Delhi District Court
Jhunsons Chemicals vs National Insurance Co.Ltd And Ors on 18 March, 2024
DLND010130022017
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 1020/2017
M/s Jhunsons Chemicals
Through its Authorised Representative
Abhitab Kumar Tulsian
Having registered office at
Flat no.107, 1st Floor,
Nikita Tower-1, Nani Wala Bagh,
Azadpur Commercial Complex,
Delhi-110033
......... Plaintiff
Versus
1. National Insurance Company Limited
Having its branch office at 1st Floor,
Plot No.5, Near Metro Pillar No. 682,
Main Najafgarh Road,
Uttam Nagar, New Delhi-110059
2. Mr. Sunil Tandon
Sr. Division Manager
National Insurance Company Limited
1st Floor, Plot No.5, Near Metro Pillar
No. 682, Main Najafgarh Road,
Uttam Nagar, New Delhi-110059
CS No. 1020/2017
Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 1 of 16
........ defendants
Suit presented On : 27.09.2017
Arguments Concluded On : 15.03.2024
Judgment Pronounced On : 18.03.2024
JUDGMENT
This is a suit for declaration that the correct estimate of damaged to the insured vehicle bearing no. DL8CX-1487 is Rs.11,40,000/- which amounts to Constructive Total Loss as it exceeds the 75% of the insured declared value with consequential relief of recovery of insured amount of Rs.7,80,000/- alognwith pendente lite and future interest @12% per annum, damages and recovery of parking charges.
FACTS
1. Admittedly, plaintiff (a registered partnership firm) is the owner of vehicle bearing no DL8CX-1487 (make Corolla Altis D-4D G, manufactured by Toyota). The vehicle was insured with the defendant company since its purchase on 20.07.2011 and the policy was renewed each year till the policy year 2017-18. The last relevant details of the policy are as under:
Name of policy Motor-Private Car Package
Policy Number 360304311710000433
Policy Tenure 00:00 Hours, on 16.05.2017 to
midnight 15.05.2018
CS No. 1020/2017
Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 2 of 16
Premium Rs.27,756
Previous policy number and 36080031156100000911
expiry dated Dated 15.05.2016
36030431166100000462
Dated 15.05.2017
Registration number of vehicle DL-8C-X-1487
Vehicle Insured Declared Value Rs.7,80,000/-
2. On 05.08.2017, at about 10.30 PM at the Rajesh Pilot Marg, Prithvi Raj Road intersection, the vehicle which was being driven by Sh. Mridul Narayan Tulsian (son of Sh. Ajitabh Kumar Tulsian, partner of the plaintiff company), met with an accident and FIR No.0056/2017, PS Tuglak Road was registered. Allegedly, the accident happened due to rash driving of vehicle bearing no. HR26DE-0718. On 10.08.2017, the damaged vehicle was taken to Grace Toyota workshop where the service adviser of Grace Toyota duly inspected the vehicle and provided an estimate of loss bearing no. BPE-17-03-050 of Rs.8,98,462.51/- inclusive of labour charges @Rs.89,138/- and parts @Rs.8,09,324/-). After inclusion of taxes, the amount would become Rs.11,40,000/- (approximately) which is way beyond of Insured Declared Value (hereinafter, referred to as 'IDV') of Rs.7,80,000/- as per the policy. However, even after, the said amount was communicated to the defendant company on 10.08.2017 by email and also seeking disbursement of entire ensure amount treating the damage 'total loss', the matter was lingered on by the defendant company. Subsequently, the defendant company appointed a surveyor (arraigned as defendant no.4, initially and dropped vide order CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 3 of 16 dated 11.02.2020), who visited the workshop and surveyed the vehicle. He estimated the loss @Rs.4,50,000/- which was only communicated to the plaintiff vide email dated 24.08.2017. The plaintiff claims that the estimate has been prepared to defeat the total loss claimed by the plaintiff. The plaintiff also has stated that M/s. Grace Toyota has been charging for parking @Rs.250/- per day (Rs.200/- + taxes) to be calculated from 10.08.2017 which is payable by the defendant company on account of not settling the insurance claim of the plaintiff. Being aggrieved by deficiency of service, the plaintiff has also sought damages for mental and harassment tantamounting @Rs.3,00,000/-.
3. The defendant company has alleged that the estimate of Rs.11,40,000/- (approximately) relied upon by the plaintiff is inflated. It is stated that on 11.08.2017, the damaged vehicle was inspected by the surveyor appointed by the defendant company who meticulously and diligently calculated the approximate liability excluding the consumable parts Rs.4,50,000/- which is less than the 75% of IDV and therefore, the damage cannot categorize as Constructive Total Loss. It is asserted that the plaintiff has never been willing to get the vehicle repaired and has from the very inception sought to get the damaged declared as 'total loss'. It is stated that the surveyor wrote to the plaintiff on 30.08.2017, 04.09.2017 and 01.11.2017 to get the repaired started so that internal damages could be inspected on spot and exact loss could be assessed. However, the plaintiff did not respond to them. It is also denied that any parking charges are payable by the defendant CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 4 of 16 company as it is stated that the plaintiff is responsible for not getting the repairs done.
