The complainant in order to earn his livelihood by way of self employment purchased a truck bearing Regd. No. WB-55-4488 (vide Annex 2) by taking loan from O.P. 2 and have been repaying the loan installments regularly (vide Annex 1). Said vehicle was insured with O.P. 1 which issued a policy covering a period from 12/12/12 to the midnight of 13/12/13 (vide Annex 4).

On 19/2/13 said truck started from Adhunik Alloyes Ltd, Kendra, Jamshedpur, loaded with sponge iron to deliver the same to Bhutan Steel Ltd, Bhutan. The vehicle was being driven by Raju Bauri, the regular driver of the complainant. On reaching at Purulia said driver came to know that one of his near relative has died and he expressed his unwillingness to drive the vehicle to Bhutan. Hr deputed one Asanul Haque @ Guddu, a person well known to the complainant whom the complainant occasionally used to depute to drive the vehicle. Accordingly, the complainant handed over said vehicle loaded with sponge to said driver Guddu to drive the vehicle.

On 10/3/13 the complainant over telephone came to know from Bijendra Upadhyay, the consignee of the good, that the vehicle did not reach Bhutan where usually it takes about 15 days to reach Bhutan. Attempt to contact the driver Guddu over cell phone failed.

Then the complainant and said consignee of the goods went to Purulia P.S and narrated the incident and as per advice of O.C Purulia (Town) P.S, the complainant and the consignee of the goods tried to detect the location of the truck and position of the goods and could detect that said driver Guddu has sold some sponge iron in a Kabbedi Khana of Promod Singh of Ladhurka under Hura P.S. They also came to know that said Guddu, Promod Singh and another has sold entire quantity of the goods and then loaded some materials in the truck from Rajigaung. Dist. Burdwan.

Accordingly, the consignee of the goods lodged written complaint at Hura P.S. and a case bearing Hura P.S Case No. 24/13 dated 14/3/2013 u/S 407 IPC was registered. Despite attempt, the location of the truck could not be detected leading to the belief that the same has been stolen with an intention to sell it out. It was thought that the truck would be recovered during investigation but it did not so happen. The complainant submitted claim before O.P. 1 which was repudiated vide letter dated 13/8/14. Hence the case.

Having denied all the material allegations the O.P. 1 contested the case by filing written version contending inter alia that the story of alleged theft of truck is not true. It is further contended that though the alleged theft took place on 19/2/13 yet the FIR was lodged only on 14/3/13 and the insurance company was informed at a very delayed stage and the claim petition was submitted 63 days after the alleged theft and all these are violative of terms and conditions of the insurance policy. Accordingly, a prayer for dismissal has been made.

The O.P.2 filed the written version wherein all the material allegations have been denied. It is contended that out of the loan taken by the complainant from this O.P. installments have been paid upto 31/5/13 and the amount of outstanding loan is at Rs. 226019.15. It is further averred that this O.P. has no concern with the story of alleged theft of the truck but it is entitled to recover the entire outstanding loan amount. Hence the prayer for dismissal.

Only point for consideration is whether the complainant is entitled to get the relief as prayed for?

Decision with reason

Admittedly, the complainant has purchased a truck bearing Regd. No. WB-55-4488 by taking loan from O.P. No. 2 and there is still some outstanding amount yet to be paid. Undisputedly, the complainant got the truck insured by means of a policy issued by O.P. 1which was in force from 12/12/12 to 13/12/13 (vide Annex4). As claimed the policy covers the theft of the truck.

As per allegation the complainant allowed the truck to carry sponge iron loaded at Kendra, Jamshedpur for its delivery to Bhutan Steel Ltd, Bhutan and the journey takes more or less 15 days. On 10/3/13 the complainant over telephone came to know from Bijendra Upadhyay, the consignee of the goods, that the truck with the consignments did not reach the destination. Attempt to locate the whereabouts of the truck and the driver failed. FIR was lodged at Hura P.S and a case bearing Hura P.S. Case No. 24/13 dt. 14/3/13 u/S 407 IPC was started, investigation started and the case ended in submission of charge sheet u/S 407 read with added section 379/411 IPC against 1) Raju Bauri, 2) Promod Singh, 3) Guddu (vide Annex 5 series).

