Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
V.B. Gupta, Presiding Member and Vinay Kumar, Member
IFFCO TOKIO GENERAL INSURANCE CO. LTD. - Appellant
Versus
RAM GOPAL SONI AND ORS. - Respondents
Revision Petition No. 170 of 2012 along with IA Nos. 1, 2 of 2012 against Order dated 17.8.2011 in Appeal No. 173 of 2011 of State Commission, Chhattisgarh
Decided on : 31-05-2012
Ms. Shantha Devi Raman, Advocate, for the Appellant; None, for the Respondent
The burden of proof to prove the exclusion clause of the insurance policy shifted to the insurance company, and positive and cogent evidence was required to discharge such burden.
Headnote:
Insurance - Vehicle Insurance - Sections 379/34 of IPC - FA No. 321 of 2005 - The Motor Vehicles Act, 1988 - The Consumer Protection Act, 1986
Fact of the Case:
The complaint was filed by the vehicle owner against the insurance company for not settling the claim after the vehicle was stolen. The insurance company claimed that the vehicle was being used for hire or reward, in violation of the insurance policy.
Finding of the Court:
The court found that the insurance company failed to produce evidence to support its claim that the vehicle was being used for hire or reward. The court also rejected the insurance company's plea regarding the obligation to inform the company 'immediately' about the theft.
Issues: The main issue was whether the vehicle was being used for hire or reward, and the interpretation of the term 'immediately' in the insurance policy.
Ratio Decidendi: The court held that the burden of proof to prove the exclusion clause of the insurance policy shifted to the insurance company, and positive and cogent evidence was required to discharge such burden. The court also rejected the modification of the term 'immediately' in the policy by the insurance company.
Final Decision: The revision petition was dismissed, and the order of the State Consumer Disputes Redressal Commission was confirmed.
ORDER
Vinay Kumar, Member - IFFCO TOKIO General Insurance Co. Ltd., hereinafter referred to as RP/OP-1 has filed this revision petition challenging the order of Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in Appeal No. 173 of 2011. The State Commission has dismissed the appeal of RP/OP-1 and upheld the order of the Consumer Disputes Redressal Forum, Raipur, which had allowed the complaint of respondent No. 1/Complainant, Ram Gopal Soni in CC No. 165/2010.
2. The revision petition has been filed with delay of 52 days. The application filed on behalf of the RP/OP-1 seeking condonation of this delay, has been perused. The delay is mostly explained on the ground of movement of papers between the Bhopal and Delhi offices of the petitioner on the one hand and Counsel and the petitioner Company, on the other. Considering the explanation, the delay is condoned.
3. The matter pertained to a Mahindra Scorpio Vehicle, owned by the Complainant which was comprehensively insured with RP/OP-1. During the currency of the insurance policy, the vehicle allegedly got stolen on 8.1.2009, while on a visit for Narmada Darshan. Allegedly, the vehicle was stolen by two persons, who had obtained a lift in the vehicle on the previous day. It was claimed that the driver had consumed some alcoholic drink with them, which had made him unconsciousness. The police search for the stolen vehicle did not lead to any recovery. Yet, the Insurance Company did not settle the claim. Therefore, a consumer complaint was filed on 26.3.2010.
4. The case of the RP/OP-1 before the District Forum was that in violation of the terms of the insurance policy, the vehicle was being used by the Complainant for hire or reward. In this behalf, the investigator appointed by OP-1 had given a detailed report. The vehicle had done 49019 kms. as on 29.12.2008, which was considered very high in relation to the date of its purchase. Therefore, an adverse inference was drawn by the investigator that the vehicle was being plied for hire or reward, on the date of the accident.
5. On this point, the District Forum has made a clear observation that OP-1 was not able to produce any evidence, other than the report of the investigator, in relation to their claim that the vehicle was being used by the Complainant for hire or reward. The District Forum also observed that on the incident in which the vehicle was taken away from the driver after getting him drunk, a report had been lodged with Police Station Khatia, Mandla District, under Sections 379/34 of IPC. The police had filed a closure report, after their efforts to recover the vehicle had failed. This itself showed that the vehicle was actually stolen.
6. The State Commission has observed that the entire case of the Insurance Company/OP-1 rests on the report of the private investigator, whose report has been considered by the District Forum. In this report, the inference that the vehicle was being used for commercial purpose has been drawn by the investigator only on the basis of the fact that the vehicle had done about 50,000 kms, in a short span of time. Like the District Forum, the State Commission also rejected this contention of the Insurance Company with the following observations:
"When Insurance Company wanted to take shelter of any exclusion clause of the Insurance policy then burden of proof to prove that exclusion clause totally shifted to the Insurance Company. Positive and cogent evidence was required to be led for discharging such burden, but in the facts of the present case, no such evidence has been adduced and so merely on the basis of long distance traveled by the vehicle, it cannot be held established that it was used for hire and reward."
7. A perusal of the grounds of challenge to the impugned order shows that the revision petitioner has chosen to completely ignore the view concurrently taken by the State Commission as well as the District Forum on the main contention before them. Both have held that besid
