State Consumer Disputes Redressal Commission
The Br.Manager, Oriental Ins. Co. Ltd. & ... vs Sri Chittaranjan Pal on 1 March, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/67/2021 ( Date of Filing : 26 Aug 2021 ) (Arisen out of Order Dated 21/01/2021 in Case No. RBT/CC/125/2020 of District Rajarhat) 1. The Br.Manager, Oriental Ins. Co. Ltd. & Anr. Dunlop Branch, 109/A, B.T.Road, 1st Floor, P.O.- ISI, P.S.- Baranagar, Kolkata- 700 108. 2. The Regional Manager, The Oriental Insurance Co. Ltd. 4, Lyons Range, P.S.- Hare Street, Kolkata- 700 001. ...........Appellant(s) Versus 1. Sri Chittaranjan Pal S/o, Gokul Chandra Pal. 71/1, Baruipara Lane, P.O.- Alambazar, P.S.- Baranagar, Kolkata- 700 035. ...........Respondent(s) BEFORE: HON'BLE MRS. Dipa Sen ( Maity ) PRESIDING MEMBER HON'BLE MR. SUBHRA SANKAR BHATTA JUDICIAL MEMBER PRESENT: Mr. Debasis Bhandari, Advocate for the Appellant 1 Ms. Soma Roy., Advocate for the Respondent 1 Dated : 01 Mar 2023 Final Order / Judgement HON'BLE MR. SUBHRA SANKAR BHATTA, JUDICIAL MEMBER
This first Appeal has been directed at the behest of the Appellants viz. i) The Branch Manager, Oriental Insurance Company Limited, and ii) The Regional Manager, Oriental Insurance Company Limited, Regional Office who were the Opposite Parties no. 1 & 2 respectively before the Additional Consumer Disputes Redressal Commission, Rajarhat, New Town (hereinafter referred to as the `District Commission` for short) assailing the impugned order dated 21.01.2021 passed by the District Commission in Consumer Complaint Case No. RBT/CC/125/2020 wherein and whereby the Ld. District Commission was pleased to allow the complaint petition with the following directions:-
Hence, it is ordered that the OPs will pay Rs. 7,50,000/- to the Complainant along with interest @ 6% per annum from the date of complaint till payment within the period of two months hence. The OPs will also pay to the Complainant Rs. 50,000/- as litigation cost and Rs. 50,000/- as compensation within two months hence failing which it will accrue interest @ 6% p.a. Briefly stated, the facts of the case, are that the Complainant is the owner of a TATA Heavy Goods Vehicle (Truck) being Registration no. WB23B1846, Engine no. 70A62536802, Chessis no. 426031ASZ200815. The said vehicle was registered with the Registering Authority, Motor Vehicle Department, Barrackpore, West Bengal and the said vehicle was used as a public carrier vehicle having the national permit issued by the State Transport Authority, West Bengal. The said truck was also insured with the OPs, the Oriental Insurance Company Limited under Policy no. 311101/31/2013/2827 valid from 22.01.2013 to 21.01.2014. In the said policy the value of the vehicle was mentioned as Rs. 10,00,000/- (Ten lakhs).
Further case of the Complainant is that on 22.06.2013 the said truck loaded with 410 sacks of flour and suji came to Dunlop from Jangalpur at the residence of the Complainant. Thereafter, the Complainant handed over some cash money to the driver of the truck namely Anjur Ali and the said truck left for Shilong at around 10 p.m. The driver of the said truck had a valid driving licence issued by the Motor Vehicles Department, Nagaland.
Further case of the Complainant is that on 30.06.2013 the Complainant came to know that the said truck did not reach its destination point at Shilong and both the vehicle and the driver were not traceable. The Complainant made several attempts to contact the driver over telephone but the mobile of the driver was kept in switched off position. The Complainant also contacted with the family members of the driver but failed to gather any information about the said truck or the driver. Ultimately, the Complainant went to Baranagar Police Station on 02.07.2013 and submitted written complaint before the Officer-in-Charge on that very date over the said incident and the same was registered as FIR being PS Case No. 351 dated 02.07.2013 under sections 406 and 379 of the Indian Penal Code vide G.R Case No. 3001 of 2013. After completion of investigation Police authority submitted charge sheet on 28.02.2015 under sections 406 and 379 of the I.P.C.
