Delhi District Court
Raj Kumar Sharma vs M/S Choramandalam Ms General Insurance ... on 20 September, 2024
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE(COMMERCIAL)-07(CENTRAL)
TIS HAZARI COURTS: DELHI
CS (Comm.) No. 177/2021
CNR No. DLCT01-0007282021
DLCT010007282021
Raj Kumar Sharma ,
Proprietor of M/s Raj Kalpna Travels,
At House No. 422, Gali No.150B,
Sant Nagar, Burari,
Delhi-110084
Also At:
Shop No. 52, Gokhle Market,
Opp. Tis Hazari Court, Gate No.5,
Delhi-110054.
......Plaintiff.
Vs
M/s Cholamandalam MS General Insurance Company Ltd.,
Through its Gen. Manager/Principal officer,
At: Plot No.6, Adjacent to Metro Pillar No.81
Pusa Road, Karol Bagh, New Delhi.
.... Defendant.
SUIT FOR RECOVERY OF RS. 36,47,500/-.
Date of institution of suit : 15.01.2021
Digitally
signed by
MUKESH
First Date before this court : 24.04.2024
MUKESH
KUMAR
KUMAR
GUPTA
Date:
Date of hearing of final argument : 19.09.2024
GUPTA 2024.09.20
17:11:45
+0530
Date of Judgment : 20.09.2024
CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 1 of 28
Appearance(s) : Mr. Sanjay Kumar, Ld. Counsel for the plaintiff.
Ms. Samta Jain, Ld. Counsel for the defendant.
JUDGMENT
(A) PRELUDE:
1. By way of present judgment, I shall conscientiously adjudicate upon the plaintiff's suit for Recovery of Rs.36,47,500/- alongwith interest @ 18% per annum pendentlite and future with effect from 20/21.04.2019. Plaintiff has also prayed for a direction to the defendant no.2 (since deleted) i.e. Indusind Bank to appoint the surveyor with the directions to assess the value of the damaged vehicle with a direction to sell the same in market and deposit the sale proceeds of the damaged vehicle in the loan amount of the plaintiff besides direction not to deduct the loan installment amount from the account of the plaintiff till the entire insurance amount is recovered by the plaintiff from the defendant (No.1) Insurance Company. The plaintiff has also prayed for costs of the suit.
(B) PLAINTIFF'S CASE
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that:-
2.1) The plaintiff is a registered owner of the vehicle bearing No. UP-80-ET-0591, Model-2018, Engine No. JBEZ422054 Chasis No. MB1PREHD2JABJ2783 (AC Luxury Bus). The plaintiff is engaged in the business of transport running under the name and style of M/s Raj Kalpna Travels having GST number from the Government of India. The aforesaid vehicle of the plaintiff was insured with the defendant no.1 vide Insurance Cover Note valid from 28.07.2018 to 27.07.2019 vide Policy Digitally signed MUKESH KUMAR by MUKESH GUPTA KUMAR Date:
GUPTA 2024.09.20 17:11:58 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 2 of 28 No. 3373/00554209/000/00 issued on 04.08.2018 GST Invoice No.3373185743830 and Cover Note No.65553418 SAC Code No. 997134 for a sum of Rs.36,47,500/-. The plaintiff has paid the premium of Rs.1,34,400/- to the defendant for the aforesaid insurance policy. The policy of aforesaid vehicle was taken by the plaintiff through Indusind Bank defendant No.2 (since deleted) from where the plaintiff has also financed the vehicle. The Fitness Certificate, All India Permit and the Tourist Permit of the said vehicle was valid uptil 25.09.2020, 28.09.2023 and 19.05.2024 respectively.
2.2) It is further the case of the plaintiff that unfortunately, the aforesaid vehicle has met with an accident on 20/21.04.2019 and an FIR bearing no. 0196/2019 under Section 279/337/304-A IPC was registered with the Police Station Karhal, District Mainpuri, UP . The vehicle of the plaintiff was completely damaged beyond repair. It is contended that at the time of the accident, the driver of the aforesaid vehicle of plaintiff namely Shri Vrindavan Yadav was having valid and effective driving licence valid uptil 31.12.2023.
2.3) It is further the case of the plaintiff that after receiving the notice from the Investigating Officer of the concerned Police Station PS Karhal, District Mainpuri, UP on 26.04.2019, plaintiff informed the police that the said vehicle was insured with the defendant insurance company at the time of accident and his driver namely Vrindavan Yadav was driving the said vehicle. Plaintiff has also deputed an additional driver Shri Rakesh Dadheech in the aforesaid vehicle on account of long distance between Delhi to Varanasi (Approx. 900 Km. by road) who was Digitally signed by MUKESH also sitting in the bus at the time of accident and was also having a valid MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2024.09.20
17:12:07
+0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 3 of 28
driving licence. The plaintiff thereafter got released the said vehicle on Superdari from the court and the police arrested the driver who was later on released on bail.
