Delhi District Court
Gold Corp Global Logistics P Ltd vs Bajaj Allianz General Insurance Co. Ltd on 28 March, 2025
IN THE COURT OF MS VINEETA GOYAL,
DISTRICT JUDGE (COMMERCIAL-03),
PATIALA HOUSE, NEW DELHI
CS (COMM) No. 106/2023
CNR No.DLND01-001627-2023
M/s. Gold Corp Global Logistics P. Ltd.
2nd Floor Shree Krishna Dharm Kanta Unit No. 3,
Naharpur Rupa Road, Main NH 8, Gurugram,
Through its Director
Sh. Daman Dewan ....Plaintiff
Versus
M/s. Bajaj Allianz General Insurance Co. Ltd.
12th Floor, Gopal Dass Bhawan,
28 Barakhamba Road, Connaught Place,
New Delhi-110001 ....Defendant
Date of Institution : 16.02.2023
Date on which judgment pronounced : 28.03.2025
JUDGMENT
1. The present suit has been filed by the plaintiff for recovery of Rs. Rs.87,54,000/- along with pendente lite, past and future interest @ 18% p.a. against the defendant.
2. Brief facts as epitomized in the plaint are that plaintiff, a company incorporated under the Companies Act as a corporate CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 1 / 61body, is engaged in the business of transportation. It is maintaining a fleet of trucks for the said purpose. Presently, the plaintiff is engaged in transportation of various logistics and other important material related to the construction of Bullet train project, which is under direct supervision of PMO. Sh. Daman Diwan, Director of plaintiff, has been authorized by virtue of resolution to sign, verify and institute the present suit on behalf of plaintiff. Even otherwise, he is well conversant with the facts of the case.
2.1 It is averred that defendant is an insurer within the definition of Section 2 (9) of the Insurance Act, 1938 and is governed by the provisions of Insurance Act, 1938 along with rules and regulations framed thereunder, the Insurance Regulatory and Development Authority Act, 1999 (IRDA) relating to business of insurance.
2.2. The plaintiff further averred that it owns Tipping Trailor bearing Registration No. RJ-32 GC 6330 which was got insured from defendant. The plaintiff had paid premium as demanded by the defendant. The defendant, thereafter had issued policy bearing no. OG-1101-1803-00000095 covering the risk of said vehicle for the period 12.04.2021 to 11.04.2022 (hereinafter referred as 'insured vehicle'). The sum insured was Rs. 46,00,000/-. It is alleged by the plaintiff that a two page policy without any terms and conditions was provided. The insured vehicle is heavy goods vehicle and comprises of two parts. The front part which runs the vehicle is known as Horse and trailor is attached to carry goods.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 2 / 61For the proper distribution of the load, a third axle is attached to the trailor for the proper transportation of goods and in the insured vehicle, there was third axle forming part of the insured vehicle.
2.3. It is further averred that on the date of loss i.e. 29.12.2021, the insured vehicle was being driven by licensed driver after following all precautions and was proceeding towards the destination for unloading the consignments. On the way, a vehicle at overspeed tried to overtake the insured vehicle, since the said vehicle was overtaking the insured vehicle in rash and negligent manner as such, in order to avoid the accident, the driver slightly brought the vehicle down to road, however, there were coral downstairs wherein it got struck and overturned. In this manner, the insured vehicle got substantially damaged. The plaintiff immediately, notified the loss to the defendant. The defendant, for unknown reasons, failed to send any surveyor for the spot examination of the insured vehicle and on the contrary, requested the plaintiff to take the spot photographs. The plaintiff took the spot photographs of the damaged insured vehicle and forwarded the same to the defendant. The insured vehicle thereafter, was brought to authorized workshop. Sh. Jignesh S.Thakkar was appointed by defendant for assessment of loss. He examined the vehicle and was provided with all the documents. The plaintiff after examination of insured vehicle by the surveyor had informed the defendant that since it is handling a pilot project as such, required the settlement of claim at the earliest in order to acquire another vehicle as the insured vehicle was total loss. The plaintiff in this regard addressed various mails to the defendant as well as CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 3 / 61to the surveyor, however, neither the surveyor report was shared nor any decision was conveyed by the defendant regarding admissibility or non admissibility of the claim.
2.4. It is further averred that the defendant, despite notice of the fact about damage of insured vehicle and costs involved in the repair which was more than 75% of sum insured, failed to release insured amount. The authorized repairer had given the estimate of Rs. 37,14,950.25p for repair to the plaintiff which was shared with the defendant as well as surveyor. The actual cost of repair would have been more than that. The plaintiff had addressed numerous communications in this regard but failed to receive necessary response from the defendant. The defendant, since it never intended to settle the claim, as such, started looking for frivolous grounds to deny the legitimate claims of plaintiff.
2.5. It is further averred that defendant failed to take into consideration the fact that there is no 'Clause' whereby the claim can be repudiated as plaintiff has not committed any breach of policy terms. The contract which was extended by defendant provided for indemnification of the loss suffered by the insured, the loss was to be assessed and found to be payable by the defendant, accordingly, there was no occasion for the defendant to withhold the claim.
2.6. It is further averred that report of surveyor is tutored report, same gets verified from the fact that surveyor report was not shared with plaintiff till date. The time spent by surveyor to CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 4 / 61finalize the said report itself exposes the malafide on the part of surveyor as well as defendant and this act of withholding genuine claim has caused tremendous loss to the plaintiff as it has resulted into denying the rightful and legal claim of plaintiff.
2.7 It is further averred that surveyor has given a false report at the instance of defendant which gets corroborated from fact also that surveyor without making any appropriate enquiry, has submitted his report, the defendant is liable to pay entire amount of loss. The defendant intentionally and deliberately delayed the claim. The plaintiff has not violated any terms of policy. The insurance claim is a contract of indemnification and the defendant by not doing so, has committed the breach of terms of policy. There is deficiency of service on the part of defendant and the defendant is guilty of deficiency of service and of unfair trade practices. The defendant is bound to compensate to plaintiff a sum of Rs. 46.0 lakhs being the sum insured and interest thereupon @ 18% per annum from the date of loss.
2.8 It is further submitted that plaintiff has made to suffer mentally as well as financially due to the illegal acts and therefore, plaintiff is liable to be compensated by defendant on account of delay in disbursement of insured amount, mental harassment and cost of litigation.
2.9 The plaintiff further averred that after constant follow ups, the defendant has wrongly repudiated the claim by its communication dated 01.06.22 relying upon condition no.5 of the CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 5 / 61policy. The pleas taken by the defendant in repudiating the claim is false for the reason that no such terms were shared by the defendant at the time of extending of the policy. The defendant cannot rely upon the same in terms of settled law. It was only through repudiation letter, the said 'clause' was made known to the plaintiff. Although there was no such violation and for a second, it it is accepted that there was breach of condition no.5, same does not amount to fundamental breach whereby the claim can be repudiated in totality. Beside above, the spot photos of insured vehicle were taken by plaintiff and defendant has not deputed the surveyor for the same, if the plaintiff had malafide intention then it would not have provided the photos where one tyre from insured vehicle is noticed to be missing. Since after the impact, the tyre was lost, as such, the plaintiff had taken the actual photo wherein the missing tyre has been shown. Moreover, if the contention of defendant is considered to be a gossipel truth then, in that background, alleged wheel was not being used and trailor was without them, then, in that eventuality, it should have overturned to the side where no tyre was affixed, thus, the repudiation is without any basis. Moreover, it is Horse which has been substantially damaged and the said axle has no relevance with the Horse as axle is part of trailor. Beside above, the loss has not occurred qua the reasons made out in the Repudiation letter. Pertinently, the plaintiff even provided a clarification in this regard from authorized dealer of Eicher and as per the certificate issued by them, PRO 6055 i.e. the insured vehicle which is a trailor mounted vehicle, the truck third axle whether lifting up or down or whether in loading or unloading, there is no impact on CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 6 / 61balancing of vehicle. The ground as raised by defendant gets negated from this certificate itself. The malafide of the defendant is apparent from this fact that in the Repudiation Letter, nothing has been stated about the certificate as provided by plaintiff. The brake drum was very much with the vehicle. The plaintiff submitted its clarification but defendant failed to budge from its false stand.
2.10. It is further averred that due to negligence act of defendant, the plaintiff had suffered a loss of Rs. 10,000/- per day. The plaintiff was providing services to L & T company who was holding prestigious project i.e. Construction of Bullet Train project. The said company does not allow any vehicle which does not qualify their criteria. The average income of the insured vehicle after deducting the expenses comes to Rs. 10,000/- per day. The plaintiff in order to prove the same has filed copy of Contract which was executed by sister company of plaintiff with main vendor and if total loss from date of loss is taken into consideration, the plaintiff had suffered loss of Rs. 33,60,000/- and this amount has been calculated from 29.12.2021 till 30.11.2022 and the defendant is liable to pay the said amount to the plaintiff. Besides above, defendant is also liabe to pay Rs. 1000/- per day for parking charges which has been claimed by authorized repairer as damaged vehicle is standing in their workshop and occupying the space. The plaintiff is claiming parking charges from 30.03.2022 to 30.11.2022 as defendant was to settle the claim within three months as per IRDA regulations. A sum of Rs. 2,42,000/- is amount payable by defendant in this CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 7 / 61regard as the said liability has arisen due to wilful delay caused by the defendant.
2.11. It is further submitted that the plaintiff is seeking recovery o Rs. 87,54,000/- in total by way of present suit. The details of which are as follows:-
Sum Insured - Rs. 46,00,000/- Loss of Business - Rs. 33,60,000/- Parking Charges - Rs. 2,42,000/- Interest as calculated above - Rs. 5,52,000/- Total - Rs. 87,54,000/-
2.12. It is further averred the cause of action has arisen in favour of plaintiff against the defendant on 29.12.2021 when the loss has occurred. Cause of action further arose on dates when plaintiff has provided all the documents to the surveyor for the assessment of loss. Further, on various dates when mails were addressed seeking settlement of claim, further when legal notice were served upon defendant and further when claim of plaintiff was repudiated on false grounds and on the date when legal notice was served and the cause of action is still subsisting as the claim has not been settled. The suit is within limitation.
