State Consumer Disputes Redressal Commission
Oriental Insurance Co.Ltd. vs Abdul Shamad on 15 September, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2016/212
Instituted on : 25.06.2016
Oriental Insurance Company Limited,
Through - Divisional Manager,
Rama Trade Centre, Opposite Rajiv Plaza,
Old Bus Stand Road,
Bilaspur, District Bilaspur (C.G.) ..... Appellant
Vs.
Abdul Shamad S/o Shri Wahid, Aged 47 years,
R/o : Lalkhadan, District Bilaspur (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Pankaj Agrawal, for the appellant.
Shri Ghanshyam Patel, for the respondent.
ORDER
Dated : 15/09/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 04.04.2016, passed by the District Consumer Disputes Redressal Forum, Bilaspur (C.G). (henceforth "District Forum" for short), in Complaint Case No.CC/12/2015. By the impugned order, learned District Forum, has allowed the complaint of the complainant and it has been directed that :-
(1) The O.P. (Insurance Company) will pay within a period of one month from the date of order a sum of Rs.13,00,000/- (Rupees // 2 // Thirteen Lakhs) which is Insured Declared Value of the vehicle in question to the complainant along with interest @ 9% p.a. from the date of filing of the complaint i.e. 13.01.2015 till date of payment. (2) The O.P. (Insurance Company) will pay a sum of Rs.50,000/-
(Rupees Fifty Thousand) towards compensation for mental agony to the complainant.
(3) The O.P. (Insurance Company) will pay a sum of Rs.5,000/-
((Rupees Five Thousand) to the complainant as cost of litigation.
2. Briefly stated the facts of the complaint of the complainant are that the complainant had purchased the tata truck bearing registration No.C.G.10-C-4861 from the Tata Motors on 30.08.2010. The said vehicle was insured with the O.P. (Insurance Company) for the period from 29.07.2013 to 28.07.2014. The Insured Declared Value of the vehicle was Rs.13,00,000/-. The driver of the complainant Tauhid Ali loaded the goods in the vehicle from Village Gatauri and went to Raipur. When the complainant came to know that the driver could not reach to destination i.e. Raipur then on 01.12.2013 he contacted to driver Tauhid Ali but he could not receive any information, therefore, on 02.12.2013 the complainant made written complaint at Police Station Koni. The Police investigated the matter. The complainant also searched the vehicle but when the vehicle could not be searched, then Crime No.50/2014 under Section 381 IPC was registered against driver Tauhid Ali. When the driver was not arrested, then charge sheet was filed against driver Tauhid Ali // 3 // before Judicial Magistrate First Class, Bilaspur under Section299 IPC and the driver was declared absconder. After the incident of theft of the vehicle, the complainant immediately sent intimation to the O.P. (Insurance Company) on 05.12.2013 regarding theft of the vehicle. On 25.11.2014, the O.P. (Insurance Company) informed that a sum of Rs.13,00,000/- has been sanctioned as compensation and instructed to submit affidavit in this regard. The complainant prepared affidavit, but on 10.12.2014, the O.P. repudiated the claim of the complainant by saying that the vehicle in question was given to the person, who did not fraudulently return the vehicle and the vehicle was not stolen and external violence was not used for taking the vehicle, hence the vehicle was mis- appropriated, which did not cover under the terms and conditions of the insurance policy. The vehicle bearing registration No.C.G.10-C-4861 was insured with the O.P. (Insurance Company) for Rs.13,00,000/-, but after incident of theft of the vehicle in question, the O.P. (Insurance Company) did not pay the IDV of the same to vehicle to the complainant and committed deficiency in service. Hence the complainant has filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The O.P. filed its written statement and averred that Tata truck bearing registration No.C.G.10/C-4861 was insured by the O.P. as per terms and conditions of the insurance policy for the period from 30.07.2013 // 4 // to 29.07.2014. On 05.12.2013 the complainant submitted Motor Claim Form along with letter before the O.P. (Insurance Company) and informed the O.P. (Insurance Company) that his driver Tauhid Ali, loaded the vehicle from Satya Power, Bilaspur and went to Raipur but after unloading the vehicle, the driver along with vehicle is missing and he is a doubt that the driver had taken the vehicle with intention to steal the same. The matter was reported to the Police Station, Koni. When the O.P. (Insurance Company) received information from the complainant regarding the incident, Shri Raghunath Prasad Agrawal, Surveyor was appointed as Investigator, who investigated the matter and submitted his report before the O.P. (Insurance Company), in which he mentioned that report regarding theft of the insured vehicle was lodged before Police Station, Koni, Tehsil and District Bilaspur. Due to absconding of the driver of the vehicle, a charge sheet has been submitted on 30.08.2014 before Judicial Magistrate First Class, Bilaspur. The Course has refused to close the case and passed order that the case not be closed because permanent warrant is continued against the accused. In the criminal case the competent court has not filed any final order, therefore, the complaint filed by the complainant is premature, hence not maintainable and is liable to be dismissed. On the basis of Investigation Report, it is found by the O.P. (Insurance Company) that in the vehicle in question on 25.11.2013 the goods sponge iron was loaded to sent the same to Raipur and the driver of the above vehicle had unloaded the goods in its destination on // 5 // 27.11.2013 and till then he was absconded along with vehicle. The O.P. (Insurance Company) found that according to Police Report the complainant himself voluntarily handed over the vehicle to driver Tauhid Ali. According to Police Report, the driver of the vehicle in question, without any external violence or accident, had taken the possession of vehicle with him. The case has been registered under Section 381 IPC. As per terms and conditions of the insurance policy if the vehicle is taken away without any external violence, which does not come in the category of theft or loot, then the Insurance Company is not liable to pay compensation. The claim of the complainant was repudiated by the O.P. and the same was informed to the complainant vide letter dated 10.12.2014 . No cause of action has been accrued to the complainant against the O.P, therefore, the complaint is liable to be dismissed. The O.P. did not inform the complainant that a sum of Rs.13,00,000/- has been sanctioned towards compensation and affidavit in this regard be submitted.
