ORDER As per Hon'ble Shri S.C. Vyas, President:- 1. This appeal was heard by two Members of this Commission, who have recorded their separate opinions. They have referred the matter to the President, in view of their difference in opinion and therefore, the matter was heard by me, as the President of this Commission under provisions of section 16(1-B)(iii) of Consumer Protection Act, 1986, and the order of the Commission is rendered herein, agreeing with opinion recorded by Member Smt. Veena Misra and thereby as a majority order of this Commission. 2. In nutshell the facts of the case are that a Scorpio vehicle bearing registration No. CG 04 B 8122 was insured as a private car by the respondent insurance company for the relevant period at the value of Rs.5,0 1,944/-. This vehicle was set at fire by some unknown person in the night of 11.12.06. FIR was lodged at police station Kusmi and insurance company was also informed on 13 .12.06 and thereafter, claim form was submitted. An investigator was appointed by the insurance company and when report of the investigator was received then, the claim was repudiated on 03.01.07. Complainant then filed complaint under section 12 of Consumer Protection Act, 1986 before District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short). 3. It has been averred in the complaint that at the relevant date the vehicle was taken by one Chintamani Mahraj, who is of Village Shrikot, P.S. Kusmi and was parked in front of his house in the fateful night. During the night time some miscreants set fire in the vehicle and ablaze it, causing total loss of the vehicle and therefore the amount of insurance was claimed by the complainant. Denying the contentions of the complainant, it was contended by the insurance company in the written version that in fact the vehicle was hired by Chintamani Mahraj not only at the relevant time but was being used as hired vehicle for past two years. It has been submitted that in this way policy conditions were breached by the complainant himself and private car was given on hire to a third person. It has been submitted that because of the violation of material condition of the policy, the complainant is not entitled to get any sum under the policy. 4. It has been submitted that in this way policy conditions were breached by the complainant himself and private car was given on hire to a third person. It has been submitted that because of the violation of material condition of the policy, the complainant is not entitled to get any sum under the policy. 4. Learned District Forum has dismissed the complaint holding that there was no deficiency in service on the part of the insurance company as the conditions of policy have been violated by the complainant him self will fully. Settlement of claim on non-standard basis was also refused on the ground that there was no prayer to that effect in the complaint. 5. This matter was heard by two learned Members of this Commission. Shri V.K. Patil has recorded his opinion that the appeal has no force and no amount is payable, even as per guidelines of settlement of non-standard claims, because the conditions of the policy were willfully breached by the complainant himself, continuously for two years. Whereas another Member Smt. Veena Misra has recorded her separate opinion and was of the view that even if the vehicle in question was being run for hire and reward, the claim ought to have been settled by insurance company on non-standard basis, because running a vehicle for hire or reward comes under' limitation as to use'. 6. The only question for consideration before me is whether any amount can be awarded to the insured even if there is some violation or breach of any condition of policy? 7. Learned counsel for the appellant Shri R.K. Bhawnani has drawn attention of this Commission towards judgement of National Commission rendered in the case of Kesarben Vs. United India Insurance Co. Ltd 1, it was a judgement of Five Member Bench, wherein in paragraph No.3, the National Commission has held that "3. The types of claims which can be settled as non-standard under the guidelines are set out hereunder: 'Non-Standard Claims Following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons: Sr. Description Percentage of settlement (i) Under declaration of Deduct 3 years difference in licensed carrying premium from the amount of capacity claim or deduct 25 Percent of claim amount whichever is higher. (ii) Overloading of vehicles Pay claims not exceeding 75 beyond licensed carrying per cent of admissible claim. Description Percentage of settlement (i) Under declaration of Deduct 3 years difference in licensed carrying premium from the amount of capacity claim or deduct 25 Percent of claim amount whichever is higher. (ii) Overloading of vehicles Pay claims not exceeding 75 beyond licensed carrying per cent of admissible claim. capacity (iii) Any other breach of Pay up to 75 per cent of warranty/condition of admissible claim. policy including limitation as to use. For breach of warranty/conditions which do not involve any saving in premiums or any additional exposure to the insurers such claims be considered as standard claims, e.g. route permit." 8. Ultimately in that case insurance company was directed to settle the claim at 75% of the insured amount. In the guidelines for settlement of non-standard claims, it has been specifically stated that "Where the breach is material to the loss or where an act of the insured or his agent contributed to such a breach in such cases if the insured has acted with the best of intentions and has not consciously committed the breach or where the legal question of liability is in doubt, payment may be considered on merits of each case, up to a maximum of75 per cent of the assessed amount of loss." This guidelines clearly shows that even there was some contribution of the insured or his agent in breach of the condition of policy and such contribution may be regarding breach of material condition of policy, even then claim can be settled up to 75 per cent, that is why the National Commission has directed for settlement of such claim as non-standard under the guidelines. 