S. Bhagat Singh                             ... Appellant
Vs.
The Oriental Insurance Co. Ltd.        ... Respondent

                                         ORDER

B.S.Yadav, J. Member

          This is a revision petition against the order of State Consumer Disputes Redressal Commission, Uttar Pradesh by which the said Commission accepted the appeal filed by the present respondent, the Oriental Insurance Co.Ltd., and set aside the order passed by the District Consumer Disputes Redressal Forum, Dehradun and dismissed the complaint filed by the present revision-petitioner, Bhagat Singh. The District Forum had ordered the Insurance company to pay to the revision petitioner, who was complainant before it, Rs.84,000/- by 31st July,1990. It was further ordered that in case the Insurance Company failed to pay the said amount by the due date, the said amount was to carry interest at the rate of 12 per cent per annum from 1st August,1990 till the date of payment.

          According to the averments made in the complaint before the District Forum, the complainant was the owner of taxi-car bearing registration No. UMT-7598. The said taxi used to ply between Dehradun and Delhi. The complainant had kept a paid driver named Bhupen Chandra Barua to ply that taxi. The said taxi was insured with the respondent Insurance Company and the current policy was valid from 20th June,1998 to 19th June,1989.  On 22nd January,1989 the taxi left Dehradun for Delhi with passengers. At Delhi, the taxi was parked at the Taxi stand in Kamla Market and remained there till 25th January,1989 as per records of that Taxi stand. On the night intervening 25th and 26th January,1989, the said taxi was hired by some passengers and left the Taxi-stand.  After that the whereabouts of taxi and the driver are not known .

          When the taxi did not reach back Dehradun, the complainant made enquiries about it and when he could not trace it, he lodged a report  with the Kamla Market police station, Delhi on 4th February,1989.  The police could not trace the driver or the taxi and issued a final untraced report on 3rd August,1989.

          In the meantime, the complainant informed the respondent Insurance company on 6th February,1989 about the loss of the taxi. On receipt of the final report issued by the police, the complainant sent it to the respondent.  One Shri U.K. Mehta, an officer from the Delhi office of the Insurance company (respondent) also made necessary investigations which were completed some four months prior to filing of the complainant in the District Forum by the complainant.  However, the Insurance company, on one pretext or the other did not indemnify the complainant in respect of the loss of the Taxi.  Finally the complainant filed the complaint before the District Forum claiming Rs.80,000/- for which sum the taxi-car was insured with the respondent plus interest at the rate of 18 percent per annum.

          The respondent Insurance company contested the revision petition and pleaded that this Commission has no jurisdiction to decide the claim of the complainant as there was no 'deficiency in service' as defined in section 2 (o) of the Consumer Protection Act,1986; that the loss of the taxi was not a case of theft but a case of criminal misappropriation or breach of trust and this risk was not covered by the policy and hence the claim of the complainant was rightly repudiated; that intricate facts were involved which required detailed evidence and, therefore, it would be proper for the parties to approach a Civil court.

          From the pleadings of the parties it is clear that the facts of the case are not much in dispute. The respondent Insurance company does not dispute the fact that the taxi-car in question was insured with them for Rs.80,000/- and the policy was in force at the relevant time.  It is also not the case of the respondent that the taxi-car was not worth that amount at the time it was got insured.  It is also not disputed that the said taxi-car left Taxi stand Kamla Market on the night intervening 25th and 26th January,1989, with passengers. As noticed earlier the case had been investigated also by Shri Mehta, an officer from the Delhi office of the respondent Insurance company. Therefore, the only questions to be considered are:

          (i) Whether the loss of the taxi-car in the circumstances narrated above is covered by the policy in question and

          ii) Whether this commission has jurisdiction to decide the present dispute

          We will take the two points in seriatim.

          The complainant has filed a copy of the Insurance policy. The relevant portion reads as follows:

          The company will indemnify the insured against loss or damage to the Motor Vehicle and for its accessories whilst thereon:

          b) By fire explosion, self-ignition or lightning or burglary, house-breaking or theft:

          c) By malicious act.