4. The complainant has filed documents. The documents are letter dated 05.12.2013 sent by the complainant to the Divisional Manager, The Oriental Insurance Company Limited, Bilaspur (C.G.), letter dated 10.12.2014 sent by the Divisional Manager, Divisional Office, The Oriental Company Limited, Bilaspur (C.G.) to the complainant, letter dated 28.03.2014 sent by the complainant to the Regional Transport Officer, // 6 // Bilaspur (C.G.), Vehicle Enquiry Report dated 25.11.2014, Letter of Undertaking, Subrogation Form, Certificate of Registration, Certificate of Fitness, Goods Vehicle Permit, Motor Insurance Certificate Cum Policy Schedule GCCV - Public Carriers Other Than Three Wheelers Package Policy - Zone - C issued by The Oriental Insurance Company Limited, Order Sheets dated 30.08.2014 and 19.06.2014 of Judicial Magistrate First Class, Bilaspur (C.G.), Final Report, letter dated 04.12.2013 sent by the complainant to Officer Incharge, Police Station Koni, District Bilaspur, First Information Report (Under Section 154 Cr. P.C.), Final Report (Under Section 173 Cr.P.C.), Investigation Report dated 20.11.2014 of Shri Raghunath Prasad Agrawal, Investigator, statement of the complainant recorded by the Investigator, Motor Claim Scrutiny Sheet, letter dated 10- 11/12-2014 sent by the Divisional Manager, Divisional Office, The Oriental Insurance Co. Ltd., Bilaspur (C.G.) to the complainant.
5. The O.P. has also filed documents. The documents are letter dated 04.12.2013 sent by the complainant to Incharge Officer, Police Station, Koni, District Bilaspur (C.G.) First Information Report (Under Section 154 Cr.P.C.), Final Report (Under Section 173 Cr. P.C.), Order Sheets dated 30.08.2014 and 19.06.2014 of Judicial Magistrate First Class, Bilaspur (C.G.), Investigation Report dated 20.11.2014 of Shri Raghunath Prasad Agrawal, Investigator, statement of the complainant recorded by the Investigator, Motor Claim Scrutiny Sheet, letter dated 10.11./12/2014 sent // 7 // by the O.P. to the complainant, Motor Insurance Certificate Cum Policy Schedule GCCV Public Carriers Other Than Three Wheelers Package Policy - Zone C. 6 Learned District Forum after having considered the material placed before it by the parties, has allowed the complaint of the complainant by the impugned order.
7. Shri Pankaj Agrawal, learned counsel appearing for the appellant (O.P.) has argued that the impugned order passed by the District Forum, is erroneous. In the instant case the driver of vehicle in question was servant of the complainant and there is a relationship of master and servant between the complainant and driver, therefore, the driver of the vehicle in question, is necessary party in the instant case, but the respondent (complainant) did not array the driver as party. In the instant case, offence of theft was not made out. The vehicle in question was entrusted to the driver and the driver mis-appropriated it, therefore, offence for misappropriate or breach of trust was made out. The vehicle in question was entrusted to the driver and the driver misappropriated the vehicle and therefore, offence under Section 381 IPC was made out, hence respondent (complainant) is not entitled to get compensation under the insurance policy. The vehicle in question was not stolen by the driver, but he misappropriated the vehicle, therefore, the above act, does not come within purview of theft, hence the Insurance Company is not liable to pay // 8 // compensation to the respondent (complainant). The impugned order passed by the District Forum is erroneous and is liable to be set aside.
