Sri Subhra Sankar Bhatta, Judicial Member
This First Appeal has been directed at the instance of the Appellant New General Trading and Transport Corporation, represented by Sri Amarjit Singh who was the Complainant before the Consumer Disputes Redressal Forum Unit—I, Kolkata (hereinafter referred to as ‘the District Forum’ for short) assailing the impugned order dated 05.07.2017 passed by the Ld. District Forum in Consumer Complaint Case No. CC/260/2015 wherein and whereby the Ld. District Forum was pleased to dismiss the complaint case on contest without costs against the OP.
Briefly stated, the facts of the complaint case are that the relationship between the Complainant and the OP/Insurance Company is that of Consumer and Service Provider. The OP/Insurance Company on receipt of Insurance Premium amounting to Rs. 12,494/- from the Complainant issued certificate-cum-policy being no. 2315/52801057/00/000 and promised to indemnify the loss, if any, occurred to the vehicle bearing Registration No. WB-23/B-1636 for the coverage period from 29.12.2012 to 28.12.2013.
Further case of the Complainant is that the said vehicle was loaded with 270 cartoons of Zarda at Guwahati for the purpose of transportation and delivery at Ranchi. The consignment was entrusted to M/S. NGT Freight Carriers of 12/4 Sayeed Salley Lane Kolkata—700007, by the consigner under the consignment note no. 77232 dated 19.11.2013 and the Complainant placed the vehicle for transportation of the consignment to M/S. NGT Freight Carriers but the vehicle along with the consignment did not reach its destination causing monetary loss to the Complainant being the insured value of Rs. 5,50,000/-. Complainant lodged an FIR over that incident before the concerned Police Station and also intimated the incident to the OP/Insurance Company being the insurer of the vehicle for settlement of claim. It has been specifically contended that the Complainant submitted the claim form before the Opposite Party/Insurance Company along with entire documents as desired by the Insurance Company. It has been also contended that the vehicle in question crossed Assam Bengal check post on 23.11.2013 and afterwards the said vehicle was found missing. The Complainant was compelled to file an FIR on 19.11.2013 before the concerned Police Station. The Opposite Party Insurance Company repudiated the claim of the Complainant vide its letter dated 21.07.2014. The Complainant’s subsequent request vide letter dated 16.09.2014 to reconsider the repudiation of the claim was also turned down from the end of the Insurance Company. Subsequently, the Opposite Party/Insurance Company appointed commercial investigation Bureau for necessary enquiry over the incident. The Complainant co-operated with the investigating officer and also furnished necessary documents as desired by him. It has been categorically stated that the loss to the Complainant was occurred due to theft of the vehicle in question during the coverage period of the insurance policy. Practically, there was no negligence or misconduct on the part of the Complainant but the Opposite Party did not settle the claim of the insured and as such the Complainant sustained monetary loss to the tune of Rs. 5,50,000/- and also suffered from mental agony and harassment to the tune of Rs. 15,000/-, conveyance charges for Rs. 5,500/-, cost of litigation to the tune of Rs. 20,000/-+interest @ 18% p.a.
Complainant further sent a notice dated 10.04.2015 upon the Opposite Party/Insurance Company through registered post with A/D but the OP/Insurance Company did not give any reply to that letter. According to the Complainant the act of the OP/Insurance Company tantamounts to deficiency in service and unfair trade practices. The Complainant prayed for relief and Redressal as sought for in the prayer portion of the petition of complaint.
The OP/Insurance Company contested the complaint case by filing written version. Denying all the materials allegations as focussed in the petition of complaint the OP/Insurance Company clearly contended that the complaint petition is not maintainable in its present form and prayer; that the Complainant has no cause of action to bring the complaint case; that the entire averments as made in the petition of complaint are entirely misleading, false, fabricated and were made with an ulterior motive to achieve wrongful gain. It has been contended that the vehicle in question was insured with the OP/Insurance Company and the policy was valid at the relevant point of occurring the alleged incident and the IDV was Rs. 5,50,000/-. Specific defence is that on 12.12.2013 an intimation of the alleged breach of trust (missing of insured vehicle) occurred on 29.11.2013 was given to the Insurance Company. The OP/Insurance Company immediately provided the insurance claim no. 13044576 to the insured and simultaneously appointed an investigator for the purpose of enquiry. It has been alleged that the Complainant/Insured intimated the alleged loss after a lapse of 14 days from the date of occurring the incident and thus violated the policy condition nos. 1 and 5. The OP/Insurance Company further contended that the Complainant suspected the driver of the insured vehicle for stealing away the vehicle and also submitted written complaint before the concerned Police Station and accordingly police registered and started a criminal proceeding under Section 407 of the IPC (Criminal breach of trust). According to the OP/Insurance Company `Criminal breach of trust` was not covered under the policy in question. It has been also alleged that the Complainant insured neglected to inform the alleged incident to the OP/Insurance Company immediately after the discovery of alleged theft to enable them to trace out the vehicle by applying their own source. The OP/Insurance Company categorically contended that the claim of the insured complainant was lawfully and rightly rejected on 21.07.2014 by the OP/Insurance Company and as such the insured complainant is not entitled to get the relief and redressal as prayed for. It has been also contended that there was no deficiency in service or unfair trade practices from the end of the OP/Insurance Company. The OP/Insurance Company prayed for outright dismissal of the Petition of complaint with exemplary costs.
