State Consumer Disputes Redressal Commission
M/S Jai Jagdish Logistics vs Reliance General Insurance Company Ltd on 12 December, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.).
Appeal No.FA/13/286
Instituted on : 18.04.2013
M/s Jai Jagdish Logistics,
Through : Partner Shri Ashok Singhania,
S/o Shri Virdhichand Singhania,
Address : 18A, Millenium Plaza, Banstal,
Raipur (C.G.) ... Appellant.
Vs.
Reliance General Insurance Company Ltd.
Through : Their Branch Manager, Branch Office,
Shop No.412 & 413, 4th Floor, Ravi bhawan,
Jaistambh Chowk, Raipur,
Tehsil & District Raipur (C.G.) ... Respondent.
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Sudipto Gupta, for appellant.
Shri S. Pandya for respondent.
ORDER
Dated : 12/12/2013 This appeal is directed against the order dated 20.02.2013 passed by the District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth called 'District Forum' for short) in Complaint Case No.532/2011, whereby the complaint filed by the complainant / appellant has been partly allowed and O.P. / Insurance Company, has been directed to pay a sum of Rs.13,33,409/- to the appellant/complainant along with interest @ 6% p.a. with effect from the date of filing of the complaint i.e. 21.06.2011 till date of payment. The //2 // O.P. / Insurance Company has been further directed to pay a sum of Rs.10,000/- as compensation for mental agony and Rs.3,000/- as Advocate fees & cost of litigation to the complainant.
2. It is an admitted fact the complainant is a registered partnership firm and is engaged in automobile business. The complainant is owner of Highwa Truck bearing registration no.C.G.04-J.B.-1251, and it was insured by the O.P./Insurance Company under Vehicle Package Policy No.2303782343002161 for the period from 27.08.2008 to 26.08.2009.
3. Brief facts of the case are that on 06.03.2013 the driver of the said vehicle which was loaded with truck, has absconded, regarding which intimation was given to Police Station, Simga, on, the basis of which the Police registered crime No.78/09 under Section 407 IPC against the absconding driver of truck. After investigation, the Police closed the crime case on 30.07.2009 because the accused driver of the truck could not be traced. The complainant immediately intimated the same to the O.P. and submitted claim form along with all necessary and relevant document and requested to settle the claim at the earliest. Without any reasonable ground, the O.P. kept pending the claim of the complainant. This act of the O.P. comes in the category of deficiency in service. Therefore, the complainant filed complaint before the District Forum seeking I.D.V. of the vehicle Rs.17,77,878/- along with interest @ 12% p.a. and Rs.50,000/- towards compensation for mental, physical agony and financial loss.
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4. In the written version, the O.P. / Insurance Company denied the allegation levelled by the complainant in the complaint and averred that the complaint filed by the complainant is barred by time.
5. District Forum after having considered the material placed before it by both the parties partly allowed the complaint and directed the O.P. / Insurance Company, to pay a sum of Rs.13,33,409/- to the appellant/complainant along with interest @ 6% p.a. with effect from the date of filing of the complaint i.e. 21.06.2011 till date of payment. The O.P. / Insurance Company has been further directed to pay a sum of Rs.10,000/- as compensation for mental agony and Rs.3,000/- as Advocate fees & cost of litigation to the complainant.
6. Learned counsel for the appellant / complainant argued that the District Forum has erred in not awarding the Insured Declared Value of the vehicle Rs.17,77,878/- and has only awarded Rs.13,33,409/- which is not proper. He prayed that the respondent / O.P. / Insurance Company be directed to pay the Insured Declared Value of the vehicle to the complainant.
7. Learned counsel for the respondent/O.P. supported the impugned order.
8. We have heard learned counsel for the parties and have also perused the record of the District Forum.
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9. The first information report lodged by Dharmendranath Mishra before the Police Station, Simga, District Raipur is available on record as document C-6. He lodged First Information No.78/2009, for the offence under Section 407 I.P.C. on 08.03.2009. In the First Information Report , it is mentioned that ^^ifjoknh QeZ t; txnh'k ykWftfLVd xksna okjk jk;iqj dk ekfyd gS** t; txnh'k ds uke ls Vªd dza0 lh-th-04 ts-ch- 1251 dk Lokeh gSA okgu dk pkyd lq[knso flag dks 3 ekg iwoZ ls fu;qDr fd;k x;k FkkA pkyd lq[knso flag mDr okgu dks ysdj fnukad 05-03-09 dks fcykliqj x;k Fkk-------------------le; ij okil ugha vk;k] rc eSa dy fnukad 07-03-09 dks irk djus fcykliqj x;kA fcykliqj esa fnukad 07-03-09 dks eky [kkyh dj mlh fnukad dks NRrhlx<+ ikoj dksy csfufQfl;y fyfeVsM fcykliqj ls dks;yk yksM dj fnukad 07-03-09 dks jk;iqj ds fy;s fudyk ,slk [kkstus ij irk pyk] ijarq pkyd lq[knso flag Vªd ,oa yksM dks;yk ds lkFk Qjkj gSA**
10. From the bare perusal of First Information Report, it is clear that that the driver of the vehicle Sukhdev Singh took the truck from Raipur to Bilaspur and thereafter he loaded coal from Chhattisgarh Power Coal Beneficial Ltd. Driver did not return back to Raipur, then the appellant/complainant started to search about the driver and his truck and when he could not trace the driver and the vehicle, thereafter he lodged First Information Report against the driver in Police Station, Simga, District Raipur (C.G.). The date of incident was 07.03.2009 and //5 // first information report was lodged on 08.03.2009. The First Information Report was lodged immediately when the owner of the truck had not succeeded to trace the vehicle. It appears that the First Information Report was lodged without any delay. According to the appellant/complainant, Police Station, Simga investigated the matter and ultimately submitted final report No.39/2009 before Judicial Magistrate First Class, Raipur on 30.07.2009. Thereafter the complainant/appellant filed his claim before the Insurance Company.
