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2004 DIGILAW 92 (CHH)

VISHWANADH SULTANIA v. NEW INDIA ASSURANCE

2004-04-29

R.S.AWASTHI, V.K.AGRAWAL, VEENA MISRA

body2004
ORDER V.K. Agrawal 1. This appeal, u/s 15 of the consumer Protection Act, 1986, is directed against the order dated 16-9-99 in complaint no. 203/98 by District consumer Disputes Redressal Forum, Bilaspur (hereinafter called the 'Distt. Forum' for short), dismissing the complaint of the appellant. 2. Undisputed facts are that the complainant/appellant is the owner of the vehicle – Mahindra jeep bearing registration no. MP 26 F 1895 which was comprehensively insured by the complainant with the respondent/insurer for the period from 2-4-96 to 1-4-97. The requisite premium as per rules of the insurer was admittedly paid by the complainant to the respondent/insurer. 3. According to the averment of the complainant the jeep was stolen on 15-1-1997 on way from Sheori Narayan to Bilaspur. The incident was intimated to the respondent/insurer, who appointed a surveyor. The surveyor reported that the incident of loot had taken place. As reported by the Surveyor the depreciated value of the vehicle was Rs. 2,66,000/-. However, the surveyor also mentioned that the complainant had agreed to accept the market value of the jeep which was Rs. 1,99,000/- Since claim of the appellant was not accepted, the appellant filed his complaint in the Distt. Forum. 4. The respondent insurer filed written version and resisted the complaint. According to the written version of the respondent the vehicle at the time of accident was being plied in breach of terms of policy. It was alleged in the above context that though the vehicle was registered as private vehicle, it was being used as taxi. In view of the violation of the terms of the policy as above, the respondent/insurer alleged that it could justifiably repudiate the claim of the complainant. 5. The Distt. Forum held that there was breach of terms of policy and accordingly dismissed the complaint. 6. The learned counsel for the complainant/appellant assailed the impugned order. It was submitted in the report of the surveyor that the incident of loot of the jeep took place as was alleged by the complainant/appellant. It was submitted that the complainant/appellant was entitled to get compensation as per the market value of the jeep. It was submitted that even according to the surveyor, the depreciated value of the jeep at the time of incident was Rs. 2,66,000/-. It was therefore urged that the complainant was entitled to get the above amount as compensation. 7. It was submitted that the complainant/appellant was entitled to get compensation as per the market value of the jeep. It was submitted that even according to the surveyor, the depreciated value of the jeep at the time of incident was Rs. 2,66,000/-. It was therefore urged that the complainant was entitled to get the above amount as compensation. 7. The respondent/insurer however, submitted that the claim was rightly repudiated by the respondent/insurer as the jeep registered for private use was being used as taxi, in breach of the terms of the policy. It was submitted that the Distt. Forum therefore rightly recorded a conclusion as above and justifiably dismissed the complaint. 8. It may be noticed that there is no dispute that the jeep was registered as private vehicle and was insured by the respondent/insurer. The survey report also mentions that the jeep was looted and was thus a subject matter of theft, which was one of the risks covered by the policy, issued by the respondent/insurer. It may be further noticed that the claim of the complainant/ appellant was repudiated by the respondent/insurer, by its letter dated 10-31998 on the sole ground that the jeep though was registered for private use was being plied as a taxi, which was in breach of terms of the policy. 9. The first question that therefore, arises for consideration is as to whether the claim of the complainant/appellant could be repudiated on the above ground ? 10. It may be noticed that respondent/insurer has not placed any material on record, except the report of the surveyor, to establish that the jeep was being used for the purpose of taxi instead of for private use. It is therefore, clear that the respondent insurer has failed to discharge its burden of showing that the jeep was being plied in breach of policy conditions. Moreover, even assuming that the vehicle was being used as taxi as has been alleged by the respondent/insurer the same would not justify total repudiation of the complainant's claim. It may be noticed in the above context that the National Commission in Rajiv Rathod Vs. Oriental Insurance Co. Ltd. in similar situation upheld the order of the State Commission, treating the c1aim of the complainant as Non-standard. It is therefore, clear that the claim of the complainant/appellant under the policy could not have been justifiably repudiated by the respondent/insurer. It may be noticed in the above context that the National Commission in Rajiv Rathod Vs. Oriental Insurance Co. Ltd. in similar situation upheld the order of the State Commission, treating the c1aim of the complainant as Non-standard. It is therefore, clear that the claim of the complainant/appellant under the policy could not have been justifiably repudiated by the respondent/insurer. The finding as above of the Distt. Forum is, therefore, not sustainable. 11. It is therefore, to be considered as to what should be the quantum of compensation, which deserves to be awarded in favour of the complainant/ appellant? 12. It may be noticed that the jeep was purchased on 9-3-96 and was stolen on 15-1-97 i.e., after 10 months of purchase. The new vehicle at that time was admittedly priced at Rs. 2,80,000/- as has also been mentioned in the survey report. It was, also insured for Rs. 2,80,000/-. The surveyor has further mentioned in his report that depreciated value of the vehicle which was about 10 months old was Rs. 2,66,000/-. It was a case of theft and thus of total loss. In view of above, complainant/appellant is entitled to compensation to the extent of actual value of the vehicle i.e., Rs.2,66,000/-. 13. The learned counsel for the respondent/insurer submitted that as mentioned in the survey report the appellant had initially agreed to accept the sum of Rs. 1,90,000/- towards his claim and a letter of consent was given by him, which is placed on record at the Distt. Forum. It may be noticed that the plea of consent as above was not specifically raised by the respondent/ insurer in its written version. Hence, such a plea cannot be permitted to be raised for the first time in appeal. Moreover, we find that the said consent letter was not acted upon by the respondent/insurer who in fact chose to repudiate the whole claim of the appellant. It is further noticed that the complainant himself also withdrew his consent as is indicated by his letter dated 3-6-97 addressed to the respondent/insurer. Moreover, we find that the said consent letter was not acted upon by the respondent/insurer who in fact chose to repudiate the whole claim of the appellant. It is further noticed that the complainant himself also withdrew his consent as is indicated by his letter dated 3-6-97 addressed to the respondent/insurer. It may further be noticed in the above context that the surveyor presumably was appointed by the insurer respondent to assess the loss caused to the vehicle and the circumstances thereof, and not for negotiating with the complainant/appellant a compromise there being no authority to the surveyor in that regard from his principal – the Insurer, even if the complainant appellant had signified his consent to the surveyor, as above, the same would not become binding on the parties. Therefore, though it appears that the complainant/appellant initially signified his consent before the surveyor to accept the sum of Rs. 1,90,000/- from the respondent/insurer, however, the respondent/insurer did not act on the said consent and further the complainant later also withdrew his consent as above. Hence, in our opinion plea of consent as above being raised in appeal for the first time would be of no avail to the respondent/insurer. Hence respondent/ insurer cannot get any benefit of such alleged consent by the complainant/appellant. 14. We are, therefore, of the opinion that the respondent/insurer is liable to pay a sum of Rs. 2,66,000/- to the complainant/appellant as compensation. The learned counsel for the respondent submitted that the decision of the National Commission as above was given after the repudiation of the claim by the respondent/insurer. Therefore the insurer could not be held responsible for repudiation in violation of law prevailing at the time of repudiation. 15. Considering the contentions and the above facts and circumstances we direct that the respondent/insurer shall pay to the complainant compensation of Rs. 2,66,000/- with interest @ 9% per annum from the date of complaint as also cost of litigation, which is quantified as Rs. 500/- (Rupees five hundred) only. Appeal Allowed.