National Consumer Disputes Redressal
Venkateswara Borewells vs The Oriental Insurance Co. Ltd. on 28 February, 2002
ORDER
B.K. Taimni, Member
1. This appeal has been filed by the appellant against the order of the State Commission dismissing the Complaint.
2. Briefly stated the facts of the case are that the Complainant owned a Drilling rig along with a compressor mounted on a truck which was insured with the Respondent Company. It is the cost of the Complainant that the said rig was sent to Bombay from Bangalore for sale on 19.8.1991. The truck had a driver and a cleaner. Driver fell sick enroute at Pune on 21.8.1991 and parked the vehicle near Hotel, Rajdoot and asked the cleaner to be on the vehicle for its safety. Driver had to be admitted in a hospital and on discharge when he came back from the Hospital to the Hotel on 24.8.1991, he found both the Rig and the cleaner missing, upon which, the driver lodged a complaint with the police at Pune. Complainant also reported the loss to the Respondent company. The claim of the complainant was repudiated on the ground that reasonable care of the vehicle as per terms of the policy was not taken by the petitioner and it was an act of criminal breach of trust on the part of employee of the complainant.
3. It is after this that the complainant filed complaint before the State Commission who after hearing both the parties dismissed the complaint on the ground that this was a case of breach of trust which contingency is not covered by the terms of the policy. Complainant not being satisfied with the order has filed this appeal.
4. It was argued by the learned Counsel for the Appellant Shri R.K. Virmani that this was a clear case of theft of the vehicle for which policy cover existed. No question of any breach of trust in this case is relevant as long as the net result is that the vehicle was stolen, which is not refuted by the Respondent Company. As far as insured is concerned his vehicle has been stolen even if it has been done one of his employees. Result is the same i.e. theft of the vehicle, hence, covered by the term of the policy. For this, he relied on this Commission's order passed in the Oriental Insurance Company and Anr. v. Rohit Kumar Gupta and Ors. - (1 (1994) CPJ 196 (NC). Head note reads as under:-
Consumer Protection Act, 1986 -- Section 14(1)(d) -- "Insurance" -- "Car" -- "Compensation" -- Complainant had insured his car including risk of theft with an Insurance Co. -- Driver disappeared with the car -- Claim lodged -- Insurance Co. repudiated the claim -- Whether it is a case theft and covers the risk? - (Yes) He also cited our order passed in S. Bhagat Singh v. The Oriental Insurance Company 11 (1991) CPJ 700
(i) Consumer Protection Act, 1986 -- Sections 2(1)(o) & 14 -- "Insurance" -- Complainant was owner of a Taxi-Car, which was insured with the opposite party -- Taxi was hired by some passengers -- Whereabouts of taxi and driver not known -- Police report lodged -- Police could not trace both, the untraced report was issued -- Complainant informed the opposite party and claimed insurance amount -- Insurance Co. contended that loss of the Taxi was not a case of theft therefore not covered under the policy -- Whether the claims covered? - (Yes)
5. Another case cited was of Pt. Rama Nand Shashi v. The Oriental Insurance Company 11 (1999) CPJ 337
6. Consumer Protection Act, 1983 -- Section 15 -- Appeal -- Section 2(1)(g) -- Deficiency in Service -- Insurance -- Theft -- Complainant purchased auto-rickshaw -- Got comprehensively insured with opposite party -- Gave keys to his employee -- employee took scooter and did not return -- claim filed with opposite party -- Insurance Company denied factum of theft -- Repudiated claim -- Complainant -- Dismissed Appeal -- Denial of theft is no ground not to give relief to the complainant -- Theft also includes dishonest appropriation of another's property -- Repudiation of claim is arbitrary property -- Repudiation of claim is arbitrary and deficiency in service is writ large.
7. On the other hand it was argued by the learned Counsel for the Respondent Company Mr. P.K. Seth that it was a clear case of criminal breach of trust as one of the employee of the complainant himself is (SIC) to have been taken away the vehicle. Police after investigation registered a case under Section 406 of I.P.C. The Insurance Company cannot be held liable for any breach of trust between the insured and his employee. This contingency is not covered by the terms of the policy and the State Commission is quite correct in stating the same on it (SIC) reasoned order.
8. We have seen the material on record and heard the arguments. There is only one point for our determination whether a theft real or alleged by an employee of the insured, amount to theft within the meaning of theft as per terms of Policy. The views of this Commission on this point have been clearly expressed though the citations given earlier. In 1 (1994) CPJ 196 (NC) this Commission held:-
"Before this Commission also the appellant reiterated its plea that the instant car cannot be regarded as one of loss of the car by theft and hence the Insurance Co. is not liable for the claim as per the terms of the policy.
We see no force at all in this contention. What could constitute the offence of theft is to be seen from the language used in the provisions of section 379 of IPC. Illustration-D to that Section clearly and directly covers the contingency which has occurred in the present case, namely, the person who had been entrusted with an article or an item of g(SIC) dishonestly running away with the said article. Such being the (SIC) position, we are of opinion that the Insurance Company should not (SIC) adopted such an attitude at all, but should have paid up the money cover by the insurance policy to the respondent. Inasmuch as that was not done, the State Commission rightly directed the Insurance Co. to pay to complainant the amount for which the car had been insured, namely, (SIC) Lakh".
9. Similar views was taken by the Commission in the citation given earlier i.e. 11(1991) CPJ 700.
10. The learned Counsel for the Respondent Company has not been able to show any view or authority taking a contrary view. In such a situation, maintaining the stand of this Commission taken earlier in regular cases, we find the instant case to be a case of theft, hence, covered by the terms of the policy. We are unable to sustain the order of the State Commission which is set aside. Both the complainant and the appeal is allowed. We also see that even when the matter was reported to the Respondent Company in August, 1991, it was repudiated, only on 30.12.1992 i.e. almost after sixteen months which itself is a deficiency. Respondent Company is directed to pay Rs. 9.90 lakh, the valuation of the 'Rig, compressor and the truck' made by the Respondent is surveyor on 27.1.1991 along with interest @ 12% from 1.1.1992 till the date of payment which must be made within eight weeks of passing this order. Cost is fixed at Rs. 2000/- to be paid by the Respondent to the Appellant/Complaint.