State Consumer Disputes Redressal Commission
Satpal Malhotra Son Of Shri Ram Lal vs M/S Icici Lombard General Insurance ... on 5 August, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No. 376 of 2008
Date of institution : 25.4.2008
Date of decision : 05.8.2011
Satpal Malhotra son of Shri Ram Lal, resident of Plot No.15, Gali No.4, Gurpreet
Nagar, Kali Sarak, Ludhiana.
.......Appellant
Versus
1. M/s ICICI Lombard General Insurance Company Ltd., Mall Road,
Ludhiana through its Branch Manager.
2. M/s ICICI Lombard General Insurance Company Ltd., ICICI Bank
Towers, Bandra Kurla Complex, Mumbai-400 051 through its Managing
Director.
3. Garyson Motors Pvt. Ltd., Sherpur Chowk, Ludhiana.
4. CITI Financial Consumer Finance Limted 3, Sheetal Arcade, Opposite
Bank of Punjab, Pakhowal Road, Ludhiana.
......Respondents
First Appeal against the order dated 10.3.2008 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Present :-
For the appellant : Shri Padam Kant Advocate for Shri Deepak Gupta, Advocate.
For respondent No.1&2 : Shri Sandeep Suri, Advocate. For respondent No.3 : None.
For respondent No.4 : None.
JUSTICE S.N. AGGARWAL, PRESIDENT:
The question to be decided in this appeal is whether the insured is entitled to insurance claim when the vehicle is stolen and when it was being used as a taxi while it was got insured for personal use? First Appeal No.376 of 2008. 2 Version of the appellant:
2. The appellant was the owner of TATA Indica DLX-II car bearing registration certificate No.PB-10-BM-3086. It was insured with respondents No.1 and 2 for an amount of Rs.3,71,521/- with declared value as Rs.3,58,000/-
for the period from 7.3.2005 to 6.3.2006. The driver of the appellant was the car from Ludhiana to Delhi. It was stolen by identified persons when the vehicle was at Mandir Marg, New Delhi. The matter was reported to the police. Information was given to respondents No.1 and 2. The police had given report dated 30.12.2005 that the vehicle was not traced. Insurance claim was lodged with respondents No.1 and 2. They had appointed A.P. Singh as the surveyor/loss assessor. However the claim was repudiated by respondents No.1 and 2 vide their letter dated 14.2.2006. Hence the complaint for insurance claim. Compensation, interest and costs were also prayed. Version of respondents No.1 and 2:
3. Respondents No.1 and 2 filed a joint written statement. It was not denied that the appellant was the owner of TATA Indica DLX-II car bearing registration certificate No.PB-10-BM-3086 and it was insured with respondents No.1 and 2 for the period from 7.3.2005 to 6.3.2006 for an amount of Rs.3,71,521/- with declared value as Rs.3,58,000/-. However only cover note was issued and the insurance policy could be supplied within 90 days. Both the parties are bound by the terms and conditions of the insurance policy.
4. It was further pleaded that as per the insurance policy the car bearing registration certificate No.PB-10-BM-3086 was insured for personal use but it was being used by the appellant for hire and reward purposes. It was pleaded that Aman Lama was the driver of the appellant on 9.10.2005. The driver had taken one passenger with him on hire basis to Delhi from Ludhiana. The car was halted near Gol Market, New Delhi and the passenger had asked the driver to bring a cup of tea from the tea stall. The driver had left the car with the passenger in the car and the car was in started condition with the key at the First Appeal No.376 of 2008. 3 ignition socket. After the driver left for the tea stall, the passenger drove away the car. Therefore the alleged theft took place because of the negligence of the driver of the appellant.
5. It was admitted that the respondents No.1 and 2 had appointed A.P. Singh, GIC, Claim Investigator to assess the loss. Respondents No.1 and 2 had issued the comprehensive insurance (private car) "B" which covers only the cars used for social, domestic and pleasure purposes. It does not cover the vehicles used for hire and reward. It was also pleaded that the premium of the commercial vehicle is higher than the premium of the private vehicle as the risks in the commercial vehicles was more than the risk in the private cars. The tariff of the insurance policy is only fixed by the Insurance Regulatory and Development Authority (IRDA). Since the appellant had violated the terms and conditions of the insurance policy, therefore, he was not entitled to any insurance claim.