Ld. District Forum after taking into account the pleadings of the respective parties as well as the evidence (both oral and documentary) adduced by the parties arrived at a definite conclusion and dismissed the petition of complaint on contest against the OP/Insurance Company without costs.
Being aggrieved by and dissatisfied with the above judgment and order of the Ld. District Forum the Complainant as Appellant has preferred the present appeal on various grounds as highlighted in the memorandum of appeal. It has been contended in the memo of appeal that the impugned judgment and order are contrary to the facts and circumstances of the case and the conclusion of the Ld. Forum below by dismissing the complaint case is not sustainable in the eye of law and as such the same is required to be set aside; that the Ld. Forum below failed to appreciate the case of the Appellant/Complainant in its true perspective; that the Ld. Forum below failed to apply its judicial mind and arrived at a wrong conclusion; that the Ld. Forum below ought to have held that the case of the Complainant/Appellant is genuine and as such the Complainant/Appellant is entitled to get the relief as prayed for. The Appellant has highlighted much on the point that there was no violation of the terms and conditions of the Insurance Policy and there was also no delay in reporting the incident regarding untraceable vehicle along with its consignment and missing of the driver. The Appellant/Complainant has further contended that condition nos. 1 and 5 are not applicable in the present case. It has been also contended that the present facts and circumstances of the case must come under the purview of Section 378 (theft) of the Indian Penal Code. The Appellant/Complainant has prayed for allowing the present appeal after setting aside the impugned judgment and order. In support of the above contention Ld. Advocate appearing for the Appellant/Complainant has relied upon the citation reported in Civil Appeal No. 3409 of 2008 (arising out of SLP(Civil) no. 20902 of 2006 Supreme Court of India decided on 08.05.2008.
On the other hand Ld. Counsel appearing for the Respondent/Insurance Company has highlighted much that the insured provided the intimation of loss to the insurance company after a long lapse of fourteen (14) days from the date of happening the alleged incident. Drawing my attention to condition nos. 1 and 5 of the policy Ld. Counsel has argued that the Appellant/Complainant is not entitled to get the reliefs as sought for in the prayer portion of the petition of complaint. It has also been submitted that the police authority registered and started a criminal case under Section 407 of the IPC (Criminal Breach of Trust and misappropriation ) against Md. Rafik Ali, the driver of Truck no. WB23B1636. According to the Ld. Counsel the present case is covered under section 406 of the IPC which is a criminal breach of trust and misappropriation and as such the present case is not at all covered under the specific terms and conditions of the insurance policy. It has been also argued that the case of the Appellant/Complainant is a simplicitor case of Criminal Breach of Trust and misappropriation under Section 407 IPC. The insured categorically alleged the same in the body of the written complaint (FIR) which was filed before the concerned Police Station. It has been also urged that the vehicle in question was taken away dishonestly by the Driver and as such the case at hand cannot be treated and considered as a case of theft of the said vehicle. It has also been urged that the Appellant/Complainant wilfully and intentionally violated the terms and conditions of the insurance policy and as such the Insurance Company is not legally liable to indemnify the insured on any score. According to the Ld. Counsel there was a contract between the insured and the insurer and the word “immediately” under the circumstances has to be construed within a reasonable time having due regard to the facts and circumstances of the case. Delayed intimation to the insurance company speaks a lot against the genuineness of the Complainant’s case and for such delayed intimation the Insurance Company was deprived of tracing out the vehicle by applying their independent source. The OP/Insurance Company repudiated the claim of the insured for non-compliance of the terms and conditions of the Policy. The Respondent/OP has prayed for outright dismissal of the appeal with costs.
We have meticulously considered the submissions of the respective Ld. Counsels for the respective parties to the appeal and also perused the materials and documents available on record. We have also carefully gone through the citation of the Hon’ble Apex Court and Hon`ble National Commission.
