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10. The learned counsel for the petitioner is right in his submission that in taking the aforesaid stand the respondent company was labouring under a misapprehension. It cannot be disputed that the charge-sheet is indeed the final report by the police. The loss of the insured truck to the petitioner cannot also be disputed. The loss was indeed a constructive total loss which resulted in the petitioner being deprived of the possession of the insured vehicle and the same was a risk, insured against under the aforesaid insurance policy.

29. With regard to the nature of the loss sustained by the petitioner, it is quite clear that it is a constructive total loss as the petitioner has been deprived of the possession of the said insured truck by a peril insured against and it is unlikely that he can recover the same (see in this connection Section 60(2) of the said Act).

30. Admittedly, a letter of subrogation has been given by the petitioner to the said respondent company enabling the said respondent company to step into the shoes of the petitioner and thereby having the effect of the petitioner abandoning the said insured truck to the said respondent company. The said subrogation will however take effect upon payment by the respondent company of the claim of the petitioner.

31. In the circumstances it can be said that the aforesaid constructive total loss of the insured truck is being treated as an actual total loss by the parties to the said insurance policy. Indeed, the 6th respondent as it appears from his said survey report has preceded on the basis that the loss of the said insured truck is a total loss (at page 2 of the survey report-item No. 5).

32. In the premises "the measure of indemnity" under the said insurance policy is the aforesaid sum of Rs. 1,87,492/-.