Delhi District Court
Mussarat Bano Through Ar vs . M/S Iffco Tokio General Insurance Co. ... on 17 January, 2023
Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
IN THE COURT OF ADDITIONAL DISTRICT JUDGE02,
SOUTH, SAKET COURTS COMPLEX, NEW DELHI
Presiding Judge: Sh. Dinesh Kumar.
CS DJ No. 194/2019
FILING No. 775/2019
CNR No. DLST010019712019
In the matter of :
Mussarat Bano
W/o Sh. Javed Akhtar
R/o A93, Johari Farm
Noor Nagar Extn.
Jamia Nagar, New Delhi - 25
Through AR Mr. Javed Akhtar
.........Plaintiff
Versus
M/s IFFCO Tokio General Insurance Co. Ltd.
Regd. Office at IFFCO Sadan, C1
Distt. Centre, Saket
New Delhi110017
Through its General Manager
........Defendant
Date of Institution : 25.03.2019
Date of reserving the judgment : 19.12.2022
Date of pronouncement : 17.01.2023
Decision : Suit Dismissed.
CS DJ No. 194/2019
CNR No. DLST010019712019
Page 1 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023
Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
SUIT FOR RECOVERY OF MONEY OF RS.10,00,000/
(RUPEES TEN LACS ONLY).
JUDGMENT
1. Vide this judgment, I shall disposes of the Suit for recovery of Rs.10,00,000/ filed by the plaintiff. The brief facts of the case, as per plaint, are as under: 1.1. Mr. Javed Akhtar is husband of the plaintiff and has been authorized by the plaintiff to file, verify and sign the present suit on her behalf. The plaintiff is the owner of the vehicle bearing No. DL1GB6461 Truck (TM) Engine No. 90356 and Chassis No. 17040.
1.2. The above said vehicle of the plaintiff is insured with the defendant vide IRDA Regn. No. 106, Policy No.1 6Z530J2, date of insurance 01.08.2016, period of insurance from 2016 to midnight of 02.08.2017. As per the insurance policy, total value of the vehicle is Rs.6,84,000/ and net premium of policy is Rs.6,947.72/.
1.3. On 08.09.2016, at Greater Noida, the vehicle of the plaintiff was overturned on the road and the vehicle got damaged.
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1.4. As per the insurance policy, the said vehicle of the plaintiff is covered under the insurance policy and therefore, the defendant is liable to pay Rs.10,00,000/ to the plaintiff for damages/claim of his vehicle and also liable to pay Rs.500/ per day for loss of income from 08.09.2016.
1.5. The plaintiff had informed the insurance company regarding the damage of the vehicle. The surveyor of the insurance company inspected the damages of the vehicle. Despite repeated requests and demands of the plaintiff, the defendant has not paid any amount to the plaintiff. 1.6. The plaintiff has incurred a huge amount of Rs.6,00,000/ in repairing the damages of the vehicle. Original receipt of the repairing cost was taken by the surveyor on the promise that amount spent on repairing will soon be refunded to the plaintiff.
1.7. The plaintiff's husband visited the office of the insurance company many times, but no positive reply was given to him. The plaintiff sent a legal notice dated 26.12.2017 through Regd. AD, demanding the claim/loss caused to the vehicle. The said legal notice was replied by the CS DJ No. 194/2019 CNR No. DLST010019712019 Page 3 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
defendant vide reply dated 25.01.2018. However, the defendant did not make any payment. The plaintiff had filed a complaint before the Consumer Forum but the same was withdrawn on 17.07.2018, as the vehicle was commercial one. This Court has jurisdiction to try and entertain the present suit. Hence, the present suit has been filed with the following prayer:
a) Pass a money decree of Rs.10,00,000/ (Rupees Ten Lacs Only) alongwith pendentelite interest and future interest @ 18% per month from filing of the present suit till the payment in favour of the plaintiff and against the defendant, in the interest of justice.
b) Cost of the suit be awarded in favour of the plaintiff and against the defendant.
c) Any other or further relief as this Hon'ble Court may deem fit and proper be passed in favour of the plaintiff and against the defendant.
