PER S.K. NAIK, MEMBER

          Vehicle of the petitioner was comprehensively insured for the period from 21.2.1998 to 20.2.1999 with the respondent – Insurance Company for a sum of Rs.4 lakhs.  On 27.12.1998, the vehicle with driver Prabhunath Yadav and the cleaner Janak Sahu had been dispatched for carrying sand, but did not come back and went missing.  An FIR under Section 406/379 of the IPC came to be lodged in this regard which was registered only after an order passed by the Chief Judicial Magistrate.  The petitioner/complainant had informed the respondent – Insurance Company about the missing of his vehicle and claimed compensation for the loss of vehicle.  He also made repeated visits and personal approach. To his shock and surprise, the claim was repudiated by the respondent – Insurance Company vide their letter dated 31.3.1999. The petitioner/ complainant, even thereafter, made a request for the consideration of his case in response to which the respondent – Insurance Company vide their letter dated 22.10.2001 asked  him to submit the case diary and investigation report from the police.  The petitioner/complainant however, vide his letter dated 29.10.2001 expressed his inability to obtain the report from the Police Authorities and requested them to secure the required documents themselves.  When nothing was done by the respondent – Insurance Company even thereafter, he filed a complaint before the District Forum.

          The District forum without getting into the merits of the case, dismissed the complaint on the ground of limitation holding that the cause of action arose on the date of the alleged theft of the vehicle which was 27.12.1998 or on the date of repudiation of the claim which was 31.3.1999.  Since, the complaint was filed on 15.3.2002, after a lapse of more than two years, even from the date of repudiation of the claim, the complaint was clearly time barred.  An appeal filed by the petitioner/complainant before the State Commission was also dismissed for the same reason by its order dated 14.12.2004.

          In this background, the petitioner/complainant has filed this revision petition challenging the dismissal orders passed by the fora below.  When the matter was taken up for consideration on 17.10.2006, this Commission has passed the following order :

“Heard the learned counsel for the parties.

In our view, considering the documentary evidence, which is produced on record, the order passed by the State Commission that the complaint was time barred cannot be justified.  Final Police Report dated 22.6.2001 which was sought by the insurance company could not be produced by the complainant prior to the report.  As per the Police investigation report, theft was established. Thereafter, complainant has informed the insurance company with regard to the said report. However, insurance company insisted for original report.  Police officers refused to part with the original report.  Hence, the complainant was required to approach the Consumer Fora.  Therefore, prima facie, it cannot be said that the complaint was time barred as the same was filed on 15.3.2002.

In this view of the matter, insurance company is directed to produce on record the survey report so that appropriate order with regard to reimbursement can be passed.

Adjourned to 9.11.2006 for final disposal.”

          The respondent – Insurance Company has filed a survey report according to which the market value of the stolen truck is assessed at Rs.3,10,000/-.

          When the matter was taken up for final hearing, learned Amicus Curiae appearing on behalf of the petitioner has submitted that both the fora below have grossly erred in dismissing the complaint of the petitioner on wholly unjustified ground of limitation.  They have failed to appreciated that even though the complainant had informed the police on 8.1.1999 in time with regard to the missing of his vehicle and an FIR had been lodged on the orders of the Chief  Judicial Magistrate on 27.7.1999 and further that the police had filed the final report on 22.6.2001, the fora below have failed to reckon that the complainant could not have provided the report prior thereto and have erroneously held that the limitation would run from the date of the repudiation.  He, therefore, submits that the order passed by this Commission on 17.10.2006 extracted above is wholly in order and fully justified. 

          Coming to the merits of the case, he has submitted that once the theft of the vehicle has been established, the insurance company was liable to pay the full value of the vehicle as stated in the insurance policy.  Referring to the judgment of the Hon’ble Supreme Court in the case of Dharmendra Goel Vs. Oriental Insurance Co.Ltd. III (2008) CPJ 63 (SC), the counsel submits that insurance company is bound by value put on the vehicle while renewing the policy and they could not go behind the value mentioned in the policy in the guise of assessing the market value of the vehicle through their surveyor.  He, therefore, submits that revision petition be allowed and the respondent – Insurance Company be directed to pay a sum of Rs.4 lakhs with appropriate interest.

