Delhi District Court
Savitri Devi Gupta vs M/S New India Assurance Co. Ltd on 28 May, 2025
IN THE COURT OF MS. RAVINDER BEDI
DISTRICT JUDGE (COMMERCIAL COURT)-12, (CENTRAL)
TIS HAZARI COURTS, DELHI.
In the matter of:-
CS (COMM) No. 924/2023
Smt. Savitri Devi Gupta
Proprietor of M/s G.B. Traders
through her Special Power of Attorney Holder
Mr Ankit Gupta
7 Ashoka Park Extn.,
Near East Punjabi Bagh, New Delhi. ........Plaintiff
Versus
M/s. New India Assurance Co. Ltd.
Office at : Chana Complex,
4th floor 2213, Gurudwara Road,
Karol Bagh, New Delhi-110005
Also at :
3rd floor, RG City Centre, LSC Block-B
Lawrence Road, Delhi-110035 ......Defendant
Date of institution of Suit : 06.06.2023
Date of Final Arguments : 20.05.2025
Date of Judgment : 28.05.2025
Plaintiff is represented by Adv. Abhishek Verma, Ayush Mittal and
Kunal Tyagi
Defendant is represented by Adv. Pankaj Seth and Adv Yuvraj Sharma
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.05.28
17:11:42 +0530
____________________________________________________________________________
CS (COMM) No.924/23 Page no. 1/ 30
Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd.
JUDGMENT
1. Present is a suit instituted by Plaintiff for recovery of Rs.77,95,635/- alongwith interest pendente lite and future against the Defendant.
2. The material facts borne out of the contents of plaint are as follows:
Plaintiff Firm is engaged in the business of buying and selling of new and old Indian and Imported Tyres and is working under the name and style of 'M/s. GB Traders'. Plaintiff's son Mr. Ankit Gupta is looking after the day to day operations of the firm. Mr Ankit Gupta is well acquainted with facts of the case and is authorized by Plaintiff through Special Power of Attorney dated 02.03.2023 for the purpose of instant proceedings. Defendant is a Company incorporated under the Companies Act and is engaged in the business of providing insurance products, coverage and policies to the public at large.
Plaintiff as per business requirement used to maintain a large amount of stock at her warehouse/ godown located at 7, Ashoka Park Extension, Near East Punjabi Bagh, New Delhi and H.No. 7, Gali No. 9, Sangam Vihar City, Near Kohinoor Farm House, Wazirabad, New Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.05.28 17:11:53 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 2/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. Delhi. Plaintiff in order to secure and safeguard the stock stored at the warehouse had availed an Insurance Package Policy from the Defendant. The said package Policy included the Standard Fire & Special Perils Policy, burglary Policy and Fire Floater Policy and the details of which are mentioned in para 4 of the plaint.
As per terms and condition of the Policy, Plaintiff duly paid the premium without any delay to Defendant. However Defendant only provided the copy of Policy along with payment receipts, but did not provide terms and conditions of the same despite repeated requests and reminders.
On the fateful night of 10.11.2018, a burglary took place at the Godown/warehouse of Plaintiff and in the aforesaid burglary, approx. out of 2000 pieces of tyres, 740 tyres were stolen from Godown, the details of which are mentioned in para 5 of the plaint. All the items / stock were covered under the Policy, which were stolen. The Plaintiff's son came to know about the incident from their worker Sandeep, who went to the warehouse on 10.11.2018 and saw the lock was found broken with tyres missing. Mr. Sandeep after being aware of this immediately contacted Plaintiff's son Ankit Gupta, who reached the warehouse. Mr. Ankit Gupta realized that the burglary had taken place. A list of stolen items/stock was prepared and after reconciling the list of stolen stock / items, Plaintiff lodged a complaint Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:11:59 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 3/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. with PS Burari, Delhi for registration of an FIR. The FIR No. 0520/18 dated 12.11.2018 u/s 380 IPC was registered regarding the incident.
