Delhi District Court
Malkit Singh vs M/S Reliance General Insurance Co. Ltd on 25 April, 2016
IN THE COURT OF SH. RAJ KUMAR CHAUHAN, ADJ04,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Civil Suit No. 762/14
In the matter of:
Malkit Singh
S/o Sh. Waryam Singh
R/o C202, CBlock,
Majlish Park,
New Delhi110033 .............Plaintiff
Versus
M/s Reliance General Insurance Co. Ltd.
Plot No. 60, PhaseIII,
Okhla Industrial Estate,
New Delhi110020
Also at:
21st Floor, SCO2, Sector16,
Faridabad, Haryana .........Defendant
Date of institution of the suit:31.05.2012
Date reserved for judgment:06.04.2016
Date of pronouncement of judgment: 25.04.2016
JUDGMENT
Suit for recovery of Rs. 13,27,334/ alongwith interest @ 12% per annum.
1. The plaintiff has instituted the present suit for recovery of Rs.
13,27,334/ against the defendant interalia alleging that plaintiff is registered owner of the vehicle bearing no. HR38N7182 and the same was insured with the defendant vide policy bearing no. Malkit Singh Vs. Reliance General Insurance Co. Ltd. 1 /19 1303792334003692 valid from 16.01.2010 to 15.01.2011 for a sum of Rs. 11 lakhs; on 26.06.2010 the said vehicle was being driven by Captan Singh, the authorised driver of the plaintiff when he was going from New Delhi towards Guwahati and about 10 pm the said driver reached at Ramganj Flyover within the jurisdiction of PS Islampur, West Bengal, all of a sudden a Tata Safari came being driven by its driver, one of the occupant of the Tata Safari got stopped the vehicle of plaintiff by giving a signal of torch; the driver stopped the vehicle under the impression that he has been stopped by the RTO; one of the occupant of the Tata Safari immediately after stopping the vehicle bearing no. HR 38N 7182 forcibly entered in the cabin of his vehicle from driver site and another occupant of the Tata Safari entered from helper side and on gun point the miscreants took away the vehicle of the plaintiff after tieing the hands, mouth and eyes of the driver and cleaner; those miscreants took away the above truck as well as two mobile phones and cash of Rs. 16,500/ alongwith documents of the vehicle; the driver and cleaner were left in a forest/jungle on the next day.
2. It is further alleged that since the mobile phone and cash of the driver and cleaner has already been snatched by the miscreants, therefore, they were not in a position to inform the plaintiff regarding the theft of the vehicle; after taking lift from unknown driver, they reached at the Malkit Singh Vs. Reliance General Insurance Co. Ltd. 2 /19 hotel and came to know that they were at Dubrajpur; thereafter, they informed the plaintiff regarding the theft of vehicle.
3. That immediately thereafter the plaintiff instructed the driver and cleaner to lodge a complaint but despite their best efforts they could not lodge the police complaint because police kept them asking to go from one place to another on the ground that the place of occurrence was not falling under the place of jurisdiction where the driver has visited; as a result the plaintiff was compelled to file a complaint case in the court of Ld. ACJM, Islampur and with the direction of said court the police has registered a FIR against the unknown miscreants.
4. That after investigation police filed an untraced/closure report in the court as the miscreants and vehicle could not be traced out by the police; that the plaintiff lodged a claim with defendant and has supplied each and every documents/information required by the defendant for the settlement of its claim; the plaintiff also sent various emails to officials of defendant company regarding release of cheque insured amount but all went in vain.
5. It is further alleged that defendant company instead of releasing the claim/insured amount sent a letter dated 19.04.2012 to the plaintiff wherein the defendant company has repudiated the claim of the plaintiff on false and frivolous ground i.e. violation of policy condition. Malkit Singh Vs. Reliance General Insurance Co. Ltd. 3 /19
6. That on receiving intimation of theft of vehicle from the driver and cleaner the plaintiff has visited the office of defendant and tried to lodge a claim but he was advised by the officials of defendant to get the FIR lodged and then supply the complete set of documents; since all the documents of the vehicle were taken by the miscreants alongwith vehicle, therefore, it was not possible for the plaintiff to supply the documents; immediately after collecting the said documents, the plaintiff supplied each and every documents to the office of the defendant and its investigator; the defendant has repudiated the claim of the plaintiff without any reasons and the ground of repudiation is totally baseless, arbitrary, unjust, illegal and against the basic principal of law. The defendant company was legally liable to pay Rs. 11,00,000/ alongwith interest @ 12% per annum from the date of lodging of the claim till the realization of the said amount which has been withheld by the defendant. The plaintiff has issued legal notice dated 07.05.2012 asking for the suit amount alongwith interest from the defendant but despite service of legal notice the defendant did not act upon the request of the plaintiff. Hence, the present suit has been instituted for the recovery of Rs. 13,27,334/ alongwith interest @ 12% per annum.
