State Consumer Disputes Redressal Commission
B.M , Shriram General Insurance Co. Ltd. ... vs Raj Verma on 21 November, 2023
Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of
FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
APPEAL No.- FA/23/90
Date of Institution: 18/07/2023
Date of Final Hearing: 02/11/2023
Date of Pronouncement: 21/11/2023
IN THE MATTER OF :
Raj Verma
S/o. Shri Ishwari Verma,
R/o. Vill. Baajguda, P.S. & Tah. Sahaspur Lohara,
Dist. KABIRDHAM (C.G.) ... Appellant.
Through: Shri R.K. Bhawnani, Advocate
Vs.
1. Branch Manager, Shriram General Insurance Company Limited,
Branch: Kawardha, Address: Raipur Road, Near Siddhivinayak Plaza,
Kawardha, P.S. & Tah. Kawardha,
Dist. KABIRDHAM (C.G.) ... Respondent No.1.
2. The Manager, Shriram General Insurance Company Limited,
Regd. Address: E & EPIP, Sitapur Industrial Area,
JAIPUR (RAJASTHAN) ... Respondent No.2.
Both Through: Shri Deepesh Kumar Thawait, Advocate
APPEAL No.- FA/23/131
Date of Institution: 25/08/2023
Date of Final Hearing: 02/11/2023
Date of Pronouncement: 21/11/2023
IN THE MATTER OF :
1. Branch Manager, Shriram General Insurance Company Limited,
Branch: Kawardha, Address: Raipur Road, Near Siddhivinayak Plaza,
Kawardha, P.S. & Tah. Kawardha,
Dist. KABIRDHAM (C.G.) ... Appellant No.1.
2. The Manager, Shriram General Insurance Company Limited,
Regd. Office: E & EPIP, Sitapur Industrial Area,
JAIPUR (RAJASTHAN) ... Appellant No.2.
Through: Branch Manager,
Shriram General Insurance Company Limited,
4th Floor, Maruti Heights, Near R.K. Mall, G.E. Road, Raipur,
Dist. RAIPUR (C.G.) - 492 009
Both Through: Shri Deepesh Kumar Thawait, Advocate
Vs.
Raj Verma
S/o. Shri Ishwari Verma,
R/o. Vill. Baajguda, P.S. & Tah. Sahaspur Lohara,
Dist. KABIRDHAM (C.G.) ... Respondent.
Through: Shri R.K. Bhawnani, Advocate
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SHRI PRAMOD KUMAR VARMA, MEMBER
PRESENT: -
Shri R.K. Bhawnani, Advocate for Raj Verma.
Shri Deepesh Kumar Thawait, Advocate for Shriram General Insurance Company Ltd.
Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 1 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement: FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 J U DGE M E NT PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT
This order will govern disposal of Appeal Nos.FA/23/90 & FA/23/131 as both these appeals, under section 41 of the Consumer Protection Act, 2019 (hereinafter called "the Act" for short) filed by the complainant and the opposite parties respectively in Complaint Case No.CC/2021/17, have arisen out of the same impugned order dated 13.06.2023 passed by District Consumer Disputes Redressal Commission, Kabirdham (C.G.) (hereinafter referred as "District Commission" for short) whereby the complaint was partly allowed and the opposite parties / Shriram General Insurance Co. Ltd. were jointly and severally directed to pay the complainant Rs.7,64,885/- (Rupees Seven Lacs Sixty Four Thousand Eight Hundred & Eighty Five) against his insurance claim, compensation for mental agony Rs.25,000/- (Twenty Five Thousand) and cost of litigation Rs.3,000/- (Three Thousand). The above entire amount was directed to be paid along with interest @ 6% p.a. from 18.10.2019 i.e. the date of repudiation of claim till the date of payment, within 45 days from the date of order failing which the amount was directed to be paid with interest @ 9% p.a. from 18.10.2019 till the date of payment. Feeling aggrieved the insurance company / opposite parties have challenged the impugned order whereas the complainant has come up before us for award of IDV of the insured vehicle and for enhancement of compensation. Hereinafter in this order, for the purpose of convenience, the parties will be referred as per their original nomenclature before the District Commission.
