BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.16/2016
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Shri Karuna Kanta Baishya - Complainant
S/0 Late Manik Baishya
House No.451, Panjabari (Baghar Bari)
Guwahati-781037,
District: Kamrup,(Metro) Assam
-vs-
I) The Chairman-cum-Managing Director, -Opposite party
The Oriental Insurance Company Limited,
Regd. Office-A/25/27, Oriental House,
Asaf Ali Road, New Delhi-110002.
II) The Regional Manager,
The Oriental Insurance Company Limited,
Service Vertical Centre, Saswata Building,
Dr.B.Barua Road, Ulubari Chariali,
Guwahati-781007,
District –Kamrup(Metro), Assam.
III) The Branch Manager,
The Oriental Insurance Company Limited,
P.O.Khanapara, P.O.Guwahati-781022,
District –Kamrup,(Metro) , Assam
Appearance
Learned advocate Mr.H.K.Dass, Smti Dipamoni Devi, Mr.Bomga Payom and Mr.Bhaskar Jyoti Das for the complainant .
Learned advocate Mr.Chinmoy Sharma, Ms. M.Choudhury, Smti Bhanita Choudhury ,Sri Swarnalata Muchahari, Smti Mamoni Choudhoury and Smti Madhuri Gazloo for the opposite parties.
Date of argument:- 16.03.2020
Date of judgment: - 07.04.2021
JUDGMENT
1) This is a complaint u/s 12 of the Consumer Protection Act, 1986. The fact of the complainant’s case is that one Sri Chhangur Prasad Pandey of Assam Enterprise LLP Firm of Narengi, Guwahati , Assam had informed the O/C Noonmati P.S. vide F.I.R dated 1.2.2014 about the missing of a Truck No. AS-01-CC-3359 loaded with Water Storage Tanks belonged to Assam Enterprise LLP Firm and was dispatched the said Truck to M/S Ganeshram Sharma & Company at A.T.Road, Jorhat on 29.1.2014 at about 7-30 p.m. with a request to enquire into the matter about the missing of the said loaded truck.
2) The complainant is the owner of the aforementioned Truck .The owner of the Assam Enterprise LLP , Narengi of Guwahati hired the above Truck of the complainant for sending its goods to Jorhat on 29.1. 2014. But on enquiry from Ganeshram Sharma & Company from Jorhat, the owner of the Assam Enterpise LLP firm came to know that said Truck did not reach its destination at Jorhat and accordingly, on 1.2.14 an F.I.R. was lodged at Noonmati P.S. by the owner of Assam Enterprise LLP firm requesting the O.C.Noonmati Police Station praying investigation to the missing of the loaded truck.
3) When the complainant, owner of the truck came to know about the missing of the loaded truck lodged another F.I.R. at Noonmati P.S. on 3.2.14 informing that Shri Sarbeswar Hazong, the driver of the Truck was not driving the vehicle on 29.1.2014 to Jorhat but on the way he handed over the loaded Truck to another driver namely, Sri Ganesh Deka ( alias Apurba) and the truck loaded with goods remained missing.
4) According to the complainant, the Noonmati P.S. did not register the F.I.R. dtd. 3.2.14 filed by the complainant and registered the F.I.R. dtd. 1.2.14 of the Assam Enterprise LLP firm.
5) The vehicle was insured with opp.party namely, Oriental Insurance Company Ltd. for the period from 19.2.2013 to 18.2.14. The theft of the vehicle took place on 29.1.14 and it is claimed that it was within validity period of insurance .The registration of the vehicle was transferred in the name of the complainant on 31.12.2013.
6) The complainant referred repudiation letter dtd. 16.9.2015 and also refer a letter BD/2775/2014 dtd.17.2.2014 received from Oriental Insurance Co.Ltd. where the opp.party No.2 have given much emphasis on Police Final Report in Noonmati P.S. Case No. 26/2014 registered u/s 406/420 IPC.
