RATUL DAS Vs. ORIENTAL INSURANCE CO LTD

JUDGEMENT

(1.) THE appellant/insured, the owner of the motor vehicle bearing registration No. AS-02/a-8159 (Tata Sumo), which was used as commercial vehicle for carrying passengers, lodged a First Information Report on 26. 5. 2003 in Nagaon Police Station alleging that on 24. 5. 2003 the said vehicle was hired by four passengers at about 10 AM from the taxi stand near Nagaon United Bank and proceeded to Golaghat driven by his driver Sri Hemanta Gogoi, but the vehicle did not return and inspite of his enquiry he could not get any information of the whereabout of the said vehicle as well as the driver, which leads to the suspicion that the said passengers might have taken away the vehicle along with the driver in the guise of passengers. On the basis of such report, Nagaon Police Station Case No. 449/2003 (G. R. Case No. 896/2003) under Sections 406/420, IPC was registered. The appellant, who took out the policy in respect of the said commercial vehicle belonging to him from the respondent/insurance Company, which was valid from 1. 2. 2003 to 31. 1. 2004, in terms of which the respondent/insurance Company assured the insured to indemnify against the lost or damages to the vehicle insured and or its accessories due to the burglary, house breaking or theft, apart from covering the other risk, informed the Insurance Company about loss of the said vehicle. The Branch Manager of Insurance Company vide communication dated 01. 8. 2003 informed the appellant/insured to file the claim form duly completed and signed enclosing therewith the original policy as well as the final police investigation report from the Court, the original registration certificate etc. , which was duly complied with by the appellant. Meanwhile, the investigating Agency on completion of the investigation in the aforesaid Police Station case, submitted the report in final form in the Court of the learned Chief Judicial Magistrate, Nagaon under Section 173 of the Code of Criminal Procedure on 30. 8. 2003 stating that though the case registered under Sections 420/406/379, IPC is true but they could not gather sufficient proof against the arrested suspects. The learned Magistrate vide order dated 24. 9. 2003 accepted the report in final form, upon perusal of the materials available in the case diary and discharged the accused persons. The respondent/insurance Company in spite of receipt of all the documents, as sought for vide communication dated 1. 8. 2003, including the report in the final form submitted under Section 173, Cr PC and also the order of the learned Magistrate dated 24. 9. 2003, repudiated the claim of the appellant for compensation for the loss suffered by him, vide communication dated 8. 6. 2004, on the ground that the driver has committed breach of trust and hence no compensation can be paid, the policy having not covered any liability occurred due to breach of trust committed by the driver. The appellant filed the writ petition being W. P. (C) No. 5943/2004 praying for directing the respondent/insurance Company to settle the claim and to pay a sum of Rs. 3,48,000/- being the insured value under the policy for the loss of the vehicle with interest. The learned Single Judge, upon hearing the learned counsel for the parties vide judgment and order dated 15. 6. 2006 dismissed the writ petition on the ground that it involves the disputed question of fact as to whether there was theft of the vehicle or breach of trust of the driver. Hence, the present appeal.

(2.) WE have heard Mr. K. K. Mahanta, the learned Senior counsel for the appellant and Mr. A. Ahmed, the learned counsel appearing on behalf of the respondent/insurance Company.

(3.) MR. Mahanta, the learned Senior counsel for the appellant referring to the contract of insurance, the First Information Report filed in Nagaon Police Station as well as the report in final form submitted by the Investigating Agency, which was accepted by the learned Chief Judicial Magistrate, Nagaon, has submitted that it is apparent that the vehicle in question has been unlawfully taken away by some unidentified persons along with the driver, belonging to the appellant, thereby depriving him of the vehicle permanently and such taking away of the vehicle belonging to the appellant having not been disputed by the respondent/insurance Company, the claim of the appellant cannot be repudiated on the ground that there was breach of trust by the driver, more so when the Investigating Agency in the report submitted in the final form has informed the Court that the case registered under Sections 406/420/379 IPC was true but no evidence could be collected. According to Mr. Mahanta, in a claim for the loss suffered by an insured, under a contract of insurance, he need not prove the theft of the vehicle as required under the provisions of the IPC and what required to substantiate such claim is to prove taking away the property of insured by someone with the intention of depriving the true owner of it, which having not been disputed by the Insurance Company, the appellant is entitled to compensation under the contract of insurance. Mr. Mahanta, therefore, submits that dismissal of the writ petition by the learned Single Judge on the ground that it involves the disputed question of fact, needs to be interfered with and the direction may be issued to the respondent/insurance Company to pay the amount of compensation payable under the contract of insurance.