JUSTICE V.K. JAIN, PRESIDING MEMBER

          The complainant / respondent owned a vehicle which he had got insured with the petitioner company.  One Braja Mohan Singha was engaged as the driver to drive the aforesaid vehicle, which was a truck.  The truck carrying goods loaded in it left, from Guwahati, for Manipur, on 21.5.2006.  After delivering the consignment at its destination, the driver allegedly disappeared along with truck itself.  An FIR under Section 406 of IPC was registered in this regard at the concerned Police Station and a final report by the concerned Police Station was submitted.  A claim lodged by the complainant for reimbursement on the ground that the vehicle had been stolen was repudiated on the ground that it was not a case of theft but was a case of criminal breach of trust in respect of the vehicle and therefore, the loss to the complainant was not covered by the policy.

2.      Being aggrieved from the rejection of the claim, the complainant approached the concerned District Forum by way of a consumer complaint.  The complaint was resisted by the petitioner on the ground on which the claim had been repudiated.

3.      The District Forum having allowed the complaint, the petitioner approached the concerned State Commission by way of an appeal.  The said appeal also having been dismissed, the petitioner is before this Commission by way of this revision petition.

4.      The only question which arises for consideration in this case is as to whether this was a case of theft of the vehicle or not.  If it was a case of theft, the claim in terms of the insurance policy was payable to the complainant.  An identical issue came up for consideration of this Commission in The Oriental Insurance Company Ltd. Vs. Ms. Paramjit Kaur, Revision Petition No.2159 of 2015, decided on 15.12.2015 and the following view was taken :-

          “Admittedly, the vehicle was insured inter-alia against loss on account of (i) burglary, housebreaking or theft, (ii) by malicious act.  Therefore, the question which arises for consideration is as to whether the loss of truck in the fact and circumstances of the case, can be construed to be covered by theft or by malicious act or not?  An identical issue came for consideration before this Commission in S. Bhagat Singh vs. The Oriental Insurance Co. Ltd., R.P. No.7 of 1991 decided by Bench of four Members on 03.10.1991.  In the above referred case, the taxi owned by the complainant which used to be driven by the driver employed by him left with some passengers in it, but thereafter the whereabouts of the taxi and the driver could not be known.  Intimation having been given to the insurance company, the matter was investigated by the insurer.  No claim however was being paid.  Being aggrieved, the complainant approached the concerned District Forum by way of a complaint.  The complaint was resisted on the ground that it was a case of criminal misappropriation or breach of trust and not a case of theft.  Rejecting the contention of the insurance company, this Commission inter-alia held as under:-

“After considering the arguments of the learned counsel for the parties we have come to the conclusion that the present case is one of theft. Criminal breach of trust is defined in sec.405 of the Indian penal code.  There is nothing on the record to show that the driver had any dishonest intention to misappropriate or convert to his own use the taxi-car when he left Taxi stand Kamla Nagar Market on the night in question with passengers in it.  It is possible that the driver might have been murdered or relieved of the taxi by the passengers.  It was for the respondent company to allege and prove that the case falls under sec.405, Indian Penal Code.  There is the bare allegation of the respondent company that the case is of criminal misappropriation or breach of trust.  The case had been investigated by an officer of the respondent company.  It has not been stated by the company that said investigation revealed facts contrary to the facts alleged by the complainant.

    Even if it is assumed that the driver dishonestly took away the taxi-car, even then the case would fall under sec.378, Indian Penal Code wherein ‘theft’ has been defined.  The present case is fully covered by illustration (d) appended to that section.  The said illustration reads as follows:

       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.  In the present case the driver was entrusted with the taxi-car.  He did not take it back to Dehradun but has gone away somewhere either with the passengers or after they had alighted from it on way to Dehradun.  As noticed earlier, the taxi-car was to ply only between Dehradun and Delhi.  Thus the driver in the present case will be deemed to have committed theft of the tax-car.”

