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Judgment
Heard Mr. K.K. Bhat, Advocate, for the petitioner and Ms. Manisha Ambwani, Advocate, for the respondent.
Aforementioned revision has been filed from the order of Assam State Consumer Disputes Redressal Commission, Guwahati, dated 03.03.2020, passed in First Appeal No.40 of 2013 (arising out of order of District Consumer Forum, Golaghat, dated 07.06.2013, passed in Consumer Protection Case No.6 of 2009 Raghunath Joiswal @ Raghu Vs. The Branch Manager, Oriental Insurance Company Ltd.) whereby the complaint was allowed and the opposite party was directed to pay Rs.688500/- with interest @9% per annum and compensation of Rs.10000/- to the complainant and the appeal was dismissed.
Raghunath Joiswal @ Raghu (the respondent) filed Consumer Protection Case No.6 of 2009, for directing The Oriental Insurance Company Ltd. (the petitioner) to pay (i) Rs.765000/ as I.D.V. value of the vehicle, (ii) Rs.200000/-, as escalation cost and (iii) Rs.25000/- as deficiency in service, total Rs.990000/- along with interest @9% per annum, as his insurance claim.
The complainant stated that he was registered owner of an Oil Tanker vehicle, bearing registration No. AS-01-P-8009, which was only source of earning his lively-hood by way of self-employment. The complainant obtained Commercial Vehicle Package Policy No.2006/1367 (which was renewal of earlier policy), for the period of 07.06.2005 to 06.06.2006, for a sum assured of Rs.765000/-, from the opposite party. The complainant let out the said Oil Tanker to one Manoj Kumar Duggar, for Rs.50000/- per month, for a period of 19.06.2003 to 23.08.2005, for carrying out his petroleum product, who was plying it smoothly under the control of the complainant. The said Oil Tanker was found missing from 23.08.2005 and could not be traced. The complainant lodged criminal complainant (registered as C.R. No.998 of 2005) against Manoj Kumar Duggar. Later, the complainant came to know that Manoj Kumar Duggar was absconding due to C.R. Case No.740 of 2005, (Case Crime No.296/2005, U/S 406/420 IPC) PS Jorhat. The complainant lodged an insurance claim before the opposite party as the vehicle was insured for risk of the theft. However, the opposite party repudiated the claim, vide letter dated 06.06.2007, on the ground that it was a case of breach of trust and not of theft. The complainant then made claim before Insurance Ombudsman, who also rejected the claim on 21.08.2008. On the allegations deficiency in service, the complaint was filed.
The petitioner filed its written reply on 01.07.2010, in which, issue of insurance policy, has not been denied. It has been stated that the complainant had let out the said Oil Tanker to one Manoj Kumar Duggar, the Proprietor of M/s. Oswal Association, Jorhat, for Rs.50000/- per month, who disposed of the vehicle. The criminal case, i.e. Case Crime No.488/2005, lodged by the complainant against Manoj Kumar Duggar was registered under Section 406/420 IPC, i.e. criminal breach of trust and cheating at P.S. Golaghat. The loss occurred out of contractual liability, falling under Exclusion Clause-2 of the policy. As such the claim was repudiated. There was no deficiency in service on their part.
District Consumer Forum, after hearing the parties, by judgment dated 07.06.2013, found that in view of Illustration (d) of Section 378 IPC, the present case, was a case of theft and the opposite party was liable to reimburse the loss, under the policy. The claim has been wrongly repudiated by the opposite party. On these findings, the complaint was allowed as stated above. The petitioner filed an appeal (registered as First Appeal No.40 of 2013) from the aforesaid order. State Commission, after hearing the parties, by judgment dated 03.03.2020, dismissed the appeal. Hence this revision has been filed.
We have considered the arguments of the counsel for the parties and examined the record. Clause-1 (ii) of Commercial Vehicle Package Policy provides that the company will indemnify the insured against loss or damage to the vehicle insured hereunder and or its accessories whilst thereon (i)…
(ii) by “burglary, housebreaking or theft”.
The “theft” has been defined under Section-378 of Indian Penal Code, 1860 as follows:-
Section-387. Theft.- Whoever, intending or take dishonestly any movable property out of possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
Illustrations
(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.
This Commission, in S. Bhagat Singh Vs. The Oriental Insurance Company Ltd., II (1991) CPJ 700 (NC) and The Oriental Insurance Company Ltd. & anr. Vs. Rohit Kumar Gupta & Ors., I (1994) CPJ 196 (NC) and Supreme Court, in National Insurance Company Ltd. Vs. Ishar Das Madan Lal, (2007) 4 SCC 105 , held that transfer of possession of goods to a merchant who deals in the goods of that type and who may in turn transfer the goods and all rights to them to a purchaser in the ordinary course of business. Transfer of possession of goods, therefore is a sine qua non for entrustment. The person must be handed over the possession of the property. Illustration (d) appended to Section 378 IPC envisages a situation of this nature. It has been held that it was theft and not breach of trust.
Registration of FIR of the case i.e. Case Crime No.296/2005, U/S 406/420 IPC) at PS Jorhat, is not a decisive factor. The case of the complainant was fully covered under Illustration (d) appended to Section 378 IPC. Foras below have not committed any illegality, in treating the case of the respondent as a case of theft.
The petitioner has filed Terms and Condition of “Commercial Vehicle Package Policy (page-37). Clause-2 is quoted below:
The Company shall not be liable to make any payment in respect of :
(a) Consequential loss depreciation, wear and tear, mechanical or electrical breakdowns, failure or breakages not for damage caused by overloading or strain of the insured vehicle not for loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.
Exclusion clause has no application in the present case.
ORDER
In view of the aforesaid discussions, the revision is dismissed.