K.B. Gawali, Member:
1. This appeal is preferred by the original complainant against the judgment and order dated 29.03.2008 passed by District Forum, Dhule in consumer complaint No.30/2008 whereby complaint is dismissed. The respondent is the original opponent. For better understanding the appellant hereinafter is termed as the œcomplainant? whereas the respondent as the œopponent insurance company?.
2. The brief facts leading to the present appeal are that, the complainant had owned Auto Rickshaw No. MH.18/T/1987 and had obtained insurance policy from the opponent insurance company which was effective for the period from 09.10.2006 to 08.10.2007. That, on 30.11.2006 the said auto rickshaw while going from Vikharan to Navsari turned turtle and was damaged. That, he had to spent Rs.50,000/- towards repairs of the said auto rickshaw. That, following the said accident he had informed police authority. The police visited the spot and conducted the panchanama. That the complainant thereafter filed the insurance claim to the opponent insurance company, but it was not sanctioned. He had therefore issued legal notice on 10.12.2007 to the opponent insurance company, which was also neglected. On the other hand, it has repudiated the claim vide letter dated 28.12.2007 on the ground that the said auto rickshaw was being used for carrying passengers on hire basis. He therefore filed complaint before District Forum seeking direction to pay him cost of repair of vehicle amounting to Rs.50,000/- and amount of Rs.40,000/- towards mental harassment along with interest.
3. Opponent insurance company appeared before Forum and contested the claim. Although it had admitted to have issued policy it was submitted that the same was issued as a private vehicle and the premium was also charged accordingly. However the said vehicle was being used on hire basis at the time of accident which was a breach of terms of the policy and thus on the said ground the insurance claim of the complainant was rightly rejected by its letter dated 28.12.2007. The opponent insurance company therefore contended that there was no deficiency in service on its part and hence complaint be dismissed.
4. The District Forum after considering the evidence on record as submitted by both the parties and after hearing them the complaint was dismissed. The District Forum observed from the police report, that the said vehicle was being used for carrying passengers on hire basis which was a violation of terms andcondition of the policy and thus in keeping with this observation the complaint is dismissed by way of its impugned judgment and order.
5. Feeling aggrieved by the said judgment and order the present appeal is filed in this Commission by the original complainant. The same was finally heard on 17.01.2014. None was present for the appellant/complainant as well as for opponent insurance company. However Adv. Shri. Adgaonkar appearing for the appellant/complainant has already submitted his written notes of argument and hence, the appeal was adjourned for judgment and order.
6. The learned counsel Shri. Adgaonkar by way of his written notes of argument submitted that the risk covered under the insurance policy was for three passengers and on the date of accident there were only three passengers traveling in the auto rickshaw and therefore there was no breach of terms and conditions. He further submitted that persons traveling in the auto rickshaw were not passengers, but they had accompanied the complainant with their articles. He therefore contended that there was no breach of terms of the policy. However, the District Forum failed to appreciate the same and has wrongly passed the impugned judgment and order. In support of the said contention he relied on the reported judgment of the Honble National Commission in case of- National Insurance Company Ltd. and Another Vs. M/s. S. Kumar and Associates “ 2002 (3) CPR “ 60 (NC).
7. We have perused the record i.e. complaint filed by the complainant, repudiation letter of the opponent insurance company, the insurance policy, the spot panchanama made by the police, impugned judgment and order and the written notes of argument filed by the counsel for the complainant.
8. The undisputed fact of the case are that the complainants auto rickshaw in question was insured and the insurance policy was in operation on the date of accident. Secondly, the complainant had spend Rs.50,000/- towards the repair of the damage vehicle. The only dispute raised by the opponent insurance company is that the policy given by the complainant was for a private car, and the premium was also accordingly charged, but the said vehicle was being used for commercial purpose i.e. on hire basis for carrying passengers, which is a violation of the terms and conditions of the policy. A question is whether the insurance company can repudiate the insurance claim in toto on the ground of violation of term regarding use of vehicle. In this respect we rely on the judgment passed by the Honble Apex Court dated 25.03.2010 in Civil Appeal No.2703/2010 in case of Amelendu Sahoo Vs. Oriental Insurance Co. Ltd. In this case it is observed by Honble Apex Court that even if the vehicle is used for hire purpose, the insurance company cannot repudiate the claim in toto and has directed to allow the claim on the basis of guidelines given in the said judgment. That in case of breach of condition of policy including limitation as to use, the claim be settled at 75% of the amount which is otherwise payable, as admissible claim.
9. In view of the aforesaid case law we are therefore inclined to partly allow the appeal of the complainant by setting aside the impugned judgment and order.
10. The complainant has claimed to have spent Rs.50,000/- towards repair of the vehicle. However, the three bills produced on record by the complainant towards repairs we find that the total expenditure is to the tune of Rs.43,970/-. The details of the bill are i) Rs.37,890/- ii) 3,650/0 iii) 2,430/-. Therefore considering the expenditure of Rs.43,970/- made by the complainant for repairs, he is entitled to receive 75% of the said amount as compensation, which works out to Rs.32,977/- say Rs.32,000/-. Accordingly we pass the following order.
ORDER
1. The appeal is partly allowed.
2. The impugned judgment and order of the District Forum is hereby quashed and set aside.
3. The opponent insurance company is directed to pay to the appellant/complainant a compensation of Rs.32,000/- towards damages of the vehicle.
4. The opponent insurance company is also directed to pay to the complainant Rs.3000/- as compensation towards mental harassment and Rs.1000/- as cost of the complaint.
5. All the above said amounts are to be paid within 30 days from the date of receipt of order, failing which opponent shall pay interest @ 6% p.a. till its realization.