Delhi District Court
B K Traders Through Its ... vs The New India Assurance Co Limited on 3 February, 2025
IN THE COURT OF Ms. NIRJA BHATIA
DISTRICT JUDGE (COMM-07), DIGITAL
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS(COMM) 295/2024
B. K. Traders
(through its proprietor / owner)
Babu Khan s/o Istyak Ali
B-160, 4th Floor, Shaheen Bagh,
Abul Fazal Enclave, Jamia Nagar,
New Delhi - 110025
Email: [email protected]
.........Plaintiff
Versus
The New India Assurance Co. Ltd.
A-64, DDA Shed, Block A, Okhla Phase II
Okhla Industrial Estate, New Delhi - 110020
Email: [email protected]
Also at:
Delhi Regional Office - II
10th Floor, Core-I
Scope Minar, Laxmi Nagar
District Centre, Delhi - 110092.
Email: [email protected]
....... Defendant
Date of Institution: 20.04.2024
Arguments concluded on : 03.02.2025
Date of Judgment: 03.02.2025
JUDGMENT
1. By this judgment, I shall decide the suit filed for relief of recovery Rs. 23,50,000/-.
NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:01:39 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 1 of 33
2. The facts on which the suit is premised are narrated herein below:-
(i) That plaint is filed by Sh. Babu Khan, S/o of Istyak Ali, Resident of B 160, 4th Floor, Shaheen Bagh, Abul Fazal Enclave, Jamia Nagar, proprietor of B.K. Traders against M/S New India Assurance Company Ltd. having its office at A-64, DDA Shed, Block A, Okhla Phase-II, Okhla Industrial Estate, New Delhi and having regional office at 10th Floor, Core-I, Scope Minar, Laxmi Nagar District Centre, Delhi - 110092 ( hereinafter referred as defendant )
(ii) That plaintiff Babu Khan owned a truck LPK 3118 bearing registration no. HR-55-AD-3604 which he had purchased from M/s Pascos at G.T. Karnal Road for amount of Rs.
37,87,500/- and was using it for Commercial Purposes for carrying goods. The vehicle was insured against insurance policy bearing no. 32400031210100000201 from defendant against IDV (Insured Declared Value of Rs. 23,50,000/- against premium of Rs. 54,424/-. The insurance was valied from 06.07.2021 to 05.07.2022.
(iii) That on 31.01.2022, the vehicle was parked outside the shop of one Waseem Mistri, Truck Market, Sector - 126, Gautam Budh Nagar, Noida under the surveillance of CCTV. However, on 01.02.2022, plaintiff was told by one Sh. Salauddin, driver of another truck that his truck was not seen at the place where it was parked the previous night. Plaintiff reached the place, made enquiries and on finding the truck missing called police helpline number 112 to inform about the theft. The PCR call report was NIRJA registered as event no. PO1022201799. The police officials BHATIA B. K. Traders Vs. New India Assurance Co. Ltd. Page 2 of 33 Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:01:47 +0530 reached the spot and complaint was made by plaintiff at PS Section 126, Noida, U.P.
(iv) Upon the directions of Ld. CJM, Gautam Budh Nagar, U.P. an FIR no. 0160 dated 16.09.2022 u/s 379 IPC was registered at PS Sector - 126, Gautam Budh Nagar, U.P.
(v) That plaintiff immediately after the theft of the vehicle informed the defendant for availing the insurance claim under the policy which it registered as claim bearing no. 32400031210190000047. Plaintiff was assured of release of claim immediately on completion of formalities and submissions of requisite documents.
(vi) The plaintiff then submitted all requisite documents with the defendant enclosing the copy of FIR, untraced report of the vehicle issued by the police / court and key of insured vehicle including the CCTV footage of the theft of the insured vehicle.
(vii) The plaintiff time and again made a request to defendant to release the payment of the claim amount, however, to his shock, despite submitting all the requisite documents, the defendant repudiated the claim, vide email dated 26.05.2023 on false and fictious grounds of non-cooperation, suppression of material facts and mis-representation citing that the plaintiff revealed different places of parking of truck before loss and, that after the date of theft, the insured vehicle was seen plying at Rajasthan on 31.03.2022. It is also claimed that plaintiff did not submit all documents as desired by the investigator.
(viii) Plaintiff claims that to his utter shock and surprise prior to repudiation of claim by defendant vide email dated 26.05.2023, defendant did not inform him or the police about its claim of NIRJA BHATIA Digitally signed by NIRJA BHATIA B. K. Traders Vs. New India Assurance Co. Ltd. Page 3 of 33 Date: 2025.02.03 16:01:53 +0530 seeing the vehicle being used on 31.03.2022 despite the fact that defendant was under obligation to intimate the said, forthwith to police and plaintiff.
(ix) Plaintiff claims that he visited defendant's office number of times and met its officers to discuss the case, however, despite lapse of more than one year, the defendant has not provided any information about seeing the vehicle after the date of reported theft. As no proper response is received, plaintiff informed the defendant vide email dated 25.09.2023, that it shall take suitable legal action. Consequently the plaintiff approached the South- Delhi, Legal Service Authority u/s 12 A Commercial Courts Act, however, a non-starter report is returned on 01.03.2024. As a result the plaintiff filed the present suit seeking decree of Rs. 23,50,000/- as principal and interest of 18% per annum. Besides the above, plaintiff has also claimed amount of Rs. 2,00,000/- as compensation.
Written Statement
4. Written Statement is received. However, defendant denied all disputes and claims made by plaintiff alleging them as false. Below submissions are made:
(i) Defendant claimed that plaintiff is not approaching the court with clean hands and is guilty of suppression of facts material for adjudication.
(ii) The suit is alleged as bad for non-joinder of parties and it is claimed that the mechanic who was handed over the vehicle for repairing and from whose place the vehicle was stolen is not made party.
NIRJA BHATIA Digitally signed B. K. Traders Vs. New India Assurance Co. Ltd. Page 4 of 33 by NIRJA BHATIA Date: 2025.02.03 16:02:00 +0530
(iii) Defendant admitted that information of theft is received from plaintiff on 01.02.2022 and is pertaining to vehicle no. HR 55 AD 3604.
