Delhi District Court
Divisional Office No. 3102 vs The New Delhi Municipal Council on 4 October, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS/DJ/No. 12098/16
In re:
The New India Assurance Company Ltd.,
having its Registered Office Head Officers
at New India Assurance Building,
87, Mahatma Gandhi Road, Fort,
Mumbai - 400 001.
And
Regional Office - I
Jeevan Bharti Building,
Tower No. II, Level 5,
Connaught Circus,
New Delhi - 110 001.
And
Divisional Office No. 310200
13/46, Scindia House,
Kasturba Gandhi Marg,
New Delhi - 110 001.
............. Plaintiff
Versus
1. The New Delhi Municipal Council
Services to be effected through its
The Chairperson/Principal Officer
Palika Kendra, Parliament Street,
New Delhi - 110 001
2. Col. Chadha
Authorised Contractor/Agent,
New Delhi Municipal Corporation,
Authorised NDMC Car, Cycle & Scooter Stand DLF, CP,
New Statndar Chartered Bank, Connaught Place,
New Delhi - 110 001
3. Mr. C.K. Jairaj
R/o C-36A, Gangotri Enclave, Alaknand,
New Delhi - 110 019
.........Defendants
CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 1 of 15
Suit for Recovery of Rs. 6,35,375/-
Date of institution of present suit : 20.09.2001
Date of receiving in this court : 10.03.2016
Date of hearing arguments : 20.08.2016
Date of Judgment : 04.10.2016
JUDGMENT
Plaintiff has filed the present suit for recovery of Rs.6,35,375/- against defendant no. 1 and 2 with defendant no. 3 as proforma defendant submitting that plaintiff is a company duly incorporated under the Company Act with its Registered & Head Office at Mumbai and Regional Office at New Delhi and Divisional Office at 13/46, Scindia House, K.G. Marg, New Delhi - 100 001 and is carrying on the business of General Insurance. The plaint has been signed, verified and instituted by Sh. R. C. Grover duly constituted attorney and Principal Officer of the plaintiff.
2. It is further stated that the Defendant no. 1 is a lawful constituted body created under the NDMC Act, 1994 and engaged in the governance of municipal activities. Defendant no. 2 is authorised contractor/agent of NDMC which owns a parking lot known as "Authorised NDMC Car, Cycle & Scooter Stand, DLF CP" situated near Standard Chartered Bank, Connaught Place, New Delhi. Defendant no. 3 was the registered owner of vehicle Tata Sumo bearing registration no. DL 3CJ 7030. The aforesaid Tata Sumo was comprehensively insured vide Policy No. 3131120003349 for the period 21.03.1998 to 20.03.1999 for all risks with endorsement as hypothecated with M/s Sundram Finance Ltd. & SBI Chennai.
3. It is further stated that on 10.10.1998, defendant no. 3 parked the aforesaid vehicle at Connaught place in the aforesaid Authorised Parking of defendant no. 2 at DLF CP at about 2.35 pm through parking slip bearing no. 004049. However, when he returned at 3:45 pm., the aforesaid vehicle was missing though parking slip was with defendant no. 3. When defendant no. 3 did CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 2 of 15 not get back the vehicle in question from the incharge/attendant/caretaker of defendant no. 2's authorised "NDMC car, cycle, scooter stand, DLF", he lodged a police complaint bearing DD No. 26A dated 10.10.1998 at PS Connaught Place pursuant to which FIR bearing no. 909 dated 10.10.1998 under Section 379 IPC at PS Connaught Place was registered. Despite investigation the vehicle could not be traced out and untrace report of vehicle no. DL 3CJ 7030 was handed over to defendant no. 3.
