Misrepresentation of consent in vehicle theft cases qualifies as theft under IPC, ensuring insurance claims are valid under comprehensive coverage irrespective of misappropriation claims.

JUDGMENT :

PANKAJ JAIN, J.

1. Plaintiff is in appeal.

2. For convenience, the parties herein are referred to their original status in the suit i.e. the appellant as plaintiff and the respondents as the defendants.

3. Plaintiff filed suit for recovery of Rs.65,000/- as an insurance claim for loss of his car which was being plied as commercial taxi which was lost by way of theft. As per the case of the plaintiff, he was owner of a Padmini car bearing No.PNY-1765. The same was fully insured with the defendant-Insurance Company. The same was being plied through driver namely Jit Singh son of Jangir Singh who was incharge of the vehicle. FIR No.23/302 was lodged on 6^th of December, 1983 to the effect that the vehicle was stolen while parked in Gagan Hotel, Railway Road, Muktsar. Necessary claim was lodged with the defendant-Insurance Company on 7^th December, 1983. The defendant-Insurance Company repudiated the claim of the plaintiff in toto on the pretext that the driver was not holding a valid licence on 6^th of December, 1983. Plaintiff approached the Civil Court claiming that the repudiation was bad. The driver Jit Singh was holding a valid licence on the date of theft and was competent to drive the vehicle. There was clerical mistake in the issuance of duplicate licence by the office of District Transport Officer, Faridkot on account of which the defendant illegally rejected the claim of the plaintiff. The said error was rectified by the DTO Office, Faridkot itself and thus the plaintiff was entitled for claim of Rs.65,000/-.

4. Defendants resisted the suit filed by the plaintiff claiming that the car was transferred by owner Kewal Krishan to Janak Raj. There was no privy of contract between Janak Raj and the defendant-Insurance Company. Thus, Insurance Company had no liability to indemnify the loss of Janak Raj. It was further claimed that the vehicle was not stolen but was in fact mis-appropriated as is evident from the fact that the FIR was registered under Section 406 IPC and not under Section 382 of the IPC. However, the insurance of the vehicle on the relevant date was admitted. It was also admitted that the policy in question was a comprehensive one.

5. Trial Court after analyzing the evidence threadbare came to the conclusion that repudiation of the claim of the plaintiff at the hands of the defendant was bad. Trial Court decreed the suit of the plaintiff for recovery of Rs.65,000/- along with interest @ 12% per annum to be paid from the period commencing from the date of institution of the suit till realization of the decretal amount.

6. The judgment and decree were assailed by the defendants in appeal. Appellate Court dismissed the suit holding that it was a case of misappropriation of car and not that of theft and was thus not covered under the policy.

7. The plaintiff is in appeal against the judgment and decree passed by the lower Appellate Court dismissing the suit.

8. Counsel for the plaintiff while assailing the impugned judgment and decree passed by the Courts below submits that it is evident from Ex.D3 that the policy against the loss was the comprehensive policy. It has been proved that the insured suffered loss of the vehicle. The insurer was thus liable to indemnify the insured. The ground on which the lower Appellate Court dismissed the suit was not the ground on which the claim was repudiated by the defendants and thus the Appellate Court erred in making out a case for the defendants beyond the reason assigned while repudiating the claim of the plaintiff.

9. Counsel for the defendants submits that the lower Appellate Court has rightly held the defendants not liable for any indemnification in view of the fact that the