Delhi District Court
Anil Kapoor vs Oriental Insurance Company Limited on 26 September, 2011
Suit No. 145/2009 ANIL KAPOOR 1 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER
IN THE COURT OF Ms. AMBIKA SINGH
CJ : CENTRAL03 : ROOM No. 346 : THC : DELHI.
Suit No. 145/2009
In the matter of :
Anil Kapoor, S/o Shri O.P. Kapoor,
Sole Proprietor of M/s. Aalianze Automobiles,
Kamal Cinema Building, Safdarjung Enclave,
New Delhi110029. ..........................Plaintiff
Vs.
1. Oriental Insurance Company Limited,
Jeevan Bharti Building, 9th Floor, TowerI,
124, Connaught Place, New Delhi110001.
2. Mr. Sulip Rath,
5/24, Nehru Nagar, New Delhi. ...........................Defendants
Suit for Recovery of Rs.39,378/
Date of Institution : 23.09.2004.
Date of Decision : 26.09.2011.
Suit No. 145/2009 ANIL KAPOOR 2 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER
J U D G M E N T
1. Vide this Judgment, I shall disposeof the suit for recovery of Rs.39,378/ filed by the plaintiff against the defendants.
2. Briefly stated it is the case of plaintiff that plaintiff is the sole proprietor of M/s. Aalianz Automobiles and is an Authorized Dealer of Maruti. M/s. Aalianz Automobiles is an ISO90012000 company. The defendant No. 1 is an Insurance Company and is engaged in the insurance of earth movers, cars, vehicles etc. The defendant No. 2 is impleaded as a proforma party.
3. It is averred that vide memorandum of understanding it was mutually agreed between the parties in writing that plaintiff shall provide cashless repair to the Maruti Car Owners, who were possessing vehicle insurance cover issued by defendant No. 1, and shall submit the bill to defendant No. 1 after receipt of satisfaction from the customers.
4. It is averred that vide memorandum of understanding it was agreed between the parties that the damaged vehicle shall be submitted Suit No. 145/2009 ANIL KAPOOR 3 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER for assessment of loss/damage, repairs etc. and intimation will be given to defendant No. 1 that vehicle is under insurance cover is being submitted for repairs. An estimate of expenses/job work/replacement of parts etc. is to be submitted and insurance company would depute its valuer/surveyor to assess the loss and the vehicle is practically inspected by the surveyor and the estimate is confirmed/approved by the surveyor only then the workshop would commence the repair work. When the vehicle is finally repaired as a token of satisfaction of the job work done, the registered owner would sign the bills etc. and the vehicle shall be handed over him under the cashless scheme.
It is averred that the said cashless facility was availed by Mr. Sulip Rath, defendant No. 2 in respect of his car bearing registration No. DL9CD1179 and plaintiff raised a bill No. 1875 dated 13.10.2001 for Rs.25,822/ and consequent upon repairing, the vehicle was handed over to its owner. The bill was submitted for encashment to defendant No. 1 company and it was obligatory on the part of defendant No. 1 to Suit No. 145/2009 ANIL KAPOOR 4 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER make the payment forthwith as the damage/repair work was duly verified/approved by the valuer appointed by defendant No. 1 and there is/was no dispute with regard to the job executed by the plaintiff.
It is alleged that the plaintiff was constrained to issue a legal notice dated 12.08.2004 but defendant No. 1 company failed to make the payment of outstanding bill and thus, rendered itself liable to pay interest on the overdue amount with effect from 13.10.2001 upto date @ 18% per annum. Now, the defendant No. 1 company is liable to pay a sum of Rs.39,378/ alongwith interest @ 18% per annum to the plaintiff. The defendant No. 1 company has failed to make the payment of outstanding amount to the plaintiff, hence the present suit.
4. The cause of action to file the present suit firstly arose when Memorandum of Understanding was reduced into writing between plaintiff and defendant No. 1. It again arose when car of defendant No. 2 bearing registration No. DL9CD1179 was repaired by the plaintiff and bill for payment was submitted to defendant No. 1 company but the Suit No. 145/2009 ANIL KAPOOR 5 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER same was neglected. It further arose on 12.08.2004 when legal notice of demand was served upon defendant No. 1. The cause of action is still continuing as defendant No. 1 has not made payment against the bill/invoice No. 1875 dated 13.10.2001 to the plaintiff till date.