2.4) It is further the case of the plaintiff that plaintiff intimated the defendant regarding the said accident of the aforesaid vehicle and completed all the formalities and submitted all the documents and filed his claim for settlement and prayed for release of the claim amount but without considering the facts and circumstances of the case, the defendant rejected the claim of the plaintiff malafidely vide letter dated 17.10.2019. Plaintiff has further stated that the defendant is withholding the legitimate claim of the plaintiff without any reason. The plaintiff has further stated that he has financed the aforesaid vehicle from the Indusind Bank and taken a loan of Rs.33,64,402/- which was to be repaid in 36 installments of Rs.1,19,600/- per month commencing from 27.07.2018 uptil 18.06.2021 and that he has been regularly paying the same.
2.5) It is further the case of the plaintiff that the aforesaid vehicle was a source of income of the plaintiff and he was earning a sum of Rs.2,00,000/- per month from the same, out of which, he was paying the loan installment. The plaintiff has claimed to have suffered a huge monetary loss to the tune of Rs.10,00,000/- approximately. It has been contended that when the defendant did not release the insured claim amount to the plaintiff, the plaintiff under compelling circumstances sent a legal notice through his counsel on 17.01.2020 to the defendant through /registered AD and courier thereby calling upon the defendant to Digitally signed by MUKESH KUMAR MUKESH KUMAR GUPTA pay the abovesaid amount alongwith interest thereon w.e.f. the date of Date:
GUPTA 2024.09.20
17:12:14
+0530
CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 4 of 28 accident till realistion. The said notice was duly served upon the defendants but the defendant did not comply the terms of the said legal notice.
2.6) Plaintiff has claimed cause of action on the date when the vehicle was damaged due to accident on 20/21.04.2019, when the plaintiff received notice from the Investigating officer from PS Karhal, District Mainpuri, when the plaintiff intimated the defendant regarding the said accident, when plaintiff completed all formalities for receiving the insured amount from defendant and finally when legal notice dated 17.01.2020 was served upon the defendant. Hence, the present suit for recovery of Rs.36,47,500/- with interest @ 18% per annum and costs.
(C) DEFENDANT'S CASE:-
3. Summons for settlement of issues were issued to the defendant.
On receipt of summons, the defendant contested the suit by filing a detailed Written Statement thereby taking preliminary objections :-
3.1) the suit is not maintainable as the plaintiff has not approached the court with clean hands and suppressed material facts from the court and that there is no cause of action to file the present suit. The suit is liable to be dismissed as the name of the driver mentioned in plaint is different from the name of the driver who was released on bail after furnishing the bail bond in the said FIR No. 0196/2019. The defendant has further averred that the suit is liable to be dismissed as the sitting capacity in the bus was 36, however, at the time of alleged Digitally signed by MUKESH incident, the bus was overloaded with more than 50 passengers.
MUKESH KUMAR
KUMAR GUPTA
Date:
GUPTA 2024.09.20
17:12:20
+0530
CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 5 of 28 3.2) On merits, all the allegations made in the plaint are denied as incorrect and it has been reiterated by the defendant that the defendant is not liable to pay any amount to the plaintiff because the name of the driver mentioned in the present petition is different from the name of the driver who released on bail after furnishing the bail bond in the said FIR No.0196/2019 also reiterating that the sitting capacity in the bus is 36, while at the time of alleged incident, the bus was overloaded with more than 50 passengers, and as such the plaintiff did not comply with the terms and conditions of the policy issued by the defendant. It has further been contended that the plaintiff wants to get advantage of his own wrongs by dragging the defendant in the instant false litigation. It has further been contended that there is no cause of action arisen in favour of the plaintiff and against the defendant. There is no liability of the defendant to pay claimed amount of Rs.36,47,500/- or any interest thereupon as no amount is due against the defendant and prayed that the suit be dismissed with costs.
4. A replication to the Written Statement was also preferred by the plaintiff reiterating the contents of the plaint and vehemently denying the contents of the Written Statement. Plaintiff has contended that the bus of the plaintiff was a luxury bus and the plaintiff since the starts of his business did not violate any of the rules and bye-laws of the traffic transport authority as well as insurance companies.
5. It is pertinent to mention here that defendant No.2, the Manager, Indusind Bank was dropped from the array of the parties vide order dated Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.20
17:12:27 +0530
CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 6 of 28 23.10.2021 on the statement of Ld. Counsel for plaintiff given before the court.
(D) CRYSTALISING THE DISPUTE :-
6. On the pleadings of the parties and documents placed on record and after perusing the affidavit of admission denial of the parties, the following issues were framed for adjudication vide order dated 02.06.2024.
ISSUES.
(i) Whether the defendant has rightfully denied the insurance claim of the plaintiff for the reason that name of the driver mentioned was different from the name of the driver who was released on bail after furnishing of the bail bond in the FIR No. 0196/2019 PS Karhal, District Main Puri, UP under Section 279/337/304A IPC ? OPD
(ii) Whether the plaintiff is entitled to a sum of Rs.36,47,500/- from the defendant as insurance claim ?OPP
(iii) Whether the plaintiff is entitled to interest @ 18% per annum or at any other rate and if so on what amount and for which period ?OPP
(iv) Who is entitled to the costs, against whom and in what quantum? Onus on parties.
(v) Relief.