(iv) Defendant states that Sh. Sonu Bhola, (Advocate, Solicitors & Investigators) was appointed as investigator / surveyor, who thoroughly investigated the matter but raised doubts upon the assertion of plaintiff qua theft due to his contradictory statements.
(v) Defendant then detailed the investigation report in the Written Statement, wherein it is alleged that plaintiff did not provide the toll tax receipts, fastag summary etc., to ensure the return of the vehicle no. HR 55 AD 3604 from Nazibabad, District Bijnor to Noida U.P. He also failed to provide the CCTV Footage, of the lost location from 23.01.2022 to 31.01.2022 which could have ensured the presence of the vehicle at Raipur Truck Market, Noida during the said period.
(vi) It is alleged that during the ARTO Haridwar visit by surveyor, it is revealed that the vehicle was plying at Uttrakhand on on 03.11.2021 whereas plaintiff informed that vehicle was plying at Najibabad, Bijnor, U.P. from January 2021 to 16.01.2022. It is claimed that the insured did not provide any document confirming the fact of vehicle being plied during the above period at Najibabad, Bijnor, U.P. and concealed about plying of vehicle at Haridwar, Uttrakhand. No proof of return of vehicle from Uttrakhand to Noida was also made available.
(vii) The defendant came to know that vehicle is blacklisted by ARTO, Haridwar, due to enforcement reasons on 18.06.2022, however, the vehicle was not impounded.
Digitally signed by NIRJA NIRJA BHATIA BHATIA Date: B. K. Traders Vs. New India Assurance Co. Ltd. Page 5 of 33 2025.02.03 16:02:06 +0530
(viii) Defendant claimed that from RC Particulars available on vahan / parivahan mobile app, it is shown that the vehicle was blacklisted by Bharatpur, RTO on 21.02.2023 due to reason "e- Ravanna Overloading Infor". On visit of investigator to RTO Office Bharatpur to enquire the reason of blacklisting, he was told that on various occasions, the vehicle was found overloaded from the site occupied by crushers in Bharatpur District and 15 receipts were pending against the vehicle against which fine amount of Rs. 3,03,000/- was due.
(ix) It is claimed that the copy of few e-Ravannas showed that the plaintiff was fraudulently using the registration no. HR 55 AD 3604 on two different makes of vehicle fraudulently which amounts to cheating, forgery and violation of MV Act.
(x) Defendant claimed that plaintiff did not even cooperate in the investigations and failed to provide the RC Particulars, from the concerned RTO duly stamped and signed, Copy of updated loan account statement of vehicle duly stamped and signed by financer. He even resisted the surveyor for asking the details and in one of the statements, claimed that demanded GRS are not required, despite being informed that in a case of Goods Loading vehicle, either GR or copies of bills/ e-way bills of uploaded goods from 01.01.2022 to 31.01.2022 must be provided, plaintiff denied to provide the same. He gave similar response for 'Kanta Parchis' demanded for 01.01.2022 to 31.01.2022 and stated that they were not needed in this case. Plaintiff also delayed the lodging of FIR. The details of the accident with which the vehicle met before the alleged theft were not provided. NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:02:14 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 6 of 33
(xi) Defendant states that since only the plaintiff could obtain the CDRs, for the period 15.01.2022 to 02.02.2022 to confirm the location history of the vehicle, he was asked to give the same. The CCTV Footage of spot was also asked for the period 24.01.2022 to 11:00 PM of 31.01.2022. Defendant alleged that the provided key did not seem original. Apart from above, plaintiff was also asked to provide bill of last repair, Court accepted certified copy of final report u/s 173, toll tax receipts / fastag summary of the vehicle, previous insurance and service history etc and since the above documents were not made available, it is claimed that the investigator vide his letters and emails dated 14.03.2022, 02.04.2022 and 11.10.2022 requested for documents and clarifications which were not provided. After which refusal of plaintiff, the investigator filed his report on 27.03.2023. In terms of the report of the investigator, legal opinion was obtained on which basis the claim was repudiated by the letter dated 25.05.2023. It is claimed that plaintiff has made false allegations against the defendant knowing well that the suit is not maintainable, and in view of above facts, dismissal of the suit is prayed.
5. Replication is not filed.
Note of the proceedings
6. The suit is received on 20.04.2024. Process was issued on 29.04.2024 and Written Statement was received. Parties were then accorded opportunity for replication, admission / denial of documents and issues. On 23.07.2024, plaintiff moved another NIRJA application U/O 11 Rule 12 CPC for bringing on record the BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 B. K. Traders Vs. New India Assurance Co. Ltd. Page 7 of 33 16:02:22 +0530 additional documents. In absence of any objection, the application was allowed and documents were taken on record.
Issues
7. Issues were framed vide order dated 23.07.2024 as below:-
(1) Whether there is a breach of contract by plaintiff, disentitling the plaintiff of the claim? OPD (2) Whether plaintiff is entitled to the relief of recovery as prayed? OPP (3) Whether any interest is payable if so at what rate? OPP Evidence Gist of Plaintiff's Evidence
8. Plaintiff Sh. Babu Khan, appeared as PW-1 and tendered his examination affidavit. He exhibited the below documents:
(1) Copy of Aadhar Card, Mark A (the document Ex. PW-1/1 is de-exhibited) (2) Copy of RC and permit of the insured vehicle, Ex. PW-1/2 (colly).
(3) Original insurance policy dated 06.07.2020 to 05.07.2021, Ex. PW-1/3.
(4) Copy of FIR dated 14.09.2022 alongwith application under Section 156(3) CrPC, Ex. PW-1/4 (colly). (5) Claim form submitted by the plaintiff with the defendant company, Ex. PW-1/5.
