IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 29^th day of October, 2012.

Present : Sri. Jacob Stephen (President)

Sri. N. Premkumar (Member)

Smt. K.P. Padmasree (Member)

C.C.No. 72/2012 (Filed on 23.03.2012)

Between:

Saji. P.T,

Pannikuzhiyil House,

Oonnukal.P.O.,

Manjanikkara Church (Via),

Kozhecherry Thaluk,

Pathanamthitta.

Rep. by Chacko Daniel,

  -do.  –do.

(By Adv. T.E. Eapen)                                ….    Complainant.

And:

1. The Oriental Insurance Co. Ltd.,

    Rep. by its Divisional Manager,

    Divisional Office, IV Plakkatt Buildings,

    Market Jn., Thripunithura.P.O.,

    Ernakulam Dist – 682 301.

2. Regional Manager,

    Oriental Insurance Co. Ltd.,

    Regional Metro Palace,

    North Railway Station Road,

    Cochin – 682 018.

3.  Branch Manager,

     Oriental Insurance Co. Ltd.,

     Branch Office II,

     Jewel Arcade Layam,

     Kochi – 682 001.

(By Adv. P.D. Varghese)                           ….    Opposite parties.

O R D E R

Sri. N. Premkumar (Member):

        Complainant filed this complaint against the opposite parties for getting a relief from the Forum. 

        2. Fact of the case in brief is as follows:  Complainant is the owner of a 2009 Tata Sumo Victa LX, MUV.  The said vehicle has insured with opposite parties.  On 30.05.2011 the said vehicle has stolen and lost and a crime has been registered by Pathanamthitta police u/s 406 of IPC.  Subsequently complainant filed a private complaint before Chief Judicial Magistrate Court, Pathanamthitta and SHO Pathanamthitta has been incorporated Sec.379 and 381 IPC and it is now under investigation.  Though complainant has informed the matter to opposite parties in time with required formalities, they evading the payment on flimsy ground.

        3. Complainant has hypothecated the above vehicle with TATA Motors Finance Ltd.  The hypothecation C.C. amount of ` 81,049 payable to the above company is due because of opposite parties’ total negligence and violation of policy condition.  Complainant defaulted the hypothecation instalments only after the date of theft.  Though he uses the vehicle as taxi and paying higher tax after the theft he lost the income and increased the expenses.  Therefore opposite parties are liable to compensate the complainant and also liable to pay interest at the rate of 24% per annum due to the non-payment of insurance amount.

                4. Though complainant sent a lawyer’s notice to opposite parties, opposite party paid nothing but send a reply notice raising untenable contentions.  This caused loss, injury and hardship, physical and mental agony.  Hence the complaint for getting the insured amount with interest, compensation and cost.

                5. Opposite parties entered appearance and filed version stating that complaint is not maintainable either in law or on facts.  Opposite parties admitted the issuance of comprehensive insurance policy to complainant’s vehicle.  They denied the statement that complainant’s vehicle was stolen and lost on 30.05.2011 at 11.30 p.m at his residence.  According to them, complain ant was employed abroad.  The vehicle, which was used as contact carriage, was entrusted with his father Thankachan, one Krishnalal, Pushpamangalathu House was employed as driver of the vehicle.  On 30.05.2011 at 11.15 p.m Krishnalal had taken the vehicle for taking his mother to hospital.  Thankachan has given the key to the said Krishnalal voluntarily and thus Krishnalal had taken the vehicle.  Thus Thankachan has willingly entrusted the vehicle to the said driver.  The complainant had admitted these facts in the claim form submitted before the opposite parties.  There is no question of theft as the vehicle was not taken out of the possession of Thankachan without his consent.

                6. According to them, the definition of theft under section 378 IPC is as follows: “whosoever intending to take dishonestly any movable property out of the possession of any person without that persons consent moves that property in order to such taking is said to commit theft”.  On 01.06.2011 at 1.30 p.m, the said Thankachan had filed a case before the Pathanamthitta Police stating these facts and Crime No.389/11 for offence u/s 406 IPC was registered against Krishnalal as accused.  No case of theft was registered by the police as the act of the accused does not constitute theft.  It is only thereafter, that on account of the personal complaint filed, that the matter has been forwarded for further investigation under additional charges.  This has been done only for the purpose of obtaining insurance amounts.  The claim of the complainant does not come under the scope of PCCV package insurance policy.