2.13. On the strength of aforesaid grounds, the plaintiff prayed to pass a decree for a sum of Rs. 87,54,000/- in favour of plaintiff and against the defendant along with interest @ 18% from the date of filing the suit till its realization as well as costs.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 8 / 613. Pursuant to summons issued, the defendant appeared and filed written statement raising preliminary submissions inter alia stating that the suit filed by the plaintiff is misconceived, non tenable and ought to be rejected. Neither cause of action arises against the defendant nor does this court has jurisdiction to adjudicate the suit preferred by plaintiff. It is stated that plaintiff has no locus standii to file the present suit. The suit is not maintainable as the plaintiff has twisted and concealed the true facts for the purpose of achieving illegal object with malafide intention.
3.1. On merits, the averments made in the plaint were denied and controverted by the defendant and stated that defendant received a claim on behalf of plaintiff on 24.12.2021, after which, several mails were exchanged between parties seeking clarification. It is important to note that in the above said communications and looking at documents before the defendant as well as keeping in mind that insured vehicle was already damaged at the time when it was carrying load of 5500 kgs, the defendant decided to repudiate the claim of the plaintiff vide letter dated 01.06.2022, on justifiable ground adhering to policy terms and conditions. It is further submitted that plaintiff has failed to provide any substantiating documents with regard to the claim project for which the insured vehicle was operating on the date of incident.
3.2. The defendant further denied the contents of the plaint, however, admitted that the insured vehicle was insured with the CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 9 / 61defendant vide policy no. OG-22-1101-1803-00000095 but alleged that policy had detailed terms and conditions as per standards and guidelines of IRDAI and other frameworks governing the insurance contract. Furthermore, the plaintiff was thoroughly briefed about the said terms and conditions of insurance contract which are also available in public domain on website of the defendant and had complete knowledge about same. Moreover, there has been no addition/amendment/deletion in the said terms and conditions of Contract after the policy was issued to plaintiff. It is further submitted that third axle was part of the insured vehicle without which, the proper transportation and unloading of goods was not possible. It is also important to note that since the insured vehicle was a tipping trailer, the third axle provided the much important support needed to balance the vehicle during loading and unloading of goods as well. Survey report prepared by an independent surveyor registered with IRDAI states that "as per cause of loss narrated in the claim form opinion that the vehicle was not in roadworthy condition and unfit to run on the road. Moreover, during application of the brake in absence of one set of wheel vehicle could not generate enough traction on the road to control the stability of the vehicle which results into change of centre of gravity of the loaded vehicle which contributed in loss of control on vehicle by the driver due to which vehicle went off rod and toppled". The absence of a wheel and brake drum on the third axle led to disbalance and overturning of the Vehicle. The Motor Accident Reconstruction Report (hereinafter referred as 'MCR') categorically states that "The uneven load distribution and the varying rolling resistance due to CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 10 / 61absence of one of the wheels set of the trailer caused the Insured Vehicle to became unbalance and topple." The independent surveyors have relied on scientific approach to determine the outcome rather than an imaginary theory, and the defendant herein has rejected the claim of the plaintiff based on expert scientific guidance. Even though such expert advice was not needed since the insured vehicle carrying a load of 5500 Kgs was being driven without a set of tyres and brake drums.
3.3. The defendant further submitted that had the driver of the vehicle and plaintiff taken adequate safety measures by deploying the third axle wheel and its break drum, the vehicle would not have overturned. The pictures annexed by the plaintiff at page 79 of the plaint establishes that the vehicle was being operated without a wheel and brake drum on the third axle which was root cause of the accident. Further, the MCR proves that the front-most wheel set of right-hand side of trailer was missing along with the studs while the vehicle was lying in overturned condition on its left-hand side at spot location, which means at the time of accident the vehicle was being driven without the trailer having right hand side front wheels. Furthermore, the plaintiff has failed to bring on record any communication or intimation by plaintiff to the defendant informing about the said incident and requesting a survey by the Surveyor for the insurance claim. Additionally, plaintiff with malafide intention filed the Motor Insurance Claim form with defendant without filing in the date of filing Column. Moreover, plaintiff in clear violation of the terms of the insurance CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 11 / 61contract moved the damaged vehicle from the spot of the incident on 26.12.2021 without giving a chance of survey to the defendant.
3.4. The defendant further submitted that plaintiff had filed a misleading and incorrect estimate of repair which was exorbitantly inflated from the estimate given by Mr. Jignesh S Thakkar who is an IRDAI-certified & registered surveyor of loss. Plaintiff had claimed an estimate of Rs. 37,14,950.25 (Thirty- Seven Lakh Fourteen Thousand Nine Hundred and fifty rupees and twenty-five paise) to the contrary, Mr. Jignesh S Thakkar had given the estimate of Rs. 26,69,952 (Twenty-Six Lakh sixty-nine thousand nine hundred and fifty-two rupees). This establishes that plaintiff intentionally, with complete knowledge and with a mala fide intent tried to defraud the defendant by filing a wrong and inflated claim. Various Courts in a plethora of judgments have ruled that good faith is the gist of the contract of insurance and if a party acts in bad faith, it is not eligible to claim any wrongful relief. Furthermore, plaintiff has failed to bring on record any communication with defendant to show that plaintiff intimated or requested defendant for a survey of the damaged vehicle thereby presenting frivolous and tainted case to mislead the court.
3.5. The defendant further submitted that the claim of plaintiff was repudiated by defendant through a letter dated 01-June-2022 for breach of Condition 5 of the Vehicle Package Policy purchased by plaintiff to insure the vehicle. As per the Condition 5, "The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company (insurer) shall have at all times free and full CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 12 / 61access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident of breakdown the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk."
3.6 The defendant further submitted that plaintiff and the driver of the vehicle employed by plaintiff in blatant disregard of the aforementioned condition failed to deploy the third axle of the vehicle which was one of the leading causes of the accident. The plaintiff also failed to ensure that the insured vehicle was running in an efficient manner, since the vehicle was running without a break drum, and tyre and with a damaged axle. The claim was repudiated by defendant as plaintiff had violated the terms of the insurance contract. Moreover, the survey report prepared by an independent surveyor registered with IRDAI states that "as per cause of loss narrated in the claim form opinion that the vehicle was not in roadworthy condition and also unfit to run on the road. Moreover, during application of the brake in absence of one set of wheel vehicle could not generate enough traction on the road to control the stability of the vehicle which results into change of centre of gravity of the loaded vehicle which contributed in loss of control on vehicle by the driver due to which vehicle went off rod and toppled". The absence of a wheel and brake drum on the third axle led to disbalance and overturning of the vehicle as also substantiated by the MCR.
3.7. The defendant further submitted that defendant was justified to repudiate the claim of the plaintiff for the fundamental breach CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 13 / 61of the insurance contract. It is also mentioned that the defendant company has acted in terms of the guidelines issued by IRDAI, which is a Ministry of Finance undertaking, and had engaged independent people (surveyor and loss valuator) who are the experts and licensed individuals by a Government undertaking, and challenging their authenticity and veracity would have to be preferred by the plaintiff against the Government of India before an appropriate court.
3.8. The defendant further submitted that the report submitted by the Surveyor is accurate and genuine. Since the Surveyor report doesn't substantiate the claim of plaintiff, the plaintiff is trying to question the independent report and mislead this Court. Furthermore, the Surveyor appointed by defendant had examined the vehicle and all the relevant documents which establish that the report prepared by the Surveyor was independent, unbiased, and correct. Furthermore, the MCR proves scientifically that the vehicle was loaded to its maximum capacity and the weight is distributed along each axle balanced by the wheel ends (Centripetal Force) and in the absence of the wheel and the brake drum, the centrifugal force was greater than the centripetal force causing the vehicle to swerve and topple. If the vehicle was driven without a wheel set at one of the wheel end of any axle, it would have caused uneven load distribution among the axles. The plaintiff in bad faith has presented tainted and misleading averments before the court to malign the reputation of the defendant and the surveyor. It is also important to mention herein that the plaintiff has inflated the cost of repair of the insured CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 14 / 61vehicle which according to the IRDAI loss valuator is significantly lesser than what the plaintiff has been asking for. The same is only being done to show the vehicle as a total loss and claim more monies from the defendant, which is a common practice by insured persons, due to which the IRDAI has independent licensed loss valuators.
3.9. The defendant further submitted that plaintiff failed to provide all the requisite documents for verification of the claim in a timely manner, which can be seen by the number of emails exchanged between the parties for the purpose of process of the claim. Furthermore, the huge difference of Rs. 10,44,998 (Rs. Ten Lakh Forty-Four Thousand Nine Hundred and Ninety-Nine Only) in the claim of plaintiff and the damage assessed by the IRDAI approved independent surveyor proves that the claim of plaintiff is false and based on tainted facts, and is highly inflated. Moreover, it is submitted that it is a settled principle of law that an insurance claim is a claim arising from the contract of indemnity and a person cannot gain profit or benefit out of the said contract plaintiff by wrongly inflating the claim value has tried to deceive Defendant and gain profit from the insurance claim. It is also important to note that the plaintiff was driving a vehicle weighing around 5500 Kgs without a brake drum, without a tyre, which clearly indicates that the vehicle was being in a condition unfit for road, also putting other citizens on the road at risk.
3.10 It was also submitted by defendant that plaintiff has failed to file the complete and correct document substantiating the claim.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 15 / 61The defendant through a letter dated 14.03.2022 and then again through a letter dated 22.03.2022 had notified the plaintiff that the claim was against the terms of the insurance contract and had asked the plaintiff to file additional documents which were furnished by plaintiff through an e-mail dated 05.05.2022 as mentioned in the Repudiation Letter dated 01.06.2022. Subsequently, the defendant sent a detailed & reasoned Repudiation Letter dated 01.06.2022 within 30 days from the date plaintiff furnished the required documents for the claim. Therefore, plaintiff has misrepresented the facts to assert that the claim was not finalized by defendant within the prescribed time limit and this assertion is baseless and wrong. it is evident from the email dated 05.05.2022 as mentioned in the Repudiation letter dated 01.06.2022 that the plaintiff was still supplying documents necessary for the adjudication of the claim even after 5 months of filing of claim.
3.11. The defendant further submitted that defendant has processed the claim of plaintiff by following due process and in a timely manner, it was plaintiff who failed to provide the complete substantiating documents along with the claim thereby delaying the process of claim settlement. Furthermore, defendant had repudiated the claim of plaintiff through a letter dated 01.06.2022 with a detailed and reasoned justification for doing so.