7. It is further pertinent to mention here that an additional issue was Digitally also framed by the predecessor of this court on 16.02.2022 at the request signed by MUKESH MUKESH of the Ld. Counsel for the defendant mentioned as under;
KUMAR KUMAR GUPTA Date:
GUPTA 2024.09.20
17:12:43
+0530
CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 7 of 28
Issue No.1A
"Whether the defendant has validly repudiated the claim of the plaintiff in lieu of the insured vehicle being overloaded?OPD".
(E) EVIDENCE OF PLAINTIFF.
8. Plaintiff Mr. Raj Kumar Sharma, in support of his case, got examined himself as PW1 and reiterated the contents of the plaint on oath in his affidavit Ex.PW1/A. He got exhibited the copy of GST Registration Certificate of his proprietorship firm as Ex.PW1/1, Copy of RC of vehicle bearing registration No. UP-80ET-0591 as Ex.PW1/2, copy of Insurance Policy No. 3373/00554209/000/00 as Ex.PW1/3, Copy of FIR No. 196/2019 PS Karhal, District Mainpuri, (UP) u/s 279/337/304-A IPC marked as Mark PW1/4, copy of fitness and All India and Tourist Permit marked as Mark PW1/5 and Mark PW1/6 respectively, copy of Legal Notice dated 17.01.2020 as Ex.PW1/7, its Postal Receipt as Ex.PW1/8 and Courier Receipt as Ex.PW1/9. He has further deposed that the suit is correct and the defendants are liable to pay the outstanding amount alongwith interest and costs of the suit. PW1 has specifically deposed in his Examination-in-chief by way of Affidavit Ex.PW1/A that the vehicle has met with an accident on 20/21.04.2019 and an FIR in this regard was registered with the Police Station karhal, District Mainpuri, UP under section 279/337/304A IPC on the complaint of Shri Vikram Singh S/o Shri Prem Kumar Singh and in the said accident the vehicle was completely damaged and was not in a repairable Digitally signed by MUKESH condition.
MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.20 17:12:52 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 8 of 28
9. During cross-examination, Ld. Counsel for defendants has tried to puncture the testimony of PW1 on the point of liability of defendant. PW1 has admitted as correct that he was not an eye witness to the accident in question and he has mentioned about it in the plaint as well as in his evidence only on the basis of what he has heard. He has submitted the claim intimation form Ex. DW1/1 mentions the name of the driver who was driving the vehicle at the time of accident as Vrindavan Yadav but when confronted with the same showing the name of driver as Rakesh Dadhich, he has voluntarily deposed that there used to be two drivers in the vehicle and Mr. Vrindavan Yadav was driving the vehicle at the time of accident. He has also deposed that as per his information 3-4 persons died due to the accident.
10. No other witness was examined by the plaintiff and the evidence of the plaintiff was closed vide court order dated 02.02.2024.
(F) DEFENDANT'S EVIDENCE :-
11. The defendant in its defence has examined two witnesses one Mr. Sujeet Kumar Sahu, its Authorized person as DW1 and another Shri Harpreet Singh, an authorised Investigator of the Insurance Company as DW2.
12. DW1 Shri Sujeet Kumar Sahu, in his evidence by way of affidavit Ex.DW1/A, reiterated the contents of the Written Statement on oath. He Digitally signed by got exhibited the certified copy of Vehicle Investigation Report dated MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.20 23.05.2019 as Ex.DW1/1. He has also deposed in his evidence that 17:13:05 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 9 of 28 defendant insurance company is not liable to pay to the plaintiff because the name of the driver mentioned in the petition is different from the name of the driver who was released on bail after furnishing the bail bond in the said FIR No. 0196/2019. It has further been deposed that the plaintiff has not complied with the terms and conditions of the policy issued by the defendant since the sitting capacity of the bus is 26, however, at the time of alleged incident, the bus was overloaded with more than 50 passengers. He has deposed that the plaintiff wants to take advantage of his own wrongs by narrating false and manipulated story, having no iota of truth.
13. The witness DW1 was subjected to a detailed cross-examination by Ld. Counsel for the plaintiff who during cross-examination has denied the suggestion that the plaintiff has suppressed the material facts for the proper adjudication of the case. He has admitted that as per the insurance policy, the total seating capacity of the vehicle in question is 45 persons including driver but at the same time, he has shown his knowledge on the basis newspaper report/investigation report and FIR that more than 50 persons were sitting in the bus at the time of accident. He has however admitted that the number of passengers at the time of accident being 50 has not been mentioned in the FIR. He has refuted the suggestion that he has deliberately and wrongfully raised the plea of 50 occupants in the bus only to deny the claim of the plaintiff. He has further admitted that the name of the driver of the bus is also not mentioned in the FIR and denied the suggestion that he has deliberately Digitally signed mentioned the name of co-driver instead of actual driver Mr. Vrindavan MUKESH by MUKESH Yadav.
KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.20 17:13:12 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 10 of 28
14. When asked about his authorization to represent the defendant company, he has admitted that he has not been specifically authorized by the defendant company in this case. In response to his deposition for the seating capacity of the bus being mentioned as 36 in his affidavit Ex.DW1/A, he has volunteered the same to be a typographical error. He has shown his complete lack of knowledge regarding the number of injured or dead person in the accident being verified by the Investigator either from the hospital record or otherwise and admitted that the same is based on newspaper's report. He has denied the suggestion that there is no valid and government proof annexed with the investigation report of the officer Shri Harpreet Singh that shows that passengers sitting in the bus was more than 50. he has shown lack of any knowledge whether any official from the defendant company went to PS Karhal or hospital at Saifi to verify the fact. He has finally denied the suggestion that he is deposing falsely at the instance of defendant company for denying the recovery of insurance claim amount.
15. DW2 Shri Harpreet Singh, the so-called authorised investigator of Insurance Company, has also deposed on similar lines as that of DW1 in his evidence by way of Affidavit Ex.DW2/A. He reiterated the already collectively exhibited documents in DW1/1 (colly 31 pages) and got them exhibited separately as the statement of the Insured dated 15.05.2019 Ex.DW1/2, the RC of vehicle Ex.DW1/2 and the Insurance Policy Note Ex.DW1/4, DL of the declared driver as Ex.DW1/5 and the Digitally signed by MUKESH Snap of bail document as Ex.DW1/6. He has deposed that plaintiff did MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.20 not comply with the terms and conditions of the policy issued by the 17:13:20 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 11 of 28 defendant because the sitting capacity in the bus is 26, however, at the time of alleged incident the bus was overloaded with more than 50 passengers and the name of the driver was different from the name as mentioned in the petition.
16. During cross-examination, he has deposed to be an independent investigator having no knowledge about the contents of the Written Statement. Like DW1, the witness has also denied the suggestion that the defendant is not liable to pay to the plaintiff because the name of the driver mentioned in the petition is different from the name of the driver released on bail in the FIR no. 0196/2019 which was registered when the subject vehicle has met with an accident. He has admitted after seeing the Motor Policy Schedule-cum-Certificate of Insurance issued by the defendant company Ex.DW2/P1 that the same mentions the total seating capacity of the bus including driver as 45 and denied the suggestion that he has deliberately and intentionally mentioned the sitting capacity of the bus as 26 only for the purpose of denial of insurance claim to the plaintiff. When asked about the details of his investigation, the witness has admitted that he has never given any written communication to the owner of the vehicle asking him to join the investigation or recorded statement of any injured person or family member of deceased passenger. He has admitted that he cannot tell the exact number of injured persons or deceased persons or has even asked the concerned authority in writing for providing CCTV footage of toll booth exit at Karhal though he has added that he has requested verbally for CCTV footage which was not Digitally provided. He has also admitted as correct that he cannot tell the name of signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.20 17:13:35 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 12 of 28 the driver of the ill-fated bus on the basis of CCTV footage. When asked about the number of passengers in the bus at the relevant date, time and place being confirmed he has admitted that he has not confirmed the same from the online booking site. When asked about the specific number of passengers in the said bus at the time of accident, he has admitted that he cannot tell the same but volunteered that as per newspaper report, more than 50 passengers were reported in the bus. The witness has further stated that he does not remember any communication either with the insurance company or the petitioner, asking for the list of passengers in the bus.
17. No other witness was examined by the defendants and the evidence of the defendants was closed vide statement dated 04.05.2024.
(G) ARGUMENTS ADDRESSED:-
ARGUMENTS OF PLAINTIFF.
18. Ld. counsel for the plaintiff Sh. Sanjay Kumar has vehemently argued that the vehicle in question which has met with the unfortunate accident on 20/21.04.2019 was fully insured with the defendant which was valid on the date of accident. It has been argued that a huge insurance premium of Rs.1,34,400/- has been paid by the plaintiff to the defendant and the plaintiff had also complied with all other legal requirements including Vehicle Fitness, All India Tourist Permit and Tourist Permit which were valid at the time of accident. It has been Digitally MUKESH signed by MUKESH KUMAR GUPTA argued hat the subject vehicle was being driven by a competent driver KUMAR GUPTA Date:
2024.09.20 17:13:59 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 13 of 28 Vrindavan Yadav who was having a valid Driving License at the time of accident. It has been argued that since the distance of travel was long of about 900 Kms by road it is generally an accepted practice to ensure the safety of the passengers that an additional driver is deputed on the bus which in this case was Sh. Rakesh Dadhich. It has been argued that the bus was a luxury coach having much higher fare as compared to other normal buses and not even a single additional passenger can be made to sit or stand in the bus. It has been further argued that all the bookings of the passengers were done online and not even a single passenger could have been added against cash payment and no physical tickets were ever issued. It has been argued that the defendant is trying to raise false pleas of over-loading and confusion regarding the driver deliberately and with malafide intention to deprive the plaintiff of its legitimate claim which the defendant is duty bound to pay and against which, the plaintiff has paid huge premium. It has been further argued that even if the entire evidence of the defendant is carefully perused, attempts have been made only to raise false pleas without any actual evidence and even the investigator of the defendant company has not carried out any investigation worth a name to prove the pleas raised by the defendant, so much so that as per investigation report of the so called independent investigator authorized by defendant company, the driver of the defendant bus was reported to be dead in the accident and who is actually still alive which proves the lack of any investigation by the investigator and falsity of the defence raised by the defendant. It has been argued that Digitally signed by plaintiff has suffered immense losses and mental harassment but MUKESH MUKESH continued to pay the installment of the subject vehicle which shows the KUMAR KUMAR GUPTA GUPTA Date:
2024.09.20 17:14:07 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 14 of 28 bonafides of the plaintiff and malafides of the defendant. It has been finally argued that the suit of the plaintiff be not only decreed with interest but an exemplary cost be also imposed on the defendant for unnecessarily repudiating the insurance claim and compelling the plaintiff to approach the court of law.
