Delhi District Court
Guneet Kaur vs Sbi General Insurance Company Ltd on 18 February, 2022
IN THE COURT OF HEM RAJ
ADJ-08 : CENTRAL : ROOM No. 152 : THC : DELHI.
Suit No. 289/2014 (New No. 613920/2016)
Unique ID No.: DLCT01-001193-2013
In the matter of:
Guneet Kaur,
D/o Shri Mohinder Pal Singh,
R/o AG-47, Sanjay Gandhi Transport Nagar,
Delhi-110052. ..............Plaintiff
Versus
SBI General Insurance Company Ltd.
7-B, Ground Floor, Rajendra Park,
Pusa Road, Opposite Metro Pillar 153,
New Delhi-110060. .............Defendant
Date of institution : 01.10.2013.
Date of Reserving judgment : 16.12.2021.
Date of pronouncement : 18.02.2022.
of Judgment
For Plaintiff : Sh. Daljeet Singh
For Defendant : Sh. Aman Shankar
Suit No. 289/2014 (New No. 613920/2016) Page No. 1 of 10
JUDGMENT
1. The plaintiff has filed this suit for recovery of Rs.10 Lakhs along with cost of the suit and pendente lite as well as future interest @18% per annum against the defendant.
The case of the plaintiff
2. Brief facts of the case of the plaintiff as culled out from the plaint are that plaintiff got his truck bearing no. GJ-01-BV-1710 make Tata insured for a sum of Rs.10 Lakhs by paying a premium thereof for a sum of Rs.22,115/- for the period from 17.12.2012 till the midnight of 16.12.2013. Unfortunately, the said truck, on 19.07.2013, met with an accident at Gujarat wherein it suffered extensive damages. The plaintiff further stated that it complied with all the formalities for his insurance claim but the claim of the plaintiff was not satisfied and later on the defendant avoided the communication with the plaintiff. The plaintiff further stated that as per the estimate of repairs of the damaged truck, which was got done by the plaintiff on its own, the total estimate for repairing was Rs.22 Lakhs and the Insured Declared Value (IDV) of the truck was Rs.10 Lakhs so the repairing cost of the truck made a case of total loss which was recoverable from plaintiff. The e-mail dated 16.09.2013 of the plaintiff to the defendant was not replied by the defendant. Hence, the present suit.
The case of the defendant
3. The defendant filed the written statement. The defendant took the preliminary objection that the suit of the plaintiff is pre-mature as the claim of the plaintiff has not been repudiated till date. Further that the Suit No. 289/2014 (New No. 613920/2016) Page No. 2 of 10 defendant has got the vehicle inspected through surveyor namely Sh. Manoj Puri to assess the loss, which gave report that maximum tentative liability to repair the truck was to the tune of Rs.5,18,500/- which was well within 75% of IDV. It is further stated that the same was only a preliminary report and a final repair liability could only be confirmed after re-inspection of the vehicle after completion of repair work. It is further stated that the plaintiff did not provide the relevant documents which were asked from him by the defendant vide letter dated 08.10.2013. It is further stated that plaintiff neither shifted the vehicle to the premises of the repairer nor carried out the repairs to the damaged vehicle on its own.
4. In the reply on merits it is denied that the defendant had deliberately delayed the claim of the plaintiff. It is also denied that aggregate cost of repairing of the truck was Rs.22 Lakhs and the same was a total loss, out of which a sum of Rs.10 Lakhs is legally recoverable from the defendant. It is further stated that it is rather the plaintiff who did not get the repairs done in view of the survey report and failed to provide assistance/necessary documents.
5. The plaintiff filed the replication reaffirming the averments made in the plaint and refuting the averments in the written statement.
Issues:-
6. On the completion of the pleadings of the parties the following issues were framed:-
(i) Whether the suit of the plaintiff is not maintainable being pre-mature? OPP Suit No. 289/2014 (New No. 613920/2016) Page No. 3 of 10
(ii) Whether the plaintiff is entitled for a decree of Rs.10 Lakhs, as prayed? OPP
(iii) Relief.
Evidence of the parties
7. In order to prove its case the plaintiff examined two witnesses. PW-1 Sh.Tejinder Singh proved the following documents:-
(i) Ex. PW-1/A is SPA
(ii) Ex.PW-1/B is Insurance Policy (Mark A)
(iii) Ex.PW-1/C is Estimate dated 29.07.2013 (Mark B)
(iv) Ex.PW-1/D is Estimate dated 29.07.2013 (Mark C)
(v) Ex.PW-1/E is email dated 16.09.2013
(vi) Ex. PW-1/F is Notice dated 17.07.2014 u/s 66 Indian Evidence Act.
(vii) Ex.PW-1/G is Postal Receipt dated 17.07.2014.