(6) Letter dated 11.02.2022, Ex. PW-1/6. (7) Copy of email trails dated 10.10.2022, 11.10.2022, 12.10.2022, 15.10.2022, 18.10.2022, 29.10.2022, 02.11.2022, 22.11.2022, 12.12.2022, 13.12.2022, 13.01.2023 and 28.03.2023 exchanged between the parties in respect of the claim, Ex. PW-
1/7 (colly) (pages 46 to 66).
(8) Copy of letter dated 13.03.2023, duly acknowledged by defendant, Ex. PW-1/8.
Digitally signed by NIRJA NIRJA BHATIA BHATIA Date:
2025.02.03 16:02:28 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 8 of 33 (9) Email dated 26.05.2023 sent by defendant for repudiating the claim, Ex. PW-1/9.
(10) Email dated 25.09.2023 sent by defendant for repudiating the claim Ex. PW-1/10.
(11) Complaint dated 13.10.2023 made to SHO, PS Preet Vihar, Ex. PW-1/11.
(12) Application for pre-litigation mediation filed before DLSA-
South East alongwith certified copy of Mediation report dated 16.11.2021, Ex. PW-1/12.
(13) Certificate under Section 65-B Indian Evidence Act bearing my signatures at point A on both pages, Ex. PW-1/13. (14) Declaration on Oath under Order 11 Rule 6(3) of Commercial Courts Act, 2015 bearing my signature at point A on each page, Ex. PW-1/14.
9. I shall deal with the gist of the plaintiff's cross- examination at the stage of recording my reasons for decision in order to keep the brevity of judgment.
Defendant's Evidence
10. Ms. Archana Soni, appeared as DW-1. She is Deputy Manager of defendant. She was examined orally as she was not able to state the facts of examination. She claimed that she is well-conversant with the facts of the case and stated that the defendant received the information from plaintiff Babu Khan in respect of alleged theft of vehicle no. HR 55 AD 3604 committed on 01.02.2022. Defendant then appointed Sh. Sonu Bholla, Advocate, Solicitor and investigator to carry out the investigation to file his report on 27.03.2023 and informed that plaintiff did not provide documents as asked. He also informed that the stolen vehicle was found being used after the alleged theft. The inconsistencies in plaintiff's statement to investigator from his NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:02:35 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 9 of 33 complaint u/s 156(3) Cr.P.C. were stated. She also stated that the investigator found that vehicle was used on 31.03.2022 by driver Asif, at Bharat Pur, Rajasthan which was noted through e- ravanna no. YHDN1017519948. Asif was driving the same vehicle even prior to the reported theft. It is claimed that the defendant found deliberate violation of terms and conditions, non-cooperation, suppression of material facts and mis- representation by the insured due to which the claim was repudiated vide email dated 25.05.2023. She tendered the documents below:-
(1) Copy of Investigation report dated 27.03.2023 is Ex.DW1/1 (Colly) ( Total Pages 11) ( Page no. 45 to 56) (OSR) (2) Defendant repudiated the claim of the plaintiff and duly informed him vide letter dated 25.05.2023 is Ex.DW1/2. (OSR).
11. In cross-examination, she admitted that she has no personal knowledge of the present case. While she claimed that the "claims hub" of defendant deals with the claim, she is dealing with the legal matters, and her office is at Karampura. She could not detail the meaning of "suit not being maintainable in the present form", an objection taken in the written statement and asked for clarification. She could not state without seeing the record that information of theft was provided on 01.02.2022, though she affirmed as correct that information of theft was received in time. She could not state about the appointment of DW-3 Sh. Sonu Bhola, surveyor, and claimed that he may have been appointed immediately. She was not aware after how many days report was received from the surveyor, nor was she aware of the guidelines of IRDAI and volunteered that probably it is 30 NIRJA BHATIA Digitally signed by NIRJA B. K. Traders Vs. New India Assurance Co. Ltd. Page 10 of 33 BHATIA Date: 2025.02.03 16:02:42 +0530 days. She was unaware that the report was filed within the period of 30 days. She was unaware as to what are the requisite qualifications of a surveyor and claimed "I think that technical qualification is also needed for the post of surveyor. It is B. Tech or M. Tech" and could not say with confirmity "LLB bhi hote hai".
12. She was unaware that plaintiff had made any complaint against the surveyor for harassment. She stated that there is a check-list as per which the documents such as DL, permit, fitness, air pollution, national permit, RC, updated loan account statement, purchase proof of vehicle, details of financer, copy of FIR, final report issued from Court, original insurance policy, two original keys of the vehicle and (if available) CCTV footage etc., were expected from the plaintiff.
13. She claimed that plaintiff did not submit all the above documents as he did not deposit updated loan account statement. She claimed that the DL, fitness, permit, air pollution, some of the documents were not submitted. The contrary suggestions were denied.
14. She admitted that surveyor did not submit any report from the financer regarding updated loan and volunteered that he only mentioned that he had asked the plaintiff to submit the loan statement which was not submitted. She admitted that original policy is available with her, however, she did not bring the same, at which stage, she glanced through the record and stated that insurance policy is Ex. DW-1/P2.
15. She affirmed that plaintiff had sent the copy of PCR message to defendant and affirmed that he also submitted CCTV NIRJA BHATIA Digitally signed by NIRJA BHATIA B. K. Traders Vs. New India Assurance Co. Ltd. Page 11 of 33 Date: 2025.02.03 16:02:49 +0530 footage of the incident. She admitted that he also deposited one key of the vehicle and informed that second key of the vehicle was with the financer. She admitted that plaintiff informed about the proceedings under Section 156(3) CrPC, but did not remember if any final report was filed by the plaintiff and hence could not admit or deny the suggestion in this regard. At later stage, she admitted that an untrace report is filed, however, denied that vehicle was not seen after the occurrence.