3.12. The defendant further submitted that the claim of plaintiff was in clear violation of the terms of the fundamentals of an insurance contract. Furthermore, In arguendo even if it is CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 16 / 61presumed that the claim of plaintiff was valid, it is established by the courts in catena of judgments that the insured is only entitled to claim the amount of actual damage that occurred and not the complete sum insured. It has also been settled that an insured person cannot attain any gain out of an insurance contract. The defendant had processed the claim of plaintiff even after defects on part of plaintiff highlighted by the surveyor report which clearly establishes that defendant had fulfilled all its obligation as a service provider in an honest and diligent manner.
3.13. The defendant further submitted that the defendant has handed over the terms and conditions of the policy along with the policy and the same is also available in public domain on the website of the defendant and just like the plaintiff like an aware buyer has researched about the guidelines of IRDAI which too was available only online, the plaintiff was completely free to obtain the policy conditions from the website of the defendant company. Furthermore, plaintiff was thoroughly briefed by defendant about the said terms and conditions of the insurance contract and had complete knowledge about the same and all the terms and conditions of the policies issued by defendant are available on the website of the company. There has been no addition/amendment/deletion in the said terms and conditions of the contract after the policy was issued to plaintiff. Moreover, it is submitted that the defendant had appointed the IRDAI registered surveyor for inspection of the damaged vehicle diligently. Additionally, it is submitted that compromising the security and stability of the vehicle by not deploying the third axle which CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 17 / 61admittedly is an essential part of the vehicle is an intentional, negligent, and blatant disregard of condition no. 5 of the insurance contract and amounts to a fundamental breach of the contract. The clarification provided by the plaintiff is not a technical or safety certificate and is merely a document under the seal of "Sincere Marketing Services Pvt. Ltd." which has no veracity nor the required educational qualification to assess the load bearing capability nor the scientific knowledge to assess and recreate the accident which an IRDAI approved independent person has done and arrived at a conclusion against the plaintiff herein. Even after the accident, plaintiff moved the damaged vehicle from the spot without notifying or requesting defendant to conduct survey which is a pre-requisite for a vehicle insurance claim as per the IRDAI standards, which the plaintiff has conveniently left out. This clearly establishes that the accident was caused due to the negligence of plaintiff only and the delayed survey request after moving the vehicle was an intentional attempt to cover up the negligence and file an arbitrary claim without following due process. Another clause which the plaintiff is in breach of is to leave the vehicle unattended since it is the case of the plaintiff that the tyre was misplaced after the accident. The defendant further submitted that plaintiff is claiming an amount of Rs. 10,000 per day, however, failed to show any document which may support the assertions of the plaintiff herein, and strengthen the claim filed by it.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 18 / 613.14. On these grounds, the defendant submitted that the plaint is liable to be rejected/dismissed being devoid of merits with exemplary cost.
4. Replication to the written statement was filed whereby the plaintiff reiterating and re-affirming the contents of the plaint and denying the contents of written statement.
5. From the pleadings of the parties, following issues were framed on 13.07.2023 :-
1. Whether the plaintiff is entitled for a sum of Rs. 87,54,000/- as prayed for ? OPP.
2. Whether the plaintiff is entitled to interest, if yes, at what rate and for what period ? OPP.
3. Whether the defendant had correctly repudiated the claim of the plaintiff company? OPD.
4. Whether the vehicle was being used by the plaintiff in a damaged condition? OPD.
5. Relief.
6. To prove its case, plaintiff examined three witnesses. Sh.
Daman Dewan, Director of plaintiff was examined as PW-1 who tendered affidavit in evidence as Ex.PW-1/A and made statement in accordance with averments made in the plaint and the same are not repeated here for the sake of brevity. He also exhibited the following documents:-
i. Certified copy of Resolution passed in board meeting Ex.PW-1/1.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 19 / 61
ii. Copy of Fitness Ex.PW-1/2.
iii. Copy of Authorization Ex.PW-1/3.
iv. Copy of Permit Ex.PW-1/4 v. Copy of Registration Certificate Ex.PW-1/5.vi. Copy of Brake Down Report, Mark A. 1
vii. Copy of Receipt of Department of Geology & Mining Mark B. viii. Copy of receipt issued by L&T Mark C. ix. Copy of Driving License of Mr. Ashish exhibited Mark D. x. Copy of Repair Estimate Ex.PW-1/10.
xi. Copy of Certificate as provided by M/s. Eicher Mark E. xii. Copy of Notice issued by Counsel Mark F. xiii. Copy of Memorandum Ex.PW-1/13.
xiv. Copy of Registration Certificate Ex.PW-1/14. xv. Copy of PAN Card Ex.PW-1/15.
xvi. Copy of Aadhar Card Ex.PW-1/16.
6.1. PW-1 has also relied upon admitted copies of Proposal Ex.P-1, Policy Ex.P-2, Claim Form Ex.P-3, emails Ex.P-4, photos of damaged vehicle Ex.P-5 and Repudiation letter Ex.P-6. PW-1 was cross examined at length by Ld. Counsel appearing on behalf of defendant.
6.2. During cross examination, PW-1 testified that the truck in question was purchased in March, 2021. The insurance policy was taken simultaneously. He had taken 90% of finance with respect to the said vehicle from HDFC Bank. The price of the vehicle was about Rs. 47 lakhs. Ashhrey Consultancy was the agent which advised for purchase of policy from defendant. The authorized person of the consultancy was Mr. Rajesh Suri. He was provided CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 20 / 61with only policy schedule which is Ex. P-2. No other document was provided along with this Policy Schedule. The subject vehicle was usually used for transporting construction material from L&T Crushing Plant their Badging Plant for their Bullet Train Project in Gujarat. The subject vehicle met with an accident on 29.12.2021. Intimation in respect of the accident was done through telephonic call within 3-4 hours of the accident. Mr. Ashish who was driving the subject vehicle is an employee of the plaintiff Company. No company representative accompany the driver. As told by the driver Ashish the subject vehicle was being overtaken by other vehicle (truck) and the driver in order to avoid the accident pressed upon the left side and the vehicle fell (toppled) on the left side of the road into a ditch. The weight of the load in the subject vehicle was about 38 ton at the time of the accident. Nobody came to the accident. spot from defendant side. The Surveyor contacted us next day of the accident and asked us to send the photographs of the accident vehicle. He does not recall the name of the Surveyor. They took the number of the Surveyor from the defendant and then they contacted the Surveyor. He does not off hand recall whether the subject vehicle post accident was sent for repair on the same day or on the next day. It must have been sent after downloading of the materials present in the vehicle.
6.3 PW-1 further during his cross examination on 09.08.2023 explained the manner in which the accident took place as explained by the driver. He deposed that he can share the information as informed by the driver. The driver told me that another truck overtook the subject vehicle from the right side and CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 21 / 61to prevent the collision with the truck which overtook the subject vehicle, and as such the driver pressed on the left side and the vehicle fell/ topple on the ditch present on the left side. He further deposed that their trucks are maintained regularly as they are under annual maintenance contract (AMC). The vehicles are also sent for repair and service as and when required. He can produce the record of AMC. He can also produce the record with respect to regular maintenance of their vehicles. Present documents are currently not available on the court record but he can produce these documents as the AMC is from Eicher Motors and these documents are with the plaintiff company. The fitness certificate are issued by the concerned authority once in two years. Fitness certificate is already exhibited as Ex. PW-1/2 as per which next inspection was due on 27.03.2023. In response to the question as to whether he has filed Form 32 as well as Master Data of the plaintiff issued by Ministry of Corporate Affairs, he responded that he has not filed Form 32 and Master Data. Volunteered. He has filed Memorandum of Association of the plaintiff company Ex. PW-1/13. He further admitted to be correct that as per his evidence affidavit, the sum insured for the subject vehicle was Rs. 46 lakhs. With respect to parking charges, they have claimed charges claimed by Eicher Motors Workshop, where the vehicle is parked currently. He further referred to email Ex.P-4 in this respect. He denied the suggestion that the email does not contain the averment with regard to parking charges. With regard to the business loss, PW-1 explained that the subject truck is on loan. They are still paying the EMI regularly, which is approximately Rs. 1.45 lakh per month. All the expenses like insurance, permit, CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 22 / 61road tax, fitness tax, national permit tax etc. are paid upfront in advance annually. Since post accident the truck was not plying, hence, they have claimed the charges for the same. They are also paying fixed salaries, rent and other office expenses and these have also been factored in computation of loss. During the time the subject vehicle was not put to use due to accident, they have hired vehicles from the market for the project in question. PW-1 further during cross examination stated that plaintiff has not filed any documents to substantiate the basis of business loss as stated above and also stated they have not filed any document to substantiate the basis of claim for interest.
6.4. PW-1 further in cross examination, deposed that he has not contacted the vehicle which overtook their truck, seeking claim as the same sped away. They did not lodge any specific police complaint with regard to the other truck. The truck was towed post accident. They waited for the surveyor and when surveyor did not came, they got the same towed to nearest dealership after taking photograph as the instruction of the surveyor. The photographs were taken on the same day. The towing receipt is Mark A and the original was submitted along with claim form. PW-1 further while explaining the relationship with 'Sincere Marketing Services Pvt. Ltd', testified that whenever they have to take truck, they approach the Eicher company and company referred to the dealer. Sincere was one of the dealer in Gurgaon. They have approached Sincere Marketing for the subject vehicle in the month of April end or 15th week of May 2022. They had approached them physically. He cannot identify the signature of CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 23 / 61person who has signed the certificate which is Mark E. He further submitted that he approached the Eicher company and they got him certificate from the dealer which is Mark-E. He further deposed that claim was rejected as one axle was missing in the subject vehicle. This was informed after 6 months. It was left axle. Again said right axle. PW-1 further deposed that he has technical knowledge about the trucks. With regard to the question 'does the missing third axle from the back side on the right side, impacts the weight distribution of the loaded truck', PW-1 deposed that firstly the axle was not missing in the subject vehicle prior to accident. As per his knowledge missing of 3rd axle from the back side on the right side, does not impacts the weight distribution of the loaded truck. PW-1 further during cross examination submitted that he cannot tell when tyre got detached from the subject vehicle. The same was present prior to accident. They did not find the said tyre on the spot or in the adjacent area. None of our persons could find it. Again said, they did not looked for the said tyre. He further denied the suggestions put-forth during cross examination.
