Delhi District Court
Ajay Kumar Taliyan vs Icici Lombard General Insurance ... on 29 March, 2025
THE COURT OF SH. ANKIT MITTAL: CIVIL JUDGE-01:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: 249/18
CNR NO. DLSW030003302018
IN THE MATTER OF :
AJAY KUMAR TALIYAN
S/O SH. KAILASH CHAND TALIYAN,
R/O A-1/442, STREET NO.9.
MADHU VIHAR, NEW DELHI-110059. ...PLAINTIFF
VERSUS
1. ICICI LOMBARD GENERAL INSURANCE COMPANY
LTD.,
ICICI LOMBARD HOUSE,
144, VEER SAVERKER MARG,
NEAR SIDDHI VINAYAK TEMPLE PRABHADEVI
MUMBAI-400025.
ALSO AT:
401 & 402 4TH FLOOR, INTERFACE 11
NEW LINKING ROAD, MALAD (WEST)
MUMBAI-400064.
BRANCH OFFICE:
2nd & 3rd Floor, AGGARWAL PLAZA,
BLOCK NO. B-1, PLOT NO. 4,
LOCAL SHOPPING CENTRE, MINI MARKET,
JANAKPURI, NEAR MISSION PUBLIC SCHOOL,
NEW DELHI-110058
2. M/S CRUISE MOTORS PVT. LTD. (Deleted vide order dated
23.4.2022)
THROUGH ITS MANAGING DIRECTOR
A-12, RAJAPURI OPP, SEC-V,
DWARKA, NEW DELHI 59.
Also At:
K-1/8, OPP. SECTOR-5, DWARKA,
UTTAM NAGAR,
NEW DELHI-110059. ..... DEFENDANTS
Digitally signed
by ANKIT
ANKIT MITTAL
MITTAL Date:
2025.03.29
16:36:05 +0530
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 1 of 24
Date of filing : 24.08.2018
Date of Institution : 26.02.2018
Date of pronouncing judgment : 29.03.2025
SUIT FOR RECOVERY OF RS.1,43,000/- WITH 18%
INTEREST PENDENTE-LITE AND FUTURE INTEREST.
JUDGMENT.
By this judgment this Court shall dispose off a suit for
recovery of money filed by the plaintiff against the
defendant. Before adjudicating upon the issues framed in
the present suit, it necessary to dwell upon the plethora of
pleadings in the present suit.
1. It is averred in the plaint that the defendant is the Insurance
Company incorporated under Company Act, 1956 having
its Registered MARG, NEAR address 144, Veer At Siddhi
Vinayak Saverker Temple Prabhadevi, Mumbai-400025
And Office At 401 & 402 4th Floor, Interface 11, New
Linking Road, Malad (West), Mumbai-400064 operating
and selling/soliciting business of insurance policies/cover
for covering various risk all over India, also having branch
office at Janakpuri-110058. The defendant no.2 is a Private
Limited company incorporated under the companies Act
the auto dealer/seller selling the motorcycle.(The
defendant no.2 was deleted from the present suit vide order
dt. 23.04.2022 i.e. subsequently to the filing of the
amended plaint qua defendant no.1 and 2).
2. It is further averred in the plaint that the plaintiff
purchased one ROYAL ENFIELD MOTORCYCLE
MODEL: THUNDERBIRD-500, having engine capacity
CC-499, bearing Engine U555FOEN087205 and
Digitally signed
by ANKIT
ANKIT MITTAL
Date:
MITTAL 2025.03.29
16:36:15
+0530
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 2 of 24
CHASSIS No. NO. ME3U5S5FIEN05571 on dated
02.01.2015 from dealer Defendant No. 2 namely M/s
Cruiser Motors Pvt. Ltd., K-1/8, OPP. SECTOR-5
DWARKA, UTTAM NAGAR, NEW DELHI-110059 for
the sum of Rs.1,81,494.00/-. The said motorcycle got
registered in the name of the plaintiff/purchaser vide Reg.
No. DL-8S-BV-4812 and also got issued insurance cover
Note/policy through his office at the time of purchase of
the Vehicle.
3. It is further averred in the plaint that the plaintiff has paid
for the insurance, the dealer has insured the said motor
cycle with the defendant No. 1 at the time of purchase of
the said vehicle on 02.01.2015 and thereafter the insurance
was renew on 01.01.2016 by the plaintiff from the
defendant no.1/ insurance company for a further period of
one year vide cover note of policy document No.
111403804 and intermediary I.D. 201192227955 and
Insurance Policy No. 3005/2010875319/ BO/0000001600.
