JUSTICE SUDIP AHLUWALIA, MEMBER

         This Revision Petition has been filed by the Petitioner/ Complainant against Respondent/ Opposite Party challenging the impugned order dated 26.03.2019 passed by the State Commission, Delhi, in First Appeal No.517 of 2016. Vide this order, the State Commission allowed the Appeal while setting aside the order dated 17.11.2016 passed by the Consumer Disputes Redressal Forum - VII, Govt. of NCT of Delhi, Shaikh Sarai, New Delhi in Complaint No. DF-VII/514/15/1152-1156/1152.

2.      The brief facts of the case are that the Complainant is the registered owner of Eicher Heavy Goods Vehicle bearing No. DL 1GC 1488. It was submitted by the Complainant that the said vehicle was insured with the Opposite Party from 07.08.2013 to 06.08.2014 with valuation of the vehicle being Rs.12,08,400/- and premium being Rs.33,846/-.  It was further averred that a driver, Ajay Gupta, had stolen the said vehicle on 27.02.2014 and consequently, an FIR bearing no. 127/14 was registered under section 406 IPC at PS- Sangram Vihar, New Delhi on 02.03.2014. It was further averred that the Opposite Party was immediately informed about the theft and all the relevant documents were also supplied by the Complainant. It was further averred that in addition to the above, the Complainant also filed a written complaint at PS- Sangam Vihar to add a Section 379 IPC in the above FIR. It was further averred that the said vehicle was financed by M/s. Reliance Capital Ltd. It was further averred that the Complainant regularly submitted the documents as when were demanded by the Opposite Party and the detective company appointed by the Opposite Party, M/s Omniscient Detectives & Assistance (P) Ltd. It was further averred that the no claim of the Complainant was given or processed, consequently, the Complainant sent a legal notice dated 30.07.2015.  However, the Opposite Party did not reply to the same. Hence, the Complaint was filed before the District Forum being aggrieved by the non-disbursal of claim by the Opposite Party and sought release of Rs.12,08,400/- with interest @24% since March, 2014 till its realisation, Rs.1,00,000/- for mental agony with interest @24% p.a. and litigation expenses.

3.      The Opposite Party failed to appear before the Ld. District Forum. Hence, vide order dated 27.01.2016, the Ld. District Forum proceeded ex parte against the Opposite Party.        

4.      The Ld. District Forum passed an Order on 05.07.2016 which was further revised vide order dated 17.11.2016. The Ld. District Forum vide its Order dated 17.11.2016 noted subsequent averments and submissions made by the Complainant. It was noted that the Complainant had further submitted that he had filed an FIR on 02.03.2014 only after making proper enquiry as occasionally, the driver used to return the vehicle after 3-4 days. It was further submitted by the Complainant that the Police filed an untraced report, which was accepted by the Ld. Metropolitan Magistrate vide order dated 19.09.2014.

5.      The Ld. District forum vide order dated 17.11.2016 allowed the complaint of the Complainant and observed inter alia -

“The insurance company has also not sent any communication including any repudiation letter, if any to the complainant till date. The insurance company has also not sent any reply to the legal notice sent by the complainant.

It is also mentioned here that there was also no in delay in reporting about the theft of the vehicle and filing the claim before the OP insurance company, the complainant stated that the driver used to return the vehicle on daily basis but on many occasions, he asked to return vehicle after 3-4 days. So, he waited till 02.03.2014 before lodging FIR.

In this context reliance is placed on the judgment passed by the Hon’ble National Commission in the matter of “New India Insurance Company v. Trilochan Jane (2009 NCDRC 200)”.

Further, it has observed by the District Forum that –

“However there is also no document to indicate that the OP insurance company has repudiated the claim of the complainant till date.

By not intimating the complainant about the status of his claim either by way of repudiation or by way of making payment, the OP insurance company has been deficient in service and for such deficiency we hold the OP insurance company liable to compensate the complainant herein”.

6.      Hence, the District Forum ordered the Opposite Party to honour the claim of the Complainant and release the amount of Rs.12,08,400/- along with interest @10%p.a. from date of filing of the claim i.e. 02.03.2014, to pay Rs.50,000/- as compensation and Rs.10,000/- as litigation cost.   