6.5. The plaintiff further examined Sh. Shri Subhash Chander Gupta Daman as PW-2. He tendered his affidavit in evidence Ex.PW-2/A and deposed that he has examined certificate dated 05.05.2022 issued by M/s Sincere Marketing Services, authorized dealer of M/s Eicher Motors Limited which is correct as per the technical details of the vehicle. The vehicle Pro 6055 is a trailor mounted vehicle. The trailor is attached to the Horse. There are three sets of two wheels on both sides of trailer. This third axle CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 24 / 61has no impact on the balancing by lifting up or down or in loading or unloading. He has brought the brochure of this model. He relied upon the following documents:-
i. Original Authority letter from Eicher Ex.PW-2/1 ii. Original visiting card Ex.PW-2/2.
iii. Copy of brochure of the vehicle Eicher Pro 6055.
6.6. PW-2 during further in examination in chief with respect to blank space in para 3 of the evidence affidavit Ex.PW-2/A has stated that the unladen weight of the horse portion marked as 'C' in Mark A 8195 kgs. PW-2 was cross examined by ld. Counsel appearing on behalf of defendant.
6.7. PW-2 in cross examination, deposed that the name of the company is M/s. Sincere Marketing Services Pvt. Ltd. They are dealer of Eicher since the last 33 years and they have registered office in Nehru Place. He is working as Dealership Sales Manager, Heavy Duty vehicles Sales (DSM, HD Sales). He is working since 1998 with M/s. Sincere Marketing Services Pvt. Ltd. Ex. PW-2/A filed by him has been prepared by him. He is graduate in arts (B.A.) and he graduated in 1989. Their company provides sales, after sale service and spares of Eicher Vehicles. Their workshop is in Bilaspur, Gurgaon, Haryana. He has knowledge with regard to various aspects of the vehicles. They have been dealing with plaintiff company for about past 10 years. He does not have knowledge about the vehicle involved in the present suit. The Model No. of the Vehicle is 6055. Vol. This CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 25 / 61vehicle is 6/4 horse meaning it has 6 tyres ends and it has 4 live axle wheel drive which is the rear part of the horse. The horse of the vehicle has 10 wheels and the trolly has 12 wheels. In the trolly portion, there are 3 axle and in each axle there are 4 wheels on each side of the axle. He cannot tell when the subject vehicle came to them for services and maintenance. He can verify the records and then tell about it. He has a direct dealing with the director of his company i.e. M/s. Sincere Marketing Services Pvt. Ltd. After going through Mark E, this witness answered that the said certificate has been issued by his company i.e. M/s. Sincere Marketing Services Pvt. Ltd. He cannot identify the signatures of the person on the certificate. The signature does not belong to the Director.
6.8. Plaintiff further examined Dharmendra Sadh, Partner of Mis Global Impex as PW-3. He tendered his affidavit in evidence Ex.PW-3/A and deposed that he is conversant with transactions which took place between plaintiff and his company i.e. M/s Global Impex Limited. He further deposed that his company was allotted work contract vide contract no. LE/ LE21M882/WOD/21/000043,LE/LE21M881/WOD/21/000025, LE/LE21M031/WOD/21/000126,LE/LE21M882/WOD/21/00017 1 for transportation of various materials of M/s L & T Company and the said company was holding work order of Bullet Train, in a project initiated by Government of India which is under direct supervision of Prime Minister office. He further deposed that their company needed trailer for transportation of various materials of M/s L & T company to different sites and for that matter, their CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 26 / 61company engaged plaintiff, for transporting the materials as they are having excellent fleet of commercial trailers. The work allotted to the plaintiff was to be completed within given time frame. The plaintiff attached 40 trailer fleet with them and all of them were being used. The L & T company which is building the project does not allow the vehicle which does not fulfil the conditions of transportation. The vehicle provided to them by the plaintiff were loaded with material as per the permissible weight limit. It was their policy as well as policy followed by M/s L & T Company to confirm that vehicle is motorable as per law and is complete in all respects. No incomplete vehicle wherein any tyre is missing, was allowed to load and transport the material. The vehicle number Tipping Trailer bearing registration no. RJ-32 GC-6330 which was allowed to load the material was mechanically fit and was having all the axle duly attached with requisite tyres. After physically examining the vehicle, it was permitted to load the material as per its cross vehicle weight. The company is giving business of Rs. 6,60,000/- approximately to plaintiff for every vehicle every month. The said amount is transferred by way of RTGS and in December 2021, a total amount of Rs. 2,43,97,589/- against a total of trucks provided by plaintiff was paid. He relied upon the following documents:-
i. Internet print of GST Registration certificate of company Mark A. ii. Copy of Aadhar Card of PW3 Ex.PW-3/2.
iii. Copy of work order dated 15.11.2021 issued with respect to job; LE 21M882-MAHSR C4 Section3; work order dated 17.11.2021 issued with respect to job; LE21M881-MAHSR C4 CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 27 / 61
Section 2, Work order dated 02.09.2021 issued with respect to job; LE20M031-MAHSR C4; work order dated 23.12.2021 issued with respect to job; LE21M882-MAHSR C4-Section 3; by M/s L&T to plaintiff Mark-B to Mark- E respectively.
iv) Copy of Ledger of plaintiff for the period 01.11.2021 to 31.12.2021 Ex.PW-3/4.
6.9. PW-3 was cross examined by ld. counsel for defendant. PW-3 testified that he is Managing Partner in M/S. Global Impex, which is a Partnership Firm. He is carrying the Partnership Deed of the firm. The partnership firm M/s. Global Impex was incorporated in the year 2015. There are two partners in the firm, himself and Mr. Anil Sharma. They are dealing with the plaintiff since 2021. They have hired the plaintiff in the year 2021 with respect to work orders Mark B to E. This was the only work which they had given to the plaintiff. The work in question is project Mumbai-Ahmedabad High Speed Rail Project of National High Speed Rail Corporation Ltd., a Government Body, where the Principal Contractor is L&T. Global Impex got the sub contract of transportation from L&T for transporting from their crusher location to the batching plants. There is no separate contract with respect to work given by L&T and the same is mentioned in Mark B to E. He further deposed that he has knowledge about the dealing in the subject vehicle involved in the present suit. The subject vehicle was used for loading of the material. He can tell the place of loading and unloading after verifying the document. He was not present at the site where and when the subject vehicle was loaded. Fitness of this vehicle was checked before loading CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 28 / 61the same. Vol. as all vehicles are duly checked and verified before loading and if any vehicle is not found it as per compliance norms, the same is not loaded. He further deposed that vehicles are examined by the supervisors at site. The modus operandi of the loading of vehicles is that at the first point our deputed team supervises every vehicle and ensures that the vehicle is physically fit for loading as well as all the compliance related to the documents of the vehicles, namely, pollution, fitness, insurance etc. ensured. Thereafter the L&T EHS Team cross verifies the vehicles before loading as per permissible RTO conditions. He further deposed that he is not a part of the team which examines the vehicles before loading. He has knowledge of the accident. As per work order terms the loss of any quantity of material is to be charged by L&T. The same will be charged at cost of the material loaded as per actual with 20% of the said value. They have not taken any action to recover the loss, but they will debit the loss of the account of the plaintiff. There is no written agreement in this regard with the plaintiff Company, but as per the market norms the money is retained from the running amount payable to the other party. Also in the running transaction some amount is taken as security from which the adjustment is made. He further deposed that they have not taken any security from the plaintiff. As per normal practice there is no security kept in the transport business as there is always a liability pending in the books of account so any consequential damage may be debited to the transporter with respect to the losses incurred. He further deposed that there is an outstanding liability of about Rs. 3,53,35,935.95 as per Ledger Statement Ex. PW-3/4.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 29 / 616.10. The plaintiff thereafter closed its evidence.
7. On the other hand, the defendant examined Ms. Eileen Tirkey, AR of Bajaj Allianz General Insurance Co. Ltd as DW-1. She tendered her affidavit in evidence Ex.DW-1/1 made statement in accordance with defence taken in written statement which is not reproduced for the sake brevity. She relied upon the following documents:-
i. Copy of I Card Ex. DW1/A ii. Copy of the Policy document , already Ex.P-1 and Ex.P-2 iii. Copy of commercial vehicle package policy wordings Ex. DW1/C iv. Copy of repudiation letter dated 01.06.2022 Ex DW-1/D. v.Copy of letter dated 14.03.2022 Mark D-A vi. Copy of letter dated 22.03.2022 Mark D-B vii. Original power of Attorney Ex.DW-1/G. 7.1. DW-1, during cross examination by ld. Counsel for the plaintiff admitted that no power of attorney was filed along with the written statement as the attorney which was issued was under
correction at the relevant time. She volunteered that she has received the attorney today only and she has brought the original. She further deposed that she has not personally dealt with the present Claim at the time when the loss reported by the plaintiff company. Vol. she had acquired knowledge on basis of the official record. she has no technical knowledge about the vehicles. She admitted that underwriting of the vehicle was not carried out in her presence. Vol. It was done by some other official. She can only affirm by seeing the policy when it was issued. She has no CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 30 / 61
personal knowledge what steps were taken by the underwriting office at the time of issuance of the Policy. No briefing to the Insured was done before her. She cannot tell if any briefing was carried out by the underwriting office before or after issuance of the policy. She further testified that the policy itself is the only document which shows that complete policy was given to the Insured. She further deposed that she does not have any proof to show that the policy along with its terms and conditions were provided to the Insured. She further admitted to be correct that in para 4 of her evidence affidavit, it is stated that the intimation of loss was received on 24.12.2021. She has no document to show that vehicle was already damaged prior to 29.12.2021, when the present Claim was made. The survey report as well as the Motor Construction Report has spelled out date of loss as 24.12.2021. They have no document to show that the vehicle was damaged prior to 24.12.2021. Vol. They are relying on the Surveyor report. The Surveyor prepares his report at his portal and thereafter shares the same with the defendants. She admitted to be correct that on the survey report filed on record the license no. of the surveyor is nowhere mentioned. However, the seal and signatures of Surveyor are there. She denied the suggestion that the Survey Report placed on record is not as per IRDR regulations. She further denied the suggestion that report was prepared at their portal. She stated to be correct that in the Surveyor's Report as submitted by the Surveyor no details of the estimate submitted by the Insured have been discussed. She further admitted that report of the Surveyor was received on 30.09.2022 and the said construction report was also sought after 24.06.2022 and the claim was CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 31 / 61
repudiated on 01.06.2022. She further admitted that on the day the defendant Company decided to repudiate the claim neither the Surveyor Report nor the accident reconstruction report was available with the defendant company. She volunteered, they were having internal mail communications with the other concerned departments and reports might have been submitted before the repudiation date.
