ORIENTAL INSURANCE CO LTD Vs. UTTAM CHAND

JUDGEMENT

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

(2.) 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 Sec.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 Sec.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.

(3.) 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.