Delhi District Court
Rahul Cargo Private Limited vs . The Oriental Insurance Company Ltd & ... on 14 September, 2015
Rahul Cargo Private Limited Vs. The Oriental Insurance Company Ltd & Anr.
IN THE COURT OF CIVIL JUDGE02 (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No. 507/14
M/s. Rahul Cargo Private Limited
Having its corporate office at
X40, Okhla Industrial Area,
PhaseII, New Delhi 110020
Also at:
No. 1326/1/2, Madavara Village,
Dasanpura, Hubli, Tumkur Road,
Bangalore North651123 ...Plaintiff
Versus
1. The Oriental Insurance Company Limited
Service center (DRO1), Hansalaya Building
Barakhamba Road, New Delhi110001
2. Md. Sabir
S/o. Md. Y. Khan
17/H/8, Olai Chandi Road, Chitpur,
Kolkata700037, West Bengal ...Defendant
Date of Institution : 23.01.2013
Date of Reserving Judgment : 14.09.2015
Date of Decision : 14.09.2015
Final Decision : Dismissed
JUDGMENT
( Suit for recovery of Rs. 2,35,055/ along with interest)
1. This is a suit for recovery of Rs.2,35,005/ along with interest against the defendant.
CS No. 507/14 Page 1 of 8Rahul Cargo Private Limited Vs. The Oriental Insurance Company Ltd & Anr.
2. Briefly stated, case of the plaintiff is that plaintiff is a Public Carrier & Cargo Company duly registered under the Companies Act, 1956. That the defendants no. 1 is a company engaged in the business of insurance. That the plaintiff company insured its vehicle bearing Registration No. KA524321 with defendant no. 1 company vide policy no. 214303/31/2010/918, Cover note dated 22.05.2009 and the defendant no. 1 also issued policy/cover note for the same. That the vehicle of the plaintiff company met with an accident at Bangalore and after the said accident the driver of the said vehicle namely Md. Sabir i.e. Defendant no. 2 left the vehicle at the spot and run away from the place of accident and another employee of the plaintiff company Mr. Somveer Singh, (Asst. ManagerSales) who was also travelling in the said vehicle reported the matter to the police and the police accordingly registered the case in respect of the said accident. That thereafter plaintiff company took the vehicle to the workshop for repairing where the surveyor of the defendant surveyed/inspected the vehicle and after the said survey the vehicle was repaired and plaintiff paid for all the charges on account of repair vide Ch. No. 045802 dated 02.08.2010 for Rs. 2,23,055/. That there after plaintiff company lodged its claim along with all documents as requested by the defendant no. 1 for recovery of the amount paid to the work shop on account of repair work done and expenses incurred by the plaintiff and requested to the defendant no. 1 company to make payment against the claim of the plaintiff, but the defendant company rejected the claim of the plaintiff company and asked the plaintiff company vide letter dated 24.12.2011 to furnish the driving license of the Mr. Somveer Singh, (Asst. ManagerSales) for verification on the ground that the said vehicle was driven by Mr. Somveer Singh at the time of accident. That the plaintiff company vide its letter requested the defendant that at the time of accident the CS No. 507/14 Page 2 of 8 Rahul Cargo Private Limited Vs. The Oriental Insurance Company Ltd & Anr.
vehicle was driven by Md. Sabir i.e. Defendant no. 2 not Mr. Somveer Singh. That despite various requests and reminders, the defendant failed/neglected to pay or discharge it's outstanding of Rs. 2,35,055/ to the plaintiff. That the above said unethical business conduct of the defendant compelled plaintiff to issue a legal cum demand notice dated 27.03.2012 but all in vain. Hence the present suit is filed by the plaintiff.
3. Upon service of the summons, defendants appeared and filed written statement separately. Defendant no.1 denied the allegations as contained in the plaint. That since claim of the plaintiff was closed as no claim due to non submission of Driving License of the driver who was on wheel at the time of accident as reported in FIR. That the present suit has not been signed, verified and instituted by a competent authority and as such the same is liable to be dismissed. That the plaintiff has not come before the Hon'ble Court with clean hands and has mislead and concealed the facts just to gain sympathy of the Hon'ble Court. Hence, it is prayed that suit be dismissed.
4. Plaintiff filed rejoinder to the WS of the defendants denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the rejoinder.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 13.11.2013:
1. Whether this court has no jurisdiction to entertain the suit? OPD
2. Whether plaintiff is entitled to a decree of Rs. 2,35,055/ against the defendant as prayed for by the plaintiff? OPP CS No. 507/14 Page 3 of 8 Rahul Cargo Private Limited Vs. The Oriental Insurance Company Ltd & Anr.
3. Whether plaintiff is entitled to any pendentelite and future interest, if so for what period and for what rate? OPP
4. Relief.
6. In order to prove its case, the plaintiff examined its General Manager namely Sh. Nilesh Jain as PW1 who tendered his evidence by way of an affidavit Ex.PW1/A. He relied upon documents Ex.PW1/1 (board resolution dated 27.02.2015), Ex.PW1/2 (insurance policy dated 22.05.2006), Ex.PW1/3 (receipt dated 23.01.2012), Mark P1 (copy of cheque dated 20.08.2010), Mark P2 (invoices dated 30.07.2010), Ex.PW1/5 (letter dated 23.04.2010), Ex.PW1/6 (legal notice dated 27.03.2012) and Ex.PW1/7 (postal receipt dated 28.03.2012) and thereafter, plaintiff closed its evidence.
