Delhi District Court
Jai Prakash Kaushik vs The Oriental Insurance Company Ltd on 27 May, 2025
DLCT010088482024
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL : DISTRICT
JUDGE (COMMERCIAL) -01 : CENTRAL, TIS HAZARI COURTS,
DELHI
CS (Com.) No. 688/2024
Sh. Jai Prakash Kaushik,
Proprietor : M/s. Alfa Packers & Movers,
L-40/189, First Floor, Street No. 7,
Mahipalpur Extn., New Delhi - 110037. ..... Plaintiff.
Versus
1. The Oriental Insurance Company Ltd.,
Oriental House, A-25/27,
Asaf Ali Road, New Delhi - 110002.
2. Shanti Sales,
B-27, Sector-81, Main Road,
Block-A, Phase-2, Noida,
Uttar Pradesh - 201305.
Suit (Com.) No. 688/2024 Page No. 1 of 44
Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
3. Tata Motors Insurance (since deleted),
Broking & Advisory Services Ltd.,
AFL House, 1st Floor,
Lok Bharti Complex,
Marol Maroshi Road,
Andhei East, Mumbai - 400059. .... Defendants.
Date of institution : 05.06.2024
Date of reserving Judgment : 06.05.2025
Date of decision : 27.05.2025
SUIT FOR MANDATORY INJUNCTION AND DAMAGES.
JUDGMENT
1. Vide this Judgment, I shall decide the suit filed by the plaintiff against the defendants for mandatory injunction and damages.
2. The brief facts as stated in the plaint are that the plaintiff is proprietor of M/s. Alfa Packers and Movers and provides service of packers and movers and owns various vehicles for providing such services and one of said vehicle is having registration No. DL1MA 7858.
3. It is further stated that the defendant No. 1 is an insurance company with whom the aforesaid vehicle is insured with the cashless insurance policy bearing No. 242596/31/2024/TMC/26908.
4. It is also stated that the defendant No. 2 is the authorized service station of defendant No. 3 for all Tata Commercial Vehicles having the code : 208959801.
5. It is stated that aforesaid vehicle of the plaintiff met with an Suit (Com.) No. 688/2024 Page No. 2 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. accident on 26.11.2023 at Noida and the said vehicle was taken to the authorized service station i.e. to defendant by the driver of plaintiff Sh. Rahul Sharma for necessary repairs immediately after the accident. The said repairs are covered under the insurance policy by defendant No. 1 which was duly acknowledged by the defendant No. 1 vide its e-mail dated 29.11.2023. It is stated that it was brought to the knowledge of plaintiff that the said vehicle was ready for delivery to him after necessary repairs on 4.1.2024 however the said vehicle was not released to the plaintiff for the reasons best known to defendants No. 1, 2 and 3. The plaintiff made frequent communications with the defendant No. 1 for release of said vehicle citing the loss of profit and opportunity cost, each day the said vehicle is being unjustifiably and without any sufficient cause being held up by the defendant No. 1. It is further stated that the plaintiff's vehicle was deployed for Amazon services and the plaintiff is suffering from significant inconvenience and financial loss o approximately Rs. 10,000/- per day on account of delay in release of said vehicle.
6. It is further stated that due to failure of defendants to give satisfactory response and resolving the issue, the plaintiff sent legal notice dated 9.3.2024 for immediate release of vehicle and he demanded compensation of Rs. 3,50,000/- i.e. Rs. 10,000- per day from 4.1.2024 alongwith additional compensation for the inconvenience caused to the plaintiff but no response was received by the plaintiff from the defendants therefore the plaintiff has filed the present suit for seeking relief of mandatory injunction directing the defendant No. 1 to release the payments in respect of the insurance claim to defendants No. 2 and 3 and further to pass a decree for damages for a sum of Rs. 14,00,000/- from 4.1.2024 and further passing a decree for compensation and damages @ 10,000/- per day from the date of filing of the suit till the release of vehicle in question.
7. Summons of the suit were issued to the defendants and the Suit (Com.) No. 688/2024 Page No. 3 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. defendants appeared and filed their respective written statements.
8. Defendant No. 1 in its written statement has taken the preliminary objection that the suit was filed without any cause of action as the defendant No. 1 has already issued delivery order of Rs. 5,52,974/- to the defendant No. 2 on 19.4.2024 as per the loss assessed by the surveyor and the said fact was also informed to the plaintiff's counsel on 27.5.2024 and thus, the suit is not maintainable.
Further objection was taken by the defendant No. 1 that no territorial jurisdiction to entertain the present suit arrive within the jurisdiction of this court as admittedly the accident took place in Noida which is outside the jurisdiction of this court and the policy issuing office of the defendant No. 1 is situated at Rajasthan. The service center which had examined the insurance claim of plaintiff is situated at Ghaziabad, Uttar Pradesh. The defendant No. 2 is situated at Noida and defendant No. 3 is situated at Mumbai and merely because the registered office of defendant No. 1 is situated at Delhi will not by itself confers the territorial jurisdiction of this court and thus, the plaint is liable to be rejected / returned.
9. On merits, the defendant No. 1 has not disputed that the plaintiff has taken the aforesaid insurance policy or that the vehicle was not met with accident or defendant No. 2 is not the authorized service station or that the vehicle was not taken to the service station of defendant No. 2. It is stated by the defendant No. 1 that the amount payable by the defendant No. 1 is based upon the terms and conditions of the policy and loss assessed by the surveyor. It is denied that the vehicle in question was ready for delivery on 4.1.2024. It is stated that in fact in the e-mail dated 19.2.2024, plaintiff has admitted that the vehicle was ready since 25.1.2024. It is further stated that on the date of accident i.e. 26.11.2023, spot survey was conducted by Sh. Ajay Kumar Jain and accordingly spot survey report dated 28.11.2023 was issued by Suit (Com.) No. 688/2024 Page No. 4 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. the spot surveyor. Thereafter surveyor Dinesh Gopal was appointed by the defendant No. 1 to process the claim of plaintiff. It is further stated that as per the e-mail dated 14.2.2024 of the surveyor, the defendant No. 2 contacted the surveyor on 4.1.2024 regarding delivery of vehicle in question. On 5.1.2024, when the surveyor was on his way for re- inspection, the defendant No. 2 informed him that there was a small supple estimate amounting to Rs. 43,357/- and the surveyor suggested that he would do the re-inspection after the approval o supple estimate by the defendant No. 1. The defendant No. 2 raised another second supple estimate amounting to Rs. 1,64,249/- and the same was disallowed by the surveyor as all the parts included in second supple estimate were visible and not found damaged by the surveyor during inspection. It is further stated that the defendant No. 1 has already issued delivery order amounting to Rs. 5,52,974/- on the basis of assessment of the surveyor as per the survey report dated 20.3.2024. It is further stated that the defendant No. 1 without any delay proceeded with the claim of plaintiff. It is further stated that the plaintiff is claiming huge amount of Rs. 10,000/- per day from the defendants. It is further stated that the plaintiff is not entitled for the damages of Rs. 14,00,000/- and thus it is prayed for dismissal of the suit.
10. Defendant No. 2 in its written statement has taken the objection that the defendant No. 2 is not any firm / company / person exist on the given address. Further objection is taken that the plaintiff himself is defaulted in making balance payment of repairing bill despite multiple reminders and thus the suit is liable to be dismissed.
11. On merits, the defendant No. 2 has not denied that the plaintiff's vehicle bearing No. DL1MA 7858 was brought for repair to the defendant No. 2's workshop. It is further stated that after vehicle in question reached to the defendant after accident only on 26.11.2024 (as mentioned in the written statement) after spot survey by the defendant No. 1 who took the photographs of accidental vehicle and thereafter Suit (Com.) No. 688/2024 Page No. 5 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. vehicle was repaired and it was ready for delivery on 4.1.2024 but stated that vehicle can be delivered only after issuance of delivery note by the defendant No. 1.
It is further stated that due to late response and late deputation of surveyor from defendant No. 1 and vested (wasted, as mentioned in written statement) interests of surveyor namely Gopal, not only repair work got delayed but due to delayed tactic of defendant No. 1, accidental vehicle could not be released despite repair and still holding major space in defendant No. 2's place due to which defendant No. 2 is facing huge financial loss and due not non payment by defendant No. 1 and plaintiff, the defendant No. 2 is under huge loss.
12. It is further stated that on 29.11.2024, when the acknowledgment of claim was received by the defendant No. 2 and defendant No. 3 were regularly communicating with the defendant No. 1 requesting to depute the surveyor which was deputed only on 5-6 th December 2023 by the defendant No. 1. It is further stated that the repair estimate including labour charges was sent to the defendant No. 1 and 3 including plaintiff on 1.12.2023 with 14 attached documents but the defendant No. 1 asked for system generated OEM Estimate and the same was sent on the same day. Again on 5.12.2023, defendant No. 2 sent another e-mail with repair estimate and made multiple calls to defendant No. 1's office to appoint surveyor and only after that the surveyor was appointed to survey the vehicle in question.