2. In nutshell the facts of the case are that the complainant purchased an old Tata Hyva vehicle in the year 2018 with the help of finance Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 2 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 provided by Shriram Transport Finance Company Ltd. The vehicle was registered vide registration No.CG-09-B-0866, for which insurance cover was obtained from the opposite parties for the period between 13.12.2018 to 12.12.2019. On 03.05.2019 one Shiv Kumar Wariar with intention of cheating entered into an agreement with the complainant for taking the vehicle on monthly rental of Rs.1,90,000/-, he took away the vehicle and sold the same somewhere else. The complainant reported about the matter to the police but complaint was not lodged. The said person Shiv Kumar Wariar did the same act with some other vehicle owners also. They gave written complaint to the police on the basis of which crime under section 406, 420 of the IPC was registered, Shiv Kumar Wariar along with 6 other persons were arrested and after investigation final report imposing charges under section 420, 406, 409 and 421 of the IPC was submitted before the concerned competent Court. On police investigation it was found that the vehicle has been sold elsewhere and destroyed, hence could not be recovered.
3. As per case of the complainant the vehicle was insured with the opposite parties, hence claim was preferred before them, which was repudiated vide letter dated 18.10.2019 on the pretext that the incident was not immediately intimated after its occurrence on 29.05.2019. The complainant further averred that after lodging complaint by the police on the above date, the complainant was searching for the vehicle with the police, vehicles of some other persons were recovered also but the complainant‟s vehicle could not be recovered. The complainant was of the belief that his vehicle will also be recovered, but it could not be. Thereafter insurance claim was submitted, which was repudiated on illegal grounds. The complainant further averred that the vehicle was insured for IDV of Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 3 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 Rs.10,19,846/- and the said amount was required to be paid by the insurance company but by repudiating the insurance claim, the insurance company has caused financial loss and mental agony to the complainant and have committed deficiency in service. Therefore, complaint was filed seeking direction to the opposite parties for payment of IDV of the vehicle as total loss, Rs.10,19,846/- (Ten Lacs Ninteen Thousand Eight Hundred Forty Six), Rs.1,00,000/- (One Lac) against compensation for physical and mental agony along with interest on the above entire amount @ 2% per month from the date of repudiation of claim 18.10.2019 till the date of payment along with cost of litigation and any other relief which the District Commission deems fit.
4. The opposite party No.1 remained unrepresented before the District Commission even after service of notice, hence no written version, affidavit or any document has been filed by them.
5. The opposite party No.2 in its written version except the admitted facts has denied all the adverse allegations leveled against them and averred that the vehicle in question was purchased with the help of finance provided by Shriram Transport Finance Company but the said financer has not been made party in the complaint, hence the complaint is not maintainable. Intimation of the incident was given to the insurance company belatedly by 52 days, which amounted to breach of policy conditions, hence the claim was repudiated. The vehicle in question was given on rent to Shiv Kumar Wariar, which was also breach of the policy conditions, hence there was no liability of the insurance company under the policy in question. Thus, the insurance company has not committed Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 4 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 any deficiency in service, it be freed from any liability of payment of compensation and complaint be dismissed.
6. Learned District Commission considering the rival contentions of both parties and on the basis of documents available on record partly allowed the complaint and passed the impugned order with the orders as aforesaid in paragraph No.1.
7. We have heard arguments advanced by both parties and perused the record of the District Commission as well as the citations submitted by learned counsel for the complainant.
8. During the course of arguments before us learned counsel for the complainant has argued that the insurance company cannot go beyond the grounds of repudiation of claim mentioned in the repudiation letter and cannot take any additional ground. He has further argued that learned District Commission has erred in considering the claim on non- standard basis and accordingly in awarding 75% of the IDV of the vehicle, which needs to be modified and full IDV of the vehicle may be awarded. He has also argued that interest rate @ 12% p.a. should have been awarded at the place of 6% p.a. and compensation for physical and mental agony is also not sufficient. Learned counsel for the complainant in support of his arguments has placed reliance upon judgements of Hon‟ble Apex Court in Gurshinder Singh Vs. Sriram General Insurance Co. Ltd., (2020) 11 SCC 612; Om Prakash Vs. Reliance General Insurance & Anr., 2018 (4) CPR 204 (SC); Lakhmi Chand Vs. Reliance General Insurance, 2018 (4) CPR 252 (SC); National Insurance Co. Ltd. Vs. Nitin Khandelwal, Civil Appeal No.3409 of 2008, order dated 08.05.2008; JSK Industries Pvt. Ltd. Vs. Oriental Insurance Co. Ltd., Civil Appeal Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 5 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 No.7630 of 2022, order dated 18.07.2023; Trilok Singh Vs. Manager, Cholamandalam MS General Insurance Co. Ltd. & Ors., Civil Appeal No.4530 of 2023 , order dated 18.07.2023; Saurashtra Chemicals Ltd. Vs. National Insurance Co. Ltd., Civil Appeal No.2059 of 2015, order dated 13.12.2019; Bharat Watch Company Vs. National Insurance Co. Ltd. Civil Appeal No.3912 of 2019, order dated 12.04.2019, judgements of Hon‟ble National Commission in United India Insurance Co. Ltd. Vs. Ravi Kant Gopalka, Revision Petition No.1958 of 2004, order dated 13.09.2007; New India Assurance Co. Ltd. & Anr. Vs. Tirath Singh Awatar Singh Bhatia, First Appeal No.1034 of 2015, order dated 01.07.2022 and Circular No.IRDA/HLTH/MISC/CIR/216/09/2011 dated 20.09.2011 of Insurance Regulatory and Development Authority (IRDA), whereas learned counsel for the opposite parties in his arguments before us has reiterated the grounds of repudiation of claim and the defence taken in the written version before District Commission and prayed that the impugned order set aside.