2. The defendant appeared and filed the Written Statement. The defendant has stated in the written statement as under: CS DJ No. 194/2019 CNR No. DLST010019712019 Page 4 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
2.1. The plaintiff has not approached the Court with clean hands and has suppressed the material facts. The suit is totally vexatious, misconceived based on misrepresentation of facts and not maintainable in law. The plaintiff is guilty of committing breach of terms and conditions of the Insurance Policy and is not entitled for any compensation or recovery from the defendant.
2.2. The vehicle bearing registration No. DL1GB6461 - 2008 is a commercial vehicle insured with the defendant vide policy No. 99276672 w.e.f. 03.08.2016 to 02.08.2017 under commercial vehicle package policy, used as a mobile plant for the transit of concrete mixture. The said vehicle had overturned on the road and got damaged. An intimation was given to the defendant in this regard on 08.09.2016, pursuant to which an independent surveyor M/s Eminent Solve Serve was appointed to investigate/survey the vehicle. The surveyor gave his report stating therein that the vehicle in question which was a concrete mixture was insured under D clause of vehicle without endorsement IMT47.
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2.3. The tool of operation of this vehicle is that it rotates on in one direction while transiting the mixed concrete from plant to site in order to keep it wet and rotate in other direction while putting it out of the drum at the site. In this case, the vehicle was loaded and the drum must be rotating when vehicle overturned. It was being used as a tool of operation, therefore, the policy in question is without endorsement under IMT47 and they recommended to treat the claim as no claim. 2.4. The defendant on scrutiny of detailed report submitted by the surveyor found that insured plaintiff did not pay the additional premium for IMT47, which covers the overturning extension for the aforesaid type of commercial vehicle used as a tool of operation. Therefore, the claim of the plaintiff repudiated vide letter dated 21.01.2017. Hence, the plaintiff is not entitled to recover any amount.
2.5. The driver of the vehicle was not having a valid and effective driving license at the relevant time to drive the vehicle in question. The driver had driven the vehicle, without having any valid and effective driving license and its being breach of the terms and conditions of the policy of insurance CS DJ No. 194/2019 CNR No. DLST010019712019 Page 6 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
and provision of Motor Vehicle Act, 1988 and therefore, the insurance company is not liable to indemnify the plaintiff. The plaintiff has made false allegations in the plaint. Hence, it is prayed that the suit may be dismissed.
3. The plaintiff filed replication to the written statement of the defendant. She denied the contents of the Written Statement and reaffirmed the submissions made in the plaint.
4. Vide order dated 15.07.2019, the following issues were framed.
"1. Whether the plaintiff is entitled to decree of Rs.10 lacs towards damages on account of claim in respect of vehicle No. DL1GB6461 (truck), arising out of accident dated 08.09.2016? (OPP) "2. Whether the claim of plaintiff has been rightly rejected by defendant on account of being not covered by the insurance policy in question? (OPD) "3. Whether the plaintiff is duty of suppression of material fact? (OPD) "4. Whether the suit is barred of limitation? (OPD) "5. Relief."
5. The plaintiff examined Sh. Javed Akhtar, as PW1. He tendered his evidence by way of affidavit Ex. PW1/A. He CS DJ No. 194/2019 CNR No. DLST010019712019 Page 7 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
reiterated the facts stated in the plaint. He has relied upon following documents:
a) Authorization letter as Ex.PW1/1.
b) Notices as Ex.PW1/2.
c) Bills dated 10.09.2016 as Ex.PW1/3.
6. PW1 was cross examined by Ld. Counsel for the defendant. On 31.03.2022, PE was closed in pursuance to the statement made by Ld. Counsel for the plaintiff.
