Delhi District Court
Krishan Pal vs National Insurance Company Ltd on 20 March, 2007
//1//
IN THE COURT OF SH. DAYA PRAKASH
ADDITIONAL DISTRICT JUDGE: DELHI
Suit No. : 198/05/04
Krishan Pal
S/o. Sh. Roshan Lal
A-87/5, Wazirpur Industrial Area
Wazirpur, Delhi-110 052.
.....Plaintiff
VERSUS
National Insurance Company Ltd.
Through its Branch Manager
Mohan Tower, Ist Floor
Commercial Complex, Ring Road
Wazirpur Industrial Area
Delhi-110 052.
.... Defendant
SUIT FOR RECOVERY OF RS.5,42,088/-
JUDGMENT
1. By this judgment I shall dispose of the suit for recovery of Rs.5,42,088/- filed by the plaintiff against the defendant.
2. In the plaint it is submitted that plaintiff is the registered owner of the vehicle bearing no.HR-55-4844 Tata- 407 which was insured with the defendant company vide Policy no.360803/31/02/6344964 valid from 22.07.2002 to 21.07.2003. It is further submitted that the above said vehicle 1/22 //2// was stolen from the house of Jasbir Singh son of Sh.Daya Singh from Rohini who was the care taker of the plaintiff. It is submitted that the vehicle was parked in front of the house of Sh.Jasbir Singh at about 11:00 p.m. on 03.02.2003 but when the Jasbir Singh checked the vehicle early in the morning on 04.02.2003 then the vehicle was not there where it was parked in the night and thereafter the plaintiff and Jasbir Singh tried to search it out but could not succeed and on 08.02.2003 Jasbir Singh lodged the FIR with the Police Station Rohini as Jasbir Singh is residing at Rohini but the complaint was lodged on 100 number and written complaint with the concerned police station was lodged on 04.02.2003.
It is further submitted that the FIR bearing no.64/08.02.2003 u/s.379 IPC under Police Station Rohini was lodged and the plaintiff thereafter lodged the claim with the Insurance Company i.e. Defendant on 11.02.2003. It is submitted that the plaintiff submitted all the relevant documents at the time of lodging the claim with the defendant and thereafter the defendant appointed the Surveyor/ Investigator namely Sh. Dalveer Sodhi.
It is submitted that the plaintiff written so many letters i.e. 21.05.2003, 26.09.2003, 12.12.2003 and 2/22 //3// 17.12.2003 which were duly received by the defendant, requesting the defendant to pass the claim but the defendant tried to linger on the matter by one pretext or the other and the defendant did not pay any heed to pass the claim.
It is further submitted by the plaintiff that the cost of the vehicle at the time of issuing the policy was Rs.3,30,000/- as has been estimated by the officials of the defendant. It is submitted that the plaintiff is suffering from huge financial loss as the plaintiff took the above said vehicle on hire purchase basis and plaintiff paid huge amount by taking loan from the other party as the plaintiff was unable to pay the same without the vehicle in question from the date of its theft.
It is further submitted that the plaintiff is entitled for the value of the vehicle in question as estimated by the defendant i.e. Rs.3,30,000/- alongwith loss suffered by the plaintiff i.e. Rs.1 Lac towards the over due charges which was paid by the plaintiff from whom the plaintiff took the loan for paying the same to the financer i.e. M/s. GE Capital and the plaintiff is also entitled for the compensation towards mental torture, harassment, conveyance charges, as the plaintiff ran from top to bottom with the defendant 100 times as the defendant has failed to provide the services to the plaintiff to 3/22 //4// the tune of Rs.50,000/- which amounts to deficiency of services and liable to pay the damages to the plaintiff.
It is further submitted that having no other alternative plaintiff filed the complaint before the Consumer Dispute Redressal Forum, Shalimar Bagh on 09.01.2004 but the defendant taken the objection that the complaint is barred u/s.2(d)(ii) of Consumer Protection Act 1986 as the plaintiff is not the consumer besides other objections and the Hon'ble Forum was pleased to pass an order that the complaint of the plaintiff was not maintainable before the Forum. It is further submitted that plaintiff received a letter dt.25.02.2004 on 11.03.2004 but defendant failed to make the payment. Hence the suit.