Further case of the Complainant is that he immediately intimated the above incident to the Insurance Company also to the registering authority of Motor Vehicles Department, West Bengal through a letter dated 03.07.2013. Thereafter, the Complainant submitted a claim of Rs. 10,00,000/- before the OP No. 1/Insurance Company as the amount of loss of vehicle suffered by the Complainant due to such theft. On receipt of the information of theft and/or claim from the Complainant the OP/Insurance Company appointed an investigator to investigate the incident. The Complainant categorically contended that as per requirement of the investigator he submitted all the original documents along with photo copies of other relevant documents to the investigator in order to receive the claim. The OP/Insurance Company kept themselves idle for a long period. On 09.12.2015 the Insurance Company again issued a letter to the Complainant disclosing that some documents in original were not submitted to the investigator for the purpose of settlement of the claim. It is the further case of the Complainant that he submitted all the documents as required by the investigator for settlement of the claim. The claim of the Complainant was kept pending for a prolonged period. The said claim was not settled despite several request on the part of the Complainant. Practically, OPs had neglected and abstained from making payment of the claimed amount to the Complainant which tantamounts to deficiency in service on the part of the OPs. Ultimately, on 01.03.2016 the Complainant issued legal notice through his Ld. Advocate to the OP Nos. 1 and 2 requesting them to consider the claim of the complainant and to make payment of Rs. 10,00,000/- together with further interest @ 18% per annum from the date of loss till actual payment or realisation. According to the Complainant the Insurance Company neither settled nor repudiated the claim of the Complainant despite submitting various representations. Under such circumstances the Complainant was compelled to file the Complaint petition before the Ld. Commission below for redressal Further case of the Complainant is that during the pendency of the complaint petition the Complainant received a letter dated 09.06.2016 on 30.06.2016 from the Insurance Company with the disclosure that the claim of the Complainant was not tenable on the following grounds:-
"As per FIR no. 351/13 dated 02.07.13 your driver Md. Anjur Ali has taken away your vehicle on 22.06.2016 whilst carrying consignment from Jangalpur Howrah to Shilong, Meghalaya, which came to your knowledge when consignment did not reach to its destination and you could not contact him over his cell phone as well as being found switched off. The said FIR then was lodged against him under Section 406 IPC (Criminal Breach of Trust) from your end. Charge Sheet under sections 406/379 IPC was also issued against him. Thus, the driver of the vehicle had committed breach of trust and policy under reference does not cover any liability occurring due to breach of trust committed by the driver". The Complainant specifically alleged that the repudiation of the claim by the Insurance Company is totally illegal, improper and contrary to the terms of the contract of insurance. The Complainant prayed for Redressal and relief as sought for in the prayer portion of the petition of complaint.
On the other hand OP Nos. 1 and 2 Insurance Company contested the complaint case by filing written version wherein they denied all the material allegations as brought in the body of the petition of complaint. The OPs specifically contended that the present petition of complaint is not at all maintainable as there is no negligence or deficiency in service on the part of the OPs; that the petition of complaint is misconceived, vexatious, untenable and devoid of merits. It is the specific defence of the OPs that the claim of the Complainant was rightly repudiated by the insurance company pursuant to the terms and conditions of the insurance policy. The answering OPs communicated to the Complainant by letter dated 09.06.2016 that the claim of the Complainant is not tenable on the grounds as mentioned in the body of that letter. It has been also contended that the Complainant was given opportunity to substantiate the claim in view of the grounds of repudiation but the Complainant did not response to that letter within two weeks from the date of receipt of the said letter. Hence the repudiation was confirmed due to non-representation on the part of the Complainant. It has been further contended that Criminal Breach of Trust is not covered under the policy in question and as such the Complainant is not entitled to get any amount as claimed in the petition of complaint. It has been alleged by the OPs that the Complainant totally failed to make out a case of negligence or deficiency in service on the part of the OPs and as such he is not entitled to get any relief as prayed for. The OPs prayed for dismissal of the complaint case with costs.