                7. The statement that the complainant is liable to make payment of hypothecation C.C amount to the finance company because of the actions of the opposite parties are not correct and hence denied.  Moreover before the settlement of claims in theft cases, the insured shall surrender the registration book and the tax book duly transferred in the name of the insurer.  The basis is that in the event of recovery of the insured vehicle, the insurers are in a position to take custody of the recovered vehicle legally.  The RTO is to be informed about the theft of the vehicle and the entry should be made in the tax book so that future taxes will not accrue under the above circumstances, opposite parties have not violated any policy conditions and therefore they canvassed for the dismissal of the complaint with their costs. 

                8. From the above pleadings, the following points are raised for consideration:

(1)           Whether the complaint is maintainable before the Forum?

(2)           Whether the reliefs sought for in the complaint are allowable?

(3)           Reliefs & Costs?

        9. Evidence of the complaint consists of the chief affidavit and the documents filed by both parties and marked Exts.A1 to A14 and Ext.B1.  After the closure of evidence, both parties were heard.

        10. Point Nos. 1 to 3:- In order to prove the complainant’s case, complainant’s power of attorney holder filed proof affidavit along with certain documents.  Documents produced were marked as Exts.A1 to A14.  Ext.A1 is the power of attorney executed by the complainant.  Ext.A2 is the copy of registration certificate of the vehicle.  Ext.A3 is the insurance policy of the vehicle.  Ext.A4 is the certified copy of FIR in Crime No.389/2011 of Pathanamthitta police station.  Ext.A5 is the certified copy of report filed by the investigating officer in Crime No.389/2011 of Pathanamthitta Police Station before CJM, Pathanamthitta on 04.09.2012.  Ext.A6 is the lawyer’s demand notice dated 09.01.2012 of Tata Motors Finance Ltd. to complainant.  Ext.A7 is the reply notice of Ext.A6.  Ext.A8 is the postal receipt of Ext.A7.  Ext.A9 is the postal receipt of 2^nd opposite party.  Ext.A10 is the postal receipt of 3^rd opposite party.  Ext.A11 is the postal A/d card accepted by 1^st opposite party dated 23.01.2012.  Ext.A12 is the postal A/d signed by 2^nd opposite party dated 23.01.2012.  Ext.A13 is the lawyer’s notice of the opposite parties dated 31.01.2012.  Ext.A14 is the notice received by the complainant from Tata motors Finance Ltd.

        11. In order to prove the opposite parties contention, opposite parties filed proof affidavit along with one document.  Document produced was marked as Ext.B1.  Ext.B1 is the policy with conditions.

        12. On the basis of the contention and arguments of the parties, we have perused the entire material on record.  Complainant’s case is that his insured vehicle has stolen and lost and claim for insured amount was repudiated by opposite parties.  Hence this complaint. 

        13. Opposite parties’ contention is that theft does not occur in complainant’s vehicle.  According to them, complainant’s father Thankachan has willingly entrusted the vehicle to the accused and police registered a crime for under section 406 IPC.  No case of theft was registered by the police as the act of the accused does not constitute theft under sec.378 IPC.  Therefore, they rightly repudiated the claim of the complainant. 

        14. It is seen that there is no dispute regarding the validity of policy.  The only dispute is that the act of the accused does not constitute theft as per Ext.B1 policy.  On a perusal of Ext.A5, it is learned that complainant filed private complaint before the CJM, Pathanamthitta and police filed a report incorporating Sec.381 IPC and deleting Sec.406 IPC.  According to opposite parties, this incorporation of Sec.381 IPC based on private complaint and is only for the purpose of obtaining insurance amounts. 

        15. As per Ext.B1, “the company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon i.e. as follows:

        (ii) by burglary house breaking or theft

                16. In Ext.B1, there is no definition has been given to the crime-theft by the company.  Opposite parties raised the definition of theft under section 378 IPC is stated as “whosoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent moves that property in order to such taking is said to commit theft”.

                17. In this case, the accused Krishnalal has taken the vehicle from the possession of complainant’s father with his consent.  Evidence on record shows his dishonest intention to take the vehicle from the custody of complainant’s father.  In Ext.A4 First Information Statement it is recorded that complainant’s father acquainted with the accused Krishnalal only a short period i.e. from 27.05.2011 to 30.05.2011.  Theft occurred on 30.05.2011 and complainant’s father opinioned the occurrence of theft.  All the said fact is seen in Ext.A4 which is as follows:- “hml\w HmSn-¨n-cp¶ A¨³Ipªv KÄ^n t]mb-Xn-\m 27.05.2011 apX IrjvW-em BWv HmSn-¡p-¶-Xv.  t]mb-Xn-\p-tijw CXp-hsc hml\w XncnsI h¶n-«n-à ……….. h­n aS§n hcm-¯-Xn-\m ]e Øe¯pw At\z-jn-¨p.  IrjvW-em A½sb Bip-]-{Xn-bn sIm­p-t]m-Im³ F¶v IÅw ]dªv h­n-bpsS Xmt¡m hm§n tamjWw sNbvXv sIm­p-t]m-b-XmWv F¶mWv a\-Ên-em-¡p-¶Xv”.

