Mr. K.C. Bhargava, J.—This is an appeal against order dated 9.5.1997 passed by District Forum, Muzaffar Nagar in Complaint Case No. 296/1994. The facts of the case stated in brief are that the complainant is the owner of an Escorts tractor bearing Registration No. UP 12 A 5968. This tractor was purchased after taking loan of Rs. 1,42,500/- from Canara Bank, Muzaffar nagar. This tractor was got insured with the opposite party and the policy duration was from 30.12.1992 to 29.12.1993. After the day’s work was finished the tractor used to be parked at the residence of complainant by the driver and the keys were also handed over to him. On 28.12.1992 in the morning when the complainant came out of his residence, he found the tractor missing. He lodged a complaint of this fact at the police station and also informed the Canara Bank and the Insurance Company on 31.12.1992.

2. After the receipt of the information, Insurance Company appointed a Surveyor. The Surveyor was given necessary papers and he assessed the loss at Rs. 1,35,000/- but payment of Rs. 1,34,288/- were recommended. After an enquiry the Investigating Officer, Police Station submitted a final report on 9.4.1993 copy of which was sent to the Insurance Company on 21.2.1993. Thereafter on 29.2.1993 the keys of the tractor was handed over to the Insurance Company by the complainant, but the Insurance Company did not reply for settlement of the claim. Thereafter a notice was served. Claimant has claimed the insurance amount accorded by the Surveyor alongwith Rs. 50,000/- as damages and Rs. 12,000/- as interest which had to be paid to the Bank.

3. The opposite party filed a written statement admitting the insurance but asserted that as the tractor was in the possession of the driver, it was not a case of theft and no claim is payable.

4. The learned District Forum, after considering the entire evidence on record came to the conclusion that the theft has been committed by the driver and the theft of the case was covered in the insurance cover and the claim was decreed for an amount of Rs. 1,42,500/- alongwith damages of Rs. 12,000/- on account of delay in not making the payment on account of which interest had to be given and a sum of Rs. 500/- as cost etc.

Aggrieved against this order the appellant has come in appeal and has challenged the correctness of the order passed by the learned District Forum.

5. We have heard the learned Counsel for the parties and perused the evidence on record. In the present case the learned Counsel for the appellant has argued that the tractor was given in the custody of a driver, who is a man of the complainant and if the driver has taken away the vehicle, then it will not be covered by the definition of theft. On the other hand the learned Counsel for the respondent placed reliance on the case of Oriental Insurance Company & Ors. v. Rohit Kumar Gupta & Ors., I (1994) CPJ 196 (NC), decided by the National Commission. In this case it was held by the National Commission that a person who had been entrusted with the custody of an article and dishonestly runs away with the said article, then it amounts to theft within the meaning of Section 379 of I.P.C. Illustration D. It was held that the Insurance Company is liable to pay the amount insured in such cases. In view of this the fact is clear that the theft was committed by the driver and the Insurance Company was required to pay the cost of the vehicle for which it was insured.

6. Learned Counsel for the appellant has argued that the Surveyor has recommended a claim of Rs. 1,34,287/- and this amount was agreed upon between the parties. This is denied by the learned Counsel for the respondent. There is no agreement on record to show that the complainant had agreed to take this amount. Even if there was an agreement between the parties, then the same was not honoured by the appellant as it did not pay the amount the complainant but repudiated the claim that the Insurance Company is not liable to pay t