It is submitted that the plaintiff is entitled for the sum assured alongwith interest @36% p.a. and damages to the tune of Rs.50,000/- which total amounting to Rs.5,42,088/- which the defendant is legally bound to make the same as the defendant violated the terms and conditions of the policy and failed to provide the service in a proper manner.
Plaintiff further submits that the cause of action arose in favour of the plaintiff and against the defendant; that this court has jurisdiction to try the present suit and that the 4/22 //5// suit has been properly valued for the purposes of jurisdiction and court fees.
Accordingly plaintiff prayed that this Hon'ble Court may kindly pass a decree for the recovery of Rs.5,42,088/- alongwith interest @36% p.a. from the date of filing of the suit till final realisation in favour of the plaintiff and against the defendant.
3. Defendant duly served and filed W.S. wherein several preliminary objections were raised that the present plaint is not maintainable as the same is not filed within the period of limitation and that the plaintiff has not affixed proper court fees.
It is submitted that the plaintiff lodged a claim vide his letter dt.11.02.2003 after submitting the motor claim form and after receiving the form the defendant company deputed Sh. Dalbir Sodhi Investigator to conduct the investigation. The said investigator submitted his report dt.28.06.2003 and confirmed the theft of the vehicle. It is further submitted that the Branch Manger wrote a letter dt.11.11.2003 to its Divisional office to get verified the RC, Fitness, Permit of the insured vehicle and on receipt of the legible copy of the FIR the value 5/22 //6// of the stolen vehicle is mentioned in the FIR as Rs.2 Lacs. It is further submitted that after completing all formalities, considering the terms and conditions of the insurance policy, documents submitted by the plaintiff and reports of investigator and surveyor, the competent authority of the defendant company approved the claim of the plaintiff for a sum of Rs.2,98,400/- towards full and final settlement.
It is further submitted that the defendant company is willingly ready to pay the above said amount to the plaintiff and the same was also conveyed to the plaintiff vide letter dt.09.02.2004 of the defendant company. It is further submitted that the defendant company asked the plaintiff to fulfill the requirements to settle the claim but of no avail. In between the plaintiff filed a complaint before the Consumer Forum which was withdrawn by the plaintiff on 27.09.2004.
In reply on merits, it is submitted that the vehicle bearing no.HR-55-4844 was insured with the defendant vide policy bearing no.360803/31/02/6344964 for the period of 22.07.2002 to 21.07.2003. It is denied that the complaint was lodged on 100 number and written complaint with the concerned Police Station was lodged on 04.02.2003. It is submitted that the information regarding theft of the vehicle 6/22 //7// was lodged with the Police Station Rohini on 08.02.2003. It is also denied that all the documents were furnished by the plaintiff at the time of lodging the claim with the defendant.
It is submitted that the plaintiff has used the vehicle for about 6-1/2 months after the issuance of the insurance policy of the vehicle. As per the Indian Motor Tariff the depreciation would be deducted from Insured Declared Value as 10% since the vehicle was stolen after six months from issuance of insurance certificate. Therefore the insurance company after deducting the depreciation assessed the loss suffered by the plaintiff as Rs.2,98,000/-.
It is further denied that the plaintiff is entitled for the value of the vehicle in question as estimated by the plaintiff i.e. Rs.3,30,000/- alongwith loss suffered by the plaintiff Rs.1 Lac towards over due charges and for compensation towards mental torture, harassment, conveyance charges etc. It is further denied that the plaintiff is entitled for the sum insured alongwith interest @36% p.a. since the rate of interest has now been reduced to a great extent by the RBI and is approx. 5% to 6%. It is further denied that the plaintiff is entitled for Rs.50,000/- towards damages and in total for a sum of Rs.5,42,088/-. Accordingly it is prayed that the suit of the 7/22 //8// plaintiff be dismissed.
4. Subsequently, replication to the W.S. of the defendant was filed wherein the plaintiff has denied the allegations made in the W.S. and reiterated the averments contained in the plaint.
5. After the completion of pleadings following issues were framed by the Ld. Predecessor of this court on 23.11.2005:-
1. Whether suit of the plaintiff is barred by limitation?OPP.
2. Whether appropriate court fees have not been paid?OPD.
3. Whether defendant was entitled to adjust depreciation from insured decreed value and offer Rs.2,98,000/-?OPD.
4. Whether plaintiff is entitled to decree in the sum of Rs.5,42,088/-.?OPP.
5. Relief.
6. Evidence was led on behalf of parties. On behalf of plaintiff, plaintiff himself deposed as PW1.
PW1 in his affidavit in evidence deposed on the 8/22 //9// same lines as stated in the plaint.