7) It is further mentioned that Insurance Company made a note that Insurance policy covers burglary, house breaking and theft but none else like criminal breach of trust , cheating etc.
8) The opp.party No. 2 allegedly stated the insurance policy marked in “Rubber Stamp” that the occurrence of theft ought to have been communicated to the Insurance Company within 48 hours from the date and time of occurrence .
9) The complainant further alleged that the terms and condition of the Insurance policy are often not explained by the Insurance Agents to the customers . But when Insurance claims are presented to the Insurance Company for payment, show various reasons and grounds for disentitlement of the customer of their genuine claim.
10) It is further claimed that owner of the truck , Sri Karuna Kanta Baishya lodged F.I.R. on 3.2.2014 at Noonmati P.S. Guwahati and informed about the missing of the Truck to the Branch Manager of the Oriental Insurance Company Ltd. on 4.2.2014. The Truck was insured for Rs.6,00,000/- (Rupees six lakhs) only on payment of annual premium of Rs.20,330/-.
11) It is further stated in the F.I.R. that one Sarbeswar Hazong was not driving the Truck on 29.1.2014 to Jorhat and he handed over the loaded Truck to one Ganesh Deka having driving license No. F/2622/MV/20051 dated 7.4.2014.
12) The informant Sri Karuna Kanta Baishya further suspected that Sri Ganesh Deka was driving the Truck must have stolen the Truck and in such a situation, it is a clear case of theft u/s 378 of the IPC. The complainant submits that Noonmati P.S. had committed a mistake by putting the wrong Sections 406 and 420 of I.P.C. and the law mentioned by the police is not sacrosanct and cannot be accepted as final.
13) According to the complainant, when cause of action arose on 16.9.2015 on which date the Oriental Insurance Company had repudiated the claim of the complainant and complainant sent a notice to the opp.party for settlement of the Insurance claim of Rs.6,00,000/- in respect of the stolen vehicle No. AS-01-CC-3359. But no reply to the aforesaid notice has been received with regard to the settlement to the Insurance claim.
14) In the above circumstances the present petition has filed for directing the op.party to pay the claim and compensation of Rs.6,00,000/- with 12% interest p.a. from the date of filing of the complaint together with litigation cost of Rs.25,000/-.
15) After receiving the notices the opp.party No. 1, The Chairman-cum-Managing Director, The Oriental Insurance Company Limited, New Delhi-110002 the opp.party No. 2 The Regional Manager, The Oriental Insurance Company Limited, Ulubari Chariali, Guwahati-7 opp.party No. 3 The Branch Manager, The Oriental Insurance Company Limited, Guwahati-781022, District –Kamrup,(Metro) , Assam, filed their written statement. The opposite party stated that complaint is not maintainable and is liable to be rejected. The complainant has no locus standi to sue the opposite parties , the complaint is barred by law of limitation, acquiescence and estoppels .
16) The opposite party No.1,2 and 3 stated in their written statement that there is no cause of action to institute the present case by the complainant , the complaint is guilty of suppression of material fact and the complainant is not entitled to any relief.
17) The opposite parties stated in their written statement that on receipt of FIR Police registered the case being Noonmati P.S. Case No. 26/2014 u/s 406 and 420 of the IPC. As per the said report the drivers have committed criminal breach of trust and cheated by dishonestly delivering the vehicle to other person. That, the policy in question covers burglary, house breaking and theft and it does not cover the criminal breach of trust and cheating by employees. It is an admitted position that engaged driver Sri Sarbeswar Hazong loaded the truck on 29.01.2014 for transportation of the materials to Jorhat. However, on the way, Sri Sarbeswar Hazong handed over the loaded truck to another driver Sri Ganesh Deka .
18) From the written statement it is clear that the vehicle was driven by the person other than a driver engaged by the insured for the purpose of driving the vehicle and as such, the Insurance Company is not liable to enter the claim.
