Delhi

New Delhi

CC/448/2014

Sh. Rajesh Jain &ORS - Complainant(s)

Versus

M/S. The Future Generali India Insurance Company Ltd. - Opp.Party(s)

17 Dec 2021

ORDER

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.448/2014                                                      

            DF. No.                                                                                              Dated:

 

            In the matter of:

 

            SH. RAJESH JAIN S/O SH. MAHAVIR JAIN,

            R/O, P-35A, BLOCK B, PHASE-1

            BUDH VIHAR, DELHI-110086                                          ……..COMPLAINANT

 

Versus

 

         THE FUTURE GENERALI INDIA INSURANCE COMPANY LTD.

        301 TO 310, 3^RD FLOOR, KAILASH BUILDING,

       CONNAUGHT PLACE, NEW DELHI-110001               ……..OPPOSITE PARTY

 

  Quorum:

            Ms. Poonam Chaudhry, President

            Shri Bariq Ahmad, Member

            Ms. Nain Adarsh, Member

                                                                                                Dated of Institution :12.06.2014                                                                                                                                                                        Date of Order           : 17.12.2021

O R D E R

POONAM CHAUDHRY, PRESIDENT

Hearing through Video Conferencing.

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in short CPA, 1986).The facts of the case in brief are that the Complainant is registered owner of the vehicle DL-1LP-4155 Tata 407. The said vehicle was insured with OP in the name of Complainant vide insurance policy no. V1700173, for the period 15.03.2012 to 14.03.2013.
2. It is further stated that on intervening night of 08/09.07.2012, the aforesaid vehicle was with the driver of the Complainant, Jitender. At about 9 AM on 09.07.2012, the driver of the Complainant informed that the vehicle could not be found at the placed he had parked it. The Complainant immediately reached the spot where the vehicle had been parked, but the vehicle could not be found. It is further stated that the Complainant made a call to PCR regarding the theft of the vehicle. It is also stated that the driver disappeared after theft and was traced by the police. It is also alleged that a Police registered a case vide FIR 214/2012, U/s, 408 IPC, P.S. Alipur, Delhi on 09.07.2012 itself.
3. It is further alleged that the OP was informed about the theft of the vehicle. The Complainant also filed claim with the OP vide claim no. 206952. It is further stated that the OP informed the Complainant vide letter 19.10.2012 that as the vehicle in question was misappropriated by his driver, hence claim was not covered under the policy and the police had also registered a case under 408 IPC, thus, the claim of the Complainant was not covered under the policy. The Complainant however, sent a reply dated 23.12.2012 to the letter of OP dated 19.10.2012 stating that his claim was bonafide.
4. It is further stated that vide letter no. 24.11.2012 OP closed the claim of the Complainant alleging loss of vehicle is outside the coverage of policy.
5. It is further stated that Complainant had moved an application before the concerned court to direct the police to register the case of theft could not succeed. It is also stated that though Complainant had lodged a complaint regarding the theft of the vehicle but police after investigation registered a case under section 408 of IPC due to disappearance of the driver.
6. It is further stated as the vehicle has not yet been traced and was insured with OP as such complainant is entitled for claim for loss of the said vehicle and compensation/damages suffered by him. It is prayed that OP be directed to pay to the Complainant Rs 6,55,750/- (Six Lakhs Fifty Five Thousands Seven Hundred and Fifty Only) with interest @ 18% per annum w.e.f. 09.07.2012 for deficiency in service.
7. OP had contested the claim, written statement was filed, stating that complaint has no cause of action. It was further stated that in the instant case FIR was not lodged under section 379 IPC but was lodged under section 408 IPC against the driver of the insured. It was further stated that in the police report it was stated that the driver was involved in the theft of the vehicle as such it was a case of Criminal Breach of Trust since the insured got case registered against his own driver for misappropriation of the vehicle. It was also stated that the OP had supplied a copy of the terms and conditions of the policy to the Complainant at the time of obtaining the Insurance Policy.
8. It was also stated that there was no deficiency in service on part of OP. It was admitted that the vehicle in question was insured with the OP vide policy no. VI700173. It was however denied that the Complainant was entitled to compensation for the loss of his vehicle; it was also denied that the Complainant is a consumer within the definition of Consumer Protection Act, 1986.
9.  Complainant in support of his case, filed his evidence by affidavit, reiterating therein the averments made in the complaint he filed copy of FIR, the claim application, the copy of reply sent to OP dated 23.11.2012 and the repudiation letter. OP did not lead as such its evidence was closed vide order dated 14.12.2015.
10. We have heard the Counsel for the Complainant and perused the evidence and material on record.
11. The contention of OP in its written statement was that claim was not maintainable since FIR was registered under section 408 IPC against the driver of the insured. It being a case of criminal breach of trust was not covered under the policy in question. The OP did not lead evidence to prove its defence.
12.  It is a admitted fact that the vehicle/truck in question was insured with the OP vide policy in question which is peril based policy which covers loss as detailed as under:
    1. By fire explosion, self ignition and lightning,
    2. By burglary, housebreaking or theft,
    3. By riot & strike,
    4. By earthquake,
    5. By flood, typhoon, hurricane, storm, tempest inundation, cyclone, hailstorm or frost,
    6. By accidental external means,
    7. By malicious act,
    8. By terrorist act,
    9. Whilst in transit by road, rail, inland-waterway lift elevator or air,
    10. By landslide or rockslide.
13. The   question whether criminal    breach    of    trust    under       the   insurance policy   was    considered     by Hon’ble National    Commission in United      India Insurance  Co.  Ltd.     Vs.         Ravi                      Kant Gopalka, IV (2007)  CPJ 32 NC       wherein             it was            held         said        loss     could      be

construed to be covered under the general category of malicious act, a set of grounds used in the policy. It was also held that the exclusion clause nowhere provides that an offence under section 406 IPC is excluded. The relevant extract of the above judgment is as follow:-

14.  “definition of theft under section 378 of the I.P.C. illustration (d) to Section 378 specifically provides that, A, being Zs servant, and entrusted by Z with the care of Zs plate, dishonestly runs away with the plate, without Zs consent. A has committed theft. In any case, this would be a malicious act and the policy covers such peril. Further, the exclusion clauses also nowhere provide that an offence under Section 406 of I.P.C. is excluded. Further, in our view this loss of the car could also be construed to be covered by the general category of malicious acts, a set of grounds used in the policy. It is a malicious act of a person who was an employee of the insured at the relevant time”.
15. Thus, we are of the view even though the case was registered for breach of trust and not theft it is covered under the terms and conditions of the policy, as the act amounts to a malicious Act.
16. Thus, we accordingly direct the OP to pay to the Complainant sum of Rs. 6,55,750/- (Rupees Six Lakhs and Fifty Five Thousand and Seven Fifty Only) with interest @9% p.a from the date of filing of complaint till actual payment. OP is also directed to pay cost of Rs. 5,000 (Rupees Five Thousand Only) to Complainant.
17. The order be complied within the period of 30 days of the receipt of the copy of the order.
18. A copy of the order be uploaded on the website. File be consigned to record room.

Announced in Open Commission on 17.12.2021.

 

 

 

(Poonam Chaudhry)

President

 

                                                                                                                                                                                                                                     (Bariq Ahmed)                                                                                                               (Adarsh Nain)

          Member                                                                                                                             Member