: J U D G E M E N T :
Sri D. C. Mishra, President.
The complainant has filed this case with prayer to direct the opp.parties to pay him the insurance amount of Rs. 11,50,000.00 with interest and compensation towards harassment and mental agony and cost of litigation.
2. Briefly stated the complainant’s case runs thus :-
That on 22.6.2013 the complainant had insured his truck bearing Regd. No. OR-19K- 4325 with the opp.parties for coverage of Rs. 11,50,000.00 by paying premium of Rs. 30,727.00 only vide commercial vehicle package policy No. 345902/31/2014/799 for the period from 22.6.2013 till mid night of 21.6.2014. On 31.8.2013 when there was valid insurance the truck loaded with coal proceeded to Bhusan Steels situated at Kantabania for unloading but did not reach at the unloading spot. On the next day , the complainant learnt about this fact and searched for the truck as well as the driver and the helper in the possible places but could not apprehend them or the truck .So on 2.9.2013 the complainant lodged FIR at Talcher PS about disappearance of the truck and absconding of the driver and the helper. After lodging the FIR at Talcher PS the complainant informed the insurer company (opp.party No.2 ) on 3.9.2013 and submitted document like copy of FIR, copy of insurance certificate, RC Book of the stolen truck, fitness certificate, road permit and Tax paid receipts etc. Thereafter, the complainant also filed other relevant documents on various dates .On 31.12.2013 opp.party No.1 intimated the complainant to submit documents as per his list and on 27.1.2014 the complainant complied it. Then on 26.3.2014 the complainant gave reminders which was answered by the opp.parties . Again on 3.6.2014 the complainant gave another reminder but it went unanswered. However, on 24.10.2014 the opp.parties send their letter repudiating the claim of the complainant stating that “ the case is one under breach of trust by own employee (408 IPC) and not theft and hence no payment can be made under the policy as settlement of claim “.It is specifically averred that due to the above action of the opp.parties, the complainant suffered harassment , loss and mental agony for which he has filed this case , seeking the reliefs as already stated above in Para- 1 of this order.
3. The opp.parties have contested the case by filing a joint written version stating that the complainant is not a consumer for which the case is not maintainable and that the complainant has violated the Clause No. 5 of the policy condition by engaging the driver Subrat Naik and helper Mohan Naik who are habitual offenders of such type of criminal cases. According to the opp.parties, it was the bounden duty of the complainant to enquire about the antecedents of the driver and helper before giving the truck in their custody. It is specifically argued that the driver belongs to village –Tentulei, though under Banarpal P.S but it is very nearer to the village of the complainant and the criminal cases against the driver were pending at Talcher Court (arising out of Talcher and Vikrampur P.S cases) for which the criminal antecedent of the driver was supposed to be know to everybody but the complainant handed over the truck in his custody. Since the complaint has not taken reasonable steps to safeguard the insured vehicle from loss or damage, he is not entitled to get the insurance claim. The opp.parties also averred that only in case of theft of the insured vehicle claim can be allowed but in this case police has submitted charge sheet U/s.408/34 IPC against the accused persons ,for which the claim is not legal and cannot be allowed. In the above premises the opp.parties have prayed for dismissal of the case as not maintainable.
4. In view of the rival pleadings of the parties the following issues arise for consideration :-
: ISSUES:
(i) Whether the case is maintainable or not and whether the complaint has cause of action to file the case ?
(ii) Whether there is consumer and service provider relationship between the parties ?
(iii) Whether the complainant has violated the Clause No- 5 of the policy condition and due to submission of charge sheet against the accused persons U/s. 408/34 IPC in respect of the insured truck , the insurance claim of the complainant can be sanctioned or not ?
(iv) To what other reliefs the complainant is entitled to ?
Issue No. (i):-
Since the insured truck of the complainant was stolen and the opp.parties repudiated his insurance claim, the complaint has cause of action to file the case.
During valid insurance period i.e on 31.8.2013 the truck was lost. This forum has authority to enquiry into the matter. So the case is maintainable .
Issue No.(ii):-
Admittedly the complainant had insured his truck bearing Regd. No. OR-19K- 4325 with the opp.parties vide commercial vehicle package policy No. 345902/31/2014/799 by paying premium of Rs. 30,727.00 only. So the complainant is a consumer and the opp.parties are the service provider.
