Date: 22-10-2014

Sri Debasis Bhattacharya, Member

This appeal is directed against the Order dt. 18-12-2013, passed in Case No. 42/2012 by the Ld. District Forum, Kolkata Unit II, by which, the complaint has been allowed in part on contest against the OP no. 1 and dismissed against the OP nos. 2 & 3.  Being aggrieved and/or dissatisfied with the same, the OP no. 1 thereof has preferred this appeal.

The case of the Complainant, in short, is that she took an insurance policy from OP no. 1 being no. OG-10-2401-1801-00016-921 in respect of her Mahindra Scorpio SLE bearing Registration No. WB-20U-2838 after paying requisite premium of Rs. 25,002/- and the said policy was valid from 05-09-2009 to 30-08-2010.  On 05-03-2010, at the request of her neighbour, Mr. Unnikrishnan Nair, she gave the said vehicle to him for using the same to meet some emergency purpose at Dankuni, being driven by her driver, Mr. Rabin Roy.  The car was kept/parked at Dankuni Garage near Himalaya Plaza and the said driver was staying at a nearby hotel, namely, Ritika Lodge.  On 08-03-2010, morning, Mr. Nair, after returning from his personal business found that the driver of the Complainant, along with other drivers of different vehicles, were lying in an unconscious state and immediately they were rushed to the nearby hospital and after returning from the hospital, it came to his notice that the vehicle in question, along with other vehicles, went missing, and an FIR was lodged with Dankuni Police Station being case no. 18/2010 dt. 08-03-2010, u/s 328/379/34, IPC.  The police filed FRT in this regard being no. 85 dt. 24-06-2011 on 18-07-2011 before the Ld. ACJM, Sreerampore, Hooghly.  The Complainant lodged her claim with the OP no. 1 on 08-03-2010 being Claim No. OG-10-2401-1801-00011 400 dt. 08-03-2010.  Intimation pertaining to theft of the insured vehicle was given to OP no. 2 in writing on 28-04-2010.  However, by a letter dt. 25-06-2010, the OP no. 1 directed her to show cause as to why her claim would not be repudiated for violation of basic terms and conditions of the insurance policy, precisely for giving the vehicle to Mr. Nair on hire basis.  Subsequently, by another letter dt. 14-07-2010, the OP no. 1 intimated the Complainant about their decision to repudiate the claim.  Thereafter, the Complainant made some correspondences with the OP no. 1 in this connection and submitted additional documents as per the direction of the OP no. 1, but to no effect.  Hence, the case.

It is stated by the OP no. 1 in their WV that Mr. Nair himself has stated in the FIR, that he had lodged with the Dankuni Police Station, that the vehicle was used for hire and reward at the time of alleged theft.  Besides, other cases were also lodged by the owners of said cars wherein the common plea of all such owners were that Mr. Nair was personally known to them and they provided their cars for the personal use of Mr. Nair, and. in fact, a Complaint Case, bearing no. 108/2011, has been filed by one Mrs. Neelam Moholka before the Ld. CDRF, Unit I, Kolkata.  Therefore, in terms of the policy in question, the OP no. 1 is in no way liable to compensate the Complainant for the alleged theft of the insured vehicle.  Further, it is an admitted position in this case that at the material point of theft, the vehicle was handed over to one Mr. Ajay Gupta, who is actively involved with the said theft.  Therefore, even if it is assumed that the vehicle was indeed lost, the same can at best be construed as a breach of trust and not theft, and insofar as breach of trust  is not covered under the Policy, the OP no. 1 is not liable to pay any claim and/or compensation, as prayed for.  

It is to be considered if the impugned order suffers from any sort of infirmity or not.

Decision with reasons

         Ld. Advocate for the Appellant has submitted that the FIR is a clear testament of the fact that the vehicle in question was used for commercial purpose by the Complainant, which is also supported by other like documents, viz, advertisements in the dailies seeking vehicles on hire, namely, Sanmarg and the Telegraph.  But, the insurance was taken by the Complainant only for private use of the vehicle, for which, a nominal premium is taken.  Under the policy, there is no scope to use the vehicle for commercial purpose, as has been done by the Complainant.  This is a clear case of wilful and negligent breach and violation of a policy condition by the Complainant, for which she is not entitled to any insurance benefit.  Though the FIR was lodged u/s 328/379/34, IPC, the case properly befalls u/s 392/408, IPC having requisite ingredients.  He has referred to a number of decisions, namely, AIR 2006 SC 1899, passed by the Hon’ble Supreme Court and another one of the Hon’ble Court reported in Punjab Law Reporter, Vol.CL.III-(2009-1) 538, RP No. 3101/2013, RP No. 650/2014, RP No. 3045/2013 of the Hon’ble National Commission and one decision of this Commission in FA No. 761/2012.

            Ld. Advocate for the Respondent, however, has submitted that such matter has already been properly dealt with and taken care of by the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Nitin Khandelwal, reported in (2008) 11 SCC 259, where it has been held that in case of theft of a vehicle, nature of use of the same cannot be looked into and the insurance company cannot repudiate the claim on that basis, in that, breach of condition is not germane, and 75% of the claim of the Respondent was allowed on non-standard basis on the reasoning that the State Commission and the National Commission decided so.  There is no bar to grant cent percent claim to the insured, in a case of theft of vehicle.  He has further relied upon two decisions of the Hon’ble National Commission reported in 2014(1) CPR 61 (NC) and 2011 (2) CPR 342 (NC).

            Strictly speaking, this case falls within the category of theft, as defined u/s 378, IPC, which governs the ingredients of theft, along with Section 328, IPC, which is use of stupefying, intoxicating or unwholesome drug, or other thing with the intention to cause hurt, or with intent to commit or to facilitate the commission of an offence, in conjunction with Section 34, IPC.  Materials on record do not betray the viewpoint of the Appellant regarding use of the said vehicle at the relevant time for a value.  Significantly, in the case of the National Insurance Company Limited vs. Nitin Khandelwal (supra), the said vehicle had been used as a Taxi for carrying passengers on payment.  In the said case, the vehicle was snatched or stolen.  It was held therein that breach of condition is not germane in the case of theft of vehicle.  In the present case, the FIR was lodged u/s 328/379/34, IPC, which resulted in a final report under the same provisions of the IPC.  There is, as such, no ingredient of either Section 392 or Section 408, IPC, in this case.  Accordingly, the findings of the Ld. District Forum, is in order.  But, however, considering the facts and circumstances of the case, payment of interest @ 6% p.a. should be effected from the date of filing of complaint till payment of the awarded sum of Rs. 5,04,120/-.  Further, punitive damages of Rs. 300/- per day is too harsh given the fact that interest @6% p.a. has been awarded till full and final settlement, and therefore the same is deleted.  There is no rationality to award a further penalty of Rs. 10,000/-, as made out in the ordering portion of the impugned order, which is beyond the scope and jurisdiction of the Ld. District Forum, and so the same is also struck off.

Hence,

ORDERED

            that the appeal be and the same is allowed in part against the Respondent on contest, but without cost.  The impugned order is modified to the extent as under:-

The OP no. 1/Appellant is directed to pay the sum of Rs. 5,04,120/- as insurance benefit in respect of the stolen vehicle together with an  interest @ 6% p.a. from the date of complaint till payment.  It should be paid to the Complainant within 45 days hence. 

Other parts of the ordering portion of the impugned order are struck off.