Complainant by filing this complaint has submitted that he purchased one Honda Amaze Car vide Chasis No. MAKDF255HDN010138, Engine No. N15A12019608 on payment of Rs. 7,89,808/- to M/s. Chandrani Enterprises Private Ltd. on 15.08.2013 and the said car being hypothecated to ICICI Bank and having registration No. WB 24 Y 1599.

          It is stated by the complainant that his car was insured with the op vide Policy No. OG142401180100022613 for which he paid premium of Rs. 21,397/- for the year 14.08.2013 to 13.08.2014.

          The specific cause of the complainant is that on 19.10.2013 as usual his driver Sri Laxman Singh was waiting in front of his residence, since he was about to leave for his business work, but unable to trace his driver and the vehicle.  He immediately reported the matter to the local police station vide GDE No. 1018 dated 19.10.2013 and trying to trace the car, but failed.  On the next day, he requested the local Police Station to treat the General Diary as FIR and accordingly on 20.10.2013 the same was treated as an FIR.  He also informed the matter to the insurance company and also submitted his claim before the op.  Though he persuaded the matter regarding the settlement of claim, but the op repudiated the same claim on 14.06.2014 on the ground by taking a plea that from his side he failed to take reasonable case to safeguard the vehicle.  Such acts and deeds on the part of the op is a clear deficiency in service and unfair trade practice vehicle they had taken long eight months for repudiation from their end.  Hence, this case.

          Op by filing written version admitted that the said vehicle of the complainant bearing Registration No. WB-24 Y 1599 (Honda Amaze) was insured by valid policy of insurance issued by the op no.1 bearing policy No. HBA/00143456 for the period from 14.08.2013 to 13.08.2014.

          In the present case, the complainant has tried to make out the case, that his driver has stolen the said vehicle.  Such story even if assumed to be true, in that case too, it is admitted by the complainant himself and therefore, the alleged incident cannot be termed as theft, but criminal breach of trust which is accepted by the complainant too and such criminal breach of trust is not covered by the concerned policy of insurance and therefore on this ground, the op is not liable to pay any claim to the complainant on account of the alleged loss of the said vehicle.  It is also an admitted position in this case that the said vehicle was hypothecated with ICICI Bank Ltd. at the time of alleged incident and at that time only two instalments were paid and fifty-eight instalments were due and payable by the complainant.  But in this case, the complainant has not made party the ICICI Bank, therefore the complaint has no locus standi and the case is also bad for non-joinder of necessary parties.  In the premises it is prayed that the Ld. Forum may be graciously pleased to dismiss the instant case.

                                                        Decision with reasons

          We have heard the Ld. Lawyers of both sides and have gone through the evidence of record of the case carefully.

          It is admitted fact that the vehicle, in question, was insured by the op during the period from 14.08.2013 to 13.08.2014 and during that period the vehicle in question, was stolen on 19.10.2013 and that intimation was given to the police on the same day and insurance company i.e. the op also was intimated with regard to the theft of the vehicle which was hypothecated to the Bank who also submitted its claim to the op.  Since the op/Insurance Company vide its letter dated 14.05.2014 asked him to submit the FRT report which was also supplied to them.

          But after several persuasion regarding the settlement of the claim, the op repudiated the said claim on 14.06.2014 keeping blame upon him failing to take reasonable care to safeguard the vehicle which is arbitrary and illegal.

          In its contention, the complainant argued that all such acts and deeds on the part of the op who had taken long eight months for such repudiation is a clear deficiency in service and unfair trade practice.

            On the other side, it is alleged by the op that though the policy is covered under theft, but the offence is committed u/s 406 IPC being breach of trust and not theft.  So there is no liability of the op to cover such risk.  In its contention, the op claimed that his driver has taken away the said vehicle and FIR has been lodged u/s 406 IPC and subsequently policy has also submitted final report u/s 406 IPC and not 379 IPC which means the offence is breach of trust and not theft and therefore, the same is not at all covered by the disputed policy of insurance.  Moreover, though the said vehicle was hypothecated with the ICICI Bank Ltd. and at the time of alleged incident only two instalments were paid out of sixty instalments, but ICICI Bank has not been made party in this case.  In support of its argument the Ld. Lawyer of the op has referred the decision of the Hon’ble National Commission of trading reported in 2005(1) WBLR (CPNC) 742 and also submitted that the op is not liable to pay any claim to the complainant on the ground that the case is covered u/s 406 IPC which is a criminal breach of trust and not theft and it was contended that the insured vehicle was taken away dishonestly by the driver of the complainant so it is not a case of theft.

