Reliance General Insurance Co. ... vs Mohd. Shafique & Another
2018 Latest Caselaw 3284 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.37
 

 
Case :- WRIT - C No. - 20438 of 2015
 

 
Petitioner :- Reliance General Insurance Co. Ltd. & Another
 
Respondent :- Mohd. Shafique & Another
 
Counsel for Petitioner :- Pranjal Mehrotra
 
Counsel for Respondent :- M.S. Khan,S.C.,Sanjeev Singh
 

 
Hon'ble Siddhartha Varma, J.

This writ petition has been filed against an award of the Permanent Lok Adalat, Allahabad dated 18.12.2014. The respondent no.1 had made a claim that as his Truck No.U.P.70 AT 6443 which was insured with the petitioner was taken away by his driver Shiv Kumar Maurya on 8.10.2012 and had not come back he should be compensated. After lodging a First Information Report and after the rejection of the claim of the respondent by the petitioner on 31.12.2013, the respondent had filed a claim before the Permanent Lok Adalat by means of Complaint Case No.97 of 2014. This Complaint Case was allowed by the Permanent Lok Adalat and the respondent no.1 was awarded a sum of Rs.7,24,667/- along with the cost of litigation of Rs.1000/-. It was further provided in the award that from the date of the filing of the Suit and till the actual payment of the claim, 9% simple interest would be payable to the complainant (respondent no.1 here).

The petitioner-Insurance Company has filed the writ petition challenging the award and has essentially raised the following grounds :

(i) The claimant i.e. respondent no.1 in this writ petition had filed a First Information Report under section 406 I.P.C. and not under section 378 I.P.C. and, therefore, no compensation was payable to him as the vehicle was insured against theft and not against criminal breach of trust.

(ii) The Permanent Lok Adalat had the jurisdiction only to deal with cases upto Rs.10 lacs and when the complainant had made a claim of Rs.11,52,450/- then the claim was not maintainable before the Permanent Lok Adalat.

(iii) Admittedly the vehicle was lost on 8.10.2012, the FIR was lodged on 20.3.2013 and the claim was made by means of a notice dated 28.12.2013 and, therefore, the claim was highly belated.

(iv) Claim petitions which could have been filed before the Motor Accident Claims Tribunal were not maintainable before the Permanent Lok Adalat and, therefore, the Permanent Lok Adalat had no jurisdiction to deal with the matter.

Learned counsel for the respondent no.1, however, in reply, made the following submissions :

(i) Even though the respondent no.1 had made the claim on the basis of an FIR which was lodged under section 406 IPC, in effect the claim was made on the basis of the fact that there was a theft. Theft has been defined under section 378 IPC. Learned counsel submitted that apart from the ingredients which are found from the reading of section 378, to understand what "theft" is, various illustrations have been provided in the IPC and if Illustration - D is seen, then it would be clear that when the driver of the claimant runs away with the vehicle and does not come back, then it was in fact a theft which was committed by the driver and, therefore, he submits that the mere mention of section 406 in the FIR was of no consequence. In fact the driver had committed a theft.

Since the learned counsel for respondent no.1 took the Court through section 378 IPC and the relevant illustrations, section 378 IPC and Illustration-D are being reproduced hereasunder :

"378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

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(d) A, being Z's servant, and entrusted by Z with the case of Z's plate, dishonestly runs away with the plate, without Z's consent. A has committed theft."

Learned counsel for respondent no.1, therefore, submits that it was not in the domain of the Insurance Company to have rejected the claim of respondent no.1 simply on account of the fact that the complainant had mentioned in the FIR that a crime had been committed by the driver under section 406. He submitted that in fact theft was committed by the driver as he had disappeared with the vehicle of the complainant.

(ii) As regard the lack of pecuniary jurisdiction with the Permanent Lok Adalat, learned counsel for respondent no.1 submitted that the petitioner now could not in the writ petition raise the question of lack of pecuniary jurisdiction. Learned counsel read out section 21(2) of the C.P.C. and submitted that the question of lack of pecuniary jurisdiction should have been raised at the very first instance or at the time when issues were being framed. He submits that when neither was the question of lack of pecuniary jurisdiction raised at the first instance nor at the time of the framing of the issues, then now the petitioner could not raise this question in the writ petition. He further submits that had there been any failure of justice when the matter was heard by the Permanent Lok Adalat, then also the question of lack of pecuniary jurisdiction could have been seen by this Court but as no failure of justice has been there on account of lack of jurisdiction, the petitioner, now, could not raise the issue that the Permanent Lok Adalat lacked the pecuniary jurisdiction. In this regard, learned counsel for respondent no.1 relied upon Sushil Sharma Vs. 13th Additional District Judge, Ghaziabad & Ors., 2000 ALJ 1975; Indermani Kirtipal Vs. Union of India & Ors., AIR 1996 SC 1567 and Brij Kishore Jain Vs. IInd Additional District Judge, Aligarh & Ors., 1985 AWC (11) 742.

(iii) With regard to the complaint having been made very belatedly, learned counsel for respondent no.1 submitted that the fact of the matter was that the vehicle was lost on account of a theft committed by his driver and, therefore, there was a little delay. In this regard, learned counsel for respondent no.1 relied upon a judgment of the Supreme Court in Ravi Vs. Badrinarayan & Ors. reported in (2011) 4 SCC 693 and submitted that on account of delay in lodging the FIR or the claim, the claim could not be dismissed. He submits that definitely there was a hope that the driver would come back with the vehicle but when the driver never came back with the vehicle, he concluded that it was a case of theft. What is more he submits that it was not for the Insurance Company to judge whether there was delay. What had only to be seen was that if the vehicle was lost and if the same was insured, then the compensation had to be paid to the claimant.

(iv) With regard to the maintainability of the claim before the Permanent Lok Adalat, learned counsel for respondent no.1 had submitted that admittedly under the Legal Services Authority Act, 1987, under section 22(c)(8), a Permanent Lok Adalat could decide a dispute with regard to public utility services mentioned under section 22-A(b)(vi). In this regard, learned counsel for respondent no.1 also relied upon a decision of the Chhattisgarh High Court in Bajaj Allianz General Insurance Co. Ltd. Vs. Dasru Patel & Ors. reported in AIR 2011 Chhattisgarh 149.

Having heard learned counsel for the parties, I am of the view that the award dated 18.12.2014 cannot be interfered with. So far as the question of pecuniary jurisdiction is concerned, admittedly the petitioner did not raise the same at the first instance and neither was any issue framed regarding this. Also, the petitioner has not been able to point out if there was any miscarriage of justice because of the fact that there was a lack of pecuniary jurisdiction. The vehicle was admittedly insured. When the complainant had stated that the driver had run away with the vehicle and was not to be found again, then it was a case of theft and the respondent had to be compensated. It mattered little that the First Information Report was lodged for Criminal Breach of Trust.

So far as the delay in filing of the complaint/claim is concerned, suffice it to say that if a theft had occurred and if the vehicle was stolen and it was insured then the Insurance Company had to compensate the insured i.e. respondent no.1.

Further more section 22-A(b)(vi) of the Legal Services Authority Act, 1987 makes it clear that a claim petition with regard to insurance services was definitely maintainable before the Permanent Lok Adalat.

The writ petition is, accordingly, dismissed.

Date: 24.10.2018

GS

(Siddhartha Varma, J.)