Delhi District Court
M/S Richho Mal Bishan Sarup vs The Oriental Insurance Company Ltd on 6 August, 2022
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IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CS No. 58469/16
In the matter of :-
M/s Richho Mal Bishan Sarup
624, Khari Baoli
Delhi-110006 ...... Plaintiff
Versus
1. The Oriental Insurance Company Ltd.
9-Raj Block, Naveen Shahdara,
Delhi-110032
2. United India Insurance Company Ltd.
24/15, Bharat Ram Raod, Daryaganj,
Delhi-110002 .......Defendants
Date of Institution : 16.03.2011
Date of reserving Judgment : 07.07.2022
Date of pronouncement : 06.08.2022
SUIT FOR RECOVERY OF RS. 10,44,482/- ALONGWITH
PENDENTE-LITE INTEREST & COST
CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 1 of 18
Vs.
The Oriental Insurance Company Ltd. & Ors.
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JUDGMENT
1. The plaintiff is a partnership firm duly registered under Partnership Act engaged in trading of milk ghee and other milk related products. It is occupying its business as well as for storage of stocks of such milk products at AG-87, Sanjay Gandhi Transport Nagar, Delhi. It has been insuring its stock in the normal course of its business against various risks including the risks of fire, burglary, riots and strikes and bankers of the plaintiff firm have been insisting on the cover of the assets under contracts of insurance, especially when the assets have been hyphothecated to the bank against some running loan. It took with the defendants following policies of insurance to cover itself against risks of burglary and housebreaking for its stock lying of the aforementioned premises at AG-87, Sanjay Gandhi Transport Nagar, Delhi.
Policy No. Issued By Period Sum
Insured
(Rs.)
271702/48/20 Defendant no. 1 - From 06.02.2009 85,00,000 09/1737 M/s Oriental to 05.02.2010 Insurance Co. Ltd.
1703/46/08/53 Defendant no. 1 - From 28.07.2008 35,00,000 /00000077 M/s United India to 27.07.2009 Insurance Co. Ltd.
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2. It is further stated that unfortunately, on 15.04.2009 a theft/ burglary occurred in the plaintiff's aforementioned godown/premises as the locks of the said godown/premises was broken by some unknown thieves who stole 300 Desi Ghee boxes (1 x 12kg) and 80 Tins of Desi Ghee respectively amounting to Rs. 8,42,324/-. Thereafter, the intimation regarding theft was immediately given to the Police Control Room and a written complaint vide letter dated 15.04.2009 was also given to the SHO P.S. Samaipur Badli, Delhi. The police in pursuance to complaint of the plaintiff, registered an FIR No. 94 dated 28.04.2009.
3. It is submitted by the plaintiff firm that defendant no. 1 and defendant no. 2 were immediately informed about the said theft incident and also lodged claims for the total sum of Rs. 8,42,324/- being the value of stolen material. Thereafter, the police carried out its investigation and issued untraced report dated 10.07.2009. During that time, the local police filed its final report dated 03.08.2009 under Section 173 Cr.P.C. which was placed before the area Magistrate and the case was closed by a closure report.
4. It is further stated that in pursuance of the claim lodged by the plaintiff, the defendant no. 1 and defendant no. 2 appointed M/s Aditi Consultants Pvt. Ltd. and M/s Alka Gupta & Associates respectively as Surveyors. The plaintiff also provided all the necessary documents and other requisite information to both of the Surveyors as well as the CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 3 of 18 Vs. The Oriental Insurance Company Ltd. & Ors.
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defendants. It is further stated that the defendants did not settle the plaintiff's claim within time as prescribed by the IRDA. There was delay in processing and settlement of the claim on the part of both the defendants who were delaying the matter for no justifiable reason. The plaintiff approached many times to the offices of both the defendant insurance companies to settle the claim but no response was received from both the defendants.
5. It is stated that the plaintiff received a letter dated 03.12.2010 wherein it was mentioned that the claim of plaintiff has been rejected/repudiated on the ground that "the claim is not tenable under the terms and conditions that govern the burglary insurance policy".
6. It is further stated that defendant no. 1 has rejected the claim on the unlawful, incorrect and filmsy ground. The survey report on the basis of which the repudiation of the claim was resorted, was never shared with the plaintiff and the surveyor is an entity wholly dependent on the insurance company for its business and the report is a tutored document.
7. It is further stated that defendant no. 1 illegally and unjustifiably repudiated the genuineness and valid claim of the plaintiff, however, the loss of plaintiff is fully proved by the documents provided to the Surveyors. It is alleged that the defendant no. 1 has accepted patently incorrect report of the Surveyors and repudiated a lawful and valid claim of the plaintiff under its police of insurance.