9. Guidelines were considered by National Commission many times. In Revision Petition No.1 503/04 G. Kothainachiar Vs. B.M, United India Insurance Co. Ltd & ors., by order dated 29.1 0.07, National Commission after• taking into consideration the pronouncement of Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd Vs. Sony Cheriyan2; New India Assurance Co. Ltd, Shimla Vs. Kamla & ors. 3; Jitendra Kumar Vs. Oriental Insurance Co. Ltd 4 and National Insurance Co. Ltd Vs. Swaran Singh5; as well as B. V Nagarju Vs. Oriental Insurance Co. Ltd Vs. Sony Cheriyan2; New India Assurance Co. Ltd, Shimla Vs. Kamla & ors. 3; Jitendra Kumar Vs. Oriental Insurance Co. Ltd 4 and National Insurance Co. Ltd Vs. Swaran Singh5; as well as B. V Nagarju Vs. Oriental Insurance Co. Ltd., Divisional Officer, Hassan6, has held that "wherever there is a breach of policy condition and wherever such breach is fundamental or material so as to vitiate the insurance contract then the insurance company can repudiate the claim of the insured, but if the breach is of technical nature or minor breaches of license conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been .the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties". Ultimately, in that case it was found that there was no fitness certificate of the vehicle but award was passed against the insurance company. Another order which has been relied by learned counsel for the appellant is a common order passed in revision petition No. 2393/03, 02/04 & 824/06 by National Commission. In that case also awarding an amount on the basis of non-standard clause was approved and the award passed, on the basis of guidelines of settlement of non-standard claims were not interfered with. 10. Hon'ble Apex Court also in civil appeal No. 3409/08 in the case of National Insurance Co. Ltd. Vs. Nitin Khandelwal, has not interfered with the award of State Commission on non-standard basis and has opined in the facts of that case, when it was a case of that, then question of driver of the vehicle having a valid license is not germane. If we compare facts of that case with facts of the present case then it is clear that whether the vehicle was being used by owner or by a person who hired it, at that time, when it was set at fire by some miscreants, are not relevant questions, as this question do not have any nexus with the incident of fire, itself. The damage was caused because offire in the vehicle, when it was in stationary condition, so it became immaterial whether it was given on hire or not. 11. Learned counsel for the appellant has also placed reliance on judgement of this Commission in appeal No.214/07, The New India Assurance Co. Ltd. Vs. Prandhar Agrawal; Om Prakash Baghel Vs. Oriental Insurance Co. Ltd. Vishwanadh Sultania Vs. New India Assurance Co. Ltd. and some other judgements. In all those cases, insurance companies were directed to settle the claim under non-standard clause of the guidelines. 12. Learned counsel for the insurance company opposing these arguments has submitted that National Commission in the case of Jagdeesh Singh Vs. United India Insurance Co. Ltd. has held that in case of breach of policy conditions regarding use of the vehicle, which was registered as private omni bus was given on hire, the repudiation of claim by insurance company was justified. This case of Jagdees Singh (supra) has been discussed by the larger bench of National Commission and it was observed that this judgement is rendered because none has pointed out the guidelines prescribed for settling of claim on non-standard basis nor the aforesaid judgement in the case of Kesarben1 (supra) was pointed out. It shows that this judgement has been overruled by a larger Bench of the National Commission and is not a good law. 13. If we consider the facts of the case and material which have been brought on record before District Forum, then it appears that complainant was contending that it was his vehicle which was set at fire while it was parked in front of house of Chintamani Mahraj, whereas insurance company was having specific case that the vehicle was given on hire to Chintamani Mahraj for last two years, but to prove this fact, as piece of evidence only photocopies of statement ofTeknarayan Singh have been placed on record. It appears that one Prakash Dwivedi, Advocate has recorded statement of witnesses but no affidavit of Shri Prakash Dwivedi, Advocate who Worked as Investigator, was filed nor any affidavit ofTeknarayan Singh or anyone else, which can show that the vehicle was given on hire to someone else, was filed. Merely on the basis of. It appears that one Prakash Dwivedi, Advocate has recorded statement of witnesses but no affidavit of Shri Prakash Dwivedi, Advocate who Worked as Investigator, was filed nor any affidavit ofTeknarayan Singh or anyone else, which can show that the vehicle was given on hire to someone else, was filed. Merely on the basis of. investigation report of an Advocate or on the basis of few statement recorded by him it is difficult to hold that the vehicle was given on hire for a very long time to a third person. When the insurance company was having a defence that it is a case of breach of policy conditions then some cogent evidence should have been produced by the company to substantiate this defence. 14. If for the sake of arguments we believe on this defence that at the relevant time, the vehicle •was given on hire, even then it can be said to be breach of policy condition regarding' limitation as to use'. The policy which was issued by the insurance company in favour of the complainant / appellant was Private Car Package Policy and that policy covers use of the vehicle for any purpose other than hire or reward, Carriage of goods (other than samples or personal luggage ), Organized racing, Speed testing, Reliability trials, Any purpose in connection with Motor trade. 15. This condition of the policy shows that if vehicle is used for hire then it can be said as breach of condition 'limitation as to use' and even then such claim can be settled as non-standard claim on the basis of guidelines issued for settlement of non-standard claims as held by National Commission in National Insurance Company Ltd Vs. Sanjay Shivhare (supra). Therefore, if there was some technical breach of policy conditions even then, the claim of the complainant can be settled under clause-l ° of Procedural Manual of Motor Claims up to 75% of the admissible claim can be paid. 16. Therefore, I agree with the opinion expressed by Smt. Veena Misra, Member and as majority order the insurance company is directed to settle the claim of the complainant on the basis of clause-l ° of Procedural Manual of Motor Claims as non-standard claim and to pay up to 75% of the admissible claim amount. 17. Thus, the appeal succeeds and is allowed. 17. Thus, the appeal succeeds and is allowed. The order passed by District Forum is set aside and insurance company is directed to settle the claim of the complainant up to 75% of the sum assured, which is Rs.5,Ol,944/- and the claim can be settled up to 75% of this amount. With these directions the appeal is disposed off Appeal Allowed.