The plaintiff has raised the bill/invoice on 13.10.2001 and the legal notice of demand was issued against the defendant No. 1 on 12.08.2004. The present suit has been filed on 23.09.2004. Hence, the suit is within limitation. The parties to the suit reside and work for gain in Delhi. The Memorandum of Understanding was also entered into between the parties at Delhi. Hence, this Court has the territorial jurisdiction to entertain and try the present suit.
5. The defendants have filed their written statement. The defendant No. 1 has controverted the allegations levelled against it and has submitted that suit of the plaintiff is not maintainable as no cause of action has ever arisen in his favour. The suit of the plaintiff is barred by law of limitation as there is specific clause in the policy that no claim Suit No. 145/2009 ANIL KAPOOR 6 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER will be entertained after 12 months of the date of expiry of the policy. The plaintiff has not come to the Court with clean hands and has suppressed material facts from the Court. The plaintiff has twisted, concealed and distorted the true facts to achieve the illegal object. Neither any damage/loss had been occurred to the vehicle of defendant No. 2 nor any intimation had been given to defendant No. 1.
It is averred that as per compromise arrived between plaintiff and defendant No. 1, the plaintiff had assured that he will not claim the said amount as alleged in the plaint.
It is averred that plaintiff is in the habit of filing false and frivolous cases/claims and, hence, the defendant No. 1 has withdrawn the Memorandum of Understanding between the parties. The details of the vehicle No. DL9CD1179 has not been supplied by the plaintiff neither it has been mentioned by the plaintiff as to which cover note/policy pertains to the said vehicle. So far as the documents/estimate supplied by the plaintiff to defendant No. 1 company in the clause of Suit No. 145/2009 ANIL KAPOOR 7 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER name of insurance policy and risk is blank. No estimate of expenses, job work, replacement of parts was submitted or reported to the concerned department/branch of defendant No. 1 company meaning thereby no job work had been conducted in respect of vehicle No. DL9CD1179. No valuer/surveyor regarding the assessment of loss of the vehicle in question was ever appointed/confirmed/approved by the defendant No. 1 company because no damage/loss had caused to the vehicle No. DL9C D1179. The plaintiff has filed the present suit in connivance with defendant No. 2 just to extract the money from defendant No. 1, hence the same is liable to be rejected under Order 7 Rule 11 CPC and plaintiff is liable to be prosecuted under Section 340 Cr.PC.
8. The plaintiff has filed the replication in which he has controverted the contentions of the defendant No. 1 and has reiterated his stand in the plaint.
9. On 19.04.2005, following issues were framed : (1) Whether the plaintiff is entitled for suit amount, as Suit No. 145/2009 ANIL KAPOOR 8 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER prayed ? OPP.
(2) Whether plaintiff is entitled for any interest, if so, at what rate and for what period ?
(3) Whether plaintiff has no locusstandi to file the present suit ?
(4) Whether the suit of the plaintiff is time barred, as claimed ? OPD (5) Whether the suit is not maintainable in its present form ?
(6) Relief.
10. The plaintiff has examined himself as the only witness in support of his case. Shri Anil Kapoor appeared as PW1 and tendered his evidence by way of an affidavit EX. PW1/A. He also relied upon certain documents in support of his plaint. EX. PW1/1 is the Memorandum of Understanding. EX. PW1/2 is the copy of bill No. 1875 dated 13.10.2001 for Rs.25,822/. EX. PW1/3 is the office copy Suit No. 145/2009 ANIL KAPOOR 9 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER of legal notice dated 12.08.2004.
11. The defendant No. 1 has examined only one witness in support of its defence. Shri R.S. Sethi, Administrative Officer of defendant No. 1 company appeared as DW1 and tendered his evidence by way of an affidavit EX. DW1/A. He also relied upon one document in support of defence of defendant No. 1. EX. DW1/1 is the copy of terms and conditions of policy. He deposed in his affidavit that suit of the plaintiff is not maintainable as the same is barred by limitation. There is a specific clause in the policy that no claim will be entertained after 12 months of the date of expiry of the policy. He further deposed that a settlement was arrived at between plaintiff and defendant No. 1 and plaintiff had assured that he will not claim the said amount from defendant No. 1. Due to behaviour and illegal raising of false and frivolous claim, the defendant No. 1 did not extend the Memorandum of Understanding and cancelled the same. The plaintiff has not mentioned on which cover note/policy the vehicle No. DL9CD1179 was got Suit No. 145/2009 ANIL KAPOOR 10 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER repaired. There is nothing payable by the defendant No. 1 to the plaintiff, hence the suit deserves dismissal.