Accordingly it was repudiated. It was legal and valid. Dismissal of the complaint was prayed.
6. Respondent No.3 also filed separate written statement. Dismissal of the complaint was prayed.
Proceeding before the District Forum:
7. Respondent No.4 failed to appear and was proceeded against ex parte.
8. The appellant filed his affidavit dated 8.1.2007 and another affidavit dated 10.6.2006. The appellant also proved documents Ex.C-1 to Ex.C-11.
9. On the other hand, respondents No.1 and 2 filed the affidavit of Sat Parkash, Legal Manager and constituted attorney/authorized representative of respondents No.1 and 2. They also placed on the file documents Annexure R-1 to Annexure R-4.
10. Learned District Forum dismissed the complaint vide impugned judgment dated 10.3.2008.
11. Hence this appeal.
First Appeal No.376 of 2008. 4Discussion:
12. The submission of the learned counsel for the appellant was that the appeal be accepted, the impugned judgment dated 10.3.2008 be set aside and the appellant be awarded insurance claim with compensation, interest and costs. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "NATIONAL INSURANCE CO. LTD. v. NITIN KHANDELWAL" VOL. CLI- (2008-3) PLR 754 and another judgment of the Hon'ble Supreme Court reported as "AMALENDU SAHOO v. ORIENTAL INSURANCE CO. LTD." VOL.CLIX-(2010-3) PLR 291.
13. On the other hand, the submission of the learned counsel for respondents No.1 and 2 was that there was no merit in the present appeal and the same be dismissed.
14. Record has been perused. Submissions have been considered.
15. The admitted facts are that the appellant was the owner of TATA Indica DLX-II car bearing registration certificate No.PB-10-BM-3086. A copy of the registration certificate has been placed on the record as Ex.C-3. It was got insured by the appellant with respondents No.1 and 2 for an amount of Rs.3,71,521/- with declared value as Rs.3,58,000/- for the period from 7.3.2005 to 6.3.2006. It was insured as a private car. Cover note of the insurance policy has been proved by the appellant as Ex.C-4.
16. It is pleaded by the appellant that the car was being driven by the driver from Ludhiana to Delhi and it was stolen by some unidentified persons when the car was on the Mandir Marg, New Delhi and when the car was halted by the driver for taking a cup of tea. Respondents No.1 and 2 have also pleaded in the written reply that the car was being driven by Aman Lama on 9.10.2005 along with one passenger. The car was halted near Gol Market, New Delhi. The passenger had requested the driver to bring a cup of tea from the tea stall. The driver left the car when the car was in started condition and when the passenger First Appeal No.376 of 2008. 5 was sitting in the car. The passenger had fled away with the car. The respondents have also produced a copy of the statement of Aman Lama, driver as Ex.R-3. He had also got registered FIR No.417 on 11.10.2005 for offences punishable under Section 406, 420-B IPC (Ex.R-2). It clearly means, therefore, that the said car was stolen in these circumstances.
17. The submission of learned counsel for respondents No.1 and 2 was that even as per the statement of Aman Lama, driver Ex.R-3 and of the appellant himself which was a part of the FIR Ex.R-2, the car was being used as a taxi while it was insured for personal use. Therefore the appellant has violated the terms and conditions of the insurance policy and was not entitled to any insurance claim.
18. In this context, learned counsel for the appellant submitted that even if the car was being used as a taxi, the appellant was still entitled to 75% of the insurance claim on non-standard basis as per the law laid down by the Hon'ble Supreme Court in Nitin Khandelwal's case (supra).
19. These submissions have been considered. It was held by the Hon'ble Supreme Court in Nitin Khandelwal's case (supra) as under:-
"4. The appellant's version was that the vehicle was being used as a taxi and the four passengers had hired the vehicle for going from Gwalior to Karoli and those passengers on the way, snatched the vehicle from the driver. Vehicle was insured for personal use and it was being used by the respondent as a taxi.