After considering the pleadings of the respective parties to the complaint case and having considered the evidence (both oral and documentary) on record adduced from the end of the parties Ld. Commission below was pleased to allow the petition of complaint of the Complainant on contest and passed the impugned judgment and order.
Being aggrieved by and dissatisfied with the above order of the Ld. District Commission below the OPs/Insurance Companies as Appellants have preferred the present Appeal on various grounds. It has been contended in the Memorandum of Appeal that the impugned order of the Ld. Commission below is misconceived, erroneous and contrary to the law; that the Ld. Commission below failed to exercise its jurisdiction vested by law and acted with material irregularity and illegality; that the Ld. Commission below passed the impugned judgment and order without proper application of judicial mind; that the Ld. Commission below failed to appreciate the facts and circumstances of the case in its proper perspective and has arrived at a wrong conclusion causing injustice to the Appellants; Ld. Commission below failed to consider that the Appellants Insurance Company was right in repudiating the claim of the Complainant/Respondent; that the Ld. Commission below failed to appreciate the letter dated 09.06.2016 sent by the insurance company to the Respondent; that the Ld. Commission below failed to consider that despite giving opportunity to the Respondent/Complainant he failed to avail the same within the stipulated period; that the Ld. Commission below failed to consider that the terms and conditions of the policy due to criminal breach of trust will not cover under the policy and consequently Respondent/Complainant is not entitled to get any amount as claimed in the petition of complaint; that the Ld. Commission below passed the impugned judgment and order arbitrarily and whimsically; that the Ld. Commission below failed to observe that there was no deficiency in service on the part of the Appellants/Insurance Companies. On all such grounds the Appellants have prayed for allowing the present Appeal after setting aside the impugned judgment and order.
POINTS FOR DETERMINATION
10. 1)Whether the Ld. Commission below was justified in passing the impugned judgment and order.
Whether the Ld. Commission below has committed any irregularity, illegality in passing the impugned judgment and order.
Whether the impugned judgment and order deserve interference of this Commission.
Whether the impugned judgment and order can be sustained in the eye of Law.
DECISIONS WITH REASONS All the above points are taken up together for the sake of convenience of discussion and in order to avoid unnecessary repetitions. Moreover, all the above points are interlinked with each other.
Ld. Counsel appearing for the Appellants/Insurance Company has advanced a marathon argument on the point of delayed intimation of the incident to the Insurance Company. It has been categorically submitted that the Respondent submitted the alleged claim of Rs.10,00,000/-(Ten Lakhs) before the Insurance Company as the amount for loss of vehicle at a belated stage. More over, the Respondent did not supply all the original documents along with photo copies to the Investigator to settle the claim. Ld. Counsel has highlighted much that the claim of the Respondent was repudiated on the very ground "As per FIR No. 351/13 dated 02.07.13 your Driver Md. Anjur Ali has taken away your vehicle on 22.06.2016 whilst carrying consignment from Jangalpur, Howrah to Shillong, Meghalaya which came to your knowledge when consignment did not reach its destination and you contact him over Cell Phone as well being found switched off. The said FIR then was lodged against him under section 406 of IPC (Criminal Breach of Trust) from your end. Charge sheet under sections 406/379 IPC was also issued against him. Thus the Driver of the Vehicle has committed breach of trust and the policy under reference does not cover any liability occurring due breach of trust committed by the Driver." He has further submitted that one more opportunity to substantiate the claim was given to the Respondent/Complainant but the Complainant failed to comply the said opportunity within two weeks from the date of receipt of the repudiation letter. Ld. Counsel has argued that the Ld. Commission below failed to consider Section 405 of the Indian Penal Code on the point of Criminal breach of trust. The FIR goes to prove that the investigating agency submitted charge sheet against the driver of the said vehicle under Section 379/406 of the Indian Penal Code. Criminal breach of trust is not covered under the policy and as such Respondent/Complainant is not entitled to get any amount as claimed in the petition of complaint. Ld. Counsel has prayed for allowing the present Appeal. In support of the above contention Ld. Counsel for the Appellant has cited the following decisions reported in:-
