Delhi District Court
Dilip Kumar Singh vs National Insurance Co Ltd on 8 January, 2024
DLND010158092016
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 59437/16
Sh. Dilip Kumar Singh
S/o Sh. Raghunath Singh
R/o Plot No. 90, Sector-43,
Gold Course Road, Gurgaon,
Haryana
......... Plaintiff
Versus
National Insurance Co. Ltd.
A Company duly Incorporated
under Indian Companies Act,
Having its Registered office at :
3, Middleton Street,
Prafulla Chandra Sen Sarani,
Kolkata, West Bengal - 700071
Having its Divisional Office at :
Div. Office X, Flat no. 101-106,
1st Floor, N-1, B.M.C. House,
Connaught Place, New Delhi - 110001
........ Defendant
Suit presented On : 09.12.2016
Arguments Concluded On : 08.01.2024
Judgment Pronounced On : 08.01.2024
CS 59437/2016 page no. 1 of 17
Dilip Kumar Singh Vs. National Insurance Co. Ltd.
JUDGMENT
1. This is a suit seeking declaration that repudiation letter dated 04.04.2014 is null and void and to recover a sum of Rs.8,05,206/- from the insurance company / the defendant alongwith pendente lite and future interest @ 12% per annum averring that (a) the plaintiff is a registered owner of vehicle bearing no. HR 26 BY 8058, engine no. D13A2073915 and Chasis no. MA3FSEB1S00453538. (b) The plaintiff got insured the vehicle vide comprehensive Insurance Policy bearing no. 35101031126132713980, issued on 28.02.2013 by the defendant, having validity till 27.02.2014. (c) On 09.06.2013, plaintiff sent his driver Sh. Prem Singh to the Delhi Airport to pick the family members of the plaintiff. However, on the way to the airport the vehicle was snatched by 04 persons by force from the driver around Mahipalpur. In the said incident, the driver of the plaintiff was injured and was medically examined vide MLR bearing no. AK/397/2013. (d) On 10.06.2013, the driver of the plaintiff lodged zero FIR no. 20130001 at Sector 17/18, PS Gurgaon at 20:30 hours which was transferred to Delhi Police (e) In the said FIR, it was stated by the driver that he had, against payment of Rs.40/- as fare, allowed 04 passengers to sit in the vehicle who had committed the robbery. (f) On 18.06.2013, the defendant was informed about the incident and the claim was lodged. (g) The defendant hired M/s Laxmandas Arora and Associates as the investigator / surveyor who sought certain original documents from the plaintiff vide letter dated 21.06.2013 which were duly CS 59437/2016 page no. 2 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd. supplied. (h) In the interim, the plaintiff also registered FIR no. 329 of 2013 and the driver of the plaintiff had stated that he had given lift to 04 persons on humanitarian ground, only. (i) On 14.09.2013, untraced report was filed which was duly accepted by the concerned Ld. Metropolitan Magistrate on 27.09.2013. (j) The plaintiff continued to pursue its claim lodged with the defendant and on 14.02.2014 also received a letter from the defendant seeking clarifications regarding change of statement of the driver of the plaintiff which was duly explained. (k) Yet, vide the impugned letter, the defendant repudiated the claim of the plaintiff for using the vehicle for "hire & reward" which was in breach of the "limitations as to use". (l) Now, as the vehicle could not be recovered causing loss to the plaintiff, the plaintiff is before this Court seeking the reliefs mentioned above.
WRITTEN STATEMENT
2. By way of the written statement, preliminary objections have been taken which are broadly as under :
(a) That the plaintiff has not approached the Court with clean hands as he has concealed material facts and has violated the terms of insurance policy.
(b) That the suit is not maintainable as it is hit by Section 12 of The Consumer Protection Act.
CS 59437/2016 page no. 3 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd.
3. On merits, the policy is not in dispute and the occurrence of incident has not been denied. However, it is stated that as per the first FIR registered by the driver of the plaintiff, he had violated the terms of the policy as he had used the vehicle for hire and reward because he had allowed 04 passengers to travel with him on fare @ Rs.40/-. Further, it is stated that even though the plaintiff has claimed that the vehicle was sent to pick his family member from the airport, the name of the family member has not been disclosed and so, the averment is false. Registration of FIR no. 329/2013 at PS Vasant Kunj is not denied but the contradictory statement of the driver is challenged. It is denied that the impugned letter is erroneous and without any application of mind. It is denied that the defendant is liable to pay Rs.8,05,206/- with interest.
