Delhi District Court
M/S Kanpur Delhi Goods Carriers Ltd vs M/S National Insurance Co. Ltd on 21 January, 2023
IN THE COURT OF SH. SUDHANSHU KAUSHIK :
ADDL. DISTRICT JUDGE-02 & WAQF TRIBUNAL :
PATIALA HOUSE COURTS : NEW DELHI
CIVIL SUIT NO.58009/2016
CNR NO.DLND01-001391/2014
M/S KANPUR DELHI GOODS CARRIERS LTD.
ADMN. OFFICE AT :
4110, NAYA BAZAR,
DELHI-110006
.....PLAINTIFF
VERSUS
M/S NATIONAL INSURANCE CO. LTD.
DIVISIONAL OFFICE AT :
D.O.-18, 1st FLOOR, SECTOR-13,
R.K.PURAM, NEW DELHI-110066
.....DEFENDANT
DATE OF INSTITUTION : 29.04.2014
DATE OF CONCLUSION OF FINAL ARGUMENT : 13.01.2023
DATE OF PRONOUNCEMENT OF ORDER : 21.01.2023
JUDGMENT
1. This is a suit by a transport company challenging the repudiation of claim made by an insurance company in respect of an insured truck stolen from the custody of the driver of the company. The transport company has sought recovery of a sum of Rs.24,75,000/- (Rupees twenty four lakhs and seventy five thousand only) along with pendent-elite and future interest at the rate of 18% per annum.
2. The brief facts, as revealed from the plaint, are; CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 1 of 30 A) Plaintiff M/s. Kanpur Delhi Goods Carrier Limited is stated to be a company registered under the Companies Act, 1956 having its registered office at 6, Miles Stone, Chikamber Pur, Ghazaibad (Uttar Pradesh) and its administrative offices at various locations including the one situated at premises No.4110, Naya Bazar, Delhi. Plaintiff is engaged in the business of transporting goods and material throughout India on hire basis. The suit has been instituted by Sh. Ranbir Singh Narang, Managing Director of the plaintiff, who has been authorized to do so vide resolution dated 30.01.2014 passed by the Board of Directors. B) Defendant M/s National Insurance Company Limited is an insurance company having its division office at 1 st Floor, Sector-13, R.K.Puram, New Delhi-110066.
C) It is the case of plaintiff that it purchased a truck bearing registration No. UP-14CT-4069 from an authorized dealer and got the vehicle insured from the defendant. Plaintiff purchased the truck on 05.09.2019 from M/s. Pascos, Kundli, Sonipat (Haryana) and the vehicle was insured on the same day vide Policy No.351800/31/11/ 6300002035 for a sum of Rs.18,00,000/- against payment of advance premium of Rs.43,327/-
valid for risk cover for the period from 05.09.2011 to 04.09.2012. Only single ignition key of the truck was provided by the dealer. CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 2 of 30 D) Plaintiff's case proceeds further that the truck was stolen during the intervening night of 07-08/03/2012 from the area of Tilak Nagar, New Delhi. The truck was loaded with tin sheets and the driver had parked it on road near his residence. Theft was reported to the police and a case FIR bearing No. 96/2012 dated 09.03.2012 under Section 379 IPC came to be registered at Police Station Tilak Nagar. Plaintiff gave intimation of theft to the defendant and lodged its claim. On receiving the intimation, defendant appointed a surveyor (M/s Laxman Das Arora & Associates) to carry out the investigation. During course of investigation, the surveyor contacted the plaintiff and sought relevant documents, which were duly provided.
E) On 15.01.2013, defendant sent a letter to the plaintiff disclosing that the driver of the truck had given a written statement on 15.03.2012 to the surveyor that the truck was loaded with the consignment of tin sheets.
Defendant further mentioned in the letter that the driver disclosed in his statement that the truck was parked by him near his residence and the helper was not sleeping in the truck. Defendant mentioned that the driver disclosed in his statement that the keys of the vehicle were left by him in the dashboard and he had closed the dashboard manually i.e. without locking. Defendant conveyed in the letter that the conduct of the driver amounts to negligence in providing safety and security to the CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 3 of 30 insured vehicle. In terms of this letter, plaintiff was directed to submit its response within 15 days.
