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Judgment
Dr. Inder Jit Singh,Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner(s) against Respondent(s) as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 12.3.2018 of the State Consumer Disputes Redressal Commission, Bihar, Patna (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 20 of 2015 in which order dated 22.12.2014 of District Consumer Disputes Redressal Commission, Bhagalpur (hereinafter referred to as District Commission) in Consumer Complaint (CC) no. 162/2007 was challenged, inter alia praying for setting aside the final judgment dated 12.3.2018 of the State Commission.
While the Revision Petitioners (hereinafter also referred to as OPs) were Appellants before the State Commission and OPs before the District Forum, the Respondent (hereinafter also referred to as Complainant) was Respondent before the State Commission and Complainant before the District Forum.
Notice was issued to the Respondent on 12.9.2018. Parties filed Written Arguments/Synopsis on 26.09.2023 (Petitioners) and 10.01.2024 (Respondent) respectively.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that: -
(i) On 13.5.2003, Truck No.BR-10 A 9635 belonging to complainant was insured for the period from 13.5.2003 to 12.5.2004 for Rs. 4 lakh. During the insurance period, on 12.04.2004 the Respondent entrusted his vehicle to his driver, which was laden with maize, the driver and truck did not return. After one month of the alleged disappearance of the vehicle, filed a complaint before the Ld. Magistrate on 08.05.2004 on the basis of which an FIR dated 09.05.2004 bearing No. 128/04 was registered at the Police Station , Navgachhiya. The Complainant informed the insurance company personally. Then, on 30.8.2007, CJM accepted the police final report and complainant visited OPs’ office on 20.04.2007 but no action was taken.
(ii) The Investigating Officer has found the theft of truck but the same could not be traced out. When legal notice was given to OP, the claim was repudiated on the ground of violation of terms and condition of the policy that information of incident was not given to OP, though such information was earlier given. Thus, this repudiation amounts to deficiency in service on the part of the OPs.
Vide Order dated 22.12.2014 in the CC no. 162 of 2007, the District Commission has allowed the complaint of the respondent/complainant and ordered as under :
“(i) Accordingly, we direct the OP to pay to the complainant insurance amount of Rs.4,00,000/- with interest @ 9% from the date of filing of this complaint case till final realization.
(ii) OPs are further directed to pay Rs.5,000/- for mental harassment and Rs.1500/- as litigation cost to the complainant.”
Aggrieved by the said Order dated 22.12.2014 of District Commission, Petitioner – Insurance Company appealed in State Commission and the State Commission vide order dated 12.3.2018 in FA No. 20 of 2015 has dismissed the appeal and confirmed the order of the District Forum. The relevant para of the order reads as under :
“3…….The said insured vehicle of complainant lost due to theft is not in question, as such the finding of the District Forum for missing of vehicle alongwith driver during valid period of policy and driver committed theft of truck without consent of owner which caused damage to complainant/owner of vehicle, though the FIR lodged under section 406 of IPC the insurance co. holding rejection of claim by insurance company not justified seems valid and reasonable. Therefore, the impugned order passed by District Forum after analyzing every aspect and issue in detail, cannot said to be faulted. The appellant Insurance Company is liable to compensate the loss under the policy. It appears from the record that in compliance of the District Forum order, the complainant supplied all relevant documents, which were received by the Insurance Company on 22.1.2013.”
Petitioner(s) have challenged the said Order dated 12.3.2018 of the State Commission mainly/inter alia on following grounds:
i. The State Commission failed to appreciate that the date of occurrence of the theft was 12.4.2004 but the complaint case before the Magistrate filed on 8.5.2004, i.e. after a delay of 26 days.There is no material on record showing that any intimation was given to the petitioners prior to the legal notice in the year 2007. Further, since no information regarding missing of Truck was given to the petitioner/ Insurance Company immediately, thus the policy condition was violated.
ii. The State Commission failed to appreciate that the case on the face of it was barred by law of limitation and in the absence of an application for condonation of delay, the delay could not be condoned suo moto.
iii. The vehicle of the petitioners was stolen on the night of 12.4.2004.The respondent did not lodge FIR/report immediately with the police and the same was lodged only on 9.5.2004, i.e. after 27 days of the alleged incident of the theft.
iv. The Courts below ought to have considered that in view of the judgment passed by the Hon’ble Supreme Court in the case titled as “Suraj Mal Vs. NIA reported as 2010 (10) SCC page 565” and “UIIC Vs. Harchand Rai reported as 2004 (8) SCC 644”, in which it has been held that the terms and conditions of the insurance policy should be strictly construed and no outside interpretation should be made to the same.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
8.1 The petitioners contend that they were informed about the disappearance of the vehicle only after a gap of more than three years i.e. on 22.09.2007 and that too through legal notice. It is an admitted fact that no intimation was given to the petitioner prior to the legal notice in the year 2007, either through toll-free number or through mail. Moreover, no letter dated 10.5.2004 was sent by the respondent to the petitioners intimating them about the loss as has been alleged by the respondent. The said letter is forged since it does not show from which Post Office and on which date the UPC was sent. In fact, even the said legal notice dated 22.9.2007 does not mention any intimation given by the respondent to the petitioners vide alleged letter dated 10.5.2004 about the disappearance of the vehicle.
8.2 While deciding the FA of the petitioners herein, State Commission dismissed the said Appeal without deciding, considering and dwelling upon the main ground that the petitioner/insurance company was informed about disappearance of the vehicle after a delay of more than three years, which was a valid ground for repudiation of the claim.