REPLICATION
4. Preliminary objections have been denied. It is also denied that Section 12 of The Consumer Protection Act is applicable to the present case as it is only a remedy in addition to filing of a civil suit. It is also denied that the driver was tutored by the plaintiff to change his statement at the time of registration of FIR no. 329/2013 at PS Vasant Kunj. Rest of the contents of the plaint are reiterated.
CS 59437/2016 page no. 4 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd. ADMISSION AND DENIAL OF DOCUMENTS
5. No admission and denial of documents have been conducted on behalf of the parties.
ISSUES
6. Vide order dated 15.03.2015, following issues were framed:
1. Whether the vehicle in question was used for hire and reward at the time of incident on 09.06.2013?
2. Whether the plaintiff is entitled to the decree for declaration as prayed ? OPD
3. Whether the plaintiff is entitled to the recovery of the amount claimed in the suit? OPP
4. Whether the plaintiff is entitled for pendene lite and future interest on decree amount? If so, at what rate for what period? OPP
5. Relief.
6.1 Vide order dated 05.06.2017 issue no. 2 was amended and onus to prove the same was fixed upon the plaintiff.
2. Whether the plaintiff is entitled to the decree for declaration as prayed ? OPP CS 59437/2016 page no. 5 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd.
PLAINTIFF EVIDENCE
7. To prove his case, the plaintiff examined himself as PW-1, he tendered his evidence by way of affidavit Ex. PW-1/A and relied upon the following documents:
Sr. No. Documents Exhibited as
1. Copy of registration certificate of vehicle in Mark A question
2. Copy of insurance policy placed on record by Ex. PW1/2 defendant
3. Copy of zero FIR no. 20130001 placed on Ex. PW1/3 record by defendant
4. Copy of letter dated 15.06.2013 delivered at Mark B office of defendant on 18.06.2013
5. Copy of FIR no. 329/2013 filed on record by Ex. PW1/5 defendant
6. Copy of untraced report dated 14.09.2013 Ex. PW1/6 placed on record by defendant
7. Copy of statement of plaintiff and order dated Mark C also 27.09.2013 Ex. PW2/1
8. Copy of letter dated 04.02.2014 placed on Ex PW1/8 record by defendant
9. Copy of explanation submitted by plaintiff Mark D
10. Copy of letter dated 04.04.2014 placed on Ex. PW1/10 record by defendant He was duly cross-examined by the Ld. Counsel for the defendant.
CS 59437/2016 page no. 6 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd. 7.1 PW2 Ms. Jyoti Rawat from Record Room Criminal, Patiala House Courts brought the summoned Court file pertaining to FIR no. 329/13, PS Vasant Kunj, South to prove certified copies of statement of Sh. Dilip Kumar Singh and order dated 27.09.2013 as Ex. PW2/1.
7.2 PW3 Sh. Kulbhushan Yadav, Record Keeper, Civil Hospital, Gurugram, Haryana proved Original Medico Legal Report no. AK/397/2013 dated 10.06.2018 of Sh. Prem Singh as Ex. PW3/A. 7.3 Vide a separate statement dated 08.07.2019, plaintiff evidence stood closed.
DEFENDANT EVIDENCE
8. In defence, Sh. Sanjeev Patni, Deputy Manger of the defendant company examined himself as DW-1. He tendered his evidence by way of affidavit Ex. DW-1/A and relied upon the following documents:
Sr. Documents Exhibited as
No.
1. Insurance policy alongwith terms and Already
conditions Ex. PW1/2
2. Repudiation letter dated 04.04.2014 Already
Ex. PW1/10
3. Theft investigation report Ex. DW1/1
4. Letter dated 18.09.2013 Ex. DW1/2
CS 59437/2016 page no. 7 of 17
Dilip Kumar Singh Vs. National Insurance Co. Ltd.