F) It is the plaintiff's version that although, defendant claims to have sent the letter dated 15.01.2013 through registered post but it was sent only through an unregistered local courier and it was delivered only on 31.01.2023. On receiving the letter, plaintiff sent its reply on 06.02.2013 through registered post. Plaintiff conveyed in the reply that no negligence could be attributed to the driver of the truck. It was also conveyed by the plaintiff that only one ignition key of the truck was provided by the dealer and the driver had taken the key along with him after parking the vehicle. Plaintiff disclosed that the original ignition key was deposited with the surveyor.
G) On 09.02.2013, plaintiff received a communication from the defendant vide letter dated 30.01.2013 that its claim has been rejected. It was mentioned in this letter that plaintiff failed to provide the documents sought by the defendant in terms of earlier letter dated 15.01.2013 within the stipulated period. Defendant stated in the letter that claim of the plaintiff has been repudiated as it has violated the condition no.5 of the Insurance Policy which calls upon the insured to take reasonable steps to safeguard the insured vehicle from loss or damage. Defendant mentioned that the driver of the truck was negligent in providing safety CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 4 of 30 and security to the insured vehicle and therefore, the insurance claim has been rejected.
H) On receiving letter of repudiation of claim, plaintiff sent a detailed reply dated 16.02.2013 and requested defendant to supply the copy of the surveyor report, which was relied on for the purpose of rejecting its claim. Plaintiff also made a request to defendant to reconsider and review its repudiation letter dated 30.01.2013 but it did not yield result.
Reminders were sent to the defendant but the position remained same. Hence, the present suit.
3. Defendant was duly served with the summons. Defendant opposed the claim of the plaintiff by filing written statement. Defendant challenged the maintainability of the suit and mentioned that the plaintiff's claim was rightly rejected on account of negligence attributable to the driver of the truck. Defendant admitted that there was only one ignition key of the truck but mentioned that plaintiff did not deposit the original ignition key with the surveyor. Defendant stated that the truck was loaded with tin-sheets weighing around 5010 kgs. Defendant mentioned that the driver of the truck negligently parked it near his house and nobody slept in the truck to guard it. Defendant stated that the driver had not locked the truck and kept all the keys in the truck itself. Defendant stated that during the course of investigation, the driver of the truck disclosed to the surveyor that he CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 5 of 30 bolted the vehicle through the glass of the window and thereafter rolled the glass with his hands. Defendant stated that the driver left the loaded truck unattended and the theft occurred because of his negligence. Defendant mentioned that the policy of insurance indemnifies the insured only in respect of losses on account of accident and not for the losses caused by his negligence. Defendant claimed that the plaintiff violated condition no.5 of the commercial vehicle package policy in terms of which it was required to take all reasonable steps to safeguard the vehicle. Defendant prayed that suit may be dismissed.
4. Plaintiff filed replication and reiterated the contents of the plaint.
ISSUES
5. On the basis of pleadings, following issues were framed:
(1) Whether the plaintiff has not come with clean hands and suppressed the material facts? OPD (2) Whether plaintiff has violated condition No.5 of the policy as averred by the defendant in the written statement? OPD (3) Whether the written statement is filed by the authorized person, signed and verified by the department? OPD (4) Whether the plaintiff is entitled to recover the amount of Rs.24,75,000/-? OPP (5) Whether the plaintiff is entitled for interest on the aforesaid amount, if so, for what period and at what rate? OPP (6) Relief.
CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 6 of 30 EVIDENCE
6. Plaintiff examined two witnesses. PW-1/Ranbir Singh, Managing Director of the plaintiff, supported the contents of the plaint by filing his evidence by way of affidavit Ex.PW-1/A and relied on the following documents:
(a) Certificate of incorporation of the company Ex.PW-1/1;
(b) Fresh certificate of incorporation consequent upon change of name to public limited company Ex.PW-1/2;
(c) Memorandum & Articles of Association of the company Ex.PW-
1/3;
(d) Form No.32 and cash fee receipts Ex.PW-1/4 & Ex.PW-1/5;
(e) Certified copy of Annual Return Ex.PW-1/6;
(f) Board Resolution Ex.PW-1/7;
(g) Insurance police certificate Ex.PW-1/8;
(h) FIR No.96/2012 dated 09.03.2012 Ex.PW-1/9;
(i) Theft intimation letter dated 09.03.2012 and postal receipts
Ex.PW-1/10 & Ex.PW-1/11;
(j) Hand written list of documents required to be submitted with the
surveyor Ex.PW-1/12;
(k) Letter dated 28.03.2012 vide which all the relevant documents
were submitted with the surveyor Ex.PW-1/13;
CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 7 of 30
(l) Letter dated 16.05.2012 vide which certain additional documents
were submitted with the surveyor Ex.PW-1/14;
(m) Letters dated 28.05.2012 received from the surveyor and response
letter dated 31.05.2012 Ex.PW-1/15 & Ex.PW-1/16;
(n) Printout of email dated 19.12.2012 sent to defendant Ex.PW-
1/17;6
(o) Letter dated 15.01.2013 received from defendant and its envelope Ex.PW-1/18 & Ex.PW-1/19;
(p) Reply dated 06.02.2013 sent to defendant and speed-post receipt Ex.PW-1/20 & PW-1/21;
(q) Two original keys of the cabin door of the truck Ex.PW-1/22;
(r) Copies of email dated 26.06.2012 and reply dated 03.07.2012 Ex.PW-1/23 & Ex.PW-1/24;
(s) Letter dated 30.01.2013 received from defendant and envelop Ex.PW-1/25 & Ex.PW-1/26;
(t) Reply letter dated 16.02.2013 sent to defendant and speed-post receipt Ex.PW-1/27 & Ex.PW-1/28;
(u) Letter dated 22.05.2013 sent to defendant and postal receipt and acknowledgment card Ex.PW-1/29, Ex.PW-1/30 & Ex.PW-1/31;
(v) Legal Notice dated 01.10.2013 Ex.PW-1/32; CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 8 of 30 (w) Postal receipts and AD cards w.r.t. dispatch of legal notice Ex.PW-1/33 & Ex.PW-1/34 (colly);
(x) Letter dated 22.06.2013 sent to defendant, postal receipts and AD cards Ex.PW-1/35, Ex.PW-1/36 (colly) & Ex.PW-1/37 (colly); (y) Complaint dated 10.07.2013 made to IRDA Ex.PW-1/38; (z) Tracking report downloaded from the website of IRDA Ex.PW-
1/39;
7. PW-1 Ranbir Singh was cross-examined by the defendant. He stated in cross-examination that he cannot tell whether the cleaner of the truck was on leave on the day of theft. He mentioned that the dealer had supplied only one ignition key of the truck. He denied the suggestion that the original ignition key was not supplied to the surveyor. He denied the suggestion that the surveyor was provided a duplicate ignition key. He denied the suggestion that the driver had left the ignition and the cabin key in the truck itself. He stated that defendant had wrongly repudiated the insurance claim.
8. PW-2/Sh. Livleen Singh, Director of the plaintiff, filed his evidence by way of affidavit Ex.PW-2/A. He supported and corroborated the statement of PW-1. He relied on the documents tendered by PW-1. He was cross- examined by the defendant. He stated in cross-examination that surveyor dictated him a list of 18 documents which were required for the insurance CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 9 of 30 claim. The said list is Ex.PW1/12. He explained that initially, on being dictated by the surveyor, he wrote at item no.15 of the list, "KEYS (BOTH SET)". He stated that he apprised the surveyor that only one ignition key was provided by the dealer at the time of delivery of the vehicle and thereafter, the surveyor strike the words 'BOTH SET' and wrote 'one key' against item No.15. He stated that surveyor also wrote his name & address on the top right-hand corner of the said list. He denied the suggestion that the words 'one key' were not written by the surveyor. He denied the suggestion that duplicate ignition key was provided to the surveyor. He also denied the suggestion that two set of ignition key were provided by the dealer. He denied the suggestion that the driver left the vehicle unattended with the original ignition key inside the vehicle.
9. Only one witness was examined by the defendant. DW-1/Sh.
Raghunandan Panwar, Authorized Representative of defendant stepped into the witness-box and supported the line of defence taken by the defendant. He relied on the following documents:
(a) Insurance Policy Ex.DW-1/1;
(b) Surveyor Report Ex.DW-1/2;
(c) Repudiation Letter dated 30.01.2013 Ex.DW-1/3;
(d) Letter dated 15.01.2013 Ex.DW-1/4;
(e) Reply dated 06.02.2013 Ex.DW-1/5;
CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 10 of 30
(f) Letter dated 31.07.2013 repudiating the claim Ex.DW-1/6;
(g) Original key submitted by the plaintiff to surveyor Ex.DW-1/7;
(h) Copy of email dated 26.06.2012 sent by PASCOS Ex.DW-1/8;
(i) Copy of email dated 26.06.2012 sent by defendant to plaintiff Ex.DW-1/9;
(j) Copy of reply through email dated 03.07.2012 Ex.DW-1/10;
(k) Letter dated 31.05.2012 and proof of service Ex.DW-1/11 & Ex.DW-1/12;
10. DW-1 stated in cross-examination that he never attended any meeting that took place between the surveyor and the representative of the plaintiff. He admitted in cross-examination that plaintiff supplied the ignition key of the truck to the surveyor. He qualified this admission by submitting that there were two ignition keys and the second key was not given by the plaintiff. He stated that he cannot tell whether the ignition key submitted by the plaintiff was genuine or duplicate. He admitted in cross-examination that Insured Declared Value (IDV) of the truck was Rs.18,00,000/-. He admitted that defendant appointed the surveyor unilaterally. He admitted in cross-examination that he had no personal knowledge about the contents of para-9 and 10 of his evidence by way of affidavit. His cross examination reveals that he had no personal knowledge about the claim of the plaintiff.
CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 11 of 30 ARGUMENTS
11. Arguments were advanced by the respective counsels.
12. Counsel for the plaintiff has argued that plaintiff's claim stands established. He has mentioned that the written statement has not been properly verified and the same was not filed by the authorized person. He contended that defendant has rejected the plaintiff's claim on frivolous grounds. He mentioned that defendant has tendered contradictory versions. He submitted that defendant admitted in the written statement that a single ignition key was provided by the dealer but DW-1 mentioned that there were two sets of ignition keys. He contended that defence relied on the findings in the surveyor report but the report has not been proved. He mentioned that the surveyor, who prepared the report, has not been examined. He argued that defendant has heavily relied on the alleged statement given by the driver of the truck but neither the statement was produced nor the driver was examined. He contended that surveyor report was never provided to the plaintiff. He mentioned that defendant arbitrarily repudiated the plaintiff's claim without affording him a reasonable opportunity to present his version. He mentioned that plaintiff also made a request for an independent surveyor but no action was taken by the defendant. He pointed out towards the cross examination of DW-1 and stated that he has no personal knowledge about the present case. He CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 12 of 30 mentioned that the testimony of DW-1 contains irreconcilable contradictions and the same should be discarded. He contended that plaintiff took due care and precaution. He mentioned that the claim of the plaintiff could not have been rejected. He mentioned that defendant has taken a baseless plea that plaintiff violated condition no.5 of the Insurance Policy. He contended that the said condition was never communicated to the plaintiff. He mentioned that there is no evidence to substantiate the averments of defendant that plaintiff violated condition no.5 of the Insurance Policy. He contended that there is no scientific evidence to demonstrate that the ignition key deposited with the surveyor was unused. In order to support his contentions, counsel has relied on the decisions in the matter of: (i) Sir Mohammed Yusuf Vs. D., AIR 1968 Bombay 112; (ii) National Insurance Co. Ltd. Vs. Jitender Kumar & Ors., decided on 05.09.2012 by Hon'ble Delhi High Court; (iii) National Insurance Co.
Ltd. Vs. Roshni Devi & Ors., II (2002) ACC 325 (DB) of Hon'ble Punjab and Haryana High Court; (iv) Sudhir Engg. Co. Vs. Nitco Roadways, 1995 RLR 286 and (v) National Insurance Co. Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC).
13. On the other hand, counsel for the defendant has submitted that the plaintiff's claim was rightly rejected by the defendant. He argued that the plaintiff failed to take reasonable steps to safeguard the insured vehicle CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 13 of 30 from loss and damages. He contended that the driver of the truck parked the truck at a place near his residence. He mentioned that the truck was loaded with the consignment of tin sheets. He conveyed that the driver of the truck invited the theft of vehicle. He mentioned that the driver was careless in taking steps to safeguard the vehicle. He mentioned that plaintiff violated condition no.5 of the Insurance Policy and its claim was rightly rejected. He mentioned that the surveyor carried out an independent investigation and came to conclusion that the driver of the truck was negligent. He contended that surveyor submitted an unbiased report. He mentioned that the suit deserves dismissal.
14. I have perused the record in the light of respective arguments.
ISSUE-WISE FINDING Issue-2 : Whether the plaintiff has violated the condition-5 of the policy as averred by the defendant in the written statement ? OPD Issue-4 : Whether the plaintiff is entitled for the recovery of Rs.24,75,000/-? OPP
15. Both the issues are interconnected and can be taken up together. The insurance claim was repudiated on the ground that plaintiff violated condition no.5 of the Insurance Policy. It is an admitted case that repudiation of the claim was communicated to the plaintiff vide letter dated 30.01.2013 (Ex.PW-1/25). Defendant disclosed in this communication that the statement of the driver of the truck dated CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 14 of 30 15.03.2012 confirmed that he carelessly left the ignition key inside the vehicle without locking the cabin door and by doing so, he invited the theft. Defendant conveyed in the letter that plaintiff has been negligent in providing safety and security to the insured vehicle and therefore, it has violated condition no.5 of the Commercial Vehicle Package Policy.