7.2. DW-1 further in cross examination admitted that they have not filed on record any mail and communication referred in the lines above. She further admitted that they have already received the report of the surveyor and investigator when they had repudiated the claim. DW-1 further denied that the reports were procured after the repudiation of the claim. She does not have any technical qualification. She does not know technical details of the insured vehicle. She admitted that it was a new vehicle and it was first year of the policy and the insured vehicle comprises of in parts, one is Horse and other is trailer and the main costs of the insured vehicle lies with horse part only and in the surveyor report it is no where mentioned about the axle damage. DW-1 further testified that she does not examine the vehicle at any stage. They do not have documentary evidence to show that vehicle was already damaged at the time when it was carrying a load of 55000 kg. Volunteered. they had relied upon the surveyor report in this regard. DW-1 further admitted that she has no technical qualification so he cannot say whether the report of the surveyor in respect of the technical aspects as being relied upon by her, is correct or not and that they have not got carried out the CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 32 / 61
spot examination of the vehicle and there is no estimation of repair and photographs with the survey report. DW-1 further admitted that these documents are not even mentioned as annexures in the survey report and she has not mentioned any details of estimate of repairs submitted by the insured. Volunteered. It simply mentions about the parts and assessment made by him.
7.3. Upon being further cross examined, DW-1 further testified that she is aware of the IRDA Regulations. The surveyor is required to submit his report within 15-30 days of the loss. It is correct that the report was not submitted by the surveyor within stipulated period. It is also correct that no extension was sought by the surveyor to conclude his report. It is correct that they have not sought any technical details from the manufacturer about the insured vehicle. She has not brought the claim file with her. During cross examination, witness was put document Mark-E on Pg. 99 of the Court record and asked 'Whether any clarifications were sought from the surveyor in respect of the letter dated 5/5/2022 submitted by the insured as issued by the dealer of the insured vehicle', she deposed that she does not know. DW-1 further stated to be correct that she has stated in her examination- in-chief the that vehicle became unbalanced and toppled as one of the wheel was absent. It is correct that as per her inference on the side where wheel was absent there would be more pressure and gravitational force. Upon being further cross examined, DW-1 was put letters dated 1/6/2022, 14/3/2022 & 22/03/2022 and asked that language of all these letters are identical and stereotype, the CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 33 / 61witness admitted that letters are almost identical except few changes like date change and in last letter (1/6/22) repudiation of the claim has been mentioned. The other letters are the follow up letters. DW-1 further deposed that they never repudiate a claim unless and until they receive the report from the surveyor. Upon further being cross examination, attention was drawn to para 8 of her examination in chief, wherein it has been stated that plaintiff has failed to bring on record any communication with defendant to show that plaintiff intimated or requested defendant for a survey of the damaged vehicle and witness was asked that loss was intimated by the insured immediately and for that reason the claim was registered by their office on 24/12/2021, DW-1 stated that they have appointed the surveyor only after receipt of intimation of loss. DW-1 further deposed that they have no document to show that vehicle was unfit for movement on the record before the time of loss and stated that it is correct that there was no breach of permit or fitness in respect of the insured vehicle. Volunteered, they had relied upon the survey report. DW-1 in further cross examination to the question 'Can you show from the survey report that it was affirmed by the surveyor that vehicle was unfit for movement before the time of loss' , answered that as per the conditions narrated the vehicle was unfit and was not in roadworthy conditions. Further, to the question 'Can you show any inspection report of the insured vehicle before the present date of loss?', answered that they do not have any such document. DW-1 upon being further cross examined denied the suggestion that vehicle was mechanically fit with all axles and wheels attached to it since was it was new vehicle and it was first CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 34 / 61year of insurance. She stated to be correct that it has nowhere mention in the survey report that the claim filed by the plaintiff is inflated and that estimate of repairs exceeds 75% of the insured declared value the claim is stated as total loss and that the letters addressed to the insured no details of the documents required by the insurance company have been mentioned. DW-1 further in cross examination to the question ' Can you tell how had provided you photographs from the spot?', answered that M/s ICS has provided the spot photographs to our company and they have received the photographs from ICS. DW-1 further to the question 'I put to you that loss was notified by the insured to their local office on the date on incident itself and their local office advised the insured to take photographs of the vehicle and shift the same to the repairer.'' answered to be incorrect. DW-1 further deposed that after receipt of intimation, they had registered the claim and appointed the surveyor. As per the survey report, she was appointed on 25.12.2021. She further stated that the vehicle was being driven without the trailer having right hand side front wheels and further stated to be correct that studs of the right wheel were broken at the time of inspection of loss. She admitted to be correct that it is no where mentioned in the report of the surveyor that studs were broken before the incidence. She denied the suggestion put-forth during cross examination by ld. Counsel for plaintiff.
7.4. Defendant further examined Sh. Jignesh S.Thakkar, Surveyor as DW-2. He tendered his affidavit in evidence Ex.DW-2/1 and deposed that he was appointed as Surveyor by CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 35 / 61defendant to carry out survey and loss assessment with respect to loss caused to the vehicle of the plaintiff, and provide his findings. He, after carrying out detailed investigation in the matter submitted a final survey report dated 30.09.2022 with the defendant. He proved original survey report dated 30.09.2022 as Ex.DW-2/A. 7.5. DW-2 upon being cross examination by ld.counsel appearing on behalf of plaintiff deposed that he was working as surveyor for last 13 years. He is aware of IRDA regulations. He has submitted the report within stipulated time. As per IRDA regulations, he was required to submit the report within 30 days. He admitted that final report was submitted by him on 03.09.2022 but volunteered that he had submitted provisional report on 10.01.2022 with the insurance company. He admitted that before Ex.DW-2/A was prepared at the portal of defendant, he further admitted that as per IRDA regulations, he was required to discuss the report with the insured and also obtained his consent on the assessment of loss. The assessment made by him in the report dated 30.09.2022 was on provisional basis since the vehicle was not repaired. He further stated to be correct that if the vehicle would have been put to repairs, the cost of repairs would have increased considerably. He admitted that IRDA regulations nowhere permits to prepare the report on the portal of insurance company. He had examined the vehicle at spot on 24.12.2021. He had taken photographs of vehicle on the spot. He admitted that photographs have not been filed and annexed along with report and further admitted that no estimate of repairs have been attached CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 36 / 61with report dated 30.09.2022. He stated to be correct that his report Ex.DW-2/A, there is no reference of old or new damages. He further admitted that it was a new vehicle and right side brake drum and studs were also damaged at the time when he examined the vehicle. He further stated to be correct that various dates mentioned at point X to X at final survey report Ex.DW-2/A are correct and as per steps taken by him. He had shared his survey report with the insured. The company has shared the same, however, same was not shared by him to the insured. He further stated to be correct that he has not mentioned his qualification in his report Ex.DW-2/A and further stated that he has not examined the insured vehicle before the date mentioned in his report. He has no document to show that vehicle was being run by the insured without the right wheel and brake drum. The vehicle can run without one wheel if there are eight wheels duly support to it. He admitted that in the absence of any wheel, the vehicle will be unbalanced on that particular side that is towards missing wheel side and the vehicle will fell on the side. He denied the suggestion put-forth during cross examination.
7.6. Defendant further examined Mr. Nivrtee R.Magar, Senior Forensic Expert at ICS, Assure Services Private Limited as DW-3, inadvertently mentioned as DW-2. He tendered his affidavit in evidence Ex.DW-3/1 and deposed that he was appointed to give scientific advice on the loss caused to the accident which had occurred on the subject vehicle. They had received the case from surveyor appointed by defendant to carry out survey and loss assessment with regard to the loss caused to vehicle of the CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 37 / 61plaintiff. He proved copy of authority letter dated 23.09.2023 Mark D/C. He further deposed that after carrying out detailed investigation, he submitted Motor Accident Reconstruction report dated 24.06.2022 with the surveyor which is Ex.DW-3/B. 7.7. During cross examination, DW-3 testified that they are empanelled with Bajaj insurance/Defendant Company. Volunteered. In this present case they have submitted the report on the basis of the requisition made by Mr. Jignesh Thakkar. They have not physically examined the vehicle. They have even not visited the place of incidence. They relied upon the details provided by the Surveyor through email. They have not obtained any confirmation from the Surveyor regarding the authentication of the date shared by him. Volunteered. Data shared by the Surveyor in hard copy. He admitted to be correct that it has nowhere been mentioned in his report that data was physically shared by the Surveyor. It is stated in Ex.DW-3/A at point "X" that case was received by email. He admitted that in the entire report, his qualification has not been mentioned. To the question 'can he spell out any law of physics on which he has relied upon in the present report, DW-3 answered that he has stated about centre of gravity, centrifugal and centripetal forces that is elaboratively mentioned in his report. DW-3 further upon being cross examination testified that the toppling of a vehicle in uneven centre of gravity will depend upon the direction of steering wheel applied at the time of said mishap. He is not the eyewitness to the mishap. At the time of mishap, steering was towards RHS. Volunteered. He is stating so on the basis of the photographs that CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 38 / 61was provided to him of accidental vehicle lying on the spot. He stated to be correct that photographs that have been relied upon by him, it is nowhere mentioned who had taken these photograph and at what time these photographs were taken. It is correct that they have not taken any affirmation from the sender about the source of these photographs. They have not shared any photographs with the defendant company. They have not seen the vehicle before the loss as such he cannot confirm whether any tyre/wheel was missing of the insured vehicle. The surveyor has not shared any of his report with them. They have submitted this report with the surveyor on 24.06.2022. DW-3 further deposed that they have never tried to physically examine the insured vehicle and further deposed that they have prepared this report on the basis of details provided by the Surveyor which are mentioned in his report in page no. 24 and further on the basis of analysis and evaluation of those details. He has not prepared this report in the field. He admitted that on page no. 24 of his report there is no mention of number of photographs received by them. He does not know if the surveyor has visited the spot also. He admitted that if any surveyor visits the place of incidence after the loss and takes photographs those photographs are called spot photographs. He cannot say whether Surveyor has visited the spot and taken any photographs of the spot. He admitted that in the photographs, it is clearly depicted that brake drum and studs of the outer wheel has been damaged. Again, said studs are not there. He further in cross examination admitted that he has not attached and stated in my report about his designation. Volunteered. He is carrying his original ID. His agency is not recognised by IRDA. Volunteered.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 39 / 61there is no provision also in this regard. He is aware of IRDA regulations. The insurance companies are governed by the regulations framed by IRDA. He has no knowledge if the surveyors or the investigator are to be accredited with IRDA. He cannot say if the insurance company must follow IRDA regulations while processing claim. They have no photographs regarding the turn on the road as claimed by them in my report at page 21 of page 24. He admitted that they have not obtained any physical details of the road like width, kutcha portion etc. where the alleged loss has taken place. He cannot tell the speed of vehicle as he was not eye witness of the incidence.