It is further stated that initial repair estimate is based on temporary inspection of the vehicle as without approval service center cannot open the vehicle to check internal damage and could not give final estimate of damage. It is further stated the despite of numbers of e- mails and whats app including phone calls, plaintiff choose not to pay the balance amount of repair after 19.4.2024 and failed to release the vehicle when defendant No. 1 issued delivery note due to which Suit (Com.) No. 688/2024 Page No. 6 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. remaining process could not be completed and entire payment of repair is hold with defendant No. 1 and labour cold not get their repairing work payments too. It is further stated that there was no objection or problem from defendant No. 1 after receiving repair estimate and after survey conducted by surveyor namely Dinesh Gopal. He gave approval only on 11.12.2024 to start repairing work of vehicle in question which was duly replied by the defendant No. 2 with copy to plaintiff and repair estimate was also enclosed. It is further admitted that the plaintiff sent legal notice which was received by the defendant and further stated that after receiving the same, the defendant No. 2 contacted defendant No. 1 and its surveyor Dinesh Gopal to complete the process to release the vehicle as customer / plaintiff is facing problem due to long awaited and defendant No. 2 is also facing financial loss.
13. It is further stated that after completion of remaining work, supplementary estimate was to be sent by defendant No. 2 to defendant No. 1 but due to technical error, all repaired parts were not added in the system and which was mistakenly sent to defendant No. 1 and surveyor on 25.1.2024 at 12.59 pm but the same was detected immediately and surveyor Dinesh Gopal was contacted and informed the mistake who assured first that he will check the revert back in some time but when defendant No. 2 did not hear anything from him nor he picked calls therefore defendant No. 2 sent correct supplementary estimate on the same date at 6.17 pm informing about the earlier mistake.
14. It is further stated that the re-inspection was to be done to check the work and if any other requirement is to be done and the same was requested by the defendant No. 2 to defendant No. 1 and when no response was received from defendant No. 1 or surveyor, defendant No. 2 sent e-mail dated 3.2.2024 and also requested to look into the matter of supplementary estimate but no response was received. The defendant No. 3 also sent multiple e-mails to defendant No. 1 to resolve the issue but there was no response either from defendant No. 1 or surveyor nor Suit (Com.) No. 688/2024 Page No. 7 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. anyone was appointed by the defendant No. 1 to complete the re- inspection of vehicle. It is further stated that on 15.2.2024, the defendant No. 2 received response from surveyor in which surveyor only approved one part from second supplementary estimate but wrongly mentioned about confirmation from owner of defendant No. 2 even though no re- inspection was conducted. The defendant No. 2 sent multiple e-mails from 3.2.2024 to 24.2.2024 to resolve the issue and to conduct the re- inspection but there was no response from defendant No. 1.
15. It is further stated that the plaintiff has also communicated separately with all the defendants through e-mails from 13.2.2024 to 28.2.2024 and defendant No. 2 responded each mail of the plaintiff. It is further stated that by e-mail dated 14.2.2024, plaintiff has asked e-mail ID and phone number of the surveyor which was provided to him but in response to plaintiff's mail dated 14.2.2024, surveyor Dinesh Gopal, responded the plaintiff and misguided him by stated wrong facts. The defendant No. 2 replied to plaintiff and sent whats app correspondence to prove the facts. It is further stated that the job card of the work was open on 25.12.2023 after approval from surveyor and pre invoice was shred to surveyor on 24.2.2024 and requested for approval to close the job card and final invoice was sent to surveyor and plaintiff on 29.2.2024 and also requested for delivery note. It is further stated that on 1.3.2024, e-mail was received from surveyor by defendant raising new issue of labour charges which clearly shows dishonest and mala fide intentions of surveyor to harass the defendant No. 2 and plaintiff. It is further stated that in trailing mails, with defendant No. 1, and 3 on 13.3.2024, the defendant No. 2 addressed to Sajid, Manager of defendant No. 1 and informed the situation and sent multiple reminders with attachment and during correspondence vide e-mail dated 18.3.2024, surveyor again stated wrong facts and mentioned two pending issues and in response, the defendant No. 2 sent strong and clear reply to all the parties and on 18.3.2024, an e-mail was received from Ms. Suruchi Pandey from Suit (Com.) No. 688/2024 Page No. 8 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. defendant No. 1 informing that approval has been provided to the surveyor but again no delivery note was provided and reminders were sent by the defendant No. 2 till 3.4.2024.
16. It is further stated that on 3.4.2024, mail received from Sh. Sajid informing that final survey report is under process and delivery note was sent only on 19.4.2024 at 2.54 pm. It is further stated that the defendant No. 1 was not sure that their own policy issued to plaintiff was cashless or not which is visible in e-mail dated 19.4.2024 at 1.39 pm. It is further stated that the plaintiff was duly informed through whats app about issuance of delivery note and requested to pay the difference amount and get his vehicle released but the plaintiff did not respond and sent e-mail dated 22.4.2024 to the defendant No. 1 along with copy to defendant No. 2. Further it is stated by defendant No. 2 that the defendant No. 2 is entitled for parking charges @ Rs. 550/- per day and it has informed the same to the plaintiff and thus defendant No. 2 has prayed for dismissal of the suit and also prays that the plaintiff may be directed to deposit difference of amount along with parking charges from 18.3.2024 till the date of realization of vehicle @ Rs. 550/- per day.
17. Plaintiff has filed replication to the written statements of both the defendants No. 1 and 2 in which he has reiterated the contents of plaint as true and denied the contents of written statement as wrong and false.
18. The plaintiff has also made Tata motors insurance and broker service ltd., as defendant no.3 and defendant no.3 also file its written statement but on application under Order 1 Rule 10 CPC file by defendant No. 3 its was deleted from array of defendants vide order dt. 10.09.2024 therefore there is no need to discuss about the contents stated by defendant No. 3 in its written statement.
19. Affidavit of admission / denial of the documents were also filed by all the parties.
Suit (Com.) No. 688/2024 Page No. 9 of 44Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
20. On the basis of pleadings of the parties, following issues were framed on 19.10.2024 for consideration:-
1. Whether this court has no territorial jurisdiction to try and entertain the present suit? OP Parties.
2. Whether no cause of action has arose in favour of the plaintiff to file the present suit? OPD.
3. Whether the plaintiff has not valued the suit properly and has not paid proper court fees? OPD.
4. Whether the second supplementary bill raised by the defendant No. 2 amounting to Rs. 1,64,249/-
was unjustifiably raised by the defendant No. 2? If so, who is liable to pay the said amount? OPD-1.
5. Whether the plaintiff is entitled to compensation and damages of Rs. 14 lacs? If so, which defendant is liable to pay? OPP.
6. Whether the plaintiff is further entitled to damages @ 10,000/- per day from the date of filing of the suit till the date of release of vehicle in question bearing registration No. DL1MA 7858? If so, which defendant is liable to pay? OPP.
7. Whether cost is to be paid? If yes, by whom?
Onus on parties.
8. Relief.
21. In order to prove its case, plaintiff has examined only himself as PW1.
22. On the other hand, in order to deny the case, the defendant No. 1 has examined two witnesses i.e. Ms. Nida Parveen, Deputy Manager, Oriental Insurance Company Ltd. as D1W1 who led her evidence by way of affidavit Ex. D1W1/A and has relied upon the Suit (Com.) No. 688/2024 Page No. 10 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. documents Ex. D1W1/1 to Ex. D1W1/4 and Surveyor Er. Dinesh Gopal as D1W2.
23. Whereas defendant No. 2 has also examined only one witness i.e. its Director Sh. Deepanshu Chauhan as D2W1.
24. Final arguments were heard from Ms. Tanya Aggarwal, Ld. Counsel for the plaintiff, Sh. Apoorv Sarwaria and Sh. Sahaj Aggarwal, Ld. Counsels for defendant No. 1 and Sh. Abhishek Bhati, Sh. Jitender Ratta and Sh. Arunabh Chaudhary, Ld. Counsels for defendant No. 2. All the counsels have also filed written arguments in support of their respective contentions.
EVIDENCE Plaintiff
25. Plaintiff / PW1 in his testimony led by way of affidavit Ex. PW1/A has deposed the same facts as stated in the plaint therefore same are not repeated here. He relied upon the following documents : -
1. Printout of GST registration of plaintiff's proprietorship firm as Ex. PW1/1.
2. Copy of his Aadhar card as Ex. PW1/2 (OSR).
3. Copy of registration certificate of vehicle bearing No. DL1MA 7858 as Ex. PW1/3.
4. Copy of insurance policy bearing No. 242596/31/2024/TMC/26908 as Ex. PW1/4.
5. Printout of tour details of aforesaid vehicle from Amazon Services as Ex. PW1/5.
6. Printout of e-mail correspondence between defendant No. 1 and defendant No. 2 and Tata Motors Insurance Broking Services regarding release of vehicle as Ex.Suit (Com.) No. 688/2024 Page No. 11 of 44
Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
PW1/6.
7. Copy of legal notice dated 9.3.2024 alongwith courier receipts and printout of e-mail and delivery reports qua service of legal notice as Ex. PW1/7 and Ex.
PW1/8.