16. It is the defendant's case that in terms of condition no.5 of the Insurance Policy, the insured was obligated to take reasonable steps to safeguard the insured vehicle from loss and damages. Defendant has taken a plea in the written statement that plaintiff failed to take reasonable care and precaution which resulted in the theft of the vehicle. In order to appreciate the said contention, it would be expedient to reproduce condition no.5, which is as under:
"5. The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle insured or any part whereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle insured be driver before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk".
17. Defendant placed reliance on the surveyor report (Ex.DW1/2) and concluded that the driver of the truck was negligent in taking reasonable CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 15 of 30 care for the safety and security of the insured vehicle. In the present matter, facts are not in dispute. It is an admitted case of the parties that the theft of the vehicle was committed in the intervening night of 07- 08.03.2012. On receiving the intimation about the theft and the claim lodged by the plaintiff, defendant appointed a surveyor, who carried out investigation and submitted his report. Record shows that although the surveyor report has been tendered in evidence but the surveyor has not been examined. It is the case of defendant that the driver of the truck made a statement that he had left the ignition key in the vehicle itself. Surveyor has mentioned in his report that the driver informed him that he had left the loaded vehicle unattended after parking it near his residence. He has mentioned in the report that the helper of the vehicle was on leave and no alternative arrangement was made. He has further mentioned in the report that the keys of the vehicle were in the dashboard. He has mentioned that the driver gave him in writing that the keys of the vehicle were in the dashboard and he had locked the vehicle through glass. The surveyor relied on these circumstances to conclude that there was negligence on the part of driver. Defendant has also banked on the said statement of the driver to conclude that there was negligence on the part of the driver.
However, the alleged statement of the driver was not placed on record. CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 16 of 30
18. Indeed a statement dated 09.03.2012 made by the driver of the truck to the police is on record but the alleged statement of the driver dated 15.03.2012 (purportedly given to the surveyor) was not placed on record. Record shows that while carrying out the investigation of theft, Sub-Inspector Yad Ram recorded statement of the driver of the truck. In the said statement, the driver only disclosed that the documents of the truck were lying in the truck at the time when it was stolen but he did not mention about the ignition key. This statement is of no consequence as admittedly, it was not taken into account by the surveyor for concluding that the driver was negligent.
19. It has been held in the matter of "Sir Mohammed Yousuf & Anr. Vs D & Anr." AIR 1968 Bom 112 that the contents of a document can be proved only by the author of the document. It was observed in the matter that even if the entire document is held formally proved that does not amount to the proof of truth of the content of the document. The only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof. It has been observed in "National Insurance Company Limited Vs Roshni Devi & Anr" II (2002) ACC 325DB that mere production of investigator's report will not discharge the burden of proof the case before the court. It was held that the report given CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 17 of 30 by the investigator is opinion and what should have been produced before the court is the original evidence.
20. Coming to the present case, neither the surveyor report has been proved nor the statement of the driver dated 15.03.2012 was produced in the court. Although, the report of the surveyor was tendered in evidence but the material on which the surveyor based his opinion was not produced in the court. The surveyor's report has not been proved as the surveyor himself did not step into the witness-box to support the contents of his report.
21. Record reveals that defendant had been frequently changing its stand.
Defendant admitted in the written statement that only one ignition key was provided by the dealer of the vehicle. There is evidence on record to conclude that the dealer provided only one ignition key to the plaintiff. In fact, the surveyor also mentioned in his report that he made inquiries from the dealer of the vehicle, who confirmed that only one ignition key was provided to the plaintiff. Defendant has been changing its version by making suggestions in the cross-examination of plaintiff's witnesses that there were two ignition keys. However, in view of clear and unambiguous admission in the written statement, it stands conclusively established that there was only one ignition key of the vehicle.
CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 18 of 30
22. It is the case of plaintiff that the original ignition key was lying with the driver and the same was handed over to the surveyor. Defendant has not disputed the fact that plaintiff handed over the ignition key to the surveyor. Surveyor mentioned in his report that plaintiff gave him the ignition key of the vehicle but concluded in his report that the ignition key was unused. He observed in the report that the ignition key of such a vehicle is readily available in the market. He conveyed in the report that it appears that plaintiff has submitted the keys after procuring the same from the market. This is an absolutely vague finding. Surveyor gave finding that the ignition key was unused without any scientific basis. There is no scientific evidence to conclude that the ignition key submitted by the plaintiff was unused. Surveyor himself was not sure about this aspect and that is why, instead of giving any conclusive finding, he simply mentioned that the key appears to be unused. In the absence of any sound evidence, it cannot be concluded that plaintiff provided an unused ignition key to the surveyor and it was not the key of the vehicle. Apart from this, surveyor mentioned in the report that the driver of the vehicle had carelessly bolted the vehicle through window and rolled the glass. He mentioned in the report that the driver did not lock the vehicle properly and left it unattended. This part of the surveyor's opinion also deserves to be rejected as it was solely based on the statement of the driver, which was never produced in the court. CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 19 of 30
23. Now, coming to the line of defence taken by the defendant that plaintiff failed to take reasonable step to safeguard the vehicle from loss and damages. Defendant has set up a case that the driver of the vehicle left the vehicle unattended. It has been mentioned by the defendant that at the time of theft, the vehicle was loaded with tin-sheets and it was parked near the house of the driver. Defendant relied on these circumstances to conclude that the plaintiff failed to take reasonable steps to safeguard the vehicle from loss and damages. Defendant has stated that in a way, the driver of the plaintiff invited the theft of vehicle. This is an absurd line of reasoning. The sole purpose of insuring the vehicle is to indemnify against the losses occurring on account of theft and accident. In case, the insurance company alleges the breach of any condition of the insurance policy, it is duty bound to prove the same by leading independent and cogent evidence. The burden of proving the breach of condition is on the insurance company and not on the insured. The reckless test i.e. the failure to take any particular precaution to safeguard the property knowing that danger existed but not caring whether or not it was averted, was equally applicable whether the condition was in a property insurance or in a liability insurance. Reliance in this regard has been placed on the 9th Edition-2009, Principles of Insurance Law by M.N.Sriniwasan (page-28). CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 20 of 30
24. Record shows that DW-1 had no personal knowledge about the plaintiff's claim. He admitted in cross-examination that he has no personal information about the alleged facts mentioned in para-9 & 10 of his affidavit. He admitted that the surveyor report was not prepared in his presence. He mentioned that he never met the driver of the truck. He mentioned that he was deposing only on the basis of the record available at the office of the insurance company. It is apparent from his testimony that he has no personal knowledge about the claim of the plaintiff. His testimony is not of any consequence to establish the breach of condition-5 of the policy, as alleged by the defendant. As observed earlier, the material on which the surveyor's opinion is based has not been produced. The surveyor himself did not step into the witness-box to support his report. The purported statement of the driver, on which reliance was placed by the surveyor as well as by the defendant, for rejecting the plaintiff's claim, was also not produced. No reasons have been tendered for withholding the same. On appreciating the record, there remains no scope for doubt that defendant has failed to establish that plaintiff violated condition-5 of the insurance policy. There is no evidence to conclude that plaintiff failed to take reasonable steps to safeguard the insured vehicle from loss or damages. Accordingly, Issue No.2 is decided against defendant and in favour of plaintiff.
CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 21 of 30
25. The course of events, as depicted from the evidence, suggests that the surveyor report was never supplied to the plaintiff. Defendant No.1 has given contradictory replies about supplying the surveyor report to the plaintiff. DW-1 stated in cross-examination that he cannot disclose the date on which the surveyor report was supplied to the plaintiff but he claimed that the same was supplied to the plaintiff before filing of the suit. He mentioned that the surveyor report was handed over to the plaintiff against acknowledgement and the acknowledgement would be available in the record of the defendant. DW-1 was given an opportunity to produce the said acknowledgement but he failed to do so. He mentioned that he cannot produce the acknowledgement as the same is not available in the record of defendant. Thus, it stands established that plaintiff was never provided the copy of the surveyor report and no fair opportunity was given to the plaintiff to tender explanation in respect of the findings given by the surveyor.