4. It is further averred in the plaint that the said insured motor
cycle was stolen on date 08.01.2016 between 1.00 hrs to
2.00 hrs from B-13, Ram Nagar, Om Vihar, Uttam Nagar,
New Delhi-110059 and consequently an FIR No. 000768,
PS. E-Police Station was lodged by the Plaintiff. The fact
of the theft was duly informed to the Insurance company
on 09.01.2016 and the claim pursued but as per the norms
the plaintiff was told to wait till the no trace report is filed
by the police. Thereafter on 10.08.2016 said motor cycle
was recovered by police official of Bindapur Police
Station, Uttam Nagar, New Delhi at the instance of two
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 3 of 24
accused persons of FIR NO. 023181/16 dated 08.08.16 U/s
379/411/34 IPC PS BINDAPUR, accordingly the plaintiff
was informed about the recovery of his stolen vehicle by
the concerned police official.
5. It is further averred in the plaint that the plaintiff contacted
the PS Bindapur, Uttam Nagar, New Delhi where the said
recovered motorcycle belonging to the plaintiff was lying
in the custody of the police in the above said FIR and the
said Police official directed the plaintiff to get an release
order from the concerned court. Accordingly the plaintiff
filed an application for the release of his motorcycle which
was allowed 03/09/2016 on Superdarinama by the Court of
Ld. MM, Dwarka Courts, New Delhi thereafter recovered
vehicle which was handed over to the plaintiff as per the
direction of Ld MM by the PS Official on 03.09.2016 but
motorcycle was in damaged and non-working condition
and the same was loaded and carried to the workshop for
repairs.
6. It is further averred in the plaint that the Plaintiff consulted
to Cruiser Motors Pvt. Ltd. from where he purchased the
said Motor Cycle )for repair. The Manager of this
showroom advised that it will take some time for
throughout check-up and detected the missing part, so
plaintiff hand over the second motor cycle at the agency
showroom.
7. It is further averred in the plaint that Plaintiff contacted
after 4 days workshop as per the directions as the survey
was also to be done, then the manager informed that the
repairing cost of said Motor Cycle would be about 82,000/
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 4 of 24
according to Surveyor's report.
8. It is further averred in the plaint that after the release order
the plaintiff was informed many critical parts of the said
recovered motorcycle are missing hence the plaintiff got
carried the said recovered motorcycle to the work shop of
M/s Cruiser Motors Pvt. Ltd. The Manager of the M/s
Cruiser Motors Pvt. Ltd. advised that it will take some
time for through checkups of the motor cycle and to detect
the missing parts, so the plaintiff handed over the said
motorcycle to the M/s Cruiser Motors Pvt. Ltd. for the
same and the give estimate of the repair etc. The plaintiff
contacted the said M/s Cruiser Motors Pvt. Ltd. workshop
where the manager gave an estimate of Rs. 82,000/-
according to the surveyor's report.
9. It is further averred in the plaint that plaintiff received a
letter dated 30th June 2017 whose reference No. 8914050,
from the office of defendant No.1 with signature of
Authorized Signatory of Mr. Yugal Kishore, demanded
some documents from the plaintiff. The plaintiff
immediate sent the required documents but in-spite of the
supply of documents and explanation, the said claim was
not finalized nor paid the amount for repairing the said
insured motorcycle of the plaintiff. When the plaintiff
contacted to the defendant No. 1 for the said claim for
necessary repairing the said motorcycle, but defendant
No.1 denied and refused to pay the claim for the necessary
repair as the part of the said motor cycle was removed
during the theft and recovered by Police in damaged
condition and it is apparent its parts was removed by the
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 5 of 24
accused persons as it was recovered in another case and
the said motorcycle had valid insurance policy at the time
of the theft and was insured with the defendant No.1 on the
date of the theft and the claim arose out of the theft case
reported by the plaintiff immediately upon occurrence in
time by the plaintiff, the defendants are liable jointly and
severally towards the payment of the claims amount of Rs.
82,000/- as well as damages to the tune of Rs. 50,000/-for
the harassment, mental pain and agony due to the illegal
denial of the valid claims of the plaintiff, the defendants
are further liable to pay the cost of legal notice as well as
cost of the suit.
10.Thereafter, it was averred in the plaint that the plaintiff has
sent legal demand notice dated 08.01.2018 through his
counsel, but the defendants have failed to make any
payment as demanded by the plaintiff vide his notice dated
08.01.2018 which was sent vide speed post receipt No.