4. It is further stated that Defendant no. 3 lodged claim with the plaintiff and plaintiff appointed the investigators M/s A & R Security Services who vide their report dated 24.11.1998 confirmed the aforesaid loss/theft. Thereafter, plaintiff appointed assessor Sh. B.S. Khattar, Chartered Engineers, Surveyors and Loss Assessors to assess the loss who vide his Report dated 28.11.1998 affirmed the said loss and recommended to settle the claim at Rs.4,25,000/-. Accordingly defendant no. 3 was paid Rs. 4,25,000/- after obtaining letter of subrogation, letter of indemnity, power of attorney, payment of receipt for Rs.4,25,000/-, parking slip, RC Book duly transferred in favour of New India Assurance Company and copy of FIR. Since the defendant nos. 1 and 2 were entrusted with the possession, custody and control of the vehicle as a bailee and as such defendant nos. 1 and 2 accepted to act as bailee and therefore they have undertaken the safe delivery of the car in sound condition on presentation of parking slip but committed breach of it and therefore, they are liable to pay for the loss caused due to theft and non delivery of the vehicle in question valuing Rs.4,25,000/- with interest @ 18% p.a. but defendants have failed to make payment despite issuance of legal notice dated 13.04.2000 under Section 80 CPC r/w 385 of the NDMC of 1994. Hence, present suit for recovery of principal amount of Rs.4,25,000/- along with interest Rs.2,10,375/- @18% p.a. w.e.f. 10.10.1998 to 10.10.2001.
5. Upon being served with summons of the suit, defendant no. 1 filed written statement thereby raising preliminary objection that no cause of action CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 3 of 15 arose against the defendant No.1. The suit is barred under Section 385 of NDMC Act, 1994 for want of required notice. On merits, it has been submitted that Defendant no. 1 is not responsible for any loss caused to the vehicle of defendant no. 3 as the parking lot were not owned by them but were alloted to respective contractors on the terms and conditions, apart from other, that for any loss caused by their act, the defendant no. 1 shall not be responsible for the same and the contractor shall be liable for all the damages, losses caused to the vehicle during parking at the site. Rest of the contents have been denied or replied being matter of record.
6. Defendant no. 2 filed written statement whereby raising preliminary objection that impugned vehicle was not parked in the parking of the defendant No.2 and therefore, defendant no. 2 was not responsible for the same. It has been further alleged that plaintiff in collusion with owner of the said vehicle has released the amount by concealing true facts and the suit is bad for mis-joinder and non-joinder of the parties as there was no privity of contract between the plaintiff and the defendant. On merits, averment relating to entrustment of vehicle to defendant no. 2, parking of vehicle and stealing of vehicle from the parking lot of defendant No. 2 etc. have been denied completely.
7. Defendant no. 3 was impleaded as a proforma party. He has chosen not to appear or file written statement despite service of defendant no. 3.
8. Plaintiffs filed replications to the respective written statements filed by the Defendants No.1 and 2 thereby denying the averrment of the written statements and reiterating the content of the claim.
9. On the pleadings of the parties, following issues were framed vide order dated 27.09.2004:
1. Whether the Plaintiff is a Company duly incorporated under Indian Companies Act? OPP CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 4 of 15
2. Whether the plaint has been signed and verified by a competent person? OPP
3. Whether the suit is bad for misjoinder and non-joinder of necessary parties, as alleged in preliminary objection no. 3 in the WS of defendant no. 2? OPD2
4. Whether the suit is time barred as alleged in preliminary objection no. 5 in the WS of defendant no. 2? OPD2
5. Whether defendant no. 3 was the registered owner of vehicle Tata Sumo bearing registration no DL 3CJ 7030? OPP
6. Whether the defendant no. 3 is registered owner of vehicle Tata Sumo and the said vehicle was comprehensively insured with the Plaintiff as alleged in para no. 8 in reply on merits in the WS of defendant no. 2? OPD2
7. Whether the vehicle in question was stolen from the parking in question? OPP
8. Whether the officials of the Plaintiff hurriedly released the amount in favour of vehicle owner without any merit and without completion of proper investigation regarding theft, as alleged in preliminary objection no. 6 in the WS of defendant no. 2? OPD2
9. Whether the parking slip as stated in para no. 11 of the plaint is a forged and fabricated document? OPD2
10. To what principal amount, if any, is the plaintiff entitled from the defendant? OPP
11. Whether the plaintiff is entitled to any interest, if so at what rate, for which period and to what amount from the defendant? OPP
