On the complaint lodged by one Khaled Ahmed Barlaskar ( here-in-after called the complainant ) the present case has arisen. The facts of the case as reveals from the complaint go to show that the complainant is the registered owner of Mahindra Bolero bearing Registration No.- AS-11H/3685. The vehicle was insured with the New India Assurance Company Ltd. ( here-in-after called the Opposite Party, in short the O.P. ) vide Insurance Policy No.-53060031160100004942 for the period from 21/10/2016 to 20/10/2017. That on 05/12/2016 the complainant on good faith handed over the vehicle to his driver Sebul Uddin Barbhuiya @ Hussain Uddin Barbhuiya to drive the vehicle but the driver became missing alongwith the vehicle. Thereafter the complainant lodged an FIR at Silchar Police Station and accordingly a case was registered vide Silchar P.S. case No.- 3108/2016 under section 381 IPC. The matter of theft was also intimated to the Insurance Company who appointed their Investigator for enquiry and report. The complainant submitted all necessary papers as per requirement of the Investigator. After due enquiry the Investigator confirmed the fact that the theft of vehicle is genuine and assured the complainant that he will get his legitimate claim. On the other hand, during investigation the Investigating Police Officer arrested the accused driver who confessed his guilt regarding theft of the vehicle but the Police could not recover the stolen vehicle. That though the complainant is legally entitled to get his legitimate claim but the O.P. repudiated his claim for compensation. Feeling aggrieved with the repudiation of his claim this complaint was filed. It has been claimed by the complainant that by depriving him of getting his legitimate claim the O.P. Insurance Company has caused disservice to him and also for that he has suffered huge loss, harassment, mental pain and agony etc. The complainant has , therefore, prayed for passing award of Rs.4,10,641/- being principal assured amount, an amount of Rs. 2,00,000/- towards compensation for disservice, harassment, mental pain and agony etc. alongwith the interest and cost of litigation.
The O.P. filed written statement alleging, interalia, that there is no cause of action, that the complaint is not maintainble, it is barred by limitation and bad for defect of parties etc. It has been stated by the O.P. that after due investigation by the I.O. on the FIR he came to the conclusion that the vehicle was stolen by the temporarily engaged driver of the insured viz., Sebul Uddin Barbhuiya @ Hussain Uddin Barbhuiya who took the vehicle to Manipur in league with other anti social and illegally sold the vehicle there for which the concerned driver was sent to stand the trial U/S 381 IPC. It has been alleged that the complicity of the employer in the commission of the crime can not be ruled out. According to the O.P. in the present case the possession of the vehicle/property was given to the servant i.e., the driver by the complainant himself and as such by no stretch of imagination it can be equated with theft where the basic ingredients is that the possession of the movable property is moved out of the possession of the person having the possession. According to the answering O.P. , as the insured has failed to comply with the terms of the policy so the O.P. took bonafide decision to repudiate the claim and as such there was no disservice or negligence on the part of the answering objector in meeting out proper service to the complainant. Under the circumstances, the complaint is liable to be rejected.
In support of his case the complainant has submitted his evidence on affidavit as PW-1 and has exhibited some documents. On the other hand, from the side of O.P. Insurance Company the evidence of D.W.-1 Sri Bibhuti Bhusan Chanda is also furnished by way of affidavit alongwith some exhibits. Both parties have also submitted written argument. Perused the entire evidence on record.
PW-1 , the complainant in his evidence has reiterated the same facts as stated in the complaint petition. The version of PW-1 is that he is the registered owner of a Mahendra Bolero bearing Regn. No. AS-11H/3685 which was insured with the O.P. Insurance Company vide policy No.-53060031160100004942 valid uuto 20/10/2017 w.e.f. 21/10/2016 and the assured amount of the vehicle was Rs. 4,25,581/- . Further version of PW-1 is that on 05/12/2016 on good faith he handed over the concerned vehicle to his newly appointed driver Sebul Uddin Barbhuiya @ Hussain Uddin Barbhuiya to drive his vehicle but after receipt of the vehicle the driver became missing. Though he tried his best to contact and locate the driver and the vehicle but failed. Thereafter, as stated by PW-1, he lodged FIR at Silchar Police Station and accordingly a case was registered vide Silchar P.S. Case No.-3108/2016 U/S 381 IPC. The evidence of PW-1 also transpires the fact that he intimated the matter of theft of the vehicle to the O.P. Insurance Company and also submitted his claim. The Insurance Company appointed their Investigator namely Sri Alok Kumar Bhattacharjee who during investigation collected documents, recorded statements and confirmed the fact of stolen of vehicle. On the other hand, as reveals from the evidence of PW-1, during investigation the Police arrested the accused driver Sebul Uddin Barbhuiya who confessed his guilt regarding stolen of the vehicle but the vehicle in question could not be recovered by the Police. And after closing of the investigation, subsequently, Police submitted chargesheet against the driver (accused) U/S 381 IPC. The evidence of PW-1 further goes to show that the claim of the complainant was repudiated by the O.P. Insurance Company. According to PW-1, he is legally entitled to get the compensation and by rejecting his bonafide claim the O.P. has constituted disservice towards him. PW-1 has submitted several documents vide Ext.-1 to Ext.-16.
