State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. vs Shamsher Singh on 10 November, 2017
IN THE STATE COMMISSION : DELHI
( Co n s t i t u t e d u n d e r S e c t i o n 9 o f t h e Co n s u m e r P r o t e c t i o n A c t , 1 9 8 6 )
Date of Decision: 10.11.2017
First Appeal No.367/2013
(Arising out of the order dated 28.01.2013 passed in Complaint Case
No.464/2009 by the District Consumer Disputes Redressal Forum
(West), New Delhi)
Oriental Insurance Company,
DRO - I, F-14, Connaught Place,
New Delhi -110001, ...Appellant
Versus
Shri Shamsher Singh,
R/o Village Naharpur,
Rupa District,
Gurgaon, Haryana.
....Respondent
CORAM
Justice Veena Birbal, President
Ms. Salma Noor, Member
1. W h e th e r r e p o r t e r s o f l o c a l n e ws p a p e r b e a l lo we d to s e e th e j u d g m e n t?
2. To b e r e f e r r e d t o th e r e p o r te r o r n o t?
Justice Veena Birbal, President
1. Aggrieved by the order dated 28.01.2013 passed by Consumer Disputes Redressal Forum (West), New Delhi (in short " the District Forum") in CC No.464/2009, the appellant/OP has filed the present Page 1 of 10 appeal under Section 15 of the Consumer Protection Act, 1986 (in short, "the Act").
2. Briefly the facts relevant for the disposal of present appeal are that the respondent herein i.e. the complainant before District Forum had filed a complaint under section 12 of the Act alleging therein that he was owner of a Tata truck bearing registration No.HR 55 D 9222. The said truck was insured with the appellant/OP for the period 22.10.2007 to 21.10.2008 for an insured value of Rs.4,00,000/-. It was alleged that on 11.01.2008, the respondent/complainant had sent the aforesaid truck to Badau, UP. The driver had parked the truck at Dabua, Sabzi Mandi, Opposite Shop No.29, after giving instructions to the conductor to sleep in the truck for safety. However, on the next morning i.e. 12.01.2008 conductor was missing, with the truck. The driver had lodged FIR at PS Faridabad on the said date. It was alleged that after investigation a final report under section 173 of Cr. P.C. was filed by the police to the effect that the stolen truck was not traceable. It was alleged that the respondent/complainant had informed about theft of the truck to the appellant/OP immediately. An intimation form at the office of the appellant/OP was also filled on 12.01.2008. It was alleged that the appellant/OP had appointed a surveyor to carry out the survey. It was also alleged that all the necessary documents were provided to the surveyor. However, the claim was not settled by the Page 2 of 10 appellant/OP. Ultimately the respondent/complainant had filed the complaint before District Forum praying for sum of Rs. 4 lacs being the insured value of the truck alongwith interest @24% per annum from the date of loss and compensation of Rs.50,000/-.
3. Appellant/OP had contested the complaint by filing written statement alleging therein that the respondent/complainant had given intimation to the appellant/OP after 27 days of the alleged occurrence, which was in violation of the terms and condition of the policy. It was alleged that the contract of insurance was not covering criminal breach of trust. It was alleged that once the possession of the truck was given to the driver of truck, he steps into the shoes of the owner and become ostensible owner of the truck as per law and no owner is permitted to steal his own property. It was further alleged that since police had registered FIR under Section 381 of IPC and not under Section 379 IPC the claim was not payable.
4. In rejoinder respondent/complainant had reiterated the averments made in the complaint case and denied those made in the written statement.
5. Both the parties led evidence in the form of affidavits and filed their relevant documents.
6. After hearing the parties, ld. District Forum allowed the complaint and directed the appellant/OP to pay Rs.4,00,000/- i.e. the Page 3 of 10 insured value of the truck to the respondent/complainant alongwith interest @9% p.a. from the date of filing of the complaint till actual payment. The District Forum further awarded Rs.30,000/- as compensation for the harassment and inconvenience caused to the respondent/complainant.
7. Aggrieved with the aforesaid order, present appeal is filed.
8. Ld. Counsel for the appellant has contended that there is delay of 27 days on the part of respondent/complainant in informing the appellant/OP about the alleged theft of the truck as such there is violation of the terms and conditions of the policy, therefore, appellant/OP is not liable to pay. It is further contended that the present is a case of criminal breach of trust and not theft. It is contended that the truck was entrusted to the driver who was the employee of respondent/complainant. It is contended that driver of the truck had given instructions to the conductor to sleep in the truck for its safety. It is contended that driver and conductor were both employees of the respondent/complainant. It is contended that there was breach of trust on the part of conductor of the truck and the policy does not cover loss due to criminal breach of trust as such alleged loss is not covered under the policy.
9. It is further contended that FIR was also lodged under Section 381 I.P.C. and not under Section 379 IPC as such amount claimed is Page 4 of 10 not payable. It is contended that the District Forum has committed an illegality in passing the impugned order as such the same is liable to be set aside.
10. On the other hand, ld. counsel for the respondent/complainant has submitted that a well reasoned order has been passed by the Ld. District Forum and the appeal is liable to be dismissed.
