The liability of the insurance company for the total damage of the vehicle is contingent upon the custody of the vehicle and the applicability of relevant legal principles.

JUDGMENT :

The unsuccessful plaintiff of the Money Suit No. 224 of 1997 (Title Suit No. 54 of 95) on the file of learned Addl. Civil Judge (Sr.Divn.), Cuttack has filed this appeal questioning the dismissal of the suit for realization of her money claim with interest from the defendant.

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. The plaintiff’s case is that she has purchased a vehicle i.e. Matador-III van bearing Registration No. OAX 8997 with manufacturing year 1987 from its original owner one Jagat Jivan Sahu for her own use and for use in her business. The purchase is said to have been made on 22.6.1991. The vehicle in question had been duly insured with the defendant for the period commencing on and from 28.12.1990 till 27.12.1991. The Insurance Policy is said to be a comprehensive one. The plaintiff having purchased the vehicle, the policy of insurance stood transferred in her name.

It is the case of the plaintiff that the said vehicle met an accident on 28.1.1991 at about 1 A.M. while proceeding from Bhubanswar to Khurda on the National Highway No. 5 near village-Ogalpada. It is stated that in view of extreme slippery condition of the road because of the extensive spreading of engine oil from some other vehicle running on the road, the vehicle suddenly skidded and the driver then could not further control and in the process it, got dashed against a stationary truck on the road side. On account of said dash, the vehicle in question was severly damaged and the driver also sustained injures. The plaintiff having received such information sent her husband to the spot to ascertain the truth of such information. It was found that the accident had taken place. Therefore, the plaintiff’s husband lodged a written report at Janla Police Outpost which was noted in the station diary maintained there. The Police Officer in-charge of the said Outpost visited the spot and investigated the case. It was also informed to the defendant on 28.11.91. Therefore, the plaintiff advanced her claim with the defendant for such damage caused to the vehicle in that accident. Surveyor and Loss assessor being deputed by the defendant inspected the damaged vehicle on 30.1.91. It is stated that he removed the damaged vehicle to a motor garage at Bhubaneswar stating said garage to be the approved garage of defendant-Insurance Company for the purpose of repairing the damaged vehicles so insured. The vehicle of the plaintiff was then taken to the said garage and kept there. It is said that the garage owner in whose custody the damaged vehicle remained is an agent of the defendant for the purpose. The Surveyor and Loss Assessor first submitted his inspection report on 6.12.91 to the Branch Office of the defendant describing the details of the damage of parts of the vehicle having carried out the inspection at the spot. There was again deputation of another Surveyor and Loss Assessor by the defendant to note the particulars of the damaged vehicle and also to indicate as to which parts of the damaged vehicle require replacement and which are usable after repair. The final assessment of the loss caused to the damaged vehicle by the said Surveyor and Loss Assessor deputed by the defendant stood at Rs.23,000/-. It is now said that because of the dispute, the damaged vehicle thus continued to remain in garage and for the same it got completely damaged reducing its value to nil. This is said to have been caused because of lack of proper care on the part of the garage owner who according to the case of the plaintiff stands in the position of bailee. Thus now the claim has been laid for the total price of the vehicle in question and that is sought to be recovered from the defendant –Insurance Company. The loss has been assessed by the plaintiff at Rs.1,10,000/-in so far as the vehicle is concerned. The plaintiff having not stopped there