Plaintiff also lodged her claim with Defendant and provided all details of the items stolen, which were to the tune of Rs.77,95,635/- (inclusive of the taxes) in the said incident of burglary. Defendant company duly acknowledged the Claim Form of Plaintiff and intimated her that the claim was under process. The Defendant appointed an Investigator namely M/s.Royal Associates for carrying out the investigation as well as an independent Surveyor namely M/s. Ravi K. Singhal Associates Insurance Surveyor Report and Loss Assessor Pvt. Ltd. to investigate the genuineness of the incident. The officials of surveying agency asked Plaintiff to provide the relevant documents pertaining to the claims, which were duly provided by the Plaintiff. The Plaintiff's son and workers provided all statements in writing, besides providing the details of the stolen items.
The Plaintiff's son also approached the police officials to ascertain the status of investigation and wrote a representation dated 11.12.2018 in this regard. Police after conducting investigation filed the final report before the Ld. Trial Court as "Untraced". Ld. Trial Court passed an order dated 18.02.2019 on the same and said order was provided to the Surveying agency. The Plaintiff duly provided all bills to the Defendant without any delay, which were acknowledged by the Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 ____________________________________________________________________________ 17:12:06 +0530 CS (COMM) No.924/23 Page no. 4/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. surveying agency.
The Plaintiff and her son were regularly approaching the Defendant and surveying agency to know the status of their claims but the Defendant avoided their requests and reminders by giving lame excuses on one pretext or another. The Surveying and Investigation Agency submitted their Report to the Defendant about their investigation regarding Plaintiff's claim. The said Reports were not provided to the Plaintiff despite the Plaintiff regularly approaching them.
Instead of releasing the claim amount, the Defendant by a Repudiation letter dated 24.12.2019 repudiated the claims of Plaintiff on the ground that " Plaintiff had breached the clause -09 of the Policy in question" , the relevant portion of which is mentioned in the Plaint. Aggrieved by the said Repudiation, Plaintiff approached the Defendant while refuting the wrongful repudiation. The Defendant however assured the Plaintiff to reconsider the claims and to provide updates to Plaintiff.
Plaintiff tried to approach the Defendant many times and requested to be provided the Surveyor Report Report and the Investigation Report. Plaintiff filed an RTI with the Defendant to provide for complete details/documents relating to repudiation of claims . The Defendant Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.05.28 ____________________________________________________________________________17:12:13 +0530 CS (COMM) No.924/23 Page no. 5/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. provided the Surveyor Report Report to the Plaintiff by letter dated 20.03.2020 but without any Investigation Report.
Plaintiff approached Pre-Institution Mediation Process as per Section 12 A of The Commercial Courts Act (hereinafter as " The CC Act"). The Defendant did not appear despite service of Notice upon them and the same resulted into the issuance of Non-Starter Report on 08.09.2022.
Plaint avers that subject matter of the suit is a "Commercial Dispute", as provided under Section 2(1) (c)(i) of The Commercial Courts Act, 2015. Plaintiff has prayed for recovery of an amount of Rs.77,95,635/- alongwith interest pendente lite and future @24% per annum from the date of filing suit till its realization.
3. Summons of suit were issued upon the Defendant. The Defendant appeared and contested the suit by filing its written Statement, wherein it took certain preliminary objections inter-alia :
The Repudiation of the Insurance claim by Defendant was lawful and the Plaint did not disclose any cause of action against the Defendant.
Plaintiff obtained the Burglary Floater Insurance Policy for the Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.05.28 17:12:20 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 6/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. period 30.03.2018 to 29.03.2019 from Defendant in respect of the Godown/Warehouse of the Plaintiff. The original Policy alongwith the terms and conditions were duly supplied to the plaintiff at the time of insurance. The contract of Insurance was based upon the principle of utmost good faith. No details that the Godown remained unguarded was disclosed by Plaintiff to the Defendant. Defendant assured that the Plaintiff raised her claims with Defendant on account of theft of 740 tyres from Godown which took place on 10.12.2018, which was informed to the Police.
The Defendant on such intimation appointed an independent and duly licensed Surveyor Mr Ravi K Singhla to survey and assess the loss. Defendant also appointed an independent Investigator M/s Royal Associates to investigate the factum of loss. The Surveyor submitted his final Survey Report dated 12.12.2019 with its detailed observations. Defendant after carefully examining the terms and conditions of the Policy, documents, Survey Report and Investigation Report concluded that there was breach of condition no. 09 of the Policy, which is stated as under:
" if any claim under this policy shall be in any respect fraudulent or if any means or device are used by the insured or any one acting on the insured's behalf to obtain any benefit under this Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:12:26 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 7/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. policy, all benefits and rights under the policy shall be forfeited."