7.8. The defendant thereafter closed its evidence.
8. Ld. Counsels for both the parties addressed their respective oral arguments. In addition thereto, written arguments were also filed on behalf of both the parties.
9. In his submissions, it was submitted on behalf of plaintiff by ld. Counsel that plaintiff is restricting its claim to the extent of Rs. 46.0 lakhs being the sum insured and is not pressing its claim with regard to the prayer made by the plaintiff for Rs. 33,60,000/- being loss of business from M/s L & T Contract for period 29.12.2021 to 30.11.2022 as well as Rs. 2,42,000/- on account of parking charges with authorized repairer at the rate of Rs. 1000/- per day for period 30.03.2022 to 30.11.2022 as claimed in the plaint. In view thereof, claim of the plaintiff to the extent of afore-mentioned amount stands disposed off as not pressed for.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 40 / 61Accordingly, the present suit survives only with respect to the claim to the extent of Rs. 46.0 lakhs being the sum insured against the defendant.
10. Arguments considered. Record perused. My issue-wise findings are as under:-
Issue nos.1, 3 and 4-
11. Onus to prove issue no.1 was upon the plaintiff and onus to prove issue nos. 3 and 4 were on the defendant. All these issues are taken up together being interconnected.
11.1. Ld. Counsel for the plaintiff submits that the vehicle Eicher Pro 6055 of the plaintiff which has registered no. RJ 32 GC 6330 with Chasis no. xxxxxxx513 and Engine no. xxxxxxxxK16 was insured with defendant under a policy bearing no. OG-1101-1803- 00000095 for the period 12.04.2021 to 11.04.2022 covering the risk of said vehicle and the sum insured was Rs. 46,00,000/-. The aforesaid insured vehicle while being run on 24.12.2021, in order to avoid any collusion with another truck being driven in negligent manner, the driver brought the vehicle down to road, however, there were coral downstairs wherein it was stuck and insured vehicle overturned. In this manner, insured vehicle was substantially damaged and after that an intimation was sent to the defendant for taking necessary action. However, the defendant failed to send any surveyor for the spot examination of the insured vehicle and on the contrary, requested the plaintiff to take photographs. The plaintiff took photographs of damaged vehicle CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 41 / 61and forwarded the same to the defendant. The plaintiff was forced to move insured vehicle from the spot for carrying out assessment of the loss and necessary repairs. The defendant appointed Sh. Jignesh S.Thakar for assessment of loss. The surveyor appointed by defendant examined the insured vehicle and was provided with all the documents. Subsequent to this, number of correspondences were exchanged between the plaintiff and the defendant, however, despite constant follow ups, the defendant wrongly rejected the claim of the plaintiff vide letter dated 01.06.2022 i.e. Letter of Repudiation Ex.DW-1/D1 while relying upon the fact that at the material time of accident, insured vehicle was being driven without a brake drum and wheel on road by driver which has led to gross negligence leading to violation of condition 5 of Vehicle Packaged Policy.
11.2. It is also argued by Ld. Counsel for the plaintiff that as per deposition of DW-1, this witness in cross examination categorically has admitted that surveyor and investigator reports were obtained after repudiation of claim. This witness has also admitted that surveyor has failed to comply his part of obligation as per IRDA regulations. This witness further admitted that there have no evidence to prove that there was no third axle. She even has admitted that she has no technical knowledge and also failed to prove that policy along with its terms and conditions was provided to the insured. Similarly, the deposition of DW-2 would not help the case of the defendant because this witness admitted that as per IRDA, he was required to submit his report within 30 days and submitted his report on 30.09.2022. It was admitted by CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 42 / 61him that report was prepared by him on the portal of insurance company. The said report as such cannot be termed as independent report as he himself testified that as per IRDA guidelines/ regulations, they are not required to prepare the report on portal of insurance company. This witness further admitted that right side brake drum and studs were damaged. He also admitted that he has no evidence to prove that vehicle was run without right wheel. It was also admitted by him that vehicle can run on eight wheels and in case, absence of any wheel, the vehicle will fall on that side. Admittedly, here the vehicle has fell on the other side. The entire defence of the defendant got negated with his cross examination. Ld. Counsel for defendant further has drawn attention of the court to the examination of DW-3 and pointed out that the report obtained after repudiation of claim has no relevance as the witness has neither examined the insured vehicle nor has placed on record technical qualifications.
11.3. Ld. Counsel for plaintiff further argued that defendant without following IRDA guidelines, rejected the claim of the plaintiff. As per sub-section 3, the surveyor has to start the survey immediately and interim report has to be submitted within 15 days of date of survey and further, as per Sub Clause 5 (1), surveyor is required to submit his final report within 30 days of his appointment. Ld. Counsel emphasized that in the instant case, reports as relied upon by the defendant Ex.DW-2/A and Ex.DW-3/B were obtained subsequently whereas, the defendant repudiate the claim of the plaintiff on 01.06.2022. The plea taken for repudiation is vague. The defendant has failed to adduce any CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 43 / 61evidence to show that damaged vehicle was used. Ld. Counsel for plaintiff relied upon judgment Texco Marketing P. Ltd v/s Tata AIG General Insurance Company Limited & Ors, C.A No. 8249 of 2022, wherein Hon'ble Apex Court has observed that "On a discussion of the aforesaid principle, we would conclude that there is an onerous responsibility on the part of the insurer while dealing with an exclusion clause. We may only add that the insurer is statutorily mandated as per Clause 3(ii) of the Insurance Regulatory and Development Authority (Protection of Policy Holder's Interests, Regulation 2002) Act dated 16.10.2002 (hereinafter referred to as IRDA Regulation, 2002) to the effect that the insurer and his agent are duty bound to provide all material information in respect of a policy to the insured to enable him to decide on the best cover that would be in his interest. Further, sub-clause (iv) of Clause 3 mandates that if proposal form is not filled by the insured, a certificate has to be incorporated at the end of the said form that all the contents of the form and documents have been fully explained to the insured and made him to understand. Similarly, Clause 4 enjoins a duty upon the insurer to furnish a copy of the proposal form within thirty days of the acceptance, free of charge. Any non-compliance, obviously would lead to the irresistible conclusion that the offending clause, be it an exclusion clause, cannot be pressed into service by the insurer against the insured as he may not be in knowhow of the same".
11.4. Per contra, ld. Counsel for defendant argued that defendant received a claim on 24.12.2021, after which, the defendant had appointed IRDAI registered surveyor for inspection of damaged CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 44 / 61vehicle diligently on 25.12.2021. As per surveyor report prepared by an independent surveyor, the absence of wheel and brake drum on third axle led to disbalance and overturning of insured vehicle. The Motor Accident Reconstruction Report Ex.DW-3/B categorically states that uneven load distribution and the varying rolling resistance due to absence of one of the wheel set of trailer caused by the insured vehicle to become unbalance and toppel. The independent surveyors have relied on scientific approach to determine the outcome rather an imaginary theory, and the defendant has rejected the claim based on expert scientific guidance.
11.5. Ld. Counsel for defendant further submitted that plaintiff did not provide complete and correct document substantiating their claim. The defendant through letter dated 14.03.2022 and then again, through a letter dated 22.03.2022 had notified the plaintiff that claim was against the terms of contract and had asked the plaintiff to file additional documents which were furnished by the plaintiff through email dated 05.05.2022 as mentioned in Repudiation Letter dated 01.06.2022. The defendant repudiated the claim of the plaintiff vide detailed and reasoned Repudiation Letter dated 01.06.2022. In this regard, ld. Counsel relied upon judgment Isnar Aquaforms v/s United India Insurance Limited, 2023 SCC Online 945 wherein Hon'ble Supreme Court reiterated the principle that it is fundamental principle of insurance law that utmost good faith must be observed by contracting parties; that good faith forbids either party from non disclosure of facts which the party knows; and that the insured has CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 45 / 61a duty to disclose and similarly, it is the duty of insurance company to disclose all material facts within their knowledge since the obligation of good faith applies to both equally.
11.6. Ld. Counsel for defendant further argued that plaintiff has committed a fundamental breach of the terms of Contract with respect to safety and maintenance of insured vehicle clearly in violation of condition 5 of Vehicle Package Policy, therefore, the defendant was justified to repudiate the claim of plaintiff for fundamental breach of insurance contract. Ld. Counsel for defendant further invited attention to the cross examination of PW-1 and submitted that this witness acknowledges the fact that no loose tyre was recovered from the site of accident, therefore, it is established that vehicle was being driven without the tyre of third axle of truck and tyre was already detached before the accident.