In order to prove its defence, defendant no.1 got examined Sh. Jagdish Kumar as DW1 who tendered his evidence by way of affidavit Ex. DW 1/A. He further relied upon documents Ex.DW1/1 (certified copy of insurance policy), Ex.DW1/2 Colly (copy of spot report), Mark A (copy of letter with AD cover) and Ex.DW1/4 (copy of surveyors report). Defendant also examined one more witness namely Mohd. Sharif as DW2 and thereafter, closed its evidence. Defendant no.2 was proceeded exparte during the proceedings due to his nonappearance.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issuewise findings are as under:
ISSUE NO.1 Whether this court has no jurisdiction to entertain the suit? OPD
8. The onus to prove this issue was upon the defendant. Ld. CS No. 507/14 Page 4 of 8 Rahul Cargo Private Limited Vs. The Oriental Insurance Company Ltd & Anr.
Counsel for the defendant argued that this court has no jurisdiction to try the present suit for the reason that office of the defendant is situated at Barahkhambha Road, New Delhi which falls within the jurisdiction of District, New Delhi and the policy was also issued from the office of the defendant. It is further argued that the accident occurred in Banglore, Karnataka so the cause of action if any also can be said to have arisen in Karnataka. Hence, this court has no jurisdiction.
As per Section 20 of CPC, every suit shall be instituted in a Court within the local limits of whose jurisdiction the defendant resides or carries on his business. Clause (c) of the Section 20 covers the situation where cause of action arises. As per the averments of the plaint, plaintiff has stated in para no.12 that the territorial jurisdiction lies with this Court as plaintiff work for gain at Delhi and the insurance policy has been issued in Delhi by the defendant. It is clear from the averments that no cause of action has arose within the jurisdiction of this court. Both the defendants resides, carries their business beyond the jurisdiction of this Court. Hence, it can be concluded that this court has no jurisdiction to try the present suit. Accordingly, this issue stands decided in favour of defendant and against the plaintiff.
ISSUE NO.2 Whether plaintiff is entitled to a decree of Rs. 2,35,055/ against the defendant as prayed for by the plaintiff? OPP
9. The onus to prove this issue was upon the plaintiff. Ld. Counsel for plaintiff argued that defendant has defaulted in making the payment to the plaintiff as per the insurance policy. It is further argued that defendant assessed and inspected the damages cause to the vehicle bearing no.KA524321 due to accident. It is further argued that the vehicle was driven by one Sabir who is made defendant no.2 in the CS No. 507/14 Page 5 of 8 Rahul Cargo Private Limited Vs. The Oriental Insurance Company Ltd & Anr.
present case whereas the defendant no.1 has sought the driving license of Somveer who has reported the accident to the police at Banglore. It is further argued that plaintiff has established its case by leading cogent evidence on record, so the defendant be directed to discharge its liability by making the payment to the plaintiff.
On the other hand, Ld. Counsel for defendant argued that as per the report lodged with the police, one Somveer was driving the vehicle at the time of accident. It is further argued that Somveer has never produced the driving license which is the violation of insurance policy and thus, disentitle the plaintiff to raise any claim on account of damage caused. It is further argued that Sabir was never examined as witness nor the Somveer who as per police report was driving the vehicle has been called as witness. It is further argued that the terms of the insurance policy are violated, hence, defendant is not liable to pay any amount to the plaintiff.
10. It has come on record in the testimony of DW2, Police Ct.
Mohd. Sharif who has brought the summoned record and categorically testified that Somveer has filed the complaint and he has admitted to have been driving the vehicle at the time of accident. There is no contradiction in the testimony of DW2 that has come out in his cross examination. Plaintiff has claimed that Somveer was his employee but he never been brought in the witness box to prove the case of the plaintiff when there has been categorical contention that he was driving the vehicle at the time of accident. Somveer being the material witness if examined could have rebutted the claim of the defendant. Plaintiff has claimed that the driver Sabir has fled away from the spot after occurring of the accident. Admittedly, there has been no injury to the third party or any other injury in person so there was no occasion that CS No. 507/14 Page 6 of 8 Rahul Cargo Private Limited Vs. The Oriental Insurance Company Ltd & Anr.
the alleged driver Sabir left the vehicle unattended. Nothing on record suggest that the Sabir was driving the vehicle at the time of accident. It is not disputed that defendant no.1 has sought the driving license of Somveer from the plaintiff which was never produced following which the claim of the plaintiff was rejected. It is one of the essential terms of insurance policy that the driver should hold an effective driving license in accordance with provisions of Motor Vehicles Act and non compliance of any such terms or violation thereof will definitely result in disentitlement of the claim raised on account of damage caused due to accident etc. Hence, it is proved on record that the terms of the terms of the insurance policy have been violated by the plaintiff, therefore, he is not entitle to recover the amount as prayed herein.
In view of the evidence led, this issue stands decided in favour of the defendant and against the plaintiff.
ISSUE NO.3 Whether plaintiff is entitled to any pendentelite and future interest, if so for what period and for what rate? OPP
11. The onus to prove this issue was upon the plaintiff. Once, it has been established in the above mentioned issue that the plaintiff is not entitled to recover any amount from the defendant, the question of interest thereupon does not arise. Accordingly, this issue also stands decided against the plaintiff and in favour of the defendant.
Relief:
12. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
CS No. 507/14 Page 7 of 8Rahul Cargo Private Limited Vs. The Oriental Insurance Company Ltd & Anr.
13. File be consigned to the record room after due compliance.
Announced in the open Court (Vishal Pahuja)
on 14.09.2015 CJ02 (South)/Saket Courts
New Delhi/14.09.2015
CS No. 507/14 Page 8 of 8