9. We have considered the above arguments advanced by both parties. Learned counsel for the complainant has argued that the insurance company cannot go beyond the grounds taken in repudiation letter and in this regard has placed reliance upon judgements of Hon‟ble Apex Court in JSK Industries Pvt. Ltd. (supra) and Saurashtra Chemical Ltd. (supra). We have gone through the above judgements of Hon‟ble Apex Court. In Saurashtra Chemical Ltd. (supra) judgement the Hon‟ble Apex Court in paragraph No.23 has held as under : -
"23. Hence, we are of the considered opinion that the law, as laid down in Galada [Galada Power & Telecommunication Ltd. v. United India Insurance Co. Ltd., (2016) 14 SCC 161: (2017) 2 SCC (Civ) 765] on Issue (2), still holds the field. It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 6 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC."
The above ratio of the decision was upheld by the Hon‟ble Apex Court in its judgement in JSK Industries Pvt. Ltd. (supra) and in paragraph No.14 it was held that : -
14. ---------. Thus, following the ratio of the decision of the Coordinate Bench in the case of Saurashtra Chemicals Ltd.
(supra), the National Commission ought not to have gone beyond the grounds of repudiation and into the nature of coverage, which according to the National Commission had effectively changed from "anywhere in India to anywhere in India" to a sales turnover policy, limiting the policy coverage of the subject-goods from the points of departure at the two locations at Silvassa. These are all terms of art applicable to the insurance trade but we do not consider it necessary to dilate on this aspect of the dispute having regard to the decision of this Court in the case of Saurashtra Chemicals Ltd. (supra). The above law laid down by the Hon‟ble Apex Court clearly goes to say that the Consumer Commissions cannot go beyond the grounds of repudiation and if the insurer has not taken any issue as a specific ground in the letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before a Consumer Commission.
10. In the record of the District Commission letter of repudiation has been brought on record by the complainant which is available at page No.38 of the record. In the said letter of repudiation dated 18.10.2019 two grounds have been mentioned as the reason for repudiation of claim. First the complainant himself attached the vehicle to Shiva Wariar on rental basis who committed breach of trust and cheating. Accordingly FIR was lodged under section 406 & 420 of IPC and this type of peril was not covered under the purview of the policy; second that the loss allegedly took place on 29.05.2019 and incident was intimated to the insurance company belatedly on 20.07.2019 i.e. after 52 days.
Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 7 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement: FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023
11. So far as first issue in concerned we have gone through the „Commercial Vehicles Package Policy (Policy Wording), Exhibit NA-2, available at page No.(62 A) of the record of the District Commission. The perils under the scope of coverage of risk for loss of or damage to the insured vehicle is mentioned as under : -
"SECTION I - LOSS OF OR DAMAGE TO THE VEHICLE INSURED
1. The Company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon:
i. by fire explosion self-ignition or lightning; ii. by burglary housebreaking or theft;
iii. by riot and strike;
iv. by earthquake (fire and shock damage); v. by flood typhoon hurricane storm tempest inundation cyclone hailstorm frost;
vi. by accidental external means;
vii. by malicious act;
viii. by terrorist activity;
ix. whilst in transit by road rail inland waterway lift elevator or air; x. by landslide rockslide."
The list of perils covered under the policy as above has clear mention that loss of or damage to the insured vehicle (ii) by burglary housebreaking or theft and / or (vii) by malicious act was covered under the policy. In Black‟s Law Dictionary the „malicious act‟ has been defined as under : -
"An intentional, wrongful act performed against another without legal justification or excuse."
