Delhi District Court
At : Inderjeet Farm House vs Bajaj Alliance General Insurance Co. ... on 12 April, 2022
IN THE COURT OF SH. VINOD KUMAR GAUTAM
ADJ-07 (WEST DISTRICT) : DELHI
Suit No. 10620/16
Berggruen Car Rental Pvt. Ltd.
(Through its Director / Manager/AR)
At : Inderjeet Farm House,
KP-167, Khasra No.16/29,
Opp. Ashok Country, Resort Kapashera,
Delhi-110037. ..........Plaintiff
Versus
Bajaj Alliance General Insurance Co. Ltd.
(Motor Claim Department)
(Through its Director / Manager)
At : 1 DLF, Industrial Plot,
Second Floor, Moti Nagar,
Near Metro Station,
New Delhi-110015. ........Defendant
Date of filing of the suit : 26.04.2016
Date of reserving judgment : 05.03.2022
Date of pronouncement of judgment : 12.04.2022
JUDGMENT.
1.The present suit has been filed by the plaintiff for recovery of Rs.7,57,659/- along with future and pendente-lite interest @ 18 % per annum.
2. The brief facts of the case are that the plaintiff is a renowned car rental company duly registered under Companies Act, 1956. The present suit has Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 1 of 14 been filed by the plaintiff through its authorised representative Sh. Alok Rakshit, Regional Manager-North & East of the plaintiff. The plaintiff took the insurance policy from the defendant to secure its commercial vehicle / taxi. On 20/07/2013, the car was driven by the driver of the plaintiff near Taj Mansingh Hotel at Mansingh Road, New Delhi during day time where it was running heavily. The said car suddenly stopped on the middle of the road and the driver promptly turned off the engine and took out the keys from the ignition and thereafter the car was taken to Bird Automative Pvt. Ltd. which is a authorised service centre of BMW cars .
3. It is further submitted that the office of the defendant was also informed for initiating the process of payment of insurance claim. On 27/07/2013, Sh. Avnish Kumar, surveyor of the defendant requested for supplying the documents pertaining to the claim. On 31/07/2013, the defendant vide letter of the same date, rejected the claim of the plaintiff by wrongly resorting to condition no.4 of the policy document. On 29/07/2013, the plaintiff also received the e-mail from Bird Automative P. Ltd. with regard to the rejection of the insurance claim of the plaintiff by the defendant. It is further submitted that the plaintiff was constrained to make the complete payment of of Rs.5,61,324/- for the said repair. The defendant only paid a nominal amount of Rs.52,918/-. It is further submitted that the plaintiff Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 2 of 14 thereafter repeatedly persuaded the defendant to make the payment but the defendant flatly refused to do the same and has wrongly rejected the legitimate claim of the plaintiff. The plaintiff sent a legal notice dated 21/02/2014 to the defendant to pay the afore-said amount along-with the interest @ 18% per annum within 15 days but the defendant paid no heed to the same. Hence, the plaintiff filed the present suit.
4. The defendant filed the written statement submitting therein that the car bearing no.DL-IN-3132 of the plaintiff was insured with the defendant vide policy no.OG-13-1901-1803-00001932 for the period from 21/07/2012 to 30/07/2013 during which period, the claim was lodged by the plaintiff on account of damage of the afore-said car on 20/07/2013. It is further submitted that on 25/07/2013, the defendant appointed Sh. Avnish Kumar, surveyor to survey and assess the claim of the plaintiff who inspected the vehicle on 25/07/2013. Sh. Avnish Kumar has submitted his preliminary survey report assessing the claim of the plaintiff to be Rs.52,918/-. It is further submitted that the driver of the car kept on starting the engine of the car, even the vehicle was stopped on the water logged road which resulted extension of loss thereby further causing damage of the engine. It is further submitted that the said damage was not payable as per the exclusion clause 4(a) under general exceptions of the terms and conditions of the insurance Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 3 of 14 policy. It is further submitted that the claim of the plaintiff was only payable for flushing of engine and the cleaning of the vehicle in question and the claim was assessed by the surveyor to the extent of Rs.52,918/-. It is denied that the suit has been filed by the duly authorised person. It is submitted that the defendant company was intimated on 25/07/2013, whereas the loss to the insured vehicle has taken place on 20/07/2013. It is further submitted that the plaintiff did not supply all the desired documents to the surveyor. The defendant has denied the other averments made by the plaintiff and has prayed for the dismissal of the suit with costs.