ADMISSION AND DENIAL OF DOCUMENTS
4. No admission and denial of documents was conducted ISSUES
5. Vide order dated 03.08.3018 following issues were framed :
(i) Whether the plaintiff is entitled to decree of declaration regarding loss caused to the insured vehicle of plaintiff and to catagorize the vehicle under the category of 'Constructive Total Loss', as prayed for? OPP
ii) Whether plaintiff is entitled for a decree for sum of Rs.7,80,000/- alongwith pendente lite and future interest, if so at what rate? OPP
iii) Whether the plaintiff is entitled for decree of permanent and mandatory injunction as prayed for? OPP
iv) Whether plaintiff is entitled for decree of Rs.3,00,000/- on account of harassment, mental torture and humiliation as prayed for? OPP
v) Whether plaintiff is guilty of suppression of material facts. If so its effect? OPD
vi) Whether the suit is liable to be dismissed in violation of the terms and condition of the insurance policy? OPD
vii) Whether the suit is without any cause of action? OPD
viii) Relief 5.1 Vide order dated 15.03.2024, one additional issued framed by the undersigned qua prayer clause (vi) which is as under:
'Whether the plaintiff is entitled to a decree for recovery of parking charges of the damaged vehicle payable to M/s. Grace CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 5 of 16 Toyota@ Rs.250/- per day w.e.f. 10.08.2017? OPP PLAINTIFF EVIDENCE
6. With the consent of the parties, vide order dated 11.02.2020 Counsel Sh. N.P. Kaushik (DHJS Retd.,) was appointed as a Local Commissioner and evidence was got conducted through him in the present matter.
6.1 PW-1 Sh. Abhitab Kumar Talwar, AR of the plaintiff tendered his evidence by way of affidavit as Ex. PW-1/A, along with following documents:
Sr. No. Documents Exhibited as 1 Acknowledgment of Registration of Firm Ex. PW-1/1
under Delhi Partnership (Registration of (colly.) Firms) Rules, 1972 of the plaintiff 2 Copy of purchase order of vehicle Corolla Ex. PW-1/2 Altis D-4DG (colly.) 3 Copy of insurance policies for the year Ex. PW-1/3 2011-12, 2012-13, 2013-14, 2014-15, (colly.) 2015-16, 2016-17 and 2017-18 4 Copy of FIR No. 56/2017, PS Tuglak Ex. PW-1/4 Road 5 Copy of estimate by M/s. Grace Toyota Ex. PW-1/5 dated 10.08.2017 6 Copies of emails exchanged between the Ex. PW-1/6 plaintiff and the defendant company (colly.) CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 6 of 16 7 Copy certificate under Section 65B of Ex. PW-1/7 Indian Evidence Act This witness was duly cross-examined by Ld. Counsel for the defendants.
6.2 PW-2 Sh. Prakash Joshi was examined and relied upon the following documents:
Sr. Document Exhibited as
No.
1 Authorization letter Ex. PW-2/1
2 Estimate of vehicle no. DL-8CX-1487 i.e. Ex. PW-2/2
emails, index alongwith the
correspondence i.e. e-mails are
collectively
This witness was duly cross-examined by Ld. Counsel for the defendants.
6.3 Thereafter vide order of Ld. Local Commissioner dated 11.03.2020, PE stood closed on behalf of the plaintiff.
DEFENDANT EVIDENCE
7. Thereafter, DW-1 Sh. Ganga Ram Dagar, Assistant in the defendant company was examined before the Ld. Local Commissioner and he tendered his evidence by way of affidavit as DW-1/A. He was duly cross-examined by the Ld. Counsel for the CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 7 of 16 plaintiff.
7.1 DW-2 Sh. N.L. Sharma, Surveyor was examined who tendered his evidence by way of affidavit which is Ex. DW-2/A and also relied upon survey report dated 08.11.2017 Ex. DW-2/4 (objected to on the mode of proof being a photocopy).
He was duly cross-examined by the Ld. Counsel for the plaintiff.
7.2 Thereafter vide order dated 19.03.2021, DE stood closed on behalf of the defendants before the Ld. Local Commissioner.