7. The defendant examined Sh. Indresh Kumar Yadav as DW1. DW1 tendered his evidence by way of affidavit Ex. RW1/1. He has relied upon the following documents:
a) Photocopy of motor final survey report dated 22.09.2016 as Ex.RW1/A (colly) (OSR).
b) Photocopy of letter of no claim dated 21.01.2017 in the policy No. 99276672 issued under Claim No. 36772177 as Ex.RW1/B.
c) Photocopy of the policy No.99276672 as Ex.RW1/C.
d) Photographs of damaged vehicle No. DL1GB6461 as Ex.RW1/D. CS DJ No. 194/2019 CNR No. DLST010019712019 Page 8 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
8. The Defendant also examined Sh. Jeewan Aggarwal as DW2. He is the authorized investigator / surveyor. He has tendered his evidence by way of affidavit Ex. DW2/A. He has relied upon copy of survey report dated 22.09.2016, already exhibited as Ex.RW1/A (Colly).
9. Both the witnesses were duly cross examined by Ld. Counsel for the plaintiff. The defendant did not examine any other witness. Therefore, the DE was closed and the matter was fixed for final arguments.
10. Ld. Counsel for the plaintiff would argue that the plaintiff has proved her case. It has been proved that the vehicle of the plaintiff was duly insured on the date of the incident. It is also proved that it was the defendant who was liable to make the payment of the damages to the plaintiff. The plaintiff had taken the insurance policy as guided by the insurance company. The plaintiff was told that the insurance policy covered all types of accidents and damages. The plaintiff was never told that the policy did not cover the claim due to overturning of the vehicle. It was the duty of the defendant to inform the plaintiff about the same. Had she been informed about the same, she must have paid the additional CS DJ No. 194/2019 CNR No. DLST010019712019 Page 9 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
premium to get the benefit of the said clause. The defendant is guilty of not informing the plaintiff about the said clause. The plaintiff has proved the damages suffered by her due to the accident in question. Hence, it is prayed that the suit may be decreed.
11. Ld. Counsel for the defendant, on the other hand, would argue that the claim of the plaintiff is not maintainable. It is an admitted case of the parties that the vehicle in question is a contract mixing plant insured with the defendant. The plaintiff has not led any evidence to prove that the vehicle was being driven by a trained person at the relevant time. The driving license of the driver has not been brought on record. During cross examination, PW1 has stated that the driving license was handed over to the surveyor. However, no such evidence has been brought on record. As per the policy of insurance Ex. RW1/C, it is specifically mentioned in the terms and conditions that the vehicle must have been driven by a person holding an effective driving license at the time of accident. In the present case, there is a clear breach of the contract of the policy in question. Further, the plaintiff has failed to proved that it had paid an additional premium as required under CS DJ No. 194/2019 CNR No. DLST010019712019 Page 10 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
IMT47 (Overturning Extension) for the vehicle in question. In the policy document Ex. RW1/C, the premium towards the Overturning Extension (IMT47) is zero. Therefore, the plaintiff is not entitled to any claim or damages due to overturning of the vehicle. It has been further argued that the plaintiff has failed to prove the alleged bills towards the expenditure alleged to be incurred by her in repairing of the vehicle in question. The plaintiff has not led any evidence to prove those bills. Hence, the plaintiff is not entitled to any relief. Therefore, it is prayed that the suit may be dismissed.
12. I have heard the submission and carefully perused the material on record. My issue wise findings are as follow :
13. Issue No. 4. This issue is taken first as it is related to the maintainability of suit. This issue reads as under :
"4. Whether the suit is barred of limitation? (OPD)
14. The onus to prove this issue was on the defendant. However, no arguments have been advanced by any of the party on this issue. No evidence has been led in this regard by the defendant. After going through the material on record, I do not find any ground to show that the suit is barred by limitation. The CS DJ No. 194/2019 CNR No. DLST010019712019 Page 11 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
vehicle in question had overturned and got damaged on 08.09.2016. The present suit has been filed on 23.03.2019 i.e. within 3 years of the date of the incident. Therefore, I hold that the suit is not barred by limitation. The issue is accordingly decided against the defendant.
