MANNULAL VERMA vs Oriental Insurance Co. Ltd.

THIS appeal under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 13.9.2002 by District Consumer Disputes Redressal Forum, Raipur, (hereinafter called ''Distt. Forum'' for short) in Case No. 222/2002 dismissing the complaint of the complainant/appellant claiming the sum assured under the policy issued.

RELEVANT facts no longer in dispute stated in brief are, that the complainant/appellant owned a motor cycle bearing Registration No. CG-04 A 0587 which was got insured by it with the respondent. The risk was covered from 14.6.2001. The complainant/appellant fell into the trap of an unknown person who duped him and took away the motor cycle on false representation. The report of the incident was lodged by the complainant/appellant on 18.8.2001. However, since the motor cycle could not be recovered and the culprit taking it away could not be traced; hence, the police submitted final report and closed the matter. The complainant/appellant laid claim with the respondent/Insurance Company for payment of the amount assured. The claim was, however, repudiated by the respondent/insurer on the ground that the loss of motor cycle occurred on account of cheating which according to the insurer was not covered by the terms of the policy.

The learned Counsel for the appellant submitted that as per terms of the policy the insurer was liable to indemnify the claimant/appellant for the loss of the motor vehicle on account of malicious act as has been provided in the terms of policy enumerated in the policy document in Sec. 1 of the terms thereof. Copy of the policy document has been filed by the opposite party in the complaint case and is marked as Annexure O.P.-1. The learned Counsel for the appellant, therefore, submitted that the learned District Forum was not justified in dismissing the claim for compensation for the loss of motor cycle.

AS against above the learned Counsel for the respondent insurer submitted that as per version of the complainant/appellant himself, the motor cycle was taken away by the unknown culprit by defrauding the complainant/appellant. Thus, the loss as above occurred on account of cheating the complainant/appellant. It was pointed out that the police on the report of the complainant/appellant registered a case under Section 420 of I.P.C. It was submitted by the learned Counsel for the respondent that the terms of policy do not cover the risk on account of loss of the vehicle by cheating. It was, therefore, submitted that the appellant was not entitled to get the compensation from the insurer/respondent. In view of the rival contentions as above, it has to be considered as to whether as per terms of policy the complainant/appellant is entitled to receive the sum assured on account of loss of motor cycle?

AS noticed earlier, undisputably the complainant/appellant was defrauded and fell into trap of unknown culprit and handed over his motor cycle to him. The said unknown person had taken away the motor cycle on the pretext that he would be securing cheap tyres for the complainant. It is also not in dispute that the complainant/appellant lodged report of incident with the police, Maudhapara, Raipur. Copy of the F.I.R. has been filed by the opposite party/respondent and is marked as Annexure O.P.-2. The letter of the Superintendent of Police addressed to Regional Manager of the respondent marked as Annexure O.P.-3, indicates that since the motor cycle was not traceable nor the culprit who took it away could be apprehended, hence the matter had been finally closed by the police. The above facts leading to the loss of the motor cycle show that the complainant/appellant was led to believe by the unknown culprit that he would secure tyre at a cheaper rate for the complainant and the said unknown culprit then asked for the motor cycle from the complainant/appellant to do the work as above. The complainant in turn handed over it to the said unknown culprit. The aforesaid unknown person escaped with the motor cycle and could not be traced despite investigation conducted by the police. The learned Counsel for the appellant submitted that the loss of the motor cycle in the above circumstances was on account of malicious act of the said unknown person and, therefore, he was entitled to get the assured sum. It is clear that Sec. 1 (Clause g) under the Caption ''Loss or Damage'' of the terms of policy (Policy document Annexure O.P.-1) provides that the company will indemnify the insured against the loss or damage to the motor vehicle or its accessories whilst thereon by malicious act.

OBVIOUSLY, the action of the unknown person who took away the motor cycle fraudently was a malicious act.

IN the above context is may be mentioned that the word malicious has been defined in Block''s Law Dictionary as; (1) The intent, without justification or excuse to commit a wrongful act; (2) Reckless disregard of the law or of a person''s legal rights; (3) ill-will; wickedness of heart. IN Compact Oxford Reference Dictionary malice has been defined as-the desire to harm someone. Clearly, the circumstances of the case detailed above indicate that loss of the motor cycle was caused to the complainant/appellant on account of the ill-will and intent to commit wrongful act and in total disregard of the law or the legal rights of the complainant, by the unknown culprit, who took away the motor cycle from him. Therefore, it is clear that the complainant/appellant suffered loss of motor cycle on account of malicious act of the unknown culprit. Such an act being specifically and unambiguously covered by Policy Clause (g) of Section 1 thereof, there appears to be no manner or doubt that the complainant/appellant was entitled to get the sum assured by the respondent. Hence, repudiation of the claim of the complainant by the respondent insurer, on the ground that the loss of motor cycle was caused due to cheating and was, therefore, not covered by the terms of policy was not justified, and cannot be sustained.

The learned District Forum fell in grave error in holding that the claim as above of the complainant/appellant was not covered by the terms of the policy. The said finding cannot be upheld and is set aside.

THE learned Counsel for the respondent/insurer, at this stage filed a copy of report of Surveyor S.K. Ahuja, who assessed compensation at Rs. 38,000/- the fair market value of the motor cycle. THE learned Counsel for the respondent submitted that the appellant/complainant is not entitled to anything more than Rs. 38,000/-. THE submission as above was not controverted and deserves to be accepted. Accordingly, the appeal is allowed, the order of the District Forum is set aside. The complaint of the complainant/appellant is allowed in the following terms: (1) The respondent shall pay to the complainant/appellant Rs. 38,000/- (Rupees thirty-eight thousand only) as compensation towards loss of his motor cycle. (2) The respondent/insurer shall pay the appellant interest at the rate of 9 per cent per annum on the above till payment of the said amount. (3) The respondent shall bear his own cost of the appeal and pay that of the complainant/appellant which is quantified as Rs. 1,000/- (Rupees one thousand only).

Appeal allowed.