19) The opposite parties denied that the alleged incident is a pure case of theft in as much as police registered the case u/s 406/420 of IPC and these are not covered under the said policy.
20) The opposite parties stated in their written statement that Sri Sarbeswar Hazong was not driving the truck on 29.01.14 to Jorhat and he handed over the loaded truck to one Sri Ganesh Deka and accordingly the Noonmati Police observed all the formalities at the place of occurrence and source had been engaged to trace out the stolen truck as well as suspected driver , but could not succeed and ultimately police submitted the final report on 19.9.14 u/s 406/420 IPC. Therefore, the driver have committed criminal breach of trust and cheated by dishonestly delivering the insured vehicle.
Reasons and decisions thereon
21) For convenience of discussion we proposed to frame the following issues for determination of the present dispute.
i) Whether the vehicle was duly insured with the opp.party and the claim was made within the validity period of the insurance policy ?
ii) Whether the policy covers included the loss by way of theft or whether the present case, the loss of the vehicle of the complainant by way of misappropriation amounts to a legitimated claim covering the present policy ?
22) Issue No. (i) -The first issue can be determined on the basis of pleading of the parties . The opp.party have not denied the policy issued by them in favour of the claimant. The validity of the policy is however not disputed.
23) We have gone through the documents Ex.1 , which is a copy of insurance policy. There is no dispute between the parties as to the validity of the insurance policy. We have also gone through the argument placed by the complainant and perused the documents i.e. Ex.4, the registration certificate which is in the name of the complainant , Sri Karuna Kanta Baishya. These documents have established the fact that claim petition is filed within the validity period and is filed by the registered owner of the vehicle in respect of which the insurance policy was made. As such, the issue no. 1 is decided in affirmative.
24) Issue No. (ii) - This is an issue to determine the entire dispute and we have to consider the argument put forwarded by the parties where the complainant have claimed that the F.I.R. was lodged on 3.2.14. A copy of the same is testified as Ex.2. There is another fact as disclosed in the F.I.R. that the original driver was not driving the vehicle and it was drove by one Ganesh Deka owing to personal difficulty of the regular driver. On the same subject Ex.1 another F.I.R. was lodged on 1.2.2014 by, one Sangur Prasad Pandey on behalf of Assam Enterprise at Noonmati Police Station regarding missing of the truck loaded with goods which were the consignment to reach the firm of M/S Ganesh Ram Sarma and Co. at Jorhat on 31.1.2014.
25) In the prevailing situation it is found that there were two different F.I.R. lodged by one, owner of the truck and another by the consignee company on two different dates. In this situation the learned counsel for the complainant took a reference of a case law of “Hon’ble Supreme Court in (2012) ‘ SCC 130 Sivshankar Sing-Vs-The State of Bihar and Anr” where it has been held that if there is more than one F.I.R. in respect of same incident, it was the bounded duty of the police to register the F.I.R. of the complainant who is the registered owner of the vehicle. The law does not prohibit from registering the F.I.R. dtd. 3.2.2014 of the complainant by O/C Noonmati P.S. in the present case. It is argued that without registering the F.I.R. of the complainant dtd. 3.2.14 the Noonmati P.S. submitted Final Report on 14.11.2014 in the case No. 26/2014 registered on the F.I.R. dtd. 1.2.2014 filed by a person other than the registered owner.
26) The evidence of the O.P.W.1 is perused and found the fact that there was two F.I.R. in respect of the stolen vehicle and there is no inconsistency about fact of loss of the truck belonging to the complainant but O.P.W.1 have asserted that repudiation of the claim is made as per policy condition.
27) We have carefully scrutinized Ex.3 , the Final Report dtd. 14.11.2014 which is testified by the complainant. From written statement of the opposite party it is clear that Final Report was submitted in the case in respect of misappropriation of the property, not burglary, house breaking and theft. On contrary to the above, the claimant argued that the fact disclosed in petition that F.I.R. indicates that the truck in question must have stolen and it is pure case of theft and complainant made note in his pleading that investigating officer of Noonmati Police Station have wrongly submitted the Final Report quoting sec.406 of I.P.C.