ED550149785IN AND ED550149935IN and the same was
duly served upon the defendant No.1 company on
10/01/2018 but the defendants have illegally and
unwarrantedly not paid the claims causing immense
harassment by denying the payment to which the plaintiff
is entitled under the policy of insurance. Hence, plaintiff
filed the present suit with the following reliefs:
(a) a money decree of Rs. 1,43,000/- in favour of plaintiff
and against the defendants along with the interest @ 18%
for pendente-lite and future interest till the date of
payment.
(b) allow the cost of the suit in favour of plaintiff and
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 6 of 24
against the defendants.
11.In the Written Statement filed on behalf of defendant
Insurance company, it is submitted that the present suit is
not maintainable and liable to be dismissed because the
plaintiff has himself withdrawn the claim bearing no.
MOT06644957 filed before the answering defendant on
the ground of personal reason and had given written
statement alongwith his signature on the job card of the
subject vehicle. It is submitted that, since the plaintiff has
withdrawn his claim, hence the answering defendant has
closed the claim of the plaintiff and the same was
intimated to the plaintiff vide letter dated 29.09.2017. It is
submitted that in the light of the above mentioned facts
and circumstances, plaintiff cannot be allowed to proceed
with the present suit for recovery and the same may be
dismissed with heavy cost.
12.It is further submitted that the as per the contentions of the
plaintiff, the insured motorcycle bearing no. DL 8S BV
4812 was stolen on 08.01.2016. It is further submitted that
as per the contentions of the plaintiff, the aforesaid vehicle
was recovered by the police on 10.08.2016. The said
motorcycle was released on superdari on 03.09.2016.
However, it is submitted that the plaintiff has intimated the
insurance company on 31.05.2017. Hence, it is submitted
that there is delay of more than a 16 months (270 days) to
intimate the insurance company regarding the recovery of
the insured vehicle. Since there was a huge delay in
intimating the insurance company, the answering
defendant vide letter dated 30.06.2017 had asked
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 7 of 24
clarification from the plaintiff regarding delay in
intimation and recovery memo mentioning details of the
damages after recovery of the vehicle. However it is
submitted that the plaintiff has not provided satisfactory
reasons for delay in intimation and has withdrawn his
claim by giving written consent on the job card.
13.It is submitted that as per the clause of 1 of the terms and
conditions of the Insurance Policy "In case of theft or other
criminal act which may be the subject of a claim under this
Policy the insured shall give immediate notice to the police
and co-operate with the Company in securing the
conviction of the offender". However it is submitted that in
the present case the answering defendant company was not
informed immediately by the plaintiff, therefore, it
submitted that plaintiff has violated the important terms
and conditions of the insurance policy. Hence, this sole
violation of the condition of the insurance policy, the
answering defendant is not liable to pay any amount or
compensation to the plaintiff as alleged in the present suit
14.It is further submitted that the answering defendant has
appointed IRDA licensed surveyor and conducted the
survey of the insured vehicle. It is submitted that according
to the survey report dated 28.06.2017, the liability of the
insurance company is Rs. 21,597.81, therefore without
admitting any thing, it is submitted that in case the liability
of insurance company comes, it would be as per the survey
report and not more than it. The estimate conducted by the
garage is not the survey report but a mere estimate of
expenses. The liability of the insurance company is only
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 8 of 24
based on the survey report and not the as per the estimate.
Estimate has no value in the eyes of law, whereas the
survey report is authentic document as per the law.
Therefore, it is submitted that answering Defendant
Company is not liable to pay any amount to the plaintiff
and the present suit is liable to be dismissed with heavy
cost.
15.It is further submitted that the vehicle bearing no. DL 8S
BV 4812 was duly insured with the answering defendant
vide Two wheeler Vehicle Package Policy no.
3005/111403804/00/B00 valid from 01.01.2016 to
midnight 31.12.2016. However it is submitted that the
aforesaid insurance policy was issued subject to the terms
and conditions of the insurance policy. Hence it is
submitted that, the liability is arose if any, it would be
subject to the terms and conditions of the insurance policy.
16.It is further submitted that all the allegations against
answering defendant are completely wrong, baseless,
vague hence vehemently denied. All the content of the
plaint are wrong and denied by the answering defendant. It
is also submitted that this Hon'ble court has no jurisdiction
to entertain the present recovery suit and hence liable to be
dismissed.
17.Issues were framed on 15.12.2018 as follows:
1) Whether the plaintiff is entitled to a decree for recovery
of Rs.1,43,000/- alongwith pendente-lite and future
interest at the rate of 18% per annum against the
defendant? OPP.
2) Costs of the suit.
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 9 of 24
18.The plaintiff has examined two witnesses on his behalf i.e.
