This appeal has been directed against the order dated 18.3.1987 in M.C.O.P. No.386 of 1985 on the file of the Motor Accident Claims Tribunal (4th Additional Sub Judge), Madurai.

2. The respondents 1, 2 and 3 filed the above claim petition for compensation of Rs.80,000 for the death of Gurusamy, the husband of the 1st claimant and the father of the claimants 2 and 3, in an accident on 8.1.1985 involving the Ambassador Car bearing No.TNT. 5171.

3. According to the claimants, the driver of the Ambassador car was very negligent in driving the car and on account of that the deceased was hit by the vehicle resulting in his death. The Ambassador car belonged to the 1 st respondent and it was insured with the 2nd respondent. Hence, the claim petition against the respondents 1 and 2. The respondents 1 and 2, i.e., the owner of the vehicle as well as the insurer contended that the accident took place on 8.1.1985 when the vehicle was stolen and when the owner had no control over the same. Therefore, the owner of the vehicle was not liable and consequently the insurer was also not liable.

4. The tribunal has considered the evidence in detail and has found that the accident has taken place, due to the negligence of the driver of the car who has driven the car and caused the accident after stealing the car to pay the compensation in a sum of Rs.54,000.

5. As against the order of the tribunal, the insurance company has preferred the appeal. The petitioner/claimants in the original petition have also preferred a cross-objections, claiming enhanced compensation. The learned counsel for the appellant contended before me that as there is a categorical finding that the owner of the vehicle is not liable. Hence, the insurance company cannot be made liable to pay any amount. On the other hand, the counsel for respondents 1,2,3 (claimants) contended that the vehicle was driven by some person and the vehicle had caused the death. Therefore, the insurance company, which has taken the responsibility to pay the compensation to third parties is bound to pay the compensation. The learned counsel for the cross objectors, challenged the finding of the Tribunal, that the owner of the vehicle was not liable.

6. The tribunal has categorically found that the owner of the vehicle was not liable, because, the accident has taken place when the vehicle was stolen and driven by the third respondent. The tribunal arrived at this finding after considering the evidence.

7. In the counter filed by the first respondent, the owner who has mentioned that the car was parked near their clinic and left the key in the car after parking it on the side of the road. No reply has been filed by the claimants to controvert this fact. The second respondent, insurance company has also not denied the statement in their counter. R.W.1 has been examined and he has stated about the facts of theft. There is no suggestion that the theft was only a story set up for the purpose of evading payment of damages. In addition to that, we have document Ex.R-7 dated 8.1.1985, it is an F.I.R., wherein a complaint of theft has been registered. Even though, the learned counsel for the claimants have chosen to challenge the finding with reference to the theft, by the tribunal, in the cross objection also, there is no specific ground stating that the finding of the tribunal about the theft was not supported by evidence. In the circumstances, I feel that the finding of the tribunal, that the accident had taken place when the vehicle was stolen away and it was not in the control of the owner of the vehicle.

7. The next question that has to be decided is whether in the circumstances, the insurance company would be liable. In United India Insurance Company Limited v. Lakshmi and others United India Insurance Company Limited v. Lakshmi and others United India Insurance Company Limited v. Lakshmi and others A.I.R. 1990 Mad. 108 a Division Bench of this Court has held that, ‘the owner of the lorry or in other