28) We have also found force on the argument of the complainant regarding lodging of F.I.R. of the registered owner which ought to have been registered by police as to the above fact we have found the correct citation of law referred by the complainant in the earlier para.
29) The documents on record testified by the complainant are sufficient proof of having license of the driver, registration certificate of the vehicle and Ex.11 the policy schedule and also gone through Ex.12 the copy of legal notice which are found undisputed. There is no much dispute about the fact alleged instead of one plea taken by opposite party that the police report is for the offence u/s 406/420 I.P.C. not theft.
30) The complainant in his argument further submits that he had challenged the Final Report submitted by the Noonmati Police Station in the matter on 14.11.2014 and complainant have testified Ex.5 & 6 the letter dtd. 17.2.14 addressed to the complainant by the opp.party.
31) It is again argued by the complainant that apparently the F.I.R. was lodged by the complainant on 3.2.14 disclosing the fact that he suspected about theft of the truck by the driver Ganesh Deka and police have measurably failed and arrest the said driver and recovered the truck. Merely having some clause in the Insurance Policy cannot overwrite the genuine claim without exhausting all the procedure required to be follow by police and insurance company.
32) In our considered view though the technicality of the policy offence narrated by the Final Report , it is very apparent that the offence registered against property and we cannot say Insurance Policy was only for theft as because there was a loss of property during the validity of the Insurance policy, though police have not properly investigating the case by inserting the appropriate section of law. So far the question raise by the opp.party that the vehicle was driven by a person other than a driver engaged by the insured, can not be a ground for rejection of the claim because the owner is not suppose to continue in control over the vehicle after bringing out it by the regular driver for commercial purpose .
33) The complainant have again drawn our attention that on Ex.7 , (the Insurance Policy) has nowhere mentioned that policy covers only burglary, house breaking, theft and non else. The matter was duly informed to the Insurance company after lodging F.I.R.,( Ex.2) by the complainant. As such, it cannot be said that the insurance policy does not cover the loss of the complainant , for the reason of theft or otherwise.
34) The real issue that has been brought by the complainant is nothing , but a loss of property which was duly insured with the opp.party. Whether this loss is due to theft or otherwise is a different issue and for not exhausting the required formalities by the appropriate authority is the question to be determined . The insured ought not be allowed to suffer for the reason of mere technically. The fault of police in dealing with two different FIR ought not allow to suffer a policy holder.
35) In the result , we hold that issue No. 2 is decided in affirmative and complainant is entitled for the claim made by him. Hence the claim petition is allowed directing the Insurance company to pay the insured claim of Rs.6,00,000/-(Six lacs) with interest at the rate of 4% per annum from the date of filing the petition till payment. The opp.parties from 1 to 3 are severally and jointly liable for payment of decretal amount
ORDER
The Insurance company is directed to pay the insured claim of Rs.6,00000/-(Rupees six lakhs) with interest at the rate of 4% per annum from the date of filing the petition till payment. The opp.parties are further directed to pay an amount of Rs.10,000/- as cost of the proceeding to the complainant . The opp.parties No. 1,2 & 3 have to pay the decretal amount within 45 days from the date of judgment . Otherwise opp.party have to pay interest at the rate of 12% per annum on the decretal amount till realization .
Given under our hand and seal of the District Commission, Kamrup, this the 7th day of April/2021.
(Md J.Islam) (Smt A.D.Lahkar) (Shri A.F.A Bora)
Member Member President
Dictated and corrected by me
(Shri A.F.A Bora)
President,
District Consumer Commission, Kamrup.
Typed by me
(Smt Juna Borah)
Stenographer, District Consumer Commission, Kamrup.
