Delhi District Court
Deepak Lakra vs The New India Assurance Co. Ltd on 16 February, 2021
IN THE COURT OF MS. NISHA SAXENA: DISTRICT
JUDGE (COMMERCIAL COURT)04,CENTRAL, TIS
HAZARI COURTS, DELHI
CS (Comm.) No. 756 of 2020
DEEPAK LAKRA
S/O SH. HEM CHANDER
R/O H.NO.753, VILLAGE MUNDKA,
NEW DELHI110041. ....PLAINTIFF
Versus
THE NEW INDIA ASSURANCE CO. LTD.
THROUGH ITS DIVISIONAL MANAGER,
OFFICE AT : 7E, JHANDEWALAN EXTN.,
NEW DELHI110055. ....DEFENDANT
Date of filing of the suit : 06.02.2020
Date of reserving judgment : 15.02.2021
Date of judgment : 16.02.2021
Judgment
1.This is a suit for recovery of Rs.17,50,000/ alongwith interest filed on behalf of the plaintiff. CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 1 Plaintiff's case
2. The plaintiff was owner of earth moving machine (JCB) having registration number HR63B3953 bearing chassis no.1739330 and engine no.400009149 purchased on 27.07.2011. The vehicle was financed/ under hypothecation with Magma Fincorp Limited. The plaintiff got the said vehicle insured from the defendant New India Assurance Company Limited. The insurance was valid from 27.07.2012 to 26.07.2013.
3. It is stated by the plaintiff that on 30.08.2012 at about 07.00 pm in night, the driver of the plaintiff namely Umesh safely and carefully parked the said vehicle in front of the office of the plaintiff i.e. near Metro pillar no.485, Swarn Park, Mundka, Delhi and carefully put the keys of the JCB in the office room as they used to put them daily, but when the driver of the vehicle woke up at about 05.00 am the next morning, he found the keys were missing and the vehicle was stolen. He immediately made a call at 100 number and called the police. CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 2 FIR was promptly registered but even after due efforts and proper investigation, the vehicle could not be traced out and the investigating officer filed an Untraced Report under section 173 Cr.P.C.
4. The plaintiff promptly informed the defendant about the theft of the said vehicle and filed the claim alongwith copy of call proof at 100 number, FIR, Untraced Report, Insurance Cover Note and other documents as demanded by the defendant. The defendant rejected his claim citing improper handling of the keys and deliberately misleading the defendant through concealment of facts vide letter no.2538 dated 22.07.2013. The plaintiff paid the entire loan to Magma Fincorp Limited.
5. Initially, plaintiff filed a consumer complaint before the Hon'ble Consumer Redressal Forum, I.P. Estate, District New Delhi in the year 2013 under the bonafide impression and CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 3 belief that the Hon'ble District Forum had jurisdiction to entertain and adjudicate the same.
6. The Hon'ble District Forum vide order dated 21.08.2017 directed the plaintiff to file the complaint before the forum of competent jurisdiction and returned the complaint with the finding that the complaint be filed before the competent jurisdiction within 3 months of the receipt of order.
7. The plaintiff accordingly filed the complaint before the Hon'ble Consumer Redressal Forum, District Central, New Delhi. The Hon'ble District Forum held that the complaint was not maintainable before the consumer forum since the vehicle was being used for commercial purpose, so the complainant was not a 'consumer within the meaning of section 2 (d) of the Consumer Protection Act. The Hon'ble Forum gave liberty to the complainant to file the complaint before the appropriate civil court for proper adjudication, giving benefit of section 14 CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 4 of the Limitation Act to the plaintiff to seek proper remedy.
8. The plaintiff has prayed for a decree for recovery of Rs.15,00,000/ as claim for insurance of the stolen vehicle make JCB, bearing no. HR63B3953, a decree of Rs.1,00,000/ as compensation for mental pain and suffering, a decree of Rs.1,00,000/ as compensation towards deficiency in service, litigation charges amounting to Rs.50,000/ alongwith interest @ 24% p.a. from the date of filing of consumer complaint before Consumer Redressal Forum, I.P. Estate, New Delhi since 2013 till disposal of the suit. Defendant's case
9. In the written statement, the defendant has taken the objection that the suit is hopelessly time barred under Article 27 of the Limitation Act. It is also alleged that the plaintiff has been totally careless, negligent and that the keys of the CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 5 earthmoving machine JCB were not handled in a proper way in the office since there is no breaking of windows, door and does not reveal any forcible entry. It is stated that the claim of the plaintiff was rejected on valid grounds giving all facts in the letter dated 22.07.2013.