PW1 in his cross examination stated that he has not complied with the letter dt.25.02.2004 because he had filed the suit before the Consumer Court. PW1 agreed to the suggestion that he had submitted the documents with the Insurance Company on 12.12.2003. PW1 denied the suggestion that he has submitted the documents with the Insurance Company in piece meals. PW1 agreed that the Insurance Company had offered him vide letter dt.25.02.2004 for settlement of claim in sum of Rs.2,98,000/- as full and final settlement. PW1 was unable to say that the Insurance Company had offered a sum of Rs.2,98,000/- after deducting the depreciation as per Indian Motor Tariff. PW1 stated that the vehicle bearing no.HR554844 was insured with the Insurance company for sum of Rs.3,30,000/- on 22.07.2002 after deducting the depreciation. PW1 denied the suggestion that the Insurance Company has not settled his claim due to non compliance of the formalities and for want of submission of the documents in time.
7. On behalf of defendant, Sh. Anil Kumar Gupta, Sr. Branch Manager of the defendant company deposed as DW1 9/22 //10// and Sh. R.K.Bhalla, Investigator, Surveyor and Loss Assessor examined as DW2.
DW1 in his cross examination stated that he do not have any idea about the limitation and it has been advised by their Advocate. DW1 agreed to the suggestion that the insured has completed all the formalities before approval and accordingly payment of Rs.2,98,400/- was sanctioned in favour of insured. DW1 denied the suggestion that the company has lingered on the claim of the insured intentionally. DW1 submitted that there is no provision for cutting the IDV. DW1 denied the suggestion that the company deduct the IDV at the time of issuing the insurance policy. DW1 agreed to the suggestion that in case of theft, depreciation is not deducted from the insured value of the vehicle.
DW2 in his cross examination stated that he was appointed as Surveyor on 28.12.2003 for verifying the particulars of the vehicle like fitness certificate, permits etc. and also for verifying the status of the loan which was taken by the insured from M/s. G.E.Capital. DW2 stated that he has not enquired about the loan amount and interest at what rate was to be paid by the insured.
10/22
//11//
8. Final Arguments heard.
9. In the arguments advocate of plaintiff argued that the suit filed by the plaintiff is within the period of limitation as the vehicle was stolen on 3/04-02-2003 and the present suit has been filed on 23.10.2005. The limitation time for filing a suit for recovery is three years and the suit is within the period of three years from the date of loss of vehicle. Accordingly it is argued that the issue no.1 be decided in favour of the plaintiff and against the defendant.
So far as second issue of non filing of appropriate court fees is concerned, it is argued by the advocate of plaintiff that this issue was OPD and defendant has failed to discharge the onus except by making bald averments that the appropriate court fees has not been paid.
Regarding issue no.3, advocate of plaintiff argued that plaintiff has proved the issue. This issue was OPD and the defendant is completely failed to show that defendant is entitled to deduct 10% depreciation. The vehicle was insured for Rs.3,20,000/- and during the period of insurance the vehicle was lost and defendant insurance company is liable to pay cost of the vehicle for which it was insured. Advocate of 11/22 //12// plaintiff further states that defendant has delayed the payment and due to delay in the payment the plaintiff has to paid the penal damages/interest to the finance company and hence entitled to recover the penal damages/interest and the loss suffered by the plaintiff.
10. On the other hand, advocate of defendant argued that the preliminary objections raised by the defendant are correct. It is further argued that it is a fact that the vehicle was on loan for more than six months after the start of insurance period and defendant company is entitled to deduct 10% of depreciation. So far as delayed payment is concerned, advocate of defendant argued that plaintiff repeatedly took time to file documents and due to lack of documents the process in settling the claim delayed. Advocate of defendant further argued that plaintiff completed the documents on 17.12.2003 and on 25.02.2004 the claim was approved and accordingly communication was sent to the plaintiff and plaintiff failed to comply the conditions of the offer.
So far penal damages is concerned, it is argued by advocate of defendant that no witness has been examined for M/s.G.E. Capital for payment of higher interest rate. Even 12/22 //13// otherwise there is no contract between the parties to pay interest.
