State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs M/ Babu Lal Sood And Sons. on 10 December, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.: 45/2014
Date of Presentation: 06.02.2014
Date of Decision: 10.12.2015.
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National Insurance Company Limited,
Branch Office, The Mall, Solan, Himachal Pradesh,
Through its Divisional Manager,
Divisional Office, Himland Hotel,
Circular Road, Shimla- 171 001.
... Appellant.
Versus
M/s. Baboo Lal Sood and Sons,
Railway Road Solan,
District Solan, Himachal Pradesh,
Through Its Proprietor Mr. Vishal Sood.
...Respondent
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Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1.Yes.
For the Appellant: Mr. Bhupinder Pathania, Advocate.
For the Respondent: Ms. Megha Kapoor Gautam, Advocate
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O R D E R:
Justice Surjit Singh, President (Oral) This is an appeal filed by the opposite party against the order dated 21.10.2013, of learned District Consumer Disputes Redressal Forum, Solan, whereby a complaint, under Section 12 of the Consumer Protection Act, 1986, filed against the appellant by respondent, M/s. Baboo 1 Whether reporters of the local papers may be allowed to see the order? National Insurance Company Ltd. Versus M/s. Baboo Lal Sood & Sons (F.A. No.45/2014) Lal Sood, seeking indemnification for the theft of insured vehicle, has been allowed and a direction given to the appellant to pay a sum of `4,19,000/- , with interest at the rate of 9%, per annum, on account of insurance claim and also to pay `5000/-, on account of compensation & litigation expenses.
2. Respondent owned a Mahindra Pick- up, which was insured with the appellant, for the period from 02.06.2008 to 01.06.2009. Respondent alleged that it had engaged a regular driver to drive the vehicle, which was being used as goods carrier, but on 06.12.2008, his regular driver was on leave and, therefore, he hired one Rahul from Mahindra Pick-up Union to drive the insured vehicle, as some goods were required to be urgently carried from Solan to Chambaghat, a place at a distance of 3-4 kilometres from Solan town. Rahul drove the vehicle with goods loaded therein to Chambaghat in the evening. He delivered the goods at the destination, but did not return. Search was made throughout the night. 2 National Insurance Company Ltd. Versus M/s. Baboo Lal Sood & Sons (F.A. No.45/2014) Next day also, insured kept on searching for the vehicle and the said Rahul, whose services were hired, as driver, but there was no trace. Ultimately, at 6.00 PM, on 07.12.2008, report was lodged with the police. On the next following day, i.e. 08.12.2008, appellant was informed of the theft of insured vehicle. Claim was lodged with it. Appellant repudiated the claim on two grounds, viz. intimation of alleged theft had not been given to it immediately and also the policy covered the risk of theft, whereas the loss of insured vehicle was due to dishonest misappropriation by a servant of the insured.
3. Respondent felt aggrieved by repudiation of his claim and lodged a complaint, under Section 12 of the Consumer Protection Act, 1986. Direction was sought to the appellant to pay money equivalent to the sum insured and also to pay compensation & litigation cost. Appellant contested the complaint on the same grounds, on which the claim had been repudiated. Learned District Forum, vide impugned order, has 3 National Insurance Company Ltd. Versus M/s. Baboo Lal Sood & Sons (F.A. No.45/2014) allowed the complaint and directed the appellant, as aforesaid.
4. We have heard learned counsel for the parties and gone through the record.
5. Of course, the alleged theft had taken place on 06.12.2008, late in the evening and report with the police was lodged on the next following day in the evening at 6:00PM. Intimation of the alleged theft was given to the appellant on 08.12.2008. Appellant's plea is that intimation of the incident was required to be given to it immediately, as per terms & conditions of the policy. We do not find terms & conditions of the policy on record of the learned District Forum. In the absence of terms & conditions of the policy, it cannot be said that, in fact, there is any condition in the policy for immediate intimation of loss, by theft, to the insurer.
