Delhi District Court
Mahender Kumar vs The New India Assurance Company Limited on 4 June, 2012
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IN THE COURT OF Ms. RICHA MANCHANDA
CIVIL JUDGE : CENTRAL03 : THC : DELHI.
SUIT No. 352/2008
IN THE MATTER OF :
Mahender Kumar, S/o Shri Kanhaiya Lal,
R/o WZ229B, Inder Puri,
New Delhi. ....................................Plaintiff
Versus
1. The New India Assurance Company Limited,
th
Channana Complex, 4 Floor,
Gurudwara Road, Karol Bagh,
New Delhi110005.
2. Shri Sudarshan Gaba,
R/o BlockP1/11, PhaseI, Budh Vihar,
Delhi.
Also At : Sudershan Gaba,
Proprietor Adhar Furniture, Vikas Surya Plaza,
Office No. 301, Sector4, Dwarka, New Delhi.
Also at : Adhar Furniture, C/o Shri Manoj Solanki,
Plot No. 1, Near Achar Factory Road, Village Matiala,
New Delhi110097. ...................................Defendant
Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another
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Suit for recovery of Rs. 1,30,928/
DATE OF INSTITUTION : 14.05.2008.
DATE OF DECISION : 04.06.2012.
J U D G M E N T
1. Vide this Judgment, I shall decide the suit for recovery of an amount of Rs.1,30,928/ filed by the plaintiff against the defendants.
2. Essential facts necessary for disposal of the present suit as per the plaint are that the plaintiff had purchased a vehicle bearing registration No. DL3CW3829 on 16.08.2007 from defendant No. 2. This vehicle was financed & hypothecated by City Bank. The defendant No. 2 executed the Form No. 29, 30 & 35 of Motor Vehicle Acts/Rules ( Sell Letter ) alongwith delivery receipt in favour of plaintiff.
Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 3
3. It is averred that for getting this vehicle transferred in the name of plaintiff NOC from City Bank was required by the Transport Authority. In the meantime, the Insurance policy of the vehicle came to an end. The plaintiff approached defendant No. 1 and obtained the insurance policy on payment of insurance amount of Rs. 5,472/ on 05.09.2007.
4. It is the case of plaintiff that unfortunately on 23.09.2007, the vehicle was damaged when plaintiff tried to save a cyclist who was coming from wrong side. The plaintiff immediately informed the agent of Insurance company about this incident but the agent denied to do anything as there was no human injury or calamity. He even denied to repair the vehicle with authorized or approved service station. The plaintiff also moved an application on 27.09.2007 to the defendant No. 1 regarding his claim but no action was taken. Upon reminder, the defendant No. 1 appointed a surveyor to inspect the vehicle of plaintiff. The surveyor vide his Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 4 report dated 29.10.2007 informed that the vehicle was not in the name of plaintiff at the time of accident and as such no claim lies in favour of plaintiff. Thereafter, the plaintiff got the vehicle repaired at his own cost.
5. It is also averred that the defendant No. 2 had signed the sale/transfer letter in the name of plaintiff and hence, the plaintiff has become owner of the vehicle since 16.08.2007 and policy holder under defendant No. 1 since 05.09.2007 till 04.09.2008. The alleged accident had taken place on 23.09.2007 which was within the policy period, therefore, the plaintiff is entitled to damages. The plaintiff made his efforts best to convince the defendant No. 1 but defendant No. 1 flatly refused to consider the claim of plaintiff on 28.04.2008. Hence, the plaintiff has filed the present suit.
6. Summons of the present suit for settlement of issues were served upon defendants. The defendant No. 1 has filed the Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 5 written statement on 15.12.2008 controverting the allegations levelled against the defendant No. 1 and has submitted that as per Motor Vehicles Act, the vehicle of plaintiff should have been registered in his own name within 14 days of its delivery. The report of the Surveyor of defendant No. 1 suggests that the alleged vehicle was not in the name of plaintiff at the time of alleged accident on 23.09.2007. Therefore, the claim of plaintiff is not maintainable as it is against the terms and conditions of the insurance policy and in violation of Motor Vehicles Act and hence, liable to be rejected with heavy costs.