15. Issue No. 3. This issue reads as under :
"3. Whether the plaintiff is duty of suppression of material fact? (OPD)
16. There appears to be a typographical error in this issue. The issue should have read, "Whether the plaintiff is guilty of suppression of material fact? (OPD)". No arguments have been advanced on this issue. The material on record does not show that the plaintiff is guilty of suppression of material facts. The issue is accordingly decided against the defendant.
17. Issue No. 1 and 2. Both the issues are taken together as they are interconnected and require common discussion. The issues read as under :
"1. Whether the plaintiff is entitled to decree of Rs.10 lacs towards damages on account of claim in respect of vehicle No. DL1GB6461 (truck), arising out of accident dated 08.09.2016? (OPP) CS DJ No. 194/2019 CNR No. DLST010019712019 Page 12 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
"2. Whether the claim of plaintiff has been rightly rejected by defendant on account of being not covered by the insurance policy in question? (OPD)"
18. The onus to prove issue no. 1 was on the plaintiff while onus to prove issue no. 2 was on the defendant. It is an admitted case of the parties that the vehicle in question had been insured by the plaintiff with the defendant. It is also an admitted fact that the vehicle in question is a concrete mixing plant which is a special type of vehicle. This vehicle is used as a mobile plant for transit of concrete mixture from one place to another. The drum of the mixture rotates in one direction while the mixed concrete is transited from the plant to the site and it is rotated in another direction while the mixture is to be taken out of the drum at the site. It is an admitted fact in this case that the vehicle in question overturned on the road due to which damages were sustained. The present claim of the plaintiff is related to the damages suffered by her due to the overturning of the vehicle in question.
19. The plaintiff has claimed damages worth Rs. 10 Lakhs. However, the plaintiff has filed photocopies of two bills showing that she had spent amount of Rs. 83,500/ and Rs. 6,06,150/. These bills are photocopies. Originals have not been produced. No CS DJ No. 194/2019 CNR No. DLST010019712019 Page 13 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
witness has been examined by the plaintiff to prove these bills. It is also worthnoting that in one of the bill an amount of Rs. 4,50,000/ is shown for a new cabin. Thus, the plaintiff is claiming amount of Rs. 4,50,000/ for new cabin rather than for repairing of the existing cabin which is not permissible under the law. Further, it is also worth mentioning that as per the insurance policy, the IDV of the vehicle in question was Rs.6,84,000/ while the plaintiff is claiming damages of Rs.10 Lakhs.
20. The plaintiff has not brought on record the insurance policy. The defendant has brought the insurance policy of the vehicle on record which is Ex. RW1/C. The plaintiff has not denied the said document as photocopy of the insurance policy in question. In the insurance policy Ex. RW1/C, the breakup of the insurance premium has been shown. It shows the basic OD Premium as Rs.8,673.12. There are various add on items mentioned in the policy. One of such add on is overturning extension (IMT47) premium of which is shown as Rs.0/. Thus, it has been proved on record that the plaintiff had paid no premium for the overturning extension (IMT47) while purchasing the policy in question from the defendant.
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21. Hon'ble Supreme Court of India in Sharda Associates Vs United India Insurance Company Ltd. Civil Appeal No 4910 of 2022 decided on 25.07.2022 has discussed the effect of IMT47 in relation to similar class of vehicles. It has observed as under :
"6 xxx "IMT 47: Mobile Cranes/Drilling Rigs/Mobile Plants/ Excavators/ Navvies / Shovels/ Grabs/ Rippers. It is hereby declared and agreed notwithstanding anything to the contrary contained in this Policy that in respect of the vehicle insured the insurer shall be under no liability:
"a)Under Section I of this policy in respect of loss or damage resulting "from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto except for loss or damage arising directly from fire, explosion selfignition or lightening or burglary housebreaking or theft.
"b)Under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, in respect of liability incurred by the insured arising out of the operation as a tool of such vehicle or of plant farming part of such vehicle or attached thereto.
"N.B.: Omit paragraph (a) for:
"i. Liability only Policies.
"ii. Package Policies where an additional premium has been paid for inclusion of damage by overturning.
