SARDAR VIKKAR SINGH vs DIVISIONAL/BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD

THIS is a complaint under Section 12 of the Consumer Protection Act, 1986 (for short the ''Act'') against the opposite party-United India Insurance Company Limited averring therein that truck No. CPM 7755 owned by the complainant was comprehensively insured vide policy No. 003/ 332/190200, 332 covering the risk from 9.9.1991 to 8.9.1992. The estimated value of the vehicle for the purpose of insurance was Rs. 2 lacs. In the intervening night of 30th and 31st March, 1992, when the truck was carrying goods on way its diesel pipe broke. Therefore, the driver of the truck asked the Cleaner to go to Indore to purchase the diesel pipe for fitting it in the truck. Then, the driver of the truck consumed the liquor and after taking meals and keeping the keys on the dash board, slept by the side of the truck on road. It is averred that when the driver was sleeping some one took away the truck and thus theft of the truck was committed. The First Information Report was lodged on the next day morning at the Police Station, Balwada where an offence under Section 379 of the Indian Penal Code was registered at Crime No. 43 of 1992. The opposite party was also intimated in writing of the theft of the truck. The Investigating Officer could not arrest the thief nor could recover the truck. Ultimately, a Final Report was filed on 31st December, 1992 in the Court of competent criminal jurisdiction. The opposite party in spite of completing all the formalities of filling-up of the claim form etc. did not settle the claim, therefore, the complainant had to file the complaint. Ultimately, the claim was repudiated on the ground that the driver of the truck was negligent in not safeguarding the security of the truck on way as he consumed the liquor and slept by the side of the truck on road by leaving the keys of the truck on dash board.

WE have heard Mr. S.K. Chawala, learned Counsel for the complainant and Mr. S.K. Menon, learned Counsel for the opposite parties and have gone through the evidence adduced by the parties. It is not in dispute that the stolen truck has not been recovered and the thief could not be arrested so far.

The risk was covered comprehensively. The claim has been repudiated on the breach of the condition of Clause (c) of the policy contained in Section I which deals with loss or damage. Clause (c) reads thus : "(c) Any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs."

UNDISPUTEDLY, the driver of the truck when the truck was stolen was not driving the truck. On the other hand, the truck was standing stationed because its diesel pipe broke. Therefore, the loss or damage suffered due to the theft of the truck, evidently cannot be said to be caused when the driver of the insured was driving the truck under the influence of intoxicating liquor. In the circumstances, the Insurance Company cannot repudiate the claim for the reason of breach of the terms and condition of the policy, that is Clause (c) of Section I, which amounts to deficiency in service. It is not the case of the opposite party that the theft was committed in connivance with the driver or the driver was himself a thief alongwith others. The complainant, therefore, under the comprehensive policy was entitled to claim reimbursement of the entire amount of loss or damage suffered upto the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf. See. the decision of the Supreme Court in New India Assurance Company Ltd. v. Smt. Shantibai, 1995 ACJ 470 and the National Insurance Company v. Jugal Kishore, 1988 ACJ 270. In the circumstances, we direct the opposite party to make the payment of the estimated value of the truck i.e. Rs. 2 lacs with its interest at the rate of 12% per annum after the expiry of the period of three months from the lodgment of the claim.

SUBMISSION of Mr. S.K. Chawala, learned Counsel for the complainant that interest be awarded at the rate of 18% per annum cannot be accepted in view of the pronouncement of the Supreme Court in United India Insurance Co. Ltd. v. M.K.J. Corporation, III (1996) CPJ 8 (SC). In para 9 the Supreme Court observed thus: "9. The next question is: what rate of interest the insured-respondent is entitled to get? In common parlance, when the insured respondent is deprived of right to enjoy his money or invest the money in business, necessarily the loss has to be compensated by way of payment of interest by the Insurance Company. We are informed that as per the directions of the Government of India the appellant-Insurance Company has no option but to invest the money in the securities specified by the Government of India under which the Insurance Company is securing interest on investment at the rate of 11.3% per annum. Under these circumstances, the appellant-Insurance Company is liable to pay interest @ 12% per annum from January 1, 1991 till date of payment. It is then contended that as per the policy, the respondent is entitled to consequential loss as per the independent policy. The Commission no doubt did not give any independent reason for the same but all the claims were heard and disposed of together. Under these circumstances, we are of the view that the claims must be deemed to have been rejected."

In the result, the complaint is allowed with the direction to the opposite party to make the payment of Rs. 2 lacs with its interest as directed above within a period of two months from the date of receipt of the copy of this order. The complainant will also get the costs of these proceedings which are quantified at Rs. 2,000/- Complaint allowed with costs.