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the vehicle was covered for private use but was being used for commercial purpose. The driver of the vehicle was not in a fit state of health to drive the vehicle on the main roads. The incident in question was not the first and the solitary incident of this driver feeling suddenly unwell while driving. In the circumstances, the claim of the petitioner could not have been accepted by the insurance company. Both the Fora below have given their concurrent findings against the petitioner. In this context, we wish to make it clear that while we agree with the dismissal of the complaint of the petitioner on the ground of violation of condition of the policy with reference to the commercial use of the vehicle even though its insurance cover was for private use and the vehicle being driven by a driver who was not fit in a state of health and hence not competent to drive the vehicle, we do not agree with the finding of the District Forum to the effect that the petitioner was not a Consumer because he was using the vehicle for commercial purpose. In view of judgment of this Commission in the case ofHarsolia Motors, the petitioner has to be treated as a consumer qua the insurance company providing insurance cover for his vehicle even if it was being used for commercial purpose and hence for earning profits. This, however, does not obliterate the fact that by using it for commercial purpose, there was violation of the insurance policy, which had been taken for private use. Consequently, we do not find any reason to interfere with the impugned order and hence dismiss the revision petition with no order as to costs.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

 

REVISION PETITION NO.3122 OF 2007

(From the order dated 19.07.2007  in  First Appeal No.546/2007 of the

State Consumer Disputes Redressal Commission, U.T. Chandigarh)

Chander Parkash

S/o Sh. Shriram

R/o H. No.1260, Spattu Road,

Ambala City.                                                     …… Petitioner

Versus

 

 

ICICI Lombard General Insurance Co. Ltd.

SCO No. 174-175, Sector 9-C,

Chandigarh.                                                   ……. Respondent

 

 

BEFORE:

HON’BLE MR. ANUPAM DASGUPTA, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA,  MEMBER

For the Petitioner          :    Mr. K.C. Dua, Advocate

For the Respondent     :    Mr. Anuj Kumar Chauhan, Advocate

 

PRONOUNCED ON:    13th   JULY, 2012

 

ORDER

 

PER SURESH CHANDRA, MEMBER

 

In this case, the insurance claim of the petitioner Chander Parkash in respect of his vehicle, namely,  Tata Sumo bearing Registration No. HR-37-B-1646 was repudiated by the respondent-insurance company.  The vehicle was duly insured with the respondent for the period from 20.01.2006 to 19.01.2007 for Rs. 3.40 lakh and the accident took place on the night intervening 08/09.02.2006 when the driver of the vehicle was driving the said vehicle from Ambala to Mohali.  Admittedly, the driver abruptly felt giddy and was so perplexed that the vehicle went out of his control and fell into a pit.  The driver had to be removed and taken to the Government Medical College Hospital at Chandigarh.  The driving licence of the driver, Suresh Kumar was valid upto 21.03.2007. Alleging deficiency in service, the petitioner lodged a complaint with the District Forum for direction to release the claim for Rs.3,16,559/- along with interest @ 18% from the date of accident till realization, compensation of Rs.1 lakh and Rs.5500/- as litigation expenses.

2.      The respondent company resisted the complaint and filed its reply stating that the vehicle in question was insured as private vehicle but was being used for commercial purposes and further that the driver was having trouble of getting drowsiness while driving the vehicle and as such was not competent to drive the vehicle.  Denying any deficiency on its part, the insurance company pleaded for dismissal of the complaint.

 

3.      On appraisal of the pleadings and the evidence adduced by the parties, the District Forum vide its order dated 30.04.2007 dismissed the complaint being meritless.

4.      Aggrieved by this order, the petitioner approached the State Consumer Disputes Redressal Commission, U.T. Chandigarh (‘State Commission’, for short) by filing an appeal against the order but the appeal also came to be dismissed by the State Commission vide its order dated 19.07.2007 against which the petitioner has filed the present revision petition.

5.      We have heard Mr. K. C. Dua, Advocate for the petitioner and Mr. Anuj Kumar Chauhan, Advocate for the respondent.

6.      Learned counsel for the petitioner has submitted that the State Commission has passed the impugned order without considering the fact that the insurance company had repudiated the claim solely on the ground that the vehicle was used for commercial purpose but the State Commission dismissed the complaint by making out a new ground that even though Suresh Kumar, the driver of the vehicle had obtained licence, he was feeling giddy and was not competent to drive the vehicle.  He, therefore, submitted that this conclusion of the State Commission was totally erroneous.  Learned counsel for the petitioner further argued that the dismissal of the claim by the District Forum on the ground that the vehicle was being used for commercial purpose and hence, the petitioner was not a Consumer was contrary to the decision of the National Commission in the case of Harsolia Motors Vs. National Insurance Company (2005 (1) CPJ 26 NC) because even if the vehicle is being used for commercial purpose the vehicle had been insured against accident, etc., and as held by the National Commission in the case of Harsolia Motors insurance cover by itself cannot be directly related to the generation of profits and hence, the insurance company having accepted to insure the vehicle, cannot be allowed to repudiate the claim on the ground that it was being used for commercial purpose.  He further added that it is now settled law that even if the vehicle was registered as a private car and is being used as a taxi its claim for damage at the time of accident cannot be repudiated for this reason.  Besides this, he submitted that the premium for the private vehicle and commercial vehicle is almost the same and hence in case damage to the car takes place, the insurance company, does not suffer loss in any way on account of breach of this condition.

