Delhi District Court
Bhim Singh vs Universal Sompo General Insurance Co ... on 28 February, 2025
IN THE COURT OF VIKAS GARG, DISTRICT
JUDGE-05 (EAST),
KARKARDOOMA COURTS, DELHI.
CS No. 267/19
CNR No. DLET01-003581-2019
Sh. Bhim Singh
S/o Sh. Raghubir
R/o. VPO Polangi,
District Rohtak,
Haryana-124001.
Also at:
V.P.O. Barona (22-R),
Sonipat, Haryana-131402.
(Through his Son/SPA Holder Sh. Narender Singh)
...........Plaintiff.
Versus
Universal Sompo General Insurance Co. Ltd.
Through Its Managing Director/
Director/Authorized Signatory
Branch Office:
Office No. 612, 6th Floor,
Roots Tower, Plot No. 7,
District Centre, Laxmi Nagar,
New Delhi-110092.
VIKAS Digitally signed
by VIKAS GARG
GARG 15:47:53 +0530
Date: 2025.02.28
CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 1 /25
Registered & Corporate Office:
Unit No. 401, 4th Floor, Sangam Complex,
127, Andheri Kurla Road,
Andheri (East), Mumbai-400059,
Maharashtra.
............Defendant.
Date of Institution Suit : 18.04.2019
Date of Final Arguments : 11.02.2025
Date of Decision : 28.02.2025
Final Decision of the suit : Decreed
SUIT FOR RECOVERY OF RS. 16,02,710/- (RUPEES SIXTEEN
LACS TWO THOUSAND SEVEN HUNDRED & TEN ONLY)
ALONG WITH PENDENTE-LITE AND FUTURE INTEREST @
18% PER ANNUM
JUDGMENT
1. This judgment addresses the present suit filed for the recovery of ₹16,02,710/- (Rupees Sixteen Lacs Two Thousand Seven Hundred & Ten Only) along with pendente lite and future interest at 18% per annum.
CASE OF THE PLAINTIFF AS PER PLAINT :-
Briefly, the essential facts and averments required for a fair adjudication of the present suit, as presented in the plaint, are as follows:
2. The plaintiff, the owner of truck bearing number HR 61A 7388, purchased an insurance policy from the defendant insurance VIKAS Digitally signed by VIKAS GARG GARG Date: 2025.02.28 15:56:13 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 2 /25 company for a premium of ₹60,652/-, with a total insured value of ₹15,00,000/-. The plaintiff's proposal was scrutinized, verified, and photographed by the defendant before issuing the policy. At the time of verification, planks were present on the sides and back of the truck, which increased the weight of the vehicle's body by less than 2% of its unladen weight. Based on this verification, the policy was issued.
On 22.01.2019, while transporting 10mm stone pebbles (rori) weighing 12,110 kg from Krishna Stone Crusher, the truck, driven by Anil Kumar, suffered a gearbox failure while descending a hill near Hanuman Mandir within the jurisdiction of police chowki Jhojhu Kala, Charkhi Dadri. The driver attempted to stop the truck but failed. He jumped out to save himself before the uncontrolled truck plunged into a valley, sustaining damages. The plaintiff promptly informed the defendant and claimed the insurance amount. However, the claim was rejected by the defendant via letter dated 28.02.2019, citing a violation of the Motor Vehicles Act. Consequently, the plaintiff filed the present suit, seeking a money decree of ₹16,02,710/- with interest at 18% per annum.
CASE OF THE DEFENDANT AS PER WRITTEN STATEMENT:-
Briefly, the essential facts and averments required for a fair adjudication of the present suit, as presented in the Written Statement, are as follows:
Digitally signed VIKAS by VIKAS GARG
Date:
GARG 2025.02.28
15:56:19 +0530
CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 3 /25
3. In its written statement, the defendant alleged that the plaintiff had concealed material facts and violated Section 52 of the Motor Vehicles Act, as well as the terms and conditions of the insurance policy, by modifying the vehicle without the insurer's approval. The defendant further contended that it was not informed about the accident in a timely manner, and no DDR or FIR was lodged by the complainant or the driver. The suit was also alleged to be bad for non-joinder and misjoinder of necessary parties. Additionally, the defendant claimed violations of Sections 23 and 28 of the Rules of the Road Regulations, 1989, Sections 145, 146, 147, and 149 of the Motor Vehicles Act, and provisions under Section 64VB of the Insurance Act. The defendant asserted that the vehicle was overloaded, and the driver was under the influence of alcohol at the time of the accident. Surveyor Anil Malik, who conducted an assessment on 28.02.2019, determined the net claim amount to be ₹5,20,959.05/- and noted modifications to the vehicle body, in violation of Section 52 of the Motor Vehicles Act. Based on these grounds, the defendant prayed for the dismissal of the suit.
