The breach of policy conditions and the fundamental nature of the breach were central to the court's decision in allowing the appeal.

Mr. Justice M.S. Parikh, President—This appeal arises from order dated 24.7.2001 rendered by the learned Consumer Disputes Redressal Forum, Kheda at Nadiad in Complaint Application No. 254 of 1993 directing the opponent Insurance Company to pay to the complainant Rs. 1,08,000/- with interest @ 8% from 8.10.1992 (date of repudiation) till payment and Rs. 2,000/- by way of compensation on the head of mental agony and expenses. It was the complainant’s case that complainant’s Maruti car in question which was insured with the opponent Insurance Company for the period in question was stolen during night time on 24.9.1990. The opponent Insurance Company repudiated the claim vide letter dated 8.10.1992 on the ground that the car was used for commercial purpose by giving the same for hire. Upon consideration of the material placed on record, the learned Forum came to the conclusion that, although the complainant admitted in the cross-examination that he was giving the car on hire and using it for such purposes and such use of the car was admitted in the FIR, the fact that it was stolen would hardly be disputed by the opponent Insurance Company. The learned Forum considered the decision of the Apex Court in the case of B.V. Nagaraju v. The Oriental Insurance Company Limited, reported in II (1996) CPJ 28 (SC)=1996 (4) Supreme 557, and came to the conclusion that the loss of car by theft cannot be disputed and that such theft could not be correlated with giving of the vehicle in question on hire. The learned Forum, therefore, came to the conclusion that the main contract of insurance could not be terminated in the manner in which the opponent Insurance Company has done. It, therefore, proceeded to pass the impugned order as stated above.

2. In this appeal, the respondent being the original complainant has been served with the notice. The opponent Insurance Company has placed on record purshis Exh. 6 saying that the process of this Commission was served to the original complainant and the amount of Rs. 1,00,000/- which the appellant was directed to deposit as condition to have interim stay of the execution of the impugned order has been deposited. The opponent Insurance Company has also placed on record with Purshis Exh. 7 the acknowledgement of the complainant of the having received the notice of this matter. Thereafter also the matter was adjourned from time-to-time but the complainant has opted to keep away from the proceeding of this appeal. Under such circumstances, this Commission had no alternative expect to hear the learned Advocate for the opponent Insurance Company to consider the submissions made on behalf of the complainant before the learned Forum from the impugned order and to proceed with this order.

3. It would appear from the impugned order that the car in question was insured with the opponent Insurance Company as a private car. The policy of insurance which was issued in favour of the complainant was never a commercial policy or a policy of a car proposed to be used for hire. In that background, the opponent Insurance Company proceeded to investigate the case and found that the car in fact was used for hire. Even before the lerarned Forum, it remained admitted that the car in question was used for hire. This defence of the opponent Insurance Company on facts remained undisputed. With a view to appreciate the legal position, it would be appropriate to note that the policy of insurance in question speaks on the face of it. Unlike in the exclusion clause, limitation as to use on the face of the policy indicated that the car could be used only for social, domestic and pleasure purposes and insured’s own business purpose and the policy would not cover use for hire/reward or for organised racing, pace making, reliability trials, speed testing, carriage of goods (other than samples) in connection with any trade or business or use for any purpose in connection with Motor Trade. It is in this light that the decision of the A