12. Final arguments were addressed on 09.08.2011 & 01.09.2011.
13. I have heard the arguments and perused the record carefully.
The suit has already been dismissed qua defendant No. 2 vide order dated 23.03.2005.
14. My issue wise findings are as follows : ISSUES No. 1 & 2.
(1) Whether the plaintiff is entitled for suit amount, as prayed ? OPP.
& (2) Whether plaintiff is entitled for any interest, if so, at what rate and for what period ?
Since, the issues No. 1 & 2 requires common discussion, Suit No. 145/2009 ANIL KAPOOR 11 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER hence, they are taken up together. The onus to prove these issues were on the plaintiff. It has been deposed by PW1/plaintiff in his evidence by way of affidavit that vide Memorandum of Understanding ( EX. PW1/1 ) entered into between plaintiff and defendant No. 1, it was mutually agreed that the plaintiff shall provide cashless repair/job work to the Maruti Car owners who shall be possessing vehicle insurance cover issued by defendant No. 1 company. It was agreed that plaintiff shall provide the cashless repair services and shall submit the bills to the defendant No. 1 company after satisfaction from the customer.
It is further deposed by PW1 in his evidence that the procedure for claiming protection of the insurance cover is manifolds; firstly in case of repairs ( minor/major ) which are covered under the insurance policy ;
(a) The damaged vehicle is to be submitted for assessment of loss/damage, repairs etc.
(b) The intimation to the insurance company will be given Suit No. 145/2009 ANIL KAPOOR 12 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER that the vehicle is under insurance cover and is being submitted for repairs.
(c) An estimate of expenses/job work/replacement of parts etc. is to be submitted.
(d) The insurance company will depute its valuer/surveyor to assess the loss and the vehicle is practically inspected by the surveyor and the estimate is confirmed/approved by the surveyor, only then the workshop will commence the repair work.
Secondly, when the vehicle is finally repaired, as a token of satisfaction of the job work done, the registered owner signs the bills etc. and the vehicle is handed over to him under the cashless scheme.
The term 'cashless' means that the person, body and corporation or individual who is in possession of insurance cover in respect of vehicle, in the eventuality of any accident, or major work, which was covered under the Insurance Certificate issued by the defendant company, the said vehicle shall be repaired ( mechanical, Suit No. 145/2009 ANIL KAPOOR 13 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER electrical, denting and painting etc. ) by the plaintiff in terms of Memorandum of Understanding agreed, accepted and reduced into writing between the plaintiff and defendant.
The plaintiff had been executing the job of repairing of cars/vehicles which were submitted by the persons having policy of defendant and interalia the said facility of cashless repairs and the said facility was availed by defendant No. 2 for her car bearing registration No. DL9CD1174 and plaintiff raised a bill No. 1875 dated 13.10.2001, copy of the Bill is EX. PW1/2 for Rs.25,822/ and consequent upon repairing, the vehicle was handed over to its owner. There is/was no complaint in whatsoever nature by the customer and the bill was duly submitted by the plaintiff to the defendant company for payment as per the agreed terms and conditions and it was obligatory on the part of defendant to forthwith make payment to the plaintiff's bill as the damage/repair work was duly verified/approved by the valuer appointed by the defendant and there is/was no dispute with regard to the job Suit No. 145/2009 ANIL KAPOOR 14 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER executed by the plaintiff.
It is further deposed that despite the fact that there is a Memorandum of Understanding between plaintiff and defendant No. 1 regarding submission of invoice, the defendant No. 1 failed to make payment of the outstanding bill and thus, the defendant had rendered itself liable to pay interest @ 18% per annum which is otherwise the commercial rate of interest and now, the defendant owes to the plaintiff a sum of Rs.39,378/ which is inclusive of interest @ 18% per annum.
On the other hand, it is deposed by DW1/Administrative Officer of defendant No. 1 company in his evidence by way of affidavit that the details of the vehicle number DL9CD1174 has not been supplied by the plaintiff. Neither it has been mentioned by the plaintiff on which cover note/policy pertains to the said vehicle. So far as the document i.e. estimate supplied by the plaintiff to defendant No. 1 in the clause of name of insurance policy and risk is blank.
