Delhi District Court
M/S Ess Ess Foot Wear Pvt. Ltd vs M/S United India Insurance Co. Ltd on 25 May, 2016
IN THE COURT OF SH. ANKIT SINGLA: CIVIL JUDGE: 03 CENTRAL
TIS HAZARI COURTS: DELHI
Suit No. 60/14
Unique ID No. 02401C0400772012
M/s Ess Ess Foot Wear Pvt. Ltd.
B164, Sector1, DSIDC,
BAWANA, Delhi.
........ Plaintiff
VERSUS
M/s United India Insurance Co. Ltd.
Motor Dealer Division24,
4th Floor, Jeevan Vikas Building,
Asaf Ali Road, New Delhi110002. ........Defendant
SUIT FOR RECOVERY OF Rs.1,86,277/ (RUPEES ONE LAKH
EIGHTY SIX THOUSAND TWO HUNDRED SEVENTY SEVEN
ONLY).
Date of institution : 28.08.2012
Date for reserving for orders : 30.04.2016
Date of decision : 25.05.2016
J U D G M E N T
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff seeking recovery of Rs.1,86,277/ from the defendant.
Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 1/18
2. Briefly stated the facts as averred by the plaintiff in the plaint which are necessary for the disposal of the present suit are as follows:
(a) The plaintiff company is incorporated under the Company's Act, 1956 and present suit is being filed by Mr. Sandeep Bansal, director of the plaintiff's company. It is averred that the plaintiff company is registered owner of vehicle Chevrolet AveoUVA Car No. DL 8CV 1367 (herein afterwards referred as vehicle in question).
(b) The plaintiff insured aforesaid vehicle with defendant company against comprehensive risk.
(c)On 25.09.2011 at abut 4:00 PM, the above mentioned vehicle met with an accident and at the time of accident, the vehicle was driven by one Sh. Mukesh.
(d) The plaintiff reported the matter to the defendant and lodged its claim for cost of repair of the vehicle and other charges paid by the plaintiff under policy of insurance issued by the defendant. The plaintiff submitted accidental related claim form, bills, DL and ownership papers etc. to the defendant. It is averred that claim of plaintiff was rejected by the defendant on 14.02.2012.
3. The defendant filed a written statement (in short, WS). In WS, it is admitted that the vehicle in question was insured with the Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 2/18 defendant company. It is further admitted that this vehicle had met with an accident and defendant company was informed regarding the accident. It is also not denied that the surveyor appointed by the defendant assessed the damage for claim of loss. The case of defendant is that claim of plaintiff was rejected as the driver had a fake license at the time of the accident and even with the claim form, the fake license was submitted to the defendant. It is further the case of defendant that defendant company had rightly not considered the second license of the driver which was produced later on. It is averred that the plaintiff is not entitled for any claim as the vehicle was driven by a driver who had two licenses in contravention to the provision of Motor Vehicle Act, 1988.
4. Replication to the aforesaid WS was filed by the plaintiff categorically denying the contents of the WS and reiterating the averments made in the plaint.
5. On completion of the pleadings of the parties vide order dated 20.12.2012, following issues were framed: (1) Whether the plaintiff is entitled to recovery of Rs.1,86,277/ from defendant as prayed? OPP (2) Whether the plaintiff is entitled to pendentilite and future interest? If yes, at what rate? OPP Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 3/18 (3) Whether the plaintiff has not approached the court with clean hands? OPD (4) Whether the plaint is not properly signed and verified? OPD (5) Whether the claim of plaintiff was rightly repudiated by defendant as fake driving license was produced by plaintiff for claiming reimbursement from defendant? OPD (6) Relief.