26. Evidence demonstrates that defendant acted in haste while rejecting the plaintiff's claim. It is the defendant's case that before repudiating the insurance claim, a letter dated 15.01.2013 was issued to the plaintiff wherein plaintiff was directed to send a written reply in regard to the purported statement made by the driver of the truck that he had left the keys of the vehicle in the dashboard. The letter dated 15.01.2013 is CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 22 of 30 Ex.PW-1/18. In this letter, defendant gave 15 days time to the plaintiff to substantiate the fact that there was no negligence on part of the driver of the truck. It is the defendant's case that the said letter was delivered to the plaintiff by speed-post while on the other hand, plaintiff has denied the said fact. Plaintiff has submitted that the letter dated 15.01.2013 was delivered to it only on 31.01.2013 through an unregistered local courier. It has been stated by the plaintiff that after receiving the letter, a reply dated 06.02.2013 was forwarded to the defendant through a registered post and the reply contained detailed explanation. It is a matter of common understanding that even if a letter is sent through speed-post, it would take at least a day or two to reach the addressee. Defendant has not placed on record the speed-post receipt to establish the date on which the letter was purportedly delivered to the plaintiff. On the other hand, plaintiff has placed on record the envelope purportedly delivered to it on 31.01.2013.
The testimony of PW-1 and PW-2 that the letter dated 15.01.2013 was received through courier on 31.01.2013 has gone uncontroverted. Defendant has neither made any suggestion to the witnesses that the letter was not delivered on the said date nor any proof has been produced to establish the service of the letter through speed-post. DW-1 has stated that he cannot tell the date of delivery of letter dated 15.01.2013. He admitted in cross-examination that the record does not contain proof of delivery of CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 23 of 30 the said letter through registered post. Thus, it is established that the letter dated 15.01.2013 was received by the plaintiff only on 31.01.2013. Record shows that defendant did not even wait for 15 days for the reply of the plaintiff and issued letter on 30.01.2013 that the insurance claim has been repudiated. In fact, DW-1 has admitted in cross-examination that plaintiff was not given 15 days time to furnish the explanation. It is established that defendant did not give a fair opportunity to the plaintiff to give explanation in respect of the averments made in the letter dated 15.01.2013. Defendant repudiated plaintiff's claim on the finding given in the surveyor report but did not provide the copy of the said report to the plaintiff. This aspect goes on to show that the claim was rejected in haste and mechanical manner without giving a fair and reasonable opportunity to the plaintiff. The rejection was against the principles of natural justice and the same cannot be sustained.
27. It is established that the truck was stolen. Defendant has not challenged the theft of the vehicle. DW-1 admitted in cross-examination that defendant did not dispute the theft of the insured truck. Surveyor has also verified in his report that the truck was stolen. The only basis on which the insurance claim has been rejected is that the plaintiff has violated one of the conditions of insurance policy. Even if, for the sake of argument, the submission of the defendant about the violation of conditions is accepted, CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 24 of 30 still, no case for repudiation of the claim is made out. Dealing with almost a similar situation, State Consumer Dispute Redressal Commission, Punjab Chandigarh in the matter of 'United India Insurance Company Limited Vs Surinder Singh', decided on 09.02.2021 observed as under:
"14. So far as the plea of the opposite parties that one of the keys was left by the driver inside the vehicle, in question, it needs to be mentioned that the theft of the vehicle, in question, has been duly proved on record from perusal of FIR dated 01.03.2016, Ex.C-6, and Investigation Report dated 28.11.2016, Ex.C-10, given by BEE VEE Investigating Agency; who was deputed by the opposite parties to investigate the incident of theft. The vehicle has not been traced and the Untraced Report has also been accepted by the Sub Divisional Judicial Magistrate, Rajpura on 07.10.2016. The Investigator had recommended for settlement of the claim, subject to terms and conditions of the insurance policy. In the judgment dated 08.12.2017 rendered by the Hon'ble Supreme Court in Civil Appeal No(s).21552 of 2017 (Manjeet Singh v. National Insurance Company Ltd. & Anr.), which has been relied upon by the District Commission, the vehicle was snatched by the passengers, to whom the driver had given the lift. In those circumstances, it has been held that there was no fault on the part of the owner of the vehicle and if there is breach of any condition of the insurance policy, then the claim can be allowed on Non- standard Basis i.e. 75% of the IDV.
15. In another case Amalendu Sahoo v. Oriental Insurance Co. Ltd. 2010 (1) CPC 653 (SC), the Hon'ble Supreme Court considered the identical question and held in Paras No. 12 to 15 as follows:-
"12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh reported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 25 of 30 violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited v. Nitin Khandelwal reported in 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:-
"...The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.