Defendant contended that the claims were repudiated by sending a Repudiation Letter dated 24.12.2019 to Plaintiff. Plaintiff did not provide the accurate information at the time of Insurance proposal and taking the policy. The Insurance Regulatory and Development Authority of India (IRDA) Regulation, 2017 and Clause 19(4) thereof stipulated an absolute duty of Insured to disclose the material facts to the Insurer.
The Defendant it seems contrary to its earlier contents of WS has, denied the averments of Plaint including denial of burglary at the insured Godown and theft of 740 tyres and rest of the written statement proceeds on the flat and simple denials to Plaint averments. The denials in the written statement seem bald without putting forth Defendant's own version.
4. In the Replication, Plaintiff reiterated her version as taken in the plaint while refuting the contentions of Defendant.
5. It is observable that the evidence of parties was directed to be recorded by Ld. Local Commissioner as per Order dated 26.09.2024. Pertinently, as many as 175 questions were asked to Plaintiff witness/PW-1 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:12:33 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 8/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. by Counsel for Defendant on different dates in cross-examination. Almost all of such questions were irrelevant and unrelated to the subject matter of dispute and defence of Defendant i.e. breach of condition 09. These related to the drafting of affidavit, place of drafting, meaning of motor vehicle, source of the amount taken for buying tyres etc and resultantly, further cross- examination was taken up before the Court on 29.01.2025 and the same was concluded on same date.
6. By Order dated 26.09.2024, the following issues were settled for adjudication :-
Issue no. 1: Whether there was breach of condition no. 09 of the Insurance Policy by Plaintiff, disentitling her for the Insurance Policy claim? OPD Issue no.2 : Whether the Plaintiff is entitled to the recovery of the amount as prayed in the prayer clause of the plaint? OPP.
Issue no.3: Whether the Plaintiff is entitled to any interest on the amount. If so, at what rate and from what period? OPP.
Issue no. 4: Relief.
7 Plaintiff in order to prove her case examined her son Mr Ankit Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:12:42 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 9/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. Gupta, SPA as PW-1 who tendered his evidence by way of affidavit as Ex. PW1/A. PW-1 proved his Aadhar Card as Ex. PW1/1A ; Affidavit under Section 65B of Indian Evidence Act as Ex. PW1/1B, SPA in his favour as Ex. PW1/1; Master data of Defendant as Ex. PW1/2; Insurance Package Policy as Mark A ; FIR no 0520 dated 12.11.2018 at PS Burari as Ex. PW1/4; Order dated 18.02.2019 as Ex. PW1/5 ; Surveyor Report as Ex. PW1/6 ; Repudiation Letter dated 24.12.2019 as Ex. PW1/7 ; Letter dated 20.03.2020 as Ex. PW1/8; Photographs of godown as Mark X (total 19) ; Pen drive containing videos recording of trucks communicating in the gali as Ex. PW1/10; Non Starter Report as Ex. PW1/11 and Sale Invoices collectively as Ex. PW1/12 (colly) (Said Invoices were placed on record after application under Order 11 Rule 1(5) CPC of Plaintiff was allowed by Order dated 23.08.2024).
8. Defendant in order to prove its case examined Ms Archana Soni, Deputy Manager in Defendant company as DW-1. DW-1 tendered her evidence by way of affidavit as Ex. DW1/A (inadvertently written as Ex. PW1/A). She has proved the Insurance Policy as Ex. DW1/1.
9 Defendant company also examined Mr Devender Kumar as DW-2, who tendered his evidence by way of affidavit as Ex. DW2/A and proved the Investigation Report dated 20.11.2019 as Ex. DW2/1 (objected to by other side) Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.05.28 17:12:48 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 10/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd.
Submissions of Plaintiff 10 Ld. Counsel for Plaintiff submits that Plaintiff was successful to establish the facts and her entitlement for claims. Ld. Counsel argues that mishap of burglary at the godown took place and the stock was fully covered under Policy of Defendant. Besides, the acknowledgment of the claims were also made by Defendant, but the same met with illegal Repudiation from Defendant. Referring to the Ex. PW1/4 and Ex. PW1/5, Ld. Counsel submits that an FIR of the incident was registered at PS Burari and which culminated in the judicial order dated 18.02.2019 Ex. PW1/5. Ld. Counsel refers to the Surveyor Report Ex. PW1/6 and submits that the same was not proved as per law since the Defendant did not chose to file the same alongwith written statement and further objected to the PW-1 exhibiting the same during chief examination. Since Survey Report was not brought or proved by Defendant, it had to be ignored from record.