8. Certificate under Section 65B of the Indian Evidence Act as Ex. PW1/9.
26. In his cross examination by defendant No. 2 he stated that insurance companies used to make the payments of repairs of damage of vehicles during accidents. The service center has never paid the amount of repairs and voluntarily deposed that as insurance has never raised objections about quantum of bill raised by service centers except in this case. He admitted that defendant No. 2 has sent intimation on 4.1.2024 to him that vehicle in question has got repaired and ready for delivery. He stated that he took the vehicle for repair to the service center of defendant No. 2 as it was nearest to the site of accident and was authorized service center. Generally the service center released the vehicle after delivery order is received from insurance company and voluntarily deposed that sometime depending upon the relation of the parties, service center release the vehicle by giving credit of the amount to be paid by insurance later on.
27. In his cross examination by Defendant No. 1 he stated that survey reports filed by the defendant No. 1 in this case have not been read over to him and voluntarily deposed that the survey report was directly handed over to the service center i.e. defendant No. 2 by defendant No. 1 and no copy was provided to him. He denied the suggestion that insurance company informed to him through notice that only payment they are liable for repair of the vehicle is Rs. 5,52,974/- and rest of the amount is the extra repairs carried out by defendant No. 2 and voluntarily deposed that same have been sent to defendant No. 2 Suit (Com.) No. 688/2024 Page No. 12 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. only. He stated that he cannot comment whether defendant No. 2 has raised the additional expenses through supplementary bill for repair of my vehicle justifiably or not and voluntarily deposed that his vehicle was fully insured and it is between the defendant No. 1 insurance company and its authorized agent defendant No. 2 only to decide who will pay the amount of repair of the vehicle.
He admitted the suggestion that he has sent the e-mail dated 19.2.2024 Ex. PW1/6 to both defendants that the vehicle is ready for delivery from 25.1.2024. He denied the suggestion that he could pay the excess amount demanded by defendant No. 2 and could claim the same from defendant No. 1 if he was of the view that the defendant No. 1 has wrongly passed the claim for Rs. 5,52,974/- instead of entire bill amount raised by the defendant No. 2. He denied the suggestion that defendant No. 1 is not liable to pay the charges @ 10,000/- per day for the vehicle from January 2024 onwards till the date of delivery of vehicle.
Defendant No.1
28. D1W1 Ms. Nida Parveen, Deputy Manager, Oriental Insurance Company Limited, SVC Ghaziabad, in her evidence led by way of affidavit Ex. D1W1/A has deposed that only delivery note was issued on 19.04.2024 for Rs. 5,52,974/-. She further deposed that amount payable by defendant No. 1 is based upon terms and condition of the policy and loss asses by the surveyor. She relied upon following documents :-
1. Scanned copy of spot survey report dated 28.11.2023 issued by Sh. Ajay Kumar Jain as Ex. D1W1/1.
2. Survey report dated 20.3.2024 issued by Er. Dinesh Gopal as Ex. D1W1/2.
3. Scanned copy of letter dated 27.5.2024 issued by defendant No. 1 to the counsel for plaintiff as Ex.Suit (Com.) No. 688/2024 Page No. 13 of 44
Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
D1W1/3.
4. Scanned copy of motor claim form as Ex. D1W1/4.
29. In her cross examination she deposed that head office of the defendant No. 1 company is in Kidwai Nagar, Delhi. The head office is the registered office. The plaintiff has obtained an insurance policy from defendant No. 1 which is Ex. PW1/4. She admitted that as per term and condition of 'Nil Depreciation' in the policy at point A means that there is no deduction of depreciation on parts. She stated that delivery order Ex. D1W1/D1 was released by the insurance company to the workshop i.e. defendant No. 2 on 19.4.2024. Defendant No. 2 has not informed to defendant No. 1 that vehicle is ready for delivery on 4.1.2024. The surveyor informed them that the vehicle is ready. The surveyor has given his report on 20.3.2024 and then we came to know that vehicle is ready. She admitted that e-mail dated 14.2.2024 Ex. D1W1/D2 was sent at 6:04:34 pm written by the surveyor to the plaintiff as well as to both defendants. for better identification. She stated that the surveyor should inform the insurance company about the development with respect to the vehicle repair time to time. She admitted that that the supplementary estimate of Rs. 43,357/- as mentioned in mail Ex. D1W1/D2 was sent to defendant No. 1 by defendant No. 2.
She further stated that another e-mail dated 24.1.2024 at 12:37:31 pm Ex. D1W1/D3 was sent by Mukesh Sharma to the plaintiff and in the said e-mail, it is mentioned by Mukesh Sharma that vehicle has been ready 20 days before from their side and they intimated to the insurance company for RI. She stated that Sajid Iqbal is their incharge of claim service center of defendant No. 1 and as per the e-mail dated 13.03.2024 Ex. D1W1/D4, they came to know that the defendant No. 2 has informed to the surveyor that vehicle is ready by 25.1.2024 but surveyor is not providing positive response. She admitted that e-mail dated 3.2.2024 at 4:26 Ex. D1W1/D5 written by defendant No. 2 to Suit (Com.) No. 688/2024 Page No. 14 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. [email protected] is received by the defendant No. 1. She stated that supplementary invoice as mentioned in the said mail is as per practice approved by the Regional Office of the insurance company and she presumed that the same would have been forwarded by the concerned official to the RO. The said approval of supplementary invoice was given to the surveyor vide e-mail dated 18.3.2024 at 3:11 am Ex. D1W1/D6 and to Shanti Sales vide mail Ex. D1W1/D7 at 5:25 pm. She stated that all the documents are submitted by insured and workshop then maximum period is 30 days as per IRDA regulation which include the approval from RO also. If all the documents as requisite are submitted by the insured or workshop then the payment should be made within 7 days from the date of approval. She admitted that the defendant No. 2 has written mail on 18.3.2024 at 5:04 pm Ex. D1W1/D8 that vehicle is ready for last two months. She admitted that defendant No. 2 has written mail dated 18.3.2024 to [email protected] which is Ex. D1W1/D9. After said e-mail, the defendant No. 1 has written mail dated 4.4.2024 Ex. D1W1/D10 demanding documents from both insured and workshop. Defendant No. 1 has written a mail to the defendant No. 2 seeking consent letter from the insured for towing charges. She denied the suggestion that no consent letter was required from the insured for paying the towing charges and that is why the claim was allowed without said letter on 19.4.2024 itself. She stated that she does not know that the approval for payment was got delayed in processing as there was dispute for payment of various items demanded by the defendant No. 2 and voluntarily deposed that about the same, only surveyor can tell. The survey report was received on 2.4.2024 from the surveyor as evident from e-mail dated 3.4.2024 Ex. D1W1/D11. She stated that she does not know whether there is a specific time whether surveyor should submit his final report after collecting all the documents but she supposed that Suit (Com.) No. 688/2024 Page No. 15 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. same should have been submitted within 7 days if nothing further is required to be done by surveyor. In response to few court question, she answered as under : -
Court question : In case where is a policy is zero depreciation cashless policy, whether there is any liability of the insured i.e. the plaintiff herein to pay any amount to the repairer as per IRDA?
Ans. Any part which is not damaged in the accident, the insurance company / policy is not liable for such damage as per policy terms and conditions.
Court question : How the insured would come to know that any part is damaged in the vehicle at the time of accident or not?
Ans. Surveyor is competent to tell whether any part is damaged or not.
Court question : Whether your surveyor had informed to the insured before or after repair which part was not damaged in the accident and claimed wrongly by the repairer?
Ans. No such knowledge.
Court question : Can you tell after going through the surveyor report submitted to you by the surveyor whether any such information is given or not?
Ans. As per surveyor report, he has never informed to the insured about the parts which were not damaged in the accident.
She further denied the suggestion that in zero depreciation policy, it was the responsibility of the insurer to pay all the bills whatever Suit (Com.) No. 688/2024 Page No. 16 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. has been raised by the repairer and there is no liability of the insured to pay any amount. She also denied the suggestion that if any amount is found to be excess claimed by the repairer on the ground of repairing the parts which were not found damaged at the time of accident by surveyor of the excess labour charges, if any claimed by him then same is to be claimed by insurance company from the repairer and it is the duty of insurance company to get released the vehicle immediately when the vehicle is ready after repair. She stated that she does not know when the supplementary estimate bill dated 23.1.2024 Ex. D1W2/D1 was approved. She admitted that e-mail dated 25.1.2024 Ex. D1W1/D2A sent by defendant No. 2 addressed to Neha Bhatt and Sajid Iqbal, the officials of defendant No. 1. She does not know what action has been taken on the said e-mail by the defendant No. 1. The first system generated estimate bill was received on 5.12.2023. The copy of final invoice from defendant No. 2 was received only along with the report of surveyor on 2.4.2024. In cashless policy, they had tie up with the workshops to repair the vehicle without taking any money from the insured and the repair cost is paid by us directly to the repairer workshop. Zero depreciation policy is a type of policy in which there is no deduction of depreciation of the part. She admitted e-mail dated 19.4.2024, Ex. D1W1/D2B. She in response to question, what is the meaning of the query, "whether cashless allowed to our workshop earlier"? she answered that they had given the code to the workshops and kept the details of workshops including their bank account details and other details and a master data is kept in computer with respect to the workshops. But since no data was available in their master data about the defendant No. 2 therefore probably the case i.e. the repair of plaintiff vehicle might be first case of said workshop i.e. Shanti Auto Sales and that is why the concerned official has made query from the defendant No. 2, "whether cashless allowed to our workshop earlier".
