MAL SHREE MISRA vs NEW INDIA ASSURANCE COMPANY LTD

THIS is a complaint for recovery of Rs. 1,50,000/- alongwith interest at the rate of 16.5% per annum from 28.4.1989 till the final payment of the amount. A sum of Rs. 1,00,000/- has also been claimed as damages.

THE facts of the case, stated in brief, are that the complainant obtained an insurance policy which was effective from 28.4.1989 for one year for his jeep No. U. Cr D 9192. This jeep was registered with RTO Office, Hardoi which was of 1989 model. This jeep was driven by a professional driver Shyam Sundar, resident of Padrawa Kila, Police Station Pihani, Tehsil Shahabad. On 7.9.1989 a verbal information was received through a person that this jeep is required by the husband of the complainant at Lucknow. On this information, younger brother of the husband of the complainant, Alok Misra had given instruction to the driver to take 30 liter of diesel and proceed with the jeep to Lucknow. When the husband of the complainant returned back from Lucknow on 10.9.1989 without jeep, the complainant asked him about the jeep. Her husband told her that he never asked for the jeep and thereafter enquiries were made but the jeep could not be traced out. A First Information Report was lodged with the Police Station, Shahabad at District Hardoi for the missing jeep. A copy of the FIR is filed as Annexure No. 5 to the complaint. The complainant regarding the theft of the jeep also informed the financing Bank of Lala Kashi Nath Seth who also informed New India Assurance Company of this fact on 26.9.1989, a copy of which is Annexure 6 to the complaint. The police failed to trace out the jeep and submitted a final report, a copy of which is Annexure 7 to the complaint.

For purchasing the jeep a sum of Rs. 1,08,000/- was taken as loan from Lala Kashi Nath Seth Bank at the rate of 16.5% interest which was payable by the complainant. The theft is also covered under the comprehensive policy which was taken by the complainant and as such he is entitled for a sum of Rs. 1,50,000/- and interest as claimed.

NOTICES were sent to the opposite parties on 24.10.1991 and 16.12.1991 for paying the due amount but it was not complied and the amount was not paid. By letter dated 25.11.1991 opposite party No. 4 had informed the complainant that he is not entitled to get the amount as material facts have been concealed by him. A copy of the said letter is Annexure 16 to the complaint. On account of the inaction of the opposite party, the damages worth Rs. 1,00,000/- has been claimed besides the price of the jeep alongwith interest . The opposite parties have filed a written statement of one Inder Raj Lamba in the form of an affidavit. It is alleged that the deponent is a Senior Divisional Manager. The lodging of the FIR is admitted. The damages, which was caused to the complainant was intimated to the Insurance Company about 16-17 days after the incident. Hence there is a violation of the terms of the policy in which it is laid down with immediate effect information has to be given of any incidence. It is further alleged that the complainant never completed formalities required by the Surveyor / Enquiry Bureau appointed by the Company. Thus he has also violated the terms of the insurance policy. It was the legal duty of the complainant to have disclosed each and every fact which was within his knowledge to the Enquiry Bureau. The claim form was submitted on 10.1.1991. The opposite parties are not liable to pay any amount because there has been a breach of trust. Notices dated 10.12.1991 was received on 23.12.1991 which was duly received by the opposite parties. All the due precautions were taken before repudiating the claim of the complainant. The enquiry was got made from Mohan Detectives and Security Service Bureau which is run by a retired DIG Police. It was also enquired into by Sri R.C. Chitranshi, who is also a retired Deputy Superintendent of Police. The officer of the Investigating Bureau in its supplementary report dated 14.4.1990 has mentioned that cooperation was not given by the complainant even after two visits at the residence of the complainant. When the report dated 14.4.1990 has been completed, then Sri Rajendra Prasad Misra, husband of the complainant, and Alok Misra, brother of the husband of the complainant came to the office of the Bureau where their statements were recorded. Therefore a supplementary report dated 23.4.1990 was also prepared alongwith comments dated 26.4.1990 which is filed as Annexure 1 to the affidavit.

LALA Kashi Nath Seth Bank has not been made a party to the proceedings and his claim is (sic) for non-joinder. This bank had written to the opposite parties that the dead body of the driver has been identified. It is a case of breach of trust and hence the Commission has no jurisdiction to try this case. In the replication, the complainant reiterated the allegations made in the complaint and alleged that he cooperated with the opposite parties. The parties filed affidavits and evidence in support of their respective cases. We have heard learned Counsel for the parties and have also perused evidence on record.