11. Ld. Counsel for Plaintiff referred to the time period as per IRDA guidelines and argued that the Survey Report was submitted beyond the time line provided under Regulations for filing such report and thus had to be eschewed from consideration. Ld. Counsel also took the Court towards other Regulations concerning prescribed timeline for extension of period, filing of additional Report and convey of the decision by Defendant within 30 days of the Report and argued that the Survey Report filed beyond time was inconsequential and non est in the eyes of law. Ld. Counsel argued that RAVINDER Digitally signed by RAVINDER BEDI BEDI ____________________________________________________________________________ Date: 2025.05.28 17:12:56 +0530 CS (COMM) No.924/23 Page no. 11/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. even otherwise, the Survey Report contained glaring discrepancies with the outcome, based entirely upon the Surveyor's own imagination. Ld. Counsel submits that the claims of the Plaintiff were rescinded on the basis of erroneous conclusion and Survey Report was based upon mere speculations.
12. Ld. Counsel placed reliance upon the M/s Maa Ashish Textile Industries Private Limited v National Insurance Company Ltd (DOD as 03.06.2019) and M/s Jagdish Woolens P Ltd vs New India Assurance Company (DOD 11.11.2024) to buttress his submissions and argued that similarly the Investigation Report was not proved under law. Drawing my attention to the Investigation Report, Counsel argued that the same was incomplete in the absence of any minutes of investigation ( process and procedure) and thus not considerable. Ld. Counsel referred to the substantial infirmities in the Investigation Report in respect of similarity of statement of all independent witnesses, time and dates of recording their statements apart from non mentioning of Statement of Mr Abhay and non recording of witness Mr. Ajay.
13. Another objection of Ld. Counsel for Plaintiff is to the testimony of DW-1. Ld. Counsel argues that DW-1 had no authority to depose on behalf of Mr Kashmir Singh , the author of the Investigation dated 20.11.2019 Ex. DW2/1 on the strength of the alleged SPA of Mr Kashmir Singh, which was sought to be filed at the stage of Defendant evidence. By Order dated 03.04.2025, the application of Defendant to file Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:13:02 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 12/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. the SPA of Mr Kashmir Singh had stood dismissed and thus the testimony of DW-2 could not be considered. Relying upon the Judgment of Hon'ble Apex Court titled Vidyadhar v Manikrao (1999) 3 SCC 573, Ld. Counsel argues that DW-2 was also not aware of the crucial facts relating to the matter and the Investigator failed to personally step into the witness box to explain the circumstances as to the particular facts, which could not have been delegated to DW-2. Apart from Investigation Report, Defendant did not file any other document in support of their defence and this rendered the falsity of whole case of Defendant apparently clear.
Submissions of Defendant
14. Ld. Counsel for Defendant contended that an independent and duly licensed Surveyor was appointed by Defendant on intimation of the incident to survey and assess the loss. Ld. Counsel argued that an independent investigator was also appointed to investigate the factum of losses and the Survey Report was filed on 12.12.2019. Ld. Counsel argued that in view of the observations of the Survey Report, Plaintiff was found to be in breach of condition no. 09 of the Policy and his claims were repudiated vide letter dated 24.12.2019. Ld. Counsel argued that the repudiation of claims was justifiable. Ld. Counsel further denied the factual contents of the Plaint besides denial of any discrepancies in the Reports.
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.05.28
17:13:10 +0530
____________________________________________________________________________ CS (COMM) No.924/23 Page no. 13/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd.
Analysis and Evidence Appraisal
15. Order XVIII Rule 1 of CPC recognizes the general rule that the Plaintiff in a suit must prove his case. The Latin maxim says : Ei incumbit probatio qui dicit, non qui negat i.e the burden of proof is on him, who asserts and not on him who denies and the same is in consonance with sections 101 to 114 of Indian Evidence Act, 1872.
