FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member
Case of the Complainant, in brief, is that the Complainant purchased one car SWIFT D’ZIRE VDI BS IV bearing registration No.WB-06M-9646 taking loan from OP No.2 and insured the same with OP1on 15/06/20160vide Policy No. 3001/MI – 03780948/00/000.
The Complainant has stated that being unable to maintain the said car the Complainant decided to sell off the car after obtaining permission from the Management of ICICI Bank and one Gourab Nag Roy a well known person of the Complainant was agreeable to purchase the same and after having discussion with said Gourab Nag Roy the Complainant took his car at the Kamalgazi More for conducting a test drive by said Gourab Nag Roy on 8.12.2016 but on pretext of test drive said Gourab Nag Roy along with his 2/3 associates drove away the car and did not return and assuming the car had been stolen. The lodged complaint with Sonarpur P.S. vide GDE NO.806 dated 8.12.2016 as well as to the SDPO, Baruipur and a case being No.811 dated 05.05.2017 under section 379/120B of IPC was initiated against said Gourab Nag Roy &Ors as per order of Ld. ACJM Baruipur in respect of complaint filed by the Complainant for investigation u/s 156(3) Cr. P.C. and charge sheet being NO.1019/2017 dated 05.06.2017 was filed by the Sonarpur P.S.The Complainant has further stated that he intimated the OP No.1 on 8.5.2017 regarding theft of the said car claiming disbursement of Insurance amount which was registered as claim being No. MOT- 06663147 and thereafter sent a letter dt.30.8.2017 for disbursing claim of Rs.6,97,467/- and again on 11.10.2017 sent Demand Notice but in spite of receiving said notices the OP No.1 did not pay any heed to that notice . The complainant sent a letter on 18.11.2017 to the OP2 intimating them the incident of said car theft. In spite of lodging complaint vide claim No. MOT-06663147by the complainant the OP1 did not take any initiative to sanction the insurance claim in respect pf stolen car and therefore,the Complainant by filing the instant Consumer Complaint prays for direction upon OP No.1 to sanction and disburse an amount of Rs.6,97,467/- in favour of the Complainant, to pay Rs.1,00,000/- towards compensation and Rs.15,000/- towards cost of litigation and other reliefs.
The OP No.1 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that a policy of insurance was issued in respect of the vehicle of the complainant bearing Registration No. WB 67 A 2217 (Maruti Swift D’zire) and the said policy was valid from 15.06.2016 to 14.06.2017.As per the terms and conditions of the said policy of insurance, the complainant was under solemn obligation to lodge FIR immediately and gave intimation to the OP1 about such alleged occurrence of theft of the said vehicle and thereby to lodge a claim immediately after the happening of the alleged incident itself. But in the present case the first intimation to the police was given after about one month and FIR too was lodged by filing application U/S 156(3) before Ld. ACJM after 148 days of alleged incident. Moreover OP1 also was informed after 178 days of alleged occurrence of incident. Such delay is aspecific violation of terms and conditions of the policy of insurance and therefore considering the guideline framed by the Hon’ble Apex Court of India, the OP1 is not at all liable to pay any claim to the complainant. As such the claim lodged by the complainant has bonafidely repudiated by the OP1 issuing repudiation letter dated 17.10.201. It is further stated by the OP1 that the complainant has intentionally manipulated the story for the reason that the said two vehicles were being used commercially on regular basis which the complainant admitted by giving statement to the investigator appointed by the OP1. The OP No.1 further stated that the Insurance Company has no deficiency in service and accordingly prays for dismissal of the case.
The OP2 by filing written version contested the case stating inter alia that no relief has been sought against OP No.2. The OP2 has stated that on being approached by the complainant, OP2 sanctioned loan of Rs.6,38,415/- for purchasing a car being SWIFT D’ZIRE(having registration no.WB06M9646) and the said loan was repayable in 60 equated monthly installments of Rs.13,564/- each and rate of interest and other applicable charges payable as per the agreed terms of the agreement. The said loan was disbursed through loan account being no. LALCAL00034463117. But the Complainant failed to pay EMI regularly and an amount of Rs.5,15,123/- is due as on 02/02/2018 . It is further stated by the OP No.2 that they have no knowledge regarding the theft of the said car as alleged by the complainant and it is also denied by the OP2 that they have received any letter dated 18.11.2017 from the complainant . There is no deficiency on the part of the OP2 and no consumer dispute exists between the complainant and OP2 and accordingly prays for passing necessary order.
In support of their contention all the parties have tendered evidence supported by an affidavit and also relied upon documents annexed with their petitions. We have heard argument on merit and have also perused the record.
Admittedly, the Complainant purchased a SWIFT D’ZIREVDI BS-IV car byobtaining loan from the OP2 ICICI Bank Limited and the said loan was repayable in 60 equated monthly installments of Rs.13,564/- each.The Complainant has stated that he intended to sell the car after obtaining permission from OP2 Bank and said car was stolen from Kamalgazi More by one Gourab Nag Roy on 8.12.2016,who is very well known to him, on pretext of test driving and a complaint was lodged by the Complainant in respect of theft of car with Sonarpur P.S. on 8.12.2016. In support of such averment the complainant filed a photocopy of receipt issued by the Sonarpur P.S. bearing GDE No.806 of 2016, wherefrom it appears that a complaint was lodged with Sonarpur P.S. on 8.12.2016 but in absence of copy of said complaint, it is not possible to ascertain for what G.D. was made and, therefore, it is not taken into consideration. No documentary evidence is also filed to substantiate the claim of seeking permission from OP Bank for selling of the car.
