ORIENTAL INSURANCE CO. Vs. KAUSHAL PRASAD PANDEY

JUDGEMENT

(1.) THIS is defendant's first appeal under section 96 of the Code of Civil Procedure against the judgment and decree dated 29.10.1993 whereby the suit filed by the plaintiff for payment of Rs. 50,000/ -, has been decreed by the Additional District Judge, Maihar in Civil Suit No. 1 -B of 1991.

(2.) ACCORDING to the plaintiff, he owned a jeep bearing registration No. MBA 5661 for his personal use. Plaintiff has got this jeep insured with the defendant -appellant and according to the terms of insurance it was a comprehensive one. The jeep was insured for a sum of Rs. 50,000/ - and the insurance policy was valid from 25.8.1988 to 24.8.1989. On 17.11.1988 plaintiff loaded three bags of wheat and two bags fertilizer in the jeep and asked the driver Jumman Shah who had a valid licence to proceed to Jurra. According to the plaintiff at 9.30 a.m. on the said day the driver met with three persons who were coming after the Durshan of Godess Sharda Devi. Those three persons were known to the driver. According to the plaintiff those persons asked the plaintiff's driver that their vehicle had break down at Mangawan, Rewa and accordingly the driver was requested to drop them at that place. According to the plaintiff the driver accepted the request of the worshipers and after dropping the wheat and fertilizer proceeded towards Mangawan. However, the jeep did not return till 18.11.1988. Then the plaintiff lodged a report at the Police Station. On 19.11.1988 the driver of jeep returned and stated that those persons gave the driver something to eat which contained intoxicant and after eating the same he became unconscious and they have taken away the jeep. On the basis of the aforesaid pleadings the plaintiff prayed for a declaration that he is entitled for payment of Rs. 50,000/ - from the Insurance Company.

(3.) PLAINTIFF in support of his case has examined two witnesses. PW 1 Kaushal Kumar Pandey the plaintiff himself has supported his case in his evidence. In paragraph 6 of his cross -examination he has denied the suggestion of the defendant that the jeep was being run as taxi. PW 2 Jumman Shah is the driver who has stated that while he was carrying three bags of wheat and two bags of fertilizers of the plaintiff in the jeep he met with three persons at the Bus Stand of the State Road Transport Depot. According to this witness as he has seen those persons at the place of the plaintiff who works as Pujari also, he stopped the vehicle. These persons stated to this witness that their vehicle had break down at Mangawan and accordingly a request was made to drop them at that place. At this, this witness has stated that he was going to Jurra to deliver wheat and fertilizer and thereafter they will be dropped at Mangawan. At this those persons stated that if this witness was going towards Rewa, they may also be allowed to go in the jeep. According to this witness he allowed those persons to sit in the jeep. This witness has further stated that he delivered the wheat and fertilizer at Jurra and thereafter took those persons to Mangawan. There those persons gave him PRASAD of Godess Sharda Devi which he ate. According to this witness he became unconscious and when he got senses next day he found the vehicle missing. This witness in paragraph 6 of his cross -examination also denied the suggestion of the defendant that the vehicle was used as taxi or any income is received from the same. No witness has been examined by the defendant.