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8. It is stated that the defendant no. 2 was obliged to pay the share of claim as it also covered the plaintiff for subject matter insured and the plaintiff provided all co-operation and material to defendant no. 2 and its Surveyor, namely, Alka Gupta & Associates. However, the plaintiff received a letter dated 05.07.2010 wherein it was mentioned that the claim of plaintiff has been rejected on the ground that:
"Claim is not payable on the basis of available information and records, stores doest not reveal, stocks position is not clear, number of incident has not been established, has shown only 3 godown instead 4."
9. It is submitted by the plaintiff that as per law of insurance, both the defendants are liable to pay loss of the plaintiff in proportion of their respective sum insured as the material of the godown premises and the time when the theft took place are covered by two separate policies of insurance issued one by each of the defendants. It is stated that the defendants are liable to pay Rs. 8,42,324/- alongwith interest till the date of filing of the suit, hence, the present suit.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 1
10. The defendant no. 1 in his Written Statement has denied that the facts of the plaintiff as stated in the plaint. It is also stated that the suit of the plaintiff is liable to be dismissed on the merits from the averments made in the plaint as the same does not disclose any cause of action CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 5 of 18 Vs. The Oriental Insurance Company Ltd. & Ors.
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and is also barred by law as well as the plaint of the plaintiff has not been property verified as per provisions under Order VI Rule 15 CPC. It is further stated that the suit is filed on the basis of vague, improper, baseless, misconceived and concocted facts. However, in Para 5 of the para-wise reply, it is stated that the policy of insurance bearing No. 271702/48/2009/1737 for the period 06.02.2009 to 05.02.2010 insuring the sum of Rs. 85,00,000/- are admitted subject to its schedule, terms and conditions incorporated therein. Further, in Para 10 of the para-wise reply, the appointment of Surveyor M/s Aditi Consultants Pvt. Ltd. is not disputed being matter of record, however, it is denied that the plaintiff provided the desired complete information/ necessary documents as demanded by the said Surveyor.
Further, in Para 14 of the para-wise reply, the contents of the plaint of the plaintiff are not disputed being the matter of record as the claim of the plaintiff has been rightly rejected by the answering respondent after proper enquiry done by the surveyor M/s Aditi Consultants Pvt. Ltd. who vide report dated 17.11.2009 categorically observed and concluded that the complainant have not been able to substantiate the loss and the answering defendant rely upon the said report. Further, it is stated that the Para 17 of the plaint of the plaintiff is not related to answering the defendant but it is a matter of fact that the other insurance company i.e. defendant no. 2 also took the same decision in repudiating the alleged claim of the plaintiff.
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WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 2
11. The defendant no. 2 in his Written Statement has denied that the facts of the plaintiff as stated in the plaint. It is further stated that the suit of the plaintiff is liable to be dismissed as the suit is not maintainable as well as the plaintiff has concealed and suppressed the true and material facts on record.
REPLICATION TO THE WS OF DEFENDANT NO. 112. Replication was filed by the plaintiff to the written statements of the defendant no. 1 denying the averments and reiterating the averments of the plaint.
REPLICATION TO THE WS OF DEFENDANT NO. 213. Replication was filed by the plaintiff to the written statements of the defendant no. 2 denying the averments and reiterating the averments of the plaint.
ISSUES
14. On the basis of pleading, following issues were framed on 22.03.2012:
1. Whether the plaintiff is entitled to a decree of recovery of Rs. 10,44,482/- as per prayer clause (1) of the plaint? OPP
2. Whether the plaintiff is also entitled to recover interest @ CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 7 of 18 Vs. The Oriental Insurance Company Ltd. & Ors.
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12% per annum or at what other rate? OPP
3. Whether the plaint has been signed, verified and instituted by a duly authorized person? OPP
4. Relief.
PLAINTIFF'S EVIDENCE
15. Plaintiff in order to prove its case has examined following witnesses:
A. PW-1 Sh. M.R. Gupta, Manager of the plaintiff firm. He has tendered his evidence by way of affidavit Ex. PW1/A which bears his signature at point A & B. He also relies upon the following documents:
1. Ex. PW1/1 and Ex. PW1/2 are Form A and Form B respectively.
2. Ex. PW1/3 and Ex. PW1/4 are the policies.
3. Mark A is the copy of the FIR.
4. Mark B (Colly.) is copy of the letter written to police under RTI Act is marked as
5. Mark C is the copy of the untraced report of the police of the plaint is marked as
6. Ex. PW1/5 (Colly.) is the certified copy of final report of police.
7. Ex. PW1/6 is the copy of detail of quantity of stock lost in the incident.
8. Ex. PW1/7 is the copy of consignment note no. C-908 dated 26.03.2009.
9. Ex. PW1/8 is the copy of consignment note no. C-39 dated 11.04.2009.
10.Ex. PW1/9 is th Notarize copy of claim form.