She admitted that defendant has received the mail dated Suit (Com.) No. 688/2024 Page No. 17 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. 9.5.2024 Ex. D1W1/D2C and e-mail dated 25.6.2024 from defendant No.
2. She admitted that defendant No. 1 has received the from the defendant No. 2 by which defendant No. 2 demanded assessment report.
30. D1W2 Er. Dinesh Gopal, only proved his survey report which is already Ex. D1W1/2. In his cross examination by plaintiff Counsel he stated that here were some parts which were not shown as damaged in the spot survey report were alleged to be repaired by the defendant No. 2 service station and he mentioned the said fact in his report and mentioned that the bill raised for those parts should be rejected. The parts which were not visible to be damaged from naked eye were informed by the service station to be damaged after they examined the vehicle and bill of those parts was allowed in my report. Volunteered Our assessment of damages is subject to re-inspection after the repairs and verification of salvaged (damaged part). The inspection of vehicle was done after repairs by him and thereafter he gave his final report Ex. D1W1/2.
31. In his cross examination by defendant no.2 he stated that he does not remember the exact date of re-inspection of vehicle in question. He stated that that after re-inspection, some of the supplementary demands raised by the defendant No. 2 were accepted and some were not accepted. The demand of replacement of ECU by the defendant No. 2 was accepted. He does not not know whether defendant No. 1 has made payment to defendant No. 2 of the repairs or not or that plaintiff had made the payments of said repair. In response to question about procedure for payment of repairs bill by the insurance company in case of an accidental vehicle he replied that:
1. Firstly, the spot survey of the accidental vehicle is done by the surveyor at the spot of accident,
2. Secondly, thereafter the accidental vehicle is brought to the workshop where vehicle is to be repaired.Suit (Com.) No. 688/2024 Page No. 18 of 44
Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
3. Thirdly, thereafter after inspection of the damaged vehicle by the repairer, he prepared the estimates of repairs to be done by him and give the same to the insurance company in case of cashless insurance otherwise to the owner of vehicle,
4. Fourthly thereafter, insurance company deputes the surveyor for final inspection and assessment of loss,
5. Fifthly thereafter the final surveyor conducts survey in the workshop and discussed the damages with the workshop manager thereafter work approval is given to start repairs and dismantle the vehicle for further examination of more damages / repairs, if any,
6. Sixthly, after dismantling the vehicle and starting the repair, the workshop give supplementary estimate of the damages in case more damages are noticed by them to the insurance company or the owner of vehicle.
7. Seventhly, the insurance company refer supplementary estimate of damage to the surveyor for his comments.
8. Eightthly, the surveyor visit to the workshop and re-inspect the vehicle to find out if the supplementary estimate of damages has been raised correctly by the workshop or not and we also inspect the parts which were earlier not mentioned as damaged in the surveyor report and now claimed to be damaged are correctly claimed or not by the workshop.
9. Ninethly, thereafter we give our report to the insurance company whether the supplementary estimate is correctly claimed by the workshop or not.
10. Tenthly, thereafter we receive approval from insurance company about the said supplementary estimates allowed by the surveyor and then we convey to the workshop to carry out the repairs which we have approved / received from insurance.
11. Eleventhly, once the vehicle is repaired after approval, the workshop informs the surveyor that the vehicle is ready and request for re-inspection and then we re-inspect the vehicle and Suit (Com.) No. 688/2024 Page No. 19 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
simultaneously, they submit / share the pre invoice for repairs carried out by them.
12. Twelvethly, after examining the pre-invoice, the surveyor conducts re-inspection and verifies the parts replaced in the vehicle along with their salvaged (damaged / replaced parts). No supplementary estimate is entertained after the vehicle has been repaired.
32. In response to Court question "What procedure has not been followed by defendant No. 2 in this case? he replied that defendant No. 2 workshop has initially raised first supplementary estimate / pre invoice bill which was approved and then again raised second supplementary estimate / pre invoice which was also approved by him after re-inspection of vehicle and thereafter made call to him to inform that the vehicle is ready for delivery after repairs and when he reached halfway to the workshop, he received a call that please don't come, some more parts are being forwarded as supplementary estimate third time. He re-inspected the vehicle and did not found the supplementary estimate raised by the defendant No. 2 third time and then he talked to the workshop owner Mr. Chauhan and narrated the whole story about lack of knowledge of their Work Manager as many parts were repeated in the supplementary estimate and then Mr. Chauhan agreed to claim only for replacement of ECU out of the total items claimed in the third supplementary estimate. Labour charges were shared by him with the workshop which he agreed for the alleged repair but the defendant No. 2 has claimed almost double of labour charges while raising final tax invoices. He informed the workshop Work Manager that the labour charges are at higher side and not acceptable and then he submitted his assessment report to the insurance company.
He stated that first estimate was given by the defendant No. 2 on 6.12.2023. Then he carried out the survey of the vehicle on 6.12.2023 itself and then he informed to the workshop to dismantle the Suit (Com.) No. 688/2024 Page No. 20 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. vehicle and inform about the tentative cost of repair. The said approval to dismantle is given by him i.e. on 6.12.2023 itself. He stated that normally, the addition of amount is made in second supplementary estimate by the workshop. He admitted that the estimate bill of Rs. 43,357/- and Rs. Rs. 1,64,249/- was given by defendant No. 2 to him. The last inspection of the vehicle after readiness of vehicle was done on 26.2.2024. He admitted that vehicle is delivered after last inspection by surveyor. Delivery order is prepared after the submission of surveyor report with insurance. Labour charges were shared with the defendant No. 2 on whats app. He was shown document Ex. D1W2/D3 and whats app chat is Ex. D1W2/D4. He stated that rates which is mentioned by handwriting is the rates of labour charges which he has approved and thereafter taken the screenshot of the same and sent to the defendant No. 2. He received the intimation from the insurance company about the accident on 5.12.2023 and then on 6.12.2023, I inspected the vehicle in the workshop of defendant No. 2. He denied the suggestion that in order to prove that surveyor has carried out the survey, it is mandatory to take photograph of surveyor with the damaged / repaired vehicle as the case may be. He also denied the suggestion that he has deliberately not placed the photographs taken with the repaired vehicle as he has not done the said re-inspection on 26.2.2024 but it was done by one Sanjay Aggarwal. He stated that he does not know whether defendant No. 2 has mentioned the amount of ECU in final bill or not. He denied the suggestion that he wrongly reduced the labour charges.
33. Defendant No. 2 only examined Sh. Deepanshu Chauhan, its Director as D2W1. He in his evidence led by way of affidavit Ex. D2W1/A and Ex. D2W1/B almost repeated same contents as stated in defendant No. 2's written statement. He relied upon the following documents : -
1. Print out of certificate of incorporation of defendant No. 2 as Mark D2W1/1.Suit (Com.) No. 688/2024 Page No. 21 of 44
Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
2. Print out of various e-mails from 29.11.23 to 4th December 23 regarding deputing surveyor as Ex. D2W1/2 (Colly. 10 pages).
3. Print out of e-mail dated 11.12.2023 and its reply as Ex. D2W1/3.
4. Print out of e-mail dated 25.1.2024 as already Ex.
D1W1/D2A.
5. Copy of supplementary estimate as already Ex.
D1W2/D2.
6. Tax Invoice dated 29.2.2024 issued by defendant No. 2 to defendant No. 1 for Rs 733795/- as Mark D2W1/6.
7. Print out of e-mail dated 29.2.2024 sent by defendant No. 2 to defendant No. 1 and plaintiff as Ex. D2W1/7.
8. Print out of e-mail dated 13.3.2024 at 12.17 pm sent by defendant No. 1 to defendant No. 2 as Ex.
D2W1/8.
9. Print out of e-mail dated 18.3.2024 at 2.34 pm sent by defendant No. 2 to defendant No. 1 as Ex. D2W1/9.
10. Print out of e-mail dated 19.4.2024 as already Ex.
D1W1/D2B.
11. Print out of e-mail dated 22.4.2024 at 12.30 pm sent by plaintiff to defendants as Ex. D2W1/11.
12. Print out of e-mail dated 25.6.2024 already Ex.
D1W1/D2D.
13. Print out of e-mail dated 18.3.2024 at 5.04 pm sent by defendant No. 2 to defendant No. 1 as already Ex. D1W1/D8.
14. Certificate under Section 61 & 63 BSA as Ex.
D2W1/14.
34. In his cross examination by Ld. Counsel for plaintiff he Suit (Com.) No. 688/2024 Page No. 22 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. admitted that plaintiff does not have any role in preparation or submission of estimate of damaged parts. The plaintiff does not have any role in calculation or determination of labour charges. The plaintiff has to submit the documents and thereafter the inspection of the vehicle of plaintiff is done by the surveyor. The plaintiff has to sign on some forms at the time of carrying out survey by the surveyor. During the survey of the damaged vehicle, the technician of defendant No. 2 will assess the damaged vehicle and thereafter self report is shared with the surveyor of insurance company and voluntarily deposed that the assessment of damaged vehicle is done twice, first time the assessment of outer part of vehicle is done and after that when vehicle's repair is done after approval from surveyor, the internal part assessment is done and fresh report is prepared if any internal part is found damaged or not functioning due to accident and said report is also shared with the surveyor. Plaintiff has no role in preparation of delivery order after repair of the vehicle. The plaintiff has never asked us to replace or repair any part which is not approved by the surveyor.