12. Relief.
10. In order to prove its case plaintiff examined Ct. Raju Mohan as PW-1 who produced the record of FIR No. 909/98 dated 10.10.1998 u/s 379 IPC and untrace record Ex. PW1/1. He was cross-examined by the defendant. Plaintiff examined Sh. R.P. Kandpal as PW-2 who filed his affidavit Ex. PW1/A CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 5 of 15 in examination-in-chief who relied upon documents Power of Attorney in favour of Mr. Ramesh Chander Ex. PW2/1, Power of Attorney in favour of Sh. Kandpal Ex. PW2/1A, Letter of incorporation Ex. PW2/2, insurance policy in favour of defendant no. 3 Ex. PW2/3, Registration Certificate in favour of defendant no. 3 Mark PW2/4, Motor Claim Form dated 30.11.1998 Ex. PW2/5, Parking Slip bearing no. 004049 Ex. PW2/6, FIR No.909/98 dated 10.10.1999 u/s. 379 IPC Mark PW2/7, untraced report Ex. PW2/8, Report of Investigator "M/s A&R Security Services" Ex. PW2/9, Report of Assessor B.S. Khattar Ex. PW2/10, Receipt in lieu of settlement of claim for Rs.4,25,000/- Ex. PW2/10a and Ex. PW2/10b, letter dated 24.02.1999 Ex. PW2/11, letter of subrogation Ex.PW2/11A, letter of indemnity Ex.PW2/11B, Power of Attorney Ex.PW2/11C, Undertaking Ex. PW2/11D, RC in favour of plaintiff Ex.PW2/12, Notice under Section 80 CPC Ex.PW2/13, postal receipts bearing no. 5344 and 5345 Ex.PW2/14A and Ex.PW2/14B respectively, AD Card Ex.PW14/C and reply to the notice Ex.PW2/15. He was cross-examined by the defendant nos 1 and 2. Plaintiff examined Sh. G. Karthikeyan, LDC, State Transport Authority as PW-3 who produced the record pertaining to vehicle no. DL 3CJ 7073 Ex. PW3/1. Plaintiff examined Sh. D.S. Rana as PW-4 who stated that receipts Ex. PW2/14A & B have issued from his office and stated that AD card pertains to postal receipt Ex. PW2/14A. He was cross-examined by defendant nos. 1 and 2. Plaintiff examined Loss Assessor Sh. B.S. Khattar as PW-5 who assessed the quantum of loss of Tata Sumo DL 3CJ 7030 and relied upon document Ex. PW2/10. He was cross-examined by defendant no. 2. Plaintiff examined Investigator Sh. Anil Kumar as PW-6 who relied upon his report Ex. PW2/9. He was cross-examined by defendant no. 2. After which, plaintiff closed its evidence.
11. Defendant no.2 examined Sh. Harkishan Singh as DW1 who filed his affidavit Ex. D2W1/1 in examination-in-chief and relied upon Tender Form issued by NDMC marked as D2W1/A. Defendant no. 2 examined Sh. Itrat Hussain as D2W2 who filed his affidavit Ex. D2W2/A in examination-in-chief. He was cross-examined by the plaintiff. Defendant examined Sh. Shakeel Ahmad CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 6 of 15 as D2W3 who filed his affidavit Ex. D2W3/A in examination-in-chief. He was cross-examined by the plaintiff. Defendant no. 2 examined Sh. Mohan Bhardwaj as D2W4 who filed his affidavit Ex. D2W4/X in examination-in-chief and relied upon copy of allotment letters Ex. D2W4/1 to Ex. D2W4/3. Defendant no. 2 examined HC Satyavir as D2W5 who produced the current status report of FIR No. 909/98 Ex. D2W5/1, photocopy of FIR Mark X, photocopy of letter Mark Y and photocopy of the destruction order Mark Z. After which, defendant closed his evidence.
