State Consumer Disputes Redressal Commission
National Ins. Co. vs Manvendra Singh on 12 February, 2009
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, RAJASTHAN, JAIPUR APPEAL NO: 1914/2008 1. National Insurance Co. Ltd., Transport Nagar, Jaipur through Br.Manager. 2. National Insurance Co. Ltd., Station Road, Jhunjhunu, through Br.Manager Opposite parties-appellants Vs. 1. Manvendra Singh, r/o Vill.Shyampura,Post Mua, Teh.&Distt. Jhunjhunu. Complainant-respondent 2. Ashoka Leyland Finance Co. Ltd., Station Road, Jhunjhunu through Br. Manager Opposite party-respondent AND APPEAL NO:1684/2008 Manvendra Singh, r/o Vill.Shyampura,Post Mua, Teh.&Distt. Jhunjhunu. Complainant-appellant 2 Vs. 1. National Insurance Co. Ltd., Transport Nagar, Jaipur through Br.Manager. 2. National Insurance Co. Ltd., Station Road, Jhunjhunu, through Br.Manager 3. Ashoka Leyland Finance Co. Ltd., Station Road, Jhunjhunu through Br. Manager Opposite parties-respondents Date of judgment 12.2.2009 Before: Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member Mr.Sanjeev Arora counsel for the National Insurance Co. Mr.Ranjeet Kheechar counsel for complainant Manvendra Singh None present for Ashoka Leyland Finance Co. JUDGMENT
BY THE STATE COMMISSION (PER HON. MR.JUSTICE SUNIL KUMAR GARG, PRESIDENT) The above mentioned two appeals are being decided by this common judgment as both have been preferred against order dated 3 3.9.08 passed by the District Forum, Jhunjhunu in complaint no. 179/2008.
APPEAL NO: 1914/2008
2. This appeal has been filed by the appellants Insurance Co. which were opposite parties no. 1 & 2 before the District Forum against order dated 3.9.08 passed by the District Forum, Jhunjhunu in complaint no. 179/2008 by which the complaint of complainant respondent no.1 was allowed against the appellants in the manner that the appellants were directed to pay a sum of Rs.10 lacs, the insured amount of the policy alongwith interest @ 12% p.a. w.e.f. 21.2.07, the date on which the complaint was filed and further to pay a sum of Rs.5000/- as amount of compensation for mental agony and Rs.2000/- as costs of litigation.
3. It arises in the following circumstances-
That the complainant respondent no.1 had filed a complaint against the appellants as well as respondent no.2 before the District Forum, Jhunjhunu on 21.2.07 inter alia stating that he had purchased a truck bearing registration no. RJ 18 G 2071 on 20.2.02 from Rajesh Motors, Jaipur after taking a loan from respondent no.2 and that vehicle was got insured by complainant respondent no.1 with the appellants Insurance Co. for the period 18.2.02 to 17.2.03 for a sum of Rs. 10 lacs as IDV. It was further stated in the complaint that on 4.4.02 there was a driver named as Ramniwas on that truck and when the truck was passing through the village Surpura under the Police Station Roopangarh, Distt. Ajmer, the truck was looted by the looters after showing 4 dangerous weapons and driver and khalasi of the truck were held by them. It was further stated in the complaint that a report of that incident was lodged on 6.4.02 by Ramniwas with the Police Station Roopangarh Distt. Ajmer bearing FIR no: 42/02 was chalked out by the Police Station Roopangarh for offence u/s 342, 382 etc. It was further stated in the complaint that an information was also given by the complainant respondent no.1 to the office of the appellants Insurance Co. and also to the Finance Company respondent no.3 and after receiving the information of the incident the appellants Insurance Co. had registered the claim and necessary papers which were demanded by the appellants were supplied by complainant respondent no.1 to the office of the appellants Insurance Co. It was further stated in the complaint that during investigation of that FIR, the accused persons pertaining to that FIR were arrested by the police and some recovery was also made from them and Roopanarh police had submitted a chargesheet on 16.12.03 before Judicial Magistrate, Kishangarh, Ajmer against four persons for committing offence u/s 342, 383, 395 IPC and since some accused persons were absconded, therefore, chargesheet was filed u/s 299 CRPC against them. It was further stated in the complaint that inspite of many efforts made by complainant respondent no.1, the claim was not settled by the appellants Insurance Co. but through letter dated 31.1.07 the claim of the complainant respondent no.1 was repudiated by the appellants in the following manner-
" Please have reference to the policy "SECTION 1-LOSS OR DAMAGE" read as under:5
The company will indemnify the insured against loss or damage to the motor vehicle and/or its accessories whilst thereon.
by burglary housebreaking or theft In this case, the loss comes under the definition of "Robbery" read as "Extortion is 'robbery' if the offender, at the time of committing the extortion, is in the presence of the person put in fear and commits the exytortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Under the circumstances, when, the cause of loss is out of the scope of the policy, we are not held liable to pay under the policy, which may please note."
Thereafter the present complaint was filed.