5. Letter dated 29.12.2013 Ex. DW1/3
6. Letter dated 04.02.2014 Already Ex. PW1/8 8.1 He was duly cross-examined by the Ld. Counsel for the plaintiff.
FINAL ARGUMENTS
9. Final arguments have been advanced by Sh. Gaurav Gupta and Sh. Amit Gaur, Ld. Counsel for the plaintiff and the defendant, respectively. Ld. Counsel for the plaintiff has relied upon the following judgments :
(i) National Insurance Co. Ltd. Vs. Nitin Khandelwal1
(ii) Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.2 REASONING AND APPRECIATION OF MATERIAL ON RECORD
10. This Court has considered the submissions and material on record.
ISSUEWISE FINDINGS A. Whether the vehicle in question was used for hire and 1 Civil Appeal no. 3409 of 2008 (Arising out of SLP (Civil) No. 20902 of 2006) decided on 08.05.2008 2 Civil Appeal no. 2703 of 2010 (Arising out of SLP (C) No. 11227/2009) decided on 25.03.2010 CS 59437/2016 page no. 8 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd. reward at the time of the incident on 9.6.2013? OPD (Issue no.1)
11. Onus to prove this issue was upon the defendant.
11.1 It has been argued on behalf of the defendant that it has discharged the onus as can be gathered from the cross examination of PW1 who admitted that he was a manager at a PG named Royal Residence, Gurgaon and that the employees of various MNCs used to stay at the guest house. Therefore, it has been canvassed that the plaintiff was utilizing his private vehicle for commercial purpose for pick and drop of the guests coming to the guest house. Further, drawing the attention of the Court to zero FIR no.20130001 (Ex. PW1/3) and FIR no. 329/2013 (Ex. PW1/5), it has been argued that there has been a delay of almost 2 months in registering the second FIR which is an after thought contemplating that the plaintiff may not be successful in his claim and so, the plaintiff tutored his driver to improve his subsequent statement that he had only given lift to the 04 passengers on humanitarian grounds. However, it has been further argued that since the driver though cited as a witness was never examined as his examination would reveal the tutoring.
11.2 Per contra, it has been argued on behalf of the plaintiff that the defendant failed to demonstrate that the plaintiff was using the vehicle for commercial purpose and even assuming that CS 59437/2016 page no. 9 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd. the vehicle was being used for hire and reward, in violation of "limitations as to use", in view of National Insurance Co. Ltd. Vs. Nitin Khandelwal (Supra) and Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. (Supra), the plaintiff was still entitled to his claim on a non-standard basis.
11.3 The Court has considered the submissions and material on record. Even though the defendant elicited admission from the plaintiff that he was working as a manager at Royal Residence, the witness denied all suggestions that the vehicle was being used for pick and drop of the guests. Indeed, the material witness to prove the usage at the time of the incident was the driver Sh. Prem Singh whose two statements are brought to the notice of the Court by way of zero FIR no.20130001 (Ex. PW1/3) and FIR no. 329/2013 (Ex. PW1/5). All suggestions of tutoring stood declined by the plaintiff and there is no credible evidence led by the defendant to arrive at a conclusion that the driver was tutored. Even though, the plaintiff did not examine the driver, it was open to the defendant to summon the driver through the Court to cross examine him qua the authenticity of the statements and for ascertaining whether the subsequent FIR was on being tutored. The Court cannot act on conjectures and surmises. Rather, on the basis of material on record, there is no conclusive finding which can be given on the usage of the vehicle at the time of the incident. Therefore, the issue is decided against the defendant.
CS 59437/2016 page no. 10 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd. B. Whether the plaintiff is entitled to the decree for declaration as prayed ? OPP (Issue no.2)
12. Onus to prove this issue was upon the plaintiff.
12.1 Assuming for the sake of arguments that the plaintiff had been using the vehicle for hire and reward, was it then appropriate for the defendant to repudiate the claim?
12.2 Here, it would be relevant to visit the law on this issue. It has been held in Ashok Kumar Vs New India Assurance Co. Ltd.3 as under :
13) A reading of the facts of the case in Nitin Khandelwal (supra), reveal that the repudiation was on the ground that the vehicle was being used as a taxi and in Amalendu Sahoo (supra), it was on the ground that the vehicle was being used on hire. In our view, that would not make any difference to the ratio that is deducible from those judgments.