13. In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission".
28. In the present matter, the finding of the surveyor about the negligence of the driver was primarily based on the allegation that he had left the ignition key in the vehicle itself and this factor facilitated theft. It has been established that plaintiff submitted the ignition key of the vehicle to the surveyor. Surveyor has mentioned in his report that the key submitted by the plaintiff appeared to be unused but there is no scientific evidence to support the said finding. In fact, the surveyor himself was not sure about this aspect and that is why, he has mentioned in the report that the ignition key 'appeared to be unused'. Defendant has not examined the surveyor CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 26 of 30 and there is no evidence to support the finding that the ignition key provided by the plaintiff was unused. In so far as the cabin keys are concerned, no negligence can be attributed to the driver merely because those were left in the dashboard as there is evidence to demonstrate that the driver bolted the cabin door. Similarly, the negligence of the plaintiff cannot be inferred merely because the vehicle was loaded with tin-sheets and no helper was sleeping in the truck. What was expected from the insured was to take reasonable care and precaution, which were indeed taken. Defendant could not have rejected the claim of the plaintiff by inferring negligence from extraneous factors. Accordingly, issue No.4 is decided in favour of plaintiff and against the defendant. Plaintiff is entitled to receive the Insured Declared Value of the stolen vehicle as on the date of repudiation of the insurance claim.
Issue-1 : Whether the plaintiff has not come with clean hands and suppressed material facts? OPD Issue-3 : Whether the written statement is filed by the authorized person, signed and verified by the department? OPD
29. There is no evidence to demonstrate that plaintiff has concealed material facts from the court. It is an admitted case of theft of insured vehicle. Defendant has not disputed the theft. FIR No.96/2012 dated 09.03.2012 came to be registered under Section 379 IPC at Police Station Tilak Nagar. Investigation was carried out and efforts were made to trace the CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 27 of 30 vehicle but it did not yield result. Final Untraced Report was filed in the matter by the concerned SHO. Defendant has not led any evidence to established that plaintiff concealed material facts from the court. In so far as the written statement is concerned, the same has been signed by the Administrative Officer of the defendant and it is accompanied by an affidavit. Accordingly, issue No.1 is decided against defendant and Issue No.2 is decided in its favour.
Issue-5 : Whether plaintiff is entitled for interest? OPP
30. Now coming to the aspect whether the plaintiff is entitled to interest on the amount of insurance claim. "Interest" as defined in Black's Law Dictionary is the compensation fixed by agreement or allowed by law for the use or detention of money, or for the loss of money by one who is entitled to its use; especially, the amount owed to a lender in return for the use of the borrowed money. A person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name.
31. In 'Central Bank of India v. Ravindra' 2002 1 SCC 367, the Supreme Court observed that a person is entitled for compensation for the deprivation of the money due to the creditor which was not paid, or, in other words, was withheld from him by the debtor after the time when payment should have been made, in breach of his legal rights, and interest CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 28 of 30 was a compensation whether the compensation was liquidated under an agreement or statute.
32. In the present matter, defendant rejected the insurance claim in a mechanical manner by attributing negligence to the plaintiff. Plaintiff was entitled to receive the insurance claim as he had insured the vehicle with the defendant. Plaintiff is a business organization involved in transportation of goods. Had the money come in the hands of the plaintiff, the same would have been profitably used for the purpose of business. Plaintiff could have used the money for buying a new truck for replacing the one which was stolen. By not timely paying the insurance claim, defendant has indeed deprived the plaintiff of the money, which he was legally entitled to receive. In view of this, plaintiff is entitled to receive interest on the insurance claim amount. However, interest claimed at the rate of 18% per annum appears to be on higher side. I am of the considered opinion that interest at the rate of 15% on the claim amount would meet the ends of justice and the same is being awarded. Accordingly, Issue No.5 is decided in favour of plaintiff and against the defendant.
RELIEF
33. Accordingly, the suit is decreed with the following reliefs;
(a) A decree for a sum of Rs.18,00,000/- (Rupees Eighteen Lac Only). CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 29 of 30
(b) Pendent-elite and future interest at the rate of 15% per annum from 30.01.2013 till realization of decreetal amount.
(c) Cost of the suit is also awarded to the plaintiff.
34. Decree sheet be prepared accordingly.
35. File be consigned to record room.
Announced in open Court on 21.01.2023 (Sudhanshu Kaushik) Addl. District Judge-02 & Waqf Tribunal, Patiala House Courts, New Delhi/21.01.2023 CS No.58009/2016 :
M/s Kanpur Delhi Goods Carriers Ltd. Vs M/s National Insurance Co. Ltd. page 30 of 30