelihood, took place on 21.9.2009. The mere fact, that on the date of theft, the complainant was not having a valid route permit, could not be said to be such a breach of condition of the Policy which was germane or fundamental to the theft. Had, the non-possession of valid route permit on the date of theft, been fundamental or germane to the theft, or had any nexus with the same, it would have been said that the repudiation of the claim of the complainant, on the part of the OP, was valid. In National Insurance Co. Ltd. Vs Nitin Khandelwal,IV(2008)CPJ1(SC), the vehicle was being used in contravention of the terms and conditions of the insurance policy. The Insurance Company had been directed to pay 75% of the claim amount and the said order had been upheld by the National Consumer Disputes Redressal Commission. When a Civil Appeal was filed, the Honble Supreme Court held that in case of theft of the vehicle, the breach of the policy conditions, was not germane and the Insurance Company could not look into the nature of use of the vehicle and, therefore, the claim could not be repudiated on that basis, in entirety. In that case, the Insurance Company was held liable to indemnify the complainant for the loss caused to him.
In Oriental Insurance Co. Ltd.
& Anr. Vs. Sanjeev Kumar-II (2009) CPJ 135 (NC), the vehicle was insured as passenger car and was being used as a taxi when it was stolen. It was held that the insured was entitled to 75% of the admissible claim on non-standard basis. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the breach of condition of the Policy was not germane or fundamental to the theft of the vehicle, in view of the principle of law, laid down, in the aforesaid cases, the Insurance Company could not repudiate the claim of the complainant, in entirety. The District Forum, instead of, partly allowing the complaint, holding the complainant entitled to compensation to the extent of 75% of the Insured Declared Value of the vehicle, accepted the same as a whole . The decision of the District Forum, in our opinion, granting compensation to the complainant in entirety, and not on non-standard basis, is contrary to the principle of law, laid down, in the aforesaid cases. It is held that the complainant is entitled to 75% of IDV. The order of the District Forum needs modification to this extent.
11. The Counsel for the appellant, however, placed reliance upon National Insurance Company Ltd. Vs Challa Bharathamma and others AIR2004 Supreme Court,4882, to contend that since the vehicle was being plied without any valid route permit it amounted to infraction of law, and, as such, the insurer was not liable to pay compensation. The facts of the aforesaid case are distinguishable from the facts of the instant case. In that case, accident took place when the complainant was plying the vehicle without permit. Not only this, in view of the principle of law, laid down in National Insurance Co. Ltd. Vs Nitin Khandelwals case (supra) which was decided in 2008, no help can be drawn by the Counsel for the appellant from National Insurance Company Ltd. Vs Challa Bharathamma and others case (supra) which was decided in the year 2004. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected.
12. Now coming to the amount of compensation, it may be stated here that the District Forum was right, in coming to the conclusion , that the complainant was unnecessarily physically and mentally harassed and the amount payable was withheld from 21.1.2009 till the date of decision of the complaint. A rickshaw driver, who was earning his livelihood by plying a three wheeler, was made to run from pillar to post, on account of indifferent attitude of the OP. In the totality of the facts and circumstances of the case, the District Forum, in our considered opinion, was right in coming to the conclusion, that grant of compensation in the sum of Rs.50,000/- was just, fair and reasonable. No fault can be found, with the findings of the District Forum, with regard to the amount of compensation granted by it, to the complainant.
13. For the reasons recorded above, the appeal is partly accepted. The order of the District Forum is modified in the manner that the OP shall pay to the complainant Rs.95760/- being 75% of the Insured Declared Value of the vehicle instead of Rs.1,27,680/- which amount was granted by the District Forum.
14. The remaining directions given and the reliefs granted, by the District Forum, shall remain intact.
15. The parties are left to bear their own costs.
16. Certified Copies of this order be sent to the parties, free of charge.
17. The file be consigned to record room.
Sd/-
Announced (JUSTICE SHAM SUNDER) 2nd August,2011 President Sd/- ( NEENA SANDHU) *js Member STATE COMMISSION Appeal case NO.211/2010 Present: Sh. Parminder Singh, Advocate for the appellant.
Sh.Munish Kumar,Advocate for the respondent.
Dated the 2nd August,2011 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been partly accepted.
(Neena Sandhu) (Justice Sham Sunder Member President