State Consumer Disputes Redressal Commission
Gurmeet Kaur vs The Oriental Insurance Co. Ltd on 11 March, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision:11.03.2008 Complaint No . C-06 / 1999 Smt. Gurmeet Kaur .. Complainant. W/o Sh. Gurinder Singh, BG 493, Sanjay Gandhi Transport Nagar, Badli, Delhi 1100 42. Versus The Oriental Insurance Co. Ltd., Opposite Party Registered and Head Office Asaf Ali Road, New Delhi-1100 01. CORAM: Justice J.D. Kapoor, .. President Ms. Rumnita Mittal, .. Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. The complainant has claimed compensation of Rs. 14 lacs, 50 thousand on account of repudiation of the claim on flimsy grounds.
2. Facts of the case in brief are that the Truck NO.DL1GA 8537, was attached with Sukhchain Transport Company BG-493, Sanjay Gandhi Transport Nagar, Badli, Delhi and was comprehensively insured with the OP for a sum of Rs.6,80,000/- for a period of one year from 13.08.1996 to 12.08.1997 vide policy No.2630, on payment of premium of Rs.9445/-. On 20.07.1997 the said truck was sent loaded with mustard to Purullia, West Bengal from Delhi which was being driven by Raj Kumar Driver. On 31.07.1997 a phone call was received from the owner of consignment from Purillia West Bengal, that the consignment has not reached. Inspite of the inquiries the whereabouts, of the driver and truck as well as goods could not be known. Unable to trace the truck husband of the complainant who runs the said transport company made a complaint with the local police on 05.08.1997. A claim was also lodged with the OP immediately on 05.08.1997. Inspite of the efforts made by police, the truck could not be found and no trace certificate was made available to the OP. the OP sat over the matter and appointed the surveyor only after one month. No reply was received from the OP for a period of almost six months. After waiting for almost one year the complainant received a shock through a letter of the OP dated 24.07.1998 whereby the OP repudiated the claim of the complainant on the flimsy ground that the police had lodged an FIR under section 407 of the IPC (criminal breach of trust). The complainant has therefore filed this complaint on the ground that it is a case of theft and as such fully covered under the terms and conditions of the policy and the OP has repudiated the claim illegally.
3. OP insurance Company denied any deficiency in service on its part and averred that the FIR which was registered on the basis of the complaint on behalf of the complainant categorically stated that the complainant had reasons to believe that the driver Raj Kumar alias Raju had fled with the truck and the goods.
FIR No.566 of 1997 was registered by the police under section 407 IPC pertaining to criminal breach of trust. There had been no delay in the appointment of the surveyor. The insurer after due consideration of the material facts and circumstances came to the conclusion that the police had lodged an FIR under section 407 IPC (criminal breach of trust) as the driver was missing with the truck and goods and the driver who represents the registered owner and he himself being missing, claim does not fall within the purview of the policy terms and conditions. Accordingly the claim was repudiated. No deficiency in service can be attributed to the insurer as the decision to repudiate the claim had been taken after due consideration of all facts and circumstances.
4. It is strange that the public officers of insurance companies are indulging in acts of misfeasance and thereby causing immense harassment and agony to the consumers by rejecting their rightful claim on highly flimsy grounds. In the instant case, the claim of the complainant was rejected on the ground that the FIR has been registered under section 407 of IPC and not under section 379 of IPC.
5. In the instant case all the aforesaid five ingredients are present. The complainant has no control over recording of FIR under particular offence nor has he legal knowledge as to the ingredients of criminal offence.
6. Theft has been defined by section 378 of the IPC punishable under section 379 IPC as under:
378.
Theft.- Whoever, intending to take dishonestly any moveable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft.
7. From the aforesaid definition following five factors are essential to constitute theft:-
(i) Dishonest intention to take property.
(ii) The property must be movable
(iii) It should be taken out of the possession of another person.
(iv) It should be taken without the consent of that person.
(v) There must be some removal of the property in order to accomplish the taking of it.
8. We want to bring to the notice of the public officers of the insurance company that such an approach and their conduct can be branded as malafide, oppressive and arbitrary, and therefore any amount of compensation can be recovered from their salary. This is mandate of the Honble Supreme Court given in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65. Observations of the Supreme Court in this regard are very pithy and needs to be reproduced and are as under::
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
The Commission/Forum must determine that such sufferance is due to mala fide or capricious or oppressive etc. It can then determine the amount for which the authority is liable to compensate the consumer for this sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of the law. It acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil. It will hopefully result in improving the work culture and in changing the outlook of the officer/public servant. No authority can arrogate to itself the power to act in a manner which is arbitrary. Matters which require immediate attention should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and also direct recovery from those found responsible for such unpardonable behaviour.
9. It is a case of grossest negligence and deficiency in service on the part of the OP and as such the complaint is allowed with the direction to the OP to pay Rs.6,80,000/- towards the indemnification of the loss by way of total loss less 10% depreciated value of the vehicle besides Rs.2,00,000/- towards compensation for mental agony harassment and other sufferings suffered by the complainant. The payment shall be made within one month from the date of receipt of this order.
10. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
Announced today on 11th day of March 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri