Anoop Kumar Mendiratta, Member

Present appeal has been preferred on behalf of the appellant (opposite party in the main complaint) challenging Order dated 20.08.2018 passed by the Ld. State Consumer Disputes Redressal Commission, Rajasthan, Jaipur in CC No. 135 of 2016 whereby the complaint was allowed and opposite party was directed as under:-

                   '01. The Opponent shall pay to Complainant Rs. 15,75,000/ [Fifteen lakh seventy five thousand] with annual interest @ 9% from date 21.12.2016, the date of institution of complaint.

                   02. The Opponent shall pay to Complainant Rs. 1,00,000/- [Rs. One Lakh] as compensation for mental agony and Rs. 25,000/- [Rs. Twenty five thousand] as litigation cost with annual interest @9% from date 21.12.2016, the date of institution of complaint.

                   03. Aforesaid whole amount shall be paid within two months from date of order.'

2. The respondent and appellant are herein referred to as the complainant and opposite party respectively, as appearing in the complaint for sake of convenience.

3. In brief, complainant purchased a Commercial Vehicle Insurance Policy for the period 17.11.2015 to 16.11.2016 in respect of vehicle no. RJ-32-GA-9078 for assured sum of Rs.21,00,000/-. The vehicle was stolen while the driver of the vehicle, namely Prakash had stopped the vehicle near hotel Haveli, Village Nikhri on NH-98 leading to Delhi and was sleeping inside the vehicle. As per complainant, five miscreants forcibly entered into the cabin of the vehicle and fled with the vehicle abducting the driver. Further, after driving the vehicle for 20-25 minutes, driver was shifted in another vehicle and was thereafter thrown in a ditch about 2 kms. before Bilaspur. The incident was reported to the police by the driver of the vehicle on 19.04.2016 and FIR was registered under Section 395 IPC (dacoity). The incident was also reported by the complainant to the Insurance Company/opposite party through Sh. Mukesh Meena, an agent of the Insurance Company.

4. A surveyor was appointed by the Insurance Company and necessary documents were provided for the purpose of processing the claim. However, the claim was repudiated on behalf of the Insurance Company/opposite party vide letter dated 08.09.2016 as under:-

                   'With reference to your above mentioned claim we had deputed Mis Eminent Solv Serve Insurance Surveyors & Loss Assessors to investigate into the loss. The report of the investigator has since been received

                   - As per the documents received & investigation report, we found that Driver Prakash Gurjar was not holding valid driving license to drive HGV while the vehicle got snatched. As per Driver Clause: Any Person including insured : provided that the person driving holds an valid driving license at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an learner's license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989.

                   - You were engaged in illegal transportation of Bajari/Carzy (crushed stone) at the time of snatching of truck.

                   - You have surrendered only 1 duplicate key of the Insured Truck, 2 original used keys are kept at the office of insured but he has failed to surrender the same.

                   As such, the subject claim would fall outside the scope of the policy conditions. We are, therefore, closing our file as NO-CLAIM.'

5. Aggrieved against the repudiation of claim complaint was preferred by the complainant which stands allowed vide impugned Order dated 20.08.2018 by the learned State Commission. The same has been further challenged by the opposite party by way of present appeal.

6. In the written statement, Insurance Company submitted that the driving licence of the driver deputed on the vehicle was valid from 28.04.2009 to 27.04.2029 for driving only light motor vehicle, while he was driving heavy goods vehicle which was used illegally for carrying bajari/stone etc. at the time of the incident. It was further submitted that the complainant failed to supply second key of the insured vehicle and a duplicate key was provided to the surveyor appointed by the Insurance Company.

7. Learned State Commission vide brief reasons observed that at the time of the theft, the vehicle was stationary and driver was sleeping in the vehicle. In view of above, even if the driver did not possess a valid and effective licence for HGV, the compensation ought to be granted on non-standard basis. Accordingly opposite party was directed to pay Rs.15,75,000/- with interest @ 9% p.a. from the date of the institution of the complaint (21.12.2016) along with compensation of Rs.1,00,000/- and litigation cost of Rs.25,000/-.