                18. In modern times modes operandi of criminals are high tech and beyond imagination.  Crime differs in societies as fingerprints differs from every human being. Therefore, crimes does not come within the purview of its definition in appearance.  Penal section can be applied only through investigation and reached a conclusion based on the culprits intention, motive, mensrea etc.  In this case, further investigation revealed that the act of accused is not 406 IPC but Sec.381 IPC.  Therefore the incorporation of Sec.381 IPC as per Ext.A5 cannot be ignored.

                19. From the overall facts and circumstances and the available evidence on record, we are of the view that the repudiation of complainant’s claim is unjust, illegal and irrational as the complainant is dispossessed the vehicle.  It is a deficiency of service.  Therefore, complaint is maintainable and allowable in part with interest.  Though the complainant claimed exorbitant amount, as interest and compensation, same has not proved with cogent evidence and therefore it is not allowable.

                20. In the result, complaint is allowed in part, thereby opposite parties are directed to pay the Insured’s Declared Value (IDV) of ` 5,10,000 (Rupees Five lakhs ten thousand only) less statutory deductions, if any, along with cost of ` 2,500 (Rupees Two Thousand Five hundred only) within 20 days from the date of receipt of this order with 8% interest from the date of filing of this complaint till this date, failing which the whole amount will follow 10% interest from this date till the realization of the whole amount.  Since interest is allowed, no orders for separate compensation.

                Declared in the Open Forum on this the 29^th day of October, 2012.

                                                                                        (Sd/-)

                                                                                N. Premkumar,

                                                                                    (Member)

Sri. Jacob Stephen (President)                  :       (Sd/-)

Smt. K.P. Padmasree (Member)        :       (Sd/-)

Appendix:

Witness examined on the side of the complainant:   Nil

Exhibits marked on the side of the complainant:

A1    :  Power of attorney executed by the complainant in favour of   

           Chacko Daniel dated 05.08.2011. 

A2    :  Photocopy of registration certificate of the vehicle. 

A3    :  Insurance certificate of the vehicle. 

A4    :  Certified copy of FIR in Crime No.389/2011 of Pathanamthitta  

           police station. 

A5    :  Certified copy of report filed by the investigating officer in   

           Crime No.389/2011 of Pathanamthitta Police Station before  

           CJM Court, Pathanamthitta on 04.09.2012. 

A6    :  Lawyer’s notice dated 09.01.2012 issued by Tata  

           Motors Finance Ltd. to the complainant. 

A7    :  Reply of Ext.A6 lawyer’s notice. 

A8, A9 & A10   :  Postal receipts of Ext.A7. 

A11 & A12       :  Postal acknowledgment cards of Ext. A7.

A13 :  Lawyer’s notice of the opposite parties dated 31.01.2012.  A14    :  Notice dated 08.03.2012 received by the complainant from Tata motors Finance Ltd.

Witness examined on the side of the opposite parties:  Nil

Exhibits marked on the side of the opposite parties:

B1    :  Policy with conditions.

                                                                                        (By Order)

                                                                                            (Sd/-)

                                                                         Senior Superintendent

Copy to:- (1) Chacko Daniel, Pannikuzhiyil House, Oonnukal.P.O.,

                     Manjanikkara Church (Via), Kozhecherry Thaluk,

                     Pathanamthitta.

       (2) The Divisional Manager, Oriental Insurance Co. Ltd.,

                     Divisional Office, IV Plakkatt Buildings, Market Jn., 

                     Thripunithura.P.O., Ernakulam Dist – 682 301.

               (3)  Regional Manager, Oriental Insurance Co. Ltd.,

                      Regional Metro Palace,  North Railway Station Road,

                      Cochin – 682 018.

               (4)  Branch Manager, Oriental Insurance Co. Ltd.,

                      Branch Office II, Jewel Arcade Layam, Kochi – 682 001.

                (5)  The Stock File.