ISSUES
10. On the pleadings following issues were settled for trial on 12.11.2020.
1). Whether there was actual theft of JCB, if so, did it take place due to negligence on the part of the plaintiff and is the same covered under the policy as alleged by the defendant? OPD.
2). Whether the plaintiff is entitled for recovery of the amount of Rs.17,50,000/ as claimed in the suit? OPP.
3). Whether the plaintiff is entitled for interest, if any, if so at what rate? OPP.
4). Relief.
CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 6 An issue was also framed 'Whether the suit of the plaintiff is time barred under Article 27 of the Limitation Act', however, the issue was not pressed for by the counsel for the parties as the limitation was decided by the court vide order dated 16.09.2020 while disposing of application under section 14 read with Section 5 of the Limitation Act.
Evidence Plaintiff Evidence
11. Plaintiff examined three witnesses in order to prove his case who have proved their affidavits as PW1/1, Ex.PW1/2 and PW3/A respectively.
Ex.PW1 Deepak Lakra, plaintiff
Ex.PW2 Hem Chander, father of plaintiff
Ex.PW3 Constable Rahul, PS Nangloi
DOCUMENTS RELIED UPON BY THE PLAINTIFF:
Ex.PW1/1 Copy of receipt of RC.
Mark A Copy of Insurance
Mark B Documents relating to Untraced Report
(colly. 8
pages)
CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 7 Ex.PW1/2 Copy of Settlement letter Mark C Rejection letter issued by the defendant Mark D Copy of complaint filed before Consumer (colly.) Forum Mark E Application of the defendant u/s 11 a to c (colly.) Mark F Copy of order of Consumer Forum dated (colly.) 21.08.2017.
Mark G Copy of application and written statement (colly.) Mark H Application for filing additional objection (colly.) Ex.PW1/3 Attested true copy of the order dated 30.10.2019.
Ex.PW3/1 DD No.10A dated 30.08.2012 Ex.PW3/2 Copy of FIR No.227/2012 dated 01.09.2012 PS Nangloi Ex.PW3/3 Relevant entry regarding Untrace Report in the FIR Index Ex.PW3/4 Untraced Report Defendant evidence
12. The defendant examined Sh. H.S. Bharti, Senior Divisional Manager, New India Assurance Company who proved his affidavit as Ex.DW1/A. CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 8 Findings
13. I have heard Ld. counsel Mr. Ramesh Kumar Chahal for the plaintiff and Mr. L.C. Sethi for the defendant at length and also meticulously and scrupulously gone through the entire record including the written submissions and rulings filed on behalf of the parties.
14. ISSUE NO.1 &2
1). Whether there was actual theft of JCB, if so, did it take place due to negligence on the part of the plaintiff and is the same covered under the policy as alleged by the defendant? OPD.
2). Whether the plaintiff is entitled for recovery of the amount of Rs.17,50,000/ as claimed in the suit? OPP.
15. Issue no.1 and 2 are intertwined and involve common discussion, therefore both the issues are being decided together. As per the plaintiff, on 30.08.2012 at about 07.00 pm the driver CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 9 of the plaintiff namely Mr. Umesh parked the vehicle in front of the office i.e. near Metro Pillar no.485, Swarn Park, Mundka, Delhi and carefully put the keys of the JCB in the office room where they used to put them daily but when the driver woke up at 05.00 am, the next morning, he found the keys missing and the vehicle stolen. He immediately informed the father of the plaintiff who made a call at 100 number and called the police.
16. In his cross examination, PW1 Mr. Deepak Lakra stated that the driver Mr. Umesh called his father around 05.00 am after noticing missing of the vehicle and its keys. His father called the police at 100 number immediately after receiving the information from Mr. Umesh from his residence at Mundka. He admitted that his father made call to police without verifying about missing of the vehicle and its keys. His father informed him about the theft of the vehicle and its keys at about 06/06.30 am on 30.08.2012. While in the FIR Ex.PW3/2, CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 10 the date of occurrence is shown as from 31/08/201219:00 hrs. to 01/09/20125:00 hrs.
17. PW1 Sh. Deepak Lakra also admitted that the complaint was not filed on 30.08.2012 with the police station Nangloi, Delhi. He admitted that complaint about missing of alleged vehicle and its keys was reported to the police station on 01.09.2012. PW1 Mr. Deepak Lakra also admitted that there was no forcible entry in the office on the date of incident. He denied the suggestion that the alleged vehicle has been disposed off by him and he concocted a false story of theft of the said vehicle.