8.3 The complainant/Respondent on the other hand contended that he informed the Insurance Company personally, by post and through agent. The insurance company officials informed the complainant that appropriate action will be taken on the subject insurance claim. Then, on 30.8.2007, Ld. Court of CJM accepted the police Final Report. It is also submitted that the OP insurance company was informed by the complainant regarding the theft of the insured truck and the complaint in this regard lodged by the complainant with the police and the court. Thus, the repudiation of the insurance claim by the insurance company amounts to deficiency in service.
8.4 In the present revision petition, there are concurrent findings of both the Fora below and State Commission has passed its order after properly appreciating the entire records of the case and the evidence led by both the parties. Hence, the revision petitioner is liable to be dismissed on this ground alone.
We have carefully gone through the orders of the State Commission, District Forum and other relevant records. In this case there are concurrent findings of both the Fora below against the Insurance Company. As has been held by Hon’ble Supreme Court in catena of judgments[Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269, Sunil Kumar Maity vs. State Bank of India and Ors. (2022) SCC OnLine SC 77, Lourdes Society Snehanjali Girls Hostel and Another Vs. H & R Johnson (India ) Limited and Ors, (2016) 8 SCC 286, T. Ramalingeswara Rao (Dead) Through Legal Representatives and Anr. Vs. N. Madhava Rao and Ors. (2019) 4 SCC 608, Rajiv Shukla Vs. Gold Rush Sales and Services Limited and Anr. (2022) 9 SCC 31] that revisional jurisdiction of the National Commission is extremely limited, it should be exercised only in case as contemplated within the parameters specified in the provision i.e. when State Commission had exercised a jurisdiction not vested in it by law or had failed to exercise jurisdiction so vested or had acted in the exercise of its jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity. It is only when such findings are found to be against any provisions of law or against the pleadings or evidence or are found to be wholly perverse, a case for interference may call for at the second appellate (revisional) jurisdiction. In exercising of revisional jurisdiction, the National Commission has no jurisdiction to interfere with concurrent findings recorded by the District Forum and the State Commission, which are on appreciation of evidence on record.
Both the State Commission and District Forum have given well-reasoned orders, duly addressing the contentions raised by the Petitioner/Insurance Company before them and we are in agreement with the findings of the Fora below. The District Forum has appropriately addressed the contentions of the Petitioner/Insurance Company with respect to limitation/complaint being time barred. Extract of the relevant para of the order of the District Forum is reproduced below:
“8. Now so far as complaint being time barred, we cannot accept it because, the occurrence took place on 12.4.04 and FIR as Naugachhia P.S. Case No.128/04 was registered in which police submitted F.F. on 15.5.07 and C.J.M. accepted it on 30.8.07, so normally after acceptance of F.F. the Insurance Co. generally starts the process of examining claim. In the given fact the cause of action was continuing claim. In the given fact the cause of action was continuing, to when the complaint has been filed on 2007, it is not time barred. Regarding non receiving any information by the OP about the incident and allegation that U.P.C. is a forged document, it cannot be accepted. The copy of U.P.C. bears stamp and seal of post office, through the date is not visible. Moreover, the OP has not received U.P.C. does not mean that complainant has forged this document.”
We are in agreement with the findings of the District Forum on complaint not being time barred. We are not in agreement with the contentions of the Insurance Company that it is not the case of theft but a breach of trust as the FIR was filed under Section 406 and not under Section 378. As far as Respondent/Complainant is concerned whether the vehicle has been stolen by the driver himself or by any other person, does not change its nature from being a theft. District Forum in para 13 to 15 of its order has appropriately addressed these issues and we endorse the same. The extract of the relevant para is reproduced below:
“13. Learned lawyer for the complainant submitted that ingredients of Sec 406 and 378 (theft) are almost similar and in this case the taking away of Truck by the driver amounts to theft. He referred to Sec. 378 IPC the definition of theft which is as under:
"Sec. 378 Theft- Whoever, intending to take dishonestly any moveable 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."
Now illustration (d) is very important and it will clear all doubts.
(d) 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.
So similar is the position here in this case. The driver was entrusted with the Truck by the owner the complainant and the driver ran away with the Truck, so driver committed theft of Truck causing damage to the complainant. Learned lawyer for the complainant referred a decision which is reported in 1 (2009 CPJ 183 (NC). The Hon'ble National Commission has held in para 5 that:
Para 5 "We have seen the material on record there is no dispute that original owner of the vehicle had obtained a comprehensive insurance policy, which also covered the risk of theft in this case. Upon loss of motorcycle, the matter was reported to the police who registered the case under Section 406 and 379 of IPC. We did not have the benefit of perusing the pleadings. Since they have not been filed, but perusal of the order of District Forum, reveals that not only FIR was registered by the Police, they have also filed charge-sheet against Mr. Maqbool Alam under Sections 406 and 379 IPC. Once the police have registered case under Section 379, in our view the loss shall come (Illegible) within the definition of theft. The question of breach of trust by party will not affect the right of the person, who lost the vehicle and there is no dispute that the complainant lost the vehicle and Police did register a case under Section 379 of IPC besides under Section 406 of IPC -----".”
As regards delay in intimating the insurance company, the complainant has contended that it was sent immediately through UPC (under postage certificate) and this contention has also been addressed by the District Forum in para ‘8’ of its order which is already reproduced above.
13 In view of the foregoing, we are of the considered view that there is no illegality, material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, the Revision Petition is dismissed.
The pending IAs in the case, if any, also stand disposed off.