Suresh Chandra, Member:
This revision petition is directed against the impugned order dated 9.11.2012 of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad passed in appeal No.456 of 2012 by which the State Commission dismissed the appeal of the petitioner Co. and upheld the order dated 28.7.2010 of the District Forum, Bhuj in complaint No.228 of 2008. By its order, the District Forum partly allowed the complaint filed by the respondent in terms of the following directions:-
œThe complaint of the complainant is partly allowed. The opponent are ordered to pay a sum of Rs.5,62,000/-(Rupees Five Lac Sixty Two Thousand Only) being 75% of the insured value on non-standard base, Rs.5,000/- (Rupees Five Thousand Only) against Mental Harassment and Rs.3000/- (Rupees Three Thousand Only) against Cost.?
2. Briefly put, the factual matrix of this case are that the respondent who is the original complainant in this case is the authorized dealer of Mahindra and Mahindra Co. manufacturers of Scorpio Jeep. Being the dealer, the complainant would purchase the new manufactured Scorpio Jeeps in bulk. As the dealer of the co., the complainant became the owner of the jeep in question bearing Engine No.BS64L71432 and Chasis No.62L97789. The vehicle had automatic registration in complainants name with Trade Plate No.GJ-12-TC-28A. This jeep was insured with the petitioner insurance co. under Motor Trade (Road Risk) Policy B-Package for the period from 1.2.2006 to 31.1.2007 covering the risk of theft and other perils as per the contract. It is alleged that while the vehicle (Scorpio Jeep No.GH-12 TC-28A) was coming from Vadodara Manufacturers Store-yard to Madhapar-Bhuj Showroom on 5.12.2006, it was stolen near Karjan on NH No.8-A. The incident of theft of the vehicle in question was immediately intimated to the petitioner insurance co. besides lodging of FIR No.213/2006 with the Karjan Police Station on 6.12.2006. The complainant thereafter filed necessary claim in respect of the loss of new jeep for Rs.7,50,000/- which was the sum insured in respect of the vehicle. Even after submission of the necessary documents by the complainant, the petitioner Co. did not reimburse the amount of loss and repudiated the claim on the grounds that the vehicle did not carry Trade Plate while in travel, the vehicle was travelling beyond 80 kms limit and so violated condition I.M.T. Endorsement no. 41 and the vehicle was carrying passengers. Alleging repudiation of its claim by the petitioner Co. as baseless and illegal, the respondent filed a consumer complaint in question before the District Forum.
3. On notice, the petitioner insurance co. filed its written statement along with documents including copy of the policy with terms and conditions, affidavit of the driver, repudiation letter, surveyors report etc. In its written statement, the petitioner/opposite party denied any deficiency in service on its part and submitted that the repudiation of the claim was justified for the reasons mentioned in the repudiation letter. While not denying the insurance cover to the vehicle in question, the OP submitted that since there was serious violation of conditions of the policy and Motor Vehicles Rules, the complainant was not entitled to get any claim in respect of the vehicle. After examining the documentary evidence and hearing the parties, the District Forum held that it was proved from the investigation report and the statements made by the driver and others that the vehicle was carrying passengers and there was no reason to believe that the passengers did not pay for their travel and as such there was violation of the terms of the policy inasmuch as the vehicle was not meant to be used for commercial purpose. The District Forum noted that the insurance policy was subject to I.M.T. Endorsement No.41 regarding the limit of 80 kms within which the vehicle in question could have been driven and since it was going beyond this limit, there was violation of this condition as well. However, the District Forum held that keeping in view the nature of violations committed in this case, they could not be considered as fundamental violation of terms and conditions of the policy. Relying on the ratio laid down in the judgement of the National Commission in the case of New India Assurance Co. Vs. Narayan Prasad (2006 CPJ 144 NC), the District Forum partially accepted the complaint in terms of its order reproduced above. As stated, this order was upheld by the State Commission while dismissing the appeal of the petitioner by its impugned order.
4. We have heard learned Shri V.S. Chopra for the petitioner- Company and perused the record. Learned counsel has argued that the fora below have erred in ignoring that the claim of the respondent could not have been allowed because of the violations of the conditions of the policy as also the Motor Vehicles Rules. He submitted that the State Commission and the District Forum failed to appreciate the fact that in the present case there was violation of the contract of insurance and the Motor Vehicles Rules because at the time of the loss, the vehicle, which was yet to be registered with the Registering Authority under the provisions of Motor Vehicles Act, was being used for commercial purpose and was also plying beyond the limit of geographical area of 120 kms. and was not carrying the trade plate. He, therefore, contended that the present case does not fall within the ambit of the instructions to treat it on non-standard basis since it is a clear case of gross violation of the terms and conditions of the policy. Thus, he pleaded that the revision petition be allowed and the impugned order be set aside.
5. Perusal of the record would show that it is established from the evidence before the Fora below that at the time of the robbery, the driver of the vehicle was carrying passengers in the vehicle on hire which amounted to violation of the terms of the policy inasmuch as the vehicle was not meant to be used for commercial purpose. The District Forum taking note of the nature of violation of the conditions of the insurance policy allowed the claim as non-standard for the reason that there is no direct nexus with the violation of the terms of the policy and the robbery. This decision was upheld by the State Commission. The view taken by the Fora below is in line with the view taken by this Commission in Narayan Prasads case (Supra) and other similar cases. In the case of Niharika Maurya Vs. New India Insurance Co. and Ors.(RP No. 3687 of 2010 decided on 21/04/2011) , this Commission has observed thus:
œEven if it is assumed for the sake of argument that the vehicle was being used for commercial purpose in violation of the terms of the policy, it is of no avail to the respondents as the Supreme Court in Nitin Khandelwals case (supra) has held that in the case of theft of vehicle breach of condition is not germane and the insurance company is liable to indemnify the owner of the vehicle in the case of a comprehensive policy for the loss caused to the vehicle. Para 13 of the said judgment reads as under:
œIn the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant 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 respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.?
6. In view of the above discussion, we do not find any infirmity with the impugned order which would call for our interference. We, therefore, dismiss the revision petition in limine with the parties bearing their own costs.