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2005 (2) CPR 373
UTTAR PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, LUCKNOW
Sri Roop Singh, Presiding Member and Sri Raghunath Prasad, Member
Smt. Kanchan Rathore—Complainant
versus
The Oriental Insurance Company Ltd. and others—Opposite Parties
Complaint Case No. C/65/1999
Decided on 4-3-2005
Counsel for the parties :
For the Complainant :Sri S.K. Srivastava, Advocate.
For the Insurance Co. :Mr. Vineet Srivastava, Advocate.
For the Bank :Smt. Usha Jain, Advocate.
IMPORTANT POINT
The vehicle which was comprehensively insured against theft includes loss of vehicle committed by Driver and
Cleaner.
Headnote:(i)Consumer Protection Act, 1986 — Section 17(1)(a)(i) — Complaint about deficiency in insurance service — Repudiation of claim on ground not covered under policy — Comprehensive vehicle Insurance against theft — Vehicle disappearing with Driver and Cleaner when gone on commercial voyage — F.I.R. lodged for breach of trust — Insurance Co. paying it is not covered under theft — Whether correct ? (No) (I.P.C. 1860 Sections 406 and 378) Case law cited.
Held: Mere lodging of F.I.R. under Section 406, I.P.C. the repudiation of claim for that reason alone is not tenable as Section 378 I.P.C. illustration (d) clearly entitles and cover the contingency which has occurred in this case, that the person who had been entrusted with an article or an item of goods dishonestly runs away, it shall be deemed that the theft has been committed. Thus, these points do not carry any hindrance in proceedings with the case determining on merits.(Para 8)
In the instant case, thus, it is clear that the vehicle which was comprehensively insured whose details have been furnished above in the body of judgment was subject matter of theft as alleged by the complainant and as stated in the body of the judgment. Now, we are of the view that the vehicle in question was comprehensively insured and the liability of indemnification is of the answering opposite parties 01 and 02 i.e. Insurance Company. We are satisfied that the repudiation has been wrongly done. We are setting aside the repudiation made by the Insurance Company.(Para 9)
(ii)Consumer Protection Act, 1986 — Section 17(1)(a)(i) r/w 14(1)(d) — Assessing loss sustained by insured of theft of her insured Truck — Market price of the vehicle — Depreciation of its use — Less deduction for rubber, nylone, plastic parts, tyres and battery etc. — Rs. 4,72,827/- assessed as total indemnified liability — Direction given to Insurance Co. to pay it to insured with interest @ 9% p.a. from date of complaint till payment because of wrong repudiation.(See Paras 11, 12, 13).
Result : Complaint allowed.
Raghunath Prasad, Member—A complaint under Section 17(1) of Consumer Protection Act has been filed for claiming a compensation of Rs. 6,50,000/- on the ground that the complainant purchased a new Truck Tata L.P.T. 1612 with the financial assistance of Opposite Party No. 4 on Rs. 6,50,000/- which was subsequently registered as U.P. 42-B/8750 and the Opposite Party No. 4 insured the above noted truck as full comprehensive insurance for the period 29-4-1997 to 28-4-1998 after accepting the premium of Rs. 11,984/-. The insurance of truck was in accordance with the goods carrying commercial vehicle insurance Policy ‘B’. On 14-10-1997 the truck in question was loaded with Alsi and Khalli by the Kedia Forwarding Agency from Nawabganj, District Gonda, through the Firm Ashok Kumar Manish Kumar and boarded on 16-10-1997 for Sivan State of Bihar. At that time Chavilal S/o Sarju Prasad, R/o Mohalla Sahabganj, District Faizabad was the Driver having valid driving licence and his assistant was Surjeet working as Khalasi. After delivering the goods at its destination the truck did not come back and even the driver and Khalasi did not come back. After waiting for a week the search was made but no information could be received neither about the truck in question nor about the driver and khalasi of the truck and subsequently a F.I.R. was lodged by the Inspector, Kotwali, Faizabad on 19-11-1997. The application dated 24-11-1997 subsequently was submitted to the Opposite Party No. 2 stating the entire fact about the theft alongwith a copy of the F.I.R. The claim was also submitted on 4-6-1998. Inspite of sending several applications, the claim towards the indemnification was not liquidated by the Insurance Company, hence the complaint has been filed. It was also mentioned in the complaint that the Final Report was submitted on 12-7-1998 which was also accepted by Chief Judicial Magistrate, Faizabad on 30-7-1998.
2. Vide letter dated 23-3-1999 the claim of the petitioner was rejected on the ground that the loss was caused to the petitioner due to the breach of addressed which is exception to the policy and does not come under the comprehensive policy. In support of the complaint certain documents too were filed.
3. In the written statement the Opposite Party No. 4 i.e. State Bank of India, Faizabad admitted that the complainant had purchased the aforesaid truck with the financial assistance of the Opposite Party No. 4 which was hypothecated in favour of the bank. It was also taken as a plea that since there is no grievance against the Opposite Party No. 4, the complaint against the Opposite Party No. 4 is not maintainable and the matter in dispute is not a consumer dispute qua Opposite Party No. 4.
4. The opposite party No. 1 to 3 i.e. Oriental Insurance Company Limited in its written statement justified the repudiation and partly denying and partly accepting the stand asserted that the matter was investigated by Sri Vipin Kumar Shukla, Surveyor and Loss Accessor who submitted his investigation report dated 15-9-1998 and concluded that the loss was genuine. It was further averred that the matter was processed in the light of the policy terms and conditions and the Insurance Rules & Requirements, the claim was negated and its intimation was sent to the complainant. It was also averred that as per F.I.R. lodged by the complainant, the Police registered the same under Section 406 I.P.C. which covers the crimes due to “Breach of Trust” and the loss due to “Breach of Trust” is not the loss due to theft which is governed by Section 378 and Section 379 I.P.C. It was also specifically pleaded that although the loss suffered by the Insured is genuine but the manner in which it has taken place is not covered under the Policy
and thereby the liability has been denied by insurer. It was also pleaded that in
a commercial vehicle, if the vehicle
goes out of the possession of the owner with his/her free consent and agreement through their own employees i.e.