ISSUES:-
4. Upon completion of pleadings, the following issues were framed for trial on 07.08.2019:
1. Whether the plaintiff is entitled for the decree of Rs. 16,02,710/- alongwith interest @ 18% p.a. w.e.f. 23.01.2019 and till 15.04.2019 also interest pendenlite and future? OPP
2. Relief. Digitally signed VIKAS by VIKAS GARG Date:
GARG 2025.02.28
15:56:27 +0530
CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 4 /25
No additional issues were raised at that stage.
PLAINTIFF'S EVIDENCE:-
5. During the plaintiff's evidence, Sh. Narender Singh testified as PW-1 and submitted his affidavit (Ex. PW1/A), reiterating the contents of the plaint. He relied on documents marked as PW1/1 to PW1/13. He was cross-examined by the defendant's counsel.
The plaintiff also examined Sh. Manoj as PW-2, who proved the photographs of Truck No. HR 61A 7388 as Ex. PW3/1 and submitted an affidavit (Ex. PW1/5). He was cross-examined by the defendant's counsel.
Ct. Pradeep was presented as PW-3, proving the certified copies of Rojnamcha entries--DD No. 9 dated 22.01.2019 and DD No. 7 dated 31.01.2019--as Ex. PW3/1. He was cross-examined by the defendant's counsel.
Sh. Dheeraj Sharma appeared as PW-4 and proved the inspection report of Truck No. HR 61A 7388 dated 22.10.2018 as Ex. PW4/1. He was cross-examined by the defendant's counsel.
Sh. Raj Kumar appeared as PW-5 and proved the certified copy of the bill dated 22.01.2019, showing the loading of 10MM Rodi weighing 1210 kg into Truck No. HR 61A 7388, along with Kanta Parchi as Ex. PW5/1. He was cross-examined by the defendant's counsel.
Digitally signedVIKAS byDate:VIKAS GARG GARG 2025.02.28 15:56:32 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 5 /25 Sh. Atul Kumar Saxena was examined as PW-6, deposing that the estimate report (Ex. PW1/12) was prepared by Sh. Munna Khan. He identified the deceased Munna Khan's signatures at points A and B on the report and proved the authority letter as Ex. PW6/A. He was cross-examined by the defendant's counsel.
DEFENDANT'S EVIDENCE:-
6. In its defense, the defendant examined Sh. Mukesh Kumar (AR of the defendant) as DW-1, who submitted his affidavit (Ex. DW-1/1), reiterating the contents of the written statement. He relied on the following documents:
1. Original authority letter (Ex. DW1/A).
2. Original guidelines and a copy of policy bearing No. 2315/59014830/00/000 (Ex. DW1/B).
3. Copy of the investigation report (Mark X).
4. Copy of the survey report and photographs (Mark Y).
5. Claim repudiation letter dated 28.02.2019 (Ex. PW1/7).
He was cross-examined by the plaintiff's counsel.
Sh. Anil Malik appeared as DW-2 and presented a certified copy of the surveyor report dated 20.02.2019, marked as Ex. DW2/A. He was cross-examined by the plaintiff's counsel.
Sh. Dinesh Singh appeared as DW-3 and testified that he had prepared the investigation report regarding the vehicle in question. He proved the original investigation report as Ex. DW3/A and was cross-examined by the plaintiff's counsel. Digitally signed VIKAS byDate:VIKAS GARG GARG 2025.02.28 15:56:38 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 6 /25 ARGUMENTS:-
7. Plaintiff's Arguments:-
During the arguments, the learned counsel for the plaintiff argued in line with the plaint, asserting that the planks (fattas) were already present and known to the defendant at the time of issuing the policy. He emphasized the photographs clicked by Manoj Kumar during verification and scrutiny before policy issuance. He further contended that the accident was promptly reported to the defendant, as well as to the police, supporting this claim by examining PW-3, Ct. Pradeep. The plaintiff's counsel relied on the judgment of the Rajasthan High Court in Pusa Ram & Ors. vs. Manmal & Ors., AIR 1952 RAJ 102, and the Andhra Pradesh High Court judgment in Habeeb Sultana vs. Mohd. Sharfuddin Khan, 1999(6) ALD 232. He prayed for a decree in favor of the plaintiff.
Defendant's Arguments:-
The learned counsel for the defendant argued that the vehicle was modified without any intimation or approval from the government or insurer, violating Section 52 of the Motor Vehicles Act and the policy terms. He claimed that the planks were not present when the policy was issued and that the vehicle was overloaded, which caused the accident. He also relied on the ground of late intimation, arguing that the plaintiff failed to report the accident to both the defendant and the police in a timely manner. Based on these grounds, he Digitally signed VIKAS byDate:VIKAS GARG GARG 2025.02.28 15:56:45 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 7 /25 contended that the plaintiff was not entitled to any damages and prayed for the dismissal of the suit.
8. I have carefully listened to and considered the arguments presented by both parties, thoroughly reviewed the records, and taken into account the relevant laws and precedents.
Analysis And Findings:-
9. It is admitted that the plaintiff obtained an insurance policy for the vehicle in question from the defendant insurance company. Following an accident, the plaintiff submitted a claim, which was subsequently rejected by the defendant. The repudiation letter cited a violation of Section 52 of the Motor Vehicles Act due to vehicle modification as the reason for rejection. Additional grounds, such as overloading, delay in intimation, and other grounds, were introduced in the suit. For clarity, the analysis and findings are presented under separate headings.
Modifications Of The Vehicle:-
The defendant rejected the plaintiff's claim on the basis that modifications were made to the vehicle. Specifically, the defendant contended that planks ("Fattas") were installed on all sides of the load body, allegedly breaching the insurance policy conditions and violating Section 52 of the Motor Vehicles Act. However, the defendant has failed to demonstrate which specific condition of the policy was breached. No clause, paragraph number, or specific VIKAS Digitally signed by VIKAS GARG Date: 2025.02.28 GARG 15:56:51 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 8 /25 provision of the policy was cited in the pleadings, evidence, or arguments. Furthermore, the repudiation letter dated 28.02.2019 only refers to a violation of the Motor Vehicles Act, without specifying any policy condition. The alleged condition was mentioned only in the written statement:
"No material change shall be carried out in the subject matter of insurance without bringing the same to the knowledge and approval of insurance"
However, no such text is found in any document, including the original guidelines and the copy of the policy exhibited as Ex. DW1/B. The repudiation letter cites only a violation of the Motor Vehicles Act, without referring to any specific policy condition.
The plaintiff successfully established that the extensions/modifications in the form of planks on the vehicle were already present when the insurance policy was purchased. PW-2, Sh. Manoj, testified that he had taken photographs of the vehicle and sent them, along with an affidavit, to Adroit Inspection Services Private Limited. However, during cross-examination, he admitted that these documents were not forwarded to the insurance company.
In affidavit Ex. PW-1/5, which was prepared for scrutiny and verification of the vehicle before issuing the policy, it is clearly stated that the photographs were taken for insurance recommendation from Sompo General Insurance Company. The affidavit also provides various details of the vehicle, mentioning that VIKAS Digitally signed by VIKAS GARG Date: 2025.02.28 GARG 15:56:58 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 9 /25 removable planks were installed on the upper portion of the load body, that they were unpainted, and that the remaining body was painted in turquoise ('Firoji') colour .
PW-4, a summoned witness from Adroit Inspection Services Pvt. Ltd., submitted an inspection report along with photographs, exhibited as Ex. PW-4/1. During cross-examination, he stated that he had not taken the photographs himself but that they were captured by a previously examined witness. He further confirmed that the pre-inspection was conducted at the request of the insurance company.
The photographs exhibited through both witnesses clearly show the planks on the top of the load body.
During cross-examination, DW-1, a representative of the defendant, admitted:
"....It is correct that at the time of issuance of policy of insurance, the fatta/side extended were present."
If the defendant believed that these were not the original photographs or affidavit submitted during policy issuance, they had the opportunity to provide their own set of documents but failed to do so. DW-1 further admitted that an inspection was conducted at the time of policy issuance, yet no such inspection records or photographs were submitted by the defendant.