          We have heard the Ld. Lawyers from the both parties at length and have also gone through the record of the case minutely. Ld. Lawyer of the op argued that it is a case of criminal breach of trust which falls under Section 406 IPC and is not a case of theft and as such it is not covered under the terms and conditions of the policy since it is a case of misappropriating as the insured vehicle was taken away dishonestly by the driver and it is not covered under the terms and conditions of the policy.  As such claim was rightly repudiated by the op and there is no deficiency of service on the part of the op in the present case.

          But in support of it claim the Ld. Lawyer of the complainant stated that even in cases where vehicles were taken away by the driver, the Insurance Company was held liable for making payment of the insured amount.  Since it is covered under the Insurance Policy.  So, the op/Insurance Company was unjustified to repudiate the claim on which amounts to clear cut case of deficiency of service and unfair trade practice.

          Truth is that in the case of Venkateshwara Borcwells – Vs – Oriental Insurance Co. Ltd. 111(2002) CPJ 308 (NC) insured drilling rig with compressor mounted on truck was stolen by the cleaner.  Repudiation was made for breach of trust by employees while contesting the claim of the insured.  Theft being not there was held to be no ground to refuse relief and insurance claim of the complainant was allowed by the National Commission.  In the case of Oriental Insurance Company Ltd.  – Vs  - Shri Prem Lal, III (1996) CPJ 563 had also similar view while dismissing the appeal of the insurance company.

          Again in a recent decision, the National Commission in the case of Oriental Insurance Co. Ltd.  – Vs  - Om Prakash Gupta & Anr. I (2009) CPJ 183 (NC) while dealing with a case registered by the policy under section 379 IPC, negative the plea of the insurance company based on the fact that the case of criminal breach of trust was not covered by the terms of the policy and rejected the defence of the insurance company.

          In this case, the vehicle was insured for an amount of Rs. 7,89,808/- with the insurance coverage was valid for 14.08.2013 to 13.08.2014.  But moot question is that whether the judgement which was referred by the complainant in support of their contention are at all legal in the eye of law?  But such a question cannot be raised by the Forum when that judgement has been passed by the National Commission and National Commission has decided that definition of Section- 406 and 379 IPC is directly and indirectly are same in nature.  But fact remains that as per statute particularly as per principle of interpretation of statute any Forum of any rank from lower Forum to highest Forum has no legal right to determine any word as already defined in any statue particularly CPC and IPC cannot be defined by any hierarchy of the Forum and in this regard we have gone through one ruling reported in 2004 CTJ 1018 Supreme Court (SC) (CP) which was passed by Hon’ble Supreme Court and in similar type of case Hon’ble Supreme Court decided that the terms of definition of theft, burglary etc. cannot be equated and in that judgement Hon’ble Supreme Court set aside the decree as passed by lower Forum confirmed by State Commission and further confirmed by National Commission and all those fora granted relief in favour of the insured treating that term of theft and burglary is same.  But Hon’ble Supreme Court has decided by that judgement and also relying upon another judgement reported in 1999 CTJ 793 (SC) (CP) came to a conclusion and observed “In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.  Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover flood, cyclone etc. had come into being” and therefore, it is settled law that the terms of the contract have to be strictly read and natural meaning be given to it.  No outside aid should be sought unless the meaning is ambiguous and accordingly Hon’ble Supreme Court held that the repudiation made by the insurance company is well within the jurisdiction and it was rightly made out and by that judgement, Hon’ble Supreme Court set aside the order of National Commission and State Commission and Ld. Forum and observed “The common man understands that he has taken out the policy against theft.  He hardly understands whether it should precede with violence or force.  Therefore, a policy should be a meaningful policy so that a common man can understand what is the meaning of burglary is in common parlance.  Though we have interpreted the present policy strictly in terms of the policy but we hope that the Insurance Companies will amend their policies so as to make them more meaningful to the public at large. It should have the meaning which a common man can easily understand rather than become more technical so as to defeat the cause of the public at large”.