16. DW-2 Sh. Kirpal Singh made oral statement before court on 07.10.2024. He placed his authorization as Ex.DW2/1, aadhar card for proof of identity as Ex.DW2/2, copy of transit pass number YHDM 1017519948 dated 31.03.2022, pertaining to vehicle number HR 55 AD 3604 as Ex.DW2/3, (the mode of exhibition of the documents was objected). He also exhibited the copy of transit pass no. ZLIA101416436 dated 04.08.2021 of vehicle no. HR 55 AD 3604 as Ex.DW2/4 (the mode of proof was objected). He stated that as per the transit pass, name of the driver is Asif and consignor was M/S R.K. Trading Company. He had no personal knowledge of the driver and stated that usually the phone no. of the driver is taken as per the details given by the driver. He admitted that name of the driver and his mobile no. is inserted every time, the transit pass is issued. He had no knowledge about 31.03.2022 and disclosed that personnel of the department are usually not present on the site as transit pass sometimes is issued by the contractor of their company present at the site.
17. He detailed that the transit pass is issued after the vehicle physically is observed and details of the driver are taken and Digitally B. K. Traders Vs. New India Assurance Co. Ltd. Page 12 of 33 signed by NIRJA NIRJA BHATIA BHATIA Date:
2025.02.03 16:02:54 +0530 signed, without the driver or vehicle being present, the transit pass is not issued.
18. At which stage, examination in chief was deferred. He was recalled on 10.01.2025 wherein he informed that he is from mines and geology department. He was shown the authority letter Ex. DW-2/1. He admitted that it was issued by Sh. Rajesh Hadda, Mining Engineer, however, he was not aware whether any document is filed to show any authority in favour of Sh. Rajesh Hadda to show his competence for issuing such authority in witnesse's favour. He denied the suggestion that he was not competent to depose on behalf of department of mining and geology. He admitted that the document Ex.DW2/3 and Ex.DW2/4 are electronic records. He admitted that no certificate of such nature as 65 B, Indian Evidence Act is filed on record. He claimed to have taken the print out of document Ex.DW2/3 and Ex.DW2/4 himself, however, he was not present when the pass was issued. He admitted that the pass is mandated after a vehicle is loaded at the mine. He was unaware as what documents are obtained at that time, as he stated that they are taken by the authorized officials of the lease holder / crushers as the passes are issued by them. He stated that department officials will not issue the pass which is issued through the portal of the department. The department does not collect any document from the vehicle which are taken by the crusher / lease holders. He stated that no separate verification at each visit of vehicle entering the site is taken by the department, however, the details of vehicle along with set of requisite documents are verified at the time of registration of vehicle which is entered at each visit. He admitted NIRJA BHATIAB. K. Traders Vs. New India Assurance Co. Ltd. Page 13 of 33 Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:03:01 +0530 that no registration was done by the department which is done by the lease holders on the portal of department. He could not say that there is no record available with the department regarding the registration of the vehicle and volunteered that it is checked by the lease holders. He admitted that registration number of the vehicle is not mentioned upon the photo document Ex.DW2/3 and denied the suggestion that Ex.DW2/3 and Ex.DW2/4 are fabricated documents.
19. DW-3 Sh. Sonu Bhola, investigator filed his affidavit and already exhibited his investigation report as Ex. DW-1/1. The contents of his cross-examination only are observed below (to avoid the verbosing in judgment as the contents of his examination are repeated by DW-1 and are also part of discussions).
20. As observed above, in support of the above statement, DW-3 Sh. Sonu Bhola during his cross-examination stated that while the investigation was assigned to him on 04.02.2022, he contacted the plaintiff/ Sh. Babu Khan, proprietor of B. K. Traders and after visiting the spot made inquiries. He made him over the list of requisite documents and gave him time to submit in seven days. The documents were not received, whereafter he sent him reminders which were returned with remarks "no such person". The report was exhibited as Ex. DW-1/1.
21. He admitted that it took defendant 16 months to submit the report, however, he attributed the blame on plaintiff for causing the delay. He could not reveal the exact place of occurrence and stated that it was Raipur Truck Market and claimed that he was taken by the plaintiff to the spot. He NIRJA BHATIA B. K. Traders Vs. New India Assurance Co. Ltd. Page 14 of 33 Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:03:07 +0530 admitted that place of occurrence would fall under the jurisdiction of Sector 126, Noida, however, he could not recollect that it was also known as "Truck market of Sector-126 Noida". He was unaware that Raipur Market and this market are one and the same. He visited the shop of Wasim Mechanic, which was near to the spot. He took photographs on the pointing of insured. He asked Wasim mechanic to give his statement, which he refused. He admitted that the fact of refusal was not noted. On being asked to show the photographs of the spot, he could not produce the same and claimed that they are not on file. He claimed that he had asked other shop keepers to give the statement, but they refused. He admitted that their refusal is not noted in writing.
22. It was denied that plaintiff did not provide the CCTV footage. He had also asked the person incharge of CCTV to provide him the footage in presence of Babu Khan, which he refused and told him that it shall only be provided to plaintiff. He made a request to police officials to provide CCTV and asked them to "corroborate". He admitted that he did not give anything in writing to police officials and claimed that till then FIR was not lodged. He denied that the plaintiff handed him over call information to PCR at which stage, he was shown page 53 of Ex. PW-1/7 wherein it was written in email that "you have attached copy of PCR call message received on your mobile against the call made to PCR at points X to X-1".
NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:03:12 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 15 of 33 However, he claimed that it was a request for asking PCR report from complainant and it does not suggest that the same was provided.
23. He admitted that he did not give any information to police about the vehicle having been seen on 31.03.2022 at Bharatpur, Rajasthan and he only gave this information to defendant in his investigation report. He was shown photograph at page 42 of Ex. DW-1/1 to which he replied that he cannot read that the vehicle is shown as Ashok Leyland make, though he volunteered that the registration number is clearly visible and readable. Contrary suggestions were denied. He claimed that the photograph is available on internet and it is incorrect that he has not provided the source of information of collecting the photograph. He then stated that the photograph was collected during investigation at the instance of e-Ravanna, Mines and Geology Department, Bharatpur, Rajasthan, where he was informed about the availability of the photograph. He did not file any certificate under Section 65-B of Indian Evidence Act, at which stage, he was asked to clarify about the statement as at one stage, he has stated that he downloaded the photograph whereas at the other, it was claimed that the document was downloaded by the official of E-Ravanna department, at which stage, he confirmed that the photograph was downloaded by the official of E-Ravanna department. After the above cross-examination, his further examination was deferred.
