Reserved
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Appeal No.1034 of 2010
Devendra Shekhar s/o Sri R B Singh,
R/o Mohalla Vivekpuram, Tara Mandal,
Opposite Ramgarh Lake, Gorakhpur. …Appellant.
- Cholamandalam M S Gen Insurance Company Ltd.
through Chairman/Managing Director, registered office
Dare House II Floor, No- 2, NSC Bose Road, Chennai
- Regional Manager, Cholamandalam M S Gen
Insurance Company Ltd., Regional Office 4,
Marya Gold, Shanajaf Road, Lucknow. ….…Respondents.
Present:-
1- Hon’ble Sri Rajendra Singh, Presiding Member.
2- Hon’ble Sri Sushil Kumar, Member.
Sri B K Upadhaya, Advocate for appellant.
Sri T K Mishra, Advocate for the respondent.
Date 23.11.2021
JUDGMENT
Per Mr. Rajendra Singh, Member: This appeal has been preferred under section 15 of the Consumer Protection Act against judgment and order dated 06.05.2010 passed by the Ld District Consumer Forum-I, Lucknow, in complaint case no. 435 of 2008, Devendra Shekhar Vs. Cholamandalam M S Gen Insurance Company Ltd. & Ors.
In short, the grounds of appeal are that, that the ld. District Forum, Lucknow -I has exceeded its jurisdiction and pronounced the judgment in mechanical manner, without application of mind and without considering the facts and case laws of the Hon’ble Supreme Court and Hon’ble NCDRC. The learned Forum deducted 25% from the insured amount and awarded interest at a rate of 9% while there was
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no ground to deduct 25 % from the insured amount and also the rate of interest should be 12% instead of 9%. It has not been established by the respondent that the vehicle was being used commercially. The vessel was taken away by his friend so it cannot be said that his friend used it as taxi. The vehicle was stolen in the night and at that time the vehicle was not in use. The vessel was insured for ₹ 396,000/– so this amount should have been awarded with interest at a rate of 12% but the learned Forum did not consider this fact and deducted 25% from the insured amount which is against the law and facts of the case.
We have heard the learned counsel for the appellant Mr. B K Upadhyaya and learned counsel for the respondent Mr. T K Mishra and perused the pleadings evidence and documents on record.
We have perused the impugned judgment and order of the learned District Forum-I, Lucknow. The complainant purchased a vehicle of 2003 model and it was insured for Rs 3,96,000/- for the personal use. This vehicle was taken by the friend of the complainant, Executive Engineer Construction Eastern Railway, Gorakhpur for going to Siwan regarding an inspection. After inspection he returned in his friend’s residence in Siwan and parked the vehicle in the campus of the residence. They fell asleep. When they got up in the morning, they found the vehicle missing and it happened on 4 June 2007 and the first information report has been lodged on the same day. The opposite party has also been informed, who appointed his investigator. The Railway Police, Siwan submitted the final report to the court concerned on
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30.09.2007. The complainant presented his claim but it has been marked as “NO CLAIM”. The opposite party has stated that the vehicle was being used in violation of the condition of the policy. The vehicle was not given to the friend on rent. The learned Forum vide its judgement dated 06.05.2010, allowed the complaint and direct the opposite party to pay ₹ 297,000 with interest at a rate of 10% in addition to ₹ 2000 as cost of the case. Aggrieved by this judgement, the present appeal preferred.
Now here the question arises as why did the complainant handover his vehicle to his friend forgoing outside the boundary of Uttar Pradesh ? No document has been filed to show that the complainant’s friend was going for any inspection work and more so when any government officer is sent for any official work, his superior issues a letter for doing so . Furthermore, the person authorised to inspect, is entitled to claim TA and DA as per prevalent rules. The complainant friend can hire a taxi or can visit by train and might present his TA Bill. But he did not do so rather he demanded the vehicle from the complainant forgoing to Siwan. This does not appeal sound.
The appellant has presented a case law of Hon’ble NCDRC in which the Hon’ble NCDRC has said “we wish to confine ourselves to a decision of the Hon’ble apex court in the matter of National Insurance Company Ltd. Vs. Nitin Khandelwal, 2008 ACJ 2035 SC, wherein an identical situation, while considering as to whether the Insurance Company was liable to indemnify the insured for his loss, in a case of theft of the vehicle, Hon’ble apex court held that a
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breach of terms of policy was not germane in case of theft of the vehicle.
In the case of National Insurance Company Limited Vs. Nitin Khandelwal, (2008) 11 SCC 259, the Hon’ble Supreme Court has held that where a vehicle has been registered as private vehicle and ensured as such but at the time of theft it was being run as taxi. The insurance company repudiated the claim on the sole ground that the vehicle was being run against the conditions of insurance policy.Hon’ble Supreme Court has said that by dismissing the appeal of insurance company, The State Commission as well as NCDRC have committed no mistake.In the case of theft, the nature of use of the vehicle shall not be looked into and the insurance company cannot repudiate the claim solely on this ground. In the case of theft , violation of the conditions of policy is and the insurance company should pay. If it is presumed that there is violation of any condition even then the insurance company shall decide the claim of the petitioner on the basis of non-standard.
In the case of Om Prakash Vs. Reliance General Insurance Company and others, IV (2007) CPSPJ 10 (SC), the Hon’ble Supreme Court has held that the repudiation of the claim of insurance policy shall be based on some genuine and sufficient grounds. The repudiation of insurance claim on the ground of delayed intimation to the company should be on proper grounds. To repudiate the insurance claim on technical grounds will lower the trust of the general public in life insurance Corporation. If the reason of delayed intimation has been shown than merely on technical basis repudiation of the claim in a mechanical way should not be done.
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In the present case the learned District Forum has awarded the claim of the petitioner on the basis of non-standard. We find no grounds to interfere in the said judgement. The amount and rate of interest are proper. Therefore the present appeal is liable to be dismissed and the impugned judgement and order of the learned District Forum is level to be upheld.
ORDER
The appeal is dismissed. The impugned judgement and order dated 06.05.2010 passed by the Ld. District Consumer Forum-I, Lucknow, in complaint case no. 435 of 2008, Devendra Shekhar Vs Cholamandalam M S Gen Insurance Company Ltd. & Ors. is confirmed. Cost on parties.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh)
Member Presiding Member
Judgment dated/typed signed by us and pronounced in the open court.
Consign to record.
(Sushil Kumar) (Rajendra Singh)
Member Presiding Member
Jafri, PA II
Court 2
