State Consumer Disputes Redressal Commission
Reliance General Insurance Co Ltd vs Manjula Shivaji Shinde on 27 June, 2019
1 (A/15/1043)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/15/1043
Reliance General Insurance
Company Limited
4th floor, Chintamani Avenue,
Off Western Express Highway,
Next to Virwani Industrial Estate,
Goregaon(E),
Mumbia 400 063. Appellant(s)
Versus
Smt.Manjula Shivaji Shinde
R/at Saishradha Chawl,
Jijamata Nagar,
Kamgar Hospital Road,
Wagle Estate, Thane Tal.,
District Thane. Respondent(s)
BEFORE:
Smt.Usha S.Thakare, Hon'ble Judicial Member
Dr.S.K.Kakade, Hon'ble Member
PRESENT:
For the
Appellant(s): Advocate Smt.Varsha Chavan
For the
Respondent(s): Advocate Shri.Nitin Patil
ORDER
Per: Hon'ble Smt.Usha S. Thakare, Presiding Judicial Member
[1] Being aggrieved by the order dated 24/06/2015 passed by the learned District Consumer Disputes Redressal Forum, Thane in consumer complaint No.CC/11/210 original opponent /Reliance General Insurance Co. Ltd. has filed present appeal. By the order under challenge learned District Forum was pleased to allow consumer complaint bearing No.210 of 2011. It is declared that opponent/present appellant is guilty of deficiency in service.
2 (A/15/1043) Opponent/appellant was directed to pay amount of Rs.2,25,000/- to the original complainant with interest @6% p.a. from 04/05/2011. Amount was to be paid on or before 31/07/2015. It was further made clear if order is not complied on or before 31/07/2015 amount will carry interest @9% p.a. Opponent/appellant was directed to pay amount of Rs.10,000/- towards costs of litigation prior to 31/07/2015.
[2] Facts giving rise to present appeal in short are as under-
Complainant Smt.Manjula Shivaji Shinde has filed consumer complaint bearing No.CC/11/210 by alleging deficiency in service against opponent Insurance Company. Complainant had filed claim with opponent Insurance Company due to theft of her vehicle which was insured with opponent under insurance policy. Complainant had taken Insurance Policy for her vehicle Scorpio car bearing registration No.MH-16-R-3538. Said policy was valid for the period from 27/02/2009 to 26/02/2010. Due to financial difficulty complainant decided to sell her vehicle to Mr.Janardan Shivalkar resident of Bhayander for consideration. She obtained advance of Rs.20,000/- from Janardan Shivalkar. Proposed purchaser wanted to take test drive of the car. At that time son of complainant Vikas Shinde was with him. Suddenly one truck came from front side. Vehicle dashed against truck. Janardan Shivalkar asked son of complainant to get down. He went to truck driver and asked him to stop. Truck driver did not stop the truck. Son of complainant came back to Janardan Shivalkar. He found that Janardan Shivalkar fled away with the car of the complainant. Vikas Shinde lodged police complaint on 21/12/2009 at Kapurbawdi police station. Police registered the crime. However, during investigation vehicle of the complainant was not found out so also Janardan Shivalkar could not be traced. Police arrived at conclusion that offence u/s 406 of I.P.C. was committed. As accused was not traced 'A' summary was filed by police. Complainant filed claim with opponent under valid Insurance Policy. However, claim of complainant was repudiated on the ground that crime u/s 3 (A/15/1043) 406 of I.P.C. was committed. It falls under exclusion clause and therefore claim was rejected. Therefore, complainant had filed consumer complaint against opponent for claiming amount of Rs.4,75,000/- with interest @12% p.a. She also claimed amount of Rs.5,000/- towards compensation for mental pain and agony and Rs.5,000/- towards costs of litigation.
[3] Opponent opposed the consumer complaint by filing written version and denied all adverse allegations. It is specifically denied that the complainant is entitled for claim under the insurance policy. It is the stand of the opponent that claim was rightly rejected and opponent is not guilty of deficiency in service. It is submitted that son of the complainant had given key of vehicle to unknown person. He is guilty of negligence. Because of his negligence insured vehicle was stolen. Complainant did not take proper steps to safeguard the insured vehicle. Son of complainant left the vehicle by keeping keys inside. Therefore, there is no question of payment of claim. Offence was registered u/s 406 of I.P.C. for criminal breach of trust and it will not fall under the definition of 'theft'. Consumer complaint is liable to be dismissed.
[4] Both the parties led their evidence by filing affidavits of evidence and relied on several documents. After considering the evidence adduced on behalf of both the parties and after giving thoughtful consideration to the argument advanced by both the parties, learned District Forum was pleased to allow the consumer complaint. Being dissatisfied with the order original opponent/Insurance Company is before this Commission in appeal.
[5] Heard learned Counsel Smt.Varsha Chavan for the appellant and learned Counsel Shri.Nitin Patil for respondent. It is vehemently urged on behalf of appellant that order passed by the learned District Forum is illegal and incorrect. It is against the facts and merits of the case. Learned District Forum failed to appreciate contents of repudiation letter dated 09/12/2010 in proper perspective. Learned District Forum ignored the fact that there is no 4 (A/15/1043) master servant relationship between the respondent and Mr.Janardan Shivalkar, the relationship is principal to principal basis. Learned District Forum should have considered the definition of 'criminal breach of trust'. The order passed is without merits. Illegal order is liable to be set aside by allowing present appeal to avoid injustice. Learned Advocate for respondent supported the order and findings of learned District Forum and has requested to dismiss the appeal for want of merits.