CDJ 2008 SC Page 922 [Appeal (Civil) 3409 of 2008 arising out of SLP (Civil) no. 20902 of 2006] (National Insurance Company Limited--vs.--Nitin Khandelwal) Civil Appeal no. 2955 of 2022 Supreme Court of India [United India Insurance Company Limited--vs.--Levis Strauss (India) Pvt. Ltd.] To refute the above contention Ld. Counsel appearing for the Respondent has drawn my attention to the impugned judgment and order of the Ld. Commission below and vehemently urged that the Ld. Commission below has rightly discussed all the aspects and arrived at the conclusion. According to the Ld. Counsel there is no illegality, irregularity in the judgment and orderof the Ld. Commission below. The plea as taken by the Appellant "that the driver having committed criminal breach of trust in respect of the insured vehicle and the terms and conditions of the insurance policy do not cover breach of trust under Section 405 of the Indian Penal Code" has no legs to stand upon. On this score Ld. Advocate for the Respondent/Complainant has cited the decision reported in Revision Petition No. 2164 of 2018 of the Hon'ble National Commission (New India Assurance Company Ltd.--vs.--Neerja Singh).
Ld. Counsel has also submitted that non-production of documents by the Respondent/Appellant cannot be a good and sound ground for repudiation of the claim of the Respondent/Complainant by the Insurance Company. The Hon'ble Apex Court and Hon'ble National Commission time and again have observed that the Insurance Company should not be too technical in their approach and asked for the documents, which the insured is not in a position to produce due to circumstances beyond his control. He has drawn my attention to the decision reported in 2022 Online SC Page 666 (Gurmel Singh--vs.--Branch Manager, National Insurance Company Limited). Ld. Counsel has prayed for outright dismissal of the present Appeal with compensatory costs.
Admittedly, the vehicle in question (TATA Heavy Goods Vehicle, Truck) belonging to the Respondent/Complainant was duly insured with the Appellant/Opposite Party/ Insurance Company. It is also not in dispute that the said vehicle was valid for the period between 22.01.2013 to 21.01.2014 under Policy No. 311101/31/2013/2827. It is also not in dispute that in the said policy value of the vehicle was mentioned as Rs. 10,00,000/- (Ten Lakhs). It is also not in dispute that the insured vehicle loaded with 410 sacks of flower and suji came to Dunlop on 22.06.2013 from Jangalpur at the residence of the Complainant and the said truck left for Shillong at around 10 P.M. It is the clear case of the Complainant that on 30.06.2013 he came to know that the said truck did not reach its destination point at Shillong and both the vehicle and the driver were not traceable. Ultimately, the Complainant lodged an FIR on 02.07.2013 before the Officer-in-Charge of Baranagar Police Station and the same was registered as FIR being Baranagar P.S Case No. 351 dated 02.07.2013 under Sections 406 and 379 of the Indian Penal Code. Undisputedly, Police submitted charge sheet on 28.02.2015 after the completion of investigation. It is apparent that the Complainant submitted a claim of Rs. 10,00,000/- before the Appellant/Insurance company as the amount of loss of vehicle suffered by him due to such theft of vehicle. It has been alleged by the Respondent/Complainant that the OP/Insurance Company kept themselves mum for a prolong period and ultimately issued a letter on 09.12.2015 to the Respondent/Complainant disclosing the fact that some documents in original were not submitted to the investigator for settlement of the claim but it is the specific version of the Respondent/Complainant that he submitted all the required documents before the Investigator but his claim was not settled. On 01.03.2016 the Respondent/Complainant issued legal notice to the Appellant/Insurance Company requesting them to settle the claim but the Appellant/Insurance Company did not settle or repudiate the claim of the Complainant despite several representation and as a consequence of which the Respondent/Complainant was compelled to institute the complaint case before the Ld. Commission below.
