Appeal No.1910/07


ICICI Lombard General Insurance Company Ltd. Appellant

V.

1.

Suresh Kumar Sunda
2.

ICICI Bank Ltd. Respondents

Appeal No.1894/07

Suresh Kumar V. ICICI Bank Ltd. & anr. Before:

Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethiya-Member


Shri Jitendra Mitruka,counsel for the appellant

Shri Ranjit Khichad,counsel for the resp.no.1

None for res.no.2


Date of judgement: 4.3.2009


The abovementioned two appeals are being decided by this common judgement as both have been prefered against the order dated 30.8.07 passed by the District Forum-II,Jaipur in complaint no.644/06.

Appeal No.1910/07

This appeal has been filed by the appellant insurance company which was op no.2 before the District Forum-II,Jaipur against the order dated 30.8.07 passed by the District Forum-II,Jaipur in complaint no.644/06,by which the complaint of the complainant res.no.1 was allowed against the appellant insurance company in the manenr that the appellant insurance company was directed to pay a sum of Rs.3,86,524/- to the complainant res.no.1 with interest @ 12% p.a wef 17.8.06 and further to pay Rs.3000/- as amount of cost of litigation.


It arises in the following circusmtances:

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That the complainant res.no.1 had filed a complaint against the appellant insurance company as well as res.no.2 before the District Forum-II,Jaipur on 15.6.06 interalia stating that his Toyota Innova car was purchased by the complainant res.no.1 on 9.1.06 and the same was got insured with the appellant insurance company for the period 9.1.06 to 8.1.2007 for a sum of Rs.7,40,230/- lacs and the same was got registered on 10.4.06 bearing registration no.RJ.23.T.A.0223. It was further stated in the complaint that the said vehicle had met with an accident on 22.4.06 as a result of which the vehicle was damaged and information of that incident was given by the complainant res.no.1 to the office of the appellant, but that claim was repudiated by the appellant insurance company through letter dated 25.4.06 annex.6 in the following manner:


“Your vehicle is registered in taxi but policy is in private car so we have been unable to process the claim for the above stated reason. This would not come in the insurable interest of the vehicle as it's a Taxi.

Hence,we would be treating the claim as no claim,and hence,ICICI Lombard General Insurance Company Limited shall not have any liability in respect of the captioned subject matter”.

It was further stated in the complaint that the surveyor appointed by the appellant insurance company had assessed the loss to the tune of Rs.3,86,524/- though more amount was spent in getting the repair of the vehicle and for that the present complaint was filed.


A reply was filed by the respondent insurance company before the District Form-II,Jaipur on 16.10.06 and in the reply same pleas were taken which were taken in the repudiation letter dated 25.4.06 and it was

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further prayed that since the vehicle at the time of accident was being used as a taxi though it was insured for a private vehicle,therefore,there was violation of the terms and conditions of the policy ,claim was not payable.


The District Forum after hearing both the parties,through the impugned order dated 30.8.07 had allowed the complaint as stated above,interalia holding that the vehicle in question was registered as a taxi for commercial use,therefore,the amount as assessed by the surveyor was ordered to be paid by the appellant insurance company to the complainant res.no.1.


Aggrieved from that order,this appeal has been filed by the appellant insurance company.


In this appeal,the main contention of the learned counsel for the complainant appellant is that a bare perusal of the insurance cover note annex.1 and other documents clearly reveal that the car when it was insured by the complainant res.no.1 with the appellant insurance company was insured as a private car and the policy of private car package was taken by res.no.1 and the fact that it was registered as a taxi is evident from the registration number,therefore,though the car in question was insured as a private car and the same was being used as a taxi,hence terms and conditions of poilicy were violated and the claim was rightly repudiated and thus appeal be allowed.


On the other hand,the learned counsel for the complainant res.no.1 has argued that since the registration of the car was for taxi,therefore,findings recorded by the District Forum be upheld and appeal be dismissed.


We have heard the learned counsel for the parties and perused the

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record.


In our considered opinion, so far as the fact that the car in question when it was got insured through annex.1 was insured as a private car and policy of private car package was taken by the complainant res.no.1 and no doubt,the same was got registered by the complainant res.no.1 later on as a taxi and at the time of accident,the car was being used as a taxi meaning thereby for hire purposes. When the car in question was insured as a private car and though it might be got registered as a taxi but its use would be treated as a use for hire purposes and not in the manner in which a private car was used. Thus the appellant insurance company had proved that the car in question was insured as a private car and the same was being used as a taxi.


The position of law is very much clear that in case of private car is used as a taxi in violation of the terms of the policy,the claim should be treated as sub standard and thus repudiation of the claim of the complainant res.no.1 by the appellant insurance company in toto was not justified as the misuse of the vehicle might be irregular,but not so fundamental nature as to put an end to the full contract.


For reasons as stated above, in the present case claim should have been treated as sub standard and the findings recorded by the District Forum by which the full amount as assessed by the surveyor was ordered to be paid by the appellant insurance company to the complainant res.no.1 could not be sustained.


On point of compensation.

It may be stated here that the surveyor,Shri Suraj Mal Meel in his report dated 17.5.2006 the loss assessed by the surveyor was to the tune of Rs.3,86,524/- and thus,this Commission is of the view that the

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complainant res.no.1 is entitled to 75% amount of Rs.3,86,524/- that comes to Rs.2,89,893/- in place of Rs.3,86,524/-. Further the rate of interest awarded @ 12% p.a appears to be on higher side and that should be reduced to 9% p.a in place of 12% p.a and to that extent,the impugned order deserves to be modified and appeal deserves to be partly allowed.


For reasons as stated above,this appeal filed by the appellant insurance company is partly allowed in the manner that the appellant insurance company would pay a sum of Rs.2,89,893/- in place of Rs.3,86,524/- with interest @ 9% p.a in place of 12% p.a to the complainant res.no.1 from the date of filing of the complaint till the payment is made and to that extent,the impugned order dated 30.8.07 passed by the District Forum-II,Jaipur be treated as modified.


Appeal No.1894/07


This appeal has been filed by the complainant appellant for enhancement of the amount. Since while deciding appeal no.1910/07 the amount had already been reduced to some extent,therefore,this appeal filed by the complainant appellant stands to be dismissed automatically and the same is dismissed.



Member President