[6] It is an admitted fact that the respondent/complainant is owner of vehicle-Scorpio bearing registration No.MH-16-R-3538. She had taken insurance policy in respect of the said vehicle after payment of valid premium to the opponent. Insurance policy was valid for the period of 27/02/2009 to 26/02/2010. Insured vehicle was stolen when Janardan Shivalkar was taking test drive. Offence was registered at police station for criminal breach of trust u/s 406 of I.P.C. During investigation police failed to trace out the vehicle so also the culprit. Ultimately, 'A' summary was filed before the Court of J.M.F.C. Claim of complainant was repudiated by the appellant Insurance Company by letter dated 09/12/2010.
[7] Perused repudiation letter dated 09/12/2010. Claim was repudiated mainly on two grounds. Those grounds are reproduced in para 2 and 3 of the letter. According to the appellant complainant failed to take reasonable care to protect vehicle from loss in violation of policy terms and conditions. In F.I.R. it is observed that the offence is registered u/s 406 of I.P.C. which itself suggest that office u/s 406 I.P.C. i.e. offence of 'criminal breach of trust' is committed. In letter it was stated that the insured should have taken all reasonable steps to safeguard vehicle from loss or damage in view of the General Exceptions/Condition No.4 of the insurance policy. Ultimately claim was repudiated. Appellant harped upon the fact that repudiation is correct and legal as per the terms and conditions of policy.
5 (A/15/1043) [8] It is evident from F.I.R. and other documents that at the time of incident Janardan Shivalkar was driving the vehicle in question. Vehicle was entrusted on behalf of complainant by her son to Janardan Shivalkar. Janardan Shivalkar dishonestly ran away with the vehicle without consent of son of complainant. Act of Janardan Shivalkar was certainly dishonest. Because of dishonest intention and act of Janardan Shivalkar complainant / respondent suffered loss. Ultimately, crime was registered against Janardan Shivalkar but police machinery was not able to trace out Janardan Shivalkar during investigation. At the relevant time contract of indemnity between the appellant and respondent was in force. Appellant after accepting premium from complainant/ respondent issued valid insurance policy and agreed to indemnify complainant/ respondent in case of loss. However, when claim was lodged appellant denied to indemnify the loss though the vehicle was insured with appellant.
[9] Learned Counsel for respondent vehemently urged that the theft of vehicle was committed by the driver Janardan Shivalkar. He fled away with the vehicle and later on absconded. Taking away of vehicle by driver amounts to theft as per illustration (d) of section 378 of I.P.C.
[10] During the course of argument learned Counsel for respondent placed reliance on the ruling laid down by Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of United India Insurance Co. Ltd. & anr. versus Ravi Kant Gopalka reported in IV (2007) CPJ 32 (NC). In case cited supra respondent Ravi Kant Gopalka lodged claim with appellant Insurance Company due to the theft of car owned by him during the currency of the policy period. It was the case of complainant/respondent that the vehicle was taken away by the driver for servicing but the driver neither turned up nor did he bring back the vehicle. Hence, F.I.R. was lodged against the driver for committing theft of vehicle. However, Insurance Company repudiated the claim. Hence, respondent Ravi Kant Gopalka lodged claim with the Insurance Company. Claim was repudiated 6 (A/15/1043) by the Insurance Company. It was the stand of petitioner/Insurance Company that the police had registered the case u/s 406 of I.P.C. and therefore the act of taking away of vehicle by the driver would not amount to theft.
[11] While deciding case cited supra the Hon'ble National Commission in para 4 held that this submission on behalf of petitioner is without any justification because of the definition of 'theft' u/s 378 of I.P.C. Hon'ble National Commission was pleased to consider illustration (d) to section 378 of I.P.C. and ultimately held that in any case this would be a malicious act and the policy covers such peril. Further, the exclusion clauses also nowhere provide that an offence under section 406 of I.P.C. is excluded.
[12] Ruling laid down by Hon'ble National Commission is squarely applicable to the case in hand. In case in hand, police registered offence against Janardan Shivalkar for 'criminal breach of trust' u/s 406 of I.P.C. Policy covers such peril. Exclusion clauses nowhere provide that offence u/s 406 of I.P.C. is excluded. Loss of vehicle could also be construed to be covered by the general category of malicious acts, a set of grounds used in the policy. Appellant Insurance Company failed to consider the genuine claim of complainant/respondent. Claim was repudiated without any sufficient and cogent reason. Certainly appellant is guilty of deficiency in service. Appellant should have given the claim under policy as respondent suffered loss. It was the duty of appellant to indemnify the complainant in case of loss when policy was in force. Learned District Forum rightly appreciated the facts and evidence and arrived at proper conclusion. Order passed by the learned District Forum is just, legal and correct. It requires no interference. As a result, appeal deserves to be dismissed. Hence, we proceed to pass following order-
7 (A/15/1043)
ORDER
1] Appeal is dismissed.
2] No order as to costs.
Certified copy of this order be supplied to the parties. Pronounced on 27th June, 2019.
[USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [Dr.S.K.KAKADE] MEMBER rsc