14) 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.
[see Manjeet Singh vs. National Insurance Company Limited and Another4, B.V. Nagaraju vs. Oriental Insurance Co. Ltd., Divisional Officer, Hassan5, National Insurance Co. Ltd. Vs. Swaran Singh and Others6 and Lakhmi Chand vs. Reliance General Insurance7]
15) It is an admitted position in the Repudiation Letter and the Survey Report that the theft did happen. What is alleged is that the Claimant was negligent in leaving the vehicle 3 Civil Appeal no. 4758 of 2023 (Arising out of SLP (Civil) no. 25256 of 2018) decided on 31.07.23 4 (2018) 2 SCC 108 5 (1996) 4 SCC 647 6 (2004) 3 SCC 297 7 (2016) 3 SCC 100 CS 59437/2016 page no. 11 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd.
unattended with the key in the ignition. Theft is defined in Section 378 of the IPC as follows:-
"378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."
As will be seen from the definition, theft occurs when any person intended to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking. It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle, in which event that would not be theft, in the eye of law. Could it be said, as is said in the repudiation letter, that the theft of the vehicle was totally the result of driver Mam Chand leaving the vehicle unattended with the key in the ignition? On the facts of this case, the answer has to be in the negative.
16) The Court of Appeal in England, in the case of David Topp vs. London Country Bus (South West) Limited 8, had occasion to consider the issue, though in the context of liability of the owner of the vehicle for a fatal accident. The facts as set out in the judgment are as follows:-
"In accordance with usual practice, the driver, Mr. Green, left the bus in that lay-by at the bus stop at about 2.35 p.m. on 24th April 1988. He left it unlocked, with the ignition key in it. He had then a 40 minute rest period before resuming his duties, driving a different bus. There was an arrangement under which the drivers could spend their rest period in the hospital. The expectation was that another driver, about eight minutes after Mr. Green had left the bus in the lay-by, would pick the bus up and drive the same route. But the other driver, who should have picked the bus up at about 2.43 p.m., did not do so because he was feeling unwell. His shift would have been non-compulsory overtime, and he did not report for his overtime. The bus therefore remained in the lay-by. Mr. Green saw it there later and reported that it was still standing there. Therefore, there is no doubt that the depot knew that the bus was there. But, possibly because of shortage of drivers or available staff, nothing was done to pick the bus up that evening. It was taken by somebody who has never been traced just before 11.15 at night, driven for a relatively short distance until the point where Mrs. Topp was knocked down and killed, and it was abandoned round the corner from there."
8 (1993) EWCA Civ 15 CS 59437/2016 page no. 12 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd.
Referring to the judgment of Lord Justice Robert Goff in P.Perl (Exporters) Ltd. vs. Camden London Borough Council9, the Court of Appeal held as under:-
"In so far as the case is put on the basis that to leave the bus unlocked and with the key in the ignition on the Highway near a public house is to create a special risk in a special category, it is pertinent to refer to a passage in the judgment of Lord Justice Robert Goff (as he then was) in P. Perl (Exporters) Ltd. V. Camden London Borough Council at page 359E-F where he said:
"In particular, I have in mind certain cases where the defendant presents the wrongdoer with the means to commit the wrong, in circumstances where it is obvious or very likely that he will do so - as, for example, where he hands over a car to be driven by a person who is drunk, or plainly incompetent, who then runs over the plaintiff..."
But the sort of cases to which Lord Justice Robert Goff was there referring are far different from the present case. It may be added that that there is no evidence that the malefactor had been frequenting the public house that is shown in the picture; we do not know who he was, nor is there any evidence or presumption that persons who do frequent that particular public house are particularly likely to steal vehicles and engage in joy-riding." (underlining is ours) The above reasoning appeals to us to conclude that the present case was an eminently fit case, where the claim at 75% ought to have been awarded on a non-standard basis. Even if there was some carelessness, on the peculiar facts of this case, it was not a fundamental breach of Condition No.5 warranting total repudiation. It was rightly so ordered by the District Forum and affirmed by the State Commission. .....