Sh. Ajay Kumar Taliyan, the plaintiff who stepped into the
witness box and examined himself as PW1. In his
testimony, PW1 tendered his evidence by way of affidavit
being Ex.PW1/A and he reiterated the contents of the
plaint and also relied upon the following documents:
1)Copy of Certificate of vehicles bearing No. DL-8S-
BV-4812 is marked as Mark A (Ex.PW1/B is de-
exhibited).
2) Copy of delivery note is marked as Mark B (Ex.PW1/C
is de-exhibited).
3) Copy of PAN card is Ex.PW1/D (OSR).
4) Copy of Certificate cum insurance policy schedule is
Ex.PW1/E.
5) Copy of FIR is Ex.PW1/F.
6) Copy of Furd/recovery memo is marked as Mark C
(Ex.PW1/G is de-exhibited).
7) Copy of releasing the vehicle on superdari is Mark D
(Ex.PW1/H is de-exhibited).
8) Survey report is Ex.PW1/I (colly).
9) Office Copy of legal notice dt. 8.1.2018 is Ex.PW1/J.
19.In the cross-examination, he deposed as under:
"It is correct that my vehicle recovered in the month of
August 2016.
Q. When did you intimated to the insurance company
regarding recovery of stolen vehicle?
Ans. After the recovery of my vehicle, on the same day I
have intimated to the Cruiser Motors and asked them to
intimate to insurance company. I intimated the insurance
company just after when my vehicle was stolen with FIR
copy. I intimated the insurance company regarding the
recovery of vehicle on second day of the recovery. I
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 10 of 24
intimated the insurance company personally at Cruiser
motors. I do not remember the name of official of the
insurance company to whom I intimated regarding the fact
that vehicle has been recovered. It is correct that Cruiser
motors did not provide any acknowledgment about the fact
that I have informed them about the recovery of vehicle. It
is wrong to suggest that I intimated the insurance company
in May 2017. At this stage, document i.e. letter dt.
30.6.2017 is marked as Mark PW1/DX, shown to the
witness, witness states that it is correct that insurance
company vide letter dt. 30.6.2017 asked me clarification to
provide regarding delay intimation and recovery memo
mentioned in the details of damages after the recovery. It
is correct that I have provided the clarification in terms of
the letter dt. 30.6.2017 issued by insurance company. I
also issued a letter to insurance company as clarification in
terms of letter dt. 30.6.2017. The said document is also
annexed with my plaint. It is also correct that said
clarification is Ex.PW1/I (colly). It is correct that
Ex.PW1/I(colly) is the survey report and not assessment
report. It is correct that surveyor did not issue any survey
report to me. It is correct that Ex.PW1/I colly, the
assessment report issued by Cruiser motors. It is correct
that they have never provided any receipt of
acknowledgment regarding recovery memo and
clarification to letter dt. 30.6.2017. I do not remember the
name of the person to whom I have given the clarification
and recovery memo regarding letter dt. 30.6.2017. It is
wrong to suggest that I have withdrawn the claim of my
stolen vehicle from insurance company. It is wrong to
suggest that I am deposing falsely."
20.PW2 is Sh. Ankush Yadav, workshop Manger of Cruiser
Motors Pvt. Ltd. In his testimony, PW2 tendered his
evidence by way of affidavit being Ex.PW2/A and he
reiterated the contents of the plaint and also relied upon
the document i.e. Estimate of vehicle in question vide
Ex.PW2/A.'
21.In the cross examination, he deposed as under:
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 11 of 24
"At this stage, witness is shown Ex.PW2/A and Ex.PW1/I
(colly) to which the witness states that Ex.PW2/A and
Ex.PW1/I (colly) not the identical documents. Ex.PW2/A
is newly created document after creating the document
Ex.PW1/I (Colly). It is correct that the grand total
mentioned in the Ex.PW2/A is Rs.1,16,100/- and grand
total mentioned in Ex.PW1/I (colly) is Rs.1,19,600/-. It
is correct that in Ex.PW1/I (colly) at point A to B is not his
signature. It is correct that Ex.PW2/A is prepared by me
and it bears my signature at point C to D. It is also correct
that Ex.PW2/A does bear the signature of owner or agent.
However, Ex.PW1/I ( colly) bears the signature of owners.
It is also correct that unlike Ex.PW1/I (colly) , Ex.PW2/A
does not bear terms / note. It is correct that Ex.PW1/I
(colly) earlier estimate dt. 17.10.2018 is estimate of
Cruiser Motors Pvt. Ltd. I am not denying this document
Ex.PW1/I (colly). Ex.PW1/I (colly) was prepared by Sh.