In the present case the following facts are undisputed:-that the Appellant/Complainant is the owner of the truck bearing Registration No. WB-23B-1636; that the Appellant/Complainant subscribed a policy for the said truck with the Respondent/Insurance Company being insurance policy no. 2315/52801057/00/000 having the coverage period from 29.12.2012 to 28.12.2013 and the IDV was Rs.5,50,000/-. Undoubtedly, the Appellant/Complainant lodged an FIR before the Officer-in-Charge, Basistha Police Station, Guwahati City on 29.11.2013 over the alleged incident. Accordingly, FIR being no. 886 dated 29.11.2013 was registered and started under Section 407 IPC against the driver of the truck in question. There is no dispute that the alleged incident was occurred during the coverage period of the vehicle. It is apparent that the Appellant/Complainant also intimated the said incident to the Respondent/Insurance Company on 12.12.2013 for settlement of the insurance claim of Rs. 5,50,000/- being claim no. 13044576. The Respondent/Insurance Company repudiated the said claim of the Appellant/Complainant on the very ground of delayed intimation and non-fulfilment of the condition Nos. 1 and 5 as embodied in the insurance policy. It is also the case of the Respondent/Insurance Company that criminal breach of trust is not at all covered under the terms and conditions of the insurance policy being a case of misappropriation of the vehicle in question and not of theft.
It is crystal clear from the evidence (both oral and documentary) adduced from the end of the parties to the case that there was delay of 14 days in intimating the alleged incident to the Respondent/Insurance Company. Now, the questions that arise for consideration are—
(i) Whether such delayed intimation to the insurance company is fatal or not
(ii) Whether the alleged incident leading to the present case is a simplicitor case under Section 406 of the IPC (Criminal Breach of Trust and misappropriation).
(iii) Whether the alleged incident was a case of theft under Section 379 IPC (theft of the vehicle in question).
Let us consider the conditions of the insurance policy. Condition No. 1 and Condition No. 5 of the policy provide as follows: -
Condition No. 1
“Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender”.
Condition No. 5
“The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall have at all-time free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or break down the vehicle shall not be left unattained without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are affected any extension of damage or any further damage to the vehicle shall be entirely at the insured’s own risk.“
In Civil Appeal no. 653 of 2020 Gurshinder Singh Vs Shriram General Insurance Company, Hon’ble Apex Court has been pleased to observe in the following manner:-
Para-20
We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.
Per contra, in the case of Om Prakash (Supra) it was observed that the word “immediately” cannot be construed narrowly so as to deprive the Complainant the benefit of the settlement of genuine claim, particularly when the delay was explained. It was further held that the rejection of the claim on purely technical grounds and in a mechanical manner will result in loss of confidence of the policy holders in the insurance industries. If the reasons for delay in making a claim are satisfactorily explained, such a claim cannot be rejected on the ground of delay. The condition regarding the delay shall not be the shelter to repudiate the insurance claims which have been otherwise proved to be genuine. Moreover, the Apex Court was also pleased to observe that the Consumer Protection Act aims at providing better protection of the interest of the consumers. It is a beneficial legislation that deserves a liberal construction.
Finally, the Bench of three Judges of the Hon’ble Apex Court concurred with the view taken in the case of Om Prakash (Supra) and held that mere delay in intimating the insurance company about the theft of vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine. It should also be the bounden duty of the Commission to look into the main object of the preamble of the Consumer Protection Act which cannot be and should not be frustrated by any means. It is to be borne in mind that there is no straight jacket formula to explain the word “immediately”.
In Revision Petition No. 2164 of 2018 Hon`ble National Commission was pleased to observe in the following manner:-
“In the case relied by the Ld. Counsel for the Petitioner, the Hon`ble Supreme Court was not concerned with the question as to whether a case of the Driver of a vehicle found missing along with vehicle would constitute theft or criminal breach of trust. On the other hand the above referred decisions of this Commission directly covered a case whether the Driver takes a vehicle and then does not return. Moreover, this Commission has also taken the view that such a case will also amount to a malicious act and therefore, the loss would be covered under the Insurance Policy taken by the owner of the vehicle. Since, I am bound by the previous decisions of this Commission rendered by Larger Bench, it is not open to me to take contrary view unless the aforesaid decisions are shown to be per incuriam. The Petitioner however, has failed to show that the aforesaid decisions rendered by the Larger Bench of this Commission are per incuriam”.
