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Judgment
THE petitioner/complainant purchased one Chevrolet Tavera motor vehicle on 08 -09 -2005 and got the same insured with the respondent -insurance company for a sum of Rs. 6,10,000/ - for the period from 31 -12 -2006 to 30 -12 -2007. The case of the complainant is that while he was on tour in North East, in the aforesaid vehicle and reached a petrol pump namely Faithful Services along with his driver at about 1:40 A.M. on 06 -04 -2007 for taking petrol, some unknown persons gave beating to them and ran away along with the relevant papers of the vehicle and the vehicle as well as cash amounting to Rs. 10,000/ -. An FIR being No. 31/07 under Section 392/34 of IPC was registered on 06 -04 -2007. However, the culprits could not be arrested and a final report was eventually submitted to the concerned judicial magistrate, who accepted the said report. The claim lodged by the petitioner, however, was repudiated by the insurance company on the ground that the vehicle was being used for commercial purpose. The insurance company also doubted the alleged theft of the vehicle.
THE District Forum vide its order dated 29 -08 -2012 dismissed the complaint. Being aggrieved from the dismissal of his complaint the petitioner approached the State Commission by way of an appeal. The said appeal having been dismissed by the State Commission vide impugned order dated 13 -01 -2014 he is before this Commission by way of this revision petition. Only two issues arise for consideration in this revision petition, the first being as to whether the vehicle in question was being used for a commercial purpose as is claimed by the insurance company and the second being whether the vehicle was actually stolen during the alleged robbery on 06 -04 -2007 at Dimapur in Nagaland or not.
THE surveyor appointed by the insurance company collected a certificate purporting to be issued by Krishi Vigyan Kendra, Sylvan on 21 -04 -2008. The said certificate reads as under: This is to certify that Mr. A.P. Maitra, Surveyor, arrived in our K.V.K. Senapati District, Manipur on 21st April 2008. To his enquiry following are given for necessary information and action from our record.
On 4th April, 2007, our project coordinator, Mr. Hegin Kipgen accompanied by Mr. P. Chongloi hired vehicle bearing No. W.B.74.J.5883 (GM/Tavera) to bring nursery seedling from Siliguri, West Bengal. He started from there at about 4.P.M. on the 4th April, 2007 and arrived to our KVK on 5th April, 2007 at evening 8.P.M.. After unloading the load of seedling, the owner of the vehicle Sh. Monjay Das collected scheduled fare of Rs. 15,000.00 only and left for Siliguri on the same night.
Hereafter, neither Mr. Hegin Kipgen nor anyone of the KVK had any concern with vehicle or its owner.
This is for doing needful.
Thus, as per the certificate obtained by the surveyor the vehicle in question was hired by Mr. Hegin Kipgen, Project Coordinator of Krishi Vigyan Kendra and a sum of Rs. 15,000/ - was paid to the complainant as hire charges. The insurance company, however, did not examine Mr. Hegin Kipgen as a witness despite his particulars being available with them. In fact no one from Krishi Vigyan Kendra, Sylvan was examined to establish the authenticity of above referred certificate dated 21 -04 -2008. No documentary evidence of the vehicle in question having been hired and a sum of Rs. 15,000/ - having been paid to the complainant was produced. No receipt of the alleged payment of Rs. 15,000/ - was produced before the District Forum. Obviously, a receipt would have been issued in case payment of Rs. 15,000/ - was made by Krishi Vigyan Kendra, which was a body sponsored by Indian Council of Agricultural Research, Ministry of Agriculture, Govt. of India. In these circumstances there was absolutely no direct evidence of the vehicle in question having been given by the complainant on hire. In my view, considering the stand taken by the complainant in para 9 of the complaint as to the circumstances in which the vehicle got stolen it was imperative for the insurance company to examine either Mr. Higen Kipgen to prove that he had hired the vehicle in question on 04 -04 -2007 or to have at least produced a receipt evidencing the alleged payment of Rs. 15,000/ - to the complainant. The surveyor had no personal knowledge either of the hiring of the vehicle or of the alleged payment since his report was based upon the certificate purporting to be issued by Krishi Vigyan Kendra. As noted earlier, no one from Krishi Vigyan Kendra was produced to prove the above referred certificate and more importantly neither Mr. Higen Kipgen was examined nor any receipt of the alleged payment of Rs. 15,000/ - produced. In these circumstances, the finding of the District Forum and the State Commission with respect to the vehicle in question having been given on hire was perverse, since it was not based on any legally admissible evidence.
COMING to the next question, the learned counsel for the petitioner has drawn my attention to the order dated 05 -09 -2007 passed by Judicial Magistrate First Class Dimapur, Nagaland in case No. 31/07 under Section 392/34 of IPC. The aforesaid order to the extent it is relevant reads as under: Final Report No. 22/07 of DMR/DPR/PS case No. 31/07 U/S 392/34 IPC forwarded by S.I. Kakok Ao, the investigating officer through SDPO Dimapur, Nagaland for closing of the case.
The fact of the case is that the vehicle bearing Registration No. WB -74 -J/5883 Tavera, Chassis No. 00020/Slg/06 & Engine No. 3GE -19669 along with all original documents and cash of Rs. 10,000/ - (Rupees Ten Thousand) only has forcibly snatched away by 3(three) unidentified persons at 5th Mile Dimapur, near petrol pump at midnight of 6/4/2007.
In course of investigation I.O. of this have established a case of Robbery but failed to trace the culprits and to recover the said vehicle with other looted items.
Hence, on perusal of the Report along with FIR and inquiry report I found the alleged offence U/S 392/34 IPC is true but the FRT untraced. Therefore, the final report is accepted and the case is closed at this stage.
It would thus be seen that during investigations the concerned police officer came to the conclusion that the vehicle in question had actually been stolen, and a robbery had been committed but he was unable to trace and arrest the culprit nor could he recover the stolen vehicle and other stolen goods. In view of the report of the police officer it could not be said that the vehicle got insured by the complainant/petitioner was not stolen.
The learned counsel for the insurance company has drawn my attention to a letter dated 20 -04 -2008 purporting to be written by M/s. Faithful Services to the surveyor of the insurance company. However, the said letter was not proved during the course of hearing before the District Forum since neither the author of the letter nor any one conversant with his hand writing and signature was produced. Hence, no reliance on the said letter can be placed. Therefore, I am of the view that there was no legally admissible evidence produced by the insurance company to prove that the vehicle in question was not stolen. In fact, the report of the investigating officer points to the contrary.
FOR the reasons stated hereinabove, the impugned order is hereby set aside and the respondent -company is directed to make payment to the complainant in accordance with the insurance policy within eight weeks from today.