FINAL ARGUMENTS
8. Final arguments have been advanced by both the sides led by Sh. Rohit Gupta on behalf of plaintiff and Sh. S.K. Pandey on behalf of the defendants.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
9. This Court has considered the submissions and material on record.
ISSUEWISE FINDINGS
(i) Whether the plaintiff is entitled to decree of declaration regarding loss caused to the insured vehicle of plaintiff and to CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 8 of 16 catagorize the vehicle under the category of 'Constructive Total Loss', as prayed for? OPP
vii) Whether the suit is without any cause of action? OPD
10. The issues are taken up for discussion together as they are inter- connected.
10.1. The onus to prove these issues was upon the plaintiff 10.2 It has been argued on behalf of the plaintiff that it has successfully established its claim because the estimate of the service station at Rs.11,40,000/- has been proved through PW-2 as Ex PW-2/2 (colly.). The same remain uncontroverted. Also, leading the Court through the examination of the surveyor as DW-2 it has been demonstrated that his testimony cannot be relied upon as the report Ex. DW-2/4 did not bear the signature of 'Advisor' of Grace Toyota who accompanied the surveyor at the time of physical inspection. Further, it has been argued that photographs taken by the surveyor were never brought on record. It has been adumbrated that report of the surveyor was preliminary and he was contradicted on his testimony whether the vehicle of the plaintiff was dis-mantled. It has been submitted that the defendant company has maintained the stand that the plaintiff did not allow dis-mantling of the vehicle whereas Sh. N.L. Sharma (DW-2) stated that the vehicle was dis-mantled on 17.08.2017. It has further been argued that even though he denied having prepared any interim report, email dated 07.09.2017 (at 15:18) sent on behalf of defendant company to the plaintiff, it is stated that a preliminary report had been submitted by the surveyor and the CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 9 of 16 surveyor has further admitted as DW-2 that after submitting report Ex. DW-2/4, he did not inspect the vehicle afresh. Thus,it has been argued that the report of the surveyor is unreliable.
10.3 Per contra, it has been submitted on behalf of the defendant company that the plaintiff did not allow dis-mantling of the car for assessment of actual damage as it was inclined from the very inception to claim full damage. It has been therefore, canvased that by not allowing the internal inspection, the plaintiff has breached the terms of contract and is not entitled to the relief.
10.4 In short, the lis between the parties is confined to the estimate of the service station Ex. PW-2/2 (colly.) versus estimate of the surveyor Ex. DW-2/4. As per the pleadings, the estimates are on visual inspection only as no dis-mantling was done (therefore, no mechanical inspection could be carried out). Onus to prove the estimates was on the respective parties.
10.5 In order to prove the estimate of the service station, the plaintiff has examined Sh. Prakash Joshi (PW-2) who is the Administration Incharge of M/s. Grace Toyota. He tendered Ex. PW-2/2 (colly.) in evidence. During cross-examination, he stated that as under:
'... Estimate Ex. PW-2/2 (colly.) is not prepared by me. Vol. It is prepared by an expert service technician. Technician examines the vehicle before giving estimate and in case the need arises for opening of the vehicle, the same is done after seeking approval of the owner of the vehicle. In the present case no approval for opening of the car was not given by the owner through the same was sought for him.' CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 10 of 16 10.6 Thus, the defence was able to traverse the testimony of Sh Pakash Joshi (PW-2) as regards him being the author of it. Thereafter, no steps have been taken for examination of the technician who prepared the estimate.
10.7 Per contra, the defendant company examined surveyor Sh. N.L. Sharma as DW-2 who tendered his survey report Ex. DW-2/4 in evidence. The report being a photocopy was objected to by the Ld. Counsel for the plaintiff. However, considering that the author himself entered the witness box and tendered the photocopy of the document prepared by him, the objection lost its relevance.
10.8 Be that as it may, credibility of the witness has been assailed as he did not place on record his appointment letter as a surveyor, stated that on 17.08.2017, he had inspected the vehicle after dis-mantling it, stated that his report was final and that he had not given any interim report and as he did not adduce the photographs referred to him in his cross-examination (photographs purportedly which were part of his report on record).
10.9 As regards, the report being provisional, the report Ex. DW-2/4 speaks for itself. The relevant portion is as under:
'...4. We also discussed with the Body Shop Manager and we also apprised them about the position of the claim that if considering unseen damages in the assessment of loss without any visible damages only to exceed the liability of the company more than 75% of IDV, it will definitely attract Audit objection CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 11 of 16 as it will be seen as these parties are considered only to settle the claim on TL/ CTL basis and but they avoided to my view.
5. Since, insured was not starting the repair, we wrote a letter dated 30-08-2017 to the insured requesting him to get the repairing job start so that any internal damages if are there should be inspected and hence could be assessed. But, there was no response from the insured.
6. We again wrote a letter to the insured on 4-9-2017 & 1-11-
2017 again requesting the insured to start the repairing job on the vehicle but all in vain.