11. My findings with respect to the issues are as follows:
REGARDING ISSUE NO.1 Whether the suit of the plaintiff is barred by limitation?OPP.
I have seen the file, evidence on record and feel that the issue no.1 be decided in favour of the plaintiff and against the defendant on the following grounds:
Firstly, this issue was framed on a specific objection by the defendant in the W.S. that the suit of the plaintiff is barred by limitation. Plaintiff all along maintained that the suit is within the period of three years as the vehicle was stolen on 03.02.2003 and the present suit was filed on 23.10.2003. The limitation period for recovery of sum is three years.
Secondly, it appears from the perusal of pleadings and evidence that this ground was taken by the defendant 13/22 //14// without any knowledge of law of limitation. In the W.S. no reason has been given by the defendant that how the suit is barred by limitation. In the evidence DW1 states that he do not have any idea of limitation and the plea was taken on the advice of the counsel.
Accordingly the issue no.1 is decided in favour of the plaintiff and against the defendant and it is held that the suit filed by the plaintiff against the defendant is within the period of limitation.
REGARDING ISSUE NO.2 Whether appropriate court fees have not been paid? OPD.
This issue was OPD i.e. the onus to prove this issue was on the defendant.
I feel that the defendant has failed to prove the issue no.2 on the following grounds:
Firstly, defendant has not explained in the W.S. that as to how the plaintiff has not paid the appropriate court fees. No evidence has been led by the defendant on this point except reiteration the objection taken in W.S. Neither 14/22 //15// defendant argued how the valuation and the court fees paid by the plaintiff is deficient.
Secondly, the plaintiff has filed the present suit for recovery of Rs.5,42,088/- of which advelorum court fees of Rs.5,635/- has been paid and affixed by the plaintiff.
In my view, the court fees affixed by the plaintiff is appropriate. Accordingly the issue no.2 is decided against the defendant and in favour of the plaintiff and it is held that the appropriate court fees has been paid by the plaintiff.
REGARDING ISSUE NO.3
Whether defendant was entitled to
adjust depreciation from insured
decreed value and offer
Rs.2,98,000/-?OPD.
This issue was OPD i.e the onus to prove this issue was on the defendant.
I have seen the pleadings as well as the evidence and feel that the defendant has failed to discharge the onus and accordingly the issue no.3 be decided against the defendant on the following grounds: 15/22
//16// Firstly, it is a fact that the vehicle was insured for the period 22.07.2002 to 21.07.2003. It is further a fact that vehicle was insured for Rs.3,30,000/-. It is further a fact that vehicle was stolen during the insured period.
Secondly, defendant has taken a stand that while calculating the claim they have depreciated 10% on Rs.3,30,000/- being under Indian Motor Tariff Act. It is further stated by defendant that 10% was treated as depreciation amount which was deducted on the insured amount as the vehicle was stolen after the use of six months.
Defendant/Insurance company has not brought on record the Indian Motor Tariff Act. Hence they failed to prove that they can deduct 10% as depreciation as the vehicle was used for more than six months. In other words the vehicle was stolen after six months from the start of the insurance period. Defendant/Insurance company has filed exh.RW1/1 which is a Commercial Vehicles Package Policy wherein under the caption THE SCHEDULE OF DEPRICIATION FOR FIXING IDV OF THE VEHICLE the following lines are mentioned:
IDV will be treated as the 'Market Value' throughout the policy period without any further depreciation for the purpose of Total 16/22 //17// Loss (TL)/ Constructive Total Loss (CTL) claims.
This para clearly shows that the IDV will be treated as market value throughout the policy period for the purposes of total loss and for constructive total loss. As per the terms of Exh.RW1/1 the market value of the vehicle shall be throughout the insured period remain Rs.3,30,000/-. Hence defendant has violated the terms of their own agreement.
Thirdly, DW1 who is the witness of the defendant admits in his cross examination that there is no provision for cutting of IDV. DW1 further states it correct to suggest that in case of theft deprecation is not deducted from the insured value of the vehicle.
Accordingly, in view of the clear admission by DW1 and the terms of contract as contained in Ex.RW1/1, the issue no.3 is decided against the defendant and it is held that defendant was not entitled to adjust depreciation from the insured value and offer Rs.2,98,000/-. The deduction of the depreciation is against their own document of the insurance company i.e. RW1/1. 17/22
//18// REGARDING ISSUE NO.4 Whether plaintiff is entitled to decree in the sum of Rs.5,42,088/-?OPP.
