Divisional Manager, New India Assurance Co.Ltd vs ABAKASH BAI

THIS appeal is directed against the final order of the District Forum. Sundargarh-II at Rourkela passed in C.D. Case No. 405 of 1993 which was renumbered as C.D. Case No. 155 of 1996 after transfer. The present respondent as complainant in the said case filed the complaint case alleging deficiency in service on the part of the Insurance Company which is the appellant in the present appeal. The complainant''s case is that he is the owner of an auto-rickshaw bearing Registration No. OR-14-6009. It was insured with the appellant. During the period covered by the insurance policy the vehicle was stolen on 11.6.1992 while it was in the custody of the driver for which the complainant lodged one FIR at the Plant Site Police Station, Rourkela.The case was registered under Sections 379/34, IPC. The police after investigation submitted a charge-sheet against the persons who were found to be accused in the occurrence of theft. But their whereabouts could not be traced out as they had absconded. The complainant thereafter filed an application praying for compensation before the Insurance Company (the present appellant). His grievance is that the Insurance Company did not take notice of his demand nor even responded to the legal notice sent to them. The complainant has therefore filed this case claiming the insured value of the vehicle amounting to Rs. 39,000/- (Rupees thirtynine thousand) alongwith interest at the rate of 12 % per annum and further claiming Rs. 10,000/- (Rupees ten thousand) as compensation. He has also prayed for cost of Rs. 500/- (Rupees five hundred).

THE present appellant filed their show cause before the District Forum denying the allegation of theft but admitted the fact of insurance and the ownership of the complainant in respect of the aforesaid vehicle. It was stated in the show cause that the loss of the vehicle cannot be attributed to theft under law inasmuch as the driver of the vehicle made over the key to unknown persons who were passengers in the said auto-rickshaw. THEy asserted that the complainant is not entitled to any relief at all. The District Forum after hearing both parties and considering the evidence placed before it came to a conclusion that the driver of the vehicle, namely. Ram Kumar Sahoo carrying two passengers was returning from Lathikata to Rourkela. On the way the driver wanted to take his meals and went to a hotel named Anurag with the passengers. At the same hotel these persons asked for me key of the tempo and the driver handed over the key to them. Thereafter they fled away with the vehicle. The District Forum after coming to this conclusion further observed that the handing over of the key to those persons was when the driver was drunk. But there being nothing on record that he did so with is honest intention to misappropriate or to convert the vehicle for his own use, it must be taken that it was a case of theft. In the conclusion the District Forum ordered that the present appellant is to pay the insured amount of Rs. 39,000/- (Rupees thirtynine thousand) with interest at the rate of 12% per annum from the date of the claim til1 realisation within thirty days from the date of receipt of the order and also awarded a sum of Rs. 1,000/- (Rupees one thousand) as compensation within that time. Hence this appeal.

We have heard the learned Counsel for both parties at length. The main question for decision in the present case is as to whether it was a case of theft and covered by the policy of insurance. The alleged theft is said to have occurred on 11.6.1992 at about 11 a.m. on 12.6.1992 the complainant himself submitted a written complaint before the Inspector-in-charge of the Plant Site Police Station which was treated as an FIR. As a matter of fact that is the first document informing about the theft of the vehicle by the complainant himself. In the said FIR it has been stated that on 11.6.1992 at about 9.15 p.m. in the night the driver of the vehicle came and informed him that two persons who had reserved the tempo had taken it away deceitfully after giving him heavy drinks. After giving him drinks they also called him to take food in a hotel. When the driver was sitting for the food to be served to him, those two persons who are unknown to the driver asked him for the key of the vehicle on the plea that they will go and fetch mangoes. After taking the key from him, they fled away with the tempo. The rest of the descriptions in the FIR may not be very much relevant for the present purpose. The averments made in the FIR clearly show that the vehicle was not taken away by those two unknown persons without the knowledge and consent of the complainant''s driver. As per the FIR, the driver gave the key of the tempo to those persons who according to him were not known to him except that they were passengers who had reserved the auto. Whether the driver was drunk or was in his full senses while making over the key to those persons is in our opinion irrelevant for the purpose of finding whether there was theft of the tempo or not. Even if the driver in the state of drunkenness made over the key to those two unknown persons that also amounts to careless handling of the vehicle. What intention he had while making over the key to the unknown persons is not necessary to be probed into. From the events narrated in the FIR it is impossible to conclude that it was a case of theft coming within the definition of the word given in the Indian Penal Code. In the aforesaid circumstances, the loss of the vehicle cannot be covered by the policy of insurance and therefore the decision of the District Forum is not supportable.

IN the result, we allow this appeal and set aside the impugned order. Appeal allowed.