7. The plaintiff has filed the replication to the written statement of defendant No. 1 controverting the allegations levelled against him and has reiterated his stand as taken in the plaint.
8. On 20.10.2009, the following issues were framed : (1) Whether there is no cause of action against the defendant No. 1 ? OPD1 Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 6 (2) Whether the present suit is not maintainable ? OPD1 (3) Whether plaintiff is entitled to recovery of Rs. 1,30,928/ alongwith interest & cost ? OPP
9. The plaintiff has examined only one witness to prove his case. Shri Mahender Kumar, S/o Shri Kanhaiya Lal appeared as PW1 and tendered his evidence by way of an affidavit which is exhibited as EX. P1. He also relied upon certain documents in support of the plaint. EX. PW1/A is the registration certificate of vehicle No. DL3CW3829. EX. PW1/B [ collectively ] are the delivery receipt, Form 29, Form 30 & Form 35. EX. PW1/C [ collectively ] are the copies of insurance receipts. EX. PW1/D is the letter dated 27.09.2007 written by plaintiff to Manager, New India Assurance Company Limited. ( There is no document EX. PW1/E on record ). EX. PW1/F is the letter dated 13.10.2007. EX. PW1/G is the copy of letter dated 29.10.2007 ( OSR ). EX. PW1/H is the claim denial letter dated Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 7 07.04.2008. EX. PW1/I is the cash memo No. 27505 dated 05.10.2007. EX. PW1/J is the invoice No. 2291 dated 19.12.2007 & EX. PW1/J1 is the invoice No. 2295 dated 20.12.2007. EX. PW1/K is the repair receipt No. 4246 dated 10.01.2008. EX. PW1/L is the receipt of HDFC Bank. EX. PW1/M is the receipt of City Bank. Mark PW1/N is the photocopy of cheque No. 179297 dated 31.07.2007 for Rs. 90,000/. EX. PW1/O is the receipt dated 06.10.2007 issued by Virgo Softech Limited. EX. PW1/P [ collectively ] are the photographs of vehicles. Vide a separate statement of Shri Mahender Kumar P.E was closed in affirmative on 22.03.2011.
10. The defendant No. 1 company has also examined only one witness in support of its defense. Shri Y.R. Malik, Administrative Officer of defendant No. 1 company appeared as DW1 and tendered his evidence by way of an affidavit which is exhibited as EX. DW1/A. He also relied upon one document in support of the defense of defendant No. 1. EX. DW1/1 is the copy of Motor Vehicle Act, 1988 running into six pages. Thereafter, vide a separate statement of Shri Shyam Singh, Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 8 Ld. Counsel for defendant No. 1, D.E was closed on 19.07.2011.
11. The written final arguments were filed on behalf of defendant No. 1 on 13.09.2011. No written arguments have been filed on record on behalf of plaintiff till date despite various opportunities. Even the counsel for plaintiff has not appeared to address his side of final arguments.
12. I have heard the rival contentions of both the parties and carefully gone through the written arguments placed on record on behalf of defendant No. 1 as well as the documents relied upon by the parties in support of their contentions.
13. My issuewise findings are as follows : ISSUE No. 1.
(1) Whether there is no cause of action against the defendant No. 1 ? OPD1 The onus to prove this issue was on defendant No. 1. It is submitted by defendant No. 1 in its written statement that as per Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 9 Motor Vehicles Act, the vehicle of plaintiff should have been registered in his own name within 14 days of its delivery. The report of the Surveyor of defendant No. 1 suggests that the alleged vehicle was not in the name of plaintiff at the time of alleged accident on 23.09.2007. Therefore, the claim of plaintiff is not maintainable as it is against the terms and conditions of the insurance policy and in violation of Motor Vehicles Act.