18. PW2 Mr. Hem Chander, father of the plaintiff, also deposed that the vehicle was parked on 30.08.2012 at 07.00 pm by the driver Mr. Umesh and when he woke up at around 05.00 am the next morning he found the keys missing and the insured vehicle stolen. The driver immediately informed him and he CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 11 reached the office and then made a call at 100 number and called the police. Though, PW1 Mr. Deepak Lakra has stated in his cross examination that his father made call to police without verifying about missing of the vehicle and its keys, however, PW2 Mr. Hem Chander, father of the plaintiff PW1 stated in his affidavit Ex.PW2/A that he reached the office and then made a call to the police.
19. PW2 Mr. Hem Chander stated in his cross examination that he made call to PCR on 100 number on the basis of hear say of his driver Mr. Umesh. He admitted that the keys of the alleged vehicle were not kept in his presence. Similarly, the alleged vehicle was not parked in front of the office in his presence. He denied the suggestion that knowingly and deliberately date of theft is not mentioned in the FIR. He denied the suggestion that the vehicle was never stolen and a concocted story was made by him before the police. CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 12
20. PW2 also admitted in his cross examination that no Chowkidar/Security man was employed by them for safety of the vehicle. He also admitted that the keys of the alleged vehicle was kept in an open drawer of the table in their office which always remained unlocked and accessible to every person visiting their office. This statement clearly shows negligence and carelessness of the plaintiff that the keys were kept in an open drawer which was unlocked and accessible to all. No security personnel was deployed to take care of the keys.
21. PW2 has stated that the doors of the office on the intervening night of 29/30.08.2012 were closed. If the doors were closed, how could anyone have entered the room without forcible entry. A specific question was put to the witness i.e. "Q. Can you explain how the keys were taken when the doors were closed on the intervening night of 29/30.08.2012 and there had been no forcible entry?
CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 13 Ans. I cannot say how the keys went missing when the doors were closed and there was no forcible entry."
22. From the statement of PW2, it is clear that there is more to it then meets the eye. There is some manipulation or concoction in the story of the plaintiff which the plaintiff and his witnesses are unable to explain themselves as to how the keys went missing when the doors were closed and there was no forcible entry.
23. PW2 Sh. Hem Chander has denied the suggestion that he has concocted a false story to avail benefit of the insurance from the defendant and there was no actual theft.
24. PW3 Ct. Ram brought the DD book, the relevant entry was recorded vide DD no.10A dated 30.08.2012 at 05.55 am on page no.60 Ex.PW3/1, while throughout i.e. in the entire plaint and the evidence brought on record the case of the plaintiff has CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 14 been that the vehicle was stolen in the intervening night of 30/31.08.2012. According to the plaintiff, the driver parked the vehicle at about 07.00 pm on 30.08.2012 then how the DD no.10A was recorded at 05.55 am on 30.08.2012. This has gone unexplained by the plaintiff. PW3 also admitted that there was no mention in the FIR about the date of the alleged theft.
25. It has been argued on behalf of the counsel for the defendant that there is gross negligence on the part of the plaintiff and his employees. It is stated that if the story of the plaintiff is to be believed then the JCB machine was removed from its parking place due to complete and full negligence on the part of the plaintiff which is not covered under the policy contract.
26. It is also contended by Ld. Counsel for the defendant that as per the RTI report, the PCR van reached the place of occurrence at the office of the plaintiff on 30.08.2012 at 06.15 CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 15 am while the stand of the plaintiff is totally contradictory, according to which the vehicle was parked at 07.00 pm by their driver Mr. Umesh on 30.08.2012.
27. No eye witness has been produced. The driver who parked the vehicle and informed the plaintiff regarding theft of keys and JCB machine has not been examined by the plaintiff.
28. DW1 Sh. H.S. Bharti, Senior Division Manager, New India Assurance Company stated in his cross examination that the repudiation letter was issued in respect of the claim of the plaintiff due to the reasons, "willful act, deliberate and negligent act, misrepresentation of documents and concealment of facts". The company covers only the unforeseen risks and not the planned risks. As per their policy, theft/burglary are covered for insurance claim. Unforeseen is an unexpected loss. All the formalities were completed before the issuance of repudiation letter including the Surveyor's report. He also CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 16 stated that the information of theft of the vehicle was received by the defendant company after six days, though it should have been furnished by the next working day. It is stated that it is the duty of insured to take care of the parking and proper vigil of the vehicle. As per the defendant company's investigation report, the said vehicle was stolen between 29/30.08.2012.
29. On behalf of the plaintiff, no eye witness has been examined in respect of the fact in issue i.e. parking of the vehicle in front of the office of the plaintiff, placing of keys by the driver in the office, removal of the JCB machine from the place where it is alleged to have been parked on the previous day in the evening.