12. After going through the pleadings and evidence and materials on record and appreciating the argument, issue wise findings as under:-
ISSUE No. 1: Whether the Plaintiff is a Company duly incorporated under Indian Companies Act? OPP
13. Onus to prove this issue is upon the plaintiff. Plaintiff has examined PW-2 Sh. R.P. Kandpal who was the Divisional Manager of the plaintiff company. He in his examination-in-chief by way of affidavit deposed that plaintiff was the company duly incorporated under the Indian Company Act and he relied upon the certified copy of Certificate of Incorporation Ex. PW2/2. None of the defendants cross-examined the said witness on this point. Not even a single suggestion was given that plaintiff company was not incorporated. The certificate of Incorporation Ex. PW2/2 and testimony of PW-2 in this regard has gone unchallenged. Not only this, defendants did not bring on any material contrary to assertion of the plaintiff. In view thereof, it stands proved that plaintiff company was duly incorporated company.
Therefore, issue no. 1 is decided in favour of the plaintiff and against the defendants.
ISSUE No. 2: Whether the plaint has been signed and verified by a competent person? OPP
14. Onus to prove this issue is upon the plaintiff. Plaintiff has examined the aforesaid PW-2 Sh. R.P. Kandpal and he in his examination-in-chief deposed CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 7 of 15 that he was the duly authorised person of the company. He deposed that Mr. Ramesh Chander, the then Principal Officer/Divisional/Regional Officer was authorised to sign, verify and institute the present suit and he identified his signature having seen him signing during the course of the business of the plaintiffs. He also exhibited the Power of Attorney executed by the plaintiff company in favour of Mr. Ramesh Chander as Ex. PW2/1 and Power of Attorney executed in his favour as Ex. PW2/1A. None of the defendants cross-examined the said witness on this point. Not even a single suggestion was given that plaint was not signed and verified by a competent person. Power of Attorney in favour of Mr. Ramesh Chander Ex. PW2/1 and Power of Attorney in favour of PW-2 Ex. PW2/1A and testimony of PW-2 in this regard have gone unchallenged. Said objection qua authority to sign, verify etc appears to have been surrendered by defendants. In view thereof, it stands proved that plaint has been signed and verified by a competent person.
Therefore, issue no. 2 is decided in favour of the plaintiff and against the defendants.
ISSUE No. 3: Whether the suit is bad for misjoinder and non-joinder of necessary parties, as alleged in preliminary objection no. 3 in the WS of defendant no. 2? OPD2
15. Onus to prove this issue is upon the defendant No.2. In the present case plaintiff has impleaded NDMC as defendant No.1, Col. Chaddha as defendant No.2 and C. K. Jairaj as defendant No.3. Defendant No.3 was the registered owner of the vehicle in question, though no relief was claimed against but being necessary party he was impleaded as proforma defendant. NDMC was impleaded as admittedly it was the paramount lessor/ owner of the plot where parking was running. Defendant No. 2 was the allottee/contractor of the said plot/piece of land where he was permitted to run the parking. Admittedly said parking was being run under the banner of "NDMC authorized Parking".
16. To the general public, display of "NDMC Authorised Parking"
ensures genuinenesses, safety and trust of security and assurance of all this to CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 8 of 15 general public while bailling their vehicle to parking contractor. NDMC by allowing such representation hold out to the public at large, its responsibility for safe and secure delivery of vehicle to them. The contract between NDMC and the Contractor is internal matter between the two and NDMC might ultimately recover the same from the contractor on the basis of terms of its contract but so far as general public are concerned NDMC cannot shirk its responsibility to compensate for the loss due to theft from the parking lot authorised by NDMC. In larger perspective, parking lot was ultimately run by NDMC through its contractor. NDMC instead of employing its own employee for the purpose of running the parking lot generally invites interested person to run the same on payment of lump sum money irrespective of actual earning from the parking lot. Thus in ultimate analysis it is the NDMC which was running the parking lot on the terms and condition agreed between them which might make the contractor indemnify the NDMC for any loss occasioned by the act and conduct of the contractor. Thus, the suit was not bad for impleadement of NDMC.