ARGUMENTS OF DEFENDANT:
19. Ld. Counsel for the defendant Ms. Samta Jain has submitted that though the arguments addressed by ld counsel for plaintiff may appear to generate sympathy, however, the same is contrary to the facts. It has been argued that the plaintiff has deliberately concealed the name of the driver who was driving the bus at the time of accident and his name differ in the present petition from the driver who has obtained bail from the court. She has vehemently argued that the bus was overloaded at the time of accident with 50 passengers against its authorized capacity which is a clear violation of the agreed policy terms and conditions of insurance and as a result of which, the defendant was under legal obligation to repudiate the claim. It has been further argued that the claim of the defendant is primarily based on the newspaper reports regarding the accident but is also based on the report of its independent investigator and the FIR registered in this case which the plaintiff cannot deny. It has been finally argued that not only the suit of the plaintiff is required to be dismissed but the same should be dismissed after imposing exemplary cost on him Digitally signed by for dragging the defendant in the court unnecessarily.
MUKESH
MUKESH KUMAR
KUMAR GUPTA
GUPTA Date:
2024.09.20
17:14:14
+0530 (H) ANALYSIS & DETERMINATION:-
CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 15 of 28
20. I have heard the arguments addressed by the Ld. Counsels for the parties, perused the entire record including the pleadings, documents and the oral evidence. I have given a thoughtful consideration to the same. My issues-wise determination are as under:-
ISSUES No.1 : "Whether the defendant has rightfully denied the insurance claim of the plaintiff for the reason that name of the driver mentioned was different from the name of the driver who was released on bail after furnishing of the bail bond in the FIR No. 0196/2019 PS Karhal, District Main Puri, UP under Section 279/337/304A IPC ? OPD
21. The onus to prove this issues was held upon the defendant, who has taken a preliminary objection in the Written Statement that the suit is liable to be dismissed with heavy costs on the ground that the defendant is not liable to pay a single penny to the plaintiff because the name of driver (who was driving the ill-fated bus at the time of accident) mentioned in the petition (plaint) is different from the name of the driver who was released on bail after furnishing the Bail Bond in the said FIR. The defendant has relied upon the testimony of DW1 Sujit Kumar Sahu its AR and that of DW2 Shri Harpreet Singh who is stated to be the Investigator authorised by the Insurance Company (defendant herein). The defendant has also lamely relied upon the CRM Motor Claim Intimation form and the photocopy of the bail order issued by the concerned court which appears to be forming the part of Ex.DW1/1, the so-called investigation report of DW2. While on the other hand, the plaintiff has relied upon his own testimony and the deposition of Digitally signed by MUKESH defendant witness as culled out during cross-examination. If entire MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.20 evidence led by the parties is carefully analysed it may be seen that the 17:14:22 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 16 of 28 plaintiff has very categorically mentioned in para No.5 of the plaint (petition) that the bus was driven by the driver Shri Vrindavan Yadav who was plying the said vehicle at the time of accident. If the bail order which forms part of Ex.DW1/1 is carefully seen the same is also passed by the Ld. CJM Mainpuri, UP on 22.05.2019 in respect of the accused Vrindavan Yadav only, when he was released on a personal bond of Rs.25,000/- with two surety of like amount in FIR No.0196/2019. The court is at loss to understand the difference in the documents which the defendant company is trying to pointing out in the name of the driver driving the bus at relevant date time and place. If the testimony of DW1 and DW2 as averred in their respective affidavit during evidence Ex.DW1/A and Ex.DW2/A is carefully examined, both the witnesses are trying to point out the difference in name of the driver mentioned in the petition from the driver released on bail in FIR No. 0196/2019. During the course of arguments, when the court has enquired the same from Ld. Counsels, Ld. Counsel for defendant has pointed out to the aforesaid CRM form which forms part of Ex.DW1/1 (colly) but has not been carefully exhibited to support the defence. It has been pointed out that CRM which is the first information given by the insured to the Insurance Company mentions the name of driver as Rakesh Dadich while the name of driver released on bail was Vrindavan Yadav which Ld. Counsel for plaintiff has tried to explain to be a typographical error. If the documents are carefully perused, the defendant on its part before repudiating the claim of the plaintiff in respect of the insured bus was required to independently prove that it was actually Rakesh Dadich who Digitally signed by MUKESH MUKESH KUMAR GUPTA KUMAR Date:
was driving the vehicle at the time of accident. But no evidence to this GUPTA 2024.09.20 17:14:29 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 17 of 28 effect has come on record so much so that both the witnesses of the defendant have also lamely taken the defence in their evidence pointing differences in petition and bail order without even mentioning the names. When these witnesses are subjected to cross-examination, DW1 has mentioned that he has no personal knowledge about the case and that the Written Statement was filed by the defendant company through the earlier AR Shri Abhishek Nigam. When cross-examined further, he has primarily relied upon the investigation report furnished by the insurance investigator Shri Harpreet Singh who has also been examined before the court as DW2. If the report of Investigator is carefully examined in the light of his cross-examination, he has neither communicated with the owner of the vehicle nor recorded any statement or made inquiries by interacting with any of the injured person or family members of the deceased. He has not visited the Police Station to collect the relevant document or to know who was actually driving the ill-fated bus at the relevant date, time and place of accident. He has tried to take a defence that he has seen the same in the CCTV footage of Toll enroute Exit karhal but has failed to collect the same and has admitted that even on the basis of CCTV footage, he will not be able to name the driver of the bus at the time of incident. He has admitted that the name of driver is not mentioned in the FIR Ex.PW1/4 and he has made no efforts to meet the IO to know who was actually driving the vehicle at the relevant time. If his report is carefully examined, in a fact finding part, he has mentioned that the spot being located at the Expressway no eyewitness was found, Digitally MUKESH signed by MUKESH KUMAR however, as he could gather information from employee of toll exit at KUMAR GUPTA Date:
GUPTA Karhal 11-12 passengers including the driver of insured vehicle died on 2024.09.20 17:14:36 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 18 of 28 the spot. However, he has made no effort to find out either through Police Authorities or through any injured as to whether the driver was alive or who has been released on bail before returning the finding of discrepancy in the name. It appears that the defence has been taken by the Insurance company without any cogent proof, proved before the court in accordance with law. On the other hand, it may be seen that the plaintiff has very well and categorically mentioned the name of concerned driver Vrindavan Yadav who was driving the vehicle at the relevant time not only in the plaint but also explaining that the other driver Rakesh Dadich was also traveling in the bus as additional driver as the distance was about 900 Kms to keep the safety of the passenger. The information of the plaintiff dated 15.05.2019, copy of which has relied upon by the defendant as DW1/2 clearly mentions the name of the driver as Vrindavan Yadav and it was the same Vrindavan Yadav who was produced before the court and was released on bail. In any case, the defendant has rightly failed to plead what it was trying to prove. It is settled proposition of law that if facts is not pleaded in pleading cannot be proved by the parties by leading any evidence. Reliance placed upon Bachhaj Nahar Vs. Nilima Mandal & Anr., Civil Appeal Nos. 5798- 5799 of 2008 of Hon'ble Supreme Court wherein referred the judgment Ram Sarup Gupta (dead) by Lrs, Vs. Bishun Narain Inter College (AIR 1987 SC 1242). The relevant para of the said judgment is reproduced as under:
"It is well settled that in the absence of pleading, evidence, MUKESH if any, produced by the parties cannot be considered. It is KUMAR GUPTA also equally settled that no party should be permitted to Digitally signed by MUKESH KUMAR travel beyond its pleading and that all necessary and GUPTA Date: 2024.09.20 material facts should be pleaded by the party in support of 17:14:45 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 19 of 28 the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise.........."
(Emphasis supplied)
22. Applying the ratio of the aforesaid judgments and taken on the yardstick of the preponderance of probabilities, the defendant has utterly failed to prove the discharge the onus conferred on his shoulders. the issue No. 1 is accordingly, decided against the defendant and in favour of plaintiff.
ADDITIONAL ISSUE:"Whether the defendant has validly repudiated the claim of the plaintiff in lieu of the insured vehicle being overloaded?OPD".
