Landmark judgements

PROPRIETOR OF ZUBER TRANSPORT v RELIANCE GENERAL INSURANCE CO.

 

 

BEFORE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI  [ ISSUE-SUB STANDARD CLAIM]

 

PROPRIETOR OF ZUBER TRANSPORT

Sohaibbhai Unusbhai Vohra

Res. at: Paramount Society,

Bungalow No. 62, Polson Dairy Road

Anand, Gujarat State                                       ...  Petitioner

 

Versus

 

RELIANCE GENERAL INSURANCE CO.

First Floor, P.N. Square,

Opp. Cafe Coffee Day,

Opp. Petrol Pump, Anand,

District Anand

Gujarat State                                                 … Respondent

 

REVISION PETITION NO. 1449 OF 2012

(From the order dated 28.02.2012 in First Appeal No. 1622/2010

of Gujarat State Consumer Disputes Redressal Commission

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS

 

For the Petitioner(s)

 

Ms. Girija Wadhwa, Advocate

For the Respondent(s)

 

Mr. Navneet Kumar, Advocate

 

PRONOUNCED ON :   22nd  JULY  2013

O R D E R

 

PER DR. B.C. GUPTA, MEMBER

 

This revision petition has been filed under Section 21 of the Consumer Protection Act, 1986 against the order dated 21.02.2012 passed by the Gujarat State Consumer Disputes Redressal Commission (hereinafter referred as ‘State Commission’) in appeal no. 1622 of 2010, ‘Proprietor of Zuber Transport Vs. Reliance General Insurance Company’ and appeal no. 1778 of 2010, ‘Reliance General Insurance Company Vs. Proprietor of Zuber Transport’ vide which appeal no. 1622 of 2010 filed by the complainant/petitioner as per Consumer Complaint No. 46 of 2009 before the District Forum was dismissed, while appeal of the opposite party, Reliance General Insurance Company was accepted and the order passed by the District Forum dated 30.09.2010 was set aside.  The District Forum vide said order had directed the opponent, the Insurance Company to pay Rs. 1 lakh with 9% interest from 01.03.2009 to the complainant and also ordered to pay Rs. 5,000/- for mental agony and cost of litigation.

 

2.     Briefly stated, the facts of the case are that the petitioner/complainant carried on business under the name of Zuber Transport in District Anand, Gujarat having truck no. GJ 9Y6891 since 22.02.2008.  The said truck was insured with the opposite party, Reliance General Insurance Company vide policy no. 1611782334002087 and premium amount of Rs. 25,777/- was paid by the complainants.  The policy was valid from 16.01.2008 to 15.01.2009.  It is stated that the said truck was parked outside the office of Zuber Transport in common plot, when it was stolen early morning and FIR No. 2/09 dated 01.01.2009 was filed with the police, and the insurance company was also informed.  The aforesaid truck was later recovered from the area of Bodeli Police Station, District Vadodara, Gujarat State.  As per the Panchnama prepared by the police, 11 tyres and plates, nuts were stolen which valued at Rs. 1,75,000/-.  The complainant sent the requisite documents and original bills of Rs. 2,53,908/- to the Insurance Company, but the company sent a cheque of Rs. 45,441.50/- as full and final settlement.  The complainant returned the said cheque to the Insurance Company and filed Consumer Complaint in the District Consumer Forum.  The stand taken by Insurance Company was that under the terms and conditions of the policy, the tyres of the truck were not covered, and hence the complainant could not be given compensation for the loss of tyres.  The District Forum vide their order dated 30.09.2010, allowed the complaint and directed the Insurance Company to pay a sum of Rs. 1 lakh with 9% interest with effect from 01.03.2009 and also to pay Rs. 5,000/- for mental agony and cost of litigation.  Against this order, two cross appeals were filed before the State Commission.  The State Commission dismissed the appeal filed by the complainant for enhancement of the award as given by the District Forum.  On the other hand, the State Commission accepted the appeal filed by the opposite party and set aside the order passed by the District Forum.  It is against this order that the present petition has come up. 

