OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.85/2010
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
Smti Satyabati Kalita - Complainant
W/0-Late Harendra Nath Kalita
R/O Vill- Dwarka Nagar, Nabadaya Path,
Dispur-Guwahati-6
-vs-
1) The Manager, Claim, Reliance Company Ltd. - Opp .party
Anil Plaza (Beside IDBI) 5th Floor, ABC, G.S.Road,
Guwahati-5.Assam.
2) The Manager, Claim, Registered Office,
Reliance General Insurance Co.Ltd.,19 Reliance Centre,
Walchand Hirachand marg, Ballard Estate,
Mumbai-400001
Appearance-
Learned advocates for the complainant- Mr.Dilip Baruah & Mr.Depan Kr.Borah.
Learned advocates for the opp.party- Mirza Rafiqual Islam
Date of argument- 14.3.2017
Date of judgment- 11.4.2017
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Smti Satyabati Kalita , against the Manager, Claims, Reliance Company Limited , Guwahati and others was admitted on 25.8.2010 and notice was served upon them and they filed their written statement on 30.3.2011; and thenafter the complainant filed her evidence on affidavit and she was cross-examined by the ld counsel of the opp.parties. The opp.parties had at first, filed affidavit of Sri Samrat Baruah, but his evidence was expunged vide this forum’s order dated 13.11.15 allowing the opp.parties to file fresh evidence and ; then they filed evidence of Sri Sabir Ahmed Choudhury on affidavit on 7.1.2016, and he was cross-examined by the ld counsel of the complainant. Thereafter both sides’ ld counsels filed their respective written argument; and finally on 14.3.17, we heard oral argument of ld advocate Mr.Dilip Baruah for the complainant and of Ld advocate Mr.M.R.Islam for the opp.parties ;and today, we deliver our judgment which is as below.
2) The complainant’s case in brief is that she had got her (Bolero SLX) vehicle, bearing registration No. AS-01-AE-0695, Chassis No. MA1PS2GAK72F30736 ,Engine No. GA74F24627, insured with Opp.Party No.1, Reliance General Insurance Company Limited, for value of Rs.5,49,330/- and used the same for her personal transportation engaging one Md.Gagul Ali S/O Shorab Ali, Vill-Dumuni Chowki Chak, P.O. Marua Chaki, P.S.Sipajhar, Dist.Darang on January, 2008. The said driver had, on 29.1.2008 at about 7-30 a.m., taken her vehicle from her residence informing her that the vehicle was required to bring her ailing father to Guwahati Medical College Hospital for admission and on that day she went to Bijni for her personal work, but the driver did not return to her home with the vehicle, and then she tried to get information whereabout he was and her vehicle , but came to know that the driver had neither visited his house at Dumini Chawki, nor his father was ailing, and failing to trace the driver and her vehicle she lodged FIR at Dispur P.S. on 2.2.2008 against her driver, but the police also failed to trace the driver and the vehicle and the police finally sent final report to the court. She also informed the opp.party about theft of her vehicle. After failing to trace her vehicle, she filed claim before the opp.party and the latter rejected her claim stating that the claim of theft made by her cannot be treated as claim owing to the fact that the claim falls outside the scope of the policy due to breach of trust of the driver who had been entrusted the job. The ground of rejection of her claim is illegal . It is not a case of breach of trust .The opp.party by inserting a wrong section 381 of I.P.C. cannot say it is a case of breach trust as Section 381 IPC does not stand for breach of trust. The driver is deemed absconding and her vehicle was stolen /lifted and hence her claim before the opp.party is justified. The opp.parties did reply the legal notice sent by her. She prays for directing the opp.parties to pay her Rs.5,49,330/-, the insured value of her vehicle with interest at the rate of 18% p.a. alongwith compensation for pain and suffering meted to her and the cost of the proceeding.
2) The brief of the pleading of the opp.party is that the vehicle of the complainant, which was insured with them, was taken away by its driver from the residence of the complainant with the consent and therefore, it was not a case of theft and accordingly said loss is not covered by insurance policy and they are in no way liable to compensate the loss to the complainant .As per policy, they are liable to pay compensation in the case of theft, burglary, accident etc; but not in the case of criminal breach of trust and here the case is admittedly a case of criminal breach of trust, for which, they are not liable to compensate as per terms and conditions of the insurance policy, and therefore, they should be absolved from liability dismissing the case of the complainant.