It is evident from the evidence on record that after filing of the complaint petition the insurance company sent a letter disclosing the fact that the claim of the Complainant was not tenable on the very ground of submission of charge sheet under Section 406/379 IPC against the driver of the said vehicle by the I.O. and the terms and conditions of the Insurance policy do not cover the Commission of breach of trust. It is obvious from the evidence (both oral and documentary) on record that the vehicle in question was entrusted with the driver Anjur Ali for a specific purpose and the driver of the said vehicle proceeded towards its destination but afterwards the Respondent/Complainant did not trace out the vehicle and its driver. The submission of charge sheet goes to prove that the theft of the vehicle was committed and there is nothing to think otherwise. The Hon'ble NCDRC was pleased to hold in Revision Petition No. 2164 of 2018 (New Indian Assurance Company Limited--vs.--Neerja Singh) that such a case would constitute theft in terms of the definition given in Section 378 of the Indian penal Code though it may also constitute a criminal breach of trust. Reliance in this regard is placed upon the decision of the Commission reported in Revision Petition No. 2601 of 2017--Oriental Insurance Company Limited--vs.--Dhanraj Surana, decided on 31.10.2017.
Considering the submissions of both sides and keeping in mind the pleadings of the respectiveparties and evidence(both oral and documentary) on record we have come to the irresistible conclusion that the present case is one of theft. No evidence has come on record to prove that the driver had any dishonest intention to misappropriate or convert the vehicle in question on that relevant date and time. The Appellant/Insurance Company has failed to prove that the present case falls under Section 405 of the Indian Penal Code. Bare allegation of criminal misappropriation or breach of trust as submitted by the Ld. Counsel for the Appellant/Insurance Company cannot be and should not be taken into consideration. In our considered view the submission of the Ld. Counsel for the Appellant/Insurance Company is without any justification. Keeping in mind the observations of cited decisions of the Hon'ble Apex Court and Hon'ble NCDRC we have no hesitation to conclude that the Appellant/Insurance Company refused the claim of the Respondent/Complainant unwarrantedly and unjustly. The ground of repudiation of the claim of the Respondent/Complainant by the Appellant Insurance Company cannot be accepted.
Considering all aspects from all angles and with our utmost respect to the abovementioned cited decisions we hold and firmly hold that the Appellant/Insurance Company failed to appreciate the actual facts and circumstances of the case and unwisely repudiated the genuine claim of the Respondent/Complainant. We are compelled to hold that there is no error, irregularity or illegality in the impugned judgment and order passed by the Ld. District Commission at Rajarhat, New Town, North 24 Parganas in Complaint Case No. RBT/CC/125/2020. We also hold that the Ld. Commission below has rightly allowed only 75% claim of the Respondent/Complainant on non-standard basis. Resultantly, it deserves to be sustained. No interference is called for.
It is, therefore, O R D E R E D That the present Appeal being No. 67/2021 be and the same is dismissed on contest against the Respondent/Complainant but considering the circumstances without any order as to costs.
The impugned judgment and order dated 21st January, 2021 passed by the Ld. Additional Consumer Disputes Redressal Commission, Rajarhat, New Town in Complaint Case No. RBT/CC/125/2020 are hereby affirmed.
Let a copy of this judgment and order be transmitted to the Ld. Commission below forthwith for information and taking necessary action.
Thus, the Appeal stands disposed of.
Note accordingly. [HON'BLE MRS. Dipa Sen ( Maity )] PRESIDING MEMBER [HON'BLE MR. SUBHRA SANKAR BHATTA] JUDICIAL MEMBER