It is further deposed by DW1 that the suit is barred by law Suit No. 145/2009 ANIL KAPOOR 15 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER of Limitation and compromise has been arrived at between plaintiff and defendant No. 1. The estimate of expenses, job work, replacement of the parts was never reported by the plaintiff to defendant No. 1, meaning thereby no job has been conducted in respect of the vehicle No. DL9C D1174.
To prove his case, the plaintiff has to prove that the vehicle No. DL9CD1174 was repaired under the cashless scheme. The onus to prove that the vehicle No. DL9CD1174 was repaired under the cashless scheme was on the plaintiff.
In the crossexamination it is deposed by plaintiff/PW1 that he does not remember what were the parts which were replaced or repaired. Vol. The same was done as per approval of the surveyor deputed by the defendant No. 1 Company. He does not recollect the name of Surveyor and he does not recollect whether he has sent written information to the defendant No. 1 company in respect of the alleged accident. Vol. As per normal procedure, they used to fax the defendant Suit No. 145/2009 ANIL KAPOOR 16 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER and call them telephonically. It was admitted by PW1/plaintiff that the copy of estimate was not given by him to the defendant. He does not remember whether he lodged any complaint in respect of his claim to the Vigilance Department of defendant No. 1 company. He does not remember as if the insured Sulit Rath had signed on invoices or not. EX. PW1/2 does not bear the signature of any employee of defendant No. 1 company nor insured.
It has been deposed by DW1 in his crossexamination that in the MOU cases, the intimation papers would be signed by the company and the plaintiff's representative and the same would be delivered to the defendant No. 1 company by the customer or the representative of plaintiff, thereafter, the Surveyor would be allotted from the panel allocated. In the present matter, the Surveyor was not allotted by defendant No. 1 company. The Surveyor would visit the accidental vehicle on the intimation received from the workshop. The Surveyor shall submit the report to the defendant No. 1 company Suit No. 145/2009 ANIL KAPOOR 17 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER directly alongwith claim form and all the papers. The estimate form will also be delivered to the Surveyor by the plaintiff.
After carefully perusing the case file, the testimonies of the witnesses and the arguments of both the parties, the Court is of the opinion that plaintiff has failed to prove that the vehicle No. DL9C D1174 was repaired under the cashless scheme and consequently, the benefit of terms of Memorandum of Understanding are not available to the plaintiff. The bill invoice ( EX. PW1/2 ) has no reference that the repairs were conducted under the cashless scheme. Therefore, the EX. PW1/2 can not come to the aid of the plaintiff in clarifying as to whether the repairs were carried out under the cashless scheme. However, regardless of the same to take the benefit of Memorandum of Understanding, the plaintiff was to show that the repairs were carried out as per the Memorandum of Understanding. For that, it has to be seen that whether the terms of Memorandum of Understanding were followed or not. The plaintiff has failed to show that work/repair were Suit No. 145/2009 ANIL KAPOOR 18 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER conducted as per the terms of Memorandum of Understanding. After perusal of the Memorandum of Understanding ( EX. PW1/1 ) it is clear that terms of MOU have not been followed. As per the MOU, the Manager of Aalianz Automobiles would immediately give estimate cumproforma invoice as per the agreed labour, parts to be replaced by the Surveyor. There is nothing to show on record that estimatecum proforma invoice was given by the plaintiff to the defendant No. 1. The plaintiff/PW1 has admitted in his crossexamination that he did not recollect whether he had sent any written information to the defendant No. 1 company in respect of the alleged accident. Though, it was deposed by PW1/plaintiff that he had intimated to the company in respect of his demand, however, he did not recollect the exact date when he sent the invoices to the defendant No. 1 company in respect of his claim. It is admitted by the PW1/plaintiff in his crossexamination that the copy of estimate was not given by him to the defendant. Hence, it is clear that estimatecumproforma invoice was not sent to the defendant Suit No. 145/2009 ANIL KAPOOR 19 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER No. 1.
Further, the MOU also provides that M/s. Aalianz Automobiles would also take the signatures of the insured on the required documents & collect necessary documents from the insured. There is nothing on record to show that the plaintiff complied with these formalities. The testimony of PW1/plaintiff also does not contain a single word that plaintiff collected the required documents or taken the signatures of insured. Even in the affidavit of evidence of PW1/plaintiff it has been deposed that when the vehicle is finally repaired as a token of satisfaction of the job work done, the registered owner sign the bills etc. and the bill is handed over to him under the cashless scheme. Perusal of EX. PW1/2 shows that it has not been signed by the insured. It has been admitted by Plaintiff/PW1 in his crossexamination that EX. PW1/2 does not bear the signature of any employee of defendant No. 1 nor the insured. Hence, it is clear that the plaintiff has not taken the signatures of the insured on the bill invoice ( EX. PW1/2 ).