17. Nothing has been explained as to how suit was bad for non joinder of necessary party. Who else was the necessary party in the present case has not been explained or pointed out. It appears that such objection was raised only for the sake of objection.
In view of the above discussion, issue No.3 is decided against the defendants and in favour of plaintiff.
ISSUE No. 4: Whether the suit is time barred as alleged in preliminary objection no. 5 in the WS of defendant no. 2? OPD2
18. Onus to prove this issue is upon the defendant no. 2. The plaintiff has claimed the value of the vehicle stolen from the parking lot of defendants on 10.10.1998 pleading therein that defendants no. 1 and 2 being the bailee were liable to pay for the stolen vehicle as they had undertaken for the safe delivery of the vehicle bailed to them. Admittedly the present plaint was filed on 10.09.2001. There is no dispute that limitation period for the recovery of amount based on CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 9 of 15 contract is 3 years and in the present case cause of action arose on the day when the vehicle was stolen i.e. 10.10.1998. If computed from 10.10.1998 the period of limitation expired on 10.10.2001 but since the suit was filed on 10.09.2001 it cannot be said that suit was barred by limitation. The defendants have not put on record any material as to how the suit is time barred when the period of recovery in the circumstances of the plaintiff's case is admittedly three years.
In view of above discussion and reasoning, issue no. 4 is decided against the defendants.
ISSUE No. 5: Whether defendant no. 3 was the registered owner of vehicle Tata Sumo bearing registration no DL 3CJ 7030? OPP
19. Onus to prove this issue is upon the plaintiff. As per the plaintiff the vehicle Tata Sumo bearing registration no. DL 3CJ 7030 was insured with plaintiff and was under the registered ownership of defendant no. 3. In this regard, plaintiff examined PW-3 Sh. G. Karthikeyan, LDC, Sheikh Sarai Transport Authority and he in his testimony deposed that he had brought the summoned record pertaining to vehicle no. DL 3CJ 7030 maintained in the office. He further deposed that on the day of his examination, the vehicle stood in the name of plaintiff and earlier the vehicle was in the name of Sh. C.K. Jairaj, defendant no. 3 and the particulars of the said vehicle were given in the computer generated sheet which is Ex. PW3/1.
20. In cross-examination also he deposed that as per the record the vehicle was registered earlier in the name of defendant no. 3 and duplicate RC was issued in the name of defendant no. 3 prior to transfer of the vehicle in the name of the plaintiff. The duplicate RC was issued in the name of Sh. C.K. Jairaj, defendant no. 3 because the original RC was stolen in the theft case. No suggestion was given to him that he did not work with Sheikh Sarai Transport Authority or that the record brought by him were not of the said department or that defendant no. 3 was not the registered owner. No evidence has been led by the defendants on this point so as to point out that the vehicle was not registered in the name of defendant no. 3.
CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 10 of 15
21. From the un-shattered above testimony it stands proved that vehicle was registered in the name of defendant no. 3 and therefore defendant no. 3 was the registered owner of the vehicle in question.
In view of above discussion, issue no. 5 is decided against the defendant and in favour of the plaintiff.
ISSUE No. 6: Whether the defendant no. 3 is registered owner of vehicle Tata Sumo and the said vehicle was comprehensively insured with the Plaintiff as alleged in para no. 8 in reply on merits in the WS of defendant no. 2? OPD2
22. Onus to prove this issue is upon the defendant no. 2. However, part of this issue appears to have been framed inadvertently because issue no. 5 framed above was also to the same effect and the second part of this issue appears to have been framed incorrectly or onus appears to have been wrongly put on defendant no. 2. In any case at this stage, the onus cannot be shifted and therefore, it will be determined if the vehicle was not comprehensively insured from the plaintiff as alleged by the defendant no. 2.
23. While deciding issue no. 5 it has already been held that the defendant no. 3 was the registered owner of the vehicle. As far as comprehensive insurance is concerned, the defendant did not lead any evidence on this point. Plaintiff through its witness PW-2 specifically deposed that vehicle in question was insured with the plaintiff company vide policy no.
