ORIENTAL INSURANCE Company Limited vs ASHOK KUMAR

THIS appeal has been filed by Oriental Insurance Company Limited through the Assistant General Manager, Regional Office, Lucknow against the orders dated 6.1.1993 passed by District Consumer Forum, Dehradun in Complaint Case No. 671/92. Briefly stated, the facts of the case are as follows :

THE complainant Ashok Kumar is the owner of the truck No. 4708 which was insured from 24.3.1990 to 23.3.1991 with the appellant. In the night of 19/20th September, 1990 the truck was sent to load bricks to Ailem in District Muzzafarnagar, but due to labour problems bricks could not be loaded. At about 1 a.m., four persons forcibly tied the driver and the cleaner alongwith brick klin Munshi and Chowkidar in a room and took away all four rear wheels, one battery, tools, four rims, tool box and tarpoline. THEse items were loaded by these four persons in another vehicle which fled away. Thus the loss of Rs. 42,850/- occurred to the complainant as a result of this theft and an amount of Rs. 1,000/- was spent in bringing back the truck to Dehradun. A claim of Rs. 43,850/- was preferred before the Insurance Company, the appellant, but the Insurance Company repudiated the claim under Section 1 para 3, Sub-para (a) and under IMT 26 of the Commercial Motor Vehicle Policy No. 30/ 90/0563, comprehensively insured. According to the Insurance Company, the appellant''s claim cannot be accepted for theft of the accessories unless the truck itself is stolen. THE complainant also lodged an F.I.R. of the incidence at the police station, Kandhla, District Muzaffarnagar. THE complainant then preferred a complaint before the District Consumer Forum, Dehradun. THE learned Forum held that tyres, rims, battery etc. cannot be considered to be accessories and the claim cannot be rejected by the appellant, Insurance Company. THE Surveyor has assessed the cost of the stolen items at Rs. 40,850/- but without reasons assessed the depreciation at the rate of 50%. THE District Consumer Forum, after taking into consideration 33% depreciation, allowed the claim of Rs. 27,240/- as loss of the stolen parts and Rs. 500/- for removal of the truck. Thus a claim of Rs. 27,740/- was allowed by the Forum. Aggrieved against this order, the appellant, Insurance Company has come in appeal and has challenged the correctness of this order.

In the grounds of appeal it has been stated by the appellant that the Forum below reached to an improper finding in awarding a sum of Rs. 27,540/- because as per the terms of the policy, accessories were not covered in the theft unless the vehicle is stolen at the same time. The loss towards tyres and other items were excluded, except in case of total loss of the vehicle as per endorsement IMT 26, under Special Exclusion of the conditions of the policy. It is also stated that the complainant failed to substantiate his claim of loss before the District Forum and gave contradictory evidence and statement. The survey report was not appreciated and was considered to be an admission of liability although the report was simply an assessment of loss. The points raised in the appeal were supported by the affidavit filed by A.K. Srivastava, Administrative Officer of the appellant.

WE have gone through the records placed on the file. WE have also heard the learned Counsel Mr. A.K. Singh (Counsel for the appellant) and Mr. Rajesh Chadha, Counsel for the opposite party. The facts of the incidence are not disputed. The points of dispute between the two parties is that the tyres, rims, battery etc. of the insured truck in question were accessories which were not covered under the theft unless the vehicle is stolen at the same time. Other point of dispute is that the loss of the stolen items as assessed by the surveyor does not mean that the loss so assessed is fit to be claimed. It is argued by the learned Counsel for the appellants that the loss did not occur as a result of accident and whatever assessment was made by the Surveyor is not the liability of the Insurance Company as the claim in question is not covered by the insurance policy. On the other hand, the learned Counsel for the respondent argued that tyres, rims and battery etc. are essential parts of the truck and they cannot be said to be accessories. There is no doubt that tyres, rims are essential components and without these the vehicle will not run. Section I Clause 1 of the policy clearly indicates that the Company will indemnify the insurer against loss or damage to the motor vehicle and/or its accessories by the external explosion, self ignition, lightening or burglary, house breaking or theft. Therefore, the repudiation of the claim as indicated by the appellants on 19th August, 1992 is not in consonance with Section I, para 1 of the policy. Similarly the certificate of Insurance (Annexure 6) which lays down IMT 26 special exclusion clause is against the spirit of Section I as indicate above. In this case the theft took place in the night of 19/20th September, 1990. Spot survey was done on 30.9.1990. Subsequent spot survey was carried out on 2.10.1990. We have gone through the reports of two Surveyors and the facts of the theft are not denied. In the report of Sri S.K. Handa and Company, the loss has been calculated and net payable amount has been assessed. The Insurance Company, appellant, took 1 years and then repudiated the claim on 19.8.1992. The final report submitted by the police is dated 1st August, 1991 which shows that the appellant Insurance Company inordinately delayed disposal of the claim and after 18 months of the submission of the survey report, they repudiated the claim.

WE have also discussed that the grounds on which repudiation was made are not valid as Section I, Clause 1 of the policy is clear that the Company will indemnify the insured against loss which occurs as a result of theft. The vehicle in question had come to collect bricks from the brick klin from Muzaffarnagar and was to go back with the loaded items, but in between the theft of the essential components of the vehicle took place. Therefore, we find that there was deficiency in service on behalf of the Insurance Company, the appellant, and the Insurance Company is liable to pay the loss which the insured respondent suffered as a result of theft In regard to the depreciation allowed by the District Consumer Forum, we consider 33% depreciation instead of 50% depreciation to be reasonable. In the circumstances, the order of the District Forum does not need any interference and the appeal is liable to be dismissed. ORDER The appeal is dismissed and the judgment and order of the learned District Forum dated 6.1.1993 in the Complaint Case No. 671/92 is confirmed.

LET copy of the order be made available as per rules. Appeal dismissed.