"NOTE:
"Insert make, number or some other means of identification. "Where a premium reduction is allowed for exclusion of damage when in use as a tool of trade omit from paragraph (a) the words "resulting from overturning" and "except for loss ... or theft. "xxx CS DJ No. 194/2019 CNR No. DLST010019712019 Page 15 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
"9 In order to attract the applicability of IMT 47, certain specific conditions have to be fulfilled. IMT 47 excludes liability: "i. Where the loss or damage has resulted from "overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto"; "ii. Unless the loss or damage is directly arising from fire, explosion, selfignition, lightning, burglary, house breaking or theft."
22. Thus, it is settled position of law that where the loss or damage has resulted from overturning arising out of operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto, the insurance company is not liable unless the insured has purchased the add on of IMT47 also along with the policy. In the present case, DW1 has stated in his affidavit that in this case the vehicle was loaded and the drum must be rotating when the vehicle was overturned. No cross examination has been done on that aspect by the Ld. Counsel for the plaintiff. Further, in the written statement also, the defendant has stated that the vehicle was loaded at the time of overturning. The plaintiff in its replication has not expressly denied the said averment of the plaintiff. Thus, it is shown by the defendant that the vehicle was loaded with the mixture and therefore, it must have been rotating to keep the material wet and hence, the vehicle in question had overturned due to use of the vehicle as a tool.
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23. It is the claim of the plaintiff that she had paid the premium as required and told by the defendant company. However, it was the duty of the plaintiff to purchase the add on for IMT47 from the defendant to claim such damages. The defendant is not under a duty to ask the plaintiff to purchase all the add on in relation to her vehicle. There is nothing on record to show that the plaintiff was told by the defendant that the policy in question covered all types of damages including the damages mentioned in IMT47.
24. Further, there is a driver clause also in the policy which provides that the vehicle must have been driven by a person having effective and valid driving license at the time of the alleged accident. The plaintiff has not led any evidence to prove that the vehicle was driven by a person having effective and valid driving license. The defendant had taken a specific objection in this regard in the written statement. The plaintiff, despite the said objection, did not even provide the name of the driver who was driving the vehicle at the relevant time. The plaintiff did not bring any driving license on record to show that the vehicle was being driven by a CS DJ No. 194/2019 CNR No. DLST010019712019 Page 17 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023 Mussarat Bano Through AR vs. M/s IFFCO Tokio General Insurance Co. Ltd.
person having effective and valid driving license to drive such class of vehicles.
25. In the light of the discussion hereinabove, I am of the considered opinion that the plaintiff has failed to prove its claim of damages. It has been proved that the vehicle in question was not insured with IMT47 clause at the relevant period and therefore, the plaintiff is not entitled for any damages due to overturning of the vehicle while it was used as a tool of operation. Further, the plaintiff has failed to prove that the vehicle was driven by a person holding a valid and effective driving license. Hence, the plaintiff is not entitled to claim damages for the said accident from the defendant. Hence, I hold that the claim of the plaintiff was rightly rejected by the defendant on account of being not covered by the insurance policy in question. The plaintiff is not entitled to recover any amount from the defendant towards claim of damages in respect of the vehicle in question arising out of the accident dated 08.09.2016. Issue No. 1 and 2 are accordingly decided against the plaintiff and in favour of the defendant.
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26. Issue No. 5 - Relief. In the light of the discussion hereinabove, the plaintiff is not found entitled for any relief. Suit of the plaintiff is dismissed. The parties shall bear their own cost.
27. Decree sheet be prepared accordingly.
Pronounced in the open Court Digitally signed by DINESH on this 17th Day of January 2023. DINESH KUMAR Date:
KUMAR 2023.01.18
12:27:06
+0530
(DINESH KUMAR)
ADDL. DISTRICT JUDGE02
SOUTH, SAKET COURTS, NEW DELHI.
CS DJ No. 194/2019
CNR No. DLST010019712019
Page 19 of 19 Dinesh Kumar/ADJ02/South/Saket/ND/17.01.2023