Issue No.(iii):-
The learned counsel for the opp.parties has filed number a of decisions and submitted that insurance claim cannot be given for the offence punishable U/s. 408 IPC and in the other hand the learned counsel or the petitioner submitted that as per illustration - B of Section -378 IPC ,Sec-379 can be attracted against the accused persons against whom charge sheet 408 IPC has been submitted. In support of his claim, he has also relied on number of decisions of Hon’ble National Commission. The learned counsel for the petitioner has filed the certified copy of order dt. 2.8.2016 passed in GR Case No. 1041/13 arising out of this case (Talcher P.S Case No. 274/2013 dt. 2.9.2013) where in the learned SDJM, Talcher has altered the charge very clearly, stating that accused Subrat Naik (driver) of the truck and accused Mohan Naik ( helper) of the truck are to be tried U/s. 379/381/408/34 IPC . The learned counsel for the opp.parties has received the copy of this order. The learned court has altered charge during trial after perusing the evidence. Thus, accused persons Subrat Naik and Mohan Naik the driver and helper of the insured truck respectively are liable for committing the offences punishable U/s. 381/379/408/34 IPC.
The learned counsel for the petitioner submitted that since the insured truck was stolen, the complainant is entitled to get the claim which is clearly mentioned in the Clause-1(ii) of the Commercial Vehicle Package Policy, for which the complainant is entitled to get the claim. In the other hand the opp.parties’ learned counsel has filed a copy of burglary and house breaking policy conditions and submitted that as per its clause –ii the complainant is not entitled to get the benefit but this is a separate policy condition and insurance policy of the complainant is not covered by this policy .Rather his policy is covered under commercial vehicle package policy. So the submission of the learned counsel for the opp.parties has no force at all and its false to ground.
The learned counsel for the opp.parties submitted that as per Clause-5 of commercial vehicle package police ( the policy of the complainant) the complainant should keep the vehicle in safe custody to check its loss and damage. Clause No. 5 of the commercial vehicle package policy reads as follows:-
“The insured shall take all reasonable steps to safe guard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine or any party there of or any driver or employee of the insured”.
The learned counselfor the opp.partiesvehementlyarguedthat Subrat Naik the driver of the truck was ahabitualoffenderandmany casesof thisnaturewere pendingagainsthim butwithoutenquiring about the criminalantecedentsofSubrat Naik ( driver)thecomplainant entrustedthevehicleto him, for whichitwas naturalthat thedriver would takeawaythe vehicle and theresultfollowed. In supportof hisclaim he has furnishedthecertified copy ofcharge sheetof thiscases. The forwardingreport of this accusedreveals that hewasinvolved in :-
- Vikrampur PS case No. 110/2013 dt. 2.11.2013 U/s. 392/IPC/25/27 Arms Act.
- Colliery PS Case No. 299/13 dt.17.8.2013 U/s. 408 IPC.
- Talcher PS Caase No. 206/12 dt. 29.6.2012 U/s. 395 IPC.
The confessional statementofaccused Subrat Naik recorded by the I.O,in thepresentcase( GR 1041/2013arising out of Talcher PS Case No. 274 dt. 2.9.2013 U/s.408 IPC), the accused hasconfessed about the crimes committed by him.Thus , the accused Subrat Naik wasdefinitely a habitualoffender.The learnedcounsel for thepetitioner submitted thataccused Subrat Naikbelongs toVillage Tenlulei whichcomesunderBanarpalPS for whichthe complainant has no knowledgeabout hiscriminalantecedentbutvillage Tentulei issituatedonly 4 to 5 K.Ms away from Talcher PSand thecomplainant wasdoingtruckbusiness. So itwas hisboundendutytoknowabout the criminal antecedentof thedriver. Hispleathat hedid notknowabout theantecedentof thedriver andin goodfaithgavethetruck in hiszimacannot be accepted and itis heldthat thecomplaintdid not takesufficientprecaution to safeguard thevehicle. Therefore, as per Clause- 5of thepolicyconditions heis not entitled toget the claim.
Issue No.(iv):-
In view of the discussion madeabovein issue No. (iii)the complainant is not entitled to get any reliefs in this case.
- Hence ordered.
: O R D E R :
The case is disposed of on contestbyboth the parties. The complainant isnotentitled to get any reliefsin this case.
Order delivered in the open forum
today the 12th September, 2017 with hand
and seal of this Forum.
Typed to my dictation
and corrected by me Sd/-
(Sri D. C. Mishra)
Sd/- President.
(Sri D. C. Mishra)
President.
Sd/- Sd/-
(Sri K.K.Mohanty), (Smt.S.Mallick),