          Considering that judgement we are convinced to hold that even after passing of so many judgements by Hon’ble Supreme Court, National Commission has passed the above two referred judgement without following the judgement of Hon’ble Supreme Court as already referred when same are binding upon National Commission as per Article 141 and 142 of the Constitution of India.

          In this regard it is to be mentioned that Forum on any hierarchy has no legal right to take any decision for creating a new meaning in respect of definition of theft, burglary, misappropriation of goods by the employees that is Section 406 or Section 379 of IPC.  Truth is that there are judgement of the Hon’ble Supreme Court as referred against the judgement of the National Commission as referred by the complainant.  Truth is that in similar type of case, National Commission confirmed the relief granted by the State Commission and Lower Forum in favour of the insured though as per contract of policy it was for burglary.  But Lower Forum and up to National Commission granted the said relief to the insured even if definition of burglary was not proved.  But somehow or otherwise in the said judgement all the Fora at every stage accepted the theft and burglary as same.  But Hon’ble Supreme Court observed that it is completely beyond the jurisdiction of the Fora because statutory meaning and definition of any word cannot be interpreted by the National Commission in view of the fact.  National Commission has no constitutional power and at the same time when there are Supreme Court’s judgement, in this regard that cannot be overcome by the National Commission by any means.  Peculiar factor is that the judgement is referred by the complainant, there is no such observation of the National Commission regarding the Supreme Court judgement.  But as per provision of Article 141 and 142 of the Constitution, National Commission is legally bound by the judgement of the Hon’ble Supreme Court.

          In the light of the above observation we are convinced to hold that the definition of theft as defined u/s 378 of IPC or the definition of misappropriation u/s 405 of IPC cannot be interpreted by any Fora, State Commission or National Commission and those definitions are there in the IPC and that definition cannot be equated and new definition cannot be formed and decided by National Commission.  But anyhow in so many judgements Hon’ble Supreme Court observed the National Commission, State Commission are not following the Supreme Court’s judgement and by passing such verdict National Commission are passing judgements and in the present referred Supreme Court’s judgement, Hon’ble Supreme Court has decided otherwise and in view of the judgement as referred by this Forum that is 2004 CTJ 1018 (SC) (CP) and 1999 CTJ 793 (SC) (CP) we have got a chance to come to a conclusion that there is no scope to go outside the definition of theft as defined in Section 378 of IPC and Misappropriation and definition of 405 of IPC and no Forum at any stage and also State Commission or National Commission has no such legal right to take any outside aid to give a meaning of any word which is already defined in IPC, CRPC or any statute.

          But truth is that it is being continued for which various judgements are being placed before this Forum passed by State Commission or National Commission against the settled principle of law as already laid down by Hon’ble Supreme Court and Hon’ble Supreme Court’s judgements are not being followed by State Commission, National Commission and other lower Fora which is no doubt a bad trend in all respect and no doubt it is one kind of dishonuor of the decision of the Apex Court by the Forum which is not expected in the judicial field.

          In the light of the above observation, we are convinced to hold that as per contract of policy, complainant is entitled to get relief if theft is proved.  But in this case complaint was lodged before the Police against the employee (driver) of the insured and in that case only the definition of misappropriation u/s 405 of IPC is applicable and there is no scope to make two words as same i.e. theft with misappropriation and no new meaning can be made by any Forum whatsoever highest in nature because barrier is there that is Constitutional barrier as and when there are judgements of Supreme Court in this regard and in earlier occasion Supreme Court set aside the judgement of lower Forum, State Commission and National Commission.  But same are not at all read and applied.  So the present judgement of National Commission as referred by the complainant is completely against the determined settled principal of law by the Apex Court for which that judgements are in the eye of law not valid. 

          In the result, we find that the complainant is not entitled to get any relief and for which this complaint fails.

          Hence, it is

                                                               ORDERED

          That the complaint be and the same is dismissed on contest against the op but without any cost.