24. He was recalled on 25.11.2024 wherein he claimed that he received only one ignition key of the vehicle as the second key was duplicate. He denied that he was informed that second Digitally signed by NIRJA NIRJA BHATIA B. K. Traders Vs. New India Assurance Co. Ltd. Page 16 of 33 BHATIA Date:
2025.02.03 16:03:19 +0530 ignition key was with finance company. He admitted that he did not visit the financer and claimed that the plaintiff did not take him to the financer despite his request, while he had no address of the financer with him. He was not aware as who was the financer. The suggestion that he demanded unnecessary documents was denied. It was denied that he had received all requisite documents.
Discussions and Findings
25. The discussions on the reasons for decision are below.
26. Before the discussion on the entitlement of plaintiff to seek the relief of recovery are made, issue No. 1 framed upon the contentions of the defendant regarding disentitlement of plaintiff to claim and alleged breach of contract is adverted to.
Issue no. 1
27. As suggested vide email dated 25.09.2023, the defendant repudiated the claim of plaintiff. For doing so, it majorly relied upon the report Ex. DW-1/1 of DW-3 Sh. Sonu Bhola, Advocate/ Investigator. His report was made part of pleadings and reproduced in contents of written statement. He then has appeared as witness and deposed in favour of defendant and confirmed its contents. However, the perusal of pleadings i.e. defendant's written statement and affidavits filed by DW-1 and DW-3, it is observed that the defendant could clearly point out any breach, specifically in terms of policy conditions which could lead to repudiation of claim.
NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:03:26 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 17 of 33
28. The report of surveyor Ex. DW-1/1 collectively exhibited, and which is running into 11 pages also does not point out to any specific policy term, the breach of which is alleged.
29. It is intriguing that the statement of DW-3 Sh. Sonu Bhola regarding the alleged deficiencies attributed to plaintiff, have been countered by DW-1 Archana Soni.
30. Rather, Ms. Soni, in her cross-examination clearly contrasted the assertion of DW-3 who blamed plaintiff for not providing required documents. She admitted that the plaintiff had submitted one original key of the vehicle and had informed that the second key was with the financer. He also had informed the defendant/insurance company about the pendency of proceedings under Section 156(3) CrPC and had submitted an untrace report. The plaintiff also provided the copy of message to PCR at 112 to the company which all were alleged missing by the surveyor in his report.
31. While DW-1 claimed that plaintiff did not provide the DL, fitness, permit, air pollution, national permit etc., no such statement was made by DW-3 who stressed on above besides lack of keys, record etc and submission of duplicate key as a ground in his report.
32. The discrepancy of statement is visible again as she though asserted that the time for processing of the claim is about 30 days, nothing is offered on record to observe that the defendant frowned upon the delay upon its surveyor in submitting the report delayed by 16 months as admitted by DW-
3. It is noted that plaintiff called out the delay and claimed it as his harassment against which he filed a complaint with PS Preet NIRJA BHATIA Digitally signed by NIRJA BHATIA B. K. Traders Vs. New India Assurance Co. Ltd. Page 18 of 33 Date: 2025.02.03 16:03:32 +0530 Vihar and exhibited the same as Ex. PW-1/11. Though, the defendant blamed plaintiff for delay, no substance in above statement could be shown as DW-1 herself admitted that most part of the asked documents, CCTV footage, call to PCR, untrace report and one original key as stated by plaintiff were provided by him. In which case, the relevance of rest of the material asked by DW-3 such as Kanta Parchis, repair bills, call records of mobile No. 9810582768 and 9355374241 etc., is not shown. In which context, the two assertions that the vehicle was involved in traffic violations and was blacklisted by ARTO, Haridwar, Uttrakhand and was fined by the RTO, Rajasthan for an amount of Rs. 3,03,000/- in the month of June 2022, could not be grounds to deny that during relevant period when the theft was reported, the vehicle was not taken away from the possession of plaintiff as the ARTO report itself clearly stated that they had not impounded the vehicle before the fine was finally assessed in the month of June. Similarly, the assertion that while the plaintiff claimed the vehicle was put to hire in the month of June 2022, which was being challaned and observed plying on 03.11.2021 at Haridwar, would also not be the grounds relevant for the purpose of observing otherwise.
33. The defendant has not even clearly stated in report Ex. DW-1/1 that the claim is rejected for the purposes of violation of policy conditions, nor has cited specifically any incident of breach of policy terms and/ or has asked the plaintiff by any explanation against the above. Though the plaintiff admitted in cross-examination as below:
NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:03:38 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 19 of 33 "I have three vehicles/trucks. I have six drivers. I cannot tell the names of the drivers..I have no driver by the name Sh. Asif nor any such named driver was with at the time of occurrence. It is correct that my vehicle involved in theft was black-listed at Rajasthan."
34. Apparently the defendant's witnesses themselves were not in synchrony. Their statements reflected that there is apparent gap in the causes detailed by the Manager (DW-1 Archana Soni) for rejection of the claim and investigator DW-3 Sh. Sonu Bhola in his report. Apparently, DW-1 did not even look into the contents of the written statement and report Ex. DW-1/1 before she made the statement, and vice-versa, seemed true qua the statement of DW-3. In background of which the statement of neither of the witness reflects any premise of reliability being offered.
35. In the present proceedings, while Ms. Archana Soni (DW-
1) has been brought as a witness, apart from her being asked to depose on behalf of defendant, there is very little which could give substance to her statement. It is noted that she was not Power of Attorney while the parties were engaged. She has been appointed subsequently only for presenting the case. The sanctity of her statement is viewed further in light of observations in Manisha Mahendra Gala (supra) as below:-
"He was not having any authority to act as a power of attorney of the appellants at the time his statement was recorded - He was granted power of attorney subsequent as accepted by the parties - Therefore, his evidence was completely meaningless to establish that appellants have Digitally signed by NIRJA acquired or perfected any easementary right over NIRJA BHATIA BHATIA Date:
2025.02.03 16:03:44 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 20 of 33 the disputed raste in 1994 when the suit was instituted."