On the other hand, it is deposed by plaintiff/PW1 in his evidence by way of affidavit that plaintiff had purchased the vehicle bearing registration No. DL3CW3829 from defendant No. 2 on 16.08.2007 and defendant No. 2 had executed Form No. 29, 30 &35 of Motor Vehicles Acts/Rules ( Sell Letter ) alongwith delivery receipt in his favour. In the meantime, insurance policy of the vehicle came to an end and he got it renewed on 05.09.2007 after payment of Rs. 5,472/. He further deposed that in the meantime he had executed an agreement with HDFC Bank on 17.07.2007 for Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 10 obtaining a loan of Rs.90,000/ which was accepted and a cheque of Rs.90,000/ was issued in his favour on 31.07.2007 but unfortunately the cheque was misplaced by the bank officials and later on it was traced out and encashed on 18.08.2007. Thereafter, the plaintiff applied for NOC which was issued on 21.09.2007 and after taking the NOC the plaintiff got transferred the vehicle in his name on 06.10.2007.
The plaintiff/PW1 has further deposed in his evidence by way of affidavit that on 23.09.2007 an accident occurred when plaintiff tried to save a cyclist who was coming from wrong side and the vehicle in question was got damaged in between. Thereafter, the plaintiff raised his claim before defendant No. 1 which was rejected vide report of surveyor of defendant No. 1 in which he reported that since the registration certificate is not in the name of the plaintiff and, therefore, his claim is not maintainable.
In the opinion of the Court, the fact that the plaintiff was Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 11 not reimbursed of the amount he spent on getting the vehicle repaired inspite of payment and renewal of insurance policy, discloses a cause of action and hence, the defendant No. 1 has failed to prove that there is no cause of action. The issue No. 1, therefore, stands decided against the defendant No. 1 and in favour of plaintiff.
ISSUE No. 2.
(2) Whether the present suit is not maintainable ? OPD1 The onus to prove this issue was on defendant No. 1. In view of the decision on issue No. 1, the Court has already held that the cause of action arises in the present suit, hence, the suit of plaintiff is maintainable in its present form. The defendant No. 1 has failed to discharge the onus to prove this issue. The issue No. 2 stands decided against the defendant No. 1 and in favour of plaintiff.
Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 12 ISSUE No. 3.
(3) Whether plaintiff is entitled to recovery of Rs. 1,30,928/ alongwith interest & cost ? OPP The onus to prove this issue was on the plaintiff. The plaintiff/PW1 in his evidence has deposed that the vehicle bearing registration No. DL3CW3829 was sold to him by defendant No. 2 on 16.08.2007 after executing the Form No. 29, 30 & 35 of the Motor Vehicles Acts/Rules ( Sell Letter ) alongwith delivery receipt. The said vehicle was hypothecated by City Bank. The No Objection Certificate was required from City Bank to get the vehicle transferred in the name of plaintiff. Hence, plaintiff applied for loan from HDFC Bank and during this period the insurance policy came to an end. The plaintiff approached the defendant No. 1 and renewed the insurance policy by depositing insurance amount of Rs.5,472/ on 05.09.2007. The insurance policy was valid from 05.09.2007 till 04.09.2008. In the meantime, the loan was Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 13 sanctioned by HDFC Bank in favour of plaintiff and a cheque of Rs. 90,000/ was issued on 31.07.2007 to the City Group but unfortunately the cheque was misplaced by the bank officials. After about one month, the cheque was traced out and encashed on 18.08.2007. Thereafter, the NOC was given to plaintiff on 21.09.2007 and vehicle was registered in the name of plaintiff. Unfortunately on 23.09.2007, the vehicle was damaged when plaintiff tried to save a cyclist who was coming from wrong side. The plaintiff immediately informed the agent of Insurance company about this incident but the agent denied to do anything as there was no human injury or calamity. He even denied to repair the vehicle with authorized or approved service station. The plaintiff also moved an application on 27.09.2007 to the defendant No. 1 regarding his claim but no action was taken. Upon reminder, the defendant No. 1 appointed a surveyor to inspect the vehicle of plaintiff. The surveyor vide his report dated 29.10.2007 informed Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 14 that the vehicle was not in the name of plaintiff at the time of accident and as such no claim lies in favour of plaintiff. Thereafter, the plaintiff got the vehicle repaired at his own cost.