23. The onus to prove this issue was held upon the defendant, who have taken a preliminary objection in the Written Statement that the suit is liable to be dismissed with heavy costs on the ground that at the time of accident, the bus was overloaded with more than 50 passengers while the sitting capacity in the bus was 36. In this regard, the testimony of DW1 and DW2 are interesting and relevant. DW1 Shri Sujeet Kumar Sahu in his testimony has deposed that the sitting capacity in the bus was 26, however, at the time of alleged incident, the bus was overloaded with more than 50 passengers. DW1 in order to prove the same has relied upon the vehicle investigation report dated 23.05.2019 conducted by the investigator Shri Harpreet Singh(DW2). However,in his cross- examination by the Ld. Counsel for the plaintiff deposed that as per the Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA Insurance Policy the sitting capacity of the insured bus in question was GUPTA Date:
2024.09.20 17:14:53 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 20 of 28 45 including one driver. He has further deposed that he came to know that more than 50 passengers were sitting in the insured bus at the time of accident on the basis of Investigation Report, Newspaper Report and the FIR. However, he has admitted that it is not mentioned in the FIR that 50 passengers were sitting in the insured bus at the time of accident. He has denied the suggestion that they were only 42 passengers in the bus at the time of accident and all the passengers had booked their seat online before hand. The witness has admitted that he did not enquire from Shri Harpreet Singh Investigator (DW2) as to how many passengers were in the insured vehicle as per the report of Police Station. He has further admitted that the investigator has not mentioned about any injury to any passengers. The witness has further deposed that he does not know if the investigator verified from the hospital about the number of injured passengers or dead passengers. The said report has been carefully seen wherein the investigator has mentioned the sitting capacity as 26. The witness has also mentioned in the report that he visited the spot of accident but he did not find any witness. He has also verified from the employees of the toll Exit at Karhal Mainpuri regarding the factum of accident, the employee of the Toll Exit informed him that 11-12 passengers including the driver of the insured bus died on the spot. It has also been stated in the report that none of the witnesses could identified or share the name of the deceased driver. He has also mentioned that the driver of the insured bus jumped out to the bus to save his life. The report which forms part of Ex.DW1/1 further shows in Digitally signed by MUKESH the column of injury' details that almost 11-12 passengers died on the MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.20 spot. The testimony of DW1 is entirely based upon the testimony of 17:15:01 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 21 of 28 DW2 Shri Harpreet Singh who also relied upon the Vehicle Investigation Report Ex.DW1/1. DW2 also duly cross-examined by Ld. Counsel for plaintiff where he admitted that as per the Insurance Policy, the total seating capacity including driver is 45. He has further admitted that he has never sent any written communication to the owner of the insured vehicle asking him to join investigation, though he has volunteered deposed that he had talked (to him) telephonically. He has further admitted that he has not recorded statement of any injured person or any family member of deceased passengers. He has also admitted that he cannot tell the exact number of injured person or deceased person. He has further admitted that he cannot tell the name of driver of the bus at the time of incident on the basis of CCTV footage. He has further admitted that he had not confirmed from online booking site as to how many passengers were travelling in the bus on the date of incident. He has also admitted that he cannot tell the number of passengers travelling in the bus at the time of accident. However, he has voluntarily deposed that as per Newspaper Report, it has been reported that there were more than 50 passengers at that time. The testimony of the DW1 is entirely based upon the testimony of DW2 Shri Harpreet Singh who has investigated the matter and filed the Vehicle Inspection Report. The report of the investigator is itself a contradictory as somewhere he has stated in his report that 11-12 passengers including the driver died in the accident and somewhere he has stated the seating capacity in the bus was 26.
Digitally
signed by
MUKESH
MUKESH KUMAR
KUMAR GUPTA
Date:
GUPTA 2024.09.20
17:15:08
+0530
CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 22 of 28
24. Foremost and very important, his report is entirely based upon the article published in the Newspaper "Amar Ujala" wherein the information regarding accident of insured vehicle in question was published. It is settled proposition of law that Newspaper Reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced the production of the newspaper by the Editor and Publisher. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. As such, a statement of fact contained in a newspaper is merely hearsay or therefore, inadmissible in evidence in absence of maker of the statement.
25. Further Section 78 of the Indiana Evidence Act, provides that the public document numerated in the six clauses of the section may be proved in the manner provided in the relevant clause which has not been done in the instant case. Reliance placed on 1994 Supp (3) Supreme Court Cases 5 Quamarul Islam Vs. S.K. Kanta and Others.
26. Ld. Counsel for defendant on the other hand has relied upon the judgment passed in MAC Appeal No. 924/2016 and CM No. 41304/2016 titled Praveen Kumar Garg Vs. Sitaram Mehto & Ors.
Digitally wherein our own Hon'ble High Court while declining the plea of the signed by MUKESH MUKESH KUMAR KUMAR GUPTA appellant that the violation of permit condition on account of overloading GUPTA Date:
2024.09.20 17:15:15 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 23 of 28 cannot be treated as breach of the terms and conditions of the Insurance Policy by holding that it is inherent in a Motor Vehicle Insurance Contract that the registered owner (Insured) will abide by the law regulating the use of the motor vehicle on public road. However even the same could not be proved by defendant in the insant case, as insurance policy issued by the defendant specifically mentions the sitting capacity of 45 and nothing by way of cogent evidence has come on record that the vehicle was overloaded with more passengers then prescribed and mentioned numbers. Furthermore, during the course of arguments, ld. Counsel for plaintiff brought to the notice of the court the certified copy of the award dated 01.04.2024 passed by PO MACT, Hapur, UP. The said award has been carefully seen and it is pertinent to point out that the defendant insurance company has even not taken any plea of overloading in its reply to the MACT claim petition. The Ld. Judge while passing the award has categorically held that the award of compensation shall be paid by the Insurance Company and no liability towards any breach of the terms and conditions of the Insurance Policy was fastened upon the driver or the owner of the insured vehicle on account of any breach. The testimonies of defendant's witnesses is not based on any categoric and cogent evidence and even has not been corroborated by any other legally acceptable material. Therefore, applying the aforesaid laws as discussed above to the facts of the case as proved on record, the defendant has failed to discharge the burden of proving the issue under consideration. Hence, the issue no. 2 is decided against the defendant and in favour of Digitally the plaintiff.
signed by
MUKESH
MUKESH KUMAR
KUMAR GUPTA
GUPTA Date:
2024.09.20
17:15:22
+0530
CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 24 of 28 ISSUE No.2: "Whether the plaintiff is entitled to a sum of Rs.36,47,500/- from the defendant as insurance claim ?OPP
27. The onus of proving this issue was held upon the plaintiff and since this issue pertains to the entitlement of the plaintiff to the relief claimed, the same is pivotal to the instant case.
