Delhi District Court
Devraj Dhawan vs . National Insurance Company Ltd. on 11 January, 2016
Devraj Dhawan Vs. National Insurance Company Ltd.
IN THE COURT OF SH. KISHOR KUMAR : CIVIL JUDGE12
(CENTRAL), ROOM NO.361, TIS HAZARI COURTS, DELHI
SUIT NO : 614/14
In the matter of :
Unique Computer ID No. 02401C0588122013
Devraj Dhawan
S/o Late Shri Jeet Lal Dhawan,
R/o E13, Nehru Vihar,
Delhi - 110 054. ...PLAINTIFF
VERSUS
National Insurance Company Ltd.
(Through its authorized officer)
8390, First & Second Floor,
Roshan Aara Road,
New Delhi - 110 007. ...DEFENDANT
Date of Institution : 19.11.2013
Date of decision : 11.01.2016
SUIT FOR RECOVERY OF RS.1,65,000/
JUDGMENT
1. Plaintiff has filed the present suit for recovery of Rs.1,65,000/ against the defendant company on the grounds that he was owner of a truck make TATA 407 bearing registration No.DL1L CS No.614/14 Pg 1 of 12 Devraj Dhawan Vs. National Insurance Company Ltd. E9872 model 2004. It was insured with the defendant vide insurance policy cover No.360701/31/11/6300002685 against premium of Rs.11,106/ for the period 02.11.2011 to 01.11.2012.
2. The vehicle of the plaintiff was stolen by someone. FIR No. 92/12 was registered. Plaintiff approached the defendant for claim. They insisted for untrace report. After procuring the untrace report from the police, plaintiff went to the defendant. On the directions of the defendant, plaintiff furnished all the required documents. The plaintiff become shocked and surprised on receiving the letter dated 06.06.2012 informing that the plaintiff intimated the defendant after 35 days of the alleged theft and hence, plaintiff is not entitled to any insurance amount. Plaintiff immediately approached the defendant submitting that within one week of the theft of the vehicle, he had met Mr. N.C. Singhal who had directed the plaintiff to come up with the untrace report. Plaintiff also issued a legal notice dated 28.10.2013 to the defendant CS No.614/14 Pg 2 of 12 Devraj Dhawan Vs. National Insurance Company Ltd. requesting for payment of the insurance amount but to no effect. Hence, the present suit.
3. Defendant/insurance company filed their written statement submitting that plaintiff has violated condition No.1 of terms and conditions of the policy. According to that plaintiff was to immediately give notice to the defendant of the alleged theft. The information of the theft is given on 05.06.2012 i.e. after about 35 days. Accordingly the competent authority after applying its mind repudiated claim of the plaintiff vide letter dated 06.06.2012. Rest of the case of the plaintiff is denied being wrong and incorrect.
4. On the basis of pleadings of the parties, following issues were framed for trial on 09.04.2014:
1. Whether plaintiff is entitled to the recovery of Rs.1,65,000/, as prayed for? OPP.
2. Whether plaintiff is entitled to any interest, if so, at what rate and for what period? OPP.
3. Relief.
CS No.614/14 Pg 3 of 12 Devraj Dhawan Vs. National Insurance Company Ltd.
5. Plaintiff in order to prove his case examined himself as PW1 by way of affidavit of his affidavit Ex.PW1/A. He relied on the following documents:
1. Ex.PW1/1 (OSR) certificate of fitness.
2. Ex.PW1/2 (OSR) permits for good carriage.
3. Ex.PW1/3 (OSR) authorization certificate of N.P Goods.
4. Ex.PW1/4 (OSR) pollution certificate.
5. Ex.PW1/5 (OSR) policy schedule.
6. Ex.PW1/6 (OSR) FIR No.92/12, PS Timarpur.
7. Ex.PW1/7 (OSR) untrace report.
8. MarkX letter dated 06.06.2012.
9. Ex.PW1/9 notice dated 28.10.2013.
10.Ex.PW1/10 postal receipt of notice dated 28.10.2013.
6. On the other hand, defendant company examined Ms. Manju Rani, Administrative Officer as DW1 by way of her affidavit Ex.DW1/A. She relied on the following documents: CS No.614/14 Pg 4 of 12 Devraj Dhawan Vs. National Insurance Company Ltd.
1. Ex.DW1/1 photocopy of policy (OSR) along with copy of terms and conditions.
2. MarkX letter dated 06.06.2012.
7. I have heard ld. counsel for plaintiff, ld. counsel for defendant and have carefully gone through the record.
8. Ld. counsel for defendant has relied on a judgment passed by National Consumer Disputes Rederessal Commission, New Delhi passed in revision No.3049 of 2014 M/s. HDFC Ergo General Insurance Co. Ltd. Vs. Bhag Chand Saini.
9. My issue wise findings do as follow: ISSUES NO.1 & 2 Whether plaintiff is entitled to the recovery of Rs.1,65,000/, as prayed for? OPP.
Whether plaintiff is entitled to any interest, if so, at what rate and for what period? OPP.
10.Both these issues are taken up together as they are intermingled and interconnected. The only legal issue to be decided in the present case is whether the plaintiff had CS No.614/14 Pg 5 of 12 Devraj Dhawan Vs. National Insurance Company Ltd. immediately informed the defendant about the theft or not and if in negative, its effect. Ld. Counsel for defendant has stoutly referred to condition No.1 of the Commercial Vehicles Package Policy. For the sake of convenience condition No.1 is reproduced as under: "1. Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. Every letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.