A reply was filed by the appellants before the District Forum on 16.6.07 and they have taken the same pleas which were taken by them in the repudiation letter dated 31.1.07. It was further stated in the reply that if the loss had been due to burglary, housebreaking or theft, the complainant respondent no.1 could have been reimbursed for the loss of the truck but since the act which was committed by the accused comes under the perview of the word robbery, therefore, the present case was not a case of burglary, housebreaking or theft and thus the present case was not 6 covered under the terms and conditions of the policy and claim of the complainant respondent no.1 was rightly repudiated by the appellants. Apart from that it was further stated in the reply that since during investigtion some money and some articles were recovered from the possession of the accused persons and the value of them was more than Rs. 2 lacs, therefore, that aspect should also be kept in mind while disposing the complaint and ultimately it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Jhunjhunu through impugned order dated 3.9.08 had allowed the complaint of complainant-respondent no.1 inter alia holding that since actually the theft of truck had taken place, therefore, the present case was covered under the terms and conditions of the policy and claim of the complainant was wrongly repudiated by the appellants Insurance Company.
Aggrieved from the said order dated 3.9.08 passed by the District Forum, Jhunjhunu this appeal has been filed by the appellants Insurance Company.
4. In this appeal the learned counsel for the appellants has raised the following two contentions:-
(i) That since in this case robbery was committed by putting the driver and khalasi under fear and thus there was extortion on the part of the accused persons and since robbery in the present case was not due to theft but due to extortion ad defined u/s 390 IPC, 7 therefore, the findings recorded by the District Forum that the present case was a case of theft are erroneous one and the impugned order could not be sustained and liable to the quashed and set aside and this appeal deserves to be allowed.
(ii) That since the District Forum had not passed any order in respect of the money and articles recovered from the accused persons and therefore, from that point of view also impugned order could not be sustained and liable to the quashed and set aside and this appeal deserves to be allowed.
5. On the other hand the learned counsel appearing for the complainant respondent no.1 has supported the impugned order passed by the District Forum.
6. We have heard the learned counsel appearing for the appellants as well as respondent no.1 and gone through the entire materials available on record.
7. There is no dispute on the point the truck in question was got insured by complainant respondent no.1 with the appellants Insurance Co. for the period 18.2.02 to 17.2.03 for a sum of Rs. 10 lacs as IDV.
8. There is no dispute on the point that on 4.4.02 the truck was looted by the accused persons after putting under fear the khalasi and driver of the truck and for that a report was lodged with the Police Station Roopangarh Distt. Ajmer.
89. There is also no dispute on the point that the accused persons had sold the truck and during investigation the police had recovered a sum of Rs. 1,37,400/- and some bangles and rings of gold from the accused persons and thus money and articles more than worth Rs. 2 lacs were recovered from the accused persons.
10. There is no dispute on the point that a challan was filed against the accused persons u/s 342, 383, 395 IPC.
11. There is also no dispute on the point that claim of the complainant respondent no.1 was repudiated by the appellants through letter dated 31.1.07 on the grounds mentioned therein as stated above.
12. There is no dispute on the point that the District Forum had come to the conclusion that the present case was a case of theft of truck.
13. Thus, in the facts and circumstances just narrated above, the question for consideration is whether repudiation of claim of the complainant respondent by the appellants was justified or not or whether the findings of the District Forum by which complaint was allowed could be sustained or not.
Regarding Point no.1
14. As per terms and conditions of the policy the Insurance Company would indemnify the insured against loss or damage to the motor vehicle.
(a) ........
(b) by burglary housebreaking or theft 9 Thus, it is very much clear that in case of theft the insured has to be indemnifed for the loss as per terms and conditions of the policy.
15. The simple "theft " is defined in section 378 IPC and the punishable section is 379 IPC. The essential ingredients for committing theft are as follows:-
(i) dishonest intention to take property;
(ii) the property must be movable;
(iii) it should be taken out of the possession of another person;
(iv) it should be taken without the consent of that person; and
(v) there must be some moving of the property in order to accomplish the taking of it.
16. The word " extortion" has been defnied in section 383 and punishable section is 384 IPC. The essential ingredients for punishment of extortion are as follows:-
(i) intentionally putting a person in feat of injury to himself or another;
(ii) dishonestly inducing the person so put in fear to deliver to any person any property or valuable security.
17. It may further be stated here that there is some distingtion between ' theft ' and 'extortion' and extortion is thus distinguished from theft in the following manner : -
10(1) Extortion is committed by the wrongful obtaining of consent. In theft the offender takes without the owner's consent.
(2) The property obtained by extortion is not limited as in theft to movable property only. Immovable property may be the subject of extortion.
(3) In extortion the property is obtained by intentionally putting a person in fear of injury to that person or to any other, and thereby dishonestly inducing him to part with his property. In theft the element of force does not arise.
Thus, extortion would also include theft.
18. The word " robbery " has been defined in section 390 IPC and in that section it was made clear that when theft is robbery and when extortion is robbery but it is very much clear that in all robbery there is either theft or extortion.
19. In this case no doubt the accused persons while committing the robbery of the truck had put the khalasi and driver under fear and thus by putting them in fear of instant death or instant hurt they had extorted the truck .