3.     Heard the learned counsel for the parties and examined the record.

4.     It has been contended by the learned counsel for the petitioner/complainant that the claim should have been allowed, at least on non-standard basis by the Insurance Company.  The learned counsel invited our attention to the order passed by Hon’ble Supreme Court of India in Amalendu Sahu Vs. Oriental Insurance Company as reported in 2010 (2) CACC 103 (SC) in which it has been stated that in case of violation of conditions of policy, the claim ought to be settled on non-standard basis.  Further, in another judgment given by the Hon’ble Apex Court in National Insurance Company Vs. Nitin Khandelwal, as reported in IV (2008) CPJ 1(SC), it has been stated that in the case of theft of vehicle, breach of condition is not germane.  The Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.  The claim should be settled on a non-standard basis.  The learned counsel argued that the factum of truck being stolen is an admitted fact and the District Forum has rightly allowed the complaint, though partly.

5.     In response, the learned counsel for the respondent vehemently argued that in the instant case, the truck in question had been recovered, and hence the Insurance Company is liable to pay for “own damage” only.  Had the truck not been recovered, the Insurance Company was liable to pay compensation as per the total loss, but in this case, the position was different, as the truck had been recovered.  There was no deficiency on the part of the Insurance Company, because they had sent a cheque of Rs. 45,441.50/- to the complainant in accordance with the reports submitted by the surveyor.  The learned counsel invited our attention to a number of rulings of the Hon’ble Supreme Court of India in ‘Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International’, as reported in 2013 (1) SCALE 410, Suraj Mal Ram Niwas Oil Mills (P.) Ltd. Vs. United India Insurance Co. Ltd. and Anr. as reported in (2010) 10 SCC 567 and Oriental Insurance Company Ltd. Vs. Sony Cheriyan as reported in AIR 1999 SC 3252.  The learned counsel argued that the insured can not claim anything more than what is covered by the insurance policy and that the insurance policy between the insurer and the insured represents a contract concluded between the parties.

6.     We have examined the entire matter on record and given a thoughtful consideration to the arguments advanced before us.  A perusal of the record indicates that the terms and conditions of the insurance policy in question state as follows:-

        “The company shall not be liable to make any payment in respect of:

          (B) Damages to tyres and tubes unless the vehicle insured is damaged at the same time in which case the liability of the company shall be limited to 50% of the cost of replacement and as per the clause (a) of paragraph TMT 21 special exclusions and compulsory deductible of policy.

          (A) Except in the case of total loss of the vehicle insured the insured shall not be liable under section of the policy for loss or the damages to lumps, tyres, tubes, mudguards, bonnet side parts, bumpers and paint work ….”

 

7.     A plain reading of the above terms and conditions indicates that the Insurance Company is not liable to pay compensation for the loss of tyres and tubes, unless it is a case of total loss of the vehicle.  It is an admitted fact that in this case, the stolen truck was recovered later, but the tyres etc. were missing.  There is no force in the contention of the complainant that the claim could at least be settled on a non-standard basis.  The citations submitted by the complainant do not provide him any benefit, as this is not a case where there has been a violation of terms and conditions.  It is clearly one of the conditions of the insurance policy that damage of tyres and tubes is not covered under the policy.  The Insurance Company has, therefore, not committed any deficiency in disallowing the claim of the complainant for the loss of tyres etc.  It is clear, therefore, that the State Commission has made a correct appreciation of the facts and circumstances of the case, and came to the conclusion that the Insurance Company had not committed any deficiency in service and provided compensation in accordance with the report of the surveyor.  We do not find any illegality, irregularity or jurisdictional error in the order passed by the State Commission and hence, the same is ordered to be upheld.  The petition is ordered to be dismissed, with no order as to costs.

..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

 

..……………………………

(DR. B.C. GUPTA)

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