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2003 DIGILAW 1323 (MP)

J. P. GUPTA v. NATIONAL INSURANCE CO. LTD

2003-12-05

S.S.JHA, SUBHASH SAMVATSAR

body2003
S. S. JHA,J. ( 1 ) THIS appeal is filed by the appellant-plaintiff against dismissal of his suit. ( 2 ) PLAINTIFF filed a civil suit for recovery of Rs. 1,40,547. 05. Plaintiff had purchased a vehicle, Maruti van, bearing registration no. MO 07-1965. The said vehicle was insured between 23. 3. 1991 and 22. 3. 1992. On 5. 5. 1991 when the driver of the vehicle was taking the vehicle from Gwalior to dabra, on the way two people asked for lift and he had given them lift up to the hanuman Temple, Jourasi. At the temple, driver was offered 'prasad' and a Limca (cold drink ). Thereafter driver fell unconscious and when he regained consciousness he found himself by the side of the road. He informed about the incident to the plaintiffs son on 7. 5. 1991 and the plaintiff was informed on 8. 5. 1991 by his son. The plaintiff returned from Indore on 9. 5. 1991 and lodged the F. I. R. on 10. 5. 1991 at the police Station, Huzrat Kotwali, Gwalior. Plaintiff submitted the claim to defendant insurance company, but defendant did not satisfy the claim. Then dispute was raised before the District Consumer Redressal forum but the application was dismissed and appeal before the State Commission was dismissed on 25. 6. 1994 as not maintainable. Thereafter, plaintiff filed a civil suit. The defendant denied the claim and submitted that the vehicle was insured for personal use. Defendant submitted that the vehicle was used for commercial purpose, therefore, the plaintiff is not entitled for any claim. The trial court after framing as many as seven issues dismissed the suit. Trial court held that though the vehicle was insured with the defendant but the vehicle was not used for domestic purpose but was being used for commercial purpose, therefore, the insurance company is not liable to pay compensation. ( 3 ) ONLY question involved in the appeal is whether in the case of theft of car, nature of the use of the vehicle is essential? It is not a case of third party risk. It is admitted that the vehicle is lost. It is also admitted that the vehicle was insured. Whether user of vehicle was for commercial purpose or private purpose is necessary to be determined in this case. ( 4 ) THE plaintiff has filed the insurance policy, Exh. P2. It is not a case of third party risk. It is admitted that the vehicle is lost. It is also admitted that the vehicle was insured. Whether user of vehicle was for commercial purpose or private purpose is necessary to be determined in this case. ( 4 ) THE plaintiff has filed the insurance policy, Exh. P2. Under section I-Loss or damage, company has agreed to indemnify the insured against loss or damage to motor car and/or its accessories whilst thereon as mentioned on the grounds as (a) to (i ). Ground (b) pertains to burglary, house-breaking or theft. Only question involved in the case is when the insurance company has agreed to indemnify the insured against theft whether it is necessary to look to the circumstances under which the vehicle was stolen. General Exceptions mentioned in the policy are as under:"the company shall not be liable under this policy in respect of- (1) any accident, loss, damage and/or liability caused, sustained or incurred outside the geographical area, (2) any claim arising out of any contractual liability, (3) any accident, loss, damage and/or liability caused, sustained or incurred whilst any motor car in respect of or in connection with which insurance is granted under this policy is (a) being used otherwise than in accordance with the limitations as to use, or (b) being driven by any person other than a driver as stated in the driver's clause, (4) (a) any accident, loss or damage to any property whatsoever or any loss of expenses whatsoever resulting or arising therefrom or any consequential loss, (b) any liability of whatsoever nature directly or indirectly caused by or contributed to by or arising from ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel. For the purpose of this exception contribution shall include any self sustaining process of nuclear fission, (5) any accident, loss, damage or liability directly or indirectly caused by or contributed to by or arising from nuclear weapons material, (6) any accident, loss, damage and/or liability directly or indirectly or proxi-mately or remotely occasioned by, contributed to by or traceable to or arising out of or in connection with any war, invasion, the act of foreign enemies or hostilities or any warlike operations (whether before or after the declaration of war) civil war, mutiny, rebellion, military or usurped power or by any direct or indirect consequences of any of the said occurrences. AND in the event of any claim hereunder the insured