Rajasthan

StateCommission

FA/654/2014

Majid Khan s/o Sahab Khan Bycaste Mev - Complainant(s)

Versus

Manager Shri Ram Gen. Ins. Co. Ltd. - Opp.Party(s)

Pankaj Jain

08 Apr 2015

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

APPEAL NO: 654/2014

 

Majid Khan s/o Sahab Khan r/o Plot no. 61 Gram Botholi, Tehsil Tijara Distt. Alwar

Vs.

Manager Shriram General Insurance Co. Ltd. E-8, EPIP RIICO Industrial Area, Sitapura, Jaipur

 

APPEAL NO: 421/2014

 

Manager Shriram General Insurance Co. Ltd. E-8, EPIP RIICO Industrial Area, Sitapura, Jaipur

Vs.

Majid Khan s/o Sahab Khan r/o Plot no. 61 Gram Botholi, Tehsil Tijara Distt. Alwar

 

Date of Order 8.4.2015

 

Before:

 

Hon'ble Mr.Vinay Kumar Chawla-Presiding Member

Mr.Kailash Soyal-Member

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Mr. Pankaj Jain counsel for the complainant Majid Khan

Mr.Vizzy Agarwal counsel for the Insurance Company

 

BY THE STATE COMMISSION

Both these appeals have been filed against the judgment of learned DCF Alwar dated 13.2.2014 by which it allowed the complaint.

 

Appeal No: 654/2014 has been filed by the complainant for increase in the award passed by the learned DCF. He has requested for 18% p.a. Interest instead of 9% p.a. as granted by the learned DCF. Appeal No. 421/2014 has been presented by the Insurance Company challanging the award passed by the learned DCF.

 

Brief facts giving rise to this complaint are that Truck No. RJ 02 GA 4895 was insured from the Insurance Company. The insurance was effective from 18.11.2010 to 17.11.2011. This truck is said to have been stolen in the night of 6.9.2011. A police report was lodged on 7.9.2011. The Insurance Company was also informed of the incident. The Insurance Company repudiated the claim and a consumer complaint was filed before the learned DCF Alwar which allowed the complaint.

 

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The learned counsel for the insurance company has challanged the findings of the learned DCF. He has submitted that it is not proved whether the truck in fact was stolen or not. He has drawn our attention to the FIR lodged by the complainant in which he stated that this truck had been taken away by the driver and cleaner. After three days he changed his report before DSP stating that his truck has been stolen and was not mis-appropriated by the driver and the cleaner as suspected earlier. He has argued that story of theft as stated by the complainant is totally suspicious. Naturally in the second story the complainant has stated that his driver and cleaner were sleeping along the side of the truck in the night when the truck was taken away. He has argued that it was the duty of the driver and the cleaner to lock the truck and keep the keys in their safe custody and when the driver and the cleaner sleeping along the side of the truck on the ground, how is it possible that they were not woken up by the noise etc. if the gate of the truck was forcibly opened. He has also argued that in the statement given to the police, two witnesses have stated that this truck had been sold to one Kishan Kumar, therefore, the complainant has no insurable interest since he has sold the vehicle.

 

The learned counsel for the complainant has refuted the arguments. He argued that when the complainant did not found the

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truck he suspected his driver and the cleaner who might have escaped with the truck but after three days after investigation he produced the driver and the cleaner before the DSP and stated that the truck had been stolen by some unknown persons. He has also submitted that the statement recorded by the police under section 161 of CRPC are of no use. Two witnesses stating before the police that the truck has been sold is not believable. There is no evidence that truck was sold or transferred to Kishan Kumar.

 

The learned counsel for the appellant has cited before us 2012 (2) CPR 398 NC ( Devinder Kumar Vs. National Insurance Co.), III (2014) CPJ 201 NC (Oriental Insurance Co. Vs. K.K.Valsalan ),m 2014 (2) CPR 660 (NC) (Jagdish Prasad Bakshi Vs. Oriental Insurance Co.). In these judgments it was held that factum of theft was found to be suspicious and the driver had not taken due care of the vehicle and the claim was not payable.

 

The learned counsel for the appellant has placed reliance on III (2014) CP 1 (NC) (Didar Singh Vs. Reliance General Insurance Co. ) where it has been held that handing over the possession amounts to sale.

 

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The learned counsel for the complainant cited 1985 (4) SCC 476 (State Vs. Laxman Kumer etc, (1996) 8 SCC 250 (Delhi Administration Vs. Tribhuvan Nath etc.) Both these judgments have been given in criminal appeals. We do not find any support from them. The degree of proof in criminal cases and consumer cases can not be equated.

 

We have heard the arguments of both counsels and have perused the record.

 

We are of the view that the factum of theft of the truck is definitely suspicious. The story that driver and the cleaner was sleeping along the side of the truck on the ground and truck was stolen and they did not hear any noise and were not woken up is not believable, and even if we accept this story when the driver and cleaner woke up and they found the truck missing, why they did not go straight away to the police station to report the matter or to the owner, is not explainable. It was natural for the driver or the cleaner to report the incident of theft first of all to its owner and it is also not possible when both the driver and the cleaner were sleeping along the side of the truck on the ground, the truck could not have been taken from there without notice. If the truck was locked and door was opened forcibly naturally the truck would

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have been taken by starting the engine, the engine noise must have been heard by them who were sleeping along the side of the truck.

 

Though we do not accept the argument that the truck had been sold to Kishan Kumar on the basis of the statements given by two witnesses u/s 161 CRPC to the police.

 

The fact that the driver and the cleaner did not report the incident to owner for three days is very suspicious. The complainant states that the driver and the cleaner came to him after three days of the incident and before that he had lodged the FIR on the basis of information received by him from Kishan Kumar and he suspected that the driver and cleaner had eloped with the truck.

 

In view of the suspicious story we do not find this claim to be genuine one. The learned DCF has not considered these points and we are of the view that appeal deserves to be accepted and the judgment of the learned DCF is set aside.

 

In view of the observations above, the appeal filed by the complainant become infructuous and is hereby dismissed.

 

 

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The appeal filed by the appellant insurance company is allowed.

 

 

Member Presiding Member

 

 

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