Oriental Insurance Co. Ltd. vs Uttam Chand

IT is an appeal against the order dated 3.8.2000 of District Consumer Disputes Redressal Forum, Gurdaspur (hereinafter called the "District Forum").

BRIEFLY stated the facts are that Uttam Chand, respondent-complainant No. 1 (hereinafter called "complainant No. 1") was registered owner of a truck bearing Registration No. HIK-4567/TDV Truck 1987 and Arvind Kalra, respondent-complainant No. 2 (hereinafter called "complainant No. 2") was its financier. The truck was duly insured under the comprehensive policy with the Oriental Insurance Co. Ltd., appellant/opposite party (hereinafter called the "opposite party"), for a period of one year from 7.12.1997 to 6.12.1998. The value of the vehicle had been assessed by the opposite party at Rs. 2,50,000/-. According to the terms and conditions of the insurance policy, in the case of loss of the truck, the opposite party would pay a sum of Rs. 2,50,000/- to the insured. It was then alleged in the complaint that in the month of November, 1998, Uttam Chand, complainant No. 1, along with with the truck driven by one Pawan Kumar driver went to Calcutta and Siliguri. At about 2.30 p.m. on 11.11.1998, this truck under the care and custody of Pawan Kuamr driver was parked at the petrol pump known as Amar Garage situated at Barackpore, Trunk Road within the jurisdiction of Cossipore Police Station, Calcutta. Complainant No. 1 had instructed driver Pawan Kumar to load the truck from Calcutta for destination and he himself went away. At about 5.30 a.m. on 12.11.1998, complainant No. 1 came back to the above said petrol pump to supervise whether the truck had been loaded. To his utter surprise, he found that the truck and the driver were not there. On his inquiry, the employees of the petrol pump had told him that Pawan Kumar had represented to them that Uttam Chand complainant had asked him to take the truck to Dyal Road Lines situated at No. 137, Cotton Street 2nd Floor, Calcutta and, therefore, they had allowed Pawan Kumar to drive away the truck. Complainant No. 1, despite making inquiries from many persons, could not trace out the truck. So he went to Cossipore Police Station and lodged the report about the missing of the truck vide D.D.R. No. 1077 dated 12.11.1998. It was further alleged that in the absence of complainant No. 1 driver Pawan Kumar had dishonestly driven away the truck and had taken it out of his possession. Complainant No. 1 also lodged a complaint about this incident in the Court of Additional Chief Judicial Magistrate having jurisdiction. The Additional Chief Judicial Magistrate had directed the S.H.O. of Police Station Cossipore under Section 156(3) of the Code of Criminal Procedure for registration of F.I.R., whereupon the S.H.O. of the said Police Station registered F.I.R. No. 227 dated 27.11.1998 under Section 379, Indian Penal Code. The case was investigated but the police failed to trace out the truck and so the F.I.R. was ordered to be cancelled as ''untraced''. Accordingly, the complainants lodged their claim for loss of the truck with the opposite party, but the latter did not respond in spite of a number of reminders issued to them by the complainants. Non-payment of the insurance claim by the opposite party, according to the complainants, amounted to deficiency in service on their part. Ultimately, a prayer was made in the complaint that the opposite party be directed to pay to the complainants Rs. 2,50,000/- as the insurance claim along with interest @ 18% per annum. The opposite party did not deny that the truck in question owned by complainant No. 1 and financed by complainant No. 2 was comprehensively insured with them or that Pawan Kumar driver had driven away from the Calcutta Petrol Pump as alleged by the complainants. It was also not denied that complainant No. 1 had lodged the D.D.R. and F.I.R. as alleged by him. It was pleaded that the complaint is not maintainable because it was not a case of theft but a case of infidelity on the part of the driver of the truck vis-a-vis the owner. It was then stated in the reply that the District Forum had no jurisdiction because the loss of the truck had taken place at Calcutta.

After hearing Counsel for the parties and after perusal of the record, the District Forum allowed the claim of the complainants by observing thus: "The opposite parties are directed to pay Rs. 2,50,000/- as insurance claim to the complainants, within one month of the receipt of a copy of this order, failing which they shall also be liable to pay interest to them @ 18% p.a. from today till final payment. They are also directed to pay Rs. 1,000/- as costs of litigation to the complainant."

Hence this appeal.

WE have heard the Counsel for the appellant and have gone through the record of the case with his help. Learned Counsel for the appellant has not agitated the point of jurisdiction, and rightly so. The District Forum has given valid reasons to hold that the Forum had got the jurisdiction to decide the matter. Learned Counsel for the appellant has contested only a part of the impugned order, which is reproduced hereunder: "Faced with this situation, the contention of the learned Counsel for the opposite party is that this is not a case of theft but only an instance of infidelity on the part of the truck driver. However, it is not suggested that there was any collusion between the complainants and the driver. Therefore, if the driver had dishonestly driven away the truck, and had taken it out of the possession of the complainants, it would clearly be a case of theft. This view is supported by II (1999) CPJ 498 (U.P. State Commission), Oriental Insurance Co. Ltd. v. Anil Kumar and Others. No authority taking a contrary view has been cited at the Bar. So we may safely follow this authority and hold that it is a case of theft."

WE do not find any infirmity in the order of the District Forum. The District Forum has rightly held that if the driver had dishonestly driven away the truck and had taken it out of the possession of the complainants, it would clearly be a case of theft. The District Form has supported its order by the decision of the U.P. State Commission in Oriental Insurance Co. Ltd. v. Anil Kumar and Others (supra). In these circumstances, we do not find any infirmity in the order of the District Forum. Hence this appeal is dismissed. Appeal dismissed.