The Complainant has claimed that his car was under insurance coverage at the time of occurrence of said incident. It appears from copy of insurance policy that the said car was under insurance coverage. The OP No.1 has stated that the Complainant had lodged claim of insurance on 08.5.2017 whereas the incident of theft was happened on 8.12.2016, which is violation of condition No.1 of insurance policy.
On perusal of condition No.1 of said Insurance Policy which runs as:
“Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process of copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution in quest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”.
It appears that the Complainant was to intimate the incident to the OP1 immediately after occurrence of the incident. On perusal of documents on record filed by the Complainant it is found that the Complainant filed a case before Ld. ACJM on 7.4.2017. It is therefore evident that the Complainant did not take any step immediately after occurrence of incident even he did not intimate the incident to the OP1 and admittedly he intimated the same to OP1 after151days from the date of occurrence of the incident.Therefore, in accordance with the terms and conditions of the Insurance Policy, Complainant was required to immediately inform the Insurance Company about the theft of the Insured vehicle which he failed to do.
Photocopy of Charge Sheet No.1019/2017 dt.05.06.2017 filed before Ld. ACJM Baruipur, it appears that number of accused person charge sheeted is one namely Gourab Nag Roy, S/o Sambhu Nag Roy and it further appears from the said charge sheet that the Complainant on request of said Gourab Nag Roy, brought his two cars one 1-20 ASTA CARDI made of Hyundai Motor India Ltd., Registration No.WB 20 AG-8575 and another Swift D’zire VDI BS-IV made of Maruti Suzuki India Ltd. Registration No.WB-06M-9646 at the Kamalgazi More wherefrom said two cars were drove away by said Gourab Nag Roy and his associates. The Complainant has further stated that by order of ACJM Baruipur a Police Case was lodged against said Gourab Nag Roy. Copy of FIR and charge sheet has been filed in support of this averment. Photocopy of the complaint lodged before the SDPO by the complainant and the photocopy of the complaint filed by the complainant before the Ld. ACJM Baruipur furnished by the OP1, both reveal that the said car along with another car were stationed in front of the house of the Complainant, wherefrom said Gourab Nag Roy and his associates drove away the cars but in the Complaint Petition filed by the complainant before this Ld. Commission the Complainant has stated that he brought his car to the Kamalgazi More for test driving. Disparity between the statements creates serious doubt regarding the occurance.
Ld. Advocate for the OP No.1 submitted that the Complainant is not entitled to get any relief since the policy is covering the cases of Burglary, house breaking or theft. But the instant case is not theft as the complainant admitted in his every statement and as well as in the complaint petition that the accused is previously known to him.Material documents filed by the both of the parties support this contention. In this regard Ld. Advocate for the OP1draws attention towards Illustration e to Section 378 IPC which means that as the vehicles were handed over the accused for taking test drive for selling such incident cannot be considered as a theft. Section 378 of IPC states that :
Whoever, intending to take dishonestly and moveable property out of the possession of any person’s consent , moves that property in order to take such taking is said to commit theft.
Illustration e to Section 378 IPCstates that:
Z going on a journey , entrusts his plate to A, the keeper of the warehouse , till z shall return. A carries the plate to a goldsmith and sell it. Hence , the plate was not in Z’s possession. It could not therefore be taken out of Z’s possession , and A has not committed theft, though he may have committed criminal breach of trust.
It is further stated by the OP1 that if the offence even considered to have been committed, it can at best be considered to be an offence U/s 405 IPC i.e. criminal breach of trust.
Illustration b to Section 405 states that :
A is a warehouse-keeper , Z going on a journey , entrusts his furniture to A , under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods . A has committed criminal breach of trust.
OP1 relied upon the decision of Hon’ble NCDRC in RP 3032 of 2009 and also another decision passed by Hon’ble SCDRC West Bengal in case number FA/9/24 where it is observed that offence of Breach of Trust is not covered under the terms and conditions of the policy insurance. In the case law filed by OP1 upon which the OP1 placed reliance, Hon’ble NCDRC held that :
In our opinion when trust was reposed on the transporter by the complainant allowing him to keep possession of the vehicle for a long period, the taking away of the vehicle by the said transporter does not amount to theft within the meaning of Section 378 of the Indian penal Code and it is covered by section 405 of the Indian penal Code defining criminal breach of trust.
It is also observed by the Hon’ble NCDRCthat :
In the circumstances policy itself only covering the cases of burglary , house breaking,and theft and the vehicle having been lost by reason of criminal breach of trust and not theft , the Insurer is not liable to make payment for such loss of the vehicle under the said policy.
It is therefore, evident from discussion made hereinabove that the Complainant has failed to prove his allegation and thus is not entitled to get any relief from OP1.
Ld. Advocate for the OP No.2 submitted that the complainant never sought permission from the OP no.2 for selling out the vehicle purchased by the complainant taking loan from ICICI bank.Moreover, the complainant does not make any prayer for any relief from the OP2.
In the result, the Consumer Complainant does not succeed.
Hence,
Ordered
That the case be and the same is dismissed on contest against the OPs but without any order as to cost.