5. In the replication, the plaintiff controverted the contentions raised in the written statement and has reaffirmed the averments made in the plaint.
6. From the pleadings of the parties, following issues were framed on 23/01/2018:
1. Whether the plaintiff is entitled for the money decree? OPP
2. Whether the plaintiff is entitled for the interest on the amount claimed, if yes, at what rate and for which period? OPP
3. Whether the suit has been filed without cause of action? OPD
4. Relief.
Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 4 of 14
7. In order to prove its case, the plaintiff examined Sh. Alok Rakshit, Regional Manager-North & East as PW-1, Sh. Baldev Raj as PW-2 and Sh. D.R. Krishna Reddy as PW-3. During examination-in-chief, the PW-1 has tendered his affidavit in evidence as Ex.PW1/A and has proved his signatures at points 'A' and 'B' and at points A-1 and B-1 in Ex.PW1/B therein. He has also reiterated the case of the plaintiff and has relied upon the following documents:
1. Board resolution as Ex. PW1/1.
2. Certificate of incorporation as Ex. PW1/2.
3. Registration certificate of the vehicle in question dated 28/07/2008 as Ex. PW1/3.
4. Insurance policy as Ex. PW1/4.
5. Copy of repair bills of the plaintiff's vehicles (colly.) as Ex.
PW1/5.
6. E-mails (colly ) as Ex.PW1/6.
7. Legal Notice along-with postal receipts (colly.) as Ex.PW1/7.
8. Affidavit u/s 65-B along-with Certificate as Ex.PW1/B.
8. PW-2 has relied upon the documents i.e. driving license as Ex.PW2/1 and policy verification dated 11/01/2013 as Mark-A. Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 5 of 14
9. PW-3 has also relied upon the documents i.e. authorisation letter as Ex.PW3/1 and he has produced the original bills regarding repairing of the vehicle in question issued by Bird Automative P. Ltd. as Ex.PW3/2. Thereafter, the plaintiff evidence was closed.
10. The defendant in its evidence has examined Sh. Shyama Charan Vats as DW-1, who has filed his affidavit in his examination-in-chief and has relied upon the following documents:
1. Power of attorney as Ex. DW1/1.
2. Insurance policy issued in the name of the plaintiff as Ex.
DW1/2.
3. Preliminary survey report as Ex. DW1/3.
4. Survey assessment of the vehicle in question as Ex. DW1/4.
5. Final survey report as Ex. DW1/5.
11. Defendant has also examined Sh. Avnish Kumar as DW-2. Thereafter, defendant evidence was closed.
Issue-wise findings are as under :
ISSUE NO. 1 :
Whether the plaintiff is entitled for the money decree? OPP Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 6 of 14
12. The onus to prove this issue was upon the plaintiff. PW-1 has deposed that on 20/07/2013 when the car was driven near Taj Mansingh Hotel at Man Singh Road, New Delhi, it was raining heavily and the car was stuck in the middle of the road, then the driver turned off the engine of the car and took out the key from the ignition and the vehicle was sent to the authorised service centre of BMW and the office of the defendant was also informed for initiating the payment of the insurance claim. It is the admitted case of the parties that the insurance policy was issued by the defendant with respect to the car bearing no. DL-IN-3132. It is also not in dispute that Sh. Avnish Kumar was appointed as a surveyor to assess the loss and he has given his preliminary report, Ex.DW1/3 and the final report, Ex.DW1/4 was also given, whereby the claim of the plaintiff was assessed to be Rs.52,918/- and rest of the claim for the amount of Rs.5,11,932 was rejected by the defendant.
