Mr. Mukesh Vasudeo Lodhi Vs. the New India Assurance Co.Ltd., Agra Road, Nashik - Court Judgment

SooperKanoon Citationsooperkanoon.com/1111245
CourtMaharashtra State Consumer Disputes Redressal Commission SCDRC Mumbai
Decided OnAug-04-2009
Case NumberFirst Appeal No.141 of 2009 @ Misc.Appl.No.227 of 2009 & 228 of 2009 (In Consumer Complaint No.90 of 2008)
JudgeShri S.R. Khanzode, Hon’ble Presiding Judicial Member Mrs. S.P. Lale, Hon’ble Member
AppellantMr. Mukesh Vasudeo Lodhi
RespondentThe New India Assurance Co.Ltd., Agra Road, Nashik
Advocates:Advocate Mr. V.B. Nashikkar for the Appellant. Advocate Mr. R.P. Bafna for the Respondent.
Excerpt:
per shri s.r. khanzode, honble presiding judicial member this appeal is preferred against the order/award dated 21/10/2008 passed in consumer complaint no.90/2008 filed on 14/5/2008, mukesh vasudev lodhi v/s. branch manager, the new india assurance company ltd., nashik city branch, nashik, by district consumer disputes redressal forum, nashik (“forum below” in short). there was a theft of toyota qualis vehicle bearing no. mh 19 q 4646 on the night of 28/9/2006. said vehicle was insured with respondent/original o.p. (hereinafter referred as “respondent”). appellant/original complainant (hereinafter referred as “appellant”) lodged the insurance claim which stood repudiated by the respondent on the ground that the vehicle was used contrary to the terms of insurance policy, on hire and reward. feeling aggrieved thereby, appellant preferred a consumer complaint, which was dismissed with the cost of rs.1,000/- and feeling aggrieved thereby, this appeal is preferred by the appellant/original complainant. we heard advocate v. b. nashikkar for the appellant and advocate r. c. bafna for the respondent. perused the record. there is a delay of about 73 days in filing the appeal and therefore, misc.application no.227/2009 is preferred. the reason given is that due to illness, the appellant could not file the appeal in time. in an affidavit filed in support in the application for condonation of delay and which is verbatim reproduction of the application for condonation of delay, it did not mention any particulars as to the illness. under the circumstances, we find that the delay being not satisfactorily explained, the application deserves to be dismissed. coming to the merit, admittedly, as per the terms of insurance policy, the vehicle was not to be used on hire and reward. after the theft, the driver of the vehicle vijay rajaram patil lodged the first information report with the police, wherein, it is clearly admitted that at the time of alleged robbery and theft of the vehicle, the vehicle was used on hire and reward. after receiving such information, consequent to the lodging of insurance claim by the appellant, respondent insurance company also appointed investigator adv. d. b. chobe. he made enquiry with the owner of the vehicle and others and thereafter, submitted report confirming the fact that at the time of alleged theft, the vehicle was used on hire and reward. insurance contract is based upon utmost good faith. there being clear breach of such utmost good faith and terms of insurance policy, the repudiation by the insurance company cannot be faulted with. thus, there being no deficiency in service on the part of respondent/insurance company, forum below rightly dismissed the complaint. we find no reason to interfere with the impugned order/award and thus, finding the appeal devoid of any substance and pass the following order. order: 1. m.a.no.227/2009 stands dismissed. 2. m.a.no.228/2009 for stay stands disposed off as infructuous. 3. appeal stands dismissed with cost of rs.1,000/-. 4. copies of the order be furnished to the parties.
Judgment:

Per Shri S.R. Khanzode, Honble Presiding Judicial Member

This appeal is preferred against the order/award dated 21/10/2008 passed in Consumer Complaint No.90/2008 filed on 14/5/2008, Mukesh Vasudev Lodhi V/s. Branch Manager, The New India Assurance Company Ltd., Nashik City Branch, Nashik, by District Consumer Disputes Redressal Forum, Nashik (“Forum below” in short).

There was a theft of Toyota Qualis vehicle bearing No. MH 19 Q 4646 on the night of 28/9/2006. Said vehicle was insured with Respondent/Original O.P. (hereinafter referred as “Respondent”). Appellant/Original Complainant (hereinafter referred as “Appellant”) lodged the insurance claim which stood repudiated by the Respondent on the ground that the vehicle was used contrary to the terms of insurance policy, on hire and reward. Feeling aggrieved thereby, Appellant preferred a Consumer Complaint, which was dismissed with the cost of Rs.1,000/- and feeling aggrieved thereby, this Appeal is preferred by the Appellant/Original Complainant.

We heard Advocate V. B. Nashikkar for the Appellant and Advocate R. C. Bafna for the Respondent. Perused the record.

There is a delay of about 73 days in filing the Appeal and therefore, Misc.Application No.227/2009 is preferred. The reason given is that due to illness, the appellant could not file the appeal in time. In an affidavit filed in support in the application for condonation of delay and which is verbatim reproduction of the application for condonation of delay, it did not mention any particulars as to the illness. Under the circumstances, we find that the delay being not satisfactorily explained, the application deserves to be dismissed.

Coming to the merit, admittedly, as per the terms of insurance policy, the vehicle was not to be used on hire and reward. After the theft, the driver of the vehicle Vijay Rajaram Patil lodged the First Information Report with the Police, wherein, it is clearly admitted that at the time of alleged robbery and theft of the vehicle, the vehicle was used on hire and reward. After receiving such information, consequent to the lodging of insurance claim by the Appellant, Respondent Insurance Company also appointed investigator Adv. D. B. Chobe. He made enquiry with the owner of the vehicle and others and thereafter, submitted report confirming the fact that at the time of alleged theft, the vehicle was used on hire and reward. Insurance contract is based upon utmost good faith. There being clear breach of such utmost good faith and terms of insurance policy, the repudiation by the Insurance Company cannot be faulted with. Thus, there being no deficiency in service on the part of Respondent/Insurance Company, forum below rightly dismissed the complaint. We find no reason to interfere with the impugned order/award and thus, finding the appeal devoid of any substance and pass the following order.

Order:

1. M.A.No.227/2009 stands dismissed.

2. M.A.No.228/2009 for stay stands disposed off as infructuous.

3. Appeal stands dismissed with cost of Rs.1,000/-.

4. Copies of the order be furnished to the parties.