7.      Per contra, learned counsel for the respondent submits that the petitioner had taken the policy for the vehicle as a vehicle for private use under “Private Motors Package”.  In view of this, it has not been denied that the vehicle was being used for commercial purpose.  This was in gross violation of the condition of the insurance cover and as such the respondent company was right in repudiating the claim in question.

8.      In support of his submissions, the petitioner has placed on record a copy of the Cover Note No. 1320074.  It confirms that the vehicle in question was covered under a “Private Motors Package”.  At the same time, admittedly, the vehicle was registered as a passenger car and was being run for commercial purpose by the petitioner.  The District Forum while dismissing the complaint of the petitioner as meritless, has given the following reasons in its order:-

“… All this shows that the case set up by the complainant in the complaint and as reiterated by him in his affidavit dated 04.05.2006 and documentary evidence placed on the record by him is that he had purchased and he was running the Tata Sumo vehicle in question for commercial purpose by employing Sh. Suresh Kumar who as per his own information and knowledge was not competent to drive the vehicle on the main road as he suddenly and abruptly could feel giddy and resultantly could lapse into being perplexed state of mind.”

9.      The State Commission while confirming the order of the District Forum and dismissing the appeal of the petitioner has recorded the following reasons in favour of the impugned order:-

“10. Copy of registration certificate annexure C.1 which has been placed on file shows that Sh.Chander Parkash is owner of vehicle bearing No. HR-37-B-1646 and it was insured with the respondent for Rs.3.40 lacs vide cover note dated 20.01.2006, annexure C-2.  It is also not denied that the vehicle on the night intervening 8/9-2-2006 when it was being driven by Sh.Suresh Kumar, driver from Ambala to Mohali was involved in the accident in the way.  It is also admitted case of the appellant that Suresh Kumar while driving the vehicle felt giddy and became perplexed and as a result, vehicle became uncontrolled and fell into a pit, regarding which DDR was lodged in the Police Station.  It is also admitted in the complaint that earlier also Sh.Suresh kumar had acted in the same manner.  This means that it was not solitary insurance when Suresh Kumar became giddy and perplexed but was having fits earlier also.  This fact is proved from DDR No.28 dated 11.2.2006 recorded in P.S. Sector-31, Chandigarh.  It positively shows that he was not physically competent to drive the vehicle.  He may have obtained driving licence by concealing this fact of his illness.  Since, he was not physically competent to drive and Chander Parkash employed him driver with eyes wide open, so, he is liable to suffer the consequences if the driver Suresh Kumar had thrown the vehicle in a pit.  Respondent is not liable to pay any compensation because Suresh Kumar was not physically competent to drive.”

10.    In view of the above, it is clear from the undisputed facts of this case that the vehicle was covered for private use but was being used for commercial purpose.  The driver of the vehicle was not in a fit state of health to drive the vehicle on the main roads.  The incident in question was not the first and the solitary incident of this driver feeling suddenly unwell while driving.  In the circumstances, the claim of the petitioner could not have been accepted by the insurance company.  Both the Fora below have given their concurrent findings against the petitioner.  In this context, we wish to make it clear that while we agree with the dismissal of the complaint of the petitioner on the ground of violation of condition of the policy with reference to the commercial use of the vehicle even though its insurance cover was for private use and the vehicle being driven by a driver who was not fit in a state of health and hence not competent to drive the vehicle, we do not agree with the finding of the District Forum to the effect that the petitioner was not a Consumer because he was using the vehicle for commercial purpose.  In view of judgment of this Commission in the case ofHarsolia Motors, the petitioner has to be treated as a consumer qua the insurance company providing insurance cover for his vehicle even if it was being used for commercial purpose and hence for earning profits.  This, however, does not obliterate the fact that by using it for commercial purpose, there was violation of the insurance policy, which had been taken for private use. Consequently, we do not find any reason to interfere with the impugned order and hence dismiss the revision petition with no order as to costs.

……………….……………

                                                       (ANUPAM DASGUPTA)

                                                                                                                                                PRESIDING MEMBER

 

  ……………….……………

                                                       (SURESH CHANDRA)

bs                                                                                                                                                                         MEMBER

 

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