36. It is observed that DW-1 affirmed that she never was personally involved with the case and had no direct knowledge. The file was received by her in a different department as she is part of legal department whereas the plaintiff's claim is handled by "Claim Hub" at Karampura by officials namely Sh. Anurag Kumar, Sh. Laxman Singh, Sh. Hukum Chand and Sh. Sanjay Uppal. While it is detailed that Sh. Anurag Kumar and Sh. Laxman Singh are not available with the defendant, defendant also did not bring Sh. Hukum Chand and Sh. Sanjay Uppal who were part and parcel of the "Claim Hub" and had directly dealt in in plaintiff's matter before sending the email repudiating the claim. Further, the several e-mail interactions relied upon by the parties and exhibited as Ex. PW-1/7, repeatedly show that plaintiff had been taking the names of officials of the defendant to whom he personally visited in course of his efforts to see his claim being processed. He also complained about the conduct of the investigator and reported no cooperation from his side.
37. The aforementioned is not sufficient to construe that such fine would constitute breach of contract between the plaintiff and insurance company, unless the defendant proactively has made the plaintiff known of such traffic violations could potently lead to termination of contract of insurance by breach. There is no single show cause directed during the entire tenure of policy. The defendant cannot hold liability of breach upon plaintiff post it is informed of the loss of corpus. The conduct of the defendant is NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:03:50 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 21 of 33 visible from the fact that defendant has not even placed reliance on the insurance policy, the breach of which is being claimed. The plaintiff, in turn, has relied upon the insurance policy with which DW-1 was confronted as Ex. DW-1/P-1. At no stage, defendant even pointed out any term the violation of which was alleged and the plaintiff would have failed to make any response which might have led the insurance company to such rejection. In which background, the repudiation of claim on the aforementioned ground is not substantiated nor is shown relevant.
38. The above observations now leads to the discussions on claim of defendant that the plaintiff was found fraudulently, mischievously and with ulterior motive using the registration No. HR-55AD-3604 on two different make of vehicles i.e. truck make Ashok Leyland and Tata at the same time with intention to benefit itself by making a false report.
39. However, the defendant fell way short in proving the above allegation. At this stage, I am reminded of mandate under Sections 102 and 103 Evidence Act, which are excerpted for reference below:
"102. On whom burden of proof lies.-- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.-- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular Digitally signed by NIRJA person."
NIRJA BHATIA BHATIA Date:
2025.02.03 16:04:00 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 22 of 33
40. The interpretation of above provisions have come under the observations in numerous judgments. In Madras Cements (supra), the Hon'ble Madras High Court took note of law as below:
"21.
......................................................... As rightly argued by the learned counsel for the respondents/defendants, the initial burden lies only on the plaintiff to prove the claim by leading sufficient and cogent evidence, if there exists any. Till contrary is proved, onus then shifts on the defendant to rebut the presumption. The plaintiff cannot gain advantage on the mistakes done by the defendants and he has to prove his case by producing the relevant materials. It is a settled law that the plaintiff has to stand on his case and he cannot abandon his case and to rely upon the weakness of the defendant to succeed his case. The said principle has been laid down by the Honourable Apex Court in the judgment reported in 1993 Supp (2) Supreme court Cases 560 ( Sri Chand v. Inder).
22. The same principle is also upheld by the Honourable Apex Court in the judgment reported in (1998) 4 S.C.C. 539 (Punjab Urban Planning & Development Authority v. Shiv Saraswati Iron & Steel Re-rolling Mills). The relevant paragraph would run as follows:
"10. ..... The plaintiff/appellant must succeed or fail on his own case and cannot take advantage of weakness in the NIRJA BHATIA defendant/ respondent's case to get a Digitally signed by NIRJA BHATIA decree.""Date: 2025.02.03 16:04:08 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 23 of 33
41. Moreover, in Rangammal Vs. Kuppuswami and anr, (2011) 12 SCC 220, the following observation is made:
"C. Evidence Act, 1872 S. 101 Burden of proof genuineness of a document burden lies on the party who relies on validity of a document to prove its genuineness only then onus will shift on the opposite party to dislodge such proof and establish that the document is sham or bogus fraud/ forgery/ malafides Civil Procedure Code 1908 Or. 6. R. 4 Transfer of Property Act 1882, Ss. 7 and 8."
42. The burden was upon the defendant to prove that plaintiff retained the possession of the truck and fraudulently, mischievously filed a false claim of insurance by alleging theft. In order to substantiate the above, defendant brought DW-2 Sh. Kirpal Singh, an official from Mining Department, Bharatpur, Rajasthan. However, in his cross-examination, the witness admitted that Ex. DW-2/3 and Ex. DW-2/4 are electronic record and affirmed that no separate affidavit to satisfy the requisites laid under earlier Section 65-B Indian Evidence Act is filed or now amended Section 63 BNS. He claimed to have taken the printout from internet, however, affirmed that the record pertaining to the vehicle is not maintained at the end of department of Mines and Geology. He affirmed that a pass is mandated after a vehicle is allowed at the mine but could not state what documents are obtained at that stage and volunteered that they are taken by authorized officials of lease holder/ crushers, as in their favour the licences for mining are issued and they are authorized to issue the pass. The mining department Digitally signed by does not issue the passes, nor takes any documents from the NIRJA NIRJA BHATIA BHATIA Date:
2025.02.03 16:04:14 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 24 of 33 vehicle. The registration of the vehicle is done at the stage when it enters the site, at which stage, the verification of the document is done by the lease holder. He admitted that the vehicle registration is not done by Mining department. He could not show if there is any record which is available with the department regarding the registration and volunteered that documents are checked by the lease holders. He affirmed that Ex. DW-2/3 shows the vehicle make Ashok Leyland and registration number is not mentioned on the photo document Ex. DW-2/3.