He further admitted that after repair of the vehicle when vehicle was ready for delivery, the defendant No. 2 informed to the plaintiff that vehicle is ready for delivery through phone as well as through e-mail dated 14.2.2024 Ex. D2W1/P1. He admitted that in the said e-mail, it is mentioned that the re-inspection of the vehicle is pending by surveyor of defendant No. 1. He further admitted that the vehicle cannot be delivered to the plaintiff prior to said re-inspection. He explained the procedure they follow as under:
"1. The claim of damaged vehicle is intimated to insurance company on the portal which is used by insurance company as well as authorized dealer like us after arrival of vehicle.
2. Thereafter the insurance company deputes surveyor for carrying out survey of the damaged vehicle.
3. Documents and estimate of repairs is provided to the surveyor with respect to the outer damage of the vehicle which we Suit (Com.) No. 688/2024 Page No. 23 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. found in outer part inspection of the vehicle.
4. After the approval of work start, the vehicle is dismantle and thoroughly checked and thereafter repairing is start and side by side supplementary estimate for damages to the internal parts along with estimated cost is prepared and same is sent for approval to surveyor.
5. In some cases, wherein surveyor does not approve the few spare parts which according to us are damaged or not function- able and in that case, customer is informed about the same.
6. After completion of the work, the surveyor is intimated for re- inspection.
7. After re-inspection by the surveyor, the surveyor gives approval for raising the invoice.
8. Thereafter the final invoice is raised by us and in case of cashless policy, same is sent to surveyor and it is requested for issuing delivery order for delivering the vehicle to the customer.
9. The surveyor deduct from the invoice generated by us the amount for scrap value of the parts and on few items there is a percentage of amount deducted as provided in the policy which is to be paid by the customer".
35. Further in response to question "Why as per you dispute started in this case? He answered that in the present case, surveyor of the insurance company was not visiting for re-inspection despite intimating many times. The surveyor only done the inspection through photographs of the vehicle and after that surveyor raised the dispute regarding labour charges which they have mentioned in their invoice by saying that same is excessive. They have also found that some items were not mentioned in the supplementary estimate due to some technical glitch which they have sent to the surveyor and on the same day, another supplementary estimate was again sent to the surveyor in which it was asked to the surveyor to neglect the earlier supplementary Suit (Com.) No. 688/2024 Page No. 24 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. estimate and consider the new supplementary estimate. The surveyor intimated to them that since they had already forwarded the supplementary estimate which they have sent earlier therefore the amount of the second supplementary estimate was denied by him. Since the cost of parts which were left in the earlier supplementary estimate was very high i.e. around Rs. 1 lac therefore in order to avoid harassment to the customer, his father talked to the surveyor and asked for support and after that he agreed to consider the charges of few items which were included in second supplementary estimate. Hence the only dispute remains with respect to excessive labour charges but insurance company has not informed the exact amount of excessive labour charges therefore they informed the customer to pay the difference charges between the DO amount issued by the surveyor and the invoice which they raised. He denied the suggestion that defendant No. 2 has wrongly detained the vehicle from 24.1.2024 to the date of release of vehicle i.e. 4.8.2024.
In his cross examination by Ld. Counsel for defendant he admitted that in the second supplementary estimate dated 24.1.2024, they mentioned many of the parts / entries which were already allowed by the surveyor in supplementary estimate-I. He admitted that e-mail dated 19.2.2024 Ex. D2W1/D1 sent by surveyor Dinesh Gopal to defendant No. 2 was received by them and in the said e-mail, it is mentioned that the defendant No. 2 will charge only for ECU. He denied the suggestion that defendant No. 2 has charged higher labour charges.
ARGUMENTS
36. It is argued by Ld. Counsel for plaintiff that from testimony of plaintiff / PW1 and documents filed by him and even from the written statements of defendants No. 1 and 2 and their respective witnesses' testimonies that plaintiff has taken cash less insurance policy for vehicle in question and as per policy defendant No. 1 has to pay the charges for Suit (Com.) No. 688/2024 Page No. 25 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. repairs of vehicle in question if it met with an accident directly to the authorized service station which carry repairs i.e. defendant No. 2 and since dispute is between defendant No. 1 and defendant No. 2 about the charges of vehicles due to which vehicle in question was not released to the plaintiff till he approached the court therefore plaintiff is entitled to the compensation @10,000/- per day for release of vehicle besides the payment which defendant paid as difference of amount of the claimed passed by defendant No. 1 and the bill raised by the defendant and lying in the Court in the shape of FDR.
37. It is further argued by Ld. Counsel for the plaintiff that the defendant No. 1's office is situated at Asaf Ali Road, Delhi and as such this court has the territorial jurisdiction to entertain the present suit. The plaintiff has also relied upon Judgments Distilleries (P) Ltd. Vs. Frost Falcon Distilleries Ltd., 2018 SCC Online Del 12544; Qaiser Jahan Begum Vs. Messers Ramzan Karim, 1998 SCC Online Del 250; and Shashank Garg Vs. State & Ors., (CRL. M.C. 3583/2018) dated 17.4.2025.
38. On the other hand Ld. Counsel for defendant No. 1 has argued that since the policy issuing office of defendant No. 1 is situated at Rajasthan and Ghaziabad and defendant No. 2 is situated at Noida and defendant No. 3 is situated at Mumbai therefore merely because the defendant No. 1 has registered office at Delhi itself will not confer the territorial jurisdiction of this court.
39. Ld. Counsel for defendant No. 1 further argued that defendant No. 2 has raised fake second supplementary bill mentioned parts which were physically visible but not claimed damage by the defendant No. 2 in earlier estimate and thus surveyor has rejected the same and further defendant No. 2 has raised labour charges on higher side as per survey report and defendant No. 1 after considering surveyor report has released the delivery order for Rs. 5,52,974/- within time and Suit (Com.) No. 688/2024 Page No. 26 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. thus if any person is responsible for delay in release of vehicle it is defendant No. 2 therefore defendant No. 1 is not liable to pay any compensation and he further argued that plaintiff has led no evidence that it is entitle to Rs. 10,000/- per day as compensation. Ld. Counsel for the defendant No. 1 has also relied judgements New Moga Transport Company Vs. United India Insurance Company Ltd. & Ors., (2004) 4 SCC 677; Patel Roadways Limited Bombay Vs. Tropical Agro Systems Pvt. Ltd. & Anr., (1991) 4 SCC 270; Unimers India Limited Vs. IFCI Limited & Ors., 2012 (129) DRJ 608; and National Insurance Company Ltd. Vs. Hareshwar Enterprises (P) Ltd., 2021 SCC Online SC 628.
40. On the other hand Ld. Counsel for defendant No. 2 has argued that vehicle was ready for delivery after repair on 04.01.2024 but it is defendant No. 1 surveyor who did not carry out the re-inspection in time and further argued that defendant No. 1 wrongly did not allow the second supplementary bill though it was communicated on the same day that first supplementary bill has left certain parts mistakenly due to computer error but same was rejected without any valid reason and further defendant No. 1's surveyor reduce the labour charges drastically without assigning any reason and released the DO for Rs. 5,52,974/- though estimate bill was of Rs. 7,33,795/- thus an amount of Rs. 1,80,821/- remain balance and despite asking plaintiff and defendant No. 1 they did not pay the balance amount hence defendant No. 1 has rightly not release the vehicle in question therefore defendant No. 2 is not liable to pay any compensation amount.
ANALYSIS OF EVIDENCE AND ISSUE WISE FINDING ISSUE NO. 1.
Whether this court has no territorial jurisdiction to try and entertain the present suit? OP Parties.
41. Section 20 of the Code of Civil Procedure would deal the territorial jurisdiction. Same is reproduced as under :
Suit (Com.) No. 688/2024 Page No. 27 of 44Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
"Other suits to be instituted where defendants reside or cause of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c)The cause of action, wholly or in part, arises.
Explanation: A corporation shall be deemed to carry on busi- ness at its sole or principal office in [India] or in respect of any cause of action arising at any place where it has also a subor- dinate office, at such place".
42. Undoubtedly from explanation to Section 20 CPC it is evident that where cause of action has arisen in jurisdiction where subordinate office of corporation is situated then the Court where said subordinate office is situated would have territorial jurisdiction. The same is the ratio of Judgments New Moga Transport Company Vs. United India Insurance Company Ltd. & Ors., (2004) 4 SCC 677; Patel Roadways Limited Bombay Vs. Tropical Agro Systems Pvt. Ltd. & Anr., (1991) 4 SCC 270; Unimers India Limited Vs. IFCI Limited & Ors., 2012 (129) DRJ 608 relied upon by the defendant no.1.