11.7. Ld. Counsel further asserted that clarification as provided by plaintiff was that load balancing of the vehicle is not a technical or safety certificate and is merely a document under the seal of "Sincere Marketing Services Private Limited" which has no veracity nor the required qualification to access the load bearing capacity nor the scientific knowledge to access and recreate the accident which an IRDA independent person has done and arrived at conclusion against the plaintiff herein. Both PW-1 and PW-2 have failed to identify the seal and sign of expert on clarification annexed by plaintiff which creates doubt on the veracity of the document. It is also argued that even after the CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 46 / 61accident, the plaintiff moved the damaged vehicle from the spot without notifying a requesting defendant to conduct a survey which is requisite for a vehicle insurance claim as per IRDA standards which the plaintiff conveniently left out. Ld. Counsel for defendant argued that defendant was justified in repudiating the claim of plaintiff through detailed and reasoned repudiation letter dated 01.06.2022 Ex.DW-1/D. 11.8. On judicial scanning of evidence adduced by the parties as discussed in preceding paragraphs and in the light of arguments advanced by ld. Counsels for parties, it is not in dispute that the subject vehicle of plaintiff was insured with defendant under a policy for a period of 12.04.2021 to 11.04.2022. It is not in dispute that insured vehicle met with an accident on 24.12.2021 and got damaged. Thus, the plaintiff has proved existence of valid insurance policy and happening of an accident to the insured vehicle for which, claim has been lodged with the defendant. Thereafter, now the onus has shifted upon the defendant to lead evidence to show that claim is not payable therefore, it is repudiated. In these premises, Letter of Repudiation dated 01.06.2022 is crucial document on the basis of which, assertion as well as counter assertion of the parties are based. The plaintiff has alleged that its claim was wrongly rejected by the defendant On the contrary, it is claimed by the defendant that defendant has correctly repudiated the claim of the plaintiff based on expert scientific guidance contained in surveyor report and insured vehicle was being used by plaintiff in damaged condition and therefore, violated the terms and conditions of policy.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 47 / 6111.9. At this juncture, it is relevant to refer to Letter dated 01.06.2022 (Letter of Repudiation) Ex. DW-1/D with the following observations: -
Dear Sir/Madam, We acknowledge the receipt of your Motor Claim intimation with regard to the captioned subject and our earlier letter dated 14 Mar 2022 and 22 Mar 2022. With reference to above subject claim, documents submitted by your good self and clarification given through e-mail dated 3 Feb 2022 and 5 May 2022; we have reviewed the documents submitted by your good self and report submitted by an Independent IRDA approved surveyor, We observed that:
1. Insured vehicle was moved from spot without our consent, depriving us an opportunity to inspect the vehicle on the spot to ascertain facts including but not limited to the cause, nature, circumstances and quantum of loss, which is required to decide on admissibility of the claim.
2. As per spot photos, it has been observed that Right hand side Brake drum and Wheel from 1" axle of the trailer is missing from the vehicle. Therefore it is established that at the material time of accident vehicle was being driven without a Brake drum and wheel on road by driver which has led to gross negligence with your knowledge and consent leading to violation of policy terms & condition step 5 which stated as "The Insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the company shall have at all times free and fill access to examine the vehicle insured or any part thereof or any driver or employee of the insured"
The above act of yours shall be construed as violation of Condition 5 of the Vehicle Package Policy which reads as "The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company (insurer) shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident of breakdown the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 48 / 61In view of above facts, your claim stands repudiated.
11.10. The letters mentioned in the aforesaid Letter of Repudiation dated 01.06.2022 are letter dated 14.03.2022 (Mark DA filed by the defendant) and letter dated 22.03.2022 (Mark DB filed by the defendant). It is significant to mention here that both these letters are denied by the plaintiff and even otherwise a cursory look of these letters would show that the contents of these letters are identical to the content of final Letter of Repudiation.
11.11. It needs to highlight that the above-mentioned Letter of Repudiation Ex.DW-1/D further shows that the claim of the plaintiff was repudiated on 01.06.2022 but by referring to the report submitted by an independent IRDA approved surveyor. It is matter of record that along with the written statement, the defendant has filed Motor Accident Reconstruction Report Ex.DW-3/B, same was proved by DW-3 Sh. Nivratee R. Magar Senior Forensic Expert, ICS Assure Services Pvt. Ltd. Mumbai which contains recitals that this report was submitted through letter dated 24.06.2022 as under: -
Case reference No. ICSA/AR-I/2022/0584 Date:24/06/2022 To, Mr. Jignesh Thakkar IRDA approved Surveyor CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 49 / 61
Reference:Claim No: "OC-22-2203 1803-00000396* Name: "Goldcorp Global Logistics Pvt Ltd." allocated for the accident reconstruction on date 14/06/2022.
Please accept our thanks on having repused faith in ICS Assure Services Pvt. Ltd. Team of Doctor, Automobile/Mechanical Engineer and Forensic Expert to assist you in your ongoing endeavour of rational management of claims.
At this juncture, we would like to reiterate that this Report is being issued strictly Without Prejudice and is Confidential.
Thanking you.
For, ICS Assure Services Pvt Ltd.
-sd-
Nivrtee R. Magar (Senior Forensic Expert) The report above shows that this report is submitted by Sh. Nivratee R. Magar who was engaged/ given the task on Accident Reconstruction Report on 14.06.2022 Ex.DW-3/B and he submitted report on 24.06.2022.
11.12 It would also be useful to refer to another report allegedly given by IRDAI registered surveyor Mr. Jignesh S Thakkar DW-2. This final survey report is dated 30.09.2022 Ex.PW-2/A, significant to mention here that this report was not filed along with the written statement by the defendant but has been subsequently filed through application under Order XI Rule 1 (10) CPC as amended by Commercial Courts (Amendment Act) 2015 read with Section 151 CPC. This application was allowed by this court vide order dated 13.07.2023.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 50 / 6111.13. From the dates above, it is quite clear that both these reports submitted to the defendant by the surveyors were dated 24.06.2022 and 30.09.2022 respectively, which were subsequent to the date of Letter of Repudiation Ex.DW-1/D i.e. 01.06.2022. Further, from the letter dated 14.03.2022 (Mark DA filed by the defendant company) and letter dated 22.03.2022 (Mark DB filed by the defendant company), it is very evident that the defendant has made up its mind to reject the claim of the plaintiff on the aforesaid grounds without obtaining the reports of the surveyors. The defendant has not been able to show the material collected independently by it to draw such adverse conclusion on the claim of the plaintiff. Thus, it manifests from the above that the decision to repudiate the claim of plaintiff is palpably without any expert opinion. This further got strengthened from the cross examination of DW-1that on the date, the defendant decided to repudiate the claim of the plaintiff, neither surveyor report nor re-construction report was available with the defendant. Further, DW-2 in his cross examination also admitted that IRDA regulations nowhere permits to prepare the report on the portal of insurance.
11.14 Now, coming to the first point based on which the claim of the plaintiff has been repudiated as mentioned in the letter dated 01.06.2022 Ex.DW-1/D, for the sake of convenience, it is reproduced hereunder:-
Insured vehicle was moved from spot without our consent, depriving us an opportunity to inspect the vehicle on the spot to ascertain facts including but not limited to the cause, nature, circumstances and quantum of loss, which is required to decide on admissibility of the claim.
11.15. The defendant has persistently taken a stand that no CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 51 / 61
information was given to it after the accident and the vehicle was moved denying the aforesaid opportunity. Whereas, the record shows that the accident occurred at 24.12.2021 (05:25 PM) which is evident from the Motor Accident Reconstruction Report dated 24.06.2022 Ex.DW-3/B and also Final Survey report dated 30.09.2022 Ex.DW-2/A. At the cost of repetition, it would be relevant to refer to the evidence tendered by Eileen Rose Tirkey, Authorized representative of defendant appearing as DW-1. She in her affidavit Ex.DW-1/1 at paragraph 4, had mentioned that defendant company received a claim on behalf of the plaintiff on 24.12.2021. This fact was got confirmed in the cross examination of this witness in response to a question that intimation of the accident was received on 24.12.2021. Requisite Motor Insurance Claim Form Ex. P-3 further indicates that information was immediately sent to the insurance company. Further, the final report of the Mr. Jignesh S Thakkar dated 30.09.2022 Ex. DW-2/A, indicates that the survey was allotted to him on 25.12.2021. Further, as evident, the plaintiff has moved the insured vehicle allegedly using the services of New Metro Break Down Services, Dhulya Chokdi, Bardoli, District Surat for which, invoice dated 26.12.2021 Mark A has been placed on record by the plaintiff.
11.16. Based on the facts and evidence above, there can be no fault found with the plaintiff that it has moved insured vehicle denying the opportunity of survey rather on the contrary the plaintiff has admittedly informed the defendant on 24.12.2021 itself. It was thus, incumbent upon the defendant to act in swift to CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 52 / 61initiate its process and cannot be expected to keep the damaged vehicle on a public road and subsequently take it as ground for repudiation of the claim.
11.17. The defendant has also taken another technical ground for repudiation of claim in letter Ex.PW-1/D which is reproduced hereunder: -
As per spot photos, it has been observed that Right hand side Brake drum and Wheel from 1" axle of the trailer is missing from the vehicle. Therefore it is established that at the material time of accident vehicle was being driven without a Brake drum and wheel on road by driver which has led to gross negligence with your knowledge and consent leading to violation of policy terms & condition step 5 which stated as "The Insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the company shall have at all times free and fill access to examine the vehicle insured or any part thereof or any driver or employee of the insured"
11.18. Without prejudice to the findings that none of the report was available at the time of repudiation of the claim, yet the defendant has drawn adverse conclusion that because in the photographs, it is seen that there is missing Brake drum and wheel on right side thus, because vehicle was being run negligently hence no claim. It transpires that this conclusion drawn is based on examination of the photographs which were provided by the plaintiff. DW-2 Mr. Jignesh S Thakkar in cross examination deposed that he had examined the vehicle at the spot on 24.12.2021 and had taken out the photographs of the vehicle on the spot. But at the same time, he has admitted it to be correct that the photographs taken by him have not been filed and annexed along with the report.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 53 / 61
11.19. Similarly, Sh. Nivratee R. Magar Senior Forensic Expert, ICS Assure Services Pvt. Ltd. appearing as witness DW-3 in cross examination deposed the followings: -
Q.2 I put it to you that you have prepared this report while sitting on the office on the basis of the documents provided by the Surveyor.
Ans. We have prepared this report on the basis of details provided by the surveyor which are mentioned in my report in page no. 24 and further on the basis of analysis and evaluation of those details. We have not prepared this report in the field.