“7.      This question again came up for consideration of this Commission in United India Insurance Co. Ltd. vs. Ravi Kant Gopalka, R.P. No.1958 of 2004 decided on 13.09.2007 by a Bench of three Members.  In the above referred case, the insured vehicle was taken away by the driver for servicing but the driver neither turned up nor did he bring back the vehicle.  An FIR against the driver for committing theft of the vehicle was lodged and the insurance company was also informed.  No claim having been paid, a complaint was filed.  The State Commission ruled in favour of the complainant. Being aggrieved the insurance company approached this Commission and contended that since the police had registered a case under Section 406 of the Indian Penal Code (I.P.C.), the act of taking away of the vehicle by the driver would not amount to theft.  Rejecting the contention and holding the order of the State Commission, this Commission held as under:-

“In our view, this submission is without any justification because of the definition of theft under Section 378 of the I.P.C. Illustration (d) to Section 378 specifically provides that-

    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.               

     In any case, this would be a malicious act and the policy covers such peril.  Further, the exclusion clauses also nowhere provide that an offence under Section 406 of I.P.C. is excluded. 

    Further, in our view, this loss of the car could also be construed to be covered by the general category of malicious acts, a set of grounds used in the policy.  It is a malicious act of a person who was an employee of the insured at the relevant time.”

8.      The learned counsel for the petitioner has referred to the decision of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Ishar Das Madan Lal, (2007) 4 Supreme Court Cases 105.  In the case before the Hon’ble Supreme court, the respondent, which was a Jeweller had lodged a claim alleging theft of jewellery by a customer to whom the jewellery was temporarily handed over by the complainant.  The question before the Hon’ble Court was as to whether the handed over the jewellery to a customer amount to entrustment.  Ruling in favour of the complainant and against the insurance company, the Hon’ble Supreme Court inter-alia held as under:-

“12. The word 'entrust' would imply giving responsibility to a person upon whom the owner has confidence. It envisages establishment of a relationship. When a customer enters into a jewellery shop, as of necessity, the owner or his agent must allow him to inspect the merchandise, the customer intends to purchase. For the said purpose possession in the legal sense is not handed over. The owner or his agent does not loose complete control thereover.

14. Mr. Vishnu Mehra, the learned counsel appearing for the appellant has relied upon the meaning of the word 'entrust' as contained in Black's Law Dictionary, 8th Edn. and Webster's Universal Dictionary.

15. In Black's Law Dictionary, the word 'entrust' has been defined as under :

"To give (a person) the responsibility for something after establishing a confidential relationship."

16. In Webster's Universal Dictionary meaning of the word 'entrust' reads as under :

"To confer as a responsibility, duty etc. to place, something in another's care."

17. Apart from the fact that the said meaning of the term “entrustment” goes against the submission Mr. Mehra, we may notice that in Black's Law Dictionary the word “entrusting” in commercial law has been described as:

 "The transfer of possession of goods to a merchant who deals in goods of that type and who may in turn transfer the goods and all rights to them to a purchaser in the ordinary course of business." Transfer of possession of goods, therefore, is a sine qua non for entrustment. The person must be handed over the possession of the property. Illustration (d) appended to Section 378 IPC envisages a situation of this nature. It by no stretch of imagination would have contemplated a situation where an unknown customer would have committed theft.”

9.      In the case relied by the learned counsel for the petitioner, the Hon’ble Supreme Court was not concerned with the question as to whether a case of the driver of a vehicle found missing along with vehicle would constitute theft or criminal breach of trust.  On the other hand, the above referred decisions of this Commission directly cover a case where the driver takes a vehicle and then does not return.  Moreover, this Commission has also taken the view that such a case will also amount to a malicious act and therefore the loss would be covered under the insurance policy taken by the owner of the vehicle.  Since I am bound by the previous decisions of this Commission rendered by a Larger Bench, it is not open to me to take a contrary view unless the aforesaid decisions are shown to be per incuriam.  The petitioner however has failed to show that the aforesaid decisions rendered by the Larger Bench of this Commission are per incuriam.”

5.      For the reasons stated hereinabove, I hold that this was a case of theft of the vehicle, though it may also possibly constitute a case of an offence punishable under Section 406 of IPC.  Once it is held that it was a case of theft, there was no escape from the conclusion that the petitioner was liable to reimburse the complainant for the loss suffered by him.

6.      The revision petition, being devoid of any merit, is therefore, dismissed, with no order as to costs.