8. Shri Ghanshyam Patel, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the District Forum and argued that offence under Section 381 IPC was made out against the driver of the vehicle in question, therefore the act of the driver comes within purview of theft. The vehicle in question was insured with the appellant (O.P.) , therefore, the appellant (O.P.) is not liable to pay compensation to the respondent (complainant). The learned District Forum has rightly awarded the Insured Declared Value of the vehicle in question to the respondent (complainant). The appeal is liable to be dismissed.
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
10. The theft was defined under Section 378 of Indian Penal Code, 1860 which runs thus :-
"Theft - Whoever, intending to take dishonestly any movable 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."
11. Section 381 of Indian Penal Code, 1860 runs thus :-
// 9 // "Theft by clerk or servant of property in possession of master - Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
12. The respondent (complainant) pleaded that driver of the vehicle in question namely Tauhid Ali loaded the goods from Village Gatauri and went to Raipur. When the respondent (complainant) came to know that the driver could not reach to destination i.e Raipur, on 01.12.2013 the respondent (complainant) contacted to driver Tauhid Ali, but he could not receive any information, therefore, on 02.12.2013 the respondent (complainant) made written complaint at Police Station, Koni, District Bilaspur. The respondent (complainant) filed copy of letter dated 05.12.2013, which was sent by the respondent (complainant) to the Divisional Manager, Oriental Insurance Company Limited, Bilaspur (C.G. in which it is mentioned that his truck bearing registered No.C.G.10-C- 4861 was insured with the appellant (O.P.) for the period from 30.07.2013 to 29.07.2014 and the same was loaded by driver Tauhid Ali from Satya Power, Bilaspur and had gone to Raipur for unloading and after unloading he is absconding along with truck. The respondent (complainant) also made written complaint before Police Station, Koni, District Bilaspur (C.G.)where Crime No.50/2014 for offence under Section 381 IPC was registered against driver Tauhid Ali. The appellant (O.P.) // 10 // has repudiated the claim of the complainant on the sole ground that vehicle in question was given to the person, who did not fraudulently return the vehicle thus the terms and conditions of the insurance policy has been violated. According to the terms and conditions of the insurance policy the vehicle should be taken from the possession of owner with the help of external violence, but in the instant case, the external violence has not been used by the driver, therefore, it does not come within purview of theft. The above contention of the Insurance Company is not acceptable.
13. In order to constitute theft five factors are essential :-
(1) Dishonest intention to take property.
(2) The property must be movable.
(3) It should be taken out of the possession of another person.
(4) It should be taken without consent of that person.
(5) There must be some removal of the property in order to
accomplish the taking of it.
14. In the instant case the driver of the vehicle in question took the vehicle, which is movable property and the truck was taken by driver with dishonest intention and it was taken out of the possession of its owner, therefore, the act of the driver comes within purview of theft which is punishable under Section 381 of the IPC.
// 11 //
15. In Police Station, Koni, District Bilaspur, offence under Section 381 of IPC was registered against the driver Tauhid Ali. The respondent (complainant) has filed copy of order sheet of Judicial Magistrate First Class, Bilaspur dated 30.08.2014, in which accused Tauhid Ali was declared as absconder under Section 299 Cr. P.C and permanent arrest warrant was issued against him for offence under Section 381 IPC. Therefore, it appears that driver Tauhid Ali had dishonestly took the vehicle from the possession of the respondent (complainant) which comes within purview of theft, which is covered under the insurance policy. The appellant (O.P.) has erroneously repudiated the claim of the respondent (complainant).
16. The respondent (complainant) has filed copy of insurance policy in which the Insured Declared Value (IDV) of the vehicle is mentioned as Rs.13,00,000/-. The insured vehicle was stolen by driver of the respondent (complainant), therefore, the respondent (complainant) is entitled for getting total Insured Declared Value of the vehicle . The District Forum, has rightly awarded Rs.13,00,000/- i.e. IDV of the vehicle in question to the respondent (complainant) and also rightly awarded interest @ 9% p.a. thereon from the date of filing of the complaint till date of payment.
17. So far as compensation for mental in concerned, the learned District Forum has awarded a sum of Rs.50,000/-, which is on higher side. In the facts and circumstances of the case, a sum of Rs.15,000/-, is just and // 12 // proper towards compensation for mental agony. The learned District Forum, has awarded a sum of Rs.5,000/- towards cost of litigation, which is just and proper and does not call for any interference.
18. In view of above discussions, we partly allow the appeal filed by the appellant (O.P.) and slightly modify the direction given by the District Forum in Clause (2) of Para 14 of the impugned order dated 04.04.2016 regarding compensation for mental agony and it is directed that instead of Rs.50,000/-, the appellant (O.P.) will pay a sum of Rs.15,000/- (Rupees Fifteen Thousand) to the respondent (complainant). Clause (1) and (3) of Para 14 of the impugned order, are hereby affirmed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 15/09/2016 15 /09/2016 15 /09/2016 15/09/2016