Kesarben                                                ---  Petitioner
     Vs
M/s United India Insurance Co. Ltd.        ---  Respondent

BEFORE: 
Hon'ble Mr. Justice Suhas C.Sen, President, 
Hon'ble Mr. Justice C.L.Chaudhry, Member, 
Hon'ble Mr. Justice J.K.Mehra, Member, Mr. B.K.Taimni, Member

J.K.Mehra, J. Member

              This Revision Petition arises out  of a decision of the Gujarat State Consumer Disputes Redressal Commission, accepting the appeal of the United India Insurance Co. Ltd. and reversing the order of the District Consumer Disputes Redressal Forum, Ahmedabad City.  Some of the salient facts of the case are that the deceased-husband of the Complainant was the  owner of the jeep car bearing registration No. GUF 82 which was insured with the Respondent before us.  The said car was driven either by the Respondent or the driver, named Fataji Bhikhaji Thakore (hereinafter referred to as the  driver).  The driver was engaged by the deceased to drive this vehicle and the driver left Ahmedabad on September 19, 1990, but did not return  the car.  The deceased after waiting  for  the driver to return for a few days lodged a complaint  with the Naranpura Police Station.  Later on, a dead body  was found near village, Ghamasana, which was identified to be dead body of the driver of the said car.  It appears that someone had murdered the driver and stolen the car.   The claim, in the circumstances, was brought against the Respondent for the sum insured.  The relevant documents were also produced.  Because, the insured did not settle  the claim and in the meantime the deceased suffered a heart-attack and died on August 15, 1991, as the claim was not being settled by the Respondent the complaint was filed before the District Forum at Ahmedabad seeking  recovery of the total compensation of Rs.  1.35 lakhs.  The only plea taken  by  the insurer before the District Forum and  the State Commission was that  car was not supposed to be used for hire or reward.  It may be noted that  evidence was not produced before the District Forum in the manner it is required under law.  No one appeared before the District Forum from the Appellant.  The said brother of  the deceased was also not examined.   In  this  case, the report (of the Claims Minimisation Bureau) has also remained unproved since the Investigator has not been produced and there is no  way in which the veracity of his report could be tested or decided.  By it would not be correct  to  assume that there could have  been some passengers being carried in the  said jeep at the time of the accident as pleaded on behalf of the Insurance Company.  There is nothing on record to show that on the fateful day the  driver carried any passengers in that car.  Even the amount which was given to him for diesel appears to have been  already been accounted for  by  the  driver.  Even if  it is  assumed that the brother of the deceased had some time been plying his brother's vehicle on certain occasions,  no evidence  has been produced to establish that this  was being  done on regular basis  with the full  knowledge and connivance of the deceased and if such were the facts then the State Commission should have   looked into the guidelines for settlement of the non-standard claims which,  inter alia, provided:

GUIDELINES FOR SETTLEMENT OF NON-STANDARD CLAIMS
1.  Whether a  breach of warranty or policy condition (hereafter referred to as breach) arises and where such breach is  of  a technical nature or is evidently beyond the control or knowledge of  the insured or  is  considered after rectifying the policy and collecting additional premiums  where due.   In settling the claim, a deduction may be made from the assessed claim amount equivalent to the extra premium  due for three years or  three times the  additional premium  due for voyage which would have been charged  had correct information  been available originally.

2.  Where the breach is material  to the loss or  where an act of  the insured or his agent has contributed to such a breach in such cases if the insured has acted with  the  best of intentions  and has not consciously committed the breach or where the legal question of liability is in doubt, payment may be considered on  merits of each case, up to a maximum of 75% of the assessed amount of loss.

"Where the breach is material to the loss and the amount determined to be payable  up to the maximum of 75% of  the assessed amount of loss is  found to be  higher than what would  be payable had the claim been dealt with as one where the breach is of a  technical nature, the compromise settlement should be made only for the lower amount." 

PROCEDURE
a.  Additional premium for the unexpired  period of the risk for rectifying the breach  should be collected separately on pro-rate basis and credited to premium account.

b.  The amount equivalent to 3 years difference in premium  or three times the additional premium due for the voyage or 25% of the assessed  loss as per guidelines be deductedfrom the claim amount as assessed by the surveyor and the net amount of the claim paid to the claimant be debited to the claim paid  account.

"Please note that unless additional premium for rectification of the policy for the unexpired period as per (a) above  is  paid by the insured, the claim cheque need not be released."