I have seen the pleadings, evidence and feel that the plaintiff is entitled to decree of Rs.32,000/- [Rs.3,30,000/- (insured amount) minus Rs.2,98,000/- (received amount)] alongwith interest @15% p.a. on Rs.3,30,000/- from the date of lodging of the claim i.e. 11.02.2003 till April, 2006 and interest @15% on Rs.32,000/- from May, 2006 till amount recovered on the following grounds:
Firstly, it is a fact that the vehicle was in the name of the plaintiff. It is further a fact that vehicle was insured for period 22.07.2002 to 21.07.2003 with the defendant/insurance company. It is further a fact that vehicle was stolen in the intervening night of 03/04-02-2003 and the report was lodged on 04.02.2003. It is further a fact that plaintiff lodged complaint with the defendant/insurance company on 11.02.2003. It is further a fact that Surveyor was appointed on 28.12.2003 who filed report on 31.12.2003. It is further a fact that finally claim of plaintiff was approved only for Rs.2,98,400/-. It is further a fact 18/22 //19// that the vehicle was taken by the plaintiff on taking loan from the Finance company.
Secondly, by issue no.1 it is held that the suit is within the period of limitation. It is further held by issue no.2 that the plaintiff has affixed appropriate court fees. By issue no.3 it has already been held that defendant is not competent to deduct the depreciation amount as the deduction of 10% being depreciation was against their own rules and regulations of Insurance Contract.
Thirdly, it is further a fact that plaintiff has obtained loan for taking the vehicle from M/s.G.E.Capitals Transportation Financial Services Ltd. It is further a well known fact that the Finance Company charges heavy interest on loan.
Fourthly, despite the claim was lodged on 11.02.2003, for almost one year not a single penny was paid to the plaintiff towards the claim. Various letters between this period were written by the defendant to the plaintiff on flimsy grounds. In one letter defendant states to plaintiff to file clear 19/22 //20// and legible copy of FIR. Merely because the copy of FIR is not legible, plaintiff cannot be blamed. It is the duty of the Insurance Company to take the copies of the FIR from the concerned Police Station.
Fifthly, it is a fact that despite the claim being lodged on 11.02.2003, the Surveyor was appointed on 28.12.2003. This is very strange that Insurance Company took 10 months to appoint Surveyor. This is clear negligence on the part of the officials of the Insurance Company. Instead of accepting the responsibility, the Insurance Company all along blamed the plaintiff.
Sixthly, DW2 is Surveyor appointed by defendant/ Insurance Company. He acquired the knowledge that the plaintiff got vehicle financed through M/s.G.E.Capital Transportation Financial Services Ltd. but he did not care to investigate about the loan amount and the interest and surprisingly DW2 accepts this fact when he states '' I have not enquired about the loan amount and interest at what rate was to be paid by the insured''. This clearly shows that the stand of the Insurance Company in delaying the finalisation of the 20/22 //21// claim is fully flimsy and negligent and accordingly defendant/ Insurance Company is liable.
In view of above, the issue no.4 is decided in favour of the plaintiff and it is held that plaintiff is entitled to a decree of Rs.32,000/- [Rs.3,30,000/- (insured amount) minus Rs.2,98,000/- (received amount)] alongwith interest @15% p.a. on Rs.3,30,000/- from the date of lodging of the claim i.e. 11.02.2003 till April, 2006 and interest @15% on Rs.32,000/- from May, 2006 till amount recovered. RELIEF:
a) The suit of the plaintiff against the defendant is decreed for Rs.32,000/- [Rs.3,30,000/- (insured amount) minus Rs.2,98,000/- (received amount)].
b) Interest @15% p.a. on Rs.3,30,000/- from the date of lodging of the claim i.e. 11.02.2003 till April, 2006.
c) Interest @15% p.a. on Rs.32,000/- from May, 2006 till amount recovered.
21/22
//22//
12. Accordingly, the suit of the plaintiff is decreed with cost as above.
13. Decree sheet be prepared accordingly.
14. File be consigned to record room.
Announced in open court DAYA PRAKASH today on dated 20.03.2007 ADDITIONAL DISTRICT JUDGE (typed1+1) DELHI 22/22