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2004 DIGILAW 53 (UTT)

Pradeep Kumar Bhatia v. National Insurance Co.

2004-05-13

K.D.SHAHI, LUXMI SINGH

body2004
JUDGMENT This is an appeal against the order dated 31.01.2002 passed by the District Forum, Hardwar whereby the complaint of the complainant was dismissed. 2. The brief facts of the case are that th8 complainant was the owner of an Ambassador Car No. UP07F-1069. He used this car as a taxi, which was being driver by Sh. Nafees S/o. Sh. Habib. The vehicle was insured for Rs. 2,50,0001- (Rupees Two Lacs Fifty Thousand). It was insured for the period 31.03.1999 to 31.03.2000. Sh. Nafees took the car and went away on 01.05.1999. He was chased but his whereabouts could not be known. The FIR was lodged on 07.06.1999 and information was given to the insurance company but the injured amount has not been paid. Therefore the complainant filed a complaint claiming a sum of Rs.2.50,0001- (Rupees Two Lacs Fifty Thousand) as insured amount along with interest @18% and compensation of . Rs.50,0001- (Rupees Fifty Thousand) & cost of RsA,OOOI- (Rupees Four Thousand). . . 3. The opposite party contesfed the case. It is admitted that the complainant was the registered owner of this vehicle. The insurance of the vehicle is also admitted. It is however said that there was no fitness certificate of the vehicle and therefore it should not have been plied on the way. It is alleged that the vehicle was being driven .against the terms of the policy, therefore the claim was repudiated through registered letter dated 21.09.2000. 4. The Learned Forum took the evidence of the parties and found that the fitness certificate has expired on 19.04.1999, while the theft has taken place on 01.05.1999. Therefore the Learned Forum was justified to rejected the claim. It however further held that the vehicle was being plied for commercial purposes through a driver, therefore the complainant is not a consumer and on that ground, the complaint is liable to be rejected. 5. Being aggrieved by this order. the present appeal has been filed. 6. We have heard the Learned Counsel for the parties and gone through the records. It is admitted fact that the complainant was the owner of the vehicle, It is further admitted that, the vehicle was insured. The complainant has alleged that the vehicle was stolen by its driver. Being aggrieved by this order. the present appeal has been filed. 6. We have heard the Learned Counsel for the parties and gone through the records. It is admitted fact that the complainant was the owner of the vehicle, It is further admitted that, the vehicle was insured. The complainant has alleged that the vehicle was stolen by its driver. It is now settled principle of law that even if the driver has taken away the vehicle and subsequently it was stolen by him, then also it comes in the category of theft. There are a number of judgments on this point and referring those judgments, we have also decided a case bearing Appeal No. 138/ 2002, Oriental Insurance Co. Vs. Sh. J.P. Aggarwal, decided on 18.11.2002. 7. The insurance company has not denied that the vehicle has been stolen. The surveyor of the insurance company Sh. Bhopendra Singh has also reported that he contacted the owner who informed about the theft. The Union Office of the taxi has also informed him that the taxi was missing from 01.05.1999. The surveyor found that the police officers have also submitted charge sheet No. 678 /1999 against the driver. Thus the surveyor of the insurance company has also found that the vehicle has been stolen. At least it is not said that there was no theft. The surveyor has reported that Sh. Pradeep Kumar Bhatia has stated that the vehicle was in good roadworthy condition and he has agreed that his .claim may be settled for Rs.1,44,000/- (Rupees One Lac Forty Four Thousand) on the present market ,value of the vehicle. He has also written that the net liability of the insurer on sum insured basis comes to Rs.2,49,000/- (Rupees Two Lacs Forty Nine Thousand) and he has recommended that on the market value basis, the claim may be finalized for Rs. 1,44,000/- (Rupees One Lac Forty Four Thousand). This' report of the surveyor fully supports the case of the complainant about theft. 8. The Learned Counsel for the insurance company argued that there was no fitness certificate. The vehicle has been 'plied against the terms of the policy. As the pleading of the complainant is that the driver went away with the vehicle. It is alleged in para 4 of the complaint that, on 01.05.1999, Sh. Nafees, driver has taken the car but he did not return. The vehicle has been 'plied against the terms of the policy. As the pleading of the complainant is that the driver went away with the vehicle. It is alleged in para 4 of the complaint that, on 01.05.1999, Sh. Nafees, driver has taken the car but he did not return. It is not there that it was being plied as a taxi on that particular time or it was on the road for earning money. It in not alleged by the complainant that it was being driven against the terms of the policy. The driver went" away with the car. The theft started there. The theft took place as soon as he took away the car. Therefore it cannot be said that the vehicle was being driven against the terms of the policy. Taking of the vehicle by the driver is theft, not his driving of the vehicle with the permission of the owner. At any rate, even if it is presumed that it was being driven against the terms of the policy, then also in view of the various rulings of the Hon'ble Supreme Court and National Commission, if the breach is not so fundamental in nature so as to put an end to the contract, then the claim may be allowed on nonstandard basis. It is also settled principle of law that if the theft or accident has got no nexus with the breach of the policy, the claim should be allowed on non-standard basis. We are supported by the judgment of the National Commission reported in I (2003) CPJ 92 (NC), Oriental Insurance Co. Ltd. Vs. Raj Kumar Gupta. The theft of the vehicle has got no nexus with the fitness certificate and therefore on this ground, the claim should not have been rejected. We have also held in our own judgment reported in II (2003) CPJ 542, New India Assurance Co. Ltd. Vs. Sunder Lal, that where the vehicle was being driven against the terms of the policy, 75% of the insured amount may be paid to the insured, if the breach of the policy has got no nexus with the accident, (theft in this case). The judgment of B.V. Nagaraju Vs. M/s Oriental Insurance Co. Ltd" Divisional Office, Hassan reported in II (1996) CPJ 18 (SC) is an authority on the subject. The judgment of B.V. Nagaraju Vs. M/s Oriental Insurance Co. Ltd" Divisional Office, Hassan reported in II (1996) CPJ 18 (SC) is an authority on the subject. Even otherwise the theft took place on 01.05.1999 and fitness has expired on 19.4.1999. If 15 days grace as given, then also the claim cannot be rejected totally on this ground that there was no fitness certificate on the date of theft. We have already held above that there is no explanation of either of the parties how the driver had taken the vehicle? Whether it was for driving or on hire or the driver had taken it to his house to take food or to taxi stand? The breach of the terms of the policy is to be proved by the insurance company and not by the complainant. At any rate, the complainant is entitled to settlement of his claim on non-standard basis and he is ordinarily entitled to 75% of the insured amount. 