11.Ex. PW1/10 (Colly.) is office copy of statement of Mr. Mani Ram CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 8 of 18 Vs. The Oriental Insurance Company Ltd. & Ors.
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Gupta, partner.
12. Ex. PW1/11 is the copy of statement of Mr. Papu dated 21.04.2009.
13. Ex. PW1/12 is the certified copy of the letter dated 15.04.2009 from plaintiff to SHO, Samaipur Badli.
14. Ex. PW1/13 is the original letter dated 21.04.2009 from M/s Aditi Consultants Pvt. Ltd. to plaintiff.
15. Ex. PW1/14 is the copy of letter dated 14.05.2009 from M/s Alka Gupta & Associates to plaintiff.
16. Ex. PW1/15 is the office copy of letter dated 29.05.2009 from plaintiff to M/s Aditi Consultants Pvt. Ltd.
17. Ex. PW1/16 is the original list of papers submitted from plaintiff to M/s Alka Gupta & Associates.
18. Ex. PW1/17 is the original letter dated 29.06.2009 from M/s Aditi Consultants Pvt. Ltd. to plaintiff.
19. Ex. PW1/18 is the original letter dated 30.07.2009 from plaintiff to Canara Bank.
20. Ex. PW1/19 (Colly.) is the copy of letter dated 03.08.2009 from plaintiff to M/s Alka Gupta & Associates.
21. Ex. PW1/20 is the office copy of letter dated 03.08.2009 from plaintiff to M/s Aditi Consultants Pvt. Ltd.
22. Ex. PW1/21 is the office copy of letter dated 14.09.2009 from plaintiff to M/s Aditi Consultants Pvt. Ltd.
23. Ex. PW1/22 is copy of letter dated 15.09.2009 from plaintiff to M/s Alka Gupta & Associates.
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24. Ex. PW1/23 is the office copy of letter dated 22.10.2009 from plaintiff to defendant no. 2.
25. Ex. PW1/24 is the copy of letter dated 22.10.2009 from plaintiff to M/s Alka Gupta & Associates.
26. Ex. PW1/25 is the office copy of letter dated 22.10.2009 from plaintiff to M/s Aditi Consultants Pvt. Ltd.
27. Ex. PW1/26 is the office copy of letter dated 22.10.2009 from plaintiff to defendant no. 1.
28. Ex. PW1/27 is the carbon copy of letter dated 24.11.2009 from plaintiff to M/s Aditi Consultants Pvt. Ltd.
29. Ex. PW1/28 is the office copy of letter 25.11.2009 from plaintiff to M/s Alka Gupta & Associates.
30. Ex. PW1/29 is the office copy of letter dated 15.12.2009 from plaintiff to M/s Alka Gupta & Associates.
31. Ex. PW1/30 (Colly.) is the office copy of letter dated 25.01.2010 from plaintiff to defendant no. 1.
32. Ex. PW1/31 is the office copy of letter dated 07.04.2010 from plaintiff to defendant no. 1.
33. Ex. PW1/32 is the office copy of letter dated 08.04.2010 from plaintiff to defendant no. 1.
34. Ex. PW1/33 is the copy of letter dated 15.04.2010 from plaintiff to defendant no. 1.
35. Ex. PW1/34 is the office copy of letter dated 17.04.2010 from plaintiff to defendant no. 1.
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36. Ex. PW1/35 is the copy of letter dated 21.07.2010 from plaintiff to defendant no. 1.
37. Ex. PW1/36 is the office copy of letter dated 28.08.2010 from plaintiff to defendant no. 1 together with original postal receipt.
38. Ex. PW1/37 is the office copy of letter dated 17.09.2010 from plaintiff to defendant no. 1 together with original postal receipt.
39. Ex. PW1/38 is the original letter dated 03.12.2010 from defendant no.1.
40. Ex. PW1/39 is the copy of letter dated 05.07.2010 of defendant no. 2.
41. Ex. PW1/40 is the rent agreement.
B. PW-2 is HC Chetan Kumar, No. 246/OD, PS-S.P. Badli, Delhi. He is a summoned witness who has proved the documents which are already Ex. PW2/1, Ex. PW2/2 and Ex. PW1/5.
