Delhi District Court
Pankaj Malhotra vs M/S Delhi Metro Rail Corporation on 12 September, 2017
IN THE COURT OF SH. PRITAM SINGH, ADJ-04, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI.
Civil Suit No. 7424/16
Pankaj Malhotra
S/o Sh. Satish Kumar Malhotra
Through its Special Power of Attorney
Sh. Satish Malhotra
R/o 816, Raja Garden
Old Faridabad (Haryana) ...........Plaintiff
Versus
1. M/s Delhi Metro Rail Corporation
through its Managing Director/
Deputy General Manager/C&S Metro Bhawan,
Fire Brigade Lane, Barakhama Road,
New Delhi-110001.
2. Dheeraj Gupta
Contractor
F-316, Pandav Nagar,
Delhi-110051
3. HDFC Ergo General Insurance Co. Ltd.
Registered Office
Raman House, H.T. Parekh Marg
169, Backbay Redamation,
Mumbai-400020 ........Defendants
Date of institution of the suit : 22.05.2012
Date reserved for judgment : 30.08.2017
Date of pronouncement of judgment :12.09.2017
Suit for recovery for a sum of Rs. 6,60,923/-
JUDGMENT
Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 1/20
1. The brief facts of the case as stated in the plaint are that Sh. Pankaj Malhotra, plaintiff filed the instant suit through his special power of attorney holder, Sh. Satish Malhotra. The plaintiff is registered owner of vehicle bearing No. HR-51AM-4735 Hyundai I-10 Sportz (hereinafter referred to as vehicle in question) having Chasis No. 827799, Engine No. 600198 manufactured in the year 2011. The vehicle in question was got insured with the defendant No.3 at the time of purchase and cover note was issued by the defendant No.3 covering the period from 03.04.2011 to 02.04.2011. On 09.05.2011 at about 9:40 a.m., the vehicle in question was being driven by Sh. Arun Malhotra S/o Sh. Satish Kumar Malhotra, who parked the vehicle in question in the parking site at Badarpur Metro Station, New Delhi. The attendant of the car parking there under defendant No.1 had issued a parking slip bearing No. 061808 to Sh. Arun Malhotra and on his demand, Sh. Arun Malhotra handed over the keys of the vehicle to him (attendant). However, at about 7:30 p.m on 09.05.2011, when Sh. Arun Malhotra came to the parking, he did not find the vehicle in question in the parking. The attendant could not provide any help and Sh. Arun Malhotra lodged a complaint with regard to theft of the suit vehicle at DMRP, Kashmere Gate, Delhi. On 13.05.2011, an FIR No. 13/11 was lodged with Crime and Railway, Kalkaji Mandir, Metro Police Station in respect of theft/misappropriation of the suit Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 2/20 vehicle.
2. It is further stated that the parking at Badarpur Metro Station, New Delhi, is under direct control and supervision of defendant No.1. The defendant No.2, Contractor of the said parking, was working under the control of defendant No.1. On 06.06.2011, the defendant No.1 had asked the defendant No.2 to make good the losses suffered by the plaintiff within seven days and defendant No.2 was further warned, if he failed to make good the losses to the plaintiff, the deposits made by the defendant No.2 with the defendant No.1 would be used to compensate the plaintiff. On 10.08.2011, the defendant No.1 informed the plaintiff that the security deposit lying with the defendant No.1 was withheld by them and they would release the said amount only after settlement of the plaintiff's claim against the suit vehicle. In the meantime, the plaintiff had filed his claims with the defendant No.3 in respect of the suit vehicle. However, the defendant No.3 informed the plaintiff vide letter dated 14.07.2011 that the claim of the plaintiff was rejected in terms of general exception No.2 of the insurance policy.
3. It is further stated that the plaintiff had purchased the suit vehicle for a sum of Rs. 4,49,191/- and got insured the same with the defendant No.3 and paid the premium of insurance. It is further stated that the Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 3/20 plaintiff had to spent Rs. 1,87,200/- on the travel expenses by hiring a private taxi from his home at old Faridabad, Haryana to his place of work Nehru Place, New Delhi. It is prayed that a decree of Rs. 6,60,923/- alongwith future interest @ 24% per annum may kindly be passed in favour of the plaintiff and against the defendants.