The defendant No. 2 had signed the sale/transfer letter in the name of plaintiff and hence, the plaintiff has become owner of the vehicle since 16.08.2007 and policy holder under defendant No. 1 since 05.09.2007 till 04.09.2008. The alleged accident had taken place on 23.09.2007 which was within the policy period, therefore, the plaintiff is entitled to damages. The plaintiff made his efforts best to convince the defendant No. 1 but defendant No. 1 flatly refused to consider the claim of plaintiff on 28.04.2008.
On the other hand, it is deposed by DW1 in his evidence by way of affidavit that as per Motor Vehicles Act, the vehicle of plaintiff should have been registered in his own name within 14 days of its delivery. As per report of the Surveyor of defendant No. 1 the vehicle in question was not in the name of plaintiff at the time Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 15 of alleged accident on 23.09.2007. Therefore, the claim of plaintiff is not maintainable as it is against the terms and conditions of the insurance policy and in violation of Motor Vehicles Act.
The only contention that the defendant No. 1 has raised is with respect to the fact that the registration certificate was not transferred in the name of the plaintiff at the time of accident and hence, he is not entitled to any claim.
It is worth mentioning that the defendant No. 1 has admitted the renewal of the insurance policy and payment of premium by the plaintiff. There is no dispute regarding this fact. On this the defendant contended that the plaintiff assured the defendant No. 1 to get the registration certificate transferred in his name within the prescribed period. It shows that the defendant No. 1 had knowledge of the fact that the registration certificate was not in the name of plaintiff at the time of payment of premium and renewal of policy. By accepting the premium from the plaintiff, Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 16 there is a deemed waiver on behalf of defendant No. 1 regarding the requirement of registration certificate in the name of plaintiff for payment of the claimed amount in the name of the plaintiff. If this condition was such a necessary condition, the defendant No. 1 should not have accepted the premium from the plaintiff and should not have renewed the policy. By renewal of the policy in the name of plaintiff for the fixed duration, the defendant No. 1 gave a deemed assurance to the plaintiff regarding payment of the insurance amount on the happening of any incident.
Now, the defendant No. 1 cannot take advantage of his own wrong as this would negate the very purpose of the insurance. Once the policy is renewed the insured is entitled to recover the amount. Also, the fact that on 06.10.2007, the registration certificate was transferred in the name of plaintiff shows the bonafide on behalf of plaintiff regarding the transaction of sale of the vehicle. Merely because the same was not done during the Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 17 period prescribed, the defendant No. 1 cannot escape liability.
It is also admitted by the defendant No. 1 that the policy was renewed for a period of 05.09.2007 till 04.09.2008 and the alleged accident took place on 23.09.2007.
In view of the above discussion, the Court is of the opinion that defendant No. 1 being insurer of plaintiff's vehicle is liable to pay the damages. The issue No. 3 is, therefore, stands decided in favour of plaintiff and against the defendant No. 1.
RELIEF In view of the above discussion, the suit stands decreed in favour of plaintiff and against the defendant. A decree for recovery of Rs.1,30,928/ is passed in favour of plaintiff and against the defendant No. 1 alongwith interest @ 10% per annum from the date of filing of the suit. The cost of the suit is also awarded in favour of plaintiff and against the defendant No. 1. The suit is decreed accordingly.
Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another 18
14. Decree Sheet be prepared accordingly.
15. File be consigned to Record Room after necessary compliance.
Announced in Open Court ( RICHA MANCHANDA ) on 4 June, 2012. CivilJudge : Central03 : THC : Delhi.
th Suit No. 352/2008 Mahender Kumar Vs. The New India Assurance Company Limited & Another