20. The word " Dacoity " has been defined in section 391 IPC and the same is punishable u/s 395 IPC in the manner that if more than five persons commit robbery, their act is said to commit dacoity and in this case there is no dispute on the point that police 11 had filed challan under sections 342, 383, 395 IPC against the accused persons.
21. A bare perusal of the definitions and meanings of the words " theft" , " robbery ", "
extortion" and " dacoity" would mean that in cases of robbery, there would be a theft or extortion or dacoity and it may further be clarified here that simple theft is a lesser offence and extortion is on higher side and further robbery and dacoity are on further higher side and therefore, if in the present case if there is a robbery on account of extortion, it does not mean that present case was not a case of theft.
22. As stated above a distingtion has been drawn between theft and extortion and if extortion is there, the theft would be implied in that and therefore, theft could not be separated from extortion and further the theft is the pivot around which extortion, robbery and dacoity rotate, meaning thereby theft is implied in all i.e. extortion, robbery and dacoity and thus if in the present case robbery or dacoity was committed with extortion, it does not mean that theft was missing.
23. Thus, it is held that the present case was also a case of theft and since theft was covered under the policy in question, therefore, repudiation of claim of the complainant respondent no.1 by the appellants on the ground that it was not a case of theft was not justified and since the truck in question was insured for a sum of Rs.10 lacs as IDV and the truck had been stolen away, therefore, the complainant respondent no.1 is entitled to get the full amount of the insurance policy i.e. Rs. 10 lacs from the appellants Insurance Company and thus the findings recorded by the District Forum by which claim was decreed on ground of theft 12 are liable to be confirmed one as they are based on correct appreciation of entire materials available on record. Thus, first contention raised by the appellants stand rejected.
Regarding point no.2
24. So far as the second contention of the learned counsel for the appellants is concerned, no doubt the matter is pending before the Criminal Court and u/s 452 CRPC the concerned court after conclusion of the trial would pass order for disposal of the property seized from the accused persons. Since that matter is still pending before the Criminal Court nothing could be said at this stage about who is the owner of that property but since the amount and other articles were recovered from the accused persons and since the truck in question had been sold by the accused persons after taking it forcefully from the khalasi and driver and since for the loss of the truck the complainant respondent no.1 is going to be compensated in terms and conditions of the policy, therefore, if any amount is ordered to be returned by the concerned tiral court after conclusion of trial, the appellants Insurance Co. would have preferential claim against complainant respondent no.1 over that property and not the complainant respondent no.1 as he is going to be fully compensated about the loss of the truck in question.
25. Thus, this observation has been made in favour of the appellants Insurance Co. that would help the appellants in near future when the trial of the criminal case would conclude and further if Insurance Company thinks proper, it could approach the criminal court where the trial is pending for making claim over the money and other articles seized by the police during 13 investigation and it is for the criminal court to pass appropriate orders for disposal of the property either before the trial is concluded or after the trial is concluded.
26. For the reasons stated above, it is held that the appellants were not justified in repudiating the claim of the complainant respondent no.1 on the grounds mentioned in the repudiation letter dated 31.1.07 and the appellants have repudiated the claim of the complainant respondent without any basis and on wrong assumption and in an arbitrary manner and in view of this, the findings of the District Forum decreeing the claim of the complainant respondent no.1 are liable to be confirmed as they are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity, illegality or perversity and this appeal deserves to be dismissed on merits.
On point of interest
27. In this case the District Forum has awarded interest @ 12% p.a. on the decreetal amount and that too from the date of filing of the complaint.
28. In our considered opinion, the rate of interest awarded by the District Forum appears to be on higher side and looking to the entire facts and circumstances of the case, we deem it proper to award interest at the rate of 9% p.a. instead of 12% p.a. and that too from the date of filing of the complaint and to that extent on point of rate of interest, the impugned order of the District Forum is liable to be modified.
1429. Accordingly, this appeal filed by the appellants on merits is dismissed. However, the complainant respondent no.1 would get interest on the decreetal amount at the rate of 9% p.a. instead of 12% p.a. and to the above extent on point of rate of interest the impugned order of the District Forum, Jhunjhunu dated 3.9.08 stands modified and the observations made while deciding point no.2 be treated as part of this judgment.
APPEAL NO:1684/2008
30. This appeal has been filed by the complainant appellant against order dated 3.9.08 passed by the District Forum,Jhunjhunu with a prayer that since the interest has been awarded from the date of filing of the complaint i.e. 21.2.07 though the incident had taken place on 4.4.02 and since in settling the claim the Insurance Company had taken more time, therefore, interest must have been awarded from the date of incident and not from the date of filing of the complaint as ordered by the District Forum.
31. It may be stated here that while deciding appeal no.1914/2008 this Commission has come to the conclusion that interest was rightly awarded from the date of filing of the complaint, therefore, now this argument carries no weight and deserves to be rejected and the appeal filed by the complainant appellant deserves to be dismissed .
Accordingly, the appeal filed by the complainant appellant is dismissed.
(Vimla Sethia) (Justice Sunil Kumar Garg) Member President