4. Separate written statements were filed on behalf of the defendants. It is stated in the written statement of defendant No.1 that vide LOA dated 01.11.2010, defendant No.1 appointed defendant No.2 as Contractor from 14.01.2011 and the same was operated upto 13.05.2011 i.e for a period of four months and during this period, the defendant No.2 had full responsibility for making arrangements of the safe custody of the vehicle to be parked in the parking area at Badarpur Metro Station. It is further stated that the attendants at Badarpur Metro Station Parking, who issued the parking slip and managed the parking process, were employees of defendant No.2 and he is liable for the negligence on their part. It is further stated that the defendant No.1 is not liable to make any payment to the plaintiff. All other averments made in the plaint were denied by defendant No.1.
5. It is stated in the written statement of defendant No.2 that on 01.11.2010, the Delhi Metro Rail Corporation (DMRC) issued a letter whereby allotted the parking site at Badarpur Metro Station for a period Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 4/20 of four months i.e from 01.11.2010 to 01.03.2011 to the defendant No.2. After the expiry of the period of four months, the contract was not extended. Further on 14.05.2011, the possession of the parking site was handed over to the defendant No.2 for running the parking. It is further stated that theft of the vehicle of the plaintiff was taken place on 09.05.2011 but on that day, the defendant No.2 was not running the parking at the Badarpur Metro Station. All other avements made in the plaint in respect of defendant No.2 were denied.
6. In the written statement of defendant No.3, it is stated that at the time of theft, the vehicle of the plaintiff was parked in the authorized parking of defendant No.1 under the contract of defendant No.2, thus, there was a contractual liability of defendant No.1 & 2 to make good the losses of the plaintiff. It is further stated that as per general exception No.2 of Policy issued by the defendant No.3 to the plaintiff, the defendant No.3 shall not be liable in respect of any claim arising out of any contractual liability. Therefore, the defendant No.3 is not liable to make any payment to the plaintiff. It is further stated that the suit is bad for misjoinder of parties. All other averments made in the plaint were denied by the defendant No.3.
7. Replications to the written statements were filed on behalf of the plaintiff. In the replications, the plaintiff has denied the averments made Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 5/20 in the written statements and reiterated and reaffirmed the contents of the plaint.
8. From the pleadings of the parties, the following issues were framed on 05.08.2014.
ISSUES
1. Whether defendant no.1 is not liable to make any payment in view of clause 8 of the quotation document as stated in para 2 of the preliminary objection in the written statement filed by defendant no.1? OPD-1
2. Whether the defendant no.2 is negligent and is under contractual obligation to make the payment for the theft of the vehicle belonging to the plaintiff? OPP
3. Whether the insurance company is liable to make the payment in view of the vehicle was insured with defendant no.3? OPP
4. Whether the defendant no.1 is liable to make the payment in view of the fact that defendant no.2 had handed over the parking space back to defendant no.1 as per preliminary objection no.2 taken in the written statement of defendant no.2? OPD-2
5. Whether the plaintiff is entitled for suit amount alongwith pendente-lite and future interest? OPP
6. Relief.
9. In support of his case, plaintiff examined his Attorney Sh. Satish Malhotra as PW-1, who tendered his evidence by way of affidavit Ex. PW1/1. Plaintiff relied upon the following documents:
1. Ex.PW1/A is special power of attorney.
2. Mark-A1 is registration certificate of the car.
Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 6/20
3. Ex.PW1/A-2 is insurance policy.
4. Mark-B is copy of parking slip.
5. Ex.PW1/C is police complaint.
6. Ex.PW1/D is FIR.
7. Ex.PW1/D-1 is seizure memo.
8. Ex.PW1/D2 and Ex.PW1/D3 are attendance sheets.
9. Ex.PW1/D4 is representation to the authorities.
10. Mark-E is letter dated 06.06.2011.
11. Ex.PW1/F is letter dated 10.08.2011.
12. Ex.PW1/G is letter dated 12.07.2011.
13. Ex.PW1/H is invoice of the car.
14. Ex.PW1/H-1 is insurance cover note.
15. Ex.PW1/I-1 to Ex.PW1/I-11 are Bills (wrongly mentioned in the affidavit as Ex.PW1/I-1 to Ex.PW1/I-13).
10. In defence evidence, defendant No.2, Sh. Dheeraj Gupta examined himself as DW2/1 and tendered his evidence by way of affidavit Ex. DW2/1-X. Defendant No.2 relied upon the following documents:
1. Ex.DW2/1-A is letter dated 01.11.2010.
2. Ex.DW2/1-D is letter dated 17.01.2011.
3. Ex.DW2/1-E is letter dated 18.05.2011.
4. Ex.DW2/1-F is certified copy of seizure memo of stolen car.
5. Ex.DW2/1-I is certified copy of chargesheet/challan of FIR No. 13/2011, P.S. Kalkaji.
6. EX.DW2/1-J is certified copy of charge u/s 411 IPC.
7. Mark D2A is photocopy of letter of handing over/taking over possession of parking site dated 14.05.2011.
Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 7/20
8. Mark D2B is photocopy of site plan of parking.
9. Mark D2C (colly.) is photocopy of eight photographs of stolen car.
10. Mark D2D is photocopy of status report dated 20.05.2013.
11. In defence evidence of defendant No. 3, Sh. Pankaj Kumar was examined as D3/W1, who tendered his evidence by way of affidavit Ex.
D3W1/A. Defendant No.3 relied upon the following documents:
1. Ex. D3W1/1 is the Power of Attorney dated 05.03.2015.
2. Ex. D3W1/2 (Colly) running into 11 pages is the Insurance Policy alongwith terms and conditions.
3. Ex. D3W1/3 is the investigation report.
4. Ex. D3W1/4 (Colly) running into two pages is the photographs (digital copies) of recovered vehicle.
12. Arguments heard. Records perused and considered. Ld. Counsel for defendant No.3 relied upon the following rulings.
1. The New India Insurance Company Ltd. vs. Delhi Development Authority AIR 1991 Delhi 298.
2. Mahesh Enterprises vs. Arun Kumar Gumber & Ors., date of decision: 15.11.2000, National Consumer Disputes Redressal.
13. My findings on the issues are as under:
14. Issue No. 1 & 4 are interconnected, according to defendant No.1, Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 8/20 defendant No.2 is liable being contractor of the parking site in question.
On the other hand, according to defendant No.2, he had handed over the parking site back to defendant No.1 and defendant No.1 is liable to make payment to the plaintiff. Therefore, both these issues are being decided jointly.
ISSUE No.1 : Whether defendant no.1 is not liable to make any payment in view of clause 8 of the quotation document as stated in para 2 of the preliminary objection in the written statement filed by defendant no.1?OPD-1 Issue No.4: Whether the defendant no.1 is liable to make the payment in view of the fact that defendant no.2 had handed over the parking space back to defendant no.1 as per preliminary objection no.2 taken in the written statement of defendant no.2? OPD-2
15. The defendant No.1 filed affidavit of Sh. A.S. Rao, Assistant Law Officer of defendant but defendant No.1 neither got tendered the affidavit of Sh. A.S. Rao in its evidence nor produced him for his cross- examination. As a result of which, the defendant No.1 has failed to prove the clause 8 of the quotation as no such document is proved. During the cross-examination of PW-1, a suggestion was given to PW-1 by Ld. Counsel for the defendant No.1 that defendant No.2 was authorized contractor of the parking by the DMRC i.e defendant No.1 and further Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 9/20 that the vehicle in question was insured with defendant No.3. Both these suggestions were replied in affirmative by PW-1. However, the defendant No.2 has denied that he was a contractor of the parking of defendant No.1 at the time of theft of the vehicle in question, therefore, the defendant No.1 was required not only to lead evidence but also to prove that defendant No.2 was contractor of the parking site at Badarpur Metro Station at the relevant time and defendant No.1 is not liable in view of clause 8 of the quotation document. In the absence of evidence, the defendant No.1 has failed to establish that as per clause 8 of the Quotation document, it is not liable to make payment to the plaintiff. Ld. Counsel for the defendant No.1 argued that the defendant No.2 was running the parking at Badarpur Metro Station under a contract with defendant No.1. Ld. Counsel further submits that as per term of contract between them, if any loss is caused to the owner of a vehicle, defendant No.2 would be liable. In the absence of evidence, the contention of Ld. Counsel for defendant No.1, has no substance.
