AT HYDERABAD.

F.A. 817/2007 against C.C. 173/2006,   Dist. Forum, Karimnagar

Between:

Thoutreddy  Ranadheer Reddy

S/o. Raji Reddy, 24 years

Employee Transport-cum-Partner

H.No. 10-1-186, Ramnagar locality

Karimnagar Town & Post.                           ***                         Appellants/

                                                                                                Complainants.                                                                         And

1)  The ICICI Lombard General Insurance Company Ltd.

Rep. by its Manager,

Regd Office: ICICI Bank Towers

Bandra Kurla Complex

Bandra (East)

Mumbai-400 051 

2)  The ICICI Lombard General Insurance Company Ltd.

Rep. by its  Branch Manager

Osman Plaza, 6-3-352/1

2^nd & 3^rd Floor, Road No. 1

Banjara Hills, Hyderabad-500 034.            ***                         Respondents/     

                                                                                                Opposite Parties 

Counsel for the Appellant:                          M/s. M. Ramgopal Reddy

Counsel for the Resp:                                 M/s. Katta Laxmi Prasad.

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

THURSDAY, THIS THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

*****

1)                This is an appeal preferred by the complainant against the order of the Dist. Forum directing the insurance company to settle the claim within 30 days from the date of taking possession of the tractor-trailer by  him.

2)                The case of the complainant in brief is that he insured his tractor-trailer bearing registration No. AP 15 X 0778 and AP 15 X 0779 respectively  for Rs. 3,32,882/-  against theft  covering the period from 11.7.2005  to 10.7.2006.  While so on  27.10.2005 when the vehicle was  kept at  Sri Raja Rajeswara  filling station at  Padmanagar some unknown  persons committed theft  and on that he gave a report to the police  on 12.11.2005 after due search.  It was registered as a case in Crime No.  415/2005 u/s 379 IPC.  Despite his claim the insurance company  did not settle his claim  however prolonged  the matter  due to which he has  sustained loss of income at Rs. 10,000/- per month.   He got issued legal notice which did not evoke any reply.   Therefore he claimed Rs. 3,32,882/- with interest @ 9% p.a., from the date of theft together with  Rs. 1 lakh towards loss of earnings and Rs. 25,000/- towards mental agony and costs. 

3)                The insurance company resisted the case.    While admitting issuance of policy it alleged that the stolen vehicle was recovered before settling the claim.    Therefore payment of compensation when the vehicle was traced would not arise.    It was for the complainant to take possession of the vehicle and therefore prayed for dismissal of the complaint with costs.

4)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A19 marked while the respondent insurance company filed the affidavit evidence of its legal manager and did not choose to file any documents.

5)                The Dist. Forum after considering the evidence placed on record opined that since the respondent insurance company expressed its readiness to settle the claim by appointing a loss assessor in the event the complainant takes the tractor and the trailer into his possession.  Holding  the claim cannot be settled without appointing a surveyor or loss assessor directed the insurance company to settle the claim of the complainant within 30 days from the date of taking possession of the tractor and trailer  by the complainant together with costs of Rs. 1,000/-.

6)                Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    It ought to have seen that the police did not trace the trailer.  He could not take possession of the vehicle as the case is pending before the Magistrate Court.   The Dist. Forum ought not to have stated that the claim was pre-mature when he has not taken possession of the vehicle.  Therefore he prayed that the complaint be allowed.

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                Before considering the evidence placed on record,  the appellant filed   FAIA 748/2010 and FAIA 1781/2010 to receive certain documents as additional evidence and those documents have been received and assigned as Exs. A20 to A24. 

9)                It is an undisputed fact that the complainant was the owner of the tractor and trailer  and got insured the same with the respondent insurance company for Rs. 3,32,882/- viz., Rs. 2,84,382.50 for the tractor and Rs. 48,500/- for the trailer vide Ex. A6 & A7 covering the period from 11.7.2005 to 10.7.2006.  It is also not in dispute that some unknown offenders had committed theft of the tractor-trailer for which he gave report after due search on 12.11.2005   on which the police registered it as a case in Crime No.  415/2005 u/s 379 IPC evidenced under Ex. A8 & A9.    When the police could not trace out, submitted final report before the learned Magistrate as ‘undetectable’ under Ex. A11.    Subsequently when the insurance company was processing the claim, the police could nab the culprits and seized the tractor as well as trailer.   The accused were found guilty and the tractor and trailer that were marked as MO1 were directed to be handed over to the complainant evidenced under judgement Ex. A21.   He took possession of the vehicle  vide orders  in Cr.M.P No. 3089/2007 on 27.12.2007 (vide Ex. A24). 

10)               The complainant alleges that out of tractor and trailer only tractor was seized and it was delivered to him and by then  it  was almost in a damaged condition.    The trailer was never recovered nor handed over to him.   Therefore he was not only entitled to damages but also the value of the trailer. 