11.In view of the above condition No.1 of the policy, in case of CS No.614/14 Pg 6 of 12 Devraj Dhawan Vs. National Insurance Company Ltd. theft or criminal act which may be the subject of a claim under this policy, the insured was required to give immediate notice to the police and cooperate with the company in securing the conviction of the offender. This condition No.1 no where suggests that the insured was under any contractual obligation to immediately give notice to them in case of theft. Rather the insured was under contractual obligation to give immediate notice to the police and cooperate with the company in securing the conviction of the offender. It was only in the event of occurrence of any accidental loss or damage that the insured was required to give immediate notice. In the present case, the plaintiff has promptly reported the matter to the police on 01.05.2012 itself. This condition No.1 nowhere specifies that it was the insurance company which was required to be informed immediately on theft. Furthermore, condition No.1 is only with regard to cooperate with the company in securing the conviction of the offender. It is nowhere the case of the defendant herein that the plaintiff has CS No.614/14 Pg 7 of 12 Devraj Dhawan Vs. National Insurance Company Ltd. not been cooperating the defendant company in securing the conviction of the offender. This court therefore, finds that by registering the case immediately with the police of the theft of the vehicle, the plaintiff stood complied with condition No.1.
12.The judgment relied on by ld. Counsel for defendant of National Consumer Disputes Rederessal Commission (supra), is distinguishable. In that case, there was delay of 98 days in giving the intimation. In the present case, as per defendant company, there is delay of 35 days only. Further with all humility to this judgment of National Consumer Disputes Rederessal Commission (supra) and the judgments mentioned therein, the fact of the present case are different so much so that in the present case, it was incumbent contractually on the part of the plaintiff to inform the police immediately and he had done so. Not only this, in the said judgment the insurance company had appointed an investigator who had completed his investigation and gave report but opined that since the insured could not give the reasons for giving the information CS No.614/14 Pg 8 of 12 Devraj Dhawan Vs. National Insurance Company Ltd. late, the claim was declined. In the present case, the insurance company has not appointed any investigator at all. The plaintiff did not have the opportunity at the appropriate stage i.e. before the investigator to explain the delay in giving information after 35 days.
13.Plaintiff has averred in the plaint that after theft he had met one Sh. N.C. Singhal officer of the defendant within a week, who had directed him to file untrace report.
14.PW1 has been cross examined by ld. Counsel for the defendant wherein he deposed that he had not filed any proof of handing over the documents to the defendant's Head Office. He had given the written information to the insurance company on 05.05.2012. Mr. Singhal did not accept the said written information. It is correct that plaintiff had not given the information about theft of the vehicle on 05.06.2012 to the insurance company. The untrace report was given to the defendant company on 23.05.2012.
15.DW1 Ms. Manju Rani, Administrative officer of the defendant CS No.614/14 Pg 9 of 12 Devraj Dhawan Vs. National Insurance Company Ltd. company has reiterated in her affidavit in evidence Ex.DW1/A that since plaintiff violated condition No.1 of the policy, he is not entitled to any claim.
16.DW1 has been cross examined by ld. Counsel for plaintiff. She has not filed any document on record to show that she is authorized to depose before the court. Ex. DW1/1 is the policy and in the same it is not mentioned in how much period the documents are to be supplied by the insured. DW1 admitted that in condition No.1, the specific days are not mentioned but immediately after the loss. She further admitted that Sh. N.C. Singhal was working in their office but she could not tell that plaintiff contacted him within one week after theft of the vehicle along with the documents. DW1 is working with the defendant company for last 15 years. She has been cross examined on 20.11.2015.
17.After scrutiny of the testimonies of PW1 and DW1, the fact that Sh. N.C. Singhal used to work with the defendant company stands established. Whether plaintiff met Sh. N.C. Singhal CS No.614/14 Pg 10 of 12 Devraj Dhawan Vs. National Insurance Company Ltd. within one week of the incident is to be seen. DW1 admitted that Sh. N.C. Singhal was working with the defendant company. To defuse the contention of the plaintiff that he had not met Sh. N.C. Singhal within one week of the incident, the defendant did not examine the said officer. The written statement in the present case is signed and verified by one Sh. Balwan Singh, Administrative Officer. DW1 has not filed on record any authorization that she is competent enough to depose on behalf of the defendant company. The criminal case registered subsequent to theft of the vehicle in question is still on. The plaintiff is expected to cooperate with the defendant company in securing the conviction of the offender. Except condition No.1, defendant company has not touched upon any other aspect of the matter whether the amount claimed by the plaintiff is correct or not. Therefore, the present one being the case of theft, subject of claim under the policy and the insured/ plaintiff having immediately giving notice to the police, the plaintiff stood complied with the condition No.1 of CS No.614/14 Pg 11 of 12 Devraj Dhawan Vs. National Insurance Company Ltd. the policy. Therefore, the plaintiff is entitled to the insured amount of Rs.1,65,000/. Both these issues are disposed off accordingly.
RELIEF
18.In view of my discussion hereinabove, a money decree in the sum of Rs.1,65,000/ with cost of the suit is hereby passed in favour of the plaintiff and against the defendant company. Under these circumstances, plaintiff is also awarded interest at the rate of 6% (simple) per annum from the date of filing of the present suit till the realization of the decreetal amount. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court (KISHOR KUMAR)
on 11.01.2016 CJ12/CENTRAL/DELHI
CS No.614/14 Pg 12 of 12