11. We have heard the submissions and have perused the material on record.
12. On the contention of delay, we find that there is a letter dated 14.01.2008 on record written by respondent/complainant to appellant/OP. As per said letter the respondent/complainant had informed the appellant/OP about the theft of the truck. Ld. counsel for the appellant/OP has submitted that the aforesaid letter was received by appellant/OP on 06.02.2008. Ld. District Forum had examined the said letter and had observed that the endorsement of 06.02.2008 on the aforesaid letter is of some official of the appellant/OP made for some official purpose. We have also perused the aforesaid letter. The date of receiving is not mentioned on the aforesaid letter. The said letter nowhere records that it was received on 06.02.2008 as has been alleged. Rather on the aforesaid date it was marked to some official. In these circumstances, it cannot be said that intimation of theft was Page 5 of 10 given by respondent/complainant to appellant/OP on 06.02.2008 as has been alleged. The theft of truck took place on 11.01.2008. FIR was lodged on 12.01.2008 and intimation was given to the appellant/OP on 14.01.2008. In these circumstances, the appellant/OP was not justified in repudiating the claim on the ground of delay. We find no fault in the reasoning given by the Ld. District Forum in rejecting the aforesaid stand of appellant/OP.
13. It is admitted position that the truck was insured inter-alia against loss on account of (i) burglary, (ii) house breaking or theft and
(iii) by malicious act. The stand of the appellant/OP is that the present case is a case of criminal breach of trust and not of theft; as such the loss is not covered under the terms and conditions of the policy. The identical issue has already been decided by the National Commission in S. Bhagat Singh v. Oriental Insurance Co. Ltd. II (1991) CPJ 700 (NC) R.P. No.7 of 1991 decided by the Bench of four Members on 03.10.1991. In the above referred case, the taxi owned by the complainant therein which used to be driven by the driver employed by him left with some passengers in it, but thereafter the whereabouts of the taxi and the driver could not be known. Intimation having been given to the insurance company, the matter was investigated by the insurer. No claim however was paid. Being aggrieved, the complainant therein had approached the concerned District Forum by way of a Page 6 of 10 complaint. The complaint was resisted on the ground that it was a case of criminal misappropriation or breach of trust and not a case of theft. Rejecting the contention of the insurance company, the National Commission inter-alia held as under:-
"After considering the arguments of the learned counsel for the parties we have come to the conclusion that the present case is one of theft. Criminal breach of trust is defined in sec.405 of the Indian penal code. There is nothing on the record to show that the driver had any dishonest intention to misappropriate or convert to his own use the taxi-car when he left Taxi stand Kamla Nagar Market on the night in question with passengers in it. It is possible that the driver might have been murdered or relieved of the taxi by the passengers. It was for the respondent company to allege and prove that the case falls under sec.405, Indian Penal Code. There is the bare allegation of the respondent company that the case is of criminal misappropriation or breach of trust. The case had been investigated by an officer of the respondent company. It has not been stated by the company that said investigation revealed facts contrary to the facts alleged by the complainant.
Even if it is assumed that the driver dishonestly took away the taxi-car, even then the case would fall under sec.378, Indian Penal Code wherein 'theft' has been defined. The present case is fully covered by illustration (d) appended to that section. The said illustration reads as follows:
(d) A, being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly runs away with the plate, without Z's consent.
A has committed theft. In the present case the driver was entrusted with the taxi-car.
He did not take it back to Dehradun but has gone away somewhere either with the Page 7 of 10 passengers or after they had alighted from it on way to Dehradun. As noticed earlier, the taxi-car was to ply only between Dehradun and Delhi. Thus the driver in the present case will be deemed to have committed theft of the tax-car.
14. The question whether criminal breach of trust is covered under the insurance policy, was also considered by the National Commission in United India Insurance Co. Ltd. vs. Ravi Kant Gopalka, IV (2007) CPJ 32 (NC) by a Bench of three Members. In the aforesaid case also contention of the insurance company was that the police had registered a case under Section 406 IPC and the act of taking away of the truck would not amount to theft. The National Commission rejected the contention and held that the said loss of car could also be construed to be covered by the general category of malicious act, a set of grounds used in the policy. The National Commission also held that the exclusion clause nowhere provides that an offence under Section 406 IPC is excluded.
15. Relying upon the aforesaid judgments, the National Commission in Oriental Insurance Company Ltd. v. Paramjit Kaur II (2016) CPJ 67 (NC) has held that where a driver takes the vehicle and then does not return such an act will amount to a malicious act and therefore loss would be covered under the insurance policy taken by the owner of the vehicle.
Page 8 of 10
16. In view of above discussion, the contention of the appellant/OP that the present case is a case of criminal breach of trust and not of theft and as such loss is not covered under the terms and conditions of the policy is rejected.
17. The contention of the appellant/OP that police had registered FIR under Section 381 I.P.C. and not under Section 379 IPC as such the claim is not payable has also no force. The aforesaid contention has been dealt with by the Ld. District Forum in the impugned order as under:
"The sole ground for rejection of the claim was that the FIR was recorded by the police u/s 381 IPC and not u/s 379 IPC. The company will indemnify the complainant of loss or damage to the motor truck and/or its accessories for burglary, house breaking or theft and by malicious act. The respondent in its own written arguments in para no.5 submitted that section 381 IPC itself is clear. It is theft by an employee or servant, but it is a theft. Whether theft is committed by an unknown person or by a known person like its own employee or clerk, the theft remains theft and for the purpose of defining aggravated circumstances and providing enhanced punishment in case of theft by clerk or employee a separate section is written in the IPC but when something is stolen by an employee, it does not lose the basic character of the offence that it is theft.
18. We find no reason to disagree with the aforesaid reasoning given by the Ld. District Forum. The policy nowhere excludes loss or damage of the vehicle on account of theft by an employee. Page 9 of 10
19. In view of the above discussion, we find no illegality in the impugned order. A well reasoned order has been passed by the District Forum.
20. Appeal stands dismissed. There is no order as to costs.
21. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. Record of District Forum be also sent back forthwith.
File be consigned to Record Room.
(Justice Veena Birbal) President (Salma Noor) Member Tri Page 10 of 10