Digitally
signed by
VIKAS VIKAS GARG
Date:
GARG 2025.02.28
15:57:04
+0530
CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 10 /25
The burden of proving a breach of policy conditions lies with the insurer. In Lakhmi Chand v. Reliance General Insurance (2016 AIR SC 315), the Hon'ble Supreme Court held:
"13. This Court in the said case has held as under: (B.V. Nagaraju case (1996) 4 SCC 647g - 648a) "It is plain from the terms of the insurance policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the insurance company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the pose, keeping apart the load it was carrying. In the present case the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident."
(emphasis supplied)
14. Further, in National Insurance Co. Ltd. v. Swaran Singh (2004) 3 SCC 297 a three-Judge Bench of this Court has held as under:( & 330-31, paras 49, 52 & 69) "49. Such a breach on the part of the insured must be established by the insurer to show that VIKAS Digitally signed by VIKAS GARG Date: 2025.02.28 GARG 15:57:11 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 11 /25 not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach.
52. In Narcinva case (1985) 2 SCC 574 a Division Bench of this Court observed:
'12. ... The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract to not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led.'
69. The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability."
(emphasis supplied)
15. The judgment in Swaran Singh (2004) 3 SCC 297 has been followed subsequently in Oriental Insurance Co. Ltd. v.
Meena Variyal (2007) 5 SCC 428, wherein this Court held as under:
"16. We shall now examine the decision in Swaran Singh (2004) 3 SCC 297 on which practically the whole of the arguments on behalf VIKAS Digitally signed by VIKAS GARG GARG Date: 2025.02.28 15:57:20 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 12 /25 of the claimants were rested. On examining the facts, it is found that, that was a case which related to a claim by a third party. In claims by a third party, there cannot be much doubt that once the liability of the owner is found, the insurance company is liable to indemnify the owner, subject of course, to any defence that may be available to it under Section 149(2) of the Act. In a case where the liability is satisfied by the insurance company in the first instance, it may have recourse to the owner in respect of a claim available in that behalf. Swaran Singh (2004) 3 SCC 297 was a case where the insurance company raised a defence that the owner had permitted the vehicle to be driven by a driver who really had no licence and the driving licence produced by him was a fake one. Their Lordships discussed the position and held ultimately that a defence under Section 149(2)(a)(ii) of the Act was available to an insurer when a claim is filed either under Section 163-A or under Section 166 of the Act. The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party. The insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured VIKAS Digitally signed by VIKAS GARG GARG Date: 2025.02.28 15:57:25 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 13 /25 concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident."
(emphasis supplied)
16. It becomes very clear from a perusal of the abovementioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods-carrying vehicle. Further, as has been held in B.V. Nagaraju (1996) 4 SCC 647 that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was in fact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR No. 66 of 2010 was registered for the offences referred to supra under the provisions of IPC. These facts have not been taken into consideration by either the State Commission or the National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26-4-2013 passed in Lakhmi Chand v. Reliance General Insurance 2013 SCC OnLine NCDRC 422 is liable to be set aside, as the said findings recorded in the judgment are erroneous in law."
This ruling affirms that the onus to prove the breach of a fundamental condition is on the insurer, which the defendant has VIKAS Digitally signed by VIKAS GARG Date: 2025.02.28 GARG 15:57:32 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 14 /25 failed to discharge. Furthermore, for a breach to be valid, it must be fundamental in nature, which the defendant has neither explained nor proven. Given that the policy was issued while the modifications were already in place, the defendant cannot now refuse its contractual liability.
The defendant also argued that the modifications violated Section 52 of the Motor Vehicles Act. The section is reproduced as follows:
"52. Alteration in motor vehicle.-- (1) No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are at variance with those originally specified by the manufacturer:
Provided that where the owner of a motor vehicle makes modification of the engine, or any part thereof, of a vehicle for facilitating its operation by different type of fuel or source of energy including battery, compressed natural gas, solar power, liquid petroleum gas or any other fuel or source of energy, by fitment of a conversion kit, such modification shall be carried out subject to such conditions as may be prescribed:
Provided further that the Central Government may prescribe specifications, conditions for approval, retrofitment and other related matters for such conversion kits:
Provided also that the Central Government may grant exemption for alteration of vehicles in a manner other than specified above, for any specific purpose.