43. The relevance of above testimony is not reflected by the defendant. It is not shown for what purpose this witness was summoned as the department from which the witness was sought, does not keep any record pertaining to entry/exit of vehicle nor it is authorized to issue registration/ entry pass. The documents of the vehicle are neither kept with the department of DW-2 nor are verified by them, which as per his statement is the job of the licence holder i.e. the crushers in whose favour the mining licence is issued. In which background, the appropriate witness would have been from the site or office which issued such entry/exit pass against the vehicle which is claimed plying and its ownership is attributed to plaintiff on 31.03.2022.
44. Further, while DW-2 affirmed that document Ex. DW-2/3 is showing make Ashok Leyland and DW-1 affirmed that the complaint was pertaining to loss of vehicle bearing registration No. HR-55AD-3604 make Tata, it would have been useful had the investigator of defendant i.e. DW-3 Sh. Sonu Bhola would have made more efforts to substantiate the attribution of both the NIRJA trucks to plaintiff while alleging manipulation of number plates BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:04:20 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 25 of 33 on the above. There is no proof that the plaintiff was using one number plate on trucks make Ashok Leyland and Tata and/ or transported the number plate of truck make Tata while retaining the truck make Ashok Leyland, as the truck make Ashok Leyland is not shown connected to plaintiff anywhere at the end.
45. In view of above, the issue No. 1 is decided against the defendant in preponderance.
46. Further, the status of DW-1 as a witness competent to have deposed is also to be doubted in view of law laid down in Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd. and ors., AIR 2005 SC 439 and again in Manisha Mahendra Gala and ors. Vs. Shalini Bhagwan Avatramani & Ors., Civil Appl. No. 9642 of 2010, DOD 10.04.2024 and Madras Cements Limited Vs. T. M. T. Kannammal Educational Trust, S. A. No. 163 of 2008, Hon'ble Madras High Court DOD 27.11.2014, wherein it is clearly held that only a person having direct engagement with the facts would be capable to corroborate the same. The excerpt of the relevant observation is below:-
"Power of attorney holder can only depose about the facts within his personal knowledge and not those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts which may have transpired before he entered the scene"Issue No. 2
47. Now, the above discussion brings in the realm of the issue of plaintiff's entitlement to relief.
Digitally signed by NIRJA NIRJA BHATIA BHATIA Date:
2025.02.03 16:04:27 B. K. Traders Vs. New India Assurance Co. Ltd. Page 26 of 33 +0530
48. The plaintiff, in order to substantiate his plea, examined himself as PW-1. During the course of his examination his affidavit is filed which is verbatim reproduction of the plaint. Plaintiff claimed that his vehicle bearing No. HR-55AD-3604, owned against Ex. PW-1/2 collectively i.e. R.C. and permit was found missing on the morning of 01.02.2022 after it was parked at night on 31.01.2022. The plaintiff then claimed that the said fact was informed to the insurance company immediately from whom policy Ex. PW-1/3 was drawn. He also made a PCR call and as his FIR was not lodged, the complaint was made under Section 156(3) CrPC, whereafter on the direction of Ld. CJM, the FIR was lodged as part of Ex. PW-1/4 (colly).
49. The order dated 14.09.2022, of the Ld. CJM is placed and relied upon as Ex. PW-1/4(colly) is excerpted as below:
"It would be a pertinent to mention here that according to the report, revisionist is owner of truck bearing No. HR-55AD-3604. It is neither denied in the police report nor taken by the Court; It is found in the police report that the vehicle has been taken on loan from Shree Ram Finance Company, Delhi; It is also on record that concerned vehicle is not in possession of revisionist and according to revisionist, it has been stolen. Even the finance company has no right to recover the vehicle without necessary and mandatory notices. In such circumstances the order of learned Court below is found erroneous and against the basic persist of law. Therefore, the order is liable to be set-aside. The Revision Petition is allowed."
NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:04:34 +0530 B. K. Traders Vs. New India Assurance Co. Ltd. Page 27 of 33
50. Plaintiff who claims the copy of FIR No. 1060/2022 of PS Noida, order dated 14.09.2022 of Ld. CJM with application under Section 156(3) CrPC and exhibits them as Ex. PW-1/4, neither filed nor exhibited the untrace report, on the basis of which, the recovery is claimed as apparently the order dated 14.09.2022 is not towards accepting any untrace report, rather, the order is towards accepting the revision through which plaintiff appears to have challenged the order of rejection of Ld. MM, which then is set-aside. In absence of above, the entitlement of the plaintiff's claim is doubted.
51. Moreover, it is necessary to note that the plaintiff's claim that he was informed about the theft by his driver Sh. Salauddin is also not proved, since the plaintiff did not bring Sh. Salauddin to depose in his favour. Sh. Salauddin could have disclosed the facts and could have supported the plaintiff's statement since admittedly the PCR call by plaintiff was also made after learning about the missing of the truck from him. For the reason of withholding the best evidence under his control, plaintiff is liable to face contrary and adverse assumptions.
52. As a reference, at this stage, it is also taken note that an untrace report though is not an untrace report of vehicle and is tendered in connection with the accused having not been traced and their whereabouts being not searched or found. In which parlance, an untrace report is not a proof of content of theft and in order to establish the factum of theft, the plaintiff must have taken recourse by making efforts to prove this allegation. In which background, the plaintiff's avoidance to bring, driver NIRJA Salauddin, mechanic Wasim and/ or other witness, who could BHATIA B. K. Traders Vs. New India Assurance Co. Ltd. Page 28 of 33 Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:04:40 +0530 have corroborated the contents of his assertions is a major lacuna. Moreover, while the plaintiff repeatedly claimed to have given the CCTV footage of the place of occurrence of intervening night, he did not bring any such footage nor made it an exhibit or relied upon the same to establish the truth or substance in the allegation of theft, which all evidence was within his domain.