13. The reason given for rejection of the claim by the defendant was that the driver of the car kept on starting the engine of the car when the vehicle was stopped on the water filled road which resulted in the extension of loss causing further damage to the engine of the car and the said damage was not payable as per the exclusion clause 4(a) under general exceptions of the terms and conditions of the insurance policy.
Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 7 of 14
14. The main defence taken by the defendant is that further damage was caused to the engine of the car by the negligent act of the driver who repeatedly tried to start the car when it was stuck off in the water logged road and therefore, the claim was barred by the condition no.4 (A) of the policy. Now, it is to be considered whether the defendant was justified in rejecting the insurance claim of the plaintiff. There is no evidence led by the defendant that the surveyor on the date of incident or on any other date has made any enquiry from the driver of the vehicle in this regard. In the present case, the accident has occurred on 20/07/2013 but the surveyor has not inspected the car on the same day but on 25/07/2013. Even the preliminary survey report does not contain any observation about the continuously trying to start the car by the driver, due to which further damage was caused to the engine of the car. It is the case of the plaintiff that the driver Mr. Baldev Raj, who was driving the car on 20/07/2013 was an experienced driver and was having an old driving license. Even otherwise, there is no evidence led by the defendant to prove that the PW-2 was not an experienced driver. The learned counsel for the plaintiff has argued that the surveyor appointed by the defendant was not an independent surveyor and was biased and he in collusion with the defendant has rejected the legitimate claim of the plaintiff and the said surveyor was also not properly qualified to arrive at the findings for rejecting the claim of the plaintiff. Therefore, it is to be considered Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 8 of 14 whether the surveyor was having sufficient qualification to arrive at the findings which has been the basis for rejecting the claim of the plaintiff. DW-2 in his cross examination has deposed about his qualification being B- Tech (Civil). Therefore, the surveyor having no qualification in mechanical engineering has caused a doubt of his having the adequate qualification and expertise to give opinion regarding damage to the car due to the negligent act of the driver. The defendant vide its letter dated 31/07/2013 has intimated the plaintiff that it has appointed Sh. Avnish Kumar who is an independent surveyor for survey and assessment of loss. DW-2 in his cross examination has admitted that he is on the panel of the defendant company. Therefore, the DW-2 being on the panel of the defendant raises a doubt about his report being independent and not a biased one especially when the surveyor has not made any enquiry from the driver and was not having any qualification in mechanical engineering.
15. The plaintiff in its support has relied on a case titled as Tata AIG General Insurance Company Ltd. Vs. Sandesh J. Choutha passed by the National Consumer Dispute Redressal Commission, New Delhi on 07/03/2017. The paragraphs no.9 and 10 of the judgment are as follows:
9. "We have perused the insurance policy issued by the insurance company.
Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 9 of 14 The said policy covers damage due to flood, cyclone, hailstorm etc. and does not exclude the loss to the vehicle due to hydro static lock. In absence of such an exclusion, insurance company cannot be permitted to take shelter of condition no.4 of the insurance policy to get rid of its liability under the insurance policy. Otherwise also, on going through the above noted surveyor report, neither the surveyor in his report nor the petitioner opposite party in its affidavit evidence has said that surveyor had adequate qualifications and experience to give opinion regarding the cause for seizure of the engine of the subject car. Thus, the observation / opinion of the surveyor cannot be relied upon particularly when the petitioner opposite party has not filed any opinion / report from the manufacturer of the car or automobile engineer or from the workshop where the vehicle was repaired.
10. We do not find merit in the contention of learned counsel for the petitioner that seizure of the engine of the subject car was because due to heavy rain and not due to flood. The word 'Flood' has been defined in the Oxford Dictionary as large amount of water covering the area that is usually dry. From the facts of the case, it is clear that because of heavy rain, large amount of water had accumulated in the area where the subject car was being driven. Therefore, it cannot be said that area was not flooded. As the water which has flooded the area seeped into the engine of the car, this is clear case of damage caused to the subject car by flood. Hence, repudiation on the ground that damage was not covered under the insurance policy is not justified".
