LAWS(NCD)-2010-10-25

NATIONAL INSURANCE COMPANY LTD Vs. KAMAL SINGHAL

Decided On October 15, 2010
NATIONAL INSURANCE COMPANY LTD Appellant
V/S
KAMAL SINGHAL Respondents

JUDGEMENT

(1.) A Tata Indica Car insured with petitioner - Insurance Company for the period of 6.2.2004 to 5.2.2005 as a private car was whisked away by three persons who were picked up by Driver at a point of time in the midst of journey for Jhansi. The insured reported loss of vehicle due to theft to Insurance Company which in its turn appointed an Investigator to investigate the matter. A discreet enquiry and investigation was made by Investigator recording statement of various persons including that of the insured. Police too was informed who, after due investigation, submitted final report. However, in the midway, while driver got down from the vehicle to answer to the nature's call, those passengers picked-up by the driver, skipped with the vehicle. As claim preferred by insured was not settled by Insurance Company, door of Consumer Fora was knocked. Claim was resisted by Insurance Company on premises that in violation of condition No. 3 (A) of the insurance policy, there was breach of condition as for 'use of insured vehicle' as it was not expected that the driver will pick up passengers in the night, as a gratuitous act without realization of hire and reward from these passengers. The claim was repudiated also for breach of condition No. 4 in not taking 'reasonable care' to safeguard the insured property. However, these defences were negated by both the Fora below upholding claim of insured to pay compensation on assessment of damages in terms of conditions of policy along with interest @ 6% p.a.

(2.) Issues that were raised before Fora below are also sought to be reiterated before us for repudiation of claim of the insured on these two premises. Contentions were raised that circumstances leading to the loss of the vehicle expressly establishes the nexus between the theft and the misuser and that apart, there had been discrepant statement of the insured before the police and the Investigator which shows that the statement was improvised by insured so as to show that vehicle was not being used as a 'taxi'. Reference was made to the statement of the insured before the Investigator that it was only on behest of Manager of 'Hotel Grace' that he permitted three persons to travel in his vehicle. Both Fora below, on consideration of defence taken out by Insurance Company overruled them as there was no clinching evidence about driver having realized service charges from those passengers to facilitate their travel in the vehicle. True it is that, had there been such evidence, the discrepant statement made by passengers of the insured as quantum of hire and reward was not a significant issue. Repudiation of claim made by Insurance Company was also found to be invalid for the reason that since driver was not expected to carry key of the vehicle with him while getting down from the vehicle to answer nature's call, particularly, when the vehicle was within his sight. We too, concur with the finding of Fora below about there being no clinching evidence suggesting violation of condition 3(A) and 4 of the policy authorizing the Insurance Company to defeat genuine claim of the insured. There has been catena of decisions of the National Commission and also Hon'ble Apex Court and the issue is no longer res integra that in case of theft of vehicle, issue of breach of policy condition(s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. v. J.P. Leasing & Finance Pvt. Ltd., (RP No. 643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd.v. Sou. Bahrati Rajiv Bankar, (RP No. 3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No. 3366/2009). There has been a landmark judgment of Hon'ble Apex Court in the matter of National Insurance Company Ltd. v. Nitin Khandelwal, 2008 4 CPJ 1 (SC), where the Hon'ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further "the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance Company ought to have settled the claim on 'non-standard' basis". Hon'ble Apex Court in back drop of these features, in these cases, allowed 70% of the claim of the claimant on the 'non-standard' basis. This view was reiterated by Hon'ble Apex Court also in the matter oiAmalendu Sahoo v. Oriental Insurance Company Ltd., 2010 2 CPJ 9 . There being a long line of decisions on this score, we have no option but to uphold the finding of Fora below with modification that the claim be settled on 'non-standard' basis, in terms of the guidelines issued by the Insurance Company. In case petitioner company fails to carry out the direction contained therein, the amount payable on 'non-standard' basis shall carry interest @ 6% p.a. from the date of expiry of six weeks till the date of actual payment. Revision petition is consequently dismissed but with no order as to cost.