IT is an admitted fact that the jeep was stolen and it was not traced out alongwith the driver. IT is also an admitted fact that the jeep was insured with the New India Assurance Company for which claim has been made. The claim was repudiated by the opposite party Insurance Company on 25.11.1991,copy of this is Annexure 16 to the complaint. In this claim it is mentioned that on investigation it has been found that there has been concealment of vital facts and misrepresentation of facts. The Commission ordered for detailed facts on which repudiation was made. This repudiation letter was again communicated to the complainant. This letter dated 21st May, 1996 gives details of the grounds on which repudiation has been made. In this letter it has been mentioned that the complainant''s representative has not cooperated with the investigators inspite of his letters dated 17.1.1990 and 4.9.1990 personally handed over against acknowledgement and also registered A/D letter. IT was stated that it is a violation of policy condition No. 1. The next fact is that the representative of the complainant had handed over the jeep alongwith a driver to a stranger without verifying his identities and as such condition No. 4 of the policy has been violated. The next ground for repudiation is that the jeep was being plied as taxi while it was insured as a private jeep, thereby misrepresenting to the Transport Authority as well as to the Insurance Company which violated condition No. 8 of the insurance policy.

LEARNED Counsel for the appellant has argued that the jeep was taken away by the driver alongwith a stranger on 7.9.1989 and the First Information Report was also lodged late and the Insurance Company was also informed very late not by the complainant but by Lala Kashi Nath Seth Bank. It has further been argued that adequate care was not taken by handing over the jeep to the driver and the stranger whose identity has not been established, thus violating condition No. 1 of the policy. According to the learned Counsel handing over the jeep to a stranger will amount to violation of condition of the insurance policy. It has been seen in the earlier part of the judgment that Alok Misra, younger brother of the husband of the complainant had asked the driver of the jeep to proceed to Lucknow with the person who had dropped a message that the jeep is required by his brother. In this context it may be stated that the jeep was not handed over to a stranger as contended by the learned Counsel for the appellant. The jeep was handed over to the driver after directing him to take 30 liters of diesel. This is not unusual and no adverse inference can be drawn from this fact. As a matter of fact the jeep was handed over to the driver who was driving the vehicle before and he was known to the complainant. If a stranger had accompanied the driver then it will not mean that the control of the jeep was passed on to him. Therefore, the brother-in-law of the complainant had taken reasonable precaution which a person of common intelligence will exercise on that particular moment. According to learned Counsel this jeep was never asked for by the husband of the complainant even prior to this. Then why this jeep was handed over ? It is just possible that the brother-in-law of the complainant felt that his brother requires the jeep urgently and therefore it was sent alongwith the person who came there. No doubt there is a force in the argument of the learned Counsel that the details of the person who came to inform about the demand of the jeep were not enquired into, but this fact alone will not mean that adequate precaution and care which a prudent man is expected to take has not been taken care of. Thus we do not find any force in this argument.

It has been argued by the learned Counsel for the appellant that the jeep was being plied as taxi. This fact has come in the report of the Investigating Agency hired by the Insurance Company. This is based on the statement of Alok Misra which was recorded by the investigator. According to learned Counsel for the complainant, this statement is inadmissible in evidence as Alok Misra was minor on the date on which this statement was recorded. This statement was recorded on 20.4.1996 on which date the age of Alok Misra was 16 years only. His date of .birth is 1.7.1974 which is evidently clear from the High School certificate filed by the complainant. Thus the statement of this witness cannot be relied upon for this fact. Even if the statement of Alok Misra is analysed it does not disclose that the jeep was even used as a taxi. According to the investigator, the jeep was standing at the bus stand where taxies are parked. Therefore he has drawn an inference that this jeep was being run as a taxi. Alok Misra has stated that the jeep was standing in front of his hotel which is in front of the bus stand, Shahabad. Thus even this statement does not at all prove that the jeep was standing at the taxi stand and was being used as a taxi. Thus this argument of the learned Counsel for the appellant does not hold good and is not supported by evidence on record.