16. DW2/1, Dhiraj Gupta, who is defendant No.2, deposed that on 01.11.2010, the DMRC (defendant No.1) officials issued a letter whereby allotted the parking site only for the period of four months i.e till 01.03.2011 and accordingly he (defendant No.2) was running the parking site of DMRC. DW2/1 further deposed after the expiry of the period of Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 10/20 four months, no extension was granted to him. The parking site of the DMRC was not in his possession and control on the date of alleged theft. DW2/1 further deposed that the parking site was handed over to him on 14.05.2011 whereas the alleged incident of theft occurred on 09.05.2011. DW2/1 was not cross-examined by the Counsel for the defendant No.1, therefore, the deposition of DW2/1 that he was not in control and possession of the parking site on the day of theft of the vehicle in question went unrebutted. DW2/1 has also proved the letter dated 01.11.2010 Ex. DW2/1-A issued by DMRC (defendant No.1) to defendant No.2 whereby the parking site at Badarpur Metro Station was granted for four months to defendant No.2 i.e from 01.11.2010 to 01.03.2011. DW2/1 further proved the note dated 14.05.2011 Mark 'D2- A' issued by DMRC (defendant No.1). Vide note Mark 'D2-A', defendant No.1 handed over the parking site at Badarpur Metro Station to defendant No.2 on 14.05.2011. The parking slip Mark 'B' is also not bearing the name of the defendant No.2 then how it can be said that defendant No.2 was contractor of the parking site at Badarpur Metro Station. Thus, it is established that at the relevant time i.e 09.05.2011, defendant No.2 was not in contract with defendant No.1 to run the parking site at Badarpur Metro Station. Hence, the issue No.1 and issue No. 4 are decided in favour of defendant No.2 and against the defendant No.1. Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 11/20 Issue No.2: Whether the defendant no. 2 is negligent and is under contractual obligation to make the payment for the theft of the vehicle belonging to the plaintiff? OPP
17. As per the findings on Issue No. 1 and Issue No. 4, it is established that the defendant no. 2 was not running the parking at the site of Badarpur Metro Station. When defendant no. 2 was not running the parking at the site of Badarpur Metro Station then how he can be held negligent for the theft of the vehicle in question. Even otherwise as per the case of the plaintiff, on the day of the theft of car in question the keys of the car was given by Sh. Tarun Malhotra to the attendant at the parking site of Badarpur Metro Station. Neither the plaintiff nor the defendant no. 1 has brought on record any evidence to prove that the said attendant was an employee of defendant No. 2. On the other hand, defendant no. 2 has established that he was not running the parking site at the Badarpur Metro Station on the date and time of theft of the car in question. Hence, this issue is decided in favour of the defendant No.2 and against the plaintiff.
Issue No.3 : Whether the insurance company is liable to make the payment in view of the vehicle was insured with defendant no.3? OPP
18. It is not in dispute that the vehicle in question was under insurance with the defendant No.3 on the day of its theft. Generally, when an Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 12/20 insured vehicle is stolen, the insurance company is liable to make payment to the owner of the said vehicle. However, in the case in hand, the defendant No.3, the insurance company with whom the vehicle in question was insured took a defence that the plaintiff entered into a contract with defendant No.1 and 2, therefore, the defendant No.3 is not liable to make payment to the plaintiff.
19. D3/W1, Sh. Pankaj Kumar deposed that at the time of theft, the vehicle of the plaintiff was parked in the authorized parking of the defendant No.1 under the contract of the plaintiff and defendant No.1 & 2 and the vehicle was stolen from the custody of the defendant No.2 being parking contractor, therefore, the liability came under the contractual liability to defendant No.1 & 2. D3/W1 further deposed that as per General Exception No.2 of Policy issued by the defendant No.3, the company (defendant No.3) shall not be liable in respect of any claim arising out of any contractual liability. D3/W1 further deposed that admittedly the keys of the vehicle in question was handed over to the parking attendant which had resulted the theft of the vehicle. The act of handing over keys amounted to "not taking reasonable care' and thus violation of condition 4 of the Policy.