30. The testimony of PW1 and PW2 are in contravention of the documents filed i.e. Ex.PW3/4 which contains the Asal Tehrir that was given to the police of PS Nangloi, Delhi on 01.09.2012, it does not disclose as on which date the vehicle CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 17 was parked in front of the office of the plaintiff and on which date it was found missing by the driver. Ex.PW3/4 also contains statement of driver Mr. Umesh Kumar as well as statement of PW2 Sh. Hem Chander, recorded on 01.09.2012 under section 161 CrP.C wherein both have stated that the JCB machine was parked on 29.08.2012 and not on 30.08.2012, as mentioned in the plaint and the affidavit Ex.PW1/A and Ex.PW2/A. No efforts were made on behalf of the plaintiff to produce or summon the driver who was eye witness in the above mentioned incident.
31. It has been argued by the counsel for the defendant that it was a sheer conspiracy hatched by the plaintiff and his father to fraudulently obtain the insurance amount of the vehicle from the insurance company. I find force in the submissions of Ld. Counsel for the defendant that JCB is an earth moving vehicle, while moving it creates a lot of sound and moves slowly. The vehicle is not an ordinary vehicle which everybody could drive. CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 18 It was a JCB machine which requires a different kind of expertise to drive it and it does not seem plausible that the keys of the vehicle was stolen from a closed room without any forcible entry. There were two drivers in the 17x12 ft." one room office of the plaintiff, namely Umesh and Dinesh, but none of them noticed or came to know about the theft. No efforts were made by the plaintiff to summon Umesh and Dinesh. The plaintiff witnesses stated in their testimonies that they did not know about the residential addresses of Umesh and Dinesh and places where they belonged. The plaintiff could not produce any document to show acknowledgment/receipt of salary by the drivers for the month of August, 2012.
32. It has been submitted by the counsel for the defendant that the plaintiff intentionally did not call the driver Umesh Kumar in the witness box, although his mobile number 9015660549 and his residential address Village Pidarkon, P.S. Rampur, P.S. Gighor, District Chatra, Jharkhand are available CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 19 in the statement under section 161 Cr.P.C. Ex.PW3/4.
33. The negligence of PW1 and PW2 are reflected from the facts that they never ensured that the JCB machine was brought by the driver and parked in front of the office after completion of work, they did not ensure that the keys of JCB machine was kept in the office, they did not take any safety measure by locking the drawer of the table in which the keys was kept, they did not make provision for any security/guard during the night hours in their office as well as the site of parking of vehicle. It goes unexplained how the thief entered the closed room with two occupants to steal the keys without breaking open the office. The statement of PW1 and PW2 are based upon hear say. Eye witnesses have not been brought to the witness box nor any efforts made.
34. It has also been argued by the counsel for the defendant that witness from M/s Magma Fincorp was mentioned in the CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 20 list of witnesses, however none was called from there, depriving the defendant the opportunity to ascertain the details of the amount of the total loan balance and number of EMI due on the date of offering of settlement.
35. The story of the plaintiff does not inspire much confidence. The vehicle could not have been removed without the conspiracy of the driver, plaintiff or his father.
36. It is also bizarre and unusual that when the complaint was lodged with the police no date of occurrence or theft was given, however, while registering the FIR on the complaint of PW2, police mentioned the date of occurrence in the FIR as 31.08.2012 and 01.09.2012 from 07.00 pm to 05.00 am. The FIR was registered on 01.09.2012 at 09.45 pm. The police recorded statement under section 161 Cr.P.C. on 01.09.2012 itself of PW2 who was complainant in the FIR as well as of the driver Mr. Umesh Kumar, both have mentioned the date of CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 21 parking of the JCB vehicle as 29.08.2012 at 07.00 pm and missing on the date i.e. 30.12.2012 at 05.00 am.
37. In view of the foregoing discussions, I hold that the theft, if any, took place due to negligence on the part of the plaintiff which is not covered under the policy. The plaintiff has not able to establish its case for recovery of the amount of Rs.17,50,000/. Issue no.1 and 2 are accordingly decided against the plaintiff and in favour of the defendant.
38. ISSUE NO.3 Whether the plaintiff is entitled for interest, if any, if so at what rate? OPP.
39. Since the plaintiff is not entitled for recovery of any amount from the defendant, no question of interest arises. Issue no.3 is accordingly decided against the plaintiff and in favour of the defendant.
CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 22
40. ISSUE NO.4 Relief In view of the findings on the issues, the suit of the plaintiff stands dismissed. No order as to costs. Decree sheet be prepared. File be consigned to record room.
(NISHA SAXENA) District Judge(Commercial Court)04 Central/Delhi Announced through video conferencing hearing on 16.02.2021 pk CS (COMM.) NO. 296 of 2020 DEEPAK LAKRA VS. NEW INDIA ASSURANCE CO. LTD. 23