IMPORTANT POINT
It is settled guidelines that even in case of breach of terms, claimant would be entitled to 75% of the claim.

JUDGMENT

Ganguly, J. —

1.Leave granted.

2.This appeal has been filed challenging the judgment and order dated 13.10.2008 of the National Consumer Disputes Redressal Commission (hereinafter, ‘National Commission’) which upheld the concurrent finding of the District and State Consumer Forums that the car at the time of the accident was being driven on hire and was outside the scope of the insurance policy.

3.The appellant who is the original complainant had taken a comprehensive insurance policy in respect of his private car being No. WB-34C/1919 vide policy No.311701/3/99/7172 of 1999 and the complainant paid the insurance premium duly.

4.As per the complainant, United Bank of India’s regional office is his tenant and many of its employees are known to him. One of its employees had approached the complainant to hand over the aforesaid vehicle for a few hours for urgent use by the employees of the Bank. The complainant handed the aforesaid vehicle by way of a good gesture and did not take any rent from the Bank in this regard. The vehicle met with an accident during the subsistence of the policy.

5.The complainant had lodged a claim before the respondent but it refused to allow the claim inter alia on the ground that the vehicle was given on hire and as per the policy terms such use was not permitted and the insured was not entitled to any compensation for such unauthorised use.

6.The District Forum vide its order dated 19.06.2003 dismissed the claim of the complainant after going through the policy. The Forum held that there is a clear condition as to the mode of use of the insured vehicle. The policy was not applicable in case of use of the vehicle for hire, reward or organized racing speed testing and carriage of goods in connection with any trade or business by any third party. Reliance was placed on the report of the office-in-charge of the police station according to which the accident occurred because of the negligence of the driver who had a valid driving licence. Even though no payment was proved, the Forum held that the use of private car without payment of charges could not be imagined. It was coupled with the fact that the Bank Manager of the aforesaid Bank was not examined as a witness by the complainant. The report of the surveyor was that the vehicle was given on a hire basis. However, that report was apparently prepared ex-parte.

7.Aggrieved by the aforesaid order, the complainant preferred an appeal to the State Consumer Disputes Redressal Commission which vide its order dated 16.01.2004 dismissed the appeal as devoid of any merits. It was held that from the documents and circumstances it was established that the car was given on a hire. According to the State Commission, the surveyor’s report was not challenged by the complainant.

8.Against the order of the State Commission, a revision was preferred before the National Commission and the same was dismissed vide order dated 13.10.2008. According to the National Commission there was concurrent finding on the fact that at the time of the accident the car was used for hire and it was not given as a gesture of goodwill. As such repudiation by the insurance company was upheld.

9.This Court cannot, however, uphold the aforesaid stand taken by the insurance company, which has been affirmed by all the fora below.

10.It is not in dispute that the appellant has taken a comprehensive insurance policy nor is it in dispute that the accident took place during the subsistence of the policy. The policy was, therefore, valid on the date of the accident.

11.What is disputed by the insurance company is that the vehicle was not used for personal use but was used by way of being hired, though no payment for hiring charges was proved. However, according to the insurance company, by using the vehicle on hire, the appellant had violated the terms of the insurance policy and on that basis the insurance company was within its right to repudiate the claim.

12.Reference in this case may be made to the