(2) Notwithstanding anything contained in sub-section (1), a State Government may, by notification in the Official Gazette, authorise, subject to such conditions as may be specified in the notification, and permit any person owning not less than ten transport vehicles to alter any vehicle owned by him so as to replace the engine thereof with engine of the Digitally signed VIKAS by VIKAS GARG Date: GARG 2025.02.28 15:57:39 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 15 /25 same make and type, without the approval of registering authority.
(3) Where any alteration has been made in motor vehicle without the approval of registering authority or by reason of replacement of its engine without such approval under sub-section (2), the owner of the vehicle shall, within fourteen days of the making of the alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of registration may be entered therein.
(4) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority.
(5) Subject to the provisions made under sub-sections (1), (2), (3) and (4), no person holding a vehicle under a hire-
purchase agreement shall make any alteration to the vehicle except with the written consent of the registered owner.
Explanation.--For the purposes of this section, "alteration" means a change in the structure of a vehicle which results in a change in its basic feature."
However, insurance contracts are governed by the stipulations within the policy, and no condition was cited that would allow repudiation based on a violation of Section 52. Furthermore, the burden of proving such a violation was on the defendant, which it failed to do. The section does not prohibit all modifications--only those that alter the vehicle's specifications as per the Registration Certificate (RC). The defendant has not shown how the planks violate Section 52.
Digitally signedVIKAS byDate:VIKAS GARG GARG 2025.02.28 15:57:46 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 16 /25 Given the present facts and circumstances of the case, particularly since the plaintiff has proven that the defendant company was aware of the presence of planks at the time the policy was issued, the benefit of Section 52 of the Motor Vehicles Act cannot be granted.
Overload:-
One of the defenses raised by the defendant to resist the plaintiff's claim was the alleged overloading of the vehicle. However, this defense lacks merit. Firstly, overloading was not cited as a ground for rejection in the repudiation letter dated 28.02.2019 (Ex. PW-1/7). The letter only mentions a violation of the Motor Vehicles Act as the reason for rejecting the claim. The relevant portion of the rejection letter is as follows:
"We have pursued the pertinent claim documents submitted by you along with the Survey Report from surveyor appointed for assessing the loss and observed that you have modify the vehicle load body, this violation of MV Act, hence claim not tenable."
It is a settled legal principle that an insurance company cannot go beyond the grounds mentioned in the repudiation letter. The Supreme Court's observations in Saurashtra Chemicals Ltd. Vs. National Insurance Co. Ltd., AIR 2020 SC 548, are relevant in this regard:
"21 . Undoubtedly, as mentioned supra, this Court in Sonell Clocks (supra) has distinguished Galada Power on facts and held that the appointment of a surveyor cannot, as a matter of law, be construed as a waiver of the terms and conditions of the insurance policy. However, in Sonell Clocks, the insurer VIKAS Digitally signed by VIKAS GARG GARG Date: 2025.02.28 15:57:50 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 17 /25 had taken a specific plea in the repudiation letter that the loss was not conveyed within the stipulated period. Hence the singular issue before this Court was only whether the insurer had waived the condition as to delay in intimation by appointing a surveyor. This Court in Sonell Clocks did not have the occasion to consider whether the insurance company could have raised delay as a ground for repudiation for the first time before the consumer forum.
22. Hence we are of the considered opinion that the law as laid down in 'Galada' on issue (2) still holds the field. It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC."
Furthermore, the repudiation letter (Ex. PW-1/7) contains a disclaimer stating that the insurance company reserves the right to extend or modify the declination. The relevant portion reads:
"This declination is based on the facts as presently known. We reserve the right to extend or modify this declination should additional facts or circumstances become known to us. None of the foregoing shall be taken as a waiver of, or to create an estoppels to invoke, any right, defense or limitation available to the insurer under the policy of insurance, at law or otherwise, all of which are expressly reserved hereby."
However, this disclaimer does not give the defendant the liberty to introduce new grounds at any stage. The alleged overloading was a fact that could have been known to the defendant at the time of claim repudiation. It cannot be contended that this fact came to light only later.