LEARNED Counsel for the appellant has further argued that the complainant had not co- operated with the Investigating Agency. This fact finds mention in the report of the Investigating Agency. It is mentioned that the complainant did not give her statement and also did not sign any paper or gave anything in writing. Thus conclusion of the report of the Investigating Agency dated 23.4.1990, has been mentioned in page No. 3, that the complainant did not co- operate with the Investigating Agency. It has further been mentioned in his report that the husband of the complainant, Sri Rajendra Misra who manages and looks after the jeep could not be made available to me so far despite personal requests made by me on my two visits to her residence and despite two letters dated 17.1.1990 (Appendix C) and dated 9.4.1990 (Appendix ''D''). This observation clearly goes to show that the jeep was being looked after by the husband of the complainant and she knew nothing about the jeep and was not having any interest in the running of the jeep. It is a common knowledge that in India the property owned by ladies are generally managed by their husbands or other male members. It is rarely that the females manage their property themselves. Therefore, on this basis no adverse fluence can be drawn against the complainant to the fact that she did not co-operate with the Investigating Agency.

LEARNED Counsel for the appellant has argued that there was a delay in giving intimation of the loss by about 19 days. No doubt it is correct that the complainant did not inform the Insurance Company immediately on the happening of this event. As seen in the earlier part of the judgment missing of the jeep came to the knowledge of complainant when her husband came back. Thereafter a search was made of the jeep and then an FIR was lodged. Therefore some time was taken in taking these steps, but the delay in intimating the loss does not affect the case of the complainant in any way because an FIR was immediately lodged. The bankers, from whom the complainant had taken loan for purchasing of jeep, had informed the Insurance Company. It has further been argued that two queries were made and given by the Surveyor but they were not replied. We find that non-reply of queries in the circumstances of the facts of the case do not affect the merits of the case, Thus we find that the claim of the complainant was wrongly repudiated by the Insurance Company and the complainant is entitled to the losses suffered by her.

THE complainant has claimed a sum of Rs. 1,50,000/- as cost of the jeep. THE price of the jeep has not been contested or denied by the Insurance Company. Hence we take the price to be correct, according to the appellant. THE amount of policy was Rs. 1,50,000/- for which the jeep was insured and the policy was in force at the time of the incidence. THE jeep was purchased in the year 1989 and was also lost in the same year. THErefore, there is no question of any depreciation on the losses of the jeep. It was a total loss for the complainant and she is entitled to claim the entire amount for which the insurance was taken of the jeep. As a matter of fact the exact price of the jeep has been given as Rs. 1,49,850/-.

THE complainant has claimed a sum of Rs. 1,00,000/- as compensation. We find that the loss was reported in about 20 days'' time to the Insurance Company and the Surveyor was also appointed by the Insurance Company. THE information was sent to the Insurance Company on 26.9.1989 and the repudiation of the claim was made on 25.1,1991. Even the Surveyor had filed his report on 26.4.1990. THE Insurance Company took about two years'' time to repudiate the claim of the claimant. Even after filing of report by the Surveyor, the Company took about five months'' time to come to the conclusion to repudiate the claim. THEre was delay in repudiation of the claim by the Insurance Company which also amounts to deficiency in service. For this deficiency in service, the complainant is also entitled to some damages but certainly not to the extent of Rs. 1,00,000/- as claimed by the complainant. Thus, we consider a sum of Rs. 10,000/- as just compensation for mental tension etc. to which the complainant was put to during this period. THE complainant is also entitled to get loss in the form of interest at the rate of 16.5% per annum for six months after the information was given to the insurer because some time was taken by the Surveyor to contact the husband of the complainant. Thus, the interest is to be paid from 1.6,1990 till the date of payment. As the jeep was used for few months hence, some deduction has to be made from the value of jeep. Thus, we find that a sum of Rs. 1,40,000/- will be the right amount representing the loss on account of theft of the jep. ORDER The claim is partly decreed and the New India Assurance Company, opposite party is directed to pay a sum of Rs. 1,40,000/- alongwith interest in the form of loss at the rate of 16.5% per annum from 1.6.1990 till the date of payment. The complainant will also get a sum of Rs. 10,000/- as compensation. As sum of Rs. 2,000/- is also awarded to the complainant as cost of the proceedings.

Let compliance of the order be made within two months from today.

LET copy of this order be made available to the parties as per rule. Claim partly decreed with costs.