IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.12565 of 2009 Date of Decision: 19.08.2009 IFFCO Tokio General Insurance Company Petitioner Versus M/s Golden Ikon and another Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH Present: Ms.Neena Madan and Mr.Raghujeet Singh Madan, Advocates for the petitioner ….. Jasbir Singh, J. This order will dispose for two Civil Writ Petition bearing No.12565 of 2009 and 12584 of 2009, involving similar questions of facts and law. For facility of reference, facts are being mentioned from CWP No.12565 of 2009. This writ petition has been filed against order dated 7.7.2009 (P8), passed by the Permanent Lok Adalat (Public Utility Services), Gurgaon (in short the Lok Adalat) allowing claim of respondent No.1 for theft of vehicle, insured with the petitioner. Counsel for the petitioner heard. It is admitted on record that respondent No.1 insured Toyota Innova vehicle, bearing registration No.HR-55-FT-0767, with the petitioner company on 12.2.2008. Regarding theft of that vehicle, an FIR was Civil Writ Petition No.12565 of 2009 recorded in the Police Station Sector 18, Gurgaon, on 20.6.2008. Despite efforts, vehicle could not be traced. Thereafter, respondent No.1 raised claim, for loss of vehicle, against the petitioner. It is case of the petitioner that on receipt of claim application, it appointed an investigator, who, during course of his survey, recorded statement of driver of the vehicle and reported that the vehicle was lost on account of lack and non-co-operation at the hands of the driver. By stating that act of the driver was in violation of the terms and conditions of the Insurance Policy, claim of respondent No.1 was refuted by the petitioner before the Lok Adalat. It was specifically averred by the petitioner that the driver, by leaving the vehicle on roadside, in start position with keys inside and without locking the doors, has shown utmost negligence, which resulted into violation of the terms of the Insurance Policy and on account of that, claim of respondent No.1 be rejected. The Lok Adalat, when rejecting that argument, observed as under:- “We have heard the parties. The FIR was lodged by the driver Sh.Raj Kumar with the version that on 20.6.08 at about 1.30 AM he was driving his Innova Car from Gurgaon to Delhi and when he reached IFFCO Chauk, Gurgaon he got down from the car for making water but in the meantime three boys rushed to the car, started it and ran away. There is no mention in the FIR that the car was left in start position with the keys inside. But in the alleged statement recorded by the surveyor he stated that he left the vehicle in start position with the keys inside. Much reliance to that statement cannot be given without the affidavit of the surveyor and on the face of the facts that both the keys were delivered in the office of company 2 Civil Writ Petition No.12565 of 2009 while laying the claim. So the version of the surveyor cannot be relied upon when the keys were without the driver, there was no question of leaving the same inside the vehicle. Further the only action of the driver, though not proved, that he left the keys inside while moving a step or two from the vehicle is not enough for denying the claim. It is not the negligence of that nature for which violation of any term & condition of the policy can be stated to have been committed. A man of ordinary prudence may not think it necessary to lock the vehicle or take away the keys with him when he has to move only a step or two from the vehicle.” This Court feels that opinion arrived at is perfectly justified. In FIR, there is no mention that the vehicle was left in a start position with keys inside on the road. Above said fact found mentioned only in the surveyor’s report, who has failed to file any affidavit in that regard. The Lok Adalat has also noticed that keys were in possession of the driver. If that is so, there was no question of leaving keys inside the vehicle. Even otherwise, this Court is of the opinion that if a driver left the vehicle on roadside with keys inside and went to take a glass of water, this cannot be termed as a negligence, on the basis of which, claim of an owner of the vehicle for its theft can be declined. Under similar circumstances, a Single Bench of this Court in Reliance General Insurance Company Limited v. Ganga Tourist India Pvt. Ltd. and another, (CWP No.11451 of 2009), decided on 3.8.2009, has observed as under:- “Before Lok Adalat and here also, it is contention of the petitioner that theft has occurred on account of negligence on the part of the driver. This Court feels that argument is liable 3 Civil Writ Petition No.12565 of 2009 to be rejected. It has come on record that the driver, when driving the vehicle, felt that dickey of the car was not closed, he stopped the vehicle, went to the back side, leaving keys in the car itself, then two boys came and ran way with that car. Such action cannot be treated as negligence on the part of the driver, which may disentitle the owner to get claim towards loss of vehicle”. In view of facts mentioned above, no case is made out for interference. Dismissed. 19.08.2009 (Jasbir Singh) gk Judge 4