11. In the case of National Insurance Company Ltd. Vs. Kamal Singhal, IV (2010) CPJ 297 (NC), Hon'ble National Commission has held that "There has been catena of decisions of the National Commission and also Hon'ble Apex Court and the issue is no longer res integra that in case of theft of vehicle, issue of breach of policy condition (s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. v. J.P. Leasing & Finance Pvt. Ltd., (R.P No.643 / 2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (R.P. No.2097), (3) New India Assurance Co. Ltd. v. Sou. Bahrati Rajiv Bankar, (RP No.3294 / 2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009). There has been a landmark judgment of Hon'ble Apex Court in the matter of National Insurance Company Ltd. v Nitin Khandelwal, IV (2008) CPJ 1 (SC), where the Hon'ble Apex Court held that in the matter of theft of vehicle, //6 // breach of conditions of policy was not germane and also held further "the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance Company ought to have settled the claim on 'non-standard 'basis".
12. In case of M/s New India Assurance Co. Ltd. & anr. Vs. Sh. Ajit Kumar, 2013 (4) CPR 4 (NC), Hon'ble National Commission has held in paragraph no.6 that :-
"6. From the factual matrix of the case, it becomes abundantly clear that the complainant has violated the terms and conditions of the policy, by leaving the car unlocked on the road-side in the late hours of the night. As per the version contained in the complaint, he took away the ignition key with him and the duplicate key was in a briefcase inside the car, whereas in his own statement before the investigator, the complainant stated that the main key had been taken away with the car and the duplicate key was with him. There is a clear contradiction in the stand taken by the complainant in his complaint and in his statement made before investigator. Had the ignition key been with him, he would have mentioned this fact in FIR and submitted key along with FIR to Police Station. Further, it is very clear that the complainant had his office at District Centre, Janakpuri and at the time of alleged incident, he was going to his residence at 'C' Block Janakpuri. It is highly improbable that while travelling from his place of work to his residence, both of which are located in the same colony of New Delhi, the complainant felt such a strong urge for urination that he had to stop his car on a public road and then go for urination. The investigation made by the Police by which they have sent untraced report, makes it appear that it is a concocted story built-up by the complainant for lodging claim with the insurance company. It has been stated in the report of the investigator that the complainant unofficially informed him that his car was snatched from the same spot by //7 // some unknown persons at gun-point. The investigator reached the conclusion that the complainant failed to take care of the car as is expected from a person of ordinary prudence. It has been stated in the written statement filed by the insurance company that the maxim "sic utere tuo at alienum loedas" - A person is held liable at law for the consequence of his negligence."
13. In the case of Amalendu Sahoo v. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC), Hon'ble Supreme Court has observed in paragraph Nos.12 that :-
"12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh, reported in II (2006) CPJ 83 (NC) = 2006 CTJ 221 (CP) ((NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non- standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company v. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC) = 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held :
"...... The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis."
13. In the case of National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC), Hon'ble has observed in paragraph Nos.12 & 14 as under :-
//8 // "12. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
14. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission"
14. Learned District Forum after taking into consideration the aforesaid facts as well as affidavit filed by the appellant/complainant, has allowed the claim on non-standard basis.
15. Looking to the First Information Report, it appears that the driver Sukhdev Singh took the vehicle and he absconded truck bearing No. C.G.04-J.B.-1251. It is also apparent that the said vehicle was entrusted to driver Sukhdev Singh and thereafter he absconded and took the vehicle along with him. Therefore, on the basis of above facts and circumstances, learned District Forum, allowed the claim on non standard basis, which is just and proper and does not call for any interference by this Commission.
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16. Considering the aforesaid material, we find that learned District Forum, has not committed any error in allowing the complaint of the appellant/complainant, in part.
17. In view of the aforesaid discussions, we do not find any substance in the appeal, the same is liable to be dismissed and is hereby dismissed.
No order as to the cost of the appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/12/2013 /12/2013