Kamal, Accidental supervisor and not prepared by me.
Q. Have you retained any certificate of experience to Mr.
Kamal regarding supervisor experience. (Note- question is
disallowed as the same is the question seeking personal
knowledge of the experience of Mr. Kamal and the same is
not in the knowledge of present witness). It is correct that
in the above mentioned estimate, all the cost of the parts is
mentioned for new parts. It is correct that in previous
estimate Ex.PW1/I(colly) it is no where mentioned that
any part is repairable. It is correct that it is mentioned on
the note of previous estimate that "the estimate has been
drawn on causal observation only. Supplementary estimate
will be provided if necessary after opening the sub-
assemblies." It is correct that we have not opened the
vehicle in question in the garage. It is correct that the total
mentioned in the earlier estimate i.e. Rs.1,19,600/- is
incorrect. (vol- the total amount mentioned in Ex.PW1/I is
not mentioned by the supervisor rather the same must have
been mentioned by party or his agent, but the break up
amount/ item-wise amount is mentioned by the supervisor
of Cruiser Motors). It is not in my knowledge that whether
the fuel tank and horns mentioned in the estimate were
intact or not. It is correct that we have prepared only
estimate and customer / plaintiff had not repaired the
vehicle in question from us. At this stage, witness is shown
the document i.e. job card No.4366 issued by Cruiser
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 12 of 24
Motors, same is now marked as Mark PW2/DX1, to which
witness states that the document has been prepared by
Cruiser Motors. It is correct that it is mentioned in the
document by the plaintiff/ customer that "I want to
withdraw my claim MOT0664495 due to some personal
reasons". It is wrong to suggest that earlier estimate given
by Cruiser Motors Pvt. Ltd is false estimate to create
profit. It is wrong to suggest that I am deposing falsely."
22.PE was closed on 26.08.2023. Thereafter, defendant
23.The defendant has examined one witness i.e. Sh Pradeep
Kumar Yadav, Surveyor and Loss Assessor who stepped
into the witness box and examined himself as DW1. In his
testimony, DW1 tendered his evidence by way of affidavit
being Ex.DW1/A and he reiterated the contents of the WS
and also relied upon document i.e. Copy of Survey report
vide Mark D.
24.In the cross-examination, he deposed as under:
"I am independent working as a surveyor since 2004. I
have done survey of vehicle in question on 03.06.2017. I
have submitted the survey report for the same on
28.6.2017. I have surveyed the vehicle in question at
workshop at Rajapuri, Dwarka, Delhi without the presence
of plaintiff namely Ajay Kumar Taliyan. There was no
signature of the plaintiff on the survey report (vol- survey
report always signed by only surveyor.).
Q. At the time of survey whether few parts were missing
or damage or both in the vehicle in question?
Ans. At the time of survey few parts were missing and few
parts were damaged and the same is mentioned in the
survey report Mark D.
It is correct that I have licence for conducting the survey
of automobile vehicles. The rates of the parts of the
vehicle is assessed on the basis of dealer price not market
price. Court question: can you clarify the difference
between the dealer price and market price?
Ans. The market price includes the profit margin of the
dealer.
The labour charges are assessed on the basis of negotiation
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 13 of 24
between the surveyor and the workshop. It is wrong to
suggest that I am deposing falsely.
25.DW-2 Sh. Deepak Bansal, AR of the defendant/ ICICI
Lombard Geneeral Insurance Co. Ltd. He tender his
evidence by way of affidavit which is Ex.DW1/1, it bears
my signatures at point A and B. I rely upon the following
documents:
1) Copy of the Job Card is already marked as Mark
PW2/DX1.
2) Copy of the letter dt. 29.9.2017 is marked as Mark B.
3) Copy of the letter dt. 30.6.2017 is marked as Mark C.
4) Copy of survey report dt. 28.6.2017 is already marked as
Mark D.
5)Copy of insurance policy alongwithh terms and
conditions are collectively marked as Mark E.
26. In cross-examination, he deposed as under:
"At the time of issuance of insurance policy I was not
working with defendant company. I have knowledge about
the insurance and dispute in question as per office record
of the company. It is correct that claim also be intimated
through call centre. (vol- it can also be intimated through
branch of the insurance company). After the intimation
through Call centre, insurance company take the request
and process accordingly.
Q. Do you know whether the call centre record of your
company is maintained or not?
Ans. I am not aware as per company process because I am
from the legal department of defendant company.