9. The Learned Counsel for the insurance company wanted to divert our attention on the basis of the finding of the Learned Forum by referring the ruling of the Hon'ble Supreme Court reported in II (1995) CPJ 1 (SC), Laxmi Engineering Works Vs. PS.G. Industrial Institute. In this ruling, 'the machinery was purchased for commercial purposes. The machine supplied was defective. It was for commercial purposes. Since there was defect in the machinery itself, which was used for commercial purposes, the Hon'ble Supreme Court held that the complainant was not a consumer. In this case, it was also argued on the basis of finding in Para 10 & 11 of this Laxmi's case that if the taxi is being plied by a driver, the taxi shall not be for self-employment. What is necessary is that it should be used by himself. It was argued that the taxi in this case was being driven by a driver, therefore it was not used by himself & therefore the complainant was not a consumer because the taxi is always used for commercial purposes. 10. It is to be remembered that there was no defect in the vehicle and there is no claim in respect of the taxi it components. It is not said that the taxi was supplied defective and there a claim against the manufacturer or the under for the taxi should have been made. 10. It is to be remembered that there was no defect in the vehicle and there is no claim in respect of the taxi it components. It is not said that the taxi was supplied defective and there a claim against the manufacturer or the under for the taxi should have been made. Had the claim been against the manufacturer or dealer, from where the taxi was purchased, the complainant would definitely not have been' a consumer and he could not have lodged the claim before' the consumer forum for the defect in the vehicle but here the claim has been lodged in respect, of deficiency in service of insurance company. The vehicle has been insured and on its theft, the complainant had asked for reimbursement or indemnification against the loss. He has not claimed anything beyond his insurance, Thus the claim in this case is for insurance. The dispute in respect of insurance and the deficiency in service thereof. 11. Recently we have decided Revision No. 26/2003, Sh. Prem Chand Sadana Vs. New India' Assurance Co. Ltd. In this case, the taxi had met with an accident. It was insured. The Learned Forum rejected the complaint on the ground that the taxi was purchased for commercial purposes, therefore the complainant is not a consumer. We have held in this judgment that any person who hires or avails services for consideration is a consumer but does not include a person who avails of such services for any commercial purposes. Thus what is necessary is that to invite exclusion clause that services should be purchased or availed for commercial purposes. In this particular case, the insurance has been obtained and it is being said for commercial purposes. Insurance is obtained not for any profit, production or gain but is obtained only for reimbursement, if there is any accident or loss. Thus the purpose of insurance is to compensate the loss and it is not done for any commercial purpose or profit The taxi is for commercial purposes but not its insurance. If commercial purpose is inflated in this way then a truck is always used for commercial purposes but on accident or loss, case for compensation is maintainable in Consumer Forums. If commercial purpose is inflated in this way then a truck is always used for commercial purposes but on accident or loss, case for compensation is maintainable in Consumer Forums. A shop for business purposes or factory is always used for commercial purposes but if there is any fire, the case for compensation is always lodged against the insurance company before the Consumer Forums. What is agitated in Consumer Forums is deficiency in service in respect of insurance by which nothing is to be gained as profit or production by the consumer. Deficiency in service of insurance company in not making the loss or compensation, good to the article insured is entirely different from commercial purposes. In view of this fact, the above ruling of the Hon'ble Supreme Court has got absolutely application to the facts of the present case. . 12. In view of what has been said above, the judgment of the Learned Forum is not correct and the complainant is entitled to ,75% of the insured amount., which comes to Rs. 1,87,500/- (Rupees One Lac Eighty Seven Thousand Five Hundred Only). The surveyor has also reported that the claim of the complainant may be settled for Rs. 1,44,000/- (Rupees One Lac Forty Four Thousand) but no basis whatsoever has been given by him. The complainant has unnecessarily been refused the amount, therefore he is entitled to get interest on this amount from the date of complaint till the date of actual payment. In our view, interest @9% shall be' just and proper in the circumstances of the case. The complainant has also claimed compensation of Rs.50,000/- (Rupees Fifty Thousand) as well as cost of litigation. There is no question of compensation in the monetary transactions, the complainant has already been given interest, which also serves as compensation. So far as cost is concemed, in our view it would be proper that both the parties shall bear their own costs. ORDER The appeal is hereby allowed. The order dated 31.01,2002 is hereby set aside. The complaint is also allowed. The complainant shall get a sum of Rs.1,87,500/(Rupees 1,87,500/- (One Lac Eighty Seven Thousand Five Hundred Only) from the insurance company along with interest @ 9% payable from' the date of complaint in the District Forum till the date of actual payment. Howevor in the circumstances of the case or of this appeal shall be easy.