Suit (Com.) No. 688/2024 Page No. 28 of 44Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
43. Now reverting back to the case, it is undisputed fact that the insurance policy Ex. PW1/4 was issued by defendant No. 1. From perusal of said policy, undoubtedly it is evident that the servicing office of insurer is mentioned as "Divisional Office Shree Krishna Plaza, 100 Ft. Road, Shobhagpura, Udaipur, Rajasthan (State Code08) - 313011" and the name and address of broker is mentioned as "Tata Motors Insurance Broking And Advisory Services Ltd., 1st Floor, AFL House, Lok Bharti Complex, Marol, Maroshi Road, Andheri (East), Mumbai - 400059" but the insured address is mentioned as "First Floor, L-40/189, Street No. 7, Mahipalpur Extn., Delhi South West, Delhi (State Code07) - 110037". Therefore said Court would also have jurisdiction but on the policy registered office of defendant No. 1 is having address of Asaf Ali Road, Delhi which falls within the territorial jurisdiction of this court. Even on perusal of Motor Claim Form Ex. D1W1/4 relied upon by the D1W1 itself, it is evident that the said form bears only the registered office of defendant No. 1 i.e. Oriental House, P.B. No. 7017, A-25/25, Asaf Ali Road, New Delhi - 110002 filled by plaintiff and submitted to defendant No. 1 and defendant No. 1 admittedly has processed the claim of plaint on the basis of said Motor Claim Form. No document has been prove by defendant that said claim is not processed at the said office or that same was processed at NOIDA office as stated by defendant No. 1 in written statement. Though D1W1 hence the process of claim has been done on the basis of said form which was submitted to defendant No. 1's registered office thus part cause of action has arose at the registered office of defendant No. 1 i.e. within the territorial jurisdiction of this court.
44. Further, defendant No. 1 itself has proved its surveyor report conducted by Er. Dinesh Gopal which bears the address of Aditya House, 153-154, G.T. Road, Near Upasna Kunj, Gur Mandi, Delhi - 110007 which falls within the territorial jurisdiction of this court. As evident from testimony of D1W1 surveyor has major role to play in process of claim as on his report delivery order was issued. In view of Suit (Com.) No. 688/2024 Page No. 29 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. above facts and circumstances I held that since part cause of action has arose within the territorial jurisdiction of this court hence, I decide issue No. 1 in favour of plaintiff and against the defendants.
ISSUE NO. 2.
Whether no cause of action has arose in favour of the plaintiff to file the present suit? OPD.
45. The plaintiff has filed the present suit seeking release of vehicle and damages. According to plaintiff, the vehicle in question was insured by the defendant No. 1 under cashless policy Ex. PW1/4 and as per the said cashless policy, in case of any accident the vehicle is to be repaired by the authorized service center without taking any money from the plaintiff as the entire money is to be reimbursed by the defendant No. 1 on the basis of said cashless policy.
46. The onus is upon the defendant No. 1 as defendant No. 1 in para 2 of its written statement has stated that no cause of action has arose against the defendant No. 1 as defendant No. 1 has already issued delivery note of Rs. 5,52,974/- to the defendant No. 2 on 19.4.2024 but on perusal of written statement of defendant No. 2 itself, it is evident that the defendant No. 2 has not released the vehicle in question even after issuance of said delivery note by the defendant No. 1 on the ground that the defendant No. 1 has not issued delivery note for entire amount in for which defendant No. 2 has passed the bill. Further according to plaintiff, the vehicle met with an accident and same was taken to authorized service center of defendant No. 2 and the vehicle was ready on 4.1.2024 but same was not released by the defendant No. 2 due to dispute between the defendant No. 2 and defendant No. 1.
47. From perusal of cross examination of PW1, I found that there is no suggestion to PW1 that the aforesaid facts are false rather suggestion given by defendant No. 1 to PW1 that insurance company informed him through notice that only payment they are liable for repair Suit (Com.) No. 688/2024 Page No. 30 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. of vehicle is Rs. 5,52,974/- and rest of the amount of repair will be carried out by defendant No. 2 which clearly shows that there is dispute between the defendant No. 1 and defendant No. 2 about the amount of bill particularly second supplementary bill and the labour charges due to which defendant No. 2 did not release the vehicle. Probably defendant No. 2 was asking for some additional amount which defendant No. 1 was not paying.
48. It is also evident from the testimony of D2W1 Sh. Deepanshu Chauhan that on 4.1.2024, vehicle was ready but could not delivered as same was to be delivered only after issuance of delivery order / delivery note by defendant No. 1 and he further testified that same could not be released due to delayed tactic of defendant No. 1. Further, he also deposed that the final invoice was issued on 29.4.2024 and defendant No. 2 requested for delivery note from defendant No. 1 but the surveyor of defendant No. 1 raised new issues regarding labour charges to harass the plaintiff and defendant No. 2 and he also deposed that the e-mail dated 19.4.2024 sent by Neha Bhatt clearly shows that the defendant No. 1 was not even aware of its cashless policy to the plaintiff and he further deposed that the plaintiff was informed about the delivery note and the difference amount which clearly shows that there was difference of amount for which delivery note was issued by the defendant No. 1 and defendant No. 2 and the defendant No. 2 was asking the said amount from plaintiff for release of vehicle. In these circumstances, it cannot be said that since the defendant No. 1 has issued the delivery note on 19.4.2024 therefore no cause of action was arisen to file the present suit.
49. Further, since the defendant No. 2 has not released the vehicle even till the date of filing of the suit as defendant no.2 was demanding balance payment after reducing amount approved by defendant no.1 through DO and only released the vehicle after plaintiff has deposited FDR of the balance amount in the court of Rs. 1,80,000/-
Suit (Com.) No. 688/2024 Page No. 31 of 44Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. but according to testimony of PW1 he was not liable to pay such said balance amount as his policy was cashless policy, therefore in my view in these circumstances the plaintiff has cause of action to file the present suit against the defendants' seeking reliefs which have been sought in the plaint. Hence, I decide issue No. 2 against the defendants.
ISSUE NO. 3.
Whether the plaintiff has not valued the suit properly and has not paid proper court fees? OPD.
50. The plaintiff in para 17 o the plaint has stated that the suit is valued for the purpose of court fees and jurisdiction for a decree of compensation and damages amounting to Rs. 14,00,000/- from 4.1.2024 and further has stated that the suit is valued for the purpose of relief of mandatory injunction release of vehicle and paid the court fees of Rs. 16,500/-.
51. The onus was upon the defendants to prove that the suit was not properly valued by the plaintiff or that proper court fees has not been paid. Though defendant No. 1 in the reply to para 17 has stated that the plaintiff has claimed relief of mandatory injunction therefore he should have paid the court fees on the relief of mandatory injunction in addition to the claim of damages of Rs. 14,00,000/- as sought in the prayer but as stated above, the plaintiff though in his specific word has not stated that he is paying the court fees for relief of mandatory injunction but has added Rs. 200/- for the value of the suit besides Rs. 14,00,000/- as compensation and damages. Thus, the plaintiff has valued the suit also for the purpose of relief of mandatory injunction in the plaint itself. Further, defendants did not led any evidence that the court fees paid by the plaintiff is deficient nor have given any suggestion to PW1 in this regard. Hence, I held that the defendants have failed to prove that the plaintiff has not paid the proper court fees or though he has not valued the relied for mandatory injunction, but suit cannot be Suit (Com.) No. 688/2024 Page No. 32 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. dismissed for this reason when he has paid proper court fess said relief. Therefore, I decide issue No. 3 in favour of the plaintiff and against the defendants.
ISSUE NO. 4.
Whether the second supplementary bill raised by the defendant No. 2 amounting to Rs. 1,64,249/- was unjustifiably raised by the defendant No. 2? If so, who is liable to pay the said amount? OPD-1.
52. It is undisputed fact that defendant No. 2 sent two supplementary bills i.e. D1W2/D1 amounting to Rs. 43,537/- and D1W2/D2 amounting to Rs. 1,64,249/- to defendant No. 1 through separate emails dt. 25.0124 D1W2/ D2A but according to written statement, the first supplementary bill was sent incorrectly and therefore on the same day defendant No. 2 sent second supplementary bill which was unjustifiably rejected by defendant No. 1 while issuing delivery order and thus defendant No. 2 is entitled to amount of said bill.
53. On perusal of both supplementary bills, I found that following items / goods are extra in second supplementary bill which are amounting as follows :
Part No. Quantity Description MRP Amount (Rs.)
28133800101 1 Tie Rod Assy 5932 5932
552915400101 1 Alternator 12V 10922 10922
120A 8 GR Pulley
BS3/4/6
264181906332 1 Grill Side-LH W/S 185 185
282116204902 1 ECU 59005 59005
264246100105 1 Steering Column 7672 7672
Assy
252515189902 1 Lambda Sensor 11761 11761
BS6
282972500110C 2 Assy Handle 88 176
7 Window Winding
Suit (Com.) No. 688/2024 Page No. 33 of 44
Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.
BS6
257640209904 1 Tyre 10X20 16 25546 25546
PR
Total 121199
Thus from the second supplementary bill it is evident that defendant no. 2 has added parts of Rs. 121199/- .
54. Defendant No. 1 has examined Ms. Nida Parveen its Deputy Manager as D1W1. She in her testimony has not at all depose anything about first of second supplementary bill raised by defendant No. 2. She only deposed about survey report and delivery order of Rs. 5,52,974/-. No question has been asked from D1W1 about the correctness of said supple bill by Ld. Counsel for defendant no.2 and only suggestion was given that surveyor has wrongly disallowed the bill of some parts by saying that same are not damaged in accident. No attention was drawn to the parts which were disallowed by the defendant No. 1. Hence her testimony is neither helpful to defendant no.1 nor to defendant no.2 on said aspect.