I am not aware whether the plaintiff had intimated to the
defendant company regarding the theft of his vehicle in
question on 09.1.2016. (vol- I have not joined the
defendant company at that time.). I am not aware whether
the defendant company informed the plaintiff to wait till
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 14 of 24
no trace report is filed by the police. If someone has to
withdraw his claim then he can approach our company
either by informing on call centre or approaching directly
our branch office. (vol- I am from the legal department,
therefore, I do not know the complete process but as far as
I know if information reaches to our company by any way
then a person can withdraw his claim).At this stage,
witness is shown the document i.e. job card which is
marked as Mark PW2/DX1 and after seeing the same, the
witness states that it is wrong to suggest that someone
instead of plaintiff wrote on the job card that he withdraw
his claim. I have to check whether it is mentioned in our
policy that we will reimburse as per the surveyor report.
(vol- our policy as per the IRDAI guidelines.). At this
stage, witness is shown the document i.e. insurance policy
which is marked as Mark E and after seeing the same, the
witness states that It is correct that it is not mentioned in
our policy that we will reimburse as per surveyor report.
(vol- we reimburse as per the IRDAI guidelines and policy
terms and conditions). It is incorrect to suggest that I am
deposing falsely."
27.DE was closed on 24.09.2024 and final arguments were
heard from both the parties.
Issue-wise findings as under:
28. ISSUE NO.1: Whether the plaintiff is entitled to a decree
for recovery of Rs.1,43,000/- alongwith pendente-lite and
future interest at the rate of 18% per annum against the
defendant? OPP.
29.The onus to prove the aforesaid issue was upon the
plaintiff.
30.It is well settled principle of law of Evidence that the
burden of proof in civil trial is the obligation on the
plaintiff that the plaintiff would adduce evidence that
proves his claims against the defendant and is based on
preponderance of the probabilities. Under Indian law, until
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 15 of 24
and unless an exception is created by law, the burden of
proof lies on the person making any claim or asserting any
fact. A person who asserts a particular fact is required to
affirmatively establish it. The Hon'ble Supreme Court
in R.V.E. Venkatachala Gounder V Arulmigu
Viswesaraswami & V.P. Temple & another,
VI(2003)SLT307 observed that whether a civil or a
criminal case, the anvil for testing of 'proved', 'disproved'
and 'not proved', as defined in Section 3 of the Indian
Evidence Act, 1872 is one and the same. A fact is said to
be 'proved' when, if considering the matters before it, the
Court either believes it to exist, or considers its existence
so probable that a prudent man ought, under the
circumstances of a particular case, to act upon the
supposition that it exists. It was further observed by the
Hon'ble Supreme Court of India in A. Raghavamma &
another V Chenchamma & another, AIR 1964 SC 136 ,
there is an essential distinction between burden of proof
and onus of proof: burden of proof lies upon a person who
has to prove the fact and which never shifts. Onus of proof
shifts. Such a shifting of onus is a continuous process in
the evaluation of evidence. Further, the Hon'ble Apex
Court in the Rangammal V Kuppuswami and others, Civil
Appeal No 562 of 2003 observed that burden of proof lies
on the person who first asserts the fact and not on the one
who denies that fact to be true. Thus, it can be said that the
burden of proving the facts rests on the party who
substantially asserts the affirmative issues.
31.Now keeping the aforementioned legal principles relating
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 16 of 24
to onus of proof and burden of proof in the mind, let's
advert to the facts of the present case.
32.It is relevant to mention to here that upon the perusal of
pleadings and evidence of both the parties, it is admitted
fact that the plaintiff had availed the insurance policy for
his motor vehicle from the defendant insurance company.
It is further admitted by the both parties that the aforesaid
vehicle was stolen and was subsequently found by the
police upon the registration of the FIR by the plaintiff.
33.However, as per the plaintiff when he got his motor vehicle
released by superdari order and took the vehicle to the
workshop of his dealer agency namely M/s Cruiser Motors
Pvt. Ltd, where they made estimate of Rs. 82,000/- , will
be incurred for repairing the said motor vehicle after taking
account of missing and damaged parts of the same,
however the said claim was rejected by the defendant,
therefore he was constrained to file the present suit.
34.It is pertinent to mention here in the para no. 6 of the WS,
without prejudice, defendant company has asserted that
according to survey report dated 28.06.2017 ie Mark D
made by IRDA licensed surveyor, the liability of defendant
insurance comes to Rs. 21,597.81/- only, therefore claim
made by the plaintiff on the basis of estimate provided by
his dealer agency in the present case is untenable.