16. As per Section-101 of The Indian Evidence Act, Plaintiff must prove the existence of legal right in his favour and positively establish its case on the basis of material available. Plaintiff cannot rely upon the weakness or absence of defence to discharge this onus. Once the Plaintiff discharges that onus and makes out a case, which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the Plaintiff to the same. It is also a settled law that in case, evidence is not led by the party, an adverse inference may be drawn, under section 114 of the Indian Evidence Act, 1872.
17. In the light of above-said position, I have heard final submissions as addressed by ld. Counsel for parties and perused the entire record meticulously. I have also gone into the written synopsis coupled with judicial precedents relied upon by Plaintiff and my issue-wise findings are Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:13:17 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 14/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. herein below :
Issue no. 1: Whether there was breach of condition no. 09 of the Insurance Policy by Plaintiff, disentitling her for the Insurance Policy claim? OPD
18 The onus of proving this issue was upon the Defendant.
The Defendant examined Ms. Archana Soni as DW-1, who has testified by way of an Affidavit and proved the Insurance Policy as Ex. DW1/1. It is observable that the Affidavit of DW-1 is almost reproduction of the written statement filed by Defendant. In her cross-examination, DW-1 failed to show that the Plaintiff was ever provided with terms and conditions of the Policy in question at the time of entering into the Contract. DW-1 stated that generally no field inquiries of any sort were conducted by Defendant before issuing the Policy with an amount below Rs. 10 Crores. PW-1 admitted that the Defendant did not collect any evidence of existence of stock at the Insured premises, prior to or after the issuance of Policy and the contract would generally be entered into merely on the basis of Proposal Form.
19. DW-1 then feigns her ignorance as to any Proposal Form obtained from the Plaintiff and states that she had nothing to show that Policy was issued only after looking or verifying any such documents. She further expresses her ignorance as to whether Defendant had asked the Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.05.28 17:13:25 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 15/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. Plaintiff to provide any stock registers or details of stock at any point of time.
20 DW-2 Mr Devender Kumar has deposed that the matter was investigated by Mr Kashmir Singh. He deposed that Investigation Report Ex. DW2/1 did not bear his signatures nor the same was not authored by him. In cross-examination, he stated that he had been an independent Investigator and part of Investigating and Detective Agency M/s Royal Associates, which was run by sole Proprietor Mr Kashmir Singh. DW-2 admits that he did not file any authority to depose on behalf of the Investigator Mr Kashmir Singh. DW-2 candidly admits that Mr Kashmir Singh, who prepared the Ex. DW2/1 could not come to depose as he was residing in USA. DW-2 admits that he has no document to show the basis of his deposition on behalf of Mr Kashmir Singh or his own designation or the status. DW-2 states that he was not privy to the Report Ex. DW2/1 prepared by Mr Kashmir Singh and had no personal knowledge of the matter.
21 Before dealing with the respective pleas and appraising testimony of parties, it would be apposite to look into the defence of Defendant. The Defendant's objection to the claims of the Plaintiff was that the since there was breach of condition no. 09 of Policy, the Repudiation Letter was legally justifiable being based upon the outcome of the Survey Report and the Investigation Report.
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.05.28
17:13:32 +0530
____________________________________________________________________________ CS (COMM) No.924/23 Page no. 16/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. 22 The assessment of losses by the approved Survey Report is a pre-requisite for payment of such claims . At the same time, the Survey Report is not the last and final word and not conclusive. However, it may be the basis or foundation for settlement of claims by the Insurer but it is not binding upon parties (New India Assurance Company ltd v Pradeep Kumar (2009) 7 SCC 787).
23. The Defendant failed to bring or prove the vital piece of evidence which is the Survey Report and the Investigation Report. The Investigation Report though exhibited as Ex. DW2/1, cannot be considered in evidence as the same is not proved as per the provisions of The Evidence Act. The author Mr Kashmir Singh did not appear to prove his report. DW-2 was not authorized by the Defendant or the Surveyor to depose on the behalf of Surveyor in the absence of any authority. His testimony rested entirely on hearsay and has to be ignored from evidence.