7.      Aggrieved by the above order, First Appeal bearing No. 517 of 2016 was filed by Appellant/ Opposite Party before the State Commission, Delhi. The Appeal was filed with a delay which was condoned in the interest of justice and the Appeal was decided on merits.

8.      It was contended by the Appellant/ Opposite Party that the Complainant had suppressed its repudiation letter dated 10.07.2015. It was further contended that the claim was repudiated on the ground that the policy covers loss due to theft only and the loss due to breach of trust committed by the driver fell outside the scope of the policy. It was further contended that the claim was repudiated on the ground that the intimation of loss was given after a delay of 12 days on 10.03.2015 to the insurance company and condition no.1 of the policy that the theft shall be immediately informed to the police was also violated. It was further contended that the present case and the untraced report was of the offence under Section 406 IPC. It was further contended that the Financer, being a necessary party was not made party to the Complaint.

9.      It was argued by the Respondent/ Complainant that the matter was reopened vide order dated 15.12.2016 and in pursuance of the said order, the police prepared untraced report no.3 dated 06.03.2017 under section 379 IPC. Subsequently, fresh untraced report was accepted by the Ld. MM vide order dated 22.05.2017, hence, the objection of FIR being under section 406 IPC does not survive.         

10.    The Ld. State Commission vide impugned order dated 26.03.2019 allowed the Appeal while setting aside the order of District Forum and observed that:

“16.   I feel that respondent got the matter reopened and reinvestigated malafidely with a view to over come the objection of the appellant. Otherwise respondent was present on 19.09.2014 at the time to acceptance of first untraced report under section 406 IPC, his statement was recorded in which he stated that he was satisfied with the investigation and had no objection regarding the filing of the untrace report.

17.    The counsel for appellant relied upon order of National Commission in RP No.2297/14 titled as United India Insurance Company Ltd. v. UEE Electricals Engg decided on 15.10.15. In that case the NC held that criminal breach of trust under section 406 IPC is not covered by insurance policy. The complaint was dismissed. The present case is squarely covered within the ratio of aforesaid decision.

18.    The appeal is accepted, impugned order is set aside and complaint is dismissed.”

11.    Hence, the present Revision Petition has been filed by the Petitioner/ Complainant against the above mentioned impugned order of the Ld. State Commission on the following grounds:   

1. That the impugned order is contrary to the evidence/ documents place before the Hon’ble State Commission;
2. That the Hon’ble State Commission has arbitrarily condoned the delay in filing the appeal without passing a speaking order;
3. That the Hon’ble State Commission failed to appreciate that Opposite Party only filed the Order dated 05.07.2016 in its appeal and suppressed the revised Order passed by the Ld. District Forum on 17.11.2016;
4. That the Hon’ble State Commission failed to appreciate that the Detective of the Opposite Party clearly mentioned in his investigation report that this case is of theft;
5. That the Hon’ble State Commission failed to appreciate that the Police once again investigated the matter further and filed the revised Final Report under section 173 of Cr.P.C. before the Ld.MM, Saket Court, New Delhi under section 379 of IPC in FIR No. 127 of 2014 and deleted the section 406 IPC. Hence, criminal breach of trust no more existed in the FIR; 
6. That the Hon’ble State Commission failed to note that the police filed revised final report under section 173 of Cr.P.C. in F.I.R. no. 127 of 2014 registered at PS Sangam Vihar, Delhi under section 379 of I.P.C. The said report is final and section 406 of IPC was deleted in the aforesaid FIR. It is further stated that it is admitted by the Opposite Party that theft comes under insurance policy and hence, the claim of the Complainant also falls under the insurance policy;
7. That the Hon’ble State Commission has come to the conclusion without any basis and the said order is contrary to the order passed by Ld. MM, Saket Court, New Delhi in FIR No. 127 of 2014. The said order was not challenged by anyone in any Court.  Hence, the said order is final and binding;
8. That the Hon’ble State Commission failed to appreciate the reply filed by the Complainant to the appeal and his oral arguments;
9. That the Hon’ble State Commission failed to appreciate that the Ld. MM called the status report of the stolen case property. The IO of the case inserted section 379 of IPC and deleted section 406 IPC in the FIR and the same fact was also informed to the Opposite Party on 05.09.2017;
10. That the impugned order is otherwise bad in law.          