20. The contention of defendant No.3 that as the plaintiff entered into contract with defendant No.1 & 2, therefore, defendant No.3 is not liable Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 13/20 to make payment to the plaintiff, has no substance. The Hon'ble Supreme Court of India in National Insurance Company Limited vs. Nitin Khandelwal, Civil Appeal No. 3409 of 2008, date of decision:
08.05.2008 has held, "In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle, breach of condition is not germane. The appellant-Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the Insurance Policy, the appellant - Insurance Company ought to have settled the claim on the non- standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft."
21. In Amalendu Sahu vs. Oriental Insurance Company Limited, Civil Appeal No. 2703 of 2010, date of decision: 25.03.2010, the Hon'ble Supreme Court has reiterated the law as laid down in National Insurance Company Limited vs. Nitin Khandelwal (supra). Thus, it is clear that even in the case of violation of terms of the Insurance Policy, the Insurance Company is liable to make the payment to the insurer and cannot escape from its liability in the garb of violation of terms of the policy. The rulings relied upon by Ld. Counsel for the defendant No.3 Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 14/20 are not applicable to the facts of the case. In Mahesh Enterprises vs. Arun Kumar Gumber & Ors (supra), the car was not covered by Insurance at the time of mishap, therefore, the Insurance Company was not held liable to indemnify the owner of the car. However, in the case in hand, the vehicle in question was covered under a comprehensive policy for the loss caused to its owner. Similarly, the ruling The New India Insurance Company Ltd. vs. Delhi Development Authority (supra) is not applicable because in the said ruling, the owner of the vehicle and the Insurance Company were held entitled to claim the compensation from the Delhi Development Authority and its Contractor, who was running a parking at the time of theft of the vehicle. The defendant No.3 can claim the recovery from the owner of the parking site at Badarpur Metro Station as per law but cannot deny its liability towards the insurer of the vehicle in question.
22. Ld. Counsel for defendant No.3 argued that the plaintiff had not claimed the recovery of the suit amount from the defendant No.3 and he had claimed the recovery from the defendant No.1 & 2 only, as per the prayer clause of the plaint. This contention has no substance because even if the plaintiff has not made the specific prayer against the defendant No.3 but in order to ascertain what relief the plaintiff is claiming and against whom, the entire plaint has to be considered. It is specifically Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 15/20 stated in Para 10 of the plaint, "The plaintiff has filed claims with defendant No.3, who got the car comprehensively insured. That the defendant No.3 vide its letter dated 14.07.2011 informed the plaintiff that the claim made by the plaintiff against theft of his vehicle stands rejected in terms of General Exception No.2." Not only this even the issue under consideration has been framed to ascertain the liability of the defendant No.3 in view of the vehicle was insured with it. Ld. Counsel for the defendant No.3 further argued that the plaintiff has not taken reasonable care and handed over the keys of the vehicle to the attendant, therefore, the defendant No.3 is not liable to make the payment. This argument has no force because almost in all the parkings, the attendant takes the keys of the vehicle so that the vehicle can be moved for the purpose of adjustment of other vehicles. The handing over the keys to the attendant, I am afraid, falls in the category of reasonable care not taken. Even otherwise, in National Insurance Company Limited vs. Nitin Khandelwal (supra), the Hon'ble Supreme Court has held that even in case of breach of a condition of the insurance policy, the insurance company ought to have settled the claim on non-standard basis. Ld. Counsel for the defendant No.3 further argued that the vehicle was found but the plaintiff did not get it released from the court, therefore, the defendant No.3 being Insurance Company is not liable to make good the loss to the plaintiff. It is not in dispute that the plaintiff filed a claim to Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 16/20 the defendant No.3 but the same was rejected by the defendant No.3 on the ground of contractual liability clause. Thereafter, the plaintiff filed the instant suit. By the time, the claim of the plaintiff was rejected by the defendant No.3, the vehicle in question was not recovered, therefore, the plea of Ld. Counsel for the defendant No.3 that the vehicle was recovered, therefore, the defendant No.3 is not liable, is without merit. The Insurance Company is expected to settle/clear the claim as soon as possible and cannot be allowed to keep pending the claim till the recovery of the stolen vehicle. Once the claim of an insurer is rejected, he/she has every right to challenge the rejection of the claim before the appropriate forum and at a later stage, the insurance company cannot be permitted to take the defence that the stolen vehicle has been found, therefore, it is not liable to make payment to the insurer.
