State Consumer Disputes Redressal Commission
Naveen Kumar vs National Insurance Co. Ltd on 6 September, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.199 and 276 of 2008 Date of Institution: 22.01.2008/10.01.2008 Date of Decision: 06.09.2010 Appeal No.199 of 2008 Naveen Kumar s/o Sh. Puran chand, Resident of Tosham, Tehsil Tosham, District Bhiwani. Appellant (Complainant) Versus National Insurance Co. Ltd. Having its Head Office, at 3 Middleton Street Calcutta, one of its Divisional Office-II, Narayana Complex, Civil Road, Rohtak and a Branch Office at Ghantaghar Chowk, Bhiwani through its Branch Manager. ---Respondent (OP) Appeal No.276 of 2008 National Insurance Co. Ltd. Having its Head Office, at 3 Middleton Street Calcutta, one of its Divisional Office-II, Narayana Complex, Civil Road, Rohtak and a Branch Office at Ghantaghar Chowk, Bhiwani through its Branch Manager. Appellant (OP) Versus Naveen Kumar s/o Sh. Puran chand, Resident of Tosham, Tehsil Tosham, District Bhiwani. ---Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. Diwan Singh Chauhan, Member. For the Parties: Mr. Sikandar Bakshi, Advocate for Naveen Kumar-complainant. Mr. Sandeep Suri, Advocate for National Insurance Company-OP. O R D E R
Justice R.S. Madan, President:
The above mentioned two appeals No.199/2008 and 276/2008 have arisen out of the order dated 12.11.2007 passed in complaint No.209/2004 which relates to the insurable benefits in respect of the truck bearing registration No.HR-61/2247 owned by the complainant Naveen Kumar.
The brief facts of the present case not disputed between the parties are that the complainant Naveen Kumar had got insured his truck bearing registration No.HR-61/2247 with the National Insurance Company (hereinafter referred to as the Opposite Party) for the period 4.3.2004 to 3.3.2005 for a sum of Rs.7,60,000/-. On 12.12.2004 at about 9.10.00 P.M. the above said truck was stolen by some unknown person in the area of Police Station Chandpur (Bijnor). F.I.R. No.262 dated 14.12.2004 under Section 379 I.P.C. was got registered in the Police Station Chandpur (Bijnor).
The complainant submitted claim to the opposite party in respect of the above said truck but the same was repudiated by the opposite party vide letter dated 31.10.2006 on the ground that the complainant had not taken care/safeguard of his truck because the driver of the truck had left the truck unattended by leaving the ignition key in the vehicle, which was in violation of the terms and conditions of the Insurance Policy. By filing the present complaint, the complainant challenged the legality of the repudiation letter by taking the plea that his claim was illegally and wrongly repudiated by the opposite party.
Upon notice, the opposite party appeared and resisted the claim of the complainant while justifying the repudiation of complainants claim.
On appraisal of the pleadings of the parties and evidence adduced on record, the District Consumer Forum accepted the complaint vide order dated 12.11.2007 by issuing following direction to the opposite party:-
we direct the respondent to pay Rs.6,60,000/- as assessed by the surveyor along with interest at the rate of 10% p.a. from the date of repudiation till its final realisation to the complainant. the cost of litigation is also allowed to the complainant, which we quantify at Rs.2000/-. Other relief is hereby declined as the complainant has already awarded adequate compensation by grant of interest. The order be complied within two months from today, failing which the complainant is entitled to get the interest @ 12% p.a. on the above said calculated amount from the date of default till its final realisation.
Aggrieved against the impugned order the opposite party has filed appeal No.276/2008 for setting aside the impugned order whereas the complainant has filed appeal No.199/2008 for enhancement of the compensation as prayed for in the complaint.
We have heard learned counsel for the parties and perused the case file.
On behalf of the appellant-opposite party it is contended by Shri Sandeep Suri, Advocate that the complainant himself in his statement before the police had stated that the driver as well as the cleaner (conductor) had left the truck un-attended and went to see fair and when they came back they found the truck missing. In support of his arguments learned counsel for the opposite party referred to the statement of the complainant Annexure A-4 made to the police wherein he has stated that the driver and the cleaner of the truck had gone to see the fair while leaving the truck unattended. Learned counsel for the appellant-opposite party further referred to the application Annexure A-7 submitted by Naveen Kumar-complainant to the opposite party wherein the complainant has stated that the keys of the truck were kept by the driver in the drawer of the truck and while breaking the mirror of the window of the truck, the truck was stolen away and thus there was violation of the condition No.5 of the Insurance Policy, which is reproduced as under:-
5. The Insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not the left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effect, any extension of the damage or any further damage to the vehicle shall be entirely at the insureds own risk.