18) In Amalendu Sahoo (supra), this Court noticed the guidelines issued by the New India Assurance Co. Ltd. in settling claims on non-standard basis. The guidelines read as under:-
Sl.no. Description Percentage of
settlement
(i) Under declaration of Deduct 3 years'
licensed carrying capacity difference in
premium from the
amount of claim or
deduct 25% of claim
9 (1984) QB 342
CS 59437/2016 page no. 13 of 17
Dilip Kumar Singh Vs. National Insurance Co. Ltd.
amount, whichever is higher.
(ii) Overloading of vehicles Pay claims not beyond licensed carrying exceeding 75% of capacity admissible claim.
(iii) Any other breach of Pay up to 75% of warranty / condition of admissible claim policy including The above guidelines were followed by this Court in Amalendu Sahoo (supra) as is clear from para 14 of the said judgment. The District Forum and the State Commission have rightly applied Amalendu Sahoo (supra) to the facts of the present case and awarded 75% on non-standard basis.
19) Nitin Khandelwal (supra) and Amalendu Sahoo (supra) lay down the correct formula that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct. We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the table set out in para 14 of Amalendu Sahoo (supra) is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim."
(emphasis supplied) 12.3 Therefore, in the facts of the present case also, even if the defendant could have proved commercial use of the vehicle, it would still not be considered as a fundamental breach of the insurance policy to deny the claim.
12.4 An objection has been taken qua the plaintiff not approaching the Court with clean hands and concealing the first statement of the driver. However, the plaint itself refers to zero FIR no. 20130001 (Ex. PW1/3) got registered by the driver where he had stated that he had charged Rs. 40/- from the passengers for dropping them from IFFCO Chowk, Mahipalpur CS 59437/2016 page no. 14 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd. to Mahipalpur, Delhi. Also, alongwith the plaint the copy of Zero FIR was filed by the plaintiff. Therefore, it cannot be said that the factum was concealed from this Court.
12.5 By way of the examination of Ms. Jyoti Rawat (PW2), the plaintiff has proved order dated 27.09.2013 accepting the untraced report filed in FIR no. 329 of 2013, PS Vasant Kunj South (Ex.PW1/5). It is not in dispute that the vehicle was never recovered or that loss was not caused to the plaintiff. Therefore, the plaintiff is entitled to the declaration sought against the repudiation letter dated 04.04.2014 (Ex. PW1/10).
12.6 Accordingly, the issue is decided in favour of the plaintiff.
C. Whether the plaintiff is entitled to the recovery of the amount claimed in the suit? OPP (Issue no.3) D. Whether the plaintiff is entitled for pendene lite and future interest on decree amount? If so, at what rate for what period? OPP (Issue no. 4)
13. The issues are taken up for discussion together as they are co-related.
13.1 Onus to prove issues no. 3 and 4 was upon the plaintiff.
13.2 In view of the above discussion on issue no. 1 and 2, this CS 59437/2016 page no. 15 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd. Court is of the view that the plaintiff is entitled to 75% of the admissible claim on non-standard basis. Reliance is placed upon National Insurance Co. Ltd. Vs. Nitin Khandelwal (Supra) and Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. (Supra) and Ashok Kumar Vs New India Assurance Co. Ltd.
13.3 The issues are accordingly, decided in favour of the plaintiff.
13.4 The plaintiff has claimed pendente lite and future interest @12% per annum on the value of the vehicle. It is so stated in the affidavit Ex. PW1/A to be the usual and customary rate of interest prevalant in the market. However, no such customary practice has been established. Admittedly, there is no contractual rate of interest. But keeping in view the nature of the transaction, it is ordered that rate of interest @9% per annum shall be reasonable as pendente lite and future interest upon the decreetal amount.
RELIEF
14. In view of the above discussion the suit of the plaintiff is decreed alongwith costs as under :
(a) The plaintiff is entitled to recover 75% of the car value (i.e. Rs.5,69,050/- as mentioned in para no. 19 of the plaint) from the defendant.
CS 59437/2016 page no. 16 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd.
(b) Plaintiff is also entitled to pendente lite and future interest @ 9% per annum from the date of filing of suit till its realization.
15. Decree sheet be prepared, accordingly.
16. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 08.01.2024 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS 59437/2016 page no. 17 of 17 Dilip Kumar Singh Vs. National Insurance Co. Ltd.