Be it mentioned here that admittedly the accused Guddu is a driver known to the complainant to whom the complainant himself handed over the truck loaded with sponge iron to take it to its destination, after the regular driver Raju Bauri, on receipt of death news of one his close relation expressed his unwillingness to drive the vehicle any further from Purulia. This fact has been specifically, clearly and unambiguously stated by the complainant in latter part of para 6 of his petition of complaint supported by affidavit which as per his petition dated 8/4/15 has been treated as his evidence in chief. It is therefore, clear that the driver Guddu did not start to drive the truck loaded with sponge iron on his own volition but as entrusted by the complainant. Therefore, the loaded truck was voluntarily entrusted to the driver, Guddu who is alleged to have stolen away the same.

The claim of the complainant which he preferred to O.P.1 is based on the alleged theft of his truck which according to him was covered under an insurance policy issued by O.P. 1 on certain terms and conditions including theft of the truck. So, the claim of the complainant will stand provided he can prove that his truck has really been stolen away.

It has already been admitted by the complainant, as has been pointed out above (with reference to this admission made in later part of para 6 of his petition of complaint), that he out of his own handed over the truck loaded with sponge iron to the driver Guddu who is well known to him and whom he occasionally used to engage to drive the truck. Therefore, it is clear that the driver Guddu did not move away the truck out of the possession of the complainant without his consent. Therefore, the essential ingredients of theft are absent in the present case.

On the contrary, pursuant to the FIR lodged at Hura P.S. initially a case was registered u/S 407 of IPC and subsequently Section 379/411IPC was added. After conclusion of investigation charge sheet has been submitted against some accused persons including aforesaid driver Guddu u/S 407 and also 379/411 of the IPC. The result of the investigation as summarized in the charge sheet clearly speaks that the allegations in the FIR have got foundation during investigation which discloses commission of offence punishable u/S 407 IPC and also u/S 379/411. It is clear from the result of the investigation that Section 407 is applicable against driver Guddu while Section 379/411 is applicable as against Promod Singh simply because some stolen sponge iron was recovered from the possession of Promod Singh and seized by a seizure list vide Annex 6. The section 407 applies as against the driver Guddu.

Therefore, we find that the averment of the complainant that he handed over the truck to the driver Guddu is squarely corroborated by the result of the investigation. In other words it is established that the driver Guddu did not take away the truck out of the possession of the complainant without his consent. So regard being had to the essential ingredients of theft it cannot be inferred that Guddu has stolen away the truck. So section 379/411 of IPC does not appear to be applicable against Guddu.

Admittedly said Guddu has not yet, at least till the date of filing of this case, returned the truck. So regard being had to the essential ingredients of Criminal breach of trust we find that Guddu was entrusted with the truck and might have dishonestly misappropriated the truck or has converted the same to his own use or has been dishonestly using the same or has disposed of the property in violation of any direction of law prescribing the mode in which such trust was to be discharged or of any legal contract, expressed or implied, which he has made touching the discharge of such trust etc. Therefore, regard being had to above position of facts disclosed by the complainant and also during investigation of the above case and law applicable to such facts as discussed above we are unable to hold that it is a case of theft of the truck by said Guddu. But it may at best be a case punishable u/S 407 IPC subject to proof in the criminal trial if any.

Therefore, regard being had to the entire facts and circumstances of the case and the legal position applicable herein we are constrained to hold that it is not a case of theft of the truck as alleged by the complainant. So, his claim based on such allegation is not tenable and O.P.1 has rightly turned down the prayer by designating the same as ‘No Claim’.

          In the result, the complainant is not entitled to any relief as prayed for. Hence,

ORDERED

          That the petition of complainant be and the same is dismissed on contest but without cost.

         Let a copy of this judgement be supplied to the parties free of charge.