Digitally signed VIKAS by VIKAS GARG
Date:
GARG 2025.02.28
15:57:57 +0530
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Secondly, the defendant has neither explained nor proved how the vehicle was overloaded. The defendant merely asserted overloading without substantiating the claim. The defendant has not disclosed the exact amount of excess weight the vehicle was carrying. Instead, there is only a vague and generalized allegation of overload. The cross-examination of DW-1, Mukesh Kumar, is particularly relevant in this regard:
"Ques: You have written in your affidavit Ex. DW1/1 that vehicle in question was over loaded. On which basis, you can say vehicle was overloaded?
Ans. The load challan provided by the plaintiff could not be verified from the crushers. Besides that I have no basis to aver the same."
The plaintiff consistently maintained that the vehicle was carrying a load of 12,110 kg. This fact was also admitted by the defendant's witness, DW-3, Dinesh Singh, during cross-examination. His report (Ex. DW-3/A) explicitly verifies this weight. Similarly, DW-1 Mukesh Kumar made a similar admission in cross-examination.
According to the policy document (Ex. DW-1/B) and the vehicle's Registration Certificate (RC), as well as DW-1's own admission, the truck's Gross Vehicle Weight (GVW) capacity is 25,000 kg. The vehicle's unladen weight is recorded as 9,000 kg in the RC (Ex. DW-1/D1) and the permit (Ex. PW-1/6). If the unladen weight (9,000 kg) is added to the stated load (12,110 kg), the total GVW amounts to 21,110 kg, which is well within the permissible limit of 25,000 kg.
Digitally signed VIKAS by VIKAS GARG
Date:
GARG 2025.02.28
15:58:03 +0530
CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 19 /25
Moreover, as per the Supreme Court's ruling in Lakhmi Chand Vs. Reliance General Insurance (supra), the burden of proving any breach of policy conditions, including overloading, rests on the defendant. In this case, the defendant has failed to discharge that burden.
Late Intimation:-
The learned counsel for the defendant argued that the accident was not reported to the defendant in a timely manner, rendering the claim liable for rejection. The relevant pleadings in the Written Statement (WS) state:
"6. That it is further submitted that one of the condition is that the information of any loss/damage/accident must inform the answering defendant but the owner/complainant did not inform any loss of the vehicle just after the loss as alleged, further, no DD or FIR has been lodged by the complainant or driver that challenges the veracity of the version of the plaintiff."
These pleadings are vague and lack specific dates. DW-1, during cross-examination, admitted that as per the claim intimation sheet, the information was received at the claim processing office on 23.01.2019 at 01:14 PM. He further acknowledged that accidents must be reported within 48 hours. The relevant portions of DW-1's cross-examination are as follows:
"......As per claim intimation sheet, the information was received at claim processing office on 23.01.2019 at 01:14 pm......"Digitally signed
VIKAS by VIKAS GARG
Date:
GARG 2025.02.28
15:58:09 +0530
CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 20 /25
"I have joined the defendant's company in December, 2017. Ques: With in how much time, the intimation has to be provided by the insured to the insurer at the time of any accident. What do you have to say?
Ans. Within 48 hours of accident."
From the above discussion, the court finds no evidence of any fundamental breach on the part of the plaintiff. Furthermore, the letter of repudiation does not cite delayed intimation as a ground for rejection. As previously discussed, the insurance company cannot introduce new grounds for claim rejection that were not mentioned in the repudiation letter.
Furthermore, as discussed earlier, and in line with the Apex Court's ruling in Lakhmi Chand v. Reliance General Insurance (supra) , the burden of proving any breach of conditions related to overloading rests on the defendant. In this case, the defendant failed to discharge that burden.
Thus, the defense's argument regarding late intimation is without merit and stands rejected.
Other Defences:-
Apart from the defenses of modification of the vehicle, late intimation, and overloading, the defendant, in the Written Statement (WS), raised multiple other defenses, including alleged violations of Sections 145, 146, 147, and 149 of the Motor Vehicles (MV) Act, as well as other provisions of the Act. The defendant also cited VIKAS Digitally signed by VIKAS GARG Date: 2025.02.28 GARG 15:58:14 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 21 /25 violations of Section 64VB of the Insurance Act, breaches of the Rules of the Road Regulations, 1989, and allegations of driver intoxication. However, the defendant failed to prove any of these claims.
