C.W.P. No.8380 of 2010 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.8380 of 2010 Date of Decision.11.08.2011 Bajaj Allianz General Insurance Company Limited, SCO 139-140, Ist Floor, Madhya Marg, Sector 8-C, Chandigarh 160 018 through its Senior Executive Sh. Praman Preet Singh .....Petitioner Versus M/s Sagar Tour and Travels, SF-67 Sushant Vyapar Kendra, Sushan Lok, Phase I, Gurgaon through its Proprietor Anil Kumar son of Munshi Ram r/o village Kadarpur, Tehsil and Distt. Gurgaon and another .....Respondents Present: Mr. Subhash Goyal Advocate for the petitioner. Mr. Sunil Panwar, Advocate for respondent No.1. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The writ petition challenges the award passed by the Permanent Lok Adalat for a claim arising out of a term of the policy that enabled the insured to make a claim for loss of vehicle by theft. The principal ground of attack on the award of the Permanent Lok Adalat was that on the admitted case, the insured had left the keys in the car itself and he had contributed to the loss and therefore, committed a breach of terms of the policy. The award passed by the Permanent Lok Adalat made a deduction of 25% from the assured amount payable to the insured for contributing to the loss. The challenge in the writ petition is that no part of the insured amount could have been awarded to the C.W.P. No.8380 of 2010 -2- insured. Learned counsel appearing for the insurance company places reliance on Clause 5 of the insurance company that reads thus:- “The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk.” 2. This clause, I would understand, would mean that the insured shall take reasonable steps for protection. Retention of a key in the car ought not to be at all times taken as constituting so serious a breach as to disentitle the insured to make the claim under the policy. It all depends on facts of the case. The car was said to have been lost at the time when the driver had taken the vehicle and parked the vehicle in front of the house of his relative but did not remove keys. The particular Clause 5 extracted above shall be read in the context of a person deliberately doing an act that resulted in theft. If no willful act could be attributed to the insured then, in my view, this clause cannot operate to exclude the liability of the insurance company. A human fallibility to forget is not the same as committing violation of terms of the policy. The Permanent Lok Adalat had taken care to cast some C.W.P. No.8380 of 2010 -3- portion of liability on the insured and has denied to him the 25% of the sum insured under the policy. Thankfully for the insurance company, the claimant himself has not come by means of any writ petition seeking for the entire amount. 2. Learned counsel also refers to the fact that the award itself is not competent since it was signed only by the Presiding Officer and other Members of the Permanent Lok Adalat had not joined. I do not find any such objection being taken in the writ petition and I will not allow the petitioner to spring a surprise on the respondent to enable him to join issues on the particular circumstances, under which only the signature of the Presiding Officer is found in the order. 3. Learned counsel for the insurance company also contends that a case related to claim for theft and in terms of Section 22-C, there was an exclusion of liability for any material relating to an offence not compoundable under law. This clause was considered by the Hon'ble Supreme Court in United India Insurance Company Limited Vs. Ajay Sinha and another (2008) 7 SCC 454 where the Court was considering the issue of a fact of theft was in denial by the insurance company and an adjudication was required to be undertaken whether the criminal act had been committed or not. In such a case, the clause would operate and it would also be applicable in cases where the claimant himself is guilty of a criminal act and the matter for adjudication related to such offence. The insured's claim arising for a loss covered under the policy for recovery of value of goods lost on account of theft, which fact is not denied by the insurance company, cannot be said to be a matter relating to an offence not compoundable under any law. The decision C.W.P. No.8380 of 2010 -4- of the Hon'ble Supreme Court, therefore, would not apply to this factual situation where the fact of loss of vehicle by theft is an admitted one. 4. Learned counsel also states that the order was passed by the Permanent Lok Adalat without involving the parties in any conciliation and relies on a judgment of this Court in M/s Sanghera Tanker Transport Vs. The New India Assurance Company Ltd. and another in Civil Revision No.1315 of 2010 dated 10.08.2010 that held that it was essential for the Lok Adalat to have acted in terms of Section 25-C(7) for persuading parties for a conciliation and if only it was not feasible, an adjudication could be done in terms of Section 25-C(8). I put it to the insurance company whether they are prepared to settle the claim and satisfy the respondent but the learned counsel would only press on the merits of the contention involved and was not prepared to make any concession on behalf of the insurance company. I would only take the approach of the Lok Adalat as an error in procedure, which does not go into the root of the problem. An order passed under Section 22-C(8) cannot be vitiated only because conciliation did not precede adjudication. I, therefore, reject this contention as well. 5. The award passed by the Permanent Lok Adalat is confirmed and the challenge to the same by way of writ petition ought to fail and is accordingly dismissed. (K. KANNAN) JUDGE August 11, 2011 Pankaj*