(Grounds of defence is discussed in the later part of
judgment)
35.Hence, in the light of above, it can be said that plaintiff
was successful in establishing the prima facie case and
discharging the onus of proof to the limited extent that he
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 17 of 24
had a valid insurance contract with the defendant and his
motor cycle was stolen for which an FIR was registered
and same was discovered subsequently. Further, defendant
has conceded to its part liability of Rs. 21,597.81/- towards
the plaintiff under certain conditions.
36.The main controversy to be decided in the present suit
from the contentions of defendant is that whether the
plaintiff had the withdrawn his claim by the executing note
handwritten note ie Mark PW2/DX1 on the job card.
Further, if not then whether the assessment of insurance
claim will be made on the basis of estimate provided by
the dealer agency of the plaintiff or on the basis of survey
report of the Surveyor.
37.Further, it is relevant to mention Section 101 of the Indian
Evidence Act, 1872 which defines " burden of proof" and
laid down that the burden of proving a fact always lying
upon the person who asserts the facts. Until such burden is
discharged, the other party is not required to be called
upon to prove his case. The Court has to examine as to
whether the person upon whom the burden lies has been
able to discharge his burden. Until he arrives at such
conclusion, he cannot proceed on the basis of weakness of
other party.
38.At this point, it is important to note the judgment passed
by the Hon'ble Supreme Court of India in the case tilted as
"A. B. Govardhan Vs. P. Ragothaman Civil Appeal Nos.
9975-9976 of 2024 @ SLP (Civil) Nos. 5034-5035 of
2019 wherein it has discussed the principles of
appreciation of Law of Evidence. The relevant paragraphs
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 18 of 24
are reproduced herein as under:
"...Fact remained that the respondent admitted to having
executed Exhibit P-1 (the Agreement) and that the signature(s) thereon were his, in the Proof Affidavit dated 01.03.2010 as also cross examination dated 08.03.2010. No doubt, he (respondent) has denied its voluntary execution and contended that it was under coercion and threat, but no evidence was brought or led by him to support this plea. The Division Bench opined, correctly, that "It is true that there was no supporting evidence adduced by him to show as to how he was threatened and forced to execute Ex.P1."
Pausing here, we may emphasise that for every fact which is pleaded, there has to be evidence, either oral or documentary, to substantiate the same. A bald averment or mere statement by a defendant bereft of evidentiary material to back up such averment/statement takes such defendant's case nowhere. While deciding a statutory appeal under Section 116A of the Representation of the People Act, 1951 against an order of the Gauhati High Court rejecting an Election Petition, this Court in Kalyan Kumar Gogoi v Ashutosh Agnihotri, (2011) 2 SCC 532 commented that the term 'evidence' is used colloquially in different senses:
"33. The word "evidence" is used in common parlance in three different senses: (a) as equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. Though, in the definition of the word "evidence" given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc."
39.Now coming to the facts of the present case, one of the main arguments advanced by the defendant company was that the present claim made by the plaintiff is untenable Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 19 of 24 since he withdrew the claim by giving his written statement along with his signature on the job card of the vehicle in question Ex. PW2/ DX1 and same was intimated to him by the defendant company vide letter 29.09.2017 Mark B. Interestingly, defendant company has failed to ask any questions regarding withdrawal of his claim by writing a letter ie Ex PW2/DX1 or communication made by it regarding the withdrawal of the claim and pertinently, even the plaintiff/ PW1 was not even confronted with those documents so that any explanation or justification could be putforth by the plaintiff. Further, it appears to be material omission on the part of the defendant especially when the plaintiff has specifically disputed the authenticity of the alleged letter written by him for withdrawal of claim. It is relevant to mention here that cross-examination is the opportunity for a party to challenge the credibility, reliability, and relevance of the testimony of the opposing party's witness and if a party fails to ask questions about documents that have been produced by the adverse party, it may be seen as failing to contest the evidence presented by it. Thus, the documents adduced by the defendant company for proving that the aforesaid insuance claim was withdrawn by the plaintiff cannot be relied upon, therefore, the aforesaid said contention of defendant company ie the plaintiff withdrew his claim is hereby dismissed for want of proof.
40.Now, coming to second limb of the contention raised by the defendant company that the assessment of insurance claim will be made on the basis of survey report prepared Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 20 of 24 by the licensed Surveyor of IRDA ie Rs. 21,597.81/- not on the basis of the estimate prepared by the dealer agency of the plaintiff ie Rs. 82,000/-.