6. In support of its case, the plaintiff has examined four witnesses. PW1 is Sh. Sandeep Bansal, director of plaintiff company, PW2 is Sh. Harish Kumar Sharma. This witness produced the record from the repair shop where the vehicle in question was repaired. PW3 is Sh. Devinder Singh, clerk RTI office. This witness produced the record of second license of driver Sh. Mukesh. PW4 is Sh. Ranjay Kumar Singh, manager HR administration of the repair shop where the vehicle in question was repaired. These witnesses relied upon following documents: Exhibits/ Marks Description of documents Ex. PW1/1 Memorandum & Articles of association of plaintiff company.
Ex. PW1/2 Board of resolution dated 03.08.2012. Ex. PW1/3 Photocopy of RC of car no. DL 8CV 1367. Ex. PW1/4 & Ex. Copy of the cover note/ policy no.
PW1/5 0424003111P000882955.
Ex. PW1/6 Intimation of accident through FAX.
Mark A and B Copy of DL and retail invoice.
Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 4/18
Ex. PW1/7 Copy of letter addressed to the Licensing
Authority RTA, Gurgaon.
Ex. PW1/8 Driving license no. 6414/G/11 of Mukesh.
Ex. PW1/9 Letter dated 09.01.2012 addressed to
defendant.
Ex. PW1/10 Copy of repudiation letter of the defendant.
Ex. PW2/A Photocopy of invoice no. 000543 dated
19.04.2012 job no. 005247.
Ex. PW2/D1 Claim Form.
Ex. PW3/A Record of DL of driver Sh. Mukesh from
Gurgaon authority.
Ex. PW4/A Statement of account to show the payment
of Rs.1,70,000/.
7. In support of its case, the defendant examined two witnesses. DW1 is Sh. Vinod Malhotra. This witness surveyed the accidental vehicle at the instance of the defendant. DW2 is Sh. Neelam Kumar Sharma. This witness is assistant manager at the office of defendant company. These witnesses relied upon following documents: Exhibits/ Marks Description of documents Ex. DW1/1 Survey report.
Ex. DW1/B Photographs of vehicle surveyed.
Ex. DW2/1 DL verification report dated 20.12.2009
issued by Karnal Driving Authority.
Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 5/18
8. Detailed submissions were made by Sh. Rambir Sharma, Advocate on behalf of the plaintiff and by Sh. V.P. Malhotra, Advocate on behalf of the defendant. In order to avoid prolixity, it is proposed to deal with the respective submissions of parties issue wise.
My issue wise findings are as follows:
Issue no. 3 "Whether the plaintiff has not approached the court with clean hands? OPD"
9. The burden to prove this issue was on the defendant. No evidence has been led by the defendant on this issue. However, Ld. Counsel for defendant urged that plaintiff has not mentioned in his plaint that claim of plaintiff was rejected by the defendant on the ground that fake license was given by the driver along with the claim form. Ld. Counsel for plaintiff on the other hand argued that plaintiff has annexed the repudiation report of the defendant alongwith with plaint and in this report reasons for repudiation of the claim of plaintiff are mentioned. He submitted that plaintiff never denied that insurance claim of plaintiff was rejected on the ground that fake license of driver was given along with claim form but, he argued that the case of plaintiff is that it had intimated the defendant company regarding the possession of genuine driving license by the driver, and had requested the defendant company to consider the same and to Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 6/18 accept the claim of plaintiff company. It is submitted by Ld. Counsel for plaintiff that factum of intimation regarding second license has been admitted by the defendant in Para6 of its WS, therefore, it cannot be said that plaintiff has concealed any fact from the court. Considering that plaintiff had annexed all the documents with the plaint including the repudiation report, wherein reasons for repudiation of claim by defendant company are mentioned, I am of the opinion that plaintiff has not concealed anything from the court and it has come in the court with clean hands.
Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
Issue no.4 "Whether the plaint is not properly signed and verified? OPD"
10. The burden of proof of this issue was on the defendant. However, no evidence has been led by the defendant to prove that plaint is not properly signed and verified. Perusal of plaint shows that same has been signed and verified by AR of the plaintiff company, Sh. Sandeep Bansal. The memorandum of article of association of plaintiff company show that Sh. Sandeep Bansal is one of the director. Further, the authority to file the suit is also duly proved by PW1. All these documents shows that Sh. Sandeep Bansal was authorized by plaintiff company to file the suit, thus, this court is of the opinion that plaint is duly verified and signed.
Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 7/18 Accordingly, this issue is also decided against the defendant and in favour of the plaintiff.
Issue no.1 Whether the plaintiff is entitled to recovery of Rs.1,86,277/ from defendant as prayed? OPP Issue no.5 "Whether the claim of plaintiff was rightly repudiate by defendant as fake driving license was produced by plaintiff for claiming reimbursement from defendant? OPD"
11. Both the above issues are taken together as same are inter related and intermixed. The burden of proof of issue no.1 was on the plaintiff whereas, the burden to prove issue no.5 was on the defendant.
12. In order to prove issue no.1, plaintiff was required to prove that it had valid insurance cover for vehicle in question of defendant company; secondly, the accident had taken place which caused damage to the vehicle in question to the extent of Rs.1,72,256/. Plaintiff was further required to prove its entitlement Rs.6,000/ as towing charges, Rs.8,021/ as interest. Whereas, defendant was required to prove that claim of plaintiff was rightly repudiated by defendant as fake driving license was produced by plaintiff for claiming reimbursement from defendant and defendant Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 8/18 company is right in not considering the second license of the driver of plaintiff company.
13. In the present case, the factum of accident of vehicle in question and plaintiff having valid insurance policy of defendant company for such vehicle is not in dispute between the parties. It is also not in dispute between the parties that along with claim form, one fake license of driver was submitted to the defendant company and thereafter intimation regarding second valid license was also given by the plaintiff to the defendant company. The only point of controversy between the parties is regarding repudiation of claim by defendant company of plaintiff without considering the second license.
14. It is the case of defendant that in the insurance policy, there is one clause as per which driver of the insured vehicle is required to have valid license at the time of accident, in order to claim the insurance. It is submitted that since, at the time of accident, driver was possessing fake license, the plaintiff company is not entitled for claim in view of the clear term in the insurance policy requiring valid license at the time of accident. It is further submitted that defendant company has rightly not considered the second license, because, as per Motor Vehicle Act and rules, one person Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 9/18 cannot possess two driving licenses.
15. Ld. Counsel for plaintiff argued that plaintiff has proved through testimony of PW3 that driver Sh. Mukesh had valid license at the time of accident. He further argued that this fact was brought into the notice of the defendant company, before repudiation of the claim. It is further urged that as per conditions in the policy, the requirement was only that driver of the vehicle should have a valid license, which driver of vehicle in question was possessing at the time of accident. It is argued that, as the driver was having valid license, it was duty of the defendant to allow the request of the plaintiff to consider the valid license of the driver for claim. It is submitted that merely, because, driver had a fake license also, besides, a genuine one, the defendant company can not escape from the liability to pay the claim of the plaintiff. It is argued further that for possessing a fake license, the driver may have incurred criminal liabilities, but, insurance company can not say that they will not consider the valid license and punish the plaintiff company which had taken all the precaution in taking policy as well as appointing a driver having valid driving license. It is also contented that at the time of employing a driver for a vehicle, the duty of the employer is to see that driver knows, how to drive and holds a valid license. It is submitted that the driver had a valid license, when he was employed. It is further submitted that plaintiff company was not aware that driver was having a fake license also.
Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 10/18
16. Beside oral arguments, the defendant has also relied upon following judgments:
1) National Consumer Disputes Redressal Commission, New Delhi, III (2015) CPJ 227 (NC) titled as United India Insurance Co. Ltd. Vs. D.A.V. Centenary Public School & Anr.
2) National Consumer Disputes Redressal Commission, New Delhi, II (2015) CPJ 537 (NC) titled as Ajit Prasad Jain Vs. New India Assurance Co. Ltd & Anr.