3131120003349/257/99999 for the period 21.03.1998 to 20.03.1999 for risk cover as per policy and the insurance policy was exhibited as Ex. PW2/3. Perusal of the policy Ex. PW2/3 leaves no doubt that the vehicle was insured comprehensively. Defendants have not cross-examined the PW-2 on this point. Not a single suggestion was given that the vehicle was not insured or was not insured comprehensively. Thus, defendants failed to prove that vehicle was not insured comprehensively.
In the light of above discussion, issue no. 6 is decided against the defendant and in favour of the plaintiff.
CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 11 of 15 ISSUE No. 7: Whether the vehicle in question was stolen from the parking in question? OPP ISSUE No. 9: Whether the parking slip as stated in para no. 11 of the plaint is a forged and fabricated document? OPD2
24. Issue no. 7 and 9 are taken up together as they are inter connected or inter linked. Onus to prove issue no. 7 is upon the plaintiff whereas onus to prove issue no. 9 is upon the defendant no. 2. Findings on issue No.9 will have to be undertaken only if issue No.7 stands proved. In order to prove issue no. 7 plaintiff has relied firstly upon PW-2 who deposed on the basis of claim and intimation given by the defendant no. 3 that the vehicle was stolen from the parking lot of defendant run by defendant No.2 under the banner of defendant No.1. He placed on record the FIR bearing no. 909/98 Ex. PW2/7 along with motor claim form Ex. PW2/5. In the FIR it was alleged by defendant no. 3 that he gave complaint to the police stating that he parked his vehicle in question in the Authorised NDMC Car, Cycle & Scooter Stand, DLF CP situated near Standard Chartered Bank, Connaught Place, New Delhi at about 2:30 pm. The parking attendant took the charge of the car and issued parking slip bearing no. 004049 Ex. PW2/6. However, when he returned to take back the vehicle, the vehicle was missing from the parking and the receipt was with defendant no. 3. After receiving intimation, plaintiff appointed the investigator M/s A & R Security Services who vide their report dated 24.11.1998 confirmed the loss/theft. The assessor assessed the loss vide report dated 28.11.1998 Ex. PW2/10 after which claim was settled with defendant no. 3 for a sum of Rs.4,25,000/- released vide receipt Ex. PW2/10A and Ex. PW2/10B. Defendants particularly defendant no. 2 have denied the fact that vehicle was parked in the parking lot alloted to defendant no. 2. Defendant no. 2 has also denied the parking slip Ex. PW2/6 alleging that the same to be forged and fabricated document.
25. Admittedly in this case eyewitness i.e. defendant no. 3 has not been examined. Although he was impleaded as proforma defendant no. 3 but plaintiff should have examined defendant no. 3 by summoning him as a witness if he was CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 12 of 15 not willing to give evidence on his own. He was the only person who was the star witness to the fact that vehicle was parked in the parking lot alloted to defendant no. 2 in the Connaught Place. The parking slip which has been produced by the plaintiff has been denied by the defendant no. 2. It has been argued by the defendant no. 2 that this parking slip was forged and fabricated as it did not contain the NDMC logo. It is also matter of record that defendant No.2 has not placed on record the counter foil of receipts which were being issued at the relevant time to show that parking slips were containing the NDMC logo. Be that as it may, defendant no. 2 did bring circumstance on record which raises some doubt about the authenticity of the parking slip produced by the plaintiff. Plaintiff in its pleading pleaded that plaintiff paid a sum of Rs.4,25,000/- as claimed amount to the defendant no. 3 after the inspection and obtaining necessary documents i.e. letter of subrogation, letter of indemnity, power of attorney, payment of receipt for Rs.4,25,000/-, parking slip Ex PW2/6, RC Book duly transferred in favour of New India Assurance Company and copy of FIR. The Motor Surveyor Report Ex. PW2/10 reflects that all the aforesaid documents except parking slip were collected/submitted by the defendant no. 3 with the plaintiff. So the parking slip Ex PW2/6 has not been submitted by the defendant and therefore, the question which is unanswered is how this parking slip came into the possession of the plaintiff. Plaintiff also examined PW-6 Sh. Anil Kumar, the investigator who submitted the report Ex. PW2/9 to the plaintiff. PW-6 in his