16. The facts and circumstances of the case are similar to the facts and circumstances of the aforesaid case. In the present case also, the damage was caused to the car due to the water accumulated on the road and the said damage is covered by Clause I (v) of Section 1 of the Insurance Policy Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 10 of 14 Ex.PW1/4. The defendant has failed to prove that the claim was not covered under the policy.
17. Learned counsel for the plaintiff has also relied on a case titled as Tata IAG General Insurance Company Limited Vs. Nixi Nova Motor Bank Pvt. Ltd. passed by the Consumer Dispute Redressal Commission Gujarat on 21/09/2020 wherein it was observed as follows:
"Under the policy the company is liable to pay for the loss or damage to the vehicle by natural calamities such as flood. The company has also failed to prove that after the rain water subsided the complainant drove it on the public road and that thereby further damage was caused. It cannot said to be negligence on the part of the owner if after the water subsided tries to start the car in order to see whether it was in working condition or not and thereby if damage occurred. It cannot also thereby be said that by starting the car the damage has extended. Any car driver would try to start it after the flood and water is subsided. Without starting the engine condition of the car cannot be known and therefore such an act cannot be termed as negligent. The car submerge in the rain water and thereafter when it was started to see if was in working condition or not. It distinguished Prakash Ratilal Bachkaniwala's case (infra)."
18. The observations made in the afore-said case also further support the case of the plaintiff. The defendant has also failed to prove that the damage was caused by trying to start the vehicle continuously causing further damage to the engine of the car. Therefore, the plaintiff has been successful to Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 11 of 14 discharge the onus of this issue. The issue no.1 is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2 :
Whether the plaintiff is entitled for the interest on the amount claimed, if yes, at what rate and for which period? OPP
19. The onus to prove this issue was upon the plaintiff. The PW-1 has deposed that the vehicle in question was commercial and the defendant has wrongly withheld the payment towards the claim of the plaintiff, therefore, it is liable to pay the interest @ 18% per annum from July, 2013 till the date of actual payment. Admittedly, there is no written contract with regard to the interest. However, it is not disputed that the vehicle in question was commercial. On the discussion on the issue no.1, the plaintiff has been successful to prove that he is entitled to the claim amount which has been wrongly withheld by the defendant. Therefore, considering all the facts and circumstances of the case, the interest of justice would be served if the plaintiff is awarded the interest @ of 12% per annum from July, 2013 till the recovery of the amount. The issue no.2 is accordingly decided in favour of the plaintiff and against the defendant.
Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 12 of 14 ISSUE NO. 3 :
Whether the suit has been filed without cause of action? OPD
20. The onus to prove this issue was upon the defendant. It is the case of the defendant that the claim of the plaintiff was rightly decided and paid by the defendant as per the terms and conditions of the insurance policy issued by it in respect of the vehicle no. DL-IN-3132. In view of my discussions on the issue no.1, the defendant has failed to prove that the external damage to the engine was caused by the negligent act of the driver. Therefore, this issue is decided in favour of the plaintiff and against the defendant. RELIEF :-
21. In view of my discussions on the afore-said issues, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant. The decree for recovery of Rs.5,11,932/- is passed along-with interest @ 12% per annum from 27/07/2013 till its realisation in favour of the plaintiff and against the defendant. Cost of the suit is also awarded to the plaintiff.
Decree sheet be prepared accordingly. Vinod Digitally signed
by Vinod Kumar
Announced in the open Court
Kumar Gautam
Date: 2022.04.12
today on 12th April, 2022 Gautam 17:02:13 +0530
(VINOD KUMAR GAUTAM)
ADJ-07 : WEST DISTRICT
TIS HAZARI COURTS, Delhi
Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 13 of 14
Suit No.10620/16
Berggruen Car Rental P. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. 12.04.2022 Present: None.
Vide my separate judgment, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly.
File be consigned to record room.
(VINOD KUMAR GAUTAM) ADJ-07 (W)/THC COURTS 12.04.2022 Berggruen Car Rental Pvt. Ltd. Vs. Bajaj Alliance General Insurance Co. Ltd. Page No. 14 of 14