24. Mr Kashmir Singh during inquiries could have thrown light to the evidences taken, basis of assessment and the proof of nature and extent of damages in connection with the mishap. Since Defendant was in the exclusive possession of such evidence, an adverse inference has to be drawn that had the Defendant brought them on record, these would have contradicted its own version. In the Judgment of Hon'ble Delhi High Court Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:13:41 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 17/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. in Shalu v Sandeep Soni (DOD as 03.02.2016) , it was held that :
" 32. It is well settled that irrespective of the onus or the burden of proof, a party in possession of the best evidence, is bound to produce the same on record. In this regard, we may advert to the pronouncement of the Privy Council reported at AIR 1917 PC 6 T.S. Murugesam Pillai v. Manickavasaka Pandara which reads as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough: they have no responsibility for the conduct of suit; but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
25 This was further reiterated by the Hon'ble Supreme Court in Gopal Krishna Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413, wherein it was held thus:
"Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy...."Digitally signed by
RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:13:48 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 18/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd.
26. The Defendant also failed to demonstrate as to how there was breach of condition no. 09 by Plaintiff, which in turn was the basis of the Repudiation Letter dated 24.12.2019 Ex. PW1/7. The relevant excerpt of condition no. 09 the Policy Ex. DW1/1 entered into between the parties is set out below :
" Fraud- If any claim under this Policy shall be in any respect fraudulent or if any fraudulent means or device are used by the Insured or any one acting on the insured's behalf to obtain any benefit under this Policy, all benefits and rights under the Policy shall be forfeited".
27. The relevant concluding para of the Repudiation Letter Ex. PW1/7 is set out as below :
" The Surveyor and the Investigator had not agreed with version that 740 new tyres were stolen. That since you had tried to make wrongful gain by misrepresenting the manner of loss and further submitted wrongful statement in this regard. The breach committed by you is fundamental in nature. The Company is relying upon the condition no. 09 of the Policy.
xxx xxx xxx
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.05.28
17:13:54 +0530
____________________________________________________________________________ CS (COMM) No.924/23 Page no. 19/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. The claim since is not admissible as per the terms of the Policy and the same is repudiated here with".
28. Whenever there is any plea of exclusionary clause or breach of condition in the Policy Contract, it is for the Insurer to show that its case falls within the purview of such clause or that breach happened on account of Insured and and the said breach being fundamental, so as to repudiate the claims.
29. In case of any ambiguity, the Contract of insurance has to be construed in favour of insured. Beneficial reference of the decision in National Insurance Company Limited vs. Ishar Das Madan Lal (2007) 4 SCC 105 can be made in this regard, in which it is held that : -
"8. However, there may be an express clause excluding the applicability of insurance cover. Wherever such exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. In a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured. "
30. The Hon'ble Constitution Bench in case of General Assurance Society Ltd. Vs. Chandumull Jain and Another AIR 1966 SC 1644 observed Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.05.28 17:14:01 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 20/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. that : -
"11.......there is no difference between a contract of insurance and any other contract except that in a contract of insurance there is a requirement of uberima fides i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem that is against the company in case of ambiguity or doubt".
31. As already observed, the Defendant did not come up with any evidence supporting its defence. The case of the Defendant primarily rested on the Survey Report and Investigation Report but the said documents remained unproved under law. Further, the Defendant failed to demonstrate as how there was a breach of condition no. 09 of Ex. DW1/1 by Plaintiff on what fraudulent means or device were used by Plaintiff to obtain any benefit under Policy so as to forfeit his rights. The Plea of breach thus remained unsubstantiated.
32. It would also be apposite to reproduce the Regulations 9(2), (3), (4), (5) and (6) of the IRDA (Protection of Policyholder's Interests) Regulations, 2002 (the IRDA Regulations), which read as under :
" 9. Claim procedure in respect of a general insurance policy (2) Where the insured is unable to furnish all the particulars required by the Surveyor Report or where the Surveyor Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:14:08 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 21/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd.
Report does not receive the full cooperation of the insured, the insurer or the Surveyor Report as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The Surveyor Report shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the Surveyor Report shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a Surveyor Report take more than six months from the date of his appointment to furnish his report.
(3) If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the Surveyor Report under intimation to the insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the original survey report.
Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.05.28
17:14:15 +0530
____________________________________________________________________________ CS (COMM) No.924/23 Page no. 22/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. (4) The Surveyor Report on receipt of this communication shall furnish an additional report within three weeks of the date of receipt of communication from the insurer.
(5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.