7. The defendant contested the suit by filing the WS wherein he took preliminary objection that the plaint does not disclose any cause of Malkit Singh Vs. Reliance General Insurance Co. Ltd. 4 /19 action; the plaintiff has breached condition no.1 of the insurance contract by virtue of which he was obliged to intimate the insurance company immediately upon the occurrence of the incident; the plaintiff has blatantly delayed in lodging the FIR pertaining to the said loss; for these reasons the defendant was not obliged to indemnify the plaintiff for such loss; the theft occurred on 26.06.2010 and the plaintiff intimated the insurance company on 10.09.2010 causing unreasonable delay of 75 days; the plaintiff has also delayed in intimating the police thereby restraining them to investigate the factum of the alleged theft. After intimation of the loss by the plaintiff, the defendant deputed investigator M/s SHAPT PREOFESSIONAL SERVICES PVT LTD to investigate the matter; the investigator vide letter dated 22.10.2010, 06.12.2010 and personal visit on various dates on 19.09.2010 to 06.12.2010 requested the plaintiff to cooperate in the investigation; the plaintiff did not co operate in the investigation for investigating the cause of theft; the plaintiff has suppressed and concealed the material facts with respect to the cause of theft and has not approached the court with clean hands. Therefore, the suit of the plaintiff is not maintainable.
8. On merit all averments in the plaint have been controverted and denied by the defendant.
9. In replication, the plaintiff has reiterated the stand taken in the plaint and Malkit Singh Vs. Reliance General Insurance Co. Ltd. 5 /19 denied the averments of the defendant made in the written statement.
10. After completion of pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 06.08.2013:
(1) Whether the plaintiff has no cause of action? OPD (2) Whether the plaintiff is entitled to decree for a sum of Rs. 13,27,334/ (Rupees Thirteen Lacs Twenty Seven Thousand Three Hundred Thirty Four Only) OPP (3) Whether the plaintiff is entitled to interest, if so, for what period and for what rate?OPP (4) Relief.
11. In support of its case plaintiff has examined himself as PW1.
12. Sh. Abhishek Bhardwaj was examined on behalf of defednant as DW1.
13. I have heard the arguments of both the sides and have carefully gone through the entire material on record.
MY ISSUEWISE FINDINGS ARE AS UNDER:
ISSUE No.(1):
Whether the plaintiff has no cause of action? OPD
14. The onus of this issue was upon the defendant. DW1 simply stated in his affidavit Ex.DW1/A that bare perusal of the plaint shows that it does not disclose any cause of action against the defendant; the suit has been filed just to cause unwarranted harassment to the defendant and to have undue and wrongful gains; the plaintiff has breached the condition no.1 of the insurance policy wherein plaintiff was obliged to intimate the insurance company upon the occurrence of the incident regarding the theft of the vehicle in question; since the plaintiff acted in Malkit Singh Vs. Reliance General Insurance Co. Ltd. 6 /19 contravention to the terms and conditions of the insurance policy, therefore, defendant is not liable to indemnify him. The attested copy of the insurance policy alongwith term and condition is placed on record as Ex.DW1/1.
15. What is meant by 'cause of action' was considered in AIR 1960 SC 1309. It means: "Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved."
1.
16. In AIR 1966 Allahabad 333 it was held that: "Cause of Action' is thus a bundle of facts which, if proved, would entitle the plaintiff to a judgment in his favour but it is not evidence which would be adduced to prove each fact."
17. The term 'cause of action' has been explained by the Hon'ble Apex Court in AIR 2004, Supreme Court 1761 as under : "The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right of the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises on 'cause of action'.''
18. Thus, the cause of action is a bundle of facts which is required to be alleged and proved by the plaintiff in order to succeed in its case.
19. It is settled law that in order to find out whether the plaint discloses the Malkit Singh Vs. Reliance General Insurance Co. Ltd. 7 /19 cause of action the content of the plaint is required to be looked into alongwith documents of the plaintiff whereas the defence of the defendant is not required to be looked into.