12.    Heard the Ld. Counsels for the Parties. Perused the material available on record.

13.    It is the admitted case that the first untraced report in respect of the insured vehicle was accepted by the concerned Magistrate on 9.9.2014.  Repudiation letter from the side of the Insurance Company, which is on record, was allegedly issued on 10.7.2015 (Annexure P-19) and the same goes to show that it had been sent by Registered/Speed Post to the Complainant on 14.7.2015.

14.    Now, it transpires from the earlier Order dated 5.7.2016 of the District Forum (Annexure P-13) that on 19.8.2015, the Complainant had approached the concerned Police Station with the request to add the offence under Section 379 of the IPC pertaining to “theft” in his original FIR, which was long after the repudiation letter was issued to him and also presumed to be delivered in the meantime.

15.    There is no denial of the fact that the offence of “Criminal Breach of Trust” under Section 406 of the IPC in respect of which the FIR had originally being drawn up, and resulted in submission of the final untraced report was not at all covered for the purpose of compensation in the Insurance Policy of the Complainant. In fact, the insurance coverage only extended to the offence of “Theft” of the vehicle which is punishable act under Section 379 of the IPC.  It would, therefore, be in order to verify  whether the allegations made by the Complainant in the FIR lodged by him in the Police Station disclosed the offence of “Theft” in the first place.  Perusal of the FIR in question (Annexure P-4) goes to show that the Complainant had mentioned therein –

“12.  To, The SHO, P.S.- Sangam Vihar, New Delhi-110062, Sir, I beg to say that I Vikas Kumar Mishra, S/o Shri Rajeshwer Kumar Mishra, R/o 528B, Gali no. 1 Block D, Sangam Vihar, New Delhi-110062, I have vehicle/tempo (Eicher 11.10 Heavy Goods Vehicle) bearing no. DL 1 GC 1488.  I used to let out my tempo to Ajay Gupta, S/o Shri Ram Sewak Gupta, R/o D-30 Flat no. 1, Tigri Extension, New Delhi on daily rent however on 27.02.2014, Ajay Gupta was missing with my Tempo and his family members also left their house I could not got him after finding out.  Thus I request you that to take appropriate action regarding the incident………”

16.    A bare perusal of the aforesaid FIR therefore clearly goes to show that as per the own version of the Complainant, the insured vehicle had been given by him to the culprit Ajay Gupta on a daily rent basis and that on 27.2.2014 the said Ajay Gupta was missing with such vehicle/Tempo and his family members had also left their house.  It was not anywhere the version of the Complainant that Ajay Gupta had taken away the vehicle from the Complainant possession without the latter’s consent which is a sine qua non to constitute the offence of “Theft” within the meaning of Section 378 and 379 of the IPC.  On the other hand, the own version of the Complainant was that the vehicle had been given by him to Ajay Gupta on a daily rent basis, and the said Ajay Gupta was missing w.e.f. 27.2.2014.  Such version, undoubtedly, indicated only the offence of “Criminal Breach of Trust” on the part of the culprit concerned, as possession of the vehicle was clearly taken by him with the own consent of the Complainant/owner. Further, the own subsequent version  of the Petitioner explaining why he had lodged the FIR on 2.3.2014 although his vehicle had been not returned on 27.2.2014 was that the delay occurred as occasionally the driver himself used to return the vehicle after 3-4 days.  This itself is an admission that the custody/possession of the vehicle had been given by the Complainant with his consent to the driver who later on absconded with the same.  As such, it was a manifestly clear case of “Criminal Breach of Trust” and not of “Theft” which alone was the covered offence in the Insurance Policy.

17.    Therefore, the Ld. State Commission was right in its conclusion that the Complainant had motivatedly got the offence under Section 379 of the IPC to be included in his FIR after his claim had been repudiated on 10.7.2015 on the ground that no offence of “Theft” was made out in his FIR and that it was actually a case of “Criminal Breach of Trust” which was outside the coverage of the Insurance Policy.

18.    For the aforesaid reasons, we find no grounds to interfere with the decision of the Ld. State Commission.  The Revision Petition is, therefore, dismissed.

19.    Parties to bear their own costs.

20.    Pending application(s), if any, also stand disposed off.