55. Defendant No. 1 has also examined its surveyor Dinesh Gopal as D1W2 who proved his survey report as Ex. D1W1/2. From perusal of testimony of D1W1/2, it is evident that he has estimated the total charges as Rs. 5,68,974/- which includes total cost of parts as Rs. 4,82,399/- and labour charges as Rs. 86,575/-.
56. In his cross examination, he admitted that after re- inspection, some of the supplementary demands raised by the defendant No. 2 were accepted and some were not accepted. He admitted that demand of replacement of ECU by the defendant No. 2 was accepted. In response to court question that "What procedure has not been followed by defendant No. 2 in this case?", he answered that defendant No. 2 workshop has initially raised first supplementary estimate / pre invoice bill which was approved and then again raised second Suit (Com.) No. 688/2024 Page No. 34 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. supplementary estimate / pre invoice which was also approved by him after re-inspection of vehicle and thereafter made call to him to inform that the vehicle is ready for delivery after repairs and when he reached halfway to the workshop, he received a call that please don't come, some more parts are being forwarded as supplementary estimate third time. He re-inspected the vehicle and did not found the supplementary estimate raised by the defendant No. 2 third time and then he talked to the workshop owner Mr. Chauhan and narrated the whole story about lack of knowledge of their Work Manager as many parts were repeated in the supplementary estimate and then Mr. Chauhan agreed to claim only for replacement of ECU out of the total items claimed in the third supplementary estimate. Thus from his testimony it is evident that he claimed that defendant no2 owner Chouhan has agreed to charge only for ECU out of total items claim in second supple estimate. No suggestion has been given to deny the said facts.
57. On perusal of his survey report it is evident that that he has disallowed all the items in second supply dated 24.01.2024 which were not mentioned in first supply dated 24.01.2024 except ECU, which corroborate his email Ex. D2W1/D1 dated 19.2.2024 at 5.11 PM. On perusal of said email it is evident that he has written that "a confirmation mail be sent for supply estimate 1 plus ECU from second supple as discussed and agreed upon by your Owner Mr. Chouhan the defendant No. 2 will charge only for ECU and no other parts are covered in the policy and amount of same will have to be paid by him." No suggestion has been given to D2W1 that said email was not received or that defendant No. 2 owner Chouhan did not agreed for charge only for ECU besides those mentioned I first supply.
58. On the other hand defendant No. 2 examined Sh.
Deepanshu Chauhan / D2W1. He has testified that the defendant No. 2 mistakenly sent an incomplete supplementary estimate to defendant No. Suit (Com.) No. 688/2024 Page No. 35 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. 1 and its surveyor on 25.1.2024 at 12.59 pm but the same was intimated to the surveyor and defendant No. 1 and the complete supplementary estimate was sent at 6.17 pm on the same day which he relied upon as Ex. D1W2/D2. Though he denied the suggestion that Sh. Vinod Chauhan, another Director has agreed that defendant No. 2 will charge only replacement of ECU from the additional parts which they have included in second supplementary estimate. However, when he was shown e-mail dated 19.2.2024 at 5.11 PM sent by surveyor Dinesh Gopal to defendant No. 2 Ex. D2W1/D1. On perusal of said email it is evident that Surveyor Dinesh Gopal has written that "a confirmation mail be sent for supply estimate 1 plus ECU from second supple as discussed and agreed upon by your Owner Mr. Chouhan the defendant No. 2 will charge only for ECU and no other parts are covered in the policy and amount of same will have to be paid by him."
59. Defendant No. 2 did not produce any documents that Mr. Chouhan owner of defendant No. 2 did not agree to charge only for ECU but rather from email sent by defendant No. 2 side at 6.18 PM on the same day to Sh. Sajid Iqbal an official of defendant no.1 to get the supply estimate approved without mentioning that defendant no.2 did agree to charge only for ECU from second supple led to presumption that defendant no.2 agreed to the contents of aforesaid Email Ex. D2W1/1 that only amount of first supplementary bill and ECU charges is to be approved by defendant No. 1.
60. Further though D2W1 has deposed that first supple incomplete and therefore second supple was sent however in my view no explanation has been given by defendant No. 2 how said mistake could happen because it appears that both the supplementary estimates / bills have been typed on computer. No concerned witness has been examined who prepare said supplementary bill to prove first supple was sent mistakenly. Furthermore, it is evident that some of the Suit (Com.) No. 688/2024 Page No. 36 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. items which are included in first estimate Ex. D1W2/D1 has not been included in the second supplementary bill Ex. D1W2/D2. How the same could be possible as if there are some items left in first bill which were included in second supplementary bill besides items of first supple, in my view in that event new items can be added in second bill but no item mentioned in first supple could be excluded in second supple. Therefore it appears that the second supplementary bill has been prepared later on. The items mentioned in the said supplementary bill includes many other items which have not been included in first supplementary bill and the same is not system error.
61. Further usually, in a authorized workshop the parts which are required be mechanic for repair of vehicle, usually indent is raised to the person who are incharge of store where spare parts are kept, which is usually an internal shop, so that record could be maintained what parts are used in a particular vehicle but defendant No. 2 did not produce any such indent to prove when the disputed parts mentioned in the second supple dated 24.01.2024 were requisition by its mechanic to used in vehicle in question. Therefore I found justification in the conduct of surveyor rejecting second supple estimate except ECU hence defendant no. 2 is not entitle to any amount from second supple bill dated 24.01.2024 Ex. D2W1/D2 except the ECU and the parts which were already included in first supple dated 24.01.2024 which has already been allowed in survey report by surveyor. Hence defendant No. 2 was only entitled to Rs. 43,357/- and Rs. 59,005/- from said supplementary bill. Issue No. 4 is decided accordingly.
ISSUE NO. 5.
Whether the plaintiff is entitled to compensation and damages of Rs. 14 lacs? If so, which defendant is liable to pay? OPP.
AND ISSUE NO. 6.
Suit (Com.) No. 688/2024 Page No. 37 of 44Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. Whether the plaintiff is further entitled to damages @ 10,000/- per day from the date of filing of the suit till the date of release of vehicle in question bearing registration No. DL1MA 7858? If so, which defendant is liable to pay? OPP.
62. Undoubtedly as evident from written statements of defendant No. 1 and defendant No. 2 and their witnesses' testimonies, the dispute was between defendants No. 1 and 2 with respect to amount of the bill.
63. According to contention of Ld. Counsel for defendant No. 2 the bill amount was Rs. 8,89,242/- but defendant No.1 has wrongly passed the bill / issued delivery note of Rs. 5,52,974/- and since balance amount was not paid by plaintiff also therefore vehicle was not released.
64. On the other hand Ld. Counsel for defendant No. 1 has argued that since defendant no.2 has raised the excess bill of second supple and higher labour charges, therefore after considering the surveyor report Ex. D1W1/2 the defendant No. 1 has rightly issued the DO of Rs. 5,52,974/-. Hence defendant No. 1 has not caused any delay.
65. On the other hand Ld. Counsel for plaintiff has argued that since plaintiff has cashless zero depreciation policy therefore if there was dispute over the amount of bill between defendants No. 1 and 2 then same should be sorted by them and since vehicle was ready for delivery after repair on 04.01.2024 thereafter plaintiff is entitle to the compensation @ 10,000/- per day for loss of business as plaintiff vehicle was attached with Amazon service who were paying Rs. 10,000/- per day for said vehicle service.
66. Since as held in issue No. 4 defendant No. 2 has raised excess supple bill Ex. D1W2/D2 though defendant No. 2 was only entitle to the ECU part and parts which were mentioned in first supple estimate thus was entitle to only Rs. 43,357/- and Rs. 59,005/- out of Rs. 1,64,249/-. Further though with respect to labour charges defendant No. Suit (Com.) No. 688/2024 Page No. 38 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. 2 in final tax invoice has raised bill of Rs. 1,95,290/- whereas defendant No.1 surveyor only passed labour charges of Rs. 86,575/-. No justification was given by defendant no. to reduce the labour charges in such a drastic way. But in my view this Court is not in position what should be labour charges as neither defendant no.2 has led any evidence to justify the same i.e. Rs. 1,95,290/- nor defendant No. 1 has led any evidence to reduce the same to Rs. 86,575/-. Therefore I am not going decide the dispute whether defendant No. 2 has raised excess labour charges.
67. The plaintiff has claimed an amount of Rs. 14 lacs as compensation for delay in release of vehicle which he has calculated @ Rs. 10,000/- per day from 4.1.2024. The onus is upon the plaintiff to prove the fact that he is entitled for damages / compensation for delay in release of vehicle and if so, at what rate he is entitled to damages.
68. In order to prove that the plaintiff is entitled to damages. The plaintiff has taken cashless insurance policy for his vehicle bearing registration No. DL1MA 7858 which is a public carrier from defendant No. 1 and said vehicle was met with an accident and he has taken the said vehicle for repair with authorized service center of defendant No. 2.
