ORIENTAL INSURANCE Company Limited vs Sanjeev Kumar

THIS is an appeal by the Oriental Insurance Company Ltd., Patiala against the order of the District Consumer Disputes Redressal Forum, Patiala (hereinafter called the "District Forum") dated 21.7.2005 by which the complaint of the complainant (respondent herein) was allowed by directing the Insurance Company (appellant herein) to settle the claim of the complainant on non-standard basis so as to pay 75% of the admissible claim.

BRIEF facts giving rise to this appeal may be noticed: The complainant-respondent had got his Scorpio Jeep bearing No. HR61-AA-HQ(T)-6555 insured with the Oriental Insurance Company Ltd. Sai Market, Lower Bazar, Patiala (hereinafter called the appellant-Company) for the period 14.6.2004 to 13.6.2005 in the sum of Rs. 6.38 lacs. One Naresh Kumar was engaged as a driver by the complainant. On 14.7.2004, the complainant had gone to Delhi for about a week and the driver, who had been engaged by the complainant, is stated to have been given instructions to get the said vehicle washed at the Service Station and park at his residence. On 21.7.2004, when the complainant returned from Delhi to Patiala, he came to know that Naresh Kumar driver had gone with some strangers on 14.7.2004 in the said vehicle to some other place and on the night intervening 16/17.7.2004 the vehicle was stolen from the parking of Avenue Hotel near Aligarh. An F.I.R. was lodged by driver Naresh Kumar. The complainant lodged the claim with the appellant-Company when the vehicle was not traced by the Police. The claim was repudiated by the appellant-Company, allegedly, for violation of the terms and conditions of the policy, i.e., the vehicle, which had been insured as a passenger car, was being used as a taxi when the same was stolen. In other words, the vehicle was not being used for the purpose it was insured i.e., a private passenger vehicle was being used as a taxi. The District Forum, on the basis of the judgment of the National Commission in Rajiv Rathod v. Oriental Insurance Co. Ltd., I (2003) C.P.J. 206 (NC), allowed the complaint as above. Learned Counsel for the appellant argued that in this case the Investigator gave the report that the complainant had admitted that the driver had taken passengers in the vehicle of the complainant from whom Rs. 1100 per day were settled as hire charge in addition to Rs. 600 for the night stay. According to the appellant-Company, in view of the statement of the complainant recorded by the investigator there was no doubt that the vehicle was being used as a taxi at the relevant time. The investigator had mentioned that the statement of the complainant had been recorded without any pressure or undue influence. Complainant had, however, alleged that signatures had been taken on blank papers by the investigator.

Before we cite some authorities that in such cases the claim cannot be repudiated, we are independently of the view that it hardly makes any difference in case of theft of a vehicle whether the same was being used as a taxi or as a passenger car though the vehicle might have been insured as a passenger car. The user of the vehicle at the relevant time of theft has no nexus inter se, i.e., theft and the user of the vehicle.

ON facts it has nowhere come on the record that the complainant, the owner of the vehicle, had at any time permitted/authorized his driver Naresh Kumar to use the vehicle as a taxi (assuming that the vehicle was being used as a taxi). However, learned Counsel for the appellant-Company pointed out that in fact the complainant had stated before the investigator that the driver had taken the passengers in the vehicle from whom he had charged Rs. 1100 per day. That does not help the appellant-Company at all. It is nowhere pointed out that Naresh Kumar driver had taken the passengers with the permission of the complainant. The National Commission in Kesarben v. M/s United India Insurance Co. Ltd., III (2000) CPJ 36 (NC)=2001 (1) CON.LT 236, observed that it must be proved as a fact in such circumstances that the vehicle was being used or plied as a taxi with the consent of the owner. Chhattisgarh State Consumer Disputes Redressal Commission in Oriental Insurance Co. Ltd. v. Manorama Mishra and Another, 2000 (1) CON.LT 407, was dealing with a similar matter where a taxi was carrying passengers in excess of the permitted capacity. It was held that surely there was a breach of the terms and conditions of the policy inasmuch as more passengers were being carried out than permitted. It was held that carrying of more passengers in a taxi was not the cause of the incident. As observed in the earlier part of the judgment, the plying of the vehicle as a passenger vehicle or as a taxi has no nexus with the theft. Take, for instance, if a passenger vehicle is being plied as a taxi and the driver of the vehicle drops the passengers at a particular point and thereafter parks the vehicle somewhere else for having rest or taking meals, would it be said that at the relevant time the vehicle was being used as a taxi? According to us, the answer had to be in the negative.

THE National Commission in National Insurance Co. Ltd. v. Prem Chand., II (2001) CPJ 60 (NC)=2001 (2) CON.LT 555, was dealing with a similar point. In that case, owner of the vehicle had lodged the claim with the Insurance Company on account of theft of the vehicle from the parking lot of the P.G.I. Chandigarh. THE owner of the vehicle was a resident of Kurukshetra and the vehicle was bearing Registration No. HR-05-5565. It was not disputed that at the time of theft there was no one in the vehicle and it was lying parked. THE District Forum dismissed the complaint at it found that repudiation was based on the report of the Investigator appointed by the Insurance Company. On appeal, the State Commission held that in such circumstances the claim had to be settled as non-standard claim as provided in the insurance policy, which provides that if there is any breach of warranty/condition of policy including limitation as to use the claim had to be settled as non-standard claim. THE National Commission, after relying upon its own earlier judgment in National Insurance Co. Ltd. v. Shri Munni Lal Yadav, R.P. No. 438 of 2001, on 11.4.2001 which is now reported in II (2001) CPJ 53 (NC)=2001 (2) CPR (NC). upheld the judgment of the State Commission. For the foregoing reasons, we find no infirmity in the order of the District Forum, which is hereby dismissed in limine. Appeal dismissed.