          Learned counsel for the respondent – Insurance Company on the other hand has tried to contest the case on its merit.  He has submitted that there has been unexplained delay with regard to informing the Police as also the insurance company and filing of the FIR.  According to him, intimation with regard to the loss of the vehicle was given to the respondent – Insurance Company on 19.3.1999 about three months after the alleged loss of the vehicle on 27.12.1998.  Learned counsel also contends that the claim had been repudiated on 31.3.1999 but the complaint was filed after more than 2½ years and the fora below had rightly dismissed the complaint as barred by time. Another point on which much stress has been laid by the learned counsel is on the say of the complainant that the truck had been sent to fetch sand.  The place being 1200 kms. away, it could hardly be believed that anyone would send a truck to fetch sand from such a great distance.  In other words, learned counsel submits that it is a made-up story that the vehicle went missing which should not be taken on its face value. Finally, on the question of compensation, learned counsel submits that since, it was a four year old vehicle, a surveyor was appointed to assess the current value of the vehicle at the time it went missing and as per its report, the vehicle was worth Rs.3,10,000/-.

          We have heard the learned counsel for the parties and gone through the records of the case.

          As discussed in our order dated 17.10.2006 extracted above, clearly both the fora below have failed to take note of the fact that when the final report from the Police Authorities was available on 22.6.2001, the complainant could not have filed any documents specially when it was a case of missing/theft of the vehicle before that date.  Since, the respondent – Insurance Company has been asking for this document, their letter of repudiation even, if it is of a earlier date will not be a bar for reckoning the period of limitation.  Both the fora below have therefore, grossly erred in dismissing the complaint on the ground of limitation.  

On the merits of the case, we do not find much weight in the arguments advanced by learned counsel for the insurance company that the vehicle was sent for fetching sand to a place 1200 kms. away.  It has been explained by the Amicus Curiae for the petitioner that after the death of the father of the complainant, nobody was there to live in their parental house at Bihar and the truck used to go from Siwan to Chhapra for the purpose of doing business in carrying sand.  It is, therefore, wrong on part of the learned counsel for the insurance company to contend that the vehicle was sent to fetch sand from Chhapra.   

          With regard to the objection that there has been unexplained delay on part of the complainant, we do not find them borne out from the records.  Since, it was a case of missing/theft of the vehicle, the complainant and his brother have taken few days to ascertain the movement of the vehicle from Chhapra to Siwan and only when they found no trace of the vehicle, the Police was informed within a week.  Subsequent development with regard to the filing of a complaint in the Court of Chief Judicial Magistrate and registration of an FIR and the filing of the final report by the Police took its own time for which the delay cannot be attributed to the petitioner/complainant.  Final report of the Police having concluded that the vehicle could not be traced, clearly imposes a burden on the respondent – Insurance Company to treat it as a case of theft and honour its commitment as per the policy.

          With regard to the quantum, the submission made by the learned counsel for the respondent – Insurance Company that since the surveyor had assessed the market value of the vehicle at Rs.3,10,000/-, the complainant could not be permitted to received a higher amount even though, the policy was for Rs.4 lakhs ; we are afraid, this is a totally erroneous view, since as rightly pointed out by the learned Amicus Curiae, the insurance company having accepted the value of the vehicle at Rs.4 lakhs cannot go behind this figure on the pretext of a market survey.  The Supreme Court in the case of Dharmendra Goel Vs. Oriental Insurance Co.Ltd. (supra) on a similar plea taken by the insurance company has held as under :-

“It must be borne in mind that Section 146 of the Motor Vehicles Act, 1988  casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter 11 of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof.  It is, therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured goods disown that very figure on one pretext or the other when they are called upon to pay compensation. This ‘take it or leave it’ attitude is clearly unwarranted not only as being bad in law but ethically indefensible.”

          With this view of the Hon’ble Apex Court, there is no need for us to make any more comments on the plea of the learned counsel for the respondent – Insurance Company that the complainant would be entitled to the lower amount as assessed by the surveyor.  However, considering that the vehicle had been insured from 21.2.1998 and had been used for a period of 10 months when it went missing on 27.12.1998, the respondent – Insurance Company would be entitled to a depreciation on the insured amount which can reasonable be fixed at 10% of the value.

          Under the circumstances, orders passed by both the fora below being erroneous and, therefore, illegal are set aside. The revision petition  is accepted and the respondent – Insurance Company is directed to pay a sum of Rs.4,00,000/- - Rs.40,000/- being the depreciation which will come to Rs.3,60,000/- to the petitioner/ complainant with 5% interest p.a.

The revision petition, accordingly, is disposed of with the above modification.

…………………..………J

     (R.K. BATTA)

      (PRESIDING MEMBER)

                                                                   ……………….……………

                                                        (S.K. NAIK)

                                                                            MEMBER

St/19