41.At this stage, it is relevant to place reliance upon the judgment passed by the Hon'ble Supreme Court of India in the case titled as "New India Assurance Company Limited v Pradeep Kumar" in (2009) 16 ( ADDL) S.C.R 508 wherein it has discussed the reliability of surveyor report and the relevant paragraph is reproduced as under:
"15. The object of aforersaid provision is that where the claim in respect of loss required to be paid by the Insurer is Rs.20,000/- or more, the loss must first be assessed by approved Surveyor( or loss assessor ) before it is admitted for payment or settlement by the Insurer. Proviso appended thereto, however, makes it clear that the Insurer may settle the claim for the loss suffered by the Insurer at any amount or pay to Insurer any amount different from the amount assessed by the approved Surveyor (loss assessor). In other words although the assessment of loss by the approved Surveyor is a pre-requisite for payment or settlement of claim of Rs.20,000/- or more by the Insurer, but Surveyor report is not the last and final word. It is not so sacrosanct as to be incapable being departed from; it is not conclusive. The approved Surveyor's report may be the basis or foundation for settlement of the claim by the Insurer in respect of the loss suffered by the Insured but surely such report is neither binding upon the Insurer nor Insured."
42.Thus the law is settled that the surveyor's report is not the last and final word i.e. it is not so sacrosanct as to be incapable being departed from and at the same time the surveyor's report certainly can be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyor's report. Keeping the Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 21 of 24 aforesaid caution in the mind qua surveyor report, let's advert to facts of the present case. It is relevant to mention here that the plaintiff has filed two estimate reports made by his dealer agency ie M/s Cruise Motors Pvt Ltd, one filed with the plaint ie Ex PW1/I (colly) and other one was filed by PW 2 Sh Ankush Yadav, workshop manager of Cruise Motors when he entered into witness box ie Ex PW2/A and admittedly the same was made subsequently. Interestingly, both estimate reports filed on the behalf of plaintiff have variation in the total assessment ie earlier report pegs the cost @ Rs. 1,19,600/- and the grand total in the subsequent estimate report assesses damage at Rs. 1,16,100/-. Further, PW2 admits that earlier estimate report ie Ex PW1/I nowhere mentions which parts of vehicle is repairable and same is based upon the casual observations only. Pertinently, it is admitted by the PW2, the aforesaid estimate has been made without opening of vehicle in the garage. Thus, from above admissions of the plaintiff witness, it can be said that estimate report has been made casually and no reliance can placed upon it.
43.Further, defendant company also brought the surveyor ie Sh. Pradeep Kumar Yadav, who had made the survey report of vehicle in question as witness/ DW1. Thus, it was incumbent upon the plaintiff to impeach the credibility of the witness by either impeaching his credibility as expert witness or by disputing his methodology through which he made the survey report, however plaintiff failed on both counts, as they failed to elicit any contradictory answer from him or adduce any documentary evidence to discredit Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 22 of 24 the assessment made by him in his survey report. Therefore, it can be said that the DW2 was able to prove his survey report qua vehicle in question. Thus, it can be concluded that defendant was able to prove it's contention that assessment of repair cost has to be made on the basis of the surveyor report rather than the estimate report produced by the plaintiff.
44.Further, in the present suit, the plaintiff has also claimed Rs. 50,000/- on the account of damages due to mental agony, pain and harassment which arose due to illegal denial of valid claims of plaintiff by the defendant. In the light of above discussion, it can be said that plaintiff had over assessed his damages and went for present litigation therefore no ground for damages is made out, hence same is denied.
45.Since the defendant Insurance company has conceded his liability to the extent of the claim assessed by the Surveyor in his survey report dt. 28.06.2017 Mark D i.e. Rs.21,597.81 towards the plaintiff and it could not prove the contention for not allowing the claim of the plaintiff even on the scale of pre-ponderence of the probabilities , therefore, the suit is being decreed in the view of the admissions made by the defendant company.
RELIEF.
46.The suit of the plaintiff is therefore decreed in the favour of the plaintiff and against the defendant, the Defendant is directed to pay Rs.21,597.81 to the plaintiff with the interest @ 9 % p.a. from the date of filing of the suit till the date of actual realization of the decreetal amount.
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 23 of 24
47.Costs of the suit are also awarded in favour of the plaintiff.
48.Decree sheet be prepared accordingly.
49.File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN
COURT ON 29.03.2025 Digitally
signed by
ANKIT ANKIT
Date:
MITTAL
MITTAL 2025.03.29
16:36:21
+0530
(ANKIT MITTAL)
CIVIL JUDGE-01(SW)/DWARKA COURTS
NEW DELHI
Civil Suit No. 249/18 Judgment dt. 29.03.2025 Page no. 24 of 24