C. PW-3 is ASI Rajender Kuma, No. 688 OD MHC (R), PS- S.P. Badli, Delhi. He is a summoned witness who has proved EVIDENCE ON BEHALF OF DEFENDANT No. 1
16. Defendant no. 1 in order to prove itself has examined the following two witnesses:
A. D1W1 is Sh. Rajeev Chopra, Senior Divisional Manager, Oriental Insurance Company Ltd. He has tendered his evidence by way of affidavit Ex D1W1/A which bears his signature at point A and B. He also relied upon the following documents:
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1. Ex. D1W1/1 is the Power of Attorney.
2. Ex. D1W1/2 is the repudiation letter dated 03.12.2010.
3. Mark A is the Survey Report dated 27.11.2009.
B. D1W2 is Sh. Sanjay Kumar Narang S/o Sh. H.K.L. Narang. He has tendered his evidence by way of affidavit Ex D1W2/A which bears his signature at point A and B. He also relied upon the following documents:
1. Ex. D1W2/1 (Colly.) (10 pages) is the Final Survey Report dated 27.11.2009.
17. The cross examination of D1W2 was deferred on account of production of documents at the behest of the plaintiff on 23.02.2019. However, the Ld. Counsel for the plaintiff had taken adjournments on frivolous grounds and therefore, this court has closed his opportunity to cross examine vide order dated 22.08.2019.
Since none was appearing for and on behalf of defendant No. 2, it was proceeded ex-parte.
18. My issue-wise findings are as follows:
ISSUE NO. 1 Whether the plaintiff is entitled to a decree of recovery of Rs. 10,44,482/- as per prayer clause (1) of the plaint? OPP The onus to prove this issue is upon the plaintiff. The plaintiff in order to prove this issue has examined Sh. Arun Kumar, Manager of the CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 12 of 18 Vs. The Oriental Insurance Company Ltd. & Ors.
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plaintiff as PW-1. The defendant no. 1 on the other hand to disprove the case of the plaintiff has examined Sh. Rajiv Chopra, Senior Divisional Manager of the defendant no. 1 as D1W1 and Sh. Sanjay Kumar Narang, a qualified Chartered Accountant and Director in M/s. Aditi Insurance Surveyors and Loss Assessors Pvt. Ltd. as D1W2. In the cross examination of D1W2, it is stated that he has visited the godowns of the plaintiff from where the goods were stolen. He had further stated that on inspection he found that there was no material in the premises and there were spider webs. He further stated that from the inspection of the godown he could infer that no recent movement of goods had taken place and no imprints of the goods were found in the premises. It is further stated by him that the goods stated to be lost by the plaintiff did not correlate the balance sheet. He had also relied upon the Final Survey Report dated 27.11.2009 which is Ex. D1W2/1.
After the perusal of the Final Survey Report dated 27.11.2009 issued by M/s. Aditi Consultants Pvt Ltd. on behalf of defendant no. 1 as well as the Final Survey Report by M/s. Alka Gupta & Associates on behalf of defendant no. 2, this court is of the considered view that although the plaintiff had two insurance policies for burglary/theft, he is not entitled for the recovery of Rs. 10,44,482/-. It is found that although the loss is assessed by the surveyors, however, the insurance policy of defendant no. 1 and defendant no. 2 covered only the goods that were owned by the plaintiff and not the consigned goods. As per the Survey Report of defendant no. 2, the plaintiff has stated as under:
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"The insured has pledged their stocks to Canara Bank, Chandni Chowk Branch against a Cash Credit limit and accordinlgy a half yearly stock statement for the half year ending 31.03.2009 was submitted to us which was matched with Balance Sheet as on 31.03.2009 and the stock ledger on the same date and observed that:
Stocks on 31.03.2009
As per Balance Sheet : Rs. 53,47,966
As per Stock Statement : Rs. 72,67,026
As per Stock Ledger : Rs. 71,30,966
Stocks on other dates as per stock ledger: 31.03.2008: Rs. 55,48,494 31.01.2009: Rs. 1,12,30,536 28.02.2009: Rs. 78,27,870 We asked the insured about the mismatched stock figures as on 31.03.2009 and they confirmed that they are in the possession of goods on consignment basis also which are held by them on trust and these are included in stock ledger and stock statement but not in Balance Sheet as these stocks are not owned by them. Since, the stolen goods formed part of consigned goods held on commission basis, which were not owned by the insured, hence these were not included in Balance Sheet. In our opinion, the insured can pledge only those stocks to the bank which are owned by them and not all the stocks lying with them but belonging to others".