20. The main thrust of the defendant is that the condition no.1 of the insurance policy has been breached by the plaintiff by not lodging a claim within a reasonable time immediately after incident. On perusal of the plaint it is found that the plaintiff has sufficiently made averments explaining the delay in lodging the claim as well as lodging of the FIR. It is also stated in the plaint that immediately after the incident the plaintiff tried to inform the defendant wherein the officials of defendant asked him to first lodge the FIR and then lodge its claim based on the insurance policy. It is sufficiently explained in the plaint in the averments that the FIRs is not filed by local police despite best efforts wherein the plaintiff was compelled to file the private complaint in the court of Ld. ACJM, Islampur and after direction of the said court the FIR was got lodged. Moreover, from the facts and circumstances as alleged in the plaint and also supported in the affidavit of plaintiff, there is nothing to conclude that the plaint does not disclose any cause of action for instituting the present suit. It is therefore found from the material on record and the evidence led by the parties that the plaintiff has alleged those essential facts which discloses valid cause of action in favour of Malkit Singh Vs. Reliance General Insurance Co. Ltd. 8 /19 plaintiff to institute the present suit. Accordingly, issue no.1 is decided in favour of plaintiff and against the defendant.
ISSUE NO.(2) and ISSUE NO.(3) Whether the plaintiff is entitled to decree for a sum of Rs. 13,27,334/ (Rupees Thirteen Lacs Twenty Seven Thousand Three Hundred Thirty Four Only) OPP Whether the plaintiff is entitled to interest, if so, for what period and for what rate?OPP
21. Both these issues are taken up together as both these issues are inter linked.
22. The onus to prove this issue was upon the plaintiff. Plaintiff in his affidavit Ex.PW1/A deposed that he was registered owner of vehicle which was insured vide policy bearing no. 1303792334003692 copy of the policy is Ex.PW1/1. The plaintiff has further proved that on 26.06.2010 the vehicle in question was forcibly taken away from the possession of driver and cleaner of the plaintiff in West Bengal within the jurisdiction of PS Islampur at Ramganj Flyover and on second day the driver and cleaner were thrown in jungle and with great difficulty they came on the main road and then visited nearest PS but despite their best efforts police did not lodge the FIR of the said incident. The plaintiff further proved in evidence that he had to file application under section 156 (3) Cr PC wherein the FIR was lodged after the direction of Ld. ACJM. He has proved certified copy of FIR, final report of Malkit Singh Vs. Reliance General Insurance Co. Ltd. 9 /19 investigation and application under section 156 (3) Cr PC Ex.PW1/2 to Ex.PW1/4.
23. PW1 further deposed that he has lodged a claim with the defendant company after supplying each and every document required by defendant for settlement of plaintiff's claim. He has proved the copy of the claim form, statement of driver and plaintiff as Ex.PW1/5 (colly), communication made through emails by the plaintiff to the defendant is proved as Ex.PW1/6 (colly). He has further deposed that inspite of settling the claim for the insurance amount, the defendant company vide letter dated 19.04.2012 repudiated the claim of the plaintiff on false and frivolous ground stating that he has violated the insurance policy. The said letter is proved as Ex.PW1/7. PW1 has further deposed in para no.10 of his affidavit that plaintiff has duly informed the office of the defendant company and he was assured by the office of the defendant company that they will lodge a complaint after lodging of the FIR etc; he was advised by the officials of the defendant to first get the FIR lodged and then supply the complete set of documents; since all the documents were taken away by the miscreants alongwith vehicle it took time to plaintiff to collect the documents and after collecting all the necessary documents, the same were deposited in the office of defendant. It is further deposed that the ground of repudiation of claim of plaintiff were Malkit Singh Vs. Reliance General Insurance Co. Ltd. 10 /19 false and frivolous. PW1 has further proved the copy of the legal notice Ex.PW1/10, copy of postal receipts and courier receipts Ex.PW1/9, Ex.PW1/10, Ex.PW1/11 and Ex.PW1/12. Copy of the AD card having endorsement of the defendant is proved as Ex.PW1/13. It is further deposed that plaintiff suffered great monetary loss on account of theft of insured vehicle and also not by releasing the insurance amount by the defendant; therefore, the defendant company was liable to pay the insured amount alongwith interest.
24. In his cross examination he has deposed that the truck in the present case was stolen at Ramganj flyover, PS Islampur, West Bengal; the truck was in West Bengal as it was transporting goods from Delhi to Guwahati; the truck was stolen on 26.06.2010 at about 10 pm and the driver of the vehicle was abducted alongwith truck and was thrown in jungle next day; he gave a telephone call to him and he (PW1) asked him to get the FIR registered immediately but the police did not register the FIR and then they moved the court and got the FIR registered; he further deposed in cross examination that he has informed the defendant about the theft telephonically but they asked for the copy of the FIR; he had given the information in writing also to the defendant company; the insurance company refused to take the information regarding theft in writing without copy of FIR; they deposited their claim Malkit Singh Vs. Reliance General Insurance Co. Ltd. 11 /19 after receipt of copy of FIR as per the instructions of the defendant company; the rejection was due to delay in FIR and not informing the police at number 100. He has further stated that they were informed by the defendant company for the delay of 75 days in registering the FIR and therefore, the claim was rejected on that account; he further deposed that nothing was recovered in the present case and police has filed untrace report.