Section 410 of the Indian Panel Code 1860 envisages the „Stolen Property‟ as under : -
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
The above definition is very clear about the definition of "stolen property" and says that the property which has been criminally misappropriated or in respect of which criminal breach of trust has been Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 8 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 committed, is designated as "stolen property". In the facts of the present case, it is not in dispute that the vehicle in question was entrusted to some known person on monthly rental basis by way of entering an agreement and that known person committed criminal breach of trust and sold the vehicle elsewhere, which also amounts to a malicious act which is a covered peril under the policy. Therefore, with the foregoing discussion we are of the considered view that the incident of loss of or damages to the insured vehicle comes under the category of theft as it was sold as stolen property committing breach of trust by a known person, who was entrusted with the vehicle on monthly rental basis under an agreement, which was an insured peril under the policy. Accordingly repudiation of claim in this ground was not justified on the part of the opposite parties/ insurance company.
12. The second ground of repudiation of insurance claim by the insurance company, as mentioned in the letter of repudiation, was that intimation of incident of loss was given belatedly by 52 days. In a catena of judgements by the Hon‟ble Apex Court it is a settled principle of law that mere delayed intimation, in case of an otherwise proved to be genuine claim, cannot be a valid and permissible ground of repudiation. In this regard learned counsel for the complainant has relied upon judgement of Hon‟ble National Commission in Tirath Singh Awatarsingh Bhatia (supra) and Circular No.IRDA/HLTH/MISC/CIR/216/09/2011 dated 20.09.2011 of Insurance Regulatory and Development Authority (IRDA) and argued that rejection of claim purely on technical ground in a mechanical fashion is not justified and insurer‟s decision to reject the claim should be based on sound logic and valid grounds. We have gone through the above cited judgements as well as the circular dated Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 9 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 20.09.2011 issued by the IRDA and insurance companies were advised to ensure compliance with the said circulars scrupulously vide Circular No. IRDA/NL/CIR/MISC/149/06/2017, dated 28.06.2017. In the said circular it was also mentioned that circular dated 20.09.2011 was made binding upon the insurers by the Authority by further issuance of directions under section 34(1) of the Insurance Act, 1938, dated 28.10.2016, vide No.IRDA/NL/MISC/CIR/214/10/2016. The circular dated 20.09.2011 has guidelines to the insurers as under : -
"The insurer's decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good sprit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation."
Learned counsel for the complainant has also relied upon judgements of Hon‟ble Apex Court in Gurshinder Singh (supra); Om Prakash (supra) & Trilok Singh (supra). In fact in Trilok Singh (supra) the principle laid down in the subject issue in its previous judgements Gurshinder Singh (supra) & Om Prakash (supra) was discussed and in paragraph No.16 it was held that : -
"16) In view of the judgment of "Gurshinder Singh v. Shriram General Insurance Co. Ltd. 7" (supra), our analysis to condition no.
1 fortifies the necessity of immediate action to the police in case of the theft of the vehicle. If immediately, action is taken informing the police and some delay is caused to submit the insurance claim, it cannot be repudiated on the ground of belated information to insurance company indicating violation of condition no. 1 of the policy. In our view, the District Forum has rightly appreciated the issue and held that repudiation of claim was not justified. The NCDRC and the State Commission committed an error to set-aside the order of the District Forum. The NCDRC was also not justified in confirming the order of the State Commission and wrongly applied the ratio of the judgment of the "Om Prakash8" (supra), that too without due appreciation of the second part of the condition no. 1 which applies in the case of theft".
In Ashok Kumar Vs. New India Assurance Co. Ltd., Civil Appeal No.4758 of 2023, order dated 31.07.2023 also the Hon‟ble Apex Court was Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 10 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 of the same view. In the facts of the present case it is not the case of the insurance company that intimation to the police was not given immediately or was not given in reasonable time, they have only taken this defence, which was a ground of repudiation of claim also, that intimation to the insurance company was not given immediately.
13. In view of the above circulars issued by IRDA and the judgements cited above there is no shadow of any doubt in our mind that repudiation of a otherwise proved to be genuine claim merely on the technical ground of delayed intimation was not justified on the part of the opposite parties insurance company and the insurance company ought to have considered the claim on its merits and then took any decision upon the insurance claim. Therefore, in our considered opinion both the grounds for repudiation of insurance claim was not valid and justified on the part of the opposite party insurance company and the action of repudiation of claim in the said grounds amounts to deficiency in service on the part of the opposite parties insurance company, as has rightly been held by learned District Commission.
