ORDER

Date of order:  31-01-2017  

Upendra Jha, Member       

1.                                This complaint is preferred by the complainant Sri Dharmendra Kumar. s/o- Late N.K. Prasad of Mohall-Amber, Biharsharif against the Opposite-party L.T. General Insurance Company Limited Krishna Building ASC Bose road Kolkata with a prayer to direct the O.P.- Insurance Company to pay the insured amount Rs.22,00,000/- (Rupees twenty two lacs only) with 20 % p.a. interest from 04-06-2012 till payment, compensation of Rs. 10,00,000/-,litigation cost Rs. 1,00,000/- and Rs. 10,00,000/- for unfair trade practice.

 2.                         Shortly stated, the complainant is the owner of a Truck purchased by him for his livelihood, insured by the O.P.-Insurance Company and financed by O.P.-L.T. Finance at Patna for Rs. 18, 00,000/-. On 04-06-2012 his Truck was stolen by the Truck driver and cleaner. F.I.R. was lodged at Deepnagar Police Station under section-379,406 and 34 of IPC against them. All relevant documents permit, Tax token was taken away. The O.Ps. were informed who deputed a surveyor. Surveyor submitted the report but it could not be settled by the Insurance Company. The police submitted charge sheet against the driver and khalasi and found the theft true. However, it was not settled. Then, the complainant filed this complaint with above mentioned relief. This complaint is filed within two years on 12-02-2013.The cause of action arose on 04-06-2012.It is under pecuniary jurisdiction above 20, 00,000/- claim. Hence, it was admitted and opposite-parties were noticed.

 3.                         The complainant filed evidence on affidavit under section 13 (4) (iii) of the Consumer Protection Act, 1986.Certified copy of the order sheet of  G.R. Case No. 1624 of 2012,Deepnagar p.s. case No. 120 of 2012 of C.J.M. Nalanda Court has been filed by the complainant. The O.P.-Insurance Company has filed written statement on affidavit  and a  copy of investigation report submitted by the Investigating Officer and a citation of this State Commission Appeal No. 266 of 2006 order dated 05-01-2009.Both sides have filed written notes of arguments. Heard.

4.                          Evidence on affidavit filed by the complainant are, DTO Nalanda certificate of registration, Truck retail invoice of Maurya Motor Limited and L.T. Insurance document annexure 1,2 and 3 annexed with the Complaint Petition. Opposite-party-L.T. Finance document is annexure 4, F.I.R. Deepnagar p.s. case No. 120 of 2010 is annexure- 6, police final report is annexure- 7 in which the police has stated that occurrence of theft is true, charge-sheet submitted against the Driver Guddu Paswan and Khalasi Karu Paswan under section-379,406/34 of IPC.As per Charge-Sheet the Truck was found traceless. However, efforts are being made to trace the vehicle in future. J.M. Nalanda G.R. Case No. 1624/12 Deepnagar P.S. Case No. 120/12 order sheet dated 23-11-2012 is annexure -8 of the complaint in which it is stated that case under section-379,406 and 34 of IPC against the Driver Guddu Paswan and cleaner Karu Paswan is ordered to be initiated and  transferred to the S.D.J.M. Nalanda Court.

5.                          In written statement filed by the O.P.-appellant-Insurance Company, it has been stated that the complainant is not a Consumer under section 2 (1) (d) of the Consumer Protection Act, 1986 as the complainant purchased this Truck for commercial purposes .Vehicle was being driven by driver Guddu Paswan and not by himself. The Truck was parked in the road side of village of driver from where it was stolen. The driver and khalasi are accused for theft of the Truck. The Truck was parked on a public road. The driver carelessly used to park the Truck on the public road side regularly. So, it was unattended. The loss of vehicle occurred due to criminal breach of trust and the loss is not covered by the policy. Citing this State Commission order dated 05-01-2009; in the Appeal No. 266 of 2006 in similar case this Commission has dismissed the appeal due to violation of conditions. Then, theft claim of Rs.22,00,000/- compensation of Rs. 10,00,000/- and litigation cost claim Rs.1,00,000/- is not at all maintainable. In written arguments the O.P. has repeated the same points as stated in written statement praying to dismiss the complaint on the ground stated above.

6.                          We have considered the points raised by the complainant as well as the Opposite-parties and perused the evidence filed in it. It is undisputed fact that the Truck of the complainant is insured for Rs. 22,00,000/- and during insurance period, the Truck was stolen from the  road side of driver’s village. The F.I.R. was lodged in the local police against the driver and cleaner and the final report has been submitted against them under section-379,406 and 34 of the IPC. The theft was found true but the Truck has not been made available by the police. The Insurance Company deputed a Investigator to investigate the matter. He submitted report to the Company, that the matter has been reported to National Crime Record Bureau, New Delhi through electronic mail as well as   Ministry of Home affairs, Govt. of India Charge-sheet against the driver under section 406 & 34 is criminal breach of Trust which appears not to be  covered under the  Insurance risk. The Insurance Company submits that the complainant had to take reasonable steps for safe keeping of the vehicle which he failed. It violates the terms and conditions of the policy. The L.T. Insurance through its letter dated 09-01-2013 (Annexure-9 of Memo of Appeal) has repudiated the claim on the ground of non-production of certified copy of final decision of the trail court which is pending before the SDJM Nalanda Court. In our opinion, repudiation on this ground does not seem proper. It may take years and years to decide the claim. On the other hand, the Insurance Company shall have to pay interest without justification. This State Commission by order dated 02-01-2017 in Appeal No. 131 of 2013 in similar case has dismissed the appeal of the Insurance Company allowing the claim of the complainant. In the instant case the police has submitted the Charge-sheet stating the theft of vehicle true but vehicle has not since traced out. On this basis, the complaint is allowed. The O.P. Insurance Company is directed to pay the complainant, the  insurance amount according to law within 60 days from the receipt of this order with interest @ 6 % p.a. compensation Rs. 15,000/- and litigation cost Rs.5,000/- failing which 10% p.a. interest will be payable.

7.                          The complaint is allowed.

S.K.Sinha                                   Renu Sinha                               Upendra Jha

President.                           Member(F).                              Member (M).

           Anita