28. Ld. counsel for the plaintiff has vehemently argued that the vehicle in question which has met with the ill-fated accident on 20/21.04.2019 was fully insured with the defendant and was having valid Insurance Policy on the date of accident. It has been argued that a huge insurance premium of Rs.1,34,400/- has been paid by the plaintiff to the defendant and the plaintiff had all other legal compliances including Vehicle Fitness, All India Tourist Permit and Tourist Permit being valid at the time of accident besides the same being driven by a competent driver Vrindavan Yadav who was having a valid Driving License at the time of accident.
29. It is not disputed by the defendant that the Insurance Policy of the insured vehicle was a valid and subsisting policy at the time of accident. It is also not disputed by the defendant that insured vehicle has met with an accident on 20/21.04.2019 and an FIR No. 0196/2019 u/s 279/337/304A IPC PS Karhal, Mainpuri, UP Ex.PW1/4 was registered in this regard. The plaintiff alongwith the plaint has filed certain photographs of the insured vehicle which clearly shows that the insured vehicle is totally damaged. Even otherwise the aforesaid fact has not Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
2024.09.20 been refuted by the defendant. As per the Insurance Policy Ex.PW1/3, GUPTA 17:15:30 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 25 of 28 the IDV (Insured Declared Value) as on the date of accident is Rs.36,47,500/- which the defendant insurance policy has failed to pay despite the plaintiff complying with the necessary documental formalities and issuance of legal notice dated 17.01.2020 Ex.PW1/7. The defendant company in view of the aforesaid facts is legally bound to compensate the insured for the damage caused to the insured vehicle. Furthermore, in view of the determination of the court on Issues No.1 and 1A which forms the ground for repudiation of plaintiff's claim, being adjudicated upon against the defendant, there is no reason for the defendant to withhold the legitimate claim of the plaintiff in respected of ill-fated bus. Thus taken on the yardstick of preponderance of probabilities, the plaintiff has been able to prove this issue in his favour. The plaintiff shall accordingly be entitled to the total value of the IDV i.e. Rs.36,47,500/-. This issue is, thus decided in favour of the plaintiff and against the defendant.
ISSUE NO.3: "Whether the plaintiff is entitled to interest @ 18% per annum or at any other rate and if so on what amount and for which period ?OPP
30. The onus of proving this issue was also on the plaintiff but no specific evidence to this effect has been led as to whether there was any agreement to pay interest on the insured amount. In the absence of any agreement to show that there was an interest component agreed to between the parties, the court shall be left with no option but to advert to the provisions of section 34 of CPC and provisions of Interest Act since Digitally signed by the amount is outstanding. Under the facts and circumstances of the MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.20 case, keeping in view the nature of transactions, prevailing rate of interest 17:15:38 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 26 of 28 and taking in view the settled law, court is of the considered opinion that interest of justice would be met, if an interest @ 9% per annum is granted to the plaintiff on the suit amount of Rs.36,47,500/- pendentlite and future from the date of filing of the suit till the date of its realisation. Reliance placed onPt. Munshi Ram @ Associates (P) Lt. Vs. DDA, 2010 SCC Online Delhi 2444, Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra, 2007 (2) SCC 720 & State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC). This issue is decided accordingly.
ISSUE No.4: "Who is entitled to the costs, against whom and in what quantum ? Onus on parties"
31. The onus of proving this issue was upon both the parties. Though, no specific evidence has been led by either parties on this issue, however, since the plaintiff has been successful in proving its entitlement to the relief claimed and defendant has failed in proving the defence, the plaintiff is held to be entitled to costs of the suit throughout. This issue is accordingly in favour of the plaintiff and against the defendant.
Digitally signedMUKESH by MUKESH KUMAR GUPTA KUMAR Date:
2024.09.20 GUPTA 17:15:44 +0530 CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 27 of 28 (I) CONCLUSION:-
ISSUE No.5: Relief.
32. In view of the aforesaid discussions and finding of the court on the aforesaid issues, the court is of the considered opinion that the plaintiff has been able to successfully prove its entitlement to the recovery against the defendant . The suit of the plaintiff is accordingly decreed against the defendant insurance company for a sum of 36,47,500/- alongwith simple interest @ 9% per annum on such amount pendente-lite and future from the date of institution of the suit till its realization. The plaintiff shall also be entitled to the costs of the suit throughout.
33. Decree sheet be drawn accordingly.
34. File be consigned to record room after due completion.
PRONOUNCED IN OPEN COURT ON TODAY 20th SEPTEMBER, 2024 MUKESH Digitally signed by MUKESH KUMAR KUMAR GUPTA Date: 2024.09.20 GUPTA 17:15:51 +0530 (MUKESH KUMAR GUPTA) District Judge (Commercial Court)-07/ Central/THC/Delhi CS (Comm.) No.177/2021 Raj Kumar Sharma Vs. M/s Cholamandalam MS General Insurance. Page no. 28 of 28