          The learned counsel for the revision petitioner argued that in present case the loss of the taxi-car would fall under the term ' theft'   and in any case it will fall under clause(c) as the loss has been occasioned by the malicious act of driver.  On the other hand learned counsel for the respondent argued that the present case is of criminal misappopriation or breach of trust by the driver.  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 misappopriate 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 taxi-car.

          In view of our above finding it is not necessary to go into the question if the loss of taxi-car falls under clause(c) of the policy quoted above.

          The next question that arises is whether the District Forum, Dehradun, had jurisdiction to try the present dispute.  Learned counsel for the respondent argued that the theft had taken place at Delhi and, therefore , the said Forum had no territorial jurisdiction to entertain the complaint. This argument has no force. The vehicle was insured at Dehradun and thus a part of cause of action accrued at that place. Hence the District Forum, Dehradun, had jurisdiction to entertain the complaint of the complainant.

           It was next argued by the learned counsel for the respondent that intricate question of facts and law are involved in this case and lot of evidence is to be led and, therefore, it is proper that claim of the complainant be adjudicated upon by a Civil Court. Fur this argument reliance was placed upon 1(1991) CPJ 234, Janta Machine Tools Vs. Oriental Insurance Co. Ltd. In that case this Commission had remarked.

          "Having regard to the facts and circumstances of this case and the nature of the controversy between the parties we consider that this is a matter that should be adjudicated before a Civil Court where the complainant as well as the respondent will have ample opportunities to examine witness at length, take out commission for local inspection etc. and have an elaborate trial of the case".

            It may be mentioned here that similar argument was advanced before the State Commission. Strangely enough that Commission accepted that argument and consequently only on that ground accepted the appeal and set aside the order of the District Forum. The case was not discussed on merits. We are of the opinion that the argument of the learned counsel for the respondent company has no force. The matter has been discussed in detail in the decision of the Commission in S.K. Abdul Sukur Vs. State of Orissa and Ors., 11(1991) CPJ 202, and  we need not dilate upon this point. The observations in Janta Machine Tool's Case have to be understood against the background of the special facts relating thereto. It was nowhere laid down in that case that in all cases where examination and cross examination of witness is involved, the proper forum for adjudication of the dispute involved in the case is only the Civil Court. It was remarked in Abdul Sukur's case (Supra) by this Commission.

            "If jurisdiction is decilined by the Redressal Forums set up under the Act in all such cases on the mere ground that examination and cross-examination of witnesses would be necessary, it would amount of unjust denial of the benefits of the Act to the aggrieved consumer by erroneous abdication of its jurisdiction by the Forums".

              As noticed earlier, in the present case the facts are not much in dispute. No fact, counter to the facts stated by the complainant in his complaint has been averred by the respondednt company. We, therefore, hold that the case quoted by the learned counsel for the  respondent is not applicable to the present case. Hence we hold that the State Commission was in error in declining to decide the appeal on the merits.

           Before parting with this case, we may notice a dishonourable act on the part of the respondent company. Before filing of the complaint before the District Forum, the respondent company had not repudiated the claim of the complainant. Subsequently a letter purporting  to be dated 30.03.1990 was sent by Branch Manager of the Dehradun branch of the respondent company to the claimant repudiating the claim. The letter was ante dated to show that the claim of the insured had been repudiated prior to the filing of the  complaint. However, the Branch Manager has put a date as"2/5" under his signatures. That letter is at page 33 of the paper book. The date in the letter is over written. Such an action on the part of the Insurance Company is highly deplorable.

        For the reasons given above, we hold that the State Commission failed to  exercise the jurisdiction vested in them. Consequently we accept the present revision petition, set aside the order of the State Commission, Uttar Pradesh and restore the order passed by the District Forum, Dehradun. The respondent company is direted to pay the costs of the present proceedings to the claimant petitioner which we assess at Rs.1,000/-.