6. Even if it be assumed for the sake of argument that there is a condition in the policy that intimation is required to be given immediately, interpretation of word 'immediately' 4 National Insurance Company Ltd. Versus M/s. Baboo Lal Sood & Sons (F.A. No.45/2014) would vary from case to case, depending upon the facts & circumstances of each case. In the present case, the respondent had hired services of a driver, registered with the Union of Mahindra Pick-ups, just for one trip from Solan to Chambaghat. Distance between two points is 3-4 kilometres only. Vehicle was taken by the driver, so engaged, late in the evening. He delivered the consignment at the destination, but did not return. Respondent, per contents of the police report, Annexure-II, searched for the vehicle and the driver throughout the night and when, he could not find any trace of the vehicle or the driver, he lodged report with the police on the next following day at 6:00PM.
7. By the time, respondent lodged report with the police, office of the appellant was supposed to have closed for the day because normal office working hours of insurance companies are 10:00AM to 5:00PM and this is particularly so during the winter season when sun sets around 5:30PM. Report of the incident was 5 National Insurance Company Ltd. Versus M/s. Baboo Lal Sood & Sons (F.A. No.45/2014) lodged with the police on 07.12.2008 and around this date, sun sets before 5:30PM. On the very next day, i.e. 08.12.2008, respondent informed the appellant about the theft.
8. The fact that report with the police was lodged on 07.12.2008, suggests that it was only on that date that the respondent entertained a suspicion that driver had fled with the vehicle. The inference is strengthen by the fact that in the police report, Annexure-II, it is recorded that earlier the respondent had been searching for the vehicle and the driver, which implies that the respondent did not suspect that driver had run away with the vehicle and by the time, he entertained the suspicion and lodged report with the police, office of the appellant had closed for the day and, therefore, intimation could have been given only on the next following day and on that day, the respondent intimated the appellant, in writing, through Annexure-III. Thus, it cannot be said that intimation of loss of the vehicle was not given to the appellant immediately or promptly. 6 National Insurance Company Ltd. Versus M/s. Baboo Lal Sood & Sons (F.A. No.45/2014)
9. Next contention of the appellant is that this is not a case of theft, but one of criminal misappropriation and policy does not cover the peril of loss by criminal misappropriation. This contention also merits rejection; first because the terms & conditions of the policy are not on record and, therefore, it cannot be said whether the policy covers the peril of theft only and not of loss by criminal breach of trust; secondly, even though in the report lodged with the police, it is recorded that driver had committed criminal breach of trust, that by itself, would not make the case to be that of criminal breach of trust. It is the facts and circumstances of the case, which are to be considered by law knowing person/body to determine whether the case would be of that of criminal breach of trust or theft. There can be cases where theft is committed by the servants, entrusted with the care of very property, which they are accused of stealing. Theft is defined in Section 378 IPC. The definition reads that whoever, intending to take dishonestly any 7 National Insurance Company Ltd. Versus M/s. Baboo Lal Sood & Sons (F.A. No.45/2014) moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
10. Some illustrations of theft are given below Section 378 IPC and one of the illustrations, i.e. illustration (d), reads as follows:-
"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."
11. In the present case, respondent had hired the services of Rahul, only for a single trip, with instructions to carry and deliver the consignment at a nearby place and to return with the vehicle. Driver was given the vehicle only for the purpose of driving it to a particular point & back. He delivered the consignment at the destination, but ran away with the vehicle. Case of his running away with the vehicle is covered by illustration (d). 8 National Insurance Company Ltd. Versus M/s. Baboo Lal Sood & Sons (F.A. No.45/2014)
12. A similar question arose before the Hon'ble National Commission in S. Bhagat Singh Versus Oriental Insurance Company Limited, II(1991) CPJ 700, where a driver, engaged by the insured, had disappeared with the taxi car. Relying upon illustration (d), below Section 378 IPC, it was held that this was a case of theft and not a case of dishonest misappropriation. This Commission, replying upon the aforesaid precedent of Hon'ble National Consumer Disputes Redressal Commission, in National Insurance Company Versus Reen Panwar, 2012 (3) CPR 161, has also held that in this kind of fact situations, the act of driver would fall within the mischief of Section 378 IPC and the insurance company cannot escape liability on the plea that act of the driver in disappearing with the vehicle does not amount to theft.
13. As a result of the above discussion, appeal is dismissed.
9 National Insurance Company Ltd. Versus M/s. Baboo Lal Sood & Sons (F.A. No.45/2014)
14. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member December 10, 2015.
DKM) 10