3) We have perused the pleading as well as evidence of the parties. We have also perused the submission of both sides’ Ld counsels . It transpires to us that it is both sides’ admitted fact that the vehicle of the complainant which was a Bolero SLX vehicle bearing registration No. AS-01-AE-0695, Chassis No. MA1PS2GAK72F30736 ,Engine No. GA74F24627 insured with Opp.Party No.1, Reliance General Insurance Company Limited, in the year 2008 and it was a private transportation vehicle of the complainant and that on 29.1.2008 the said was taken away by the driver of the complainant, Md.Gagul Ali, S/O Shorab Ali, Vill-Dumuni Chowki Chak, P.O. Marua Chaki, P.S.Sipajhar, Dist.Darang and never returned to the residence of the complainant, and no trace of said driver and the said vehicle found till now, and that in the final report sent by the police of Dispur P.S. in connection with Dispur P.S. Case No. 117/08 (G.R.No. 1499/08 which was registered on the basis of FIR lodged by the present complainant , that the police reports that the vehicle as well as the driver of the said vehicle , Md Gagul Ali, are of trace . So, in such situation , it shall be presumed that some other miscreants had stolen away the vehicle killing the said driver . Therefore, the submission of the Ld counsel of the opp.party that the concerned driver, Md Gagul Ali had taken away the vehicle from the residence of the complainant with permission of the complainant and thereafter sold it to some other persons and thereby said driver committed breach trust is not sustainable. As both the driver and the vehicle are not discovered till today, we also presumed that some other persons had stolen away the said vehicle killing the said driver, therefore, it is hold to have been established that the vehicle of the complainant had been stolen away by some miscreants killing its the driver Md Gagul Ali. Secondly, in this case, the second presumption can be taken is that the driver of the said, himself committed theft in respect of the said vehicle, sold the said vehicle. In such contingency, as per decision of State Commission, Assam given in F.A. 21/2012 (Oriental Insurance Company Ltd.-vs- Sri Raj Kumar Bajoria) (dt.of judgment 16.6.2016). It is a clear case of theft defined u/s 379 I.P.C. It is also found that Hon’ble National Commission in Oriental Insurance Company and Another-vs-Rupit Kr.Gupta and others, (1(1994) CPJ 196 (NC) observes that while a driver, to whom a vehicle was entrusted, did not return with the vehicle, then it is a case of theft (U/S 379 I.P.C.), but not a case of criminal breach of trust. Basing on above decision of Hon’ble State Commission, Assam as well as Hon’ble National Commission, we may hold that the case in our hand is a case of theft , not a case of criminal breach of trust. So, we hold that , the case in our hand is a case of theft not breach of trust . It is also found that the opp.party side admits that they repudiated claim of the complainant on the ground of committing criminal breach trust by the driver of the said vehicle in respect of the said vehicle . Accordingly, we hold that the repudiation order is illegal and it amounts to deficiency of service towards the complainant . Therefore, we hold the opp.parties are liable to pay the I.D.V. of the said vehicle to the complainant and they are also liable to pay interest on it atleast at the rate of 6% per annum from the date of filing of the complaint; and secondly, they are also liable to pay atleast Rs.10,000/- as compensation for putting the complainant in mental agony by illegally repudiating his claim and are also liable to pay Rs.10,000/- as cost of the proceeding as the complainant has already spent a hand-some amount in prosecuting the opp.parties.
4) Basing on our findings as above, the complaint against the opp.parties (the offices of Reliance General Insurance Company Limited and as arrayed) is allowed on contest and they are directed to pay Rs. 5,49,330/-(Rupees five lakhs forty nine thousand three hundred thirty)only , the IDV of the stolen vehicle with interest at the rate of 6% p.a. from 25.8.2010 to the complainant for theft of her vehicle (Bolero SLX vehicle bearing registration No. AS-01-AE-0695, Chassis No. MA1PS2GAK72F30736 ,Engine No. GA74F24627) with condition that if the vehicle is detected and traced in future , the complainant is to refund the said amount to the opp.party company. They are also directed to pay her Rs.10,000/- as compensation for putting the complainant in mental agony as well as Rs.10,000/- as cost of proceeding. They are directed to satisfy the award within 45 days, in default, other two amounts shall also carry interest in the same rate.
Given under our hands and seals in this day of the 11th April, 2017.
(Smti Archana Deka Lahka)r (Md.S.Hussain)
Member President