(viii) Ex.PW-1/H is Quotation dated 15.01.2015
(ix) Ex.PW-1/I is Motor Survey Report dated 13.08.2016 PW-2 Raman Kumar who proved report Ex.PW-2/A. Thereafter, plaintiff's evidence was closed.
8. In order to prove its case the defendant examined two witnesses. DW-1 is Sh. Jitendra Dhabhai. He proved documents Ex.DW- 1/1 and Ex.DW-1/2 and also tendered copy of SPA dated 12.10.2017 as Ex.DW-1/3.
DW-2 is Sh. Manoj Puri who proved on record the original survey report alongwith photographs as Ex.DW-2/1, letter dated 08.10.2013 Ex.DW-2/2 and repeated reminders through emails dated 06.08.2013, Suit No. 289/2014 (New No. 613920/2016) Page No. 4 of 10 23.08.2013 and 24.09.2013 as Ex.DW-2/3. Thereafter, defendant's evidence was closed.
9. Ld. Counsel for the plaintiff argued that the defendant is in the breach of the contract between plaintiff and the defendant and, therefore, the defendant is under the obligation to indemnify the plaintiff for the losses covered under the insurance policy issued by the defendant. He further argued that as per regulation 13 (3) of IRDA Notification dated 13.03.2013 the surveyor appointed by the defendant was bound to submit a report within 30 days from his appointment. However, in the present case, the surveyor DW2 Manoj Puri did not give his report within 30 days and there was a delay of 87 days, therefore, the defendant is bound to indemnify the plaintiff. He further argued that the plaintiff has supplied all the documents required by the surveyor. He further argued that the vehicle of the plaintiff became a constructive total loss (CTL) and, therefore, the plaintiff was entitled for the total sum of Rs.10 Lakhs, the sum covered under the policy. He further argued that the surveyor DW2 Manoj Puri did not carry out the survey correctly and, therefore, has given a report based on incorrect facts. Lastly, he submitted that plaintiff is entitled to a decree for a sum of Rs.10 Lakhs alongwith the interest.
10. On the other hand, Ld. Counsel for the defendant has argued that the plaintiff has no cause of action and the suit of the plaintiff is a pre- mature suit. He further argued that plaintiff did not provide the documents as sought by the surveyor. The plaintiff has also not moved the vehicle to the authorized workshop of the defendant nor he carried out the repairs on his own. He argued that the plaintiff has not proved the documents on record showing the total loss for more than Rs.10 Lakhs. He further argued Suit No. 289/2014 (New No. 613920/2016) Page No. 5 of 10 that the report of the surveyor had never been challenged by the plaintiff before the Insurance Ombudsman or any other authority. Lastly, he argued that since no money was incurred by the plaintiff on the repair of the vehicle, therefore, in terms of the insurance policy, the plaintiff is not entitled to any reimbursement.
11. I have heard the arguments and have gone through the material on record carefully.
12. My issue-wise findings are as follows:-
ISSUE No. 1.
(1) Whether the suit of the plaintiff is not maintainable being pre-
matured? OPP The onus to prove this issue was on the plaintiff. In other words, it is to be decided whether the plaintiff had any cause of action to file the present suit or not. The Ld. Counsel for the plaintiff has argued that the plaintiff had complied with all the formalities but the defendant had not approved the claim of the plaintiff. On the other hand, the defendant has submitted that since the plaintiff neither removed the vehicle for repair nor got the same repaired on its own, therefore, the suit of the plaintiff is not maintainable being pre-mature. It is not disputed that that the vehicle (truck) of the plaintiff was covered under the insurance policy for a total sum of Rs. 10 Lakhs issued by the defendant. It is also not in dispute that the said vehicle met with an accident on 19.07.2013 at Gujarat. The plaintiff has come up with a case that despite complying with all the formalities as required by the defendant, the defendant did not agree with the claim of the Suit No. 289/2014 (New No. 613920/2016) Page No. 6 of 10 plaintiff that the loss of the vehicle was CTL and, thus did not allow the claim of the plaintiff. It is further the case of the plaintiff that the plaintiff's vehicle was a case of CTL in terms of the insurance policy, therefore, the report of the surveyor giving the tentative estimate of the repair of the vehicle to the tune of Rs.5,18,500/- was not correct.