cross-examination deposed that he recorded the submission of defendant no. 3 vide Ex. PW6/1. Perusal of Ex. PW6/1 reveals that Ex. PW6/1 was a letter written by defendant no. 3 to PW-6 wherein apart from other things it was mentioned that the parking slip was kept in th file by Sub Inspector (SI) of FIR No. 909 dated 10.10.1998. But PW2 deposed that parking slip was given by defendant no. 3. Nothing has come on record as to how the parking slip from SI came to be filed with plaintiff. Plaintiff did not examine any police official in this regard although they did examine to prove the FIR and untrace report. This non explanation as to how parking slip came to be deposited with plaintiff is the missing chain in the case of plaintiff. Even otherwise it was for the police to CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 13 of 15 investigate the matter and therefore, parking slip must have been obtained by SI which was duly admitted by defendant no. 3 through Ex. PW6/1 proved by plaintiff's witness. Seen in this background, parking slip Ex PW2/6 presented by the plaintiff does raise some serious doubt about its authenticity. Admittedly defendant No.3 has not been examined who could have deposed that Ex PW2/6 was issued to him or that he parked the car in the said parking. Admittedly statement of defendant No3 has not been recorded any where on oath.
26. Second serious doubt come from the fact that in normal practice the parking attendants never write full registration number of the vehicle at the time of parking. Usually they mention last 4 digits of the registration number. In the parking slip Ex. PW2/6 presented by the plaintiff entire vehicle registration number has been written which raises doubt. However, it is made clear that this Court is not acting on this doubt as the former circumstance itself is sufficient to disbelieve the authenticity of the parking slip.
27. In these circumstances, plaintiff has failed to prove that the vehicle was parked at the parking lot of defendants and the same was stolen from the same. It is settled principle of law that plaintiff has to stand on his own legs and any weakness in the case of the defendants will not ipso-facto prove the case of the plaintiff. For this principle of law reliance can be had to case titled as State of J&K v. Hindustan Forest Company, 2006(12) SCC 198.
28. Once plaintiff failed to prove that the vehicle in question was parked at the parking lot of defendant No. 1 and 2, onus did not shift upon the defendant to prove that parking slip was forged and fabricated. Moreover it has already held in before that defendants were successful in bringing circumstances on record which raises doubt about the genuineness of the parking slip Ex PW2/6.
In view of above, issue nos. 7 and 9 are decided against the plaintiff and in favour of the defendants.
CS No. 12098/16 The New India Assurance Company Ltd. vs. NDMC & Ors. Page No. 14 of 15 ISSUE No. 8: Whether the officials of the Plaintiff hurriedly released the amount in favour of vehicle owner without any merit and without completion of proper investigation regarding theft, as alleged in preliminary objection no. 6 in the WS of defendant no. 2? OPD2
29. Onus to prove this issue is upon the defendant no. 2. In the present case, the vehicle was stolen on 10.10.1998 and final payment was released on 10.03.1999. Defendant has not brought any circumstances on record whereby showing that plaintiff was required to wait for particular period before releasing the payment. Admittedly almost it has taken five months for the release of payment. Nothing has been brought on record as to how the release of the payment could be said to be hurriedly done when it was done after due process and after taking 5 months.
In view of above, issue no. 8 is decided against the defendants and in favour of the plaintiff.
ISSUE No. 10: To what principal amount, if any, is the plaintiff entitled from the defendant? OPP ISSUE No. 11: Whether the plaintiff is entitled to any interest, if so at what rate, for which period and to what amount from the defendant? OPP In view of findings recorded on issue No. 7 & 9, issue No. 10 and 11 are decided against the plaintiff and in favor of defendant No.1 and 2.
RELIEF In view of the findings recorded on all issues, suit of the plaintiff is hereby dismissed. Parties to bear cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
(Harish Kumar)
Announced in the open Court ADJ-13(Central) / THC
(Judgment contains 15 pages) Delhi /04.10.2016
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