3) National Insurance Company Ltd. Vs. Arfoon Nisa & Ors. of Hon'ble Punjab and Haryana High Court, Chandigarh, FAO No.1912 of 1999 (Q&M).
4) Smt. Neelam Batra Vs. Sanjay & Others of Hon'ble Punjab and Haryana High Court, Chandigarh, FAO No.3858 of 2003.
FINDINGS:
17. In the present case, PW3 has proved that the driving license of driver Sh. Mukesh issued by Gurgaon licensing authority is genuine. Perusal of copy of this license shows that same was valid at the time of accident. The accident took place on 25.09.2011 and the driving license Ex. PW3/A was issued on 25.04.2011. Thus, it is proved that the driver had valid license at the time of accident and the condition in the policy regarding requirement of valid driving license by driver at the time of accident for claiming the insurance is duly met. Now, the only issue involve herein is the effect of having a fake license by the driver of vehicle in question at the time of Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 11/18 accident. Ld. Counsel for defendant argued that in view of judgments filed by him, plaintiff company can not be granted claim even though driver had valid license at the time of accident. Ld. Counsel for plaintiff on the other hand, argued that the judgments filed by defendant company are not applicable to the facts of the present case.
18. Ld. Counsel has filed judgment titled as 'United India Insurance Co. Ltd. Vs. D.A.V. Centenary Public School & Anr.' of National Consumer Disputes Redressal Commission. Ld. Counsel for plaintiff argued that this judgment cannot be looked into by this court as the judgments of "National Consumer Disputes Redressal Commission" are not binding on this court. Without going into controversy, as to whether, the judgments of National Consumer Disputes Redressal Commission are binding on this court or not, I am of the opinion that the ratio of above mentioned judgment is not applicable to the facts of the present case, as this judgment deals with a situation, wherein, the driver had two valid driving licenses, whereas, in the present case, the first license was fake and the second license is genuine.
19. Similarly, the judgment titled as 'New India Assurance Co. Simla Vs. Kamla & Others' is also not applicable to the facts of Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 12/18 the present case, as in this case, the license was forged and driver had no genuine license.
20. Ld. Counsel for defendant argued that facts of present case are similar to the facts of judgment 'Smt. Neelam Batra Vs. Sanjay & Others', Hon'ble Punjab and Haryana High Court. In the humble opinion of this court, this judgment also can not be looked into by this court, in view of the law laid down by the Hon'ble Supreme Court in judgment 'Pepsu Road Tranport Corporation Vs. National Insurance Company' Civil Appeal No. 8276 of 2009'. In this judgment, Hon'ble Supreme Court inter alia held as under:
"In a claim for compensation, it is certainly open to the insurer U/s 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the license possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving license. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 13/18 cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving license with the licensing authority before hiring the services of the driver.
However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the license duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the license issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the license from the licensing authority. That is what is explained in Swaran Singh's case (supra). If despite such information with the owner that the license possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation."
21. In this judgment, Hon'ble Apex Court, further relied upon following observation made by the same court in judgment 'National Insurance Company Ltd. Vs. Laxmi Narain Dhut' (2007) 3 SCC 700 :
Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 14/18 "Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time..."
22. I agree with the submissions of Ld. Counsel for plaintiff that for possessing a fake license, the driver may be held liable, but, plaintiff company can not be punished on this account. Furthermore, in view of the law laid down by Hon'ble Supreme Court, in the above mentioned judgments titled as 'Pepsu Road Transport Corporation Vs. National Insurance Company' Civil Appeal No. 8276 of 2009' and 'National Insurance Company Ltd. Vs. Laxmi Narain Dhut' (2007) 3 SCC 700, the burden to prove that plaintiff company was guilty of negligence and that it failed to exercise reasonable care regarding the use of vehicle by a duly licensed driver was on the Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 15/18 defendant company. No evidence is led on behalf of defendant to show that plaintiff company failed to exercise such care, therefore, the defendant company can not escape from its liability towards policy, even if, assumingly, the driver was not possessing the valid driving license at the time of accident.