25. The defendant has examined Sh. Abhishek Bhardwaj, ManagerLegal Claims of the defendant company by filing affidavit Ex.DW1/A. DW1 deposed that as per insurance policy, the plaintiff has committed breach of condition no.1 if the insurance agreement and by virtue of that condition the plaintiff was obliged to intimate the insurance company immediately upon the occurrence of the incident; the plaintiff has belatedly delayed in lodging the FIR pertaining to the loss of insured vehicle; since the plaintiff has acted in contravention of terms and condition of the insurance policy, therefore, he is not liable to indemnified against the loss. It is further deposed that the plaintiff has deliberately delayed in lodging the FIR and failed to intimate the insurance company about the loss immediately as per the terms and conditions of the insurance policy/contract Ex.DW1/1. It is further deposed that there was delay of 75 days in lodging the claim because Malkit Singh Vs. Reliance General Insurance Co. Ltd. 12 /19 the theft occurred on 26.06.2010 and plaintiff intimated the insurance company on 10.09.2010; it is further deposed that the delay of 75 days was fatal as it prevented the defendant from carrying out any investigation as to the truth of the alleged theft; the plaintiff has delayed in intimating the police thereby restraining the police to investigate the factum of the alleged theft.
26. In his cross examination by Ld. Counsel for plaintiff, DW1 admitted that policy was issued on 16.01.2010 at 05.00 pm and he cannot say whether the term and condition was issued with the cover note; he further admitted that as per repudiation letter Ex.PW1/7 the claim was rejected on 19.04.2012; the investigator was supposed to give his report within 1215 days and investigator was appointed in this case on 22.10.2010 and he gave his report on 06.12.2010; he has further admitted in the cross examination that when the vehicle was damaged or stolen the total IDV was given by the company; he further stated that he cannot say as to whether the policy in question was sent through registered post or through courier.
27. As is evident from the evidence of the defendant's witness the main thrust of the defendant for rejection of the claim of the plaintiff was that the plaintiff has failed to get the FIR registered immediately or to intimate the defendant company about the theft of the vehicle in Malkit Singh Vs. Reliance General Insurance Co. Ltd. 13 /19 question immediately as per condition no.1 of the insurance policy. It has been successfully proved by the plaintiff through deposition of PW1 that the local police did not lodge the FIR despite best efforts by the plaintiff as well as the driver of the stolen vehicle. The FIR was got registered after the direction of the local court under section 156 (3) Cr.PC. The PW1 successfully withstood the test of cross examination with regard to his deposition wherein he has deposed that he has immediately informed the defendant company about the loss of the vehicle but the defendant company refused to entertain his intimation without FIR. It is admitted case by defendant that the untrace report was filed by police after investigation and the vehicle in question could be recovered and no one was arrested in the theft of the vehicle and abduction of driver and cleaner of insured vehicle. The condition no.1 on the basis of which the defendant claimed to have repudiated the insurance claim of the plaintiff reads as under: Condition no.1: Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution Inquest of Fatal Inquiry in respect of any occurrence which may given rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and cooperate with the Company in securing the conviction of the Malkit Singh Vs. Reliance General Insurance Co. Ltd. 14 /19 offender.
28. On perusal of condition no.1 it is found that in case of theft or criminal act, as was the case in present case, the insurer was required to give immediate notice to the police and cooperate with the Company in securing the conviction of the offender. The PW1 has unequivocally deposed that immediately after the abduction of driver and cleaner of the vehicle in question and forcibly taking away of the vehicle in question, the driver and cleaner approached the local police for lodging of the FIR. The local police did not lodge the FIR and plaintiff has filed a private complaint and thereafter after the direction of the court under section 156 (3) Cr.PC the FIR got registered. The deposition of plaintiff's witness in that regard is unchallenged as PW1 has successfully withstood the test of cross examination. By informing the local police about the incident of theft of the insured vehicle and abduction of truck driver and cleaner, the condition no.1 with regard to case of theft or criminal act has been complied with by the policy holder i.e. plaintiff.
