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     THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
                                     AND
       THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                     WRIT PETITION No.9962 of 2019


ORDER:- (Per Hon'ble Sri Justice Cheekati Manavendranath Roy)


       Assailing     the     order   dated          31.12.2018    passed    in

P.L.A.C.No.51 of 2017 on the file of Permanent Lok Adalat for

Public Utility Services, Kadapa, whereby the Permanent Lok

Adalat    directed    the    petitioner    herein      to   pay   a   sum    of

Rs.9,90,000/- with interest at the rate of 12% per annum to the

owner of the vehicle in question, which was subjected to theft, the

present writ petition has been filed.


2.     Heard       learned     counsel        for     the   petitioner,     Sri

S.Lakshminarayana Reddy, learned Standing Counsel for 1st

respondent and Sri K.S.Murthy, learned Senior Counsel for 2nd

respondent.

3. The 2nd respondent is the owner of a lorry bearing

No.AP04Y9819, which is a goods lorry. It was insured with the

petitioner-Insurance Company as per policy bearing

No.0509043113P104037980 valid from 30.09.2013 to

29.09.2014. The said lorry is being regularly parked near

Ayyappa Swamy temple at Kodur Town to hire the same by the

customers. As usual, on 07.07.2014 also, when the said lorry

was parked near Ayyappa Swamy temple, the said lorry was

subjected to theft by an unknown person. The driver of the lorry

has kept the keys of the lorry in the dashboard of the cabin of the

said lorry, when it was parked at that place. In fact, the sad

parking place is near the house of the owner of the vehicle. After

the lorry was found missing, a report was lodged with the police to

that effect and a case in Crime No.173 of 2014 under Section 379

of the Indian Penal Code, 1860 was registered by Railway Kodur

police. However, police could not trace the said lorry and the

police referred the case as undetectable. Thereafter, the 2nd

respondent-owner of the lorry, laid a claim in terms of the policy.

The petitioner-Insurance Company repudiated the said claim on

the ground that as the keys are left in the cabin of the lorry, that

there is negligence on the part of the owner and the Insurance

Company is not liable to pay any compensation for loss of the said

vehicle.

4. Aggrieved thereby, the owner of the said vehicle has

approached the Permanent Lok Adalat and laid a claim. The

Insurance Company has filed written statement taking the same

plea stating that as the keys of the lorry were left in the cabin of

the lorry, that there is negligence on the part of the owner and the

theft of the lorry took place on account of his own negligence and

that the Insurance Company is not liable to indemnify the owner

of the vehicle for the loss sustained by him on account of the loss

of the said lorry.

5. The Permanent Lok Adalat, however, held that the

Insurance Company is liable to indemnify the owner of the vehicle

for the loss sustained by him and accordingly passed the

impugned award.

6. The ground on which the Insurance Company sought to

repudiate the claim alleging that leaving the keys in the cabin of

the lorry amounts to negligence, is devoid of merit. The facts of

the case show that the said lorry is being parked everyday at that

place which is near to the house of the owner of the vehicle.

Therefore, as usual, the said lorry was parked at that place and

the keys were kept in the dashboard of the cabin. So, it cannot be

said under any stretch of reasoning that there is negligence on the

part of the owner of the vehicle or the driver of the vehicle in

keeping the keys in the dashboard of the vehicle. It is not as

though that the keys were left in the ignition of the vehicle. When

the keys are safely kept in the dashboard of the cabin of the

vehicle, it cannot be construed as an act of negligence. In fact, in

the judgment of the Apex Court relied on by the learned counsel

for the 2nd respondent rendered in the case of Ashok Kumar v.

New India Assurance Company Limited1, it was held in the last

line of para No.15 as follows:

"......It cannot be said, in such circumstances, that leaving the key of the vehicle in the ignition was an open invitation to steal the vehicle."

The Apex Court further held at para No.14 as follows:

"It is well settled in a long line of judgments of this Court that any violation of the condition should be in the nature of a fundamental breach so as to deny the claimant any amount."

7. Therefore, when the Supreme Court held that leaving the

key in the ignition of the vehicle, was not an open invitation to

steal the vehicle, the present case stands on a better footing where

the keys are left in the dashboard of the cabin of the vehicle. So,

the same analogy applies to the present facts of the case and it

cannot be said that mere leaving the keys in the dashboard of the

cabin of the vehicle amounts to an open invitation made to steal

the vehicle so as to attribute any act of negligence against the

driver or owner of the vehicle for the purpose of repudiating the

2023 LiveLaw (SC) 587

claim in terms of clause (5) of the policy. There is nothing to

indicate from the evidence on record that the driver or the owner

of the lorry is negligent in safeguarding the vehicle. Therefore, the

Insurance Company cannot seek to repudiate the claim on the

sole ground that the driver has left the keys of the vehicle in the

dashboard of the cabin of the vehicle.

8. After considering the facts of the case and the evidence on

record, the Permanent Lok Adalat has arrived at a right

conclusion and held that the Insurance Company is liable to

indemnify the owner of the vehicle for the loss sustained by him.

Therefore, the Permanent Lok Adalat has rightly awarded a sum of

Rs.9,90,000/- along with interest thereon to the 2nd respondent.

Learned counsel for the petitioner-Insurance Company would

contend that in the reported judgment that was cited by the

learned counsel for the 2nd respondent, ultimately, the Supreme

Court awarded only 75% of the claim and the 2nd respondent

herein is also entitled for only 75% of the claim. But the learned

Senior Counsel for the 2nd respondent would contend that as the

Apex Court found in that case that the keys are left in the ignition

of the vehicle, that 75% of the claim was awarded and in this case,

as the keys are left in the dashboard in the cabin of the vehicle,

there is absolutely no negligence on his part and he is entitled to

the amount that was awarded by the Permanent Lok Adalat. We

are in agreement with the said contention of the learned Senior

Counsel for the 2nd respondent. Therefore, the 2nd respondent is

entitled to Rs.9,90,000/- as ordered by the Permanent Lok Adalat.

However, the interest @ 12% per annum appears to be on higher

side. It is contended by the learned counsel for the Insurance

Company that in all such claims arising out of Motor Vehicle

accidents, as per settled law only 7.5% is the interest to which the

claimants are entitled. Therefore, in view of the same, the interest

is reduced from 12% to 7.5% per annum on Rs.9,90,000/-.

9. Resultantly, the Writ Petition is dismissed confirming the

order of the permanent Lok Adalat, by modifying the rate of

interest as indicated above. There shall be no order as to costs.

Miscellaneous petitions, if any pending, in the Writ Petition,

shall stand closed.

______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

______________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 05.09.2023 ARR

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

AND

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No.9962 of 2019

Date: 05.09.2023

ARR