shall prove that the accident, loss, damage and/or liability arose independently of and was in no way connected with or occasioned by or contributed to by or traceable to any of the said occurrences or any consequences thereof and in default of such proof the company shall not be liable to make any payment in respect of such a claim. "thus even under the General Exceptions, the insurance company has not denied its liability for theft of vehicle. Under the general Exceptions, user of the vehicle in the accident is material. ( 5 ) IN the present case, loss is not on account of exception mentioned in the general Exceptions. Notice was served upon the company to indemnify the insured but the company has denied the claim on the ground that vehicle was used for commercial purpose. Even if the contention of defendant insurance company is accepted, then also the defendant cannot deny to indemnify the insured in the event of theft of vehicle. ( 6 ) QUESTION involved in the case is since theft has not been denied, whether the trial court was justified in rejecting the claim of plaintiff car owner on the ground that the car was used for commercial purpose. Trial court has presumed the circumstances that vehicle was not used for domestic purpose and was used for commercial purpose. Without commenting on the finding recorded by the trial court, only question is whether use of vehicle is essential for determining the liability of the insurance company to indemnify the insured. Trial court has presumed the circumstances that vehicle was not used for domestic purpose and was used for commercial purpose. Without commenting on the finding recorded by the trial court, only question is whether use of vehicle is essential for determining the liability of the insurance company to indemnify the insured. Parties had referred to the judgments generally arising out of motor accident cases and in most of the cases, the driver of the vehicle was not having valid licence in breach of the conditions of the policy. Judgments referred by the parties are in the cases of fatal accidents. In the case of Narcinva V. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 (SC), it is held that plea by insurance company that there was breach of the terms of the policy, then burden is upon the insurance company to prove that the driver of the vehicle was not having valid licence. ( 7 ) AS discussed above, we have seen the conditions of the policy and the General Exceptions. On going through the entire terms and conditions of the policy, breach, if any, is in the event of accident. But there is nothing in the terms and conditions of the policy to demonstrate that if the vehicle is stolen or somebody snatches the vehicle and runs away, then also it is necessary to look into the nature of the use of the vehicle. The insurance company has relied upon some report of its detective, but the said detective was not examined in the court. However, the trial court has relied upon the statement recorded by the said detective. Such statement cannot be relied upon as it has not evidentiary value. Therefore, the trial court has exceeded its jurisdiction in relying upon the statement made before the said private detective, namely, Bhagwati Investigation Agency. Such report has no evidentiary value, unless the person who has written the report has entered the witness-box. Therefore, the statement, Exh. D9, proved by DW 1 and document, Exh. D7, have no evidentiary value and the trial court has erred in relying upon those documents. ( 8 ) SINCE vehicle was stolen, therefore, in the case of theft of vehicle, breach of condition is not germane. Insurance company is liable to indemnify the owner of the vehicle. Therefore, the statement, Exh. D9, proved by DW 1 and document, Exh. D7, have no evidentiary value and the trial court has erred in relying upon those documents. ( 8 ) SINCE vehicle was stolen, therefore, in the case of theft of vehicle, breach of condition is not germane. Insurance company is liable to indemnify the owner of the vehicle. Therefore, the finding of the trial court that the defendant insurance company is not liable to indemnify the plaintiff is set aside and it is held that in the case of theft of vehicle when the insured has obtained comprehensive policy, the insurance company is liable to indemnify the loss caused to the insured. We, therefore, hold that the insurance company is liable to indemnify the insured. ( 9 ) IN the result, appeal succeeds and is allowed. Judgment and decree passed by the trial court are set aside and plaintiffs suit for recovery of Rs. 99,750 is decreed with costs. Plaintiff shall also be entitled for interest at the rate of 6 per cent per annum from the date of filing of the suit till final payment. Respondent-defendant shall bear the costs of this appeal. Counsel's fee as per schedule. Appeal allowed. .