JUDGMENT

JUSTICE A.K. SAMANTARAY, PRESIDENT — This First Appeal has been preferred by the Branch Manager, Oriental Insurance Co. Ltd.,

Barbil Branch and the Divisional Manager, Oriental Insurance Co. Ltd., Rourkela in the district of Sundargarh through their Chief Regional Manager, Saheed Nagar, Bhubaneswar assailing the judgment and order of the District Forum, Keonjhar dated 17.11.2009 passed in C.C. No. 45 of 2008. By the impugned order, the District Forum has directed the appellants-opposite parties to make payment of Rs.2,52,250.60, which is 75% of the insured value of the vehicle, i.e., Rs.3,36,550/-, and has further directed payment of a consolidated sum of Rs.20,000/- as compensation for mental agony and cost of litigation. The aforesaid amounts have been directed to be paid within one month from the date of the order, failing which they would carry interest at the rate of 8% per annum till the actual payment.

2.The complaint was filed by the complainant-respondent Hasina Khatun. It was stated in the complaint that she is the owner of a Mahindra Marshal vehicle bearing number OR 09D 0261. The vehicle was insured with the Oriental Insurance Co. Ltd. at its Barbil branch. The policy was valid from 13.07.2004 to 12.07.2005 under private car package. The said vehicle was hypothecated to Allahabad Bank, Barbil Branch as with the financial assistance of the said bank the vehicle was purchased. On 11.09.2004, when the son of the complainant was on way from Ranchi to Barbil, some miscreants at the point of gun took away the vehicle from him by tying him to a nearby tree. Subsequently the son of the complainant was rescued and police drew up FIR. After the incident, the complainant submitted claim form to the Insurance Company and the latter appointed surveyor for investigation and assessment of loss. The surveyor assessed the loss at Rs.3,35,530/-. But the Insurance Company repudiated the claim on 26.02.2006 on the ground that there was violation of policy condition inasmuch as the vehicle was being used for hire purpose whereas the policy was taken for private use. Thereafter, the complainant moved the Insurance Ombudsman, who also upheld the repudiation of the claim. Subsequently, the complainant filed the consumer complaint claiming Rs.4,96,450/-.

3.The appellants-opposite parties entered appearance and filed written version wherein they refuted any deficiency on their part in dealing with the claim of the complainant. They took the definite stand that the vehicle in question was used for hire purpose, which was in violation of the terms and conditions of the policy as it was insured as a private vehicle. It has been admitted that the surveyor had assessed the loss at Rs.3,35,530/-, but repudiation was made on the sole ground of violation of policy conditions. The other stand that has been taken in the written version is that the complaint is not maintainable as it is hit by the law of res judicata since the complainant had already moved the Insurance Ombudsman, who has rejected the claim and upheld the decision of the Insurance Company.

4.We have heard Mr. G.P. Dutta, learned counsel appearing for the appellants and Mr. P.K. Sahoo for the respondent extensively. We have also carefully gone through the impugned judgment and we find that the same is based on the decision of the Hon’ble Apex Court in National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 40 OCR (SC) 642. In the reported decision, the Hon’ble Apex Court held as under:-

“In case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.”

In the said case, which had gone from the District Forum up to the Apex Court, the District Forum, finding that the vehicle, which was insured for personal use, was used as a taxi, even on the face of theft of it, had dismissed the complaint. The District Forum held that the complainant had violated the terms and conditions of the insurance policy and s