State Consumer Disputes Redressal CommissionSh. Dharmendra Tulli vs National Insurance Company Limited on 10 August, 2009STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
                         DEHRA DUN

                    FIRST APPEAL NO. 145 / 2007

Sh. Dharmendra Tulli S/o Sh. Ravinder Nath Tulli
R/o Shakti Nagar, Kashipur
District Udham Singh Nagar
                                            ......Appellant / Complainant
                                Versus

Branch Manger, National Insurance Company Limited
Station Road, Kashipur
District Udham Singh Nagar
                                       .....Respondent / Opposite Party

Sh. T.S. Bindra, Learned Counsel for the Appellant
Smt. Anjali Gusain, Learned Counsel for Respondent

Coram: Hon'ble Justice Irshad Hussain, President
       C.C. Pant,                      Member
       Smt. Kusum Lata Sharma,         Member

Dated: 10.08.2009

                               ORDER(Per: Justice Irshad Hussain, President):This is complainant's appeal against the order dated 25.04.2007
passed by the District Forum, Udham Singh Nagar, dismissing
consumer complaint No. 113 of 2005, whereby the complainant was
disentitled to receive compensation from the insurance company by
way of indemnification of the loss sustained due to accident of his
insured tractor No. UA06C / 7598, on the ground that the insurance
company has not made any deficiency in service in repudiating the
claim on account of use of the insured tractor at the time of the
accident for purpose other than agriculture.         The District Forum
rejected the contention of the complainant that at the time of the
accident on 06.12.2004, the insured tractor was being used by the
complainant for transporting sand in the trolley, to be used in the
construction of his tubewell in his agricultural land. In accepting the2contention of the insurance company, the District Forum also took
into account the fact that the complainant's tractor was registered for
use only for agricultural purpose and that at the time of the accident, it
was not so being used by the complainant. The insurance policy for
the period from 19.10.2004 to 18.10.2005 was issued under Farmer's
Package Insurance by the respondent - insurance company.
Aggrieved by the order impugned, the complainant preferred this
appeal and urged that under all circumstances, the insurance company
was liable to pay the claim on non-standard basis.2.    Having heard the learned counsel for the parties in the light of
the facts, circumstances and legal aspects of the case, we may state at
the outset that the contention of the complainant that the insurance
company was liable to pay the claim on non-standard basis, is legally
tenable and the appeal is fit to be allowed accordingly.3.    The reason for the aforesaid inference is that the decision of the
Hon'ble Apex Court in the matter ofNational Insurance Company
Ltd. Vs. Nitin Khandelwal; IV (2008) CPJ 1 (SC), pressed into
service by the learned counsel for the complainant, comes to the
rescue of the complainant on account of the principle of lawlaid down
inthe said decisionthat nature of the use of the vehicle can not be
looked into while considering as to whether or not there is breach of
the insurance policy condition and the insured's claim can not be
repudiated on that basis. The facts of the reported case were that
according to the insurance company, the insured's vehicle was being
used as a taxi against the terms and conditions of the insurance policy
and while it was so used, its theft was committed. Claim preferred
had been repudiated on the ground of violation of the terms of the
insurance policy. The District Forum accepted the contention of the
insurance company as such and rejected the claim of the insured. On3an appeal, the Madhya Pradesh State Consumer Disputes Redressal
Commission, observed that the theft of the vehicle has not been
denied by the insurance company, although the vehicle was being
used contrary to the terms and conditions of the insurance policy.
Placing reliance on the reported decisions, the State Commission
observed that the claim of the insured ought to be settled on
non-standard basis and the insurance company was, thus, directed to
pay 75% of the insured sum with interest to the insured. The Hon'ble
National Commission in the revision petition filed by the insurance
company, affirmed the said order of the State Commission and
thereafter the insurance company preferred an appeal before the
Hon'ble Apex Court. Considering the facts and circumstances of the
case and on the basis of the settled legal position, the Hon'ble Apex
Court observed that the view taken by the State Commission can not
be faulted and the National Commission has correctly upheld the said
order of the State Commission. There can be no gain saying that the
principlelaid down bythe Hon'ble Apex Court, squarely apply to the
facts of the instant case, because the claim had been repudiated by the
insurance company on the ground that the tractor was being used
contrary to the terms and conditions of the insurance policy and under
such circumstances, the District Forum could have allowed the claim
on non-standard basis instead of full reimbursement of the loss
sustained by the complainant. The appellant also rightly contended
that under all circumstances, he was entitled to be paid the claim on
non-standard basis. In the face of the facts of the case, we need not
enter into discussion with regard to the other facts as to where and
how the accident occurred and for which purpose, the sand was being
transported by the complainant by his tractor-trolley at that time. In
short, the complainant was entitled to be paid 75% of the claim under
the terms and conditions of the insurance policy.A recent decision of
the Hon'ble National Commission in the case ofOriental Insurance4Co. Ltd. Vs. Sanjeev Kumar; II (2009) CPJ 135 (NC), also
endorses the same principle.4.    The tractor was insured for sum of Rs. 3,61,000/- and the
insurance company's surveyor vide his report dated 04.02.2005,
recommended settlement of the claim at sum of Rs. 2,75,000/- on net
of salvage loss basis, which approximately comes to 75% of the
assured sum, claim for which has been made by the complainant.
Further, learned counsel for the insurance company drew attention to
the consent letter submitted by the complainant on 12.01.2005 and
which read as under:"Subject to policy term, condition, I hereby
             submit my consent to final surveyor in
             respect of my tractor No. UA06C/7598,
             Mahindra & Mahindra tractor, which met
             with an accident on 06.12.04. I agree with
             full and final settlement of loss on net of
             salvage basis for Rs. 2,75,000/- (Rupees
             Two Lacs Seventy Five Thousand only)."5.    In view of the insured's consent letter, the surveyor in his
report, has also made reference of it and submitted it in original to the
underwriters for settlement of the claim under the terms and
conditions of the policy of insurance.      Considering the insured's
consent letter and the assessment of loss on net of salvage loss basis,
which approximately comes to 75% of the amount of claim made, we
are of the view that the complainant need to be awarded compensation
to that extent by way of indemnification of the loss sustained by him
on account of the accident of the insured tractor.6.    For the reasons aforesaid, this appeal succeed and is fit to be
allowed.57.    Appeal is allowed. Order impugned dated 25.04.2007 of the
District Forum is set aside. Consumer complaint No. 113 of 2005 is
partly allowed and the respondent - insurance company is directed to
pay sum of Rs. 2,75,000/- to the complainant together with interest
@7% p.a. from the date of filing of the complaint till payment and
Rs. 2,000/- as litigation expenses.(SMT. KUSUM LATA SHARMA)        (C.C. PANT)   (JUSTICE IRSHAD HUSSAIN)
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