13. The moot question which arises for consideration is whether the plaintiff can seek recovery of Rs.10 Lakhs which is the sum insured under the policy without any repairs of the vehicle or not. It is admitted case of the plaintiff that the plaintiff has not carried out any repairs of the accidental vehicle either at the authorized workshop of the company or on its own. Rather, the plaintiff has claimed that since it is a case of CTL, therefore, the amount of Rs.5,18,500/- towards the tentative estimate of the repairs of the vehicle as provided by the surveyor was not correct. Both the parties are governed by the terms and conditions of the insurance policy Ex.DW1/1. Admittedly, the vehicle has not been repaired, either by the defendant or by the plaintiff. No amount has been spent by the plaintiff towards the repairs of the vehicle. In my considered opinion, the liability of the defendant was to reimburse the repairs cost which was actually incurred as per the terms and conditions of the policy. The plaintiff could only recover the sum which he incurred on the repair of the vehicle. The vehicle could have been repaired at any authorized workshop of the defendant or could have been repaired by the plaintiff at any authorized workshop. Thereafter, the claim of the plaintiff was to be settled in accordance with the terms and conditions of the insurance policy. The defendant is under the obligation to indemnify the defendant to the actual cost of the repairs or in case of vehicle not being repairable, then to indemnify the loss maximum to the sum covered under the insurance policy.
Suit No. 289/2014 (New No. 613920/2016) Page No. 7 of 10
14. The liability of the defendant was confined to the repairs cost of the vehicle if the vehicle was not CLT and that too in accordance with the policy. There was an option available with the plaintiff. She could have got the vehicle removed to the workshop as advised by the defendant or could have got repaired herself. Had the plaintiff got the vehicle repaired herself then she could have filed the claim with the defendant and in case of refusal or modification of the claim she could have had any cause of action against the defendant. In other case, if the defendant had carried out the repairs as per the surveyor report and the plaintiff disputing the same could also have given a cause of action to her. Neither has been done in this case. The plaintiff could not have kept the vehicle un-repaired on the ground that there was a total loss of the vehicle terming it as CLT. There is nothing on the record if any amount was incurred on the repair of the vehicle. Since, no money has been incurred by the plaintiff; therefore, the plaintiff is not entitled to be indemnified for any losses towards the vehicle. The present suit is for recovery of money towards the loss of the plaintiff. However, the said loss has not been ascertained which is to be indemnified to the plaintiff. The present controversy between the parties is not regarding the deficiency of the services on the part of the defendant which is within the domain of the respective Consumer Forum. In my opinion, the case of the plaintiff is pre-mature as before the repair of the vehicle and the amount spent by the plaintiff towards the repair of the vehicle, no cause of action had been available to the plaintiff.
15. The plaintiff has argued that since the defendant did not allow her claim despite writing to it and further that the plaintiff had submitted an estimate from a work shop which stated the amount required for more than Suit No. 289/2014 (New No. 613920/2016) Page No. 8 of 10 Rs.20 Lakhs, therefore, the plaintiff was not willing for the repair. She further argued that in view of the report of surveyor appointed by her it was clear that it was a case of total loss and therefore, the survey report was not acceptable to her and she is entitled for the sum covered under the policy. I have considered the said argument in view of the material available on the record. Although the said argument of the plaintiff on the face of it appears to have some force but when considered in the light of the material available on the record, does not have any substance in the same. The defendant has proved on the record the letter Ex. DW2/3 asking the plaintiff certain documents for processing her claim which were never supplied to the defendant. The plaintiff build up a case that since the defendant did not allow her claim to total loss therefore, it is liable to pay the sum insured. However, the plaintiff's case has no leg to stand. The estimate given by the plaintiff was considered by DW2 who is the IRDA license holder surveyor and after having considered the estimate came to the conclusion that the case is not of the total loss. The plaintiff has not appointed any other surveyor then but appointed the surveyor after three years and that too after the filing of the suit. Had the plaintiff appointed the surveyor challenging the report of the DW2 then the situation would have been different. Hence, it can be safely concluded that unless and until the vehicle was repaired and amount was spent by the defendant which was not acceptable to the plaintiff then the plaintiff would have got any cause of action. Since no money was spent by the plaintiff, hence, no loss was caused to her. Accordingly, I am of the opinion, that the suit of the plaintiff is pre-mature and is thus not maintainable. This issue thus decided against the plaintiff and against the defendant.
16. ISSUE No. 2.
Suit No. 289/2014 (New No. 613920/2016) Page No. 9 of 10 (2) Whether the plaintiff is entitled for a decree of Rs.10 Lakhs, as prayed? OPP The onus to prove this issue was on the plaintiff. Since, I have already held that the suit of the plaintiff is not maintainable being pre- mature, therefore, the plaintiff is not entitled to the decree of Rs.10 Lakhs. Therefore, this issue stands decided against the plaintiff and in favour of the defendant.
(3) RELIEF
17. In view of the above discussion, the suit of the plaintiff stands dismissed. No order as to costs.
18. Decree sheet be prepared accordingly.
19. File be consigned to Record Room after necessary compliance.
HEM Digitally signed by
HEM RAJ
RAJ Date: 2022.02.18
16:56:03 +0530
Pronounced in the open Court (HEM RAJ)
on 18th February, 2022. Additional District Judge-08 Central District : Tis Hazari Courts Suit No. 289/2014 (New No. 613920/2016) Page No. 10 of 10