The policy has been taken by them to protect the owned goods and not trust goods as the coverage of the stocks does not include Trust/Commission Goods. Therefore, the insured's justification that CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 14 of 18 Vs. The Oriental Insurance Company Ltd. & Ors.
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they included others stocks in their stock statement does not hold any ground. Moreover, the stolen goods were also consigned goods and not owned goods for which insured was not responsible.
Moreover, the invoices supplied by the plaintiff which are also exhibits PW1/7 and PW1/8 clearly stipulates that the plaintiff was the consignee of the goods stated to be stolen and they were not the owners of the said goods. The insurance policy issued by defendant no. 1 do not cover the consigned goods. Therefore, the plaint of the plaintiff is beyond the insurance policy issued by defendant no. 1. This court relies upon the judment of National Consumer Disputes Redressal Commission, New Delhi in "Cross Trade Links Vs. Oriental Insurance Co. Ltd." (2017(2) CPR 167) wherein it was held that even if an assumption is taken that theft was committed by breaking open locks of subject premises, then also in order to succeed the party must prove that stolen articles belongs to him.
MacGillivray on Insurance Law elucidates the principles which govern the interpretation of insurance contracts:
"11-007 It is an accepted canon of construction that a commercial document, such as an insurance policy, should be construed in accordance with sound commercial principles and good business sense,so that its provisions receive fair and sensible application. Several consequences flow from this principle...
11-008 It follows that in interpreting any clause of an policy, it is correct to bear in mind: (1) the commercial CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 15 of 18 Vs. The Oriental Insurance Company Ltd. & Ors.
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object of purpose of the contract: and (2) the purpose or function of the clause and its apparent relation to the contract as a whole...."
The provisions of an insurance contract must be imparted a reasonable business like meaning bearing in mind the intention conveyed by the words used in the policy document. Insurance policies should be construed according to the principles of construction generally applicable to commercial and consumer contracts. The court must interpret the words in which the contract is expressed by the parties and not embark upon making a new contract for the parties. A reasonable construction must therefore be given to each clause in order to give effect to the plain and obvious intention of the parties as ascertainable from the whole instrument. The liability of the insurer cannot extend to more than what is covered by the insurance policy. In order to determine whether the claim falls within the limits specified by the policy, it is necessary to define exactly what the policy covered and to identify the occurrence of a stated event or the accident prior to the expiry of the policy.
This court, while interpreting the contract of insurance must interpret the words of the contract by giving effect to the meaning and intent which emerges from the terms of the agreement. In a Constitution Bench decision of this Court in "General Assurance Society Ltd. v Chandumull Jain", it was observed thus:
11..... in interpreting documents relating to a contract CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 16 of 18 Vs. The Oriental Insurance Company Ltd. & Ors.
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of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves....."
The court through its interpretative process cannot rewrite or create a new contract between the parties. The court has to simply apply the terms and conditions of the agreement as agreed between the parties.
Ld. Counsel for the plaintiff has relied upon the judgments "Sh. Surinder Singh Bhasin Vs. United India Insurance Co. dated 20.12.2010", "Sh. Pratap Singh (Dead) through LRs. & Ors. Vs. Shiv Ram (Dead) through LRs", "Sheikh Meheboob @ Hetak & Ors. Vs. State of Maharashtra dated 10.03.2005", "Mukesh Kumar Vs. Chander Pal Singh dated 01.04.2016", "Praveen Kumar Gupta Vs. The Oriental Insurance Co. Ltd. dated 09.04.2009" and "Religare Health Insurance Co. Ltd. Vs. Harwant Singh and Anr. dt. 08.02.2021". However, none of these judgments are applicable to the facts of the present case and all are distinguishable.
This issue is decided against the plaintiff and in favour of defendant.
ISSUE NO. 2 Whether the plaintiff is also entitled to recover interest @ 12% per annum or at what other rate? OPP The onus to prove this issue is upon the plaintiff. That since CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 17 of 18 Vs. The Oriental Insurance Company Ltd. & Ors.
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issue no. 1 is decided against the plaintiff the issue no. 2 has become infructuous. This issue is decided against the plaintiff and in favour of the defendant.
ISSUE NO. 3. Whether the plaint has been signed, verified and instituted by a duly authorized person? OPP Since the suit is dismissed against the plaintiff, this issue has become infructuous.
RELIEF The present suit is dismissed as all the issues are decided against the plaintiff. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Shivali Bansal
Court on 06.08.2022 Additional District Judge-03
North District, Rohini Courts
Delhi
CS No. 58469/16 M/s Richoo Mal Bishan Sarup Page: 18 of 18
Vs.
The Oriental Insurance Company Ltd. & Ors.