Nagaland

StateCommission

FA 3/2009

The Oriental Insurance Co. Ltd. - Complainant(s)

Versus

Shri. Jyoti Baglary - Opp.Party(s)

Mr. B. Devnath

18 Sep 2015

ORDER

This appeal is directed against the Judgment and Order dated 12/11/2008 passed by the District Consumer Forum, Dimapur in C.F.D case No. 1/2008. By the impugned judgment and order the District Forum has awarded compensation of Rs. 4,00,500 /- (Rupees four lakhs five hundred) with interest @12% per annum to the complainant due to loss of his commercial vehicle by way of theft. Being aggrieved by the impugned judgment and order the insurance company has filed this appeal.

Heard Mr. B Devnath the learned counsel for the appellant and Mr. B N. Sarmah the learned counsel for the respondent. We have also gone through the impugned judgment, pleadings of the parties and the documentary evidence proffered by both the parties in the trial court.

The gist of the complainant’s case is that on 27/04/2006 his mini trucks, bearing Registration No. AS/02/B.8292, was hired by two persons to transport coconut and banana from Howraghat market to Bokajan. However, on the way the truck was snatched away by two miscreants. Thereafter, the theft of vehicle was reported to the police as well as to the Insurance Company.

Though the police came to a finding that the vehicle was stolen by the unknown miscreants, the Insurance Company failed to pay the compensation to the insured compelling the owner of the vehicle to file the claim case.

The entire case is based on documentary evidence. There is no dispute that the stolen vehicle was duly insured with the appellant company at the relevant time. Beside this, the Police Report dated 14/09/2006 also proves the fact that the respondent’s truck was stolen by unknown miscreants. The Final Report of the police was also accepted by the District Magistrate, Diphu vide Order dated 13/11/2006. The Insurance Company did not challenge the final report nor the Magistrate’s Order. Hence, we cannot entertain the story projected by the Insurance Company that two person could not have hijacked the truck.

The above apart, the Insurance Company had also appointed an Investigator but the Investigation Report was not placed before the District Forum and from this fact also an adverse inference can be drawn to the effect that the Insurance Company’s investigator was also of the opinion that the vehicle was actually stolen.

The other plea that has been taken by the learned counsel for the Insurance Company is that it was a case of “criminal breach of trust” and not a case of “theft”.

The Hon’ble High Court in the case of Ratul Das –vs- Oriental Insurance Co.Ltd and ors. Reported in 2008 (3) GLT 874 has taken an opinion that in such cases the claimant is not required to prove the factum of theft with the same degree as is required under the Criminal law. Their lordships further held that it should be sufficient if the factum of taking away of a property is established the Insurance Company would be liable to indemnify the insured.

In view of the law laid down by the Hon’ble Gauhati High Court we also hold that the theory of criminal breach of trust is not applicable.

For the foregoing reasons, we hold that there is no merit in the appeal and, accordingly, the appeal is dismissed.