No doubt, the contention raised on behalf of the appellant-Insurance Company is attracted to the facts of the present case, but at the same time the latest pronouncement of the Honble National Commission in Revision Petition No.2684/2006 titled as VISHESH KUMAR SHARMA vs. ORIENTAL INSURANCE CO. LTD. Decided on 05.10.2010 has to be followed wherein the facts were that the vehicle of the complainant was insured as a private vehicle but the same was being used as a taxi. The said vehicle was sent by the complainant to Badauin (U.P.) on hire and reward by handing over it to driver Devender Sharma. However, the vehicle never returned. The claim of the complainant was repudiated by the Insurance Company on the ground that the vehicle was being used against the terms and conditions of the Insurance Policy. The complainant challenged the repudiation of his claim by filing complaint before the District Consumer Forum and while accepting complainants complaint, direction was issued to the Insurance Company to pay the amount for which the vehicle was insured, alongwith interest @ 12% p.a. from the date of the claim till its realisation. Compensation of Rs.5,000/- besides costs of litigation of Rs.5,000/- was also awarded to the complainant. In an appeal filed by the Insurance Company before the State Commission, the order of the District Forum was set aside. However, in revision filed by the complainant before the Honble National Commission, the order of the State Commission was set aside and the order of the District Forum was upheld. The relevant finding of the Honble National Commission in revision petition VISHESH KUMAR SHARMA vs. ORIENTAL INSURANCE CO. LTD (Supra) is as under:-
Counsel for the petitioner relying upon the judgment of Supreme Court in National Insurance Co. Ltd. Vs. Nitin Khandelwal, (2008) 11 SCC 259 contends that in the case of Theft of vehicle, the breech of condition of the policy is not germane and the insurance company is liable to indemnify the loss suffered by the petitioner. As against this, submission of counsel for the respondent is that the insurance company is not liable to indemnify the loss suffered by the petitioner as the vehicle was being run as a Taxi in violation of terms and conditions of the policy.
Counsel for the parties have been heard at length.
We find substance in the submission made by the counsel for the petitioner. In Nitin Khandelwals case (supra), the Supreme Court of India relying upon its earlier two decisions in Jitendra Kumar V. Oriental Insurance Co. Ltd. & Another (2003) 6 SCC 420 and National Insurance Co. Ltd. V. Swaran Singh & Others (2004) 3 SCC 297 held as under:-
13. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.
The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
In the present case, the vehicle had been stolen/snatched. The vehicle was being used as a Taxi in breach of condition of the policy. The Supreme Court of India in the aforesaid judgment has held that in the case of theft of vehicle breach of condition is not germane and the insurance company is liable to reimburse the insured of the loss suffered by him. The point in issue is squarely covered by the aforesaid judgment of Supreme Court. Respectfully following the law laid down by Supreme Court, we allow this Revision Petition, set aside the order of the State Commission and restore that of the District Forum.
The ratio of the above mentioned cases fully applies to the facts of the present case. Thus, taking in view the facts and circumstances of the case, it would be in the interest of justice if the complainant is awarded compensation on non-standard basis.
Undisputedly, the truck in question was insured for a sum of Rs.7,60,000/- on 4.3.2004 and it was stolen away on 12.12.2004. Therefore, the complainant is awarded compensation on non-standard basis to the tune of Rs.5,70,000/- alongwith interest @ 10% per annum from the date of repudiation of claim till its realisation. The awarded amount shall be paid to the complainant within a period of 60 days.
The impugned order is modified on the terms indicated above and both the appeals stand disposed of accordingly.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal No.276/2008 be refunded to the appellant-National Insurance Company against proper receipt and identification in accordance with rules, after the expiry of appeal and revision, if any.
The original judgment/order be attached with appeal No.276/2008 and certified copy of attached with appeal No.199/2008.
Announced: (Justice R.S. Madan) 06.09.2010 President (Diwan Singh Chauhan) Member