(6) Upon acceptance of an offer of settlement as stated in sub-regulation (5) by the insured, the payment of the amount due shall be made within 7 days from the date of acceptance of the offer by the insured. In the cases of delay in the payment, the insurer shall be liable to pay interest at a rate which is 2% above the bank rate prevalent at the beginning of the financial year in which the claim is reviewed by it .."
33 As per Regulation 13(2) of the IRDA, Regulations 2015, a Surveyor appointed by the Insurer has to submit his Report to the Insurer as expeditiously as possible, but not later than 30 days of his appointment alongwith copy of his Report giving his comments. However, in the instant Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:14:22 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 23/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. case, the Surveyor appointed by the Defendant submitted his report after almost 390 days of being appointed. The said delay remained inexplicable. As per the guidelines of IRDA, Defendant had to take a decision on the claims within 30 days of receipt of the Survey Report. The Defendant mandatorily had to either offer a settlement of claims or give reasons for rejection of claims in writing. Contrary to this, the Defendant gave its final decision on 24.12.2019 by way of a Repudiation Letter Ex. PW1/7.
It is not the case of Defendant that Surveyor had not received documents from the Plaintiff, required for calculation of claims. The record establishes the factum of the Surveyor having provided all relevant documents, which was not contradicted in evidence.
34 It is the admitted case of parties that the Surveyor was appointed on 14.11.2018 and as per opinion of Survey, Defendant appointed a separate independent investigator on 24.07.2019, who finalized his Investigation Report on 20.11.2019. The Survey Report was not filed by the Surveyor within 30 days i.e. by 13.12.2018 as per IRDA guidelines nor the Plaintiff was intimated of the same. Furthermore, in case of delay in filing of Report within 30 days, the Surveyor had to seek extension of time from Insurer under intimation to insured. But no intimation was given for such time extension granted to Surveyor. As per IRDA guidelines, the time limit to submit such Report could not have exceeded a period of 06 months from date of appointment of Surveyor Report and the said 06 months would have expired by 13.05.2019. In blatent violation of regulations, the Surveyor Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:14:28 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 24/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. Report finalized and submitted his Report only on 12.12.2019.
35 It is not the case of the Defendant that Survey Report was incomplete and additional Report was required. It is not the Defendant's case that any such additional report was asked from Surveyor. The regulations passed by IRDA are binding upon all Insurers. The Defendant failed to come up with any ground much less plausible one for the delay and clearly violated the IRDA Regulations. The Survey Report being not filed within time, deserved rejection on this count alone.
36. There is another aspect of the matter, which is that written statement of the Defendant consists of omnibus denials and is not in accordance with the provisions of Order 8 Rule 3 A CPC as amended by The CC Act, 2015, which provides that ' Where the Defendant denies an allegation of fact in a plaint, he must state his reasons for doing so and if he intends to put forward a different version of events from that given by the Plaintiff, he must state his own version". The written statement of Defendant contains only simplistic and flat denials and is not filed as per the mandate of The CC Act, 2015. As such the averments of plaint are deemed to have been admitted by the Defendant.
On account of the above said, the issue stands decided in favour of Plaintiff and against Defendant.
Digitally signed by RAVINDER RAVINDER BEDI
BEDI Date: 2025.05.28
17:14:35 +0530
____________________________________________________________________________ CS (COMM) No.924/23 Page no. 25/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. Issue no.2 : Whether the Plaintiff is entitled to the recovery of the amount as prayed in the prayer clause of the plaint? OPP.
Issue no.3: Whether the Plaintiff is entitled to any interest on the amount. If so, at what rate and from what period? OPP.
37. The onus to prove these issues was upon the Plaintiff.
The Plaintiff examined her son/SPA Mr Ankit Gupta as PW-1. PW-1 deposed on the line of averments taken in the plaint and proved the registration of FIR relating to the incident, Repudiation Letter Ex PW1/7, Letter dated 20.03.2020 as Ex. PW1/8 of Defendant, pen drive containing video recordings of the trucks communicating in the street as Ex. PW1/2 and the Sale Invoices. On the objection of Defendant, the Policy and Surveyor Report were de-exhibited as Mark A. PW-1 proved the details of the items stolen in the incident and duly acknowledged by Defendant. PW-1 deposed that aggrieved by Repudiation Letter, he again approached the Defendant to know the status of his claims but the Defendant did not respond to the same and instead the claims of Plaintiff met with Repudiation Letter Ex. PW1/7.