No specific evidence was presented by the defendant to substantiate these allegations. Furthermore, during cross-examination of the plaintiff's witness, many of these defenses were not even pursued. The defendant also failed to clarify how the cited provisions were allegedly violated.
For instance, the defendant relied on Rules 23 and 28 of the Rules of the Road Regulations, 1989, which state:
"23. Distance from vehicles in front.-The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop."
"28. Driving of tractors and goods vehicles.-A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward."
However, the defense failed to plead any specific facts demonstrating how these rules were breached. Similarly, the WS does not provide any factual basis for alleged violations of other laws cited by the defendant.
Digitally signedVIKAS byDate:VIKAS GARG GARG 2025.02.28 15:58:21 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 22 /25 The defendant's approach appears scatter-shot and lacking in focus. Raising multiple unsubstantiated defenses without supporting evidence dilutes the credibility of the arguments.
Calculation Of Damages:-
Neither in the plaint nor in the evidentiary affidavit has the plaintiff explained how the claimed damages were calculated. The plaintiff has sought ₹15,00,000/- as the insured amount, ₹16,000/- for crane charges, ₹24,000/- for parking charges up to the date of filing the suit, and ₹62,710/- as interest up to 15.04.2019. However, there is no specific calculation or breakdown provided for the insured amount of ₹15,00,000/-. The plaintiff has relied on an estimate (bearing Job Card date 30/01/2019) marked as Ex. PW1/12. However, there is no mention of this document in the plaint.
PW-6, Sh. Atul Kumar Saxena, identified the signature of the maker of the said Estimate. However, it was informed that Sh. Munna Khan, the maker of the Estimate, passed away in 2020. During cross-examination, PW-6 admitted that he had no personal knowledge regarding the contents of Ex. PW-1/12 and that the report was not prepared in his presence. He further stated that he could not verify whether the report was prepared correctly. Given these facts, the estimate cannot be relied upon, as its contents and accuracy could not be proved. Mere identification of a signature does not establish the truthfulness of its contents. Furthermore, the defendant was denied the opportunity to cross-examine the maker of VIKAS Digitally signed by VIKAS GARG Date: 2025.02.28 GARG 15:58:27 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 23 /25 the report, who could have been both a witness of fact and an expert witness. Therefore, Ex. PW-1/12 cannot be used for the calculation of damages. The case laws cited by the plaintiff's counsel are not applicable to the present case, considering the specific facts and circumstances involved.
On the other hand, the defendant examined DW-2, Sh. Anil Malik, who prepared the surveyor report (Ex. DW-2/A). During cross- examination, he admitted that he assessed the vehicle damage at ₹5,20,959/-. The surveyor report clearly mentions the insurance company's liability as ₹5,20,959/-, with the insured's liability mentioned separately. Considering the facts and circumstances, the court accepts ₹5,20,959/- as the total damages, as calculated by the surveyor on behalf of the defendant.
The plaintiff had claimed interest at 18% per annum. However, considering the circumstances, the court grants 12% interest per annum on ₹5,20,959/- from 01.03.2019 (since the claim was rejected vide letter dated 28.02.2019) until the date of the decree. Future interest is also granted at 6% per annum until the realization of the awarded amount.
Regarding the claims for parking and crane charges, the court finds no sufficient basis to grant these amounts. Hence, these claims are rejected.
RELIEF:-Digitally signed
VIKAS byDate:VIKAS GARG GARG 2025.02.28 15:58:34 +0530 CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 24 /25
10. In light of the above discussion, the plaintiff's suit is decreed.
The plaintiff is entitled to an amount of ₹5,20,959/- along with simple interest at the rate of 12% per annum on ₹5,20,959/-, effective from 01.03.2019 (the day following the rejection of the claim vide letter dated 28.02.2019) until the date of the decree. Additionally, future interest at the rate of 6% per annum is awarded until the full realization of the decreed amount. The plaintiff is also entitled to the costs of the suit.
11. The decree sheet be prepared accordingly.
12. The file be consigned to the record room after due compliance.
Digitally signed
Pronounced in the open court VIKAS byDate:VIKAS GARG
on 28th February, 2025 GARG 2025.02.28
15:58:39 +0530
(Vikas Garg)
District Judge-05 /EAST
KKD, Delhi- 28.02.2025
CS No. 267/19 Bhim Singh vs. Universal Sompo General Insurance Co. Ltd. Page of 25 /25