7. Since the claim is lying pending with us from the long time and the insured was showing no interest in getting the vehicle repaired, we submitted our independent assessment of loss on the basis of physical inspection as well as estimate of repairs of the vehicle alongwith the following conditions.
i) Since the insured has submitted the estimate of Toyota Dealer, we considered same subject to the vehicle repaired from Dealer.
ii) If the insured get the vehicle repaired from local workshop, local/ second hand parts will be allowed.
iii) The assessment prepared is based on our visual inspection and if after dismantling more damages come up that will be consider subject to their attribution of the accident and also in the production of supplementary estimate.
iv) Proper taxes will be allowed on the production of proper bills/ cash memos.
v) Submission of original RC for our verification and return.
vi) One leaf of cancelled cheque.
We further add here that we are still in the opinion that the parts which are not visible could not be considered for the assessment for settlement of the claim on TL/ CTL basis and we are still open to the assessment for any damages that are not there in our assessment of loss but come up after dismantling subject to damages to these parts could be attributed to the occurrence of accident' 10.10 Also, email dated 07.09.2017 issued on behalf of the defendant company to the plaintiff treats the report as preliminary.
10.11 The defence set up has been that the plaintiff never assented to the dis-mantling of the car for assessment of loss beyond physical inspection. The surveyor in his report, has also stated so in paragraph CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 12 of 16 no.5 of his report Ex. DW-2/4. It was also confirmed from the examination of Sh. Prakash Joshi (PW-2) that the vehicle was not permitted to be dis-mantled by the plaintiff. Therefore, DW-2 stood contradicted as to whether his report was also based upon inspection after dis-mantling the vehicle and hence, was final assessment of damages. Photographs indeed have not been proved. Thus, the surveyor's testimony is not reliable to arrive at a finding of the loss cause.
10.12 However, the plaintiff had to stand on its own legs and demonstrate by way of pre-ponderance of probabilities that the estimate given by the service station (Ex. PW-2/2 (colly.)) was genuine and therefore, the loss caused to the vehicle could be categorized as total constructive loss. However, for reasons already mentions above, the report was not proved.
10.13 Therefore, the issue is decided against the plaintiff.
ii) Whether plaintiff is entitled for a decree for sum of Rs.7,80,000/- alongwith pendente lite and future interest, if so at what rate? OPP
iii) Whether the plaintiff is entitled for decree of permanent and mandatory injunction as prayed for? OPP
iv) Whether plaintiff is entitled for decree of Rs.3,00,000/- on account of harassment, mental torture and humiliation as prayed for? OPP
11. In view of the discussion on issue no.(i), the reliefs being CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 13 of 16 consequential cannot be granted and are decided against the plaintiff.
v) Whether plaintiff is guilty of suppression of material facts. If so its effect? OPD
vi) Whether the suit is liable to be dismissed in violation of the terms and condition of the insurance policy? OPD
12. The issues are taken upon for discussion together as they involve similar discussion.
12.1 The onus to prove these issues was upon the defendants.
12.2 The issues have been raised by the defendants premised upon adamancy of the plaintiff not to get his vehicle repaired in order to claim total loss.
12.3 To prove the same, the plaintiff examined Sh Gagan Ram Dagar (DW-1) AR of the defendant company. However, the witness merely tendered his affidavit Ex. DW-1/A in evidence where he affirmed that he was competent to depose on behalf of the defendant company being its authorized representative. No document of authority was tendered in evidence. During cross-examination, a specific question was directed towards him about his authority to depose in regard to which he stated as under:
'... I do not know if our counsel has placed on judicial record any power of attorney/ authority letter in my favour to depose as a witness.' 12.4 Therefore, the plaintiff was able to traverse the competency of CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 14 of 16 Sh. Gagam Ram Dagar (DW-1) to depose on behalf of the defendant company. Even during final arguments, the defendants counsel did not produce any document of which judicial notice could be taken.
Hence, the defendants failed to discharge the onus upon defendants.
12.5 Therefore, the issues are decided against the defendants.
F) Whether the plaintiff is entitled to a decree for recovery of parking charges of the damaged vehicle payable to M/s. Grace Toyota@ Rs.250/- per day w.e.f. 10.08.2017? OPP
13. The onus to p rove this issue was upon the plaintiff.
13.1 The claim is based upon the terms and conditions of the estimate. Given by the service station Ex. PW-2/2 (colly.) where it is mentioned as under:
'... Delivery time mentioned in the RO is only indicative. Delivery to be taken within24 hours after vehicle ready intimation, else customer agrees to pay storage charges @ Rs.200 per day and will be made only to the authorized person/s on production of RO.' 13.2 However, as already observed under issue no.(i) that the document was not proved by its author and considering that, no demand has been made from the plaintiff, so far, the issue is decided against the plaintiff.
RELIEF CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 15 of 16
14. In view of above submissions, the suit is dismissed. Parties to bear their own cost.
15. Decree sheet be prepared, accordingly.
16. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 18.03.2024 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS No. 1020/2017 Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 16 of 16