23. Thus, in view of above discussion, I am of the opinion that defendant company is liable to pay to the plaintiff for damage to the vehicle in question as per the policy and it can't escape from liability under insurance, merely, because, the driver of the vehicle in question had a fake license, as well as, the genuine one.
24. Now, after holding that defendant company is liable to pay to plaintiff company, only thing that remains to be decided is the quantum of compensation. In the plaint, plaintiff had claimed Rs.1,86,277/ from the defendant. Plaintiff has proved through his evidence that he had paid Rs.1,70,000/ to the M/s Trumph Motors for repair of vehicle in question. It is not in dispute between the parties that surveyor appointed by the defendant company had assessed the damage to the vehicle in question and he had assessed the value of loss as Rs.1,35,644.02. Ld. Counsel for plaintiff urged that plaintiff is entitled for the exact amount, which it had paid to the M/s Trumph Motors. However, perusal of policy shows that Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 16/18 defendant was liable to pay only 50% of total cost for loss of tyres, tubes and any plastic parts. Likewise, the liability to pay for components having floor glass was upto 30% only of the value of such component. There was no liability to pay for loss of any part made of glass. The amount paid by plaintiff to M/s Trumph Motors includes the total cost of repair and replacement of all the parts including glasses, plastic parts etc. therefore, plaintiff can not be granted the amount of Rs.1,70,000/ as paid by it to M/s Trumph Motors. The defendant has admitted the report of surveyor, and as per report of surveyor, the total assessed loss payable to plaintiff was Rs.1,35,644.02. Accordingly, plaintiff is entitled for recovery of this amount from the defendant. Plaintiff has further prayed for Rs.6,000/ as towing charges, however, no evidence in form of receipt etc. is produced to show that plaintiff paid Rs.6,000/ as towing charge for vehicle in question, therefore, request of plaintiff for grant of this amount is declined. The plaintiff has further prayed for Rs. 8021/ as interest. Neither, in the plaint nor in the evidence, it is mentioned, how, the plaintiff company calculated this amount.
However, in the opinion of this court, the plaintiff is entitled for interest on 1,35,644.02 from the date of rejection of claim of plaintiff till the filing of the present suit. In absence of any evidence led by plaintiff, the interest is granted @ 6% for above mentioned period.
Issue no. 2 "Whether the plaintiff is entitled to pendentilite and future Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 17/18 interest? If yes, at what rate? OPP".
25. There is no proof regarding the rate of interest which was agreed between the parties. Plaintiff contested the suit for seeking the relief for more than four years. Perusal of file shows that he pursued the case diligently. There is no reason to deny him the pendentilite and future interest. Defendant also could not bring any agreement showing that pendentilite and future interest was specifically barred by way of any term in policy. Thus, in the opinion of this court, the plaintiff is entitled to pendentilite as well as future interest which is granted @ 6% p.a. RELIEF In view of the aforesaid observations, the suit of the plaintiff is decreed and he is granted Rs.1,35,644.02 along with interest @ 6% from date of rejection of claim till realization. Parties to bear their own cost. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in the open court today i.e. on 25.05.2016.
(ANKIT SINGLA) CIVIL JUDGE03C/THC DELHI/25.05.2016 Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 18/18 CS No. 60/14 Ess Ess Footwear Pvt. Ltd. Vs. United Insurance Co. Ltd.
25.05.2015 Present: None.
Vide separate judgment of even date, announced in the open court, the suit of the plaintiff is decreed and he is granted Rs.1,35,644.02 along with interest @ 6% from date of rejection of claim till realization. Parties to bear their own cost. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
(ANKIT SINGLA) CIVIL JUDGE03C/THC DELHI/25.05.2016 Suit no. 60/14 M/s Ess Ess Foot Pvt. Ltd. Vs. M/s United India Insurance Co. Ltd. 19/18