On the other hand DW-1 in his evidence has not disputed the policy of the vehicle of the complainant and its coverage. But according to DW-1, the complicity of the employer in the commission of the crime of theft of the vehicle in question has been established as the owner has failed to mention the involvement of the driver in the commission of the crime. Further version of DW-1 is that as the possession of the vehicle was given to the driver by the complainant himself so by no stretch of imagination it can be equated with theft where the basic ingredients is that the possession of movable property is moved out of the possession of the person having the possession. As such, according to DW-1, as the complainant failed to comply with the terms of the policy so the answering objector had to repudiate the claim . It is stated that there was no disservice or negligence on the part of the answering O.P. in meeting out proper service to the complainant and as such the complaint is liable to be dismissed. The DW-1 has submitted copy of policy certificate, copy of Repudiation letter and copy of FIR and other police papers vide Ext.-A to Ext.- F .
So, from the materials available on record it transpires that the claim of the complainant was repudiated by the O.P. only on the ground that since the driver has stolen the vehicle so it is criminal breach of trust and by no stretch of imagination it can be equated with theft. In their evidence as well as in their written argument the O.P. side has taken the view that the complicity of the employer in the commission of the crime has been established. It reveals that the Complainant after the alleged incident of theft of the vehicle lodged an FIR with the Police and accordingly after due investigation of the case chargesheet U/S 381 IPC was submitted against the driver. But there is nothing to show that during investigation by the police any involvement or complicity of the employer in the commission of the crime was unearthed. Also no facts revealed during investigation contrary to the facts alleged by the complainant.
Theft has been defined in section 378 of the IPC. Illustration (d) reads as follows :- ‘A being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly runs away with the plate, without Z’s consent. A has committed theft.’ As such even if it is assumed that the driver dishonestly took away the alleged vehicle even then the case would fall within the ambit of definition of section 378 IPC. In case of Section 381 IPC it is theft by employee or servant and as such it is also a theft. Theft remains theft whether it is committed by any unknown person or known person like its driver. In any case it can be construed as malicious act and the policy also covers such peril. There is also no denial that theft had taken place during the validity of the Insurance policy.
In view of the above discussion of the materials on record we are of the considered opinion that the complainant is entitled to get relief in this case and by depriving him of his claim the O.P. caused disservice to the complainant. The complaint also suffers from no defect. Accordingly, it is ordered that the O.P. Insurance Company shall pay an amount of Rs.4,10,641/- ( Rupees four lakh ten thousand six hundred forty one ) only towards claim of compensation for vehicle, an amount of Rs.5,000/- ( Rupees five thousand ) for mental pain, agony and harassment. The O.P. shall further pay an amount of Rs.10,000/- ( Rupees ten thousand ) to the complainant towards litigation cost. The entire amount shall be payable within a period of 90(ninety) days from today else interest @8% per annum would accrue on the amount from today till payment.
However, if it reveals that the vehicle was purchased by the complainant availing loan from any Finance Company and any amount is due to pay then after payment of entire due of the Finance Company from the amount of compensation the remaining amount shall go to the complainant. Again it is ordered that the complainant shall submit entire papers pertaining to the ownership of the vehicle in question/ letter of subrogation to the O.P. Insurance Company so that in future if the vehicle is recovered then in that case the ownership would be that of the Insurance Company.
With the above relief and direction the case stands allowed on contest. We deliver the judgment and order on this 5th day of April’ 2022 under our seal and signature.