It is correct that on page no. 24 of my report there is no mention of number of photographs received by us. I do not know if the surveyor has visited the spot also. It is correct that if any surveyor visits the place of incidence after the loss and takes photographs those photographs are called spot photographs. I cannot say whether Surveyor has visited the spot and taken any photographs of the spot. It is correct that in the photographs it is clearly depicted that brake drum and studs of the outer wheel has been damaged. Again, said studs are not there.
11.20. Thus, from careful analysis of above relevant extract of the evidence of DW-2 and DW-3, it can safely be culled out that source of the relied upon photographs by both the experts has been doubtful and thus, it is difficult to repudiate the claim based on unreliable photographs.
11.21. Now, another question emerging from the Letter of Repudiation Ex.DW-1/D that whether it has been established from the evidence of the parties that at the time of accident the vehicle in question was being driven "without right hand side brake drum and wheel from 1" axle of the trailer". Secondly, if yes then whether the accident occurred due to this mishandling of the vehicle. As discussed above, the defendant/ its surveyors either did not take any photographs independently or if taken these have not been brought on CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 54 / 61
record. Further, two reports as mentioned above are submitted after the issuance of Letter of Repudiation. It is useful to refer to the cross examination of DW-1. On 16.10.2023, DW-1 in her cross examination admitted as under:-
......I have not examined the vehicle at any stage. We have no documentary evidence to show that vehicle was already damaged at the time when it was carrying a load of 55000 kg. Vol. We had relied upon the surveyor report in this regard. It is correct that I have no technical qualification so I cannot say whether the report of the surveyor in respect of the technical aspects as being relied upon by me, is correct or not. It is incorrect that whatever I have stated regarding the technical aspects in my examination in chief is on hearsay basis. It is correct we have not got carried out the spot examination of the vehicle, it is correct that there is no estimation of repair and photographs with the survey report. It is correct that these documents are not even mentioned as annexures in the survey report. It is correct that he has not mentioned any details of estimate of repairs submitted by the insured.
11.22. In the further cross examination, in response to Q:6 and Q:7, DW-1 stated that the photographs of the incident were received by insurance company from ICS.
11.23. At this juncture reference to the following deposition of DW-3 Mr. Nivrtee R. Magar on 17.10.2023 is also relevant:-
"........I am stating so on the basis of the photographs that was provided to me of accidental vehicle lying on the spot. It is correct that the photographs that has been relied upon by me it is nowhere mentioned who has taken this photograph and at what time these photographs were taken. It is correct that we have not taken any affirmation from the sender about the source of these photographs. We have not shared any photographs with the Defendant company. We have not seen the vehicle before the loss as such I cannot confirm whether any tyre/wheel was missing of the insured vehicle. The surveyor has not shared any of his report with us...."
11.24. From the above, the entire hypothesis that the accident has occurred due to missing wheel from first axle of trailor and brake CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 55 / 61drum of right hand side is based on photographs and the source of these photographs is not proved as to who has taken it from the spot. On the contrary, the plaintiff has claimed that at the request of the defendant, the photographs were taken and provided to the defendant. Further, at the best the photographs after the accident may show that the brake drum of right hand side and wheel of missing after the accident but it does not necessarily establish that the vehicle before the accident was driven without it. Further, it got strengthened as DW-1 in cross examination on 16.10.2023 in reply to Q:11, stated that in the reports it is not mentioned that the studs of the right wheel were broken before the incidence. On the contrary, the plaintiff witness PW-1 stated that the studs might have gone missing after the accident. PW-2 Shri Subhash Chander Gupta of M/s Sincere Marketing Services Pvt. Ltd., deposed on 18.08.2023 and stated that this vehicle is 6/4 horse meaning it has 6 tyres ends and it has 4 live axle 'wheel drive which is the rear part of the horse. The horse of the vehicle has 10 wheels and the trolly has 12 wheels. In the trolly portion there are 3 axle and in each axle there are 4 tyres i.e. 2 on each side of the axle. This witness also confirmed the certificate issued by Sincere Marketing Services Pvt. Ltd. submitted as Mark-E. Even DW-2 Sh. Jignesh S. Thakkar also admitted in cross examination that vehicle can run on eight wheelss and in case of absence of any wheel, the vehicle will fell on that side. Admittedly, here the vehicle has fallen on the other side. It is also noteworthy to mention here that defendant heavily relied upon survey reports but upon careful scanning depositing of DW-2 and DW-3 indicate that they have not mentioned about their qualifications in their reports. The insured CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 56 / 61vehicle was not physically examined by DW-3. DW-3 has also admitted that he has not obtained any physical details road like width, kaccha portion etc, where the alleged loss had taken place and he cannot tell about the speed of the vehicle.
11.25. In these circumstances above, the defendant has miserably failed to prove that the insured vehicle was being used on the date of incident in a damaged condition. There is no hesitation to hold that the reports dated 24.06.2022 Ex.DW-3/B and 30.09.2022 Ex.DW-2/A were obtained subsequently and repudiation of the claim of plaintiff by the defendant was made earlier vide Letter of Repudiation dated 01.06.2022 Ex.DW-1/D. Thus, repudiation of the claim of insurance is unjustified and the defendant is liable to admit the claim. A person take the insurance coverage with an expectation that in case of any unforeseen incident and if the insurance company denies the claim on unjustifiable grounds, it constitutes a severe lapse in services convering under Section 2 (c) (xviii) of the Commercial Courts Act, 2015.
11.26. In the instant suit the plaintiff has claimed total loss of the accidental vehicle and reliance is placed upon by the plaintiff on the judgment of Sulakshna Devi Through LRs v/s Liberty Videocon General Insurance Company Ltd & Ors, pronounced on 08.11.2023, wherein Hon'ble National Consumer Disputes Redressal Commission has held as under:
The root of the issue in the present appeal lies 'whether there was Constructive Total Loss (CTL) of the subject vehicle or not'. The criteria for considering a vehicle as a CTL is "The insured vehicle shall be treated as a CTL if the CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.Page No. 57 / 61
aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle". The estimate provided by the surveyor has assessed the cost of repair to be Rs. 8,33,586.00 which comes out to be about 36.75%. However, the said estimate of the surveyor was after adjusting depreciation value. If the depreciation amount is excluded then the estimate will come to Rs.17,51,479.81 which would be about 77.22%. The concept of depreciation is adjustment of notional value which deducts value of an asset over its life. However, in the present appeals the actual cost that would have to be paid for repairs would be about 77.22% out of which the Insurance Company by its own estimate was willing to pay only 36.75%. It cannot be denied that the vehicle has suffered CTL as per the definition even if the Insurance Company is adjusting for depreciation. It is a matter of fact that vehicle would require extensive repairs and the Insurance Company cannot by way of depreciation deprive the insured of his rightful claim as the actual cost of repair that would have to be paid is not subject to depreciation, i.e. the workshop would require the same amount irrespective of the age of the vehicle.
11.27. The above mentioned ratio of law discussed by Hon'ble NCDRC squarely applies to the facts of the present case.
Hence, in view of the foregoing reasons, the discussion made hereinabove and while being guided by the above referred decision of Hon'ble NCDRC, the plaintiff is entitled to recover the full insured amount of Rs. 46,00,000/- from the defendant, while taking the damage caused to the insured vehicle to be more than 75% of IDV and thus, it is treated that there was complete loss to the insured vehicle due to the accident in question. The plaintiff has been able to prove its case on the basis of preponderance of probabilities. In view of foregoing discussion, the plaintiff is entitled for Rs. 46,00,000/- from the defendant.
11.28. These issues stand decided accordingly.
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 58 / 61ISSUE NO.2
12. The onus to prove this issue has been placed upon the plaintiff.
12.1. Ld. Counsel of defendant has submitted that the plaintiff is not entitled to claim any interest, since the present claim arises out of insurance policy based upon the principle of uberrima fides, i.e. 'good faith' and it is settled principle of law that an insurance claim is a claim arising from contract of indemnity and a person cannot claim profit or benefit out of said contract. Though the plaintiff has failed to bring on record any substantial document with respect to the amount claimed under the head of interest, however, the said submission of the defendant is liable to be rejected for the reason that it has been duly established on record that insured vehicle was the commercial vehicle and the repudiation of the claim of insurance is unjustified. Record further suggests that the plaintiff had submitted its claim immediately after the date of accident i.e. 24.12.2021, but the defendant after a period of six months, repudiated the said claim vide letter dated 01.06.2022. In Secretary, Irrigation Department, Government of Orissa and Ors v/s GC Roy, MANU/SC/0297/1992, Hon'ble Apex Court opined that a person deprived of use of money to which he is legitimately entitled has a right to be compensated for the deprivation, all it by any name. It may be called interest, compensation or damages. This is a principles of Section 34.
12.2. Under Section 34 of CPC, it is provided that where the CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 59 / 61liability in relation to the sum so adjudged had arisen out of commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lend or advanced by nationalized banks in relation to the commercial transactions.
12.3. Keeping in view the above discussion, in considered opinion, the insured vehicle being commercial in nature, the plaintiff is entitled for pendente lite and future interest. The plaintiff has claimed interest @ 18% per annum. Indisputably, there is no contractual agreement between the parties to pay interest @ 18% per annum as claimed. Considering the nature of dispute between the parties being commercial in nature, in considered opinion of this court, the interest of justice would be served if plaintiff is granted simple interest @ 6% per annum. Hence, plaintiff is granted simple interest @ 6% per annum from the date of filing the suit till its realization.
12.4. Accordingly, the issue no.2 is decided in favour of the plaintiff and against the defendant.
Relief
13. In view of above findings, the suit of the plaintiff is partly decreed. Accordingly, a decree for a sum of Rs. Rs.46,00,000/ [Rupees Forty Six Lacs only] is passed in favour of plaintiff and against the defendant, along-with simple rate of interest @ 6% per annum from the the date of filing the suit till its realization. Costs CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
Page No. 60 / 61of the suit are also awarded in favour of the plaintiff.
14. Decree sheet be drawn up accordingly.
15. File be consigned to record room after due compliance.
Digitally
signed by
VINEETA
VINEETA GOYAL
GOYAL Date:
2025.03.28
18:47:09
+0530
Pronounced in the open Court (VINEETA GOYAL)
on 28.03.2025 District Judge (Commercial-03)
Patiala House, New Delhi
CS(COMM) No.106/2023 Gold Corp Global Logistics P. Ltd. vs. Bajaj Allianz General Insurance Co. Ltd.
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