14. So far as the question of awarding entire IDV of the vehicle on total loss basis is concerned, learned District Commission taking into consideration the fact that the vehicle was given on monthly rent of Rs.1,90,000/- under an agreement in breach of policy condition No.5 and thereby breach of limitation as to use, has awarded 75% of the IDV of the vehicle on non-standard basis. In the impugned order in paragraph No.16 learned District Commission has referred to the judgement of Hon'ble Apex Court in National Insurance Company Limited Vs. Nitin Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 11 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 Khandelwal, (2008) 11 SCC 259, wherein the Hon‟ble Apex Court in paragraph No.13 & 14 has 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.
14. In the instant case, the State Commission 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 circumstance 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."
The above ratio has been discussed and upheld by the Hon‟ble Apex Court in its recent judgement in Ashok Kumar (supra) also. As discussed hereinabove, in the facts of the present case the incident of loss of or damages to the insured vehicle comes under the category of theft as it was sold as stolen property committing breach of trust by a known person, who was entrusted with the vehicle on monthly rental basis under an agreement, which was an insured peril under the policy. In the facts and circumstances of the case it cannot be said that the owner was negligent in safeguarding the vehicle at the time of incident. It is not the case /objection of the opposite parties that the vehicle was left unattended with or without keys. The fact of giving the vehicle in question on rent also does not make any change in the case so far as the insurance cover is concerned. The vehicle was registered with the RTO under Heavy Goods Vehicle category and was insured under GCCV - Public Carriers Other than Three Wheeler‟s Package Policy - Motor Commercial Vehicle (Package Policy) as is evident from page No.39 and 40 (i.e. RC and the Insurance Policy respectively) of the record of the District Commission. It Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 12 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 does not make any change to the facts of the case whether the rent is gained daily, weekly, monthly or yearly basis, in any case the vehicle would always be a heavy goods carrying commercial vehicle and the fact of giving the vehicle on rent cannot lead the case towards breach of conditions of limitation as to use of the vehicle.
15. In Nitin Khandelwal (supra) the Hon‟ble Apex Court was of the view that law seems to be well settled that in case of theft of vehicle breach of condition is not germane and nature of use of the vehicle cannot be looked into and the insurance company cannot repudiate the claim on that basis. Looking to the fact that there was no negligence on the part of the owner / complainant in safeguarding the vehicle at the time of incident or in the incident of loss of or damages to the insured vehicle, award of 75% of the IDV by learned District Commission as settlement of claim on non-standard basis cannot be upheld and it needs to be modified to the extent that the insurance company opposite parties are jointly and severally liable to pay the IDV of the vehicle after deducting the compulsory deductible Rs.1,500/- under Section-I of the policy in question. So far as award of compensation for mental agony Rs.25,000/- (Twenty Five Thousand), cost of litigation Rs.3,000/- (Three Thousand) and interest @ 6% p.a. on the entire awarded amount from the date of repudiation of claim is concerned, in our thoughtful consideration of the entire facts and circumstances of the case it appears just and proper.
16. As a result of foregoing discussion, we are of the considered view that the impugned order needs to be modified as above. Accordingly the appeal of the complainant is partly allowed and that of the opposite parties is dismissed. Sr. No.1 of paragraph No.22 of the impugned order is Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 13 of 14 Appeal Nos.: Raj Verma Vs. Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Date of FA/23/90 & &. Pronouncement:
FA/23/131 Branch Manager, Shriram General Insurance Co. Ltd. & Anr. Vs. Raj Verma 21/11/2023 modified only to the extent that the opposite parties / insurance company shall jointly and severally pay the complainant the IDV of the vehicle in question after deducting compulsory deductible Rs.1,500/- under Section- I of the policy which comes out to Rs.10,18,346 /- (Ten Lacs Eighteen Thousand Three Hundred Forty Six) at the place of Rs.7,64,885/- (Seven Lacs Sixty Four Thousand Eight Hundred Eighty Five). Remaining portion of paragraph No.22 of the impugned order shall remain unchanged. Both parties shall bear their own cost of these appeals. Original of this order be retained in record of Appeal No.FA/23/90 and a copy of the same be placed in the record of Appeal No.FA/23/131.
(Justice Gautam Chourdiya) (Pramod Kumar Varma)
President Member
/11/2023 /11/2023
Pronounced On: 21st November 2023
Appeal No. FA/23/90 Partly Allowed & FA/23/131 Dismissed Page 14 of 14