8. Learned counsel for the appellant/opposite party contended that violation of the terms and conditions of the insurance policy is apparent since the vehicle was plied by the driver, without possessing a valid driving licence for Heavy Goods Vehicle and was only authorized to drive LGV. He further urged that policy also stood violated as the complainant failed to provide the second original key of the vehicle. Further, the driver failed to take reasonable care for the safety of the vehicle as it was parked on a highway, leaving the key in the ignition. He further pointed out vehicle was engaged in illegal transportation of bajari. In support of the contentions reliance was further placed upon New India Assurance Co. Ltd. v. Ajit Kumar, 2013 SCC OnLine, NCDRC 792; National Insurance Co. Ltd. v. Mohammed Mastan Ali, 2015 SCC OnLine NCDRC 4239 and New India Insurance Company Ltd. v. Prabhu Lal, (2008) 1 SCC 696.

9. On the other hand, contentions were vehemently opposed by the learned counsel for the complainant/respondent and he urged that no endorsement on licence is required to ply a Heavy Goods Vehicle and the driver of the vehicle validly possessed the licence to drive a Light Motor Vehicle which empowered him to drive a transport vehicle or an omnibus with gross vehicle weight not exceeding 7500 k.g. He pointed out that even otherwise, requirement of licence is inconsequential since at the time of dacoity the vehicle was parked and driver was sleeping inside the vehicle. He further pointed out that there was no delay in lodging the FIR by the driver of the vehicle and the claim could not have been rejected merely because the second key of the vehicle as alleged by Insurance Company had not been provided. The carrying of any illegal trade of transportation of bajari as alleged by Insurance Company was denied in absence of any cogent evidence on record. Reliance was further placed upon Kuldeep Singh D. Rana v. National Insurance Co. Ltd., 2013 SCC OnLine NCDRC, 141; National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297; Jitendra Kumar v. Oriental Insurance Co. Ltd., (2003) 6 SCC 420; National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 11 SCC 259 and New India Assurance Co. Ltd. v. Niranjan Singh, 2015 SCC OnLine NCDRC 2859.

10. We have given considered thought to contentions raised and perused the record.

Apparently, in the present case, the vehicle was forcibly removed while the same was parked on the highway near a hotel. In the evidence, it has been duly explained by the complainant that the vehicle had been parked by the driver for the purpose of cooling of tyres near a hotel. We are of the considered opinion that no negligence can be attributed merely because the vehicle was parked at an isolated place since the driver of the vehicle was sleeping inside the vehicle. It is not the case of Insurance Company that the driver connived in commission of offence. Further, one of the keys apparently was in the vehicle at the time of offence for which no adverse inference can be drawn against the complainant. So far as non-submission of second original key of the vehicle is concerned, the same also becomes inconsequential as the vehicle was forcibly taken during commission of offence of dacoity. As such, the second key could not have been misused by the complainant in any manner.

Further, the repudiation of the claim by the Insurance Company on the ground that the vehicle was being used for illegal transportation of bajari and the driver did not possess a valid licence for driving HGV, does not hold any water. It is well settled that in the case of theft of vehicle, nature of use of vehicle cannot he invoked into and Insurance Company cannot repudiate claim on afore-said ground. Reliance may be placed upon National Insurance Co. Ltd. v. Nitin Khandelwal (supra), wherein the repudiation of claim by the Insurance Company on the ground of private vehicle being used as taxi, was negated by the Hon'ble Apex Court. Similarly, the repudiation of claim by the Insurance Company in Amalendu Sahoo v. Oriental Insurance Company, (2010) 4 SCC 536 on the ground that the vehicle was being used on hire was not accepted.

There is no credible evidence on record to assume that the vehicle was being used for illegal purpose for transportation of bajari as alleged by the learned counsel for the opposite party. Admittedly, the driver of the vehicle was in possession of a driving licence though the same was for LGV. It cannot be ignored that there is no substantive delay in lodging the FIR by driver of the vehicle and there is nothing on record to show the connivance of the driver or the complainant in the offence of dacoity. In view of the settled position of law, there does not appear to be any error in settling the claim on a non-standard basis. By a series of pronouncements by the Hon'ble Apex Court, it is settled position of law that the claim cannot be repudiated unless the violation of condition of insurance policy is in the nature of fundamental breach as reiterated in Ashok Kumar v. New India Assurance Co. Ltd., (2024) 1 SCC 357.

The judgements relied by the learned counsel for the Insurance Company are distinguishable.

11. For the afore-said reasons, the appeal is dismissed with cost of Rs.25,000/- (Rupees Twenty Five Thousand Only). The Order passed by the learned State Commission is accordingly upheld. Pending applications, if any, also stand disposed of.

A copy of this order be provided to both the parties, by the Registry.