w w w . L a w y e r S e r v i c e s . i n



Samri Devi Shaw v/s New India Assurance Co. Ltd., Mumbai & Others


Company & Directors' Information:- THE NEW INDIA ASSURANCE COMPANY LIMITED [Active] CIN = L66000MH1919GOI000526

Company & Directors' Information:- THE NEW INDIA ASSURANCE COMPANY LIMITED [Active] CIN = L99999MH1919GOI000526

Company & Directors' Information:- THE NEW INDIA ASSURANCE COMPANY LIMITED [Active] CIN = U99999MH1919GOI000526

Company & Directors' Information:- D. E. SHAW INDIA PRIVATE LIMITED [Active] CIN = U72200TG1996PTC025388

Company & Directors' Information:- DEVI CORPORATION PRIVATE LIMITED [Active] CIN = U16000AP2011PTC076133

Company & Directors' Information:- M C SHAW PVT LTD. [Active] CIN = U51228WB1989PTC046980

Company & Directors' Information:- W C SHAW PVT LTD [Active] CIN = U51909WB1942PTC010901

Company & Directors' Information:- M L SHAW PVT LTD [Active] CIN = U51909WB1934PTC008071

Company & Directors' Information:- SHAW & CO. PVT LTD. [Strike Off] CIN = U51909WB1953PTC021086

Company & Directors' Information:- R SHAW AND CO. LTD. [Dissolved] CIN = U99999MH1922PTC001006

    Revision Petition No. 3434 of 2009

    Decided On, 15 June 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Petitioner: Nemo. For the Respondents: Navdeep Singh, Advocate.



Judgment Text


Oral:

The complainant/petitioner purchased a tanker and got the same insured with the respondent New India Assurance Co. Ltd. The driver of the tanker left Paradeep Port along with the empty tanker but did not reach the destination. An FIR under Section 407, IPC was registered against him. The tanker could not found nor was the driver found. The complainant lodged a claim with the insurer which was rejected primarily on the ground that this was not a case of theft and, therefore, the claim was not covered under the insurance policy taken by the complainant.

2. Being aggrieved from the rejection of the claim the complainant approached the District forum by way of a consumer complaint. The complaint was resisted by the insurer primarily on the ground that it was theft which was covered under the insurance policy and since this was not a case of theft but was a case of criminal breach of trust, the claim was not payable.

3 The complaint was dismissed by the District Forum. Being aggrieved from the order of the District Forum the complainant approached the concerned State Commission by way of an appeal. The appeal having been dismissed, she is before this Commission.

4. The issue involved in this Petition came up for consideration of this Commission in New India Assurance Co. Ltd. Vs. Neerja Singh IV (2018) CPJ 93 (NC). In the above-referred case the insured truck was taken by the driver, who thereafter could not be located and an FIR against him was registered. The claim lodged by the insured was rejected on the ground that the driver having committed criminal breach of trust in respect of the insured vehicle, the loss was not covered under the insurance policy. Rejecting the contention this Commission inter-alia held as under:-

“6. As far as the second plea taken by the insurer is concerned, it has repeatedly been held by this Commission, that such a case would constitute theft in terms of the definition given in Section 378 of the Indian Penal Code though it may also constitute a criminal breach of trust. Reliance in this regard is placed upon the decision of this Commission in Revision Petition No.2601 of 2017 – Oriental Insurance Co. Ltd. Vs. Dhanraj Surana, decided on 31.10.2017.

8. The decision of this Commission in Dhanraj Surana (supra), to the extent it is relevant reads as under:-

“4. The only question which arises for consideration in this case is as to whether this was a case of theft of the vehicle or not. If it was a case of theft, the claim in terms of the insurance policy was payable to the complainant. An identical issue came up for consideration of this Commission in The Oriental Insurance Company Ltd. Vs. Ms. Paramjit Kaur, Revision Petition No.2159 of 2015, decided on 15.12.2015 and the following view was taken :-

“Admittedly, the vehicle was insured inter-alia against loss on account of (i) burglary, housebreaking or theft, (ii) by malicious act. Therefore, the question which arises for consideration is as to whether the loss of truck in the fact and circumstances of the case, can be construed to be covered by theft or by malicious act or not? An identical issue came for consideration before this Commission in S. Bhagat Singh vs. The Oriental Insurance Co. Ltd., R.P. No.7 of 1991 decided by Bench of four Members on 03.10.1991. In the above referred case, the taxi owned by the complainant which used to be driven by the driver employed by him left with some passengers in it, but thereafter the whereabouts of the taxi and the driver could not be known. Intimation having been given to the insurance company, the matter was investigated by the insurer. No claim however was being paid. Being aggrieved, the complainant approached the concerned District Forum by way of a complaint. The complaint was resisted on the ground that it was a case of criminal misappropriation or breach of trust and not a case of theft. Rejecting the contention of the insurance company, this Commission inter-alia held as under:-