Suit No. 145/2009 ANIL KAPOOR 20 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER Keeping in view the above discussion, the plaintiff has filed only two documents i.e copy of the MOU & bill invoice ( EX. PW1/1 & EX. PW1/2 ) respectively. I have already discussed that from the EX. PW1/2 it is not clear that the vehicle No. DL9CD1174 was repaired under cashless scheme. Further, to ascertain that the plaintiff can take benefit of MOU, it has to be seen that the terms of MOU have been followed. I have already discussed that the terms of MOU were not followed. Hence, it is quite clear that the plaintiff has failed to prove that the repairs were done under the cashless scheme as per Memorandum of Understanding. There is nothing on record which shows the cover note/policy pertaining to the said vehicle. No documents have been filed on record to ascertain that a Surveyor was appointed. No copy of the estimate report or other documents have been filed. Hence, in the light of above discussion, it is crystal clear that the plaintiff has failed to prove that the vehicle No. DL9CD1174 was repaired under the cashless scheme.
Suit No. 145/2009 ANIL KAPOOR 21 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER The plaintiff has argued that it was the defendant No. 1 who had to produce the documents i.e. Register or Policy Note etc. However, it was the plaintiff only who was to prove his case and establish that the repairs were done under cashless scheme. No other person apart from plaintiff like insured or Surveyor etc. have been examined by the plaintiff to show that repairs were carried out on the basis of MOU or the cashless scheme. To prove his case, the plaintiff has relied upon certain authorities viz 1980 RLR ( 1980 ) 43 & AIR 1988 SC 719. I have gone through these authorities carefully. This Court has highest regard for the case laws relied on behalf of plaintiff but the same are not applicable to the facts of the present case.
In light of the above discussion, the Court is convinced that the plaintiff has failed to show that repairs were done under cashless scheme or as per Memorandum of Understanding and hence, the plaintiff is not entitled to the relief, as prayed. Therefore, the issues No. 1 & 2 stands decided against the plaintiff and in favour of defendants. Suit No. 145/2009 ANIL KAPOOR 22 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER (3) Whether plaintiff has no locusstandi to file the present suit ?
The onus to prove this issue was on the defendants. The defendant has taken a defence in its written statement that the plaintiff has no locusstandi to file the present suit. However, he has failed to file any evidence to prove this issue. The issue No. 3, therefore, stands decided against the defendants.
(4) Whether the suit of the plaintiff is time barred, as claimed ? OPD The onus to prove this issue was on the defendant No. 1. It has been deposed by DW1 in his evidence that the present suit is barred by limitation as there is a specific clause in the policy that no claim will be entertained after 12 months of the date of expiry of the policy. It is well settled law that an agreement which provides that a suit should be brought for the breach of any terms of the agreement etc. within a time Suit No. 145/2009 ANIL KAPOOR 23 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER shorter than the period of limitation prescribed by law is void to that extent. The invoice of the plaintiff ( EX. PW1/2 ) is dated 19.10.2001. The limitation period for filing a suit is three years as provided by Limitation Act. The present suit has been filed on 23.09.2004, hence, it is well within the period of limitation. The issue No. 4, therefore, stands decided in favour of plaintiff and against the defendant No. 1.
(5) Whether the suit is not maintainable in its present form ?
The plaintiff has filed the present suit for recovery of an amount of Rs.39,378/. He has filed the present suit on the basis of bill invoice ( EX. PW1/2 ) dated 13.10.2001. The affidavit of DW1 is silent as to how the present suit is not maintainable. The defendant has failed to discharge the onus to prove this issue. The issue No. 5, therefore, stands decided against defendant No. 1 and in favour of plaintiff.
RELIEF Suit No. 145/2009 ANIL KAPOOR 24 ORIENTAL INSURANCE COMPANY LIMITED & ANOTHER In view of the above discussion, the suit of the plaintiff stands dismissed.
16. Decree sheet be prepared accordingly.
17. File be consigned to Record Room after necessary compliance.
Announced in the open Court ( AMBIKA SINGH ) on 26th day of September, 2011. Civil Judge : Central03 : THC : Delhi.