            The question of liability of the insurer is dealt with by Hon'ble Supreme Court in more than one decision.  The Hon'ble Supreme Court in the case of New India Insurance Co. Ltd. Vs. Kokilaben Chandravadan & Ors. (1987) 2 SCC 654 observed as under:

"...When the option is between opting for a view which will relieve the distress and  misery of the victims of the accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability  of the insurer in regard to the occupational hazard undertaken by him, by way of business activity, there is hardly any choice.  The Court cannot but opt for the former view.  Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in  obeisance to the doctrine of `reading down' the exclusion clause in  the light of the `main purpose' of the provision so that the `exclusion clause' highlighted earlier.   The effort must be to harmonise  the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carter's Breach of Contract" vide paragraph 251.  To quote:

"Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually  referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisor's contractual obligations.  For example, in Glynn Vs. Margetson & Co.,  1893 AC 351, 357, Lord Halsbury, L.C. stated: It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole  instrument and not at one part of it only.  Looking at the whole instrument, and seeing what one must regard... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.

               Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societe d' Armement Maritime S.A.Vs. N.V.Rotterdomsche Kolen Central, 1967 1 AC 361.  Accordingly, wide  exclusion clauses will be read down to the extent to which they are inconsistent with the main  purpose, or object of the  contract".

                To the same effect is another decision by Hon'ble Supreme Court in the case   of B.V.Nagaraju Vs. M/s Oriental Insurance Co. Ltd. (1996) 2 CPJ 18 (SC).

                In this case reliance has been placed only on the report which has remained unproved and no affidavit of the  person who has investigated the case on behalf of the insurance company has been produced.  In such circumstances,  it cannot be accepted that the facts alleged by theinsurer are proved on record.  A reference in this behalf is  made  to  a decision of this Commission  in United India Insurance Co. Ltd. Vs. Dashrathlal Jethabai Patel (1996) 2 CPJ 77.

              The types of claims which can be settled as non-standard under the guidelines are set out hereunder:
"Non-Standard Claims
 Following types of claims shall be considered as non-standard and shall be settled as indicated  below after recording the reasons:

        Description                                    Percentage of settlement
i)  Under declaration                            Deduct 3 years difference in 
    of Licensed carrying                         premium from the amount 
     capacity                                         of claim or deduce 25% of
                                                          claim amount whichever is
                                                           higher.

ii) Overloading of vehicles                     Pay claims not exceeding
     beyond licensed                             75% of admissible claim.
     carrying capacity.

iii) Any other breach of                        Pay up to 75% of admissible
    Warranty condition                          claim.
     of Policy including
     limitation as to use.

             For breach of warranty/conditions which  do not involve any saving in premiums or any additional exposure to the insurers such claims be considered as Standard Claims, eg. Route Permit."

                This Commission had also dealt with   the settlement of certain claims as non-standard claims in the case of Poly Mat India Pvt. Ltd. and Anr. Vs. National Insurance Co. Ltd. and  others reported as 2000 CPJ 64.  There, in that case, the plea was as to whether a particular claim was covered by the policy when a part of the factory fell outside the factory shed.  After examining the facts, this Commission had come to the conclusion that could  be settled as a non-standard claim at 75%.

                In the case of Ashok Gangadhar Maratha Vs. Oriental Insurance  Co. Ltd. reported in (1999) 4 LRI 1049 what was required to   be  proved was the use of  the vehicle at the given moment.  In the   present case, there is no evidence whatsoever  on record about the use to which the vehicle was put at the time of its disappearance.  In any event, there is nothing on record to show that the vehicle was at the  material time being plied as a taxi with the consent of the owner.

                   In the light of the  above  discussion, we feel that the State Commission was  not justified in upsetting the decision  of the District Forum.  Accordingly, the impugned order is set aside, but keeping in view the aforesaid discussion, it is directed that the claim of the  Petitioner be settled by the insurer at 75%, i.e., 75% of Rs. 80,000/-, i.e. Rs. 60,000/-.  Keeping in view such long delay in  affording relief to the original owner, we are not inclined to disturb the award of Rs. 5,000/- as compensation and Rs. 1,000/- as costs.  We are, however, not inclined to retain the rate of interest at 18%.  We think that the ends of justice will be met if the rate of interest is fixed at 12% per annum simple.  Ordered accordingly.  However,  in view of the peculiar facts and circumstances of  this case, there will be no order as to costs in this Revision Petition.  This Revision Petition is disposed of in the above terms.