State Consumer Disputes Redressal Commission
Sachyendra Nath Mishra vs N I A Co on 17 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2012/531 (Arisen out of Order Dated in Case No. of District State Commission) 1. Sachyendra Nath Mishra a ...........Appellant(s) Versus 1. N I A Co a ...........Respondent(s) BEFORE: HON'BLE MR. Vijai Varma PRESIDING MEMBER For the Appellant: For the Respondent: Dated : 17 Jul 2017 Final Order / Judgement RESERVED State Consumer Dispute Redressal Commission, Uttar Pradesh Lucknow Appeal No. 531 of 2012 Satyendra Nath Mishra ....Appellant Vs New India Assurance Company Ltd. ...Respondent Present:- Hon'ble Sri Raj Kamal Gupta, Presiding Member.
Hon'ble Sri Mahesh Chand, Member.
Sri S.K.Srivastav, Advocate for the Appellant.
Sri Rajesh Nath for the Respondent.
Date: 18.8.2017 Judgment
Sri Mahesh Chand,Member-This Appeal has been filed under section 15 of Consumer Protection Act against the order dated 22.2.2012, passed by learned District Consumer Dispute Redressal Forum,Jaunpur, in complaint case No 118/2010, Satyendra Nath Mishra vs New India Assurance Company Ltd.
In brief the facts of the case are that the Appellant-Complainant had insured his Tempo Trax Pick Up Van No U.P.362-J-3024for a sum of Rs 125,000/- with the Respondent,New India Assurance Company Ltd., . Its insurance was valid from dated 5.5.2009 to 4.5.2010. This vehicle was stolen on 7.7.2009. The FIR of theft of the said insured vehicle was lodged on 11.7.2009 with police station, sadar, Jaunpur. But the police registered the case under section 406 IPC for offence of breach of trust against Lallan Yadav, the driver of the vehicle and later onfiled the final report in the court. The Respondent Insurance Company was also informed of the incident of theft on dated 13.7.2009. Being aggrieved the appellant moved an application under section 156(3) of Cr. P.C. before the court of Chief Judicial Magistrate, Jaunpur. The CJM court vide its order dated 24.10.2009 rejected the Misc. Application under section 156(3). The appellant being aggrieved filed a criminal revision petition No 5023 of 2009 before the Hon'ble High Court, Allahabad. Hon'ble High Court vide its order dated 27.4.2010 set aside the CJM Court order dated 24.10.2009 and directed the concerned Magistrate to pass fresh order in accordance with law. A fresh FIR under section 379 IPC was lodged with the police on dated 3.6.2010.
The Appellant filed the claim of the loss due to theft of the insured vehicle with the respondent. But the respondent rejected the claim of the appellant on dated 7.4.2010. Being aggrieved with this conduct of the respondent, the appellant filed the complaint before the District Consumer Forum, Jaunpur for directions to the respondent for payment of sum of Rs 496,537/-.
The respondent insurance company strongly opposed the complaint and denied all the averments of the complaint. The respondent insurance company in their written statementbefore the District Forum stated that it was a case of "breach of trust" and not that of "theft". The breach of trust is not covered in the policy. Hence the company have rightly repudiated the claim and pleaded to dismiss the Complaint.
The learned district forum after perusing the evidences of the partiesand hearing them dismissed the complaint vide its order dated 22.2.2012.
Being aggrieved with the impugned order dated 22.2.2012 this appeal has been preferred. In the grounds of appeal,it has been alleged that the learned district forum failed to appreciate the fact that it was the case of theft registered under section 379 IPCin pursuance of Hon'ble High Court order dated 27.4.2010. The fresh FIR under section 379 IPC was registered on dated 3.6.2010. The respondent filed their written statement before the District Forum on 14.9.2010. The learned District Forum failed to appreciate this fact. The appellant assailed the impugned order by alleging that the learned District Forum erred in importing the reasons for dismissing the complaintwhich were not in the pleadings of the parties. The appellant pleaded to allow the appeal and set aside the impugned order.
The Appeal has been contested by the respondent. The appeal was put up before this bench for hearing. Learned counsel for Appellant, Mr S.K. Srivastav and Learned Counsel for Respondent Mr Rajesh Nath were present at the time of hearing.
In the instant matter the whole case reels around the controversy whether it is a case of theft or breach of trust. We have perused the record on the file and heard the arguments of the learned counsels of both the parties. To settle this controversy,the case of United India Insurance CompanyLtd.Vs. Ravi Kant Gopalka IV (2007) CPJ 32 (NC) is worth mentioning here. In this case, the insured vehicle in question, was a private car. In this case it has been stated that the insurance company will indemnify the insured against the loss or damage to the motor car and/or its accessories whilst thereon, inter alia, by burglary, housebreaking or theft and also by malicious act, etc. Hon'ble National Commission in this case, held that taking away of vehicle by driver amounts to theft as per illustration (d) of Section 378, I.P.C. Exclusion Clause does not provide that offence under Section 406 , I.P.C . are excluded. The Hon'ble Commission held that loss of vehicle is covered by general category of malicious acts and also held that it was a malicious act of a person who was an employee of the insured at the relevant time. Therefore, insurance company was held liable for reimbursement under the policy. Hon'ble National Commission dismissed the Revision Petition of the United India Insurance Company.
Hon'ble Supreme Court has also had detailed discussion over the word " entrustment" in the case of National Insurance Company Limited vs Ishar Das Madan Lal, II (2007) CPJ 5 (SC)Civil Appeal No 6113 of 2003 wherein the clear distinction between "breach of trust" and "theft" has been explained in detail.
In our view, the driver in the instant case was not entrusted with the care of the vehicle. He was engaged for the purpose of driving the vehicle. There is no accusation against the driver. He had parked the vehicle as usual ashe was doing for past many years. The police implicated him under section 406 IPC. But the Hon'ble High Court vide its order dated 24.7.2010 set aside the CJM court's order dated 24.10.2009 and directed the concerned court to pass fresh orders in accordance with law. Hence the fresh FIR was registered under section 379 IPC and the police later on filed the final report in the case. In this matter we are of the view that there is no case of breach in trust. It was a case of theft of vehicle. Since the vehicle was insured with the respondents, they are liable to settle the loss of the claimant. The learned District Forum failed to appreciate the facts of the case.
As it was a case of total loss of the vehicle, the Appellant is entitled to get the compensation of the stolen vehicle equivalent to the amount of insured value minus the depreciation of one year @10%.In the light of above discussion and observation, the impugned order is liable to be setaside.
Order The Appeal is allowed.The impugned order dated 22.2.2012 is set aside and the respondent is directedto pay the insured value of the vehicle after deducting 10% amount. The appellant will be entitled to simple interest @ 9% per annum on it from the date of filing the complaint till the date of its actual payment within a period of 45 days.Parties will bear their own costs.
(Raj Kamal Gupta) (Mahesh Chand) Presiding Member Member S.k. st. ct-5 [HON'BLE MR. Vijai Varma] PRESIDING MEMBER