23. In view of the above discussions, this issue is decided in favour of the plaintiff and against the defendant No.3.
Issue No.5: Whether the plaintiff is entitled for suit amount alongwith pendente-lite and future interest? OPP
24. As per the findings on issue No. 3 & 4, it is established that the defendant No.1 and defendant No.3 are liable to make good the loss caused to the plaintiff. However, the defendant No.1 and defendant No.3 Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 17/20 are liable to make payment of the price of vehicle in question at the time of its insurance. PW-1 deposed that the vehicle was purchased for Rs. 4,49,191/- from the authorized dealer of M/s Hyundai Motors India Ltd. PW-1 further deposed that the vehicle was insured with defendant No.3 having paid a sum of Rs. 13,932/- and a sum of Rs. 10,600/- was paid on account of registration charges, road tax etc. PW-1 further deposed that the plaintiff had to spend Rs. 1,87,200/- from the date of theft of the vehicle in question upto the month of April 2012 on account of hiring/using transportation for going from his home at old Faridabad, Haryna to his place of work at a Nehru Place, New Delhi.
25. It is not in dispute that the vehicle in question was stolen from the parking site at Badarpur Metro Station. The plaintiff has also proved that the vehicle in question was stolen from the parking site, Badarpur Metro Station. I am of the considered view that the plaintiff is only entitled for the sum of insurance policy. Perusal of Insurance Policy Ex. PW1/A2 reveals that the value of the vehicle in question was Rs. 4,26,731/- at the time of its insurance. Therefore, the plaintiff is only entitled for a sum of Rs. 4,26,731/-. The plaintiff is not entitled to claim the insured charges, registration charges and road tax etc. The plaintiff is also not entitled for Rs. 1,87,200/- which he claimed to spend on transportation for going from his home to his work place at Nehru Place, New Delhi. During the Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 18/20 course of the arguments, Ld. Counsel for the defendant No.3 submitted that the suit was filed by the plaintiff through his Attorney Sh. Satish Malhotra but Sh. Satish Malhotra was not present at the time when the vehicle was parked at the parking site, Badarpur Metro Station and the keys were handed over to the attendant there. Ld. Counsel further submitted that the evidence of the PW-1 are hearsay. I do not find any substance in this submission of Ld. Counsel for the defendant No.3. As it is not in dispute that the vehicle was stolen from the parking site at Badarpur Metro Station and an FIR Ex. PW1/D was lodged, and the vehicle could not be traced by the Police till the claim of the plaintiff was rejected by the defendant No.3, therefore, these facts are not required to be proved by the plaintiff. It is well settled law that admitted facts need not to be proved.
26. In view of the above discussion, this issue is decided in favour of the plaintiff and against the defendant No.1 & 3.
Relief.
27. As per findings on issue No. 3, 4 and 5, the plaintiff is entitled for a sum of Rs. 4,26,731/- alongwith interest @ 8% per annum from filing of the suit till realization of the decretal amount. Accordingly, a decree in the sum of Rs. 4,26,731/- alongwith interest @ 8% per annum from filing of the suit till realization of the decretal amount, is Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 19/20 passed in favour of the plaintiff and against the defendant No. 1 & 3.
28. The cost of the suit is also awarded to the plaintiff.
29. Decree-sheet be prepared, accordingly.
30. File be consigned to the Record Room.
Announced in the open court. (PRITAM SINGH)
Dated:12.09.2017 ADJ-04 (South)
Saket Courts/New Delhi
Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 20/20 Civil Suit No. 7424/16 Pankaj Malhotra vs. M/s Delhi Metro Rail Corporation & Ors. 21/19