53. Moreover, the statement of plaintiff, at this stage, through cross-examination is probed as in cross-examination while the plaintiff claimed that the information of theft was made over to defendant immediately, the statement was changed and the same is reproduced as "I had informed the insurance company theft immediately at 10 PM. Again said, I had informed the next day as the vehicle was stolen in the night of 31.01.2022".
54. He then claimed that the written complaint given to the investigator was not his record of the events but was dictated by the investigator as he states that "it was dictated by the investigator and I had only reproduced the dictation in writing". Which he reasserted saying"unhone likhwaye the", while he admitted that he had mentioned the numbers of all his vehicles. He even denied the contents of the statement/ complaint and stated "it is incorrect that I had written the statement/ complaint as per my own whims. Volunteered: it was purely on the dictation of the investigator and I wrote what they told me to write ", which shows reluctance to even own or take responsibility of his complaint qua which no reason is revealed.
55. Plaintiff when inquired about the drivers, claimed that he has six drivers, though he could not take the name of even a single driver and stated "I cannot tell the names of the drivers. Digitally signed by NIRJA NIRJA BHATIA BHATIA Date:
B. K. Traders Vs. New India Assurance Co. Ltd. 2025.02.03 16:04:46 Page 29 of 33 +0530 Volunteered: drivers chalte rehte hai". While he denied that he has no driver by the name 'Asif' and no such driver by such name was with him at the time of occurrence, he did not produce any record of employment of his drivers where record of attendance and/ or salary etc., is kept. Moreover, no log book of the vehicle to show who was handed over the responsibility of the truck which allegedly was taken away from him is also brought to substantiate the statements.
56. At this stage, it is pertinent to take note that it does not appear probable, that an employer would not have known the names of his own employees and/ or would not be able to detail even their names. Admittedly, plaintiff was owning three trucks at the time of occurrence. As per his own statement, each truck would probably be having only two drivers, if at the relevant time he had six drivers. While managing the work as operator and employer, it is improbable that he would not be able to retain in his memory, the names of the driver to whom the trucks are handed over.
57. Another pertinent fact is that, plaintiff admitted that vehicle was being used by Mining and Geology Department of Rajasthan and volunteered that it was one and a half years prior to the occurrence. He admitted that on 04.08.2021, his vehicle was plying for the purposes of Mining and Geology Department, Rajasthan. However, he denied that it was driven by Asif. He further denied that for each visit, transit pass was issued by the department and claimed that since his vehicle is under national permit, and plies everyday for 50-60 kms, besides national permit, no other pass is required. However, plaintiff did not bring NIRJA BHATIA Digitally signed B. K. Traders Vs. New India Assurance Co. Ltd. Page 30 of 33 by NIRJA BHATIA Date: 2025.02.03 16:04:52 +0530 any notification to prove this part of his statement which was contrasted and controverted by the statement of DW-2 Sh. Kirpal Singh who specifically stated that for each visit at Mining site, the crushers or the licence holders issue a site pass, at which stage the verification of the vehicle etc., is done by them.
58. At this stage, demenour of plaintiff is also noted wherein he stated below:
"It is correct that my vehicle in question is having registration No. HR-55AD-3604. We were used to load the truck from crusher and release the load. Again said, I cannot say in whose favour the release of load was made."
59. At which stage, taking note of the above statement the following question was asked:
"Ques: Can you state how on 04.08.2021, your vehicle was plying at Rajasthan when in your earlier examination you have stated that it was contracted out at rent at Bijnor-Najimabad for one and a half year and was handed over to you on 16.01.2022?"
60. In reply to which the plaintiff made an evasive answer by stating:
"Ans: It was not on rent for one and a half year."
61. At which stage, he was asked the following question:
"Court Question: Can you state from which date to which date it was contracted out?"
62. To above again, an evasive answer was made by stating below:
"Ans: I do not remember the dates correctly, however, it was contracted out for six months".
63. At which stage, he was asked again:
NIRJA BHATIA Digitally signed B. K. Traders Vs. New India Assurance Co. Ltd. Page 31 of 33 by NIRJA BHATIA Date: 2025.02.03 16:04:59 +0530 "Court Question: Can your state the mode of contracting out of vehicle on record and the mode of receipt of payment?"
64. To which the reply was below:
"Ans: There was no written document for vehicle being contracted out. I was paid Rs. 2800 per trip cash-in-hand".
65. From the aforementioned answers, it is clear that the plaintiff has been intending to engage in conduct of avoidance. Moreover, the above demeanour is further continued when he answered "I do not know that my vehicle was plying after the date of my reporting theft with the Government of Rajasthan under the department of Mining and Geology on 31.01.2022", which facts is argued by his counsel forcefully denying his vehicle being used after theft on the premise that a vehicle of different make i.e. Ashok Leyland was observed plying in which case plaintiff was expected to make a correct narration of above in place of showing avoidance to answer.
66. Further, though Ld. Sh. Manoj Kumar, vehemently argued in favour of the plaintiff and claimed that defendant has not been able to establish its case and release the burden of allegations levelled against the plaintiff, he omitted to observe the mandate of provision of Sections 101, 102 & 103 of Indian Evidence Act. The failure of defendant to unburden itself of the requisite proof would not automatically prove the claim of plaintiff. The rigors of law are to apply equally to both sides and plaintiff has to stand on his own legs to prove his case. In view thereof, as the plaintiff has not discharged the burden, even in preponderance, the plaintiff has not satisfied the requisite of proof for entitlement. The issue No. 2 and 3 hence, are decided against the plaintiff. NIRJA BHATIA Digitally signed B. K. Traders Vs. New India Assurance Co. Ltd. Page 32 of 33 by NIRJA BHATIA Date: 2025.02.03 16:05:06 +0530 Conclusion
67. The suit of plaintiff is dismissed with no orders to cost.
68. File be consigned to Record Room after completion of necessary formalities. NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2025.02.03 16:05:12 +0530 Announced in open Court (Nirja Bhatia) today on 3rd February, 2025 District Judge (Comm. Court) (Digital-07) South-East, Saket Court, New Delhi B. K. Traders Vs. New India Assurance Co. Ltd. Page 33 of 33