Next aspect is that the Respondent/Insurance Company has raised the plea that the Driver having committed criminal breach of trust in respect of the insured vehicle, the loss was not covered under the Insurance Policy pursuant to condition nos. 1 & 5. On such ground the Respondent/Insurance Company repudiated the claim of the Appellant/Complainant on 21.07.2017 with the observations “In the instant case the loss has not happened due to a named peril in the policy i.e. `burglary, housebreaking or theft` the loss to insured was because of breach of trust committed by the Driver of the Truck. In the complaint to police the insured mentioned that I doubt that my Driver Md. Rafik Ali has stolen my vehicle with loaded item. The cause of loss narrated by the insured and recorded by the police is outside the scope of the cover of policy. In view of the above circumstances of loss your claim falls outside the scope of cover of the policy and accordingly stands Repudiated”.
Here in the present case as far as the plea of the Insurance Company that the driver having committed criminal breach of trust in respect of the insured vehicle, the loss was not covered under the insurance policy. So, the present case does not fall or constitute a case of theft in terms of definition provided in Section 378 of the Indian Penal Code though it may constitute a criminal breach of trust. On this issue reliance is placed upon the decision of the Hon’ble National Commission passed in Revision Petition no. 2601 of 2017—Oriental Insurance Company Limited—vs.—Dhanraj Surana decided on 31.10.2017.
The decision of the Hon`ble Commission in Dhanraj Surana (Supra), to the extent it is relevant reads as under: -
“4. Only question which arises for consideration in this case is as to whether this was a case of theft of the vehicle or not. If it was a case of theft, the claim in terms of the insurance policy was payable to the Complainant. An identical issue came up for consideration before the Hon’ble National Commission in the case of the Oriental Insurance Company Limited—vs.—M /S. Paramjit Kaur, Revision Petition no. 2159 of 2015, decided on 15.12.2015 and the following view was taken: -
“Admittedly, the vehicle was insured inter alia against loss on account of (i) burglary, house breaking or theft, (ii) by malicious act. Therefore, the question which arises for consideration is as to whether the loss of truck in the facts and circumstances of the case can be construed to be covered by theft or by malicious act or not? An identical issue came up for consideration before the Hon’ble National Commission in S. Bhagat Singh—vs.—The Oriental Insurance Company Limited, RP No. 7 of 1991 decided by the Bench of Four Members on 03.10.1991. In the above mentioned case, the taxi owned by the Complainant which used to be driven by the driver employed by him left with some passengers in it, but thereafter, the whereabouts of the taxi and the driver could not be known. Intimation having been given to the insurance company, the matter was investigated by the insurer. No claim, however, was being paid. Being aggrieved, the Complainant approached the concern District Forum by way of a complaint. The Complaint was resisted on the ground that it was a case of criminal misappropriation or breach of trust and not a case of theft. Rejecting the contention of the insurance company the Hon’ble National Commission inter alia held as under: -
“After considering the arguments of the Ld. Counsels for the parties we have come to the conclusion that the present case is one of theft. Criminal breach of trust is defined under Section 405 of the Indian Penal Code. There is nothing on the record to show that the driver had any dishonest intention to misappropriate or convert to his own use the taxi car when he left taxi stand Kamla Nagar Market on the night in question with passengers in it. It is possible that the driver might have been murdered or relieved of the taxi by the passengers. It was for the respondent company to allege and prove that the case falls under Section 405 of the Indian Penal Code. There is the bare allegation of the Respondent/Company that the case is of criminal misappropriation or breach of trust. The case had been investigated by an officer of the Respondent/Company. It has not been stated by the company that the said investigation revealed facts contrary to the facts alleged by the Complainants.
Even if it is assumed that the driver dishonestly took away the taxi car, even then the case would fall under Section 379 Indian Penal Code wherein theft has been defined. The present case is fully covered by illustration (d) appended to that Section. The said illustration reads as follows: -
(d) 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.”
In the present case Md. Rafik Ali, the driver was entrusted with the truck in question. He did not take it back to Guwahati, Assam but has gone away somewhere with the loaded items but subsequently the driver could not be traced out. Thus, the driver in the present case will be deemed to have committed theft of the truck in question.
“7 This question again came up for consideration before the Hon’ble National Commission in the case of United India Insurance Company Ltd.—vs.—Ravikant Gopalka, RP No. 1958 of 2004 decided on 13.09.2007 by a Bench of three Members. In the above referred case, the insured vehicle was taken away by the driver for servicing but the driver neither turned up nor did he bring back the vehicle. An FIR against the driver for committing theft of the vehicle was lodged and the insurance company was also informed. No claim having been paid, a complaint was filed. The State Commission ruled in favour of the Complainant. Being aggrieved the insurance company approached the Hon’ble National Commission and contended that since the police had registered a case under Section 406 of the Indian Penal Code, the act of taking away the vehicle by the driver would not amount to theft. Rejecting the contention and holding the order of the State Commission, the Hon’ble National Commission held as under: -
In our view, the submission is without any justification because of the definition of theft under Section 378 of the Indian Penal Code. Illustration (d) to Section 378 specifically provides that:-
A being Z 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. In any case this would be a malicious act and the policy covers such peril. Further, the exclusion clauses also nowhere provide that an offence under Section 406 IPC is excluded.