69. Plaintiff has examined himself as PW1. He deposed that the vehicle after repair was ready for delivery on 4.1.2024 but the vehicle was not released due to inter se dispute between the defendant No. 1 and defendant No. 2 with respect to payment of bill therefore plaintiff is entitled for damages. He deposed that despite writing many complaints and e-mails and legal notice, plaintiff's vehicle was not released. He further deposed that the vehicle in question was deployed for Amazon Services and approximately loss of Rs. 10,000/- per day was caused to him.
70. From perusal of insurance policy Ex. PW1/4, it is evident that the policy period was from 7.9.2023 to 16.9.2024 and the vehicle Suit (Com.) No. 688/2024 Page No. 39 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. was met with an accident on 26.11.2023 hence the accident occurs within the validity of policy. Further, it is not disputed by the defendants in his cross examination that the same was not a cashless policy. In his cross examination, as stated above neither the defendant No. 1 nor defendant No. 2 denied that vehicle was not insured or that the vehicle was not met with an accident or that the vehicle was not got repaired from defendant No. 2. There is no suggestion to PW1 / plaintiff that plaintiff has got any excess repair or include any excess item then what is not damaged in accident and there is no suggestion to the defendant that any part from the bills out of total bill by raised defendant No. 2 for repairs is to be paid by the plaintiff due to condition of the policy. The meaning of cashless insurance policy is that in case of repair, the vehicle will be repaired at the expenses of insurance company i.e. defendant No. 1 who was directly reimburse the amount of bill to the authorized service center. Rather D2W1 in his cross examination has admitted that that plaintiff does not have any role in preparation or submission of estimate of damaged parts. The plaintiff does not have any role in calculation or determination of labour charges. There is no suggestion to him by defendant no.1 denying the said facts.
71. The D1W1 admitted in cross examination that in cashless policy they have tie up with workshops to repairs the vehicle and repair cost is paid directly to the repairer work shop. Though D1W1 in her cross examination has denied the suggestion that in zero depreciation policy, it was the responsibility of insurer to pay all the bills whatever has been raised by the repairer and there is no liability of the insured to pay any amount however she has failed to point out any such condition in the insurance policy EXPW1/4 or prove any other document in support of said averment. She also denied the suggestion that if any amount is found to be excess claimed by the repairer on the ground of repairing the parts which were not found damaged at the time of accident by surveyor of the excess labour charges, if any claimed by him then same is to be Suit (Com.) No. 688/2024 Page No. 40 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. claimed by insurance company from the repairer and it is the duty of insurance company to get released the vehicle immediately when the vehicle is ready after repair. But in my view if that is not the case and if customer has to pay the amount from his own pocket then what is the purpose of taking cashless and zero depreciation policy for which obviously insurance company charge much higher premium then ordinary insurance policy where customer reimburse the amount of repair from insurance company after paying the bill amount to service center.
Therefore in my view defendant No. 1 was liable to pay if any excess amount was raised by defendant No. 2 for release of vehicle to the plaintiff at the earliest and if there was any dispute of the bill amount then defendant No. 1 should have file claim against the defendant No. 2 and for this release of vehicle should not be delayed even for one day.
72. Since as per testimony to D2W1 vehicle was ready on 4.1.2024 he sent supplementary bill on 25.1.2024 for delivery and since as per the procedure given by D1W2, after authorized service center informed the insurance company / surveyor that the vehicle is ready for delivery, they had to conduct re-inspection of the vehicle and found out any supplementary estimate of damages raised by the workshop is correct or not and give their report to the insurance company and thereafter insurance company is to issue the delivery order to the repair center for release of vehicle. Therefore in such circumstances in my view, the defendant No. 1 should have release the delivery note / delivery order within not more than one month from the date of receipt of supplementary estimate hence the vehicle should have been released by 25.2 .2024 whereas the same has been ordered to be released on 25.7.2024 i.e. after filing of the case by the plaintiff. Whereas as per own admission of D1W1 in cross examination that if all the documents are submitted by the insured and workshop then maximum period is 30 Suit (Com.) No. 688/2024 Page No. 41 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. days as per guideline of IRDA to pay the amount of repair. Therefore in my view defendant No. 1 is liable to compensate the plaintiff for the delay in payment of bill to defendant no.2 from 25.02.24 till the date of release of vehicle i.e. till 25.07.2024.
73. As far as defendant No. 2 is concerned, in my view since defendant No. 2 has raised excess supple bill which resulted in dispute between defendants No. 1 and 2 and defendant No. 2 withhold the release of vehicle till the balance amount is not paid, therefore defendant No. 2 is also equally liable to pay compensation to plaintiff for delay in release of vehicle.
74. Now coming to the question what should be the amount of damages or compensation. Though the plaintiff has claimed the same @ Rs. 10,000/- per day on the ground that the said vehicle was deployed with Amazon Services but the plaintiff did not file any document to corroborate his testimony that his vehicle was earning Rs. 10,000/- per day. Plaintiff neither summoned any witness from Amazon Services that they were paying Rs. 10,000/- per day to the plaintiff for said vehicle nor proved any document as to whether Rs. 10,000/- includes salary of driver and diesel and any other maintenance of vehicle. He did not produce any income tax return or any other document that the vehicle in question was earning Rs. 10,000/- per day therefore in my view the plaintiff is not entitled for compensation @ Rs. 10,000/- per day. Further even if presume that plaintiff vehicle was attached with Amazon and he was getting Rs. 10,000/- per day. He has not depose whether same also include expenses of driver/ cleaner / loading and unloading charges and deasel/ petrol charges which in my view certainly would have taken lot of money out of said Rs. 10,000/- per day hence I held that plaintiff has failed to prove he was earning Rs. 10,000/- from vehicle in question.
75. Furthermore, from perusal of para No. 9 of the plaint it is evident that on one hand plaintiff has claimed Rs. 3,50,000/- calculated @ Rs. 10,000/- per day from 04.01.2024 but in the prayer clause, he Suit (Com.) No. 688/2024 Page No. 42 of 44 Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. has demanded compensation of Rs. 14,00,000/- hence same are contradictory. Plaintiff has not explained even during evidence which of the compensation amount is correct according to plaintiff.
76. Further in my view it was also the onus of plaintiff to reduce the loss if vehicle is not released due to non payment of bill by defendant No. 1 and the plaintiff should have paid the bill amount to defendant No. 2 and could claim the said amount from defendant No. 1 with interest but the plaintiff himself has not done any such act till the order passed by this court for release of vehicle. It is not the case of plaintiff that he does not have the money to pay the bill amount. Further, when the plaintiff was allegedly earning Rs. 10,000/- per day and was having many vehicles, it cannot be presumed that he does not have the money to pay the bill amount to defendant No. 2 to get the vehicle released.
77. Since the value of the vehicle as mentioned in the insurance policy was Rs. 12,46,000/- and usually IDV is less than actual value of vehicle therefore I presume vehicle cost would be around Rs. 15 lacs thus it is presumed that the money which is mentioned of said vehicle was blocked by the defendant No. 1 due to not settling the bill with defendant No. 2 which resulted in non release of vehicle, therefore in my view the plaintiff is entitled to damages @ 24% per annum from defendant No. 1 on the said amount from 25.02.2024 till the date of order of release of vehicle i.e. 25.7.2024 which comes to Rs. 1,50,000/-. Further, I held that the plaintiff will be entitled to interest @ 18% per annum on the decretal amount of Rs. 1,50,000/- from 25.7.2024 till the date of decree and thereafter till its realization. The said amount will be paid by defendant No. 1.
78. Further I hold that the FDR of difference of amount i.e. 1,85,760/- deposited by the plaintiff in the court shall be released to the plaintiff however defendant No. 2 shall be at liberty to take appropriate action against the defendant No. 1 for recovery of its balance amount of labour charges. Issues No. 5 & 6 are decided accordingly.
Suit (Com.) No. 688/2024 Page No. 43 of 44Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors. ISSUE NO. 7.
Whether cost is to be paid? If yes, by whom? Onus on parties.
79. In view of my findings on aforesaid issues, I hold that the plaintiff is entitled to actual costs and same will be paid by both the defendants equally. Issue No. 7 is decided accordingly.
80. RELIEF.
In view of my findings on aforesaid issues, I pass a decree for a sum of Rs. 1,50,000/- (Rupees one lac fifty thousand only) which shall be equally shared by both defendants No. 1 and defendant No. 2. Plaintiff is further held entitled to recover interest @ 18% per annum on the amount of Rs. 1,50,000/- from 25.7.2024 till the date of decree and thereafter till its realization. Plaintiff is further held entitled to the proportionate costs.
80. As far as mandatory injunction is concerned, since the vehicle has already been released to the plaintiff and since the plaintiff has already deposited FDR of the balance amount and since defendant No. 2 has already held responsible for raising false bill therefore I order that the said FDR be released to the plaintiff and defendant No. 2 will be at liberty to recover the balance amount of labour charges, if any from defendant No. 1. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Sanjeev Kumar Aggarwal)
on 27.05.2025 DJ (Commercial)-01, Central,
THC/Delhi / 27.05.2025
Digitally signed
SANJEEV by SANJEEV
KUMAR
KUMAR AGGARWAL
AGGARWAL Date: 2025.05.27
16:51:20 +0530
Suit (Com.) No. 688/2024 Page No. 44 of 44
Jai Prakash Kaushik Vs. The Oriental Insurance Co. Ltd. & Ors.