PER JUSTIC MR. A.P.BHANGALE, HON’BLE PRESIDENT.

1)         By this appeal the appellant questioned the validity and legality of the impugned judgement dated 28/09/2016 in consumer complaint No.765/2013 decided by learned Additional Consumer Dispute Redressal Forum, Nagpur, whereby the complaint was dismissed on the ground that the complainant was negligent to take proper care of the truck to prevent theft and that there was delay to give intimation of the theft on the part of the complainant.

2)        The facts in brief are that the complainant is the owner of the truck bearing registration No.CG-04/DB-1924 which was insured during the period between 29/12/2010 to 28/12/2011 with insured declared value to be of sum of Rs.11,50,000/-. According to complainant the truck was plying all over India and complainant was earning his livelihood out of its income. While the truck was on the road from Delhi to Agra, on or about 17/06/2011 near Waghola village, they parked their vehicle on road side and went to answer nature’s call. Unfortunately, the truck was stolen.

3)      The incident of theft was reported to Sadar Palwal Police Station at Palwal vide FIR No.230 dated 18/06/2011 at about 20.30 hours. The police had investigated in to the incident of theft under Section 379 of Indian Penal Code. However, since the vehicle could not be traced, final report (‘A’ summary) (incident proved but not detected) was placed before learned Magistrate at Palwal.

4)         It is the grievance of the complainant (appellant) that though the notice was served upon the opposite party, it did not settle the claim despite communications from time to time. The opposite party avoided their liability on the ground that the complainant did not supply the necessary documents despite demand and it is not clear as to when the intimation of theft was given to the opposite party and further on the ground that ‘A’ summary report was filed by policy on 23/11/2011.

5)      Our attention has been invited to the insurance policy in respect of the stolen truck with insured declared value mentioned as 11,50,000/- with premium fixed annually in sum of Rs.17,405/-. The truck was under insurance cover during the period between 29/12/2010 to 28/12/2011. Final premium of each year was Rs.19,198/-. The reason stated by learned Forum below that the incident was belatedly reported to the opposite party does not appears convincing as incident of theft was reported soon after the incident of theft on following date 18/06/2011. The incident had occurred during the night of 17/06/2011 to 18/06/2011 at about 3.00 a.m. Our attention also invited to the communications made from time to time by the complainant Ismail Khan to the Manager of Reliance General Insurance Co.Ltd., Nagpur which is part of the appeal proceeding. Intimation was clearly given to the opposite party that truck bearing registration No.CG-04/DB-1924 was stolen at about 3.00 p.m. on 17/06/2011 from National High Way No.2, nearby Waghola village when driver and the owner of the truck went to answer nature’s call by parking the truck by the side of the road. The intimation dated 22/06/2011 appears to be within the knowledge of Manager under the seal of City Finance Corporation (I) Ltd./ financer of the vehicle. It is contended that the opposite party was well aware of the incident of theft as in their letter dated 20/06/2011 they had referred to the claim of loss dated 26/02/2011 under the policy. Complainant was asked to furnish documents by the said communication dated 20/06/2011. There was no question of such communication by the opposite party to the complainant if at all opposite party was not aware of the incident of theft.

6)      That being so, the learned Forum was clearly erred to observe that there was delay in giving intimation of the incident and that there was negligence in taking proper care of truck from loss. In our view, driver and the owner parking their vehicle by the side of the road and went to answer nature’s call, does not amount to such negligence on the part of the owner and the driver in the facts and circumstances of the case, so as to deny the claim.

7)      Considering that the incident was reported without delay to the police and communications were made from time to time with the insurance company, claiming compensation for loss by the complainant, it cannot lead to the conclusion that there was inordinate delay in giving intimation of incident to the authority concerned. Considering therefore that the conclusion by the learned Forum below was clearly erroneous in the facts and circumstances of the case, to dismiss the complaint. In our view, the complaint ought to have been appropriately awarded and compensation ought to have been awarded as just and reasonable as there was deficiency in service on the part of insurer.

8)      Next question is regarding the quantum of compensation which ought to have been award. We have queried to learned advocate of the appellant (complainant) regarding the date of purchase of the truck. We are informed that it was purchased on 05/01/2008. There is no evidence as to how much depreciation amount was claimed by the owner of the vehicle till the insurance policy dated 29/12/2010. Though insured declared value mentioned as 11,50,000/- for which final premium was paid in the sum of Rs.19,198/-. In the absence of evidence as to depreciation claimed by the complainant, and considering the facts and circumstances of the case that the truck is lost forever to the complainant. In our view, sum of Rs.10,00,000/- as compensation for the loss would be just and proper to be awarded. The amount shall be payable together with interest @ 9% p.a. from the date of the complaint till realization of the amount.

9)      We therefore set aside the impugned judgement and order and direct that the opposite party (respondent)/Reliance General Insurance Co.Ltd. shall pay sum of Rs.10,00,000/- together with interest @ 9% p.a. with effect from 21/01/2016 till realization of the amount. The amount shall be paid within a period of 45 days from the date of order, failing which the interest shall be paid @ 12% p.a. The appeal is accordingly allowed with cost to the sum of Rs.5,000/- and compensation for mental and physical harassment in the sum of Rs.10,000/-. The entire amount is payable within 45 days, failing which out standing dues as above shall carry interest @ 12% p.a. from the date of order.