Further, in our view this loss of the car would also be construed to be covered by the general category of malicious act, a set of ground used in the policy. It is a malicious act of a person who was an employee of the insured at the relevant time.
Undoubtedly, the Appellant/Complainant lodged FIR before the concerned Police Station on 29.11.2013 over the said incident and the police authority registered and started a case under Section 407 of the IPC against the accused Mr. Rafiq Ali, Driver of the Truck in question. No charge sheet or FRT has come on record from the end of the Appellant/Complainant in order to prove the fate of the investigation. According to the Respondent/Insurance Company the lodging of FIR under Section 407 IPC against the Driver of the vehicle in question does not support the plea of the Insurance Company. The ingredients to attract 379 of IPC are present in the body of the FIR. Insurance Policy does not also cover the commission of breach of trust. On careful perusal of the evidence (both oral and documentary) on record it can be safely held that the vehicle in question was entrusted with the Driver of the said truck namely Md. Rafiq Ali for a specific purpose and the Driver of the said vehicle proceeded towards its destination but afterwards the Appellant/Complainant did not trace out the vehicle and also its Driver. The Hon`ble NCDRC was pleased to hold in Revision Petition No 2164/2018 (New India Assurance Company Limited Vs Neerja Singh) that such a case would constitute theft in terms of the definition given in Section 378 of the Indian Penal Code though it may also constitute a criminal breach of trust.
Considering the submissions of both sides and having considered the pleadings of the respective parties and evidence (both oral and documentary) on record and regard being had to the above mentioned cited decisions of the Hon`ble Apex Court and Hon`ble National Commission we have come to the irresistible conclusion that the present case is certainly one of theft. No evidence has come on record from the end of the Insurance Company to prove that the Driver had any dishonest intention to misappropriate or convert the vehicle in question on that relevant date and time. The Respondent/Insurance Company has hopelessly failed to establish that the present case simply falls under Section 405 of the Indian Penal Code. Bare allegation of criminal misappropriation or criminal breach of trust cannot be and should not be taken into consideration. Mere registration of a case under Section 407 of the IPC basing upon the written complaint of the Appellant/ Complainant by the Police Authority cannot also be considered as gospel truth. Practically, we do not find much substance in the argument advanced by the Ld. Counsel for the Respondent/Insurance Company.
Keeping in mind the observations of the cited decisions of the Hon`ble Apex Court and Hon`ble NCDRC we have no hesitation to conclude that the Respondent/Insurance Company repudiated the claim of the Appellant/Complainant in a mechanical manner and without any justification. The ground of repudiation of the Insurance Claim of the Appellant/Complainant cannot be accepted considering the facts and circumstances of the present case.
Considering all aspects from all angles and with our full regard to the observations of the Hon’ble Apex Court and Hon’ble National Commission we are compelled to hold that there is error, irregularity and illegality in the impugned judgment and order passed by the Ld. District Forum, Kolkata, Unit—I (North) in Consumer Complaint Case No. CC/260/2015. Consequently it deserves interference of this Appellate authority. All the points are thus answered in favour of the Appellant/Complainant.
Resultantly, the impugned judgment and order are liable to be set aside.
It is, therefore,
O R D E R E D
That the present appeal being no. A/877/2017 be and the same is allowed on contest against the Respondent/Insurance Company but considering the circumstances without any order as to costs.
The impugned judgment and order dated 05.07.2017 passed by the Ld. Consumer Disputes Redressal Forum, Kolkata—I (North) in Consumer Complaint Case No. CC/260/2015 is hereby set aside.
The Respondent/Insurance Company is directed to pay the Appellant/Complainant the insured sum of Rs. 5,50,000/- with simple interest @ 9% p.a. from the date of filing of the Complaint Case and also to pay a sum of Rs. 5,000/- as litigation cost within 45(forty five days) hereof in default the awarded amount shall carry interest @ 12% p.a. till full realization failing which the Appellant/Complainant is at liberty to realize the awarded amount through execution.
Thus, the instant Appeal stands disposed of.
Let a copy of this order be transmitted to the concerned District Forum forthwith for information and taking necessary action.
Note accordingly.