38. The record establishes that Plaintiff was not provided any intimation in respect of the assessment of his claims nor the Survey Report or Investigation Report as alleged to be prepared was provided to Plaintiff Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.05.28 17:14:42 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 26/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. within time. Survey Report was provided only on 20.03.2020 to Plainiff but the Investigation Report was never given to him. From the documents proved on record, Plaintiff established the factum of the burglary and the theft of tyres, regarding which complete information alongwith documents was sent to the Defendant. Plaintiff also proved the claim amount based upon the documents/items/machinewise/purchase bills/details of stolen stock/balance sheets/VAT returns and stock statements, all valued at Rs. 77,95,635/- .
39. As also observed in issue no.1, the defendant miserably failed to discharge its burden of proving the Breach under Condition 09 of the Policy. The Defendant failed to come up with any cogent reason for not bringing the Survey Report on record and to prove the same as per law and in such circumstances, I hold that Plaintiff has established her claims against Defendant on preponderance of probabilities and her entitlement for the same.
40. I also observe that the Defendant despite knowing that it had no defense to the claims raised by Plaintiff, still continued to contest the matter with an intent to delay the claims filed under the CC Act and attempted to thwart the proceedings, which cannot be countenanced, given the object and purport of the CC Act, 2015.
Digitally signed by RAVINDER RAVINDER BEDI
BEDI Date:
2025.05.28
17:14:50 +0530
____________________________________________________________________________ CS (COMM) No.924/23 Page no. 27/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd.
Interest 41 On the aspect of interest on the amount of Rs. 77,95,635/- , Ld. Counsel for Plaintiff has claimed an interest @24% p.a on the amount of Rs. 77,95,635/- pendente-lite and future till realization.
42 Hon'ble Delhi High Court in the case titled as 'M/s. Jindal Realcon Pvt. Ltd. & Ors vs M/s. Laxmi Narain Ram Dass & Co, (para-4) has observed as follows :
"4. The Supreme Court in a line of judgments has held that in view of changed economic scenario where there has been consistent fall in rates of interest, Courts must in accordance with the changed circumstances grant lesser rates of interest. These judgments of the Supreme Court are Rajendra Construction Co. v. Maharashtra Housing & Area Development Authority, (2005) 6 SCC 678, McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181, Rajasthan State Road Transport Corporation v. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. v. G. Harischandra, (2007) 2 SCC 720 & State of Rajasthan v. Ferro Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC)"
(emphasis supplied).
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.05.28
____________________________________________________________________________ 17:14:57 +0530 CS (COMM) No.924/23 Page no. 28/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd. 43 Division Bench of Hon'ble High Court of Delhi in the case of R.F.A. No.823 of 2004 titled as Shri Sanjay Mittal Versus Sunil Jain (decided on 07.12.2018) has held that higher rates of interest, which are against public policy, can be struck down by the Courts.
44. Keeping in view the mandate of settled law and Section-34 CPC, the interest of justice would be served if Plaintiff be granted simple rate of interest @ 10 % p.a on Rs. 77,95,635/- from the date of filing of suit till its realization.
Thus, Plaintiff is hereby granted simple rate of interest @ 10% p.a on Rs. 77,95,635/- pendente lite and future till its realization Both issues stand decided in favour of Plaintiff and against the Defendant.
Relief
45. From the discussion as adumbrated herein-above, the suit of the Plaintiff stands decreed against the Defendant and Plaintiff is entitled for :
a) a decree for a sum of Rs. 77,95,635/- (Rupees Seventy Seven Lakhs Ninety Five Thousand Six Hundred Thirty Five only) alongwith simple rate of interest @ 10 % p.a pendentelite and future till its realization.Digitally signed
RAVINDER by RAVINDER BEDI BEDI Date: 2025.05.28 17:15:06 +0530 ____________________________________________________________________________ CS (COMM) No.924/23 Page no. 29/ 30 Savitri Devi Gupta Vs. M/s. New India Assurance Co. Ltd.
b) The costs of the suit alongwith pleader's fee is also awarded in favour of the Plaintiff and against the Defendant.
Decree-sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.05.28
Announced in open Court 17:15:13 +0530
on 28.05.2025 (Ravinder Bedi)
District Judge (Commercial Court)-12
Central District, Tis Hazari Courts Delhi
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