11)               There is lot of discrepancy in regard to seizure  of the vehicle by the police.   The complainant has filed   certified copies of the proceedings of the criminal case, however, failed to file seizure panchanama which was marked as P2 in the criminal case.    It would afford this Commission to find out whether only tractor was seized or along with  it trailer was also seized.    This assumes importance in order to determine the amount to be payable to the complainant.    At the cost of repetition, we may state that in the complaint categorically alleged that the tractor as well as trailer were lost vide Ex. A9.   In case remand diary Ex. A12 it was mentioned that “LW-18 recovered tractor bearing No. AP-T-7455 while trailer bearing No. AP-15-T-7455, Engine No. HM 4397, chassis No. HM 4397, 1996 model, all worth Rs. 2 lakhs  case property in this crime from the possession of accused under a seizure and panchanama from 1800 to 1830 hours.”  It was further mentioned “Late as per his confession LW-18 along with panchs and accused proceeded to Kothapalli village and recovered the Mahindra & Mahindra Ltd. tractor engine bearing No. AP-15-X-0778 engine no.  BLM 6052 chassis No. BLM 6052, 2005 model worth Rs. 62,500/- under a separate seizure panchanama.”   

12)               Though the complainant pleaded ignorance  about the recovery of the trailer by the police,  when he issued registered notice under Ex. A15, the insurance company gave reply under  Ex. A17  stating,  that “we have understood  from our investigator  that your vehicle  tractor registration No. AP 15 X 0078/0779 has been recovered.   Therefore the claim shall be treated as non-payable.”     On that he issued a notice under Ex. A18 stating “if your investigator found the motor vehicle covered under the policy please appoint a loss assessor to assess the present position, loss of its parts and present value of the motor vehicle tractor registration No. AP-15-X-0778/0779 be made prior intimation to us for that we will be available at the place of inspection made by the loss assessor.”  This was not done.  On that  he filed the complaint for recovery of the entire amount of Rs. 3, 32,882/- on the ground that the vehicle became useless and he was  entitled to the said amount.

13)               The police record would undoubtedly show that that for the loss of tractor-trailer on 27.10.2005 they could recover it on 30.5.2006.  As we have earlier pointed out in the remand case diary  it was mentioned that both the tractor and trailer were recovered, equally in the judgement Ex. A21.  The learned Magistrate marked MO1 as tractor-trailer.  In order to prove that the tractor was only produced and not trailer the complainant filed Ex. A23 list of property sent to Magistrate wherein the tractor number was mentioned.  However, we may state that though there was a mention about trailer it was scored off.   The endorsement on it by the court was that as it was not having sufficient space to keep the property directed to produce at the time of trial.   Accordingly it was taken back  on 6.2.2007.  The very complainant filed Cr.MP No. 3089/2007 for return of the tractor alleging that if the tractor and trailer were kept idle it will be damaged and the petitioner would suffer irreparable loss.    Accordingly the property was returned to him on 27.12.2007.  The complaint was filed long prior to these proceedings viz., on 25.9.2006 itself.    The complainant could have informed the insurance company that the vehicle was taken possession by the police and it was in their custody.   He asked for appointment of surveyor to assess the damage if any.    When the complainant could know that the property was handed over to the court  he could have filed an application for interim custody and mitigate the damage whatever caused to him.  In the application filed for return of the vehicle he did not allege that the vehicle was damaged. 

          The Supreme Court in   Sunderbhai Ambalal Vs. State of Gujarat reported  in (2002) 10 SCC 283 observed in para 7 as under:-

 “7. In our view, the powers under Section 451 Cr PC should be exercised expeditiously and judiciously. It would serve various purposes, namely:

1. owner of the article would not suffer because of its remaining unused or by its misappropriation;

2. court or the police would not be required to keep the article in safe custody;

3. if the proper panchnama before handing over possession

of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.”

6. To safeguard the interests of the prosecution, it was directed that following measures should be adopted giving instances contained in para 12 reproduced herein below:

“12 For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:

(1) preparing detailed proper panchnama of such articles;

(2) taking photographs of such articles and a bond that such

articles would be produced if required at the time of trial; and

(3) after taking proper security.”

7. While dealing with the seized vehicles from time to time by the police either in commission of various offences or abandoned vehicles or vehicles which are recovered during investigation of complaint of thefts, the court observed as under:-

“17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.”

14)              The Dist. Forum however  directed the insurance company to settle the claim against which the insurance company did not prefer any appeal.   Therefore it is incumbent  on the part of the insurance company  to appoint a surveyor  to assess its  value.  It could even give whatever rebate  in view of the fact that the tractor  became old.    However, it should assess  the value as on the date  when the tractor was  retrieved  by the police.    The Dist. Forum has rightly  directed the insurance company to settle the claim.    The complainant should necessary confine his claim  since he did not inform  about the non-recovery of the trailer in the criminal proceedings.   In the circumstances, we do not see any irregularity in the order passed by the Dist. Forum. 

15)               In the result the appeal is dismissed  confirming the direction to  the insurance company to settle the claim  within 30 days from the date of receipt of this order.  In the circumstances  the parties are directed to bear their own costs.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER

    Dt. 23. 09. 2010.

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