According to the appellant, the respondent had violated the terms of the insurance policy and, therefore, rejected the claim. The respondent filed a complaint before the Consumer Disputes Redressal Forum, District Gwalior, M.P. (hereinafter referred to as 'the District Forum') First Appeal No.376 of 2008. 6
20. Hon'ble Supreme Court made the following observations in the aforesaid judgment:-
"14. In the instant case, the State Commission has allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the insurance company cannot repudiate the claim on that basis."
21. The law laid down by the Hon'ble Supreme Court in Nitin Khandelwal's case (supra) was reiterated in Amalendu Sahoo's case supra and it was held by the Hon'ble Supreme Court as under:-
"14. In this connection reference may be made to a decision of National Commissiion in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in II (2006) CPJ 144 (NC).
In that case also the question was whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:- First Appeal No.376 of 2008. 7
Sr. Description Percentage of
No. settlement
(i) Under declaration of Deduct 3 years'
licensed carrying difference in
capacity premium from the
amount of claim or
deduct 25% of claim
amount, whichever is
higher.
(ii) Overloading of vehicles Pay claims not
beyond licensed carrying exceeding 75% of
capacity admissible claim.
(iii) Any other breach of Pay upto 75% of
warranty/condition of admissible claim.
policy including
limitation as to use
22. It is, therefore, clearly discernible from the law laid down by the Hon'ble Supreme Court that in case a private vehicle was used as a taxi, even then the Insurance Company shall be liable to pay the insurance claim at the rate of 75% on non-standard basis.
23. The submission of the learned counsel for respondents No.1 and 2 was that the amount of premium was much more when the vehicle was insured as a taxi than the premium amount charged from the owner in case of a vehicle used for personal purposes.
24. This submission has been considered. It may be so but since the personal vehicle was being used as a taxi, the Insurance Company is making the payment of insurance claim to the extent of 75% of the insurance claim only and not the whole of it. Therefore, for non-payment of higher premium the owner suffers the insurance claim to the extent of 25%.
25. It was further submitted by the learned counsel for respondents No.1 & 2 that the vehicle was stolen because of the negligence on the part of the appellant and his driver as the driver had left the car in starting condition with the passenger inside the car. If the driver had taken away the key of the car with him, then the passenger would not have driven away the car.
26. This submission has been considered. It has no merits. In Nitin Khandelwal's case (supra) the passengers had snatched away the car from the First Appeal No.376 of 2008. 8 driver and even then the Hon'ble Supreme Court was pleased to hold that the owner was entitled to insurance claim on non-standard basis. In many cases the driver is killed by the passengers. His body is thrown away and the car is driven. Still the owner is entitled to the insurance claim.
27. In the present case, the driver had gone to tea stall for taking a cup of tea situated nearby at the asking of the passenger. He had no knowledge that the passenger would prove to be a thief and would drive away the car. Therefore the driver was cheated by the passenger on the pretext of sending him for a cup of tea. There was no intentional lapse on the part of the driver. Therefore the claim cannot be repudiated on that ground.
28. The basis in the present case is the theft of the car. Therefore even if the car was insured for personal use and was being used as a taxi by the appellant, he is entitled to insurance claim on non-standard basis to the tune of 75%.
29. In view of the discussion held above, this appeal is partly accepted and the appellant is held entitled to 75% of the amount of Rs.3,58,000/- i.e. Rs.2,68,500.00.
30. Respondents No.1 and 2 are directed to make the payment of Rs.2,68,500/- to the appellant within a period of two months from the date of receipt of a copy of this order failing which they shall also pay interest on this amount at the rate of 7.5% per annum from today till the date of payment.
31. The arguments in this case were heard on 3.8.2011 and the order was reserved. Now, the order be communicated to the parties.
32. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL) PRESIDENT (MRS. AMARPREET SHARMA) MEMBER August 05 , 2011 Bansal First Appeal No.376 of 2008. 9