29. In support of their arguments, Ld. Counsel for defendant referred and relied upon the case of National Consumer Disputes Redressal Commission in titled "New India Assurance Company (appellant) Vs. Trilochan Jane (respondent) in C.D Case No. 60/2001 of Orissa Order dated 09.12.2009" wherein it was held as under: Malkit Singh Vs. Reliance General Insurance Co. Ltd. 15 /19 The respondent did not care to inform the insurance company about the theft for a period of 09 days, which could be fatal to the investigation. The delay in lodging the FIR after 2 days of the coming to know of the theft and 09 days to the insurance company, can be fatal as, in the meantime, the car could have traveled a long distance or may have been dismantled by that time and sold to kabaadi (scrap dealer).
30. Ld. counsel for defendant has also relied upon the case titled "United India Insurance Co. Ltd. Vs. Harchand rai Chandan Lal Civil Appeal No. 6277 of 2004 date of decision 24.09.2004" wherein it was held that term of the contract has to be strictly read and natural meaning be given to it.
31. Ld. counsel for defendant has also relied upon the case of National Consumer Disputes Redressal Commission New Delhi in titled "HDFC Ergo General Insurance Co. Ltd. (appellant) Vs. Bhagchand Saini (respondent) Revision Petition No. 3049 of 2014 and IA/4956/2014 date of decision 04.12.2014" in that case the tractor in question was stolen on 06.12.2011 and intimation about the theft was given to the local police on 08.12.2011 i.e. 02 days after the incident. The intimation was given to the insurance company after a gap of 98 days. The revision petition was accepted and claim of the complainant for was rejected.
32. Ld. counsel for plaintiff on the other hand referred and relied upon the case of Supreme Court of India in case titled "National Insurance Co. Malkit Singh Vs. Reliance General Insurance Co. Ltd. 16 /19 Ltd. Vs. Nitin Khandelwal date of decision 08.05.2008 appeal (civil) 3409/2008" wherein it was held that in case of theft of vehicle, the breach of condition is not germane. In that case the vehicle has been snatched or stolen, therefore, the appellant company was held liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.
33. Ld. counsel for plaintiff has further relied the case of National Consumer Disputes Redressal Commission, New Delhi titled "National Insurance Co. Ltd. Vs. Kulwant Singh reported as 2014 STPL (CL) 3659 NC"
wherein it was held as under: The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.
The insurers' decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejecting of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation.
Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time.
Malkit Singh Vs. Reliance General Insurance Co. Ltd. 17 /19 The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers' stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.
34. The case referred and relied upon by the plaintiff squarely covers the facts and circumstances of the present case because the defendant has not given specific reason for repudiation of the claim which was a genuine claim based on the forcible taking away of the vehicle from the possession of the driver and cleaner of the insured vehicle. Moreover, the driver and cleaner were allegedly abducted and thrown in jungle and they managed to come to the road next day and thereafter tried to lodge a complaint but the local police refused to lodge the FIR and the plaintiff was compelled to file an application under section 156 (3) Cr PC wherein the FIR was lodged after the direction of Ld. ACJM. As discussed above, the condition no.1 with regard to the theft and criminal act has already been complied with by the plaintiff of the present case.
35. The plaintiff has proved that the vehicle in question was insured with the defendant vide policy no. 1303792334003692 valid from 16.01.2010 to 15.01.2011 in the name of plaintiff for a sum of Rs. 11 lakhs. The plaintiff has proved that the said vehicle was stolen on 26.06.2010 at Ramganj Flyover within the jurisdiction of PS Islampur, West Bengal. The plaintiff was therefore entitled to the recovery of insured amount of Malkit Singh Vs. Reliance General Insurance Co. Ltd. 18 /19 Rs. 11 lacs alongwith interest @ 12% per annum from the date of lodging of the claim i.e. 10.09.2010 till the realisation of the suit amount. Hence, issue no.2 and 3 are accordingly decided in favour of plaintiff and against the defendant.
ISSUE NO.(4):
Relief.
36. In view of my findings on the above mentioned issues, the suit of the plaintiff is decreed for sum of Rs. 11 lacs alongwith interest @ 12% per annum from the date of lodging of the claim i.e. 10.09.2010 till the realisation of the decreetal amount.
37. Cost of the suit is also allowed in favour of plaintiff and against the defendant.
38. Decree sheet be prepared accordingly.
39. File be consigned to record room after due compliance.
Dictated and announced in the open court on 25.04.2016 (RAJ KUMAR CHAUHAN) ADJ04 (South) Saket Courts / New Delhi 25.04.2016 Malkit Singh Vs. Reliance General Insurance Co. Ltd. 19 /19 Malkit Singh Vs. Reliance General Insurance Co. Ltd. 20 /19