“After considering the arguments of the learned counsel for the parties we have come to the conclusion that the present case is one of theft. Criminal breach of trust is defined in sec.405 of the Indian penal code. There is nothing on the record to show that the driver had any dishonest intention to misappropriate or convert to his own use the taxi-car when he left Taxi stand Kamla Nagar Market on the night in question with passengers in it. It is possible that the driver might have been murdered or relieved of the taxi by the passengers. It was for the respondent company to allege and prove that the case falls under sec.405, Indian Penal Code. There is the bare allegation of the respondent company that the case is of criminal misappropriation or breach of trust. The case had been investigated by an officer of the respondent company. It has not been stated by the company that said investigation revealed facts contrary to the facts alleged by the complainant.

Even if it is assumed that the driver dishonestly took away the taxi-car, even then the case would fall under sec.378, Indian Penal Code wherein ‘theft’ has been defined. The present case is fully covered by illustration (d) appended to that section. The said illustration reads as follows:

d) A, being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly runs away with the plate, without Z’s consent. A has committed theft. In the present case the driver was entrusted with the taxi-car. He did not take it back to Dehradun but has gone away somewhere either with the passengers or after they had alighted from it on way to Dehradun. As noticed earlier, the taxi-car was to ply only between Dehradun and Delhi. Thus the driver in the present case will be deemed to have committed theft of the tax-car.”

8. The learned counsel for the petitioner has referred to the decision of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Ishar Das Madan Lal, (2007) 4 Supreme Court Cases 105. In the case before the Hon’ble Supreme court, the respondent, which was a Jeweller had lodged a claim alleging theft of jewellery by a customer to whom the jewellery was temporarily handed over by the complainant. The question before the Hon’ble Court was as to whether the handed over the jewellery to a customer amount to entrustment. Ruling in favour of the complainant and against the insurance company, the Hon’ble Supreme Court inter-alia held as under:-

“12. The word 'entrust' would imply giving responsibility to a person upon whom the owner has confidence. It envisages establishment of a relationship. When a customer enters into a jewellery shop, as of necessity, the owner or his agent must allow him to inspect the merchandise, the customer intends to purchase. For the said purpose possession in the legal sense is not handed over. The owner or his agent does not loose complete control thereover.

14. Mr. Vishnu Mehra, the learned counsel appearing for the appellant has relied upon the meaning of the word 'entrust' as contained in Black's Law Dictionary, 8th Edn. and Webster's Universal Dictionary.

15. In Black's Law Dictionary, the word 'entrust' has been defined as under :

"To give (a person) the responsibility for something after establishing a confidential relationship."

16. In Webster's Universal Dictionary meaning of the word 'entrust' reads as under :

"To confer as a responsibility, duty etc. to place, something in another's care."

17. Apart from the fact that the said meaning of the term “entrustment” goes against the submission Mr. Mehra, we may notice that in Black's Law Dictionary the word “entrusting” in commercial law has been described as:

"The transfer of possession of goods to a merchant who deals in goods of that type and who may in turn transfer the goods and all rights to them to a purchaser in the ordinary course of business." Transfer of possession of goods, therefore, is a sine qua non for entrustment. The person must be handed over the possession of the property. Illustration (d) appended to Section 378 IPC envisages a situation of this nature. It by no stretch of imagination would have contemplated a situation where an unknown customer would have committed theft.”

9. In the case relied by the learned counsel for the petitioner, the Hon’ble Supreme Court was not concerned with the question as to whether a case of the driver of a vehicle found missing along with vehicle would constitute theft or criminal breach of trust. On the other hand, the above referred decisions of this Commission directly cover a case where the driver takes a vehicle and then does not return. Moreover, this Commission has also taken the view that

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such a case will also amount to a malicious act and therefore the loss would be covered under the insurance policy taken by the owner of the vehicle. Since I am bound by the previous decisions of this Commission rendered by a Larger Bench, it is not open to me to take a contrary view unless the aforesaid decisions are shown to be per incuriam. The petitioner however has failed to show that the aforesaid decisions rendered by the Larger Bench of this Commission are per incuriam.” 5. In view of the above-referred decision of this Commission the insurer was not justified in rejecting the claim. The impugned orders are, therefore, set aside and the insurer is directed to settle the claim as per the terms of the insurance policy within 8 weeks from today. The complaint/petitioner shall also be entitled to interest @ 9% p.a. w.e.f. six months from the date of the lodging of the claim till the date of the payment. Revision Petition disposed of accordingly.
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