R. Jayasimha Babu, J.
1. The question that requires our consideration in this matter is, as to whether a owner of a motor vehicle and consequently, an insurer, can be held liable for the damage suffered by the victim by the negligent use of the vehicle even in cases where the negligent use was by a person who had stolen the vehicle, despite the precautions taken by the owner.
2. In this case, the vehicle which belonged to the owner has been found by the Tribunal as also by the learned single Judge to have been stolen. The accident occurred when the vehicle was being used by the person who had committed theft.
3. The evidence in this case which has been accepted by the Tribunal is that the owner had not been negligent as the owner had locked the car and had not to be held guilty for any other act of negligence in relation to the manner in which the car was left or the place at which it was left or the condition in which it was left.
4. The Supreme Court in the case of Minu B. Mehta vs. B. Balakrishna Ramachandra Nayan, 1977 ACJ 118 has held that a finding of negligence is the foundation for casting liability on the owner and consequently on the insurer.
5. That position in law continued till provision was made in the statute for no fault liability by introducing Chapter VII-A in the Motor Vehicles Act, 1939 with effect from 01.10.1982 and after the repeal of the 1939 Act, in Section 140 of the Motor Vehicles Act, 1988.
6. When a vehicle is stolen, it cannot always be said that the owner had been negligent. The ingenuity of the person who committed theft cannot always be foreseen. If as a prudent owner, the owner of the vehicle had taken the normal precaution of locking the car while parking it in a public place, the owner cannot be held responsible for the theft of the vehicle. The person who steals the motor vehicle cannot, on the basis of any principle, be described as an agent of the owner, or employee of the owner, for the purposes of casting liability on the owner. The concepts of agency or employment or contract are wholly inapposite in a case of theft. Theft is taking away of the property without the consent expressed or implied of the owner, and with intent to appropriate the property for oneself. None of the established legal principles can be stretched so as to constitute a thief who stole the motor vehicle, a representative of the owner for the purpose of making the owner liable.
7. The accident in this case occurred on 08.01.1985. Under Section 92-A in Chapter VII-A of the Motor Vehicles Act of 1939 the liability of the owner of the vehicle under that section (which was Rs.15,000/- at the time of the accident in this case) in case of death of a person resulting from an accident arising out of the use of the motor vehicle, is not dependant upon proof of negligence. By Section 92-A(3) the claimant is enabled to make the claim without having to plead or prove negligence. Section 92-E of the Act gives overriding effect to the provisions of Chapter VII-A 'notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force.' Even in case where the vehicle has been stolen, and there is no negligence on the part of the owner, the owner, and consequently the insurer is liable to pay the amount provided for as no fault liability under the applicable statutory provision in force at the time of the accident. The appellants are therefore entitled to that sum of Rs.15,000/- together with interest at the rate of 12 per cent from 08.01.1985 till 1996 and thereafter at the rate of 9 per cent. Each one of the appellant is entitled to equal share in the amount of compensation awarded, viz., Rs.5,000/- each together with interest. Appellants are also entitled to proportionate costs throughout.