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Judgment
-ACCEPTING the case of repudiation of the claim made by the appellant herein by the respondent Insurance Company on the ground that no case of theft of the vehicle insured with it was made out by the complainant who is the appellant herein the lower Forum, Ernakulam passed the impugned order in OP 645/2003 and aggrieved by that order this appeal has been preferred.
WE have heard the Counsel for the appellant on the question whether the appeal is to be admitted or not. The Counsel relying on a decision rendered by the National Commission in Oriental Insurance Company Ltd. and Another v. Rohit Kumar Gupta, 1994 (1) CCC 328 (NS) and also relying on the illustration (d) of Section 378 of the IPC contended that the lower Forum erred in coming to the conclusion that no case of theft of the vehicle insured with the respondent was made out and he vehemently contended before us that prima facie case is made out to admit the appeal. After hearing the learned Counsel for the appellant and also on carefully going through the materials produced before the Forum below and the pleadings of the parties we are of the view that the lower Forum has not committed any error in concluding that no case of theft is made out by the appellant and it rightly came to the conclusion that the claim was validly repudiated by the respondent Insurance Company.
The case pleaded by the complainant/appellant in the Forum below was that complainant is the owner of the Toyota Qualis bearing registration No. KL/7/ag/4563 and one Mr. Babu G. has hired the vehicle from the complainant as per hire purchase agreement dated 1. 2. 2002. As per the terms of the hire purchase agreement complainant allowed the vehicle to be registered in the name of Babu G. The vehicle was insured with the opposite party for Rs. 4,00,000 as per policy No. 101303/31/01/14717. Hire purchase of the vehicle is specifically noted in the insurance policy and the insurance policy is issued subject to IMT endorsement No. 10. It is alleged in the complaint that during the currency of the insurance policy the vehicle was stolen from the possession of Babu G. on 30. 4. 2002 at 5 p. m. and the offence of commission of theft was intimated to the police and to the insurer. Kalamassery police registered a case as Crime No. 265/2002 and after due investigation it filed a report before the Judicial 1st Class Magistrate Court II, Aluva to the effect that the vehicle could not be traced out.
IT is alleged that the facts and circumstances of the case clearly show that the offence committed is theft. The claim was repudiated by the opposite party Insurance Company on the ground that case registered by the police on the basis of complaint made by Sri Babu G. is under Section 420, IPC and no complaint is made by him alleging commission of theft. It is not liable to pay the amount claimed by the complainant under the policy on the ground that no theft was committed as alleged in the complaint.
AS pointed out earlier by us the lower Forum accepted the case of the opposite party/respondent herein and non suited the complainant. We have gone carefully through the materials produced by the parties before the lower Forum and at the outset itself we may state that there is no ground to disagree with the order passed by the Forum below and no ground is made out to admit appeal. We shall proceed to give our reasons. The opposite party/respondent produced before the Forum below Ex. D3 the photocopy of the First Information Report filed by Kalamassery police in Crime No. 265/2002 and it could be seen from Ex. B3 (a) that a private complaint was filed before the Judicial First Class Magistrate-Court-II, Aluva by Babu G. the registered owner of the vehicle involved (insured with the respondent) against one Joseph, s/o Varghese, Kalappurakkal House, Edappally, Elamakkara, Kochi-26 under Section 420, IPC. The allegation made in that complaint is that on 30. 4. 2002 the accused made him to believe that the vehicle involved (belonging to him) would be returned immediately and the vehicle was taken out from the possession by the accused with his (complainant''s) permission for accused''s personal use, even after expiry of a number of days the vehicle was not returned to him. On making inquiry it was revealed that with the dishonest intention of appropriating or grabbing the vehicle he committed the offence of cheating punishable under Section 420, IPC. The learned Magistrate forwarded the complaint to the police for registering a case and investigation under Section 156 (3) Cr. P. C. On receipt of the complaint the police registered a case as Crime No. 265/2002 under Section 420, IPC against the accused in the complaint. It could be seen from Ex. A4 produced by the complainant himself that the case was registered by the police under Section 420, IPC against accused in Crime No. 265/2002 of Kalamassery Police Station and police filed a report before the Magistrate Court stating that the case may be included in the list of undetected cases on the ground that investigation so far conducted disclosed that the address of the accused given was not correct and police was not able to apprehend the accused nor trace out the vehicle involved in the commission of crime. For our purpose it is necessary to consider the definition of theft under Section 378, IPC and the theft is defined as under: theft: Whoever, intending to take dishonestly any movable 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. It is not necessary for our purpose to extract here the explanation and illustrates except illustration (d): Illustration (d) reads thus: (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. It is plainly clear from Section 378, IPC for making out an offence of theft the ingredients to be made out are, (1) intention to take dishonestly and movable property out of the possession of a person, (2) the property is to be taken out of the possession without that person''s consent and (3) there should be moving of the property for the purpose of such taking. Here the assertion made in the complaint filed by Mr. Babu G, is that it was with his consent the vehicle involved was taken out from his possession by the accused and the one of the essential ingredients for making out the offence of theft is absent. A person who takes out from the possession of a person a movable property with that person''s consent cannot be held to have committed the offence of theft. Further the definite case of Babu G. is that accused committed offence punishable under Section 420, IPC. Theft is a distinct offence and the offences of theft and cheating are not one and the same offence.
INGREDIENTS required to be proved to make out an offence of cheating are: 1. deception of any person and thereby 2. (a) fradulently or dishonestly inducing that person- (i) to deliver any property to any person or (ii) to consent that any person shall retain any property, or
(b) intentionally inducing that person to do or omit to do anything which if he were not so deceived and which act or omission causes or is likely to cause harm to that person in body, mind, reputation or property.
Thus it is clear that there is no material before us to prove a case that the theft of the vehicle was committed and the assertion made in the affidavit on behalf of appellant that theft was committed cannot be accepted. Further by producing Ex. A3 complainant himself produced material to show that the case was registered by the police against the accused under Section 420, IPC. The illustration (d) is not attracted to the facts of the case on the ground that it is clear from the illustration that the entrustment of the plate with A (Z entrusted with the care of Z''s plate with A) who is Z''s servant and A dishonestly ran away with the plate without Z''s consent. Thus it is clear that there was master and servant relationship between Z and A and A dishonestly ran away with the plate without Z''s consent. In such a case the offence of theft is committed. Here in the instant case the vehicle was taken out by the accused with the consent of Babu G. and Babu G. permitted the vehicle to be taken out of his possession by the accused against whom complaint is filed by him and therefore we cannot hold that offence of theft was committed. The decision relied on by the appellant rendered by the National Commission is also distinguishable on facts and not attracted to the facts of the case on hand on the ground that the facts of that case would reveal that the vehicle was entrusted by the owner with the driver for playing it as a taxi. Thus it is clear that there was master and servant relationship between the driver and owner and the possession continued with the owner, the vehicle was entrusted with the driver for plying it as a taxi. It is clear from the facts of that case that the driver disappeared with the vehicle not with the consent of the master. Therefore, the offence of theft was committed and here the facts are distinguishable. Accused in the complaint of Babu G. took the vehicle from Babu G. ''s possession with his consent and possession of the vehicle by the accused was with the consent of Babu G. He had not taken away the vehicle without Babu G''s consent. It is clear from the policy produced that the opposite party is liable for the claim made under the policy only if commission of theft is proved and as the complainant/appellant failed to prove a case of commission of theft. We have to hold that there is no ground to interfere with the order passed by the lower Forum. Lower Forum rightly dismissed the complaint. There is no ground to admit the appeal and appeal is not admitted and dismissed. Appeal dismissed.