Delhi District Court
M/S Sanjeev Filling Station vs The Reliance General on 23 January, 2016
Page 1 of 18
IN THE COURT OF Ms. SUNENA SHARMA
Addl. Distt Judge - 03 (SE)
SAKET COURTS COMPLEX: NEW DELHI
CS No.270/2015
Unique Case ID No.02406C0286342013
Date of Institution : 14.10.2013
Arguments concluded : 19.01.2016
Date of decision : 23.01.2016
M/s Sanjeev Filling Station
Near Police Station, Timarpur,
Delhi-110054
Through its Proprietor
Sh. Sanjeev Soni ............... Plaintiff
VERSUS
The Reliance General
Insurance Company Ltd.
60, Okhla Industrial Estate
New Delhi-110020.
Through its Proprietor/Owner/
Director/Managing Director
................ Defendant
JUDGMENT
1. Vide this judgment, I shall decide the suit filed by the plaintiff for seeking recovery of sum of Rs. 8,12,000/- (Rupees Eight Lakhs Twelve Thousand Only) alongwith pendente and future interest @ 18% per annum.
CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 2 of 18
2. Brief facts of the plaintiff's case as narrated in the plaint are that plaintiff is a proprietorship firm working in the name and style of M/s Sanjeev Filling station and present suit has been filed by plaintiff firm through its Proprietor Mr. Sanjeev Soni. Plaintiff purchased one Mahindra Scorpio Car bearing registration No. DL-1CJ-5699, make and model Mahindra & Mahindra, Engine No. BS84A26804, Chasis NO. MAITB2A62779 from M/s Concept Auto Private Limited on 12.02.2008 vide invoice No. SM/1368/07-08 dated 14.02.2008. At the time of purchase of said vehicle the AR of the defendant, which is an Insurance Company, approached the plaintiff at the showroom of M/s Concept Auto Private Limited for insurance of said vehicle and said vehicle was insured by defendant vide Cover Note No. 200703028543 dated 14.02.2008 for the period w.e.f. 14.02.2008 to mid night of 13.02.2009 with insured sum of Rs. 6,96,030/-. Next year, insurance was further renewed vide Cover Note/policy No. 1305782311028323 for the period w.e.f. 14.02.2009 till mid night of 13.02.2010 with insured sum of Rs. 6,40,000/-.
3. At the time of insurance of vehicle, plaintiff was handed over only the Cover Note of the policy and no other document with regard to any terms and conditions of the policy was provided by the defendant to the plaintiff. On 02.03.2009 when the Proprietor of the plaintiff firm went to visit his mother's house at C-1/18, CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 3 of 18 Sector 36, Noida (UP), he parked the aforementioned vehicle in front of said house after locking the same properly. At around 10:15 PM plaintiff found the said vehicle missing from said place. Plaintiff immediately called the police/PCR at 100 number pursuant to which PCR officials reached the place and plaintiff alongwith PCR officials rushed to the Police Station, Sector-39 Noida (UP) where a written complaint regarding theft of said vehicle was lodged vide Case Crime No. 113/2009, u/s 379 IPC. Despite best efforts of police and plaintiff, the vehicle could not be traced out and police filed an untrace report dated 01.07.2009 before the court of Chief Judicial Magistrate, Gautam Budh Nagar (UP) and the same was accepted by said court vide its order dated 10.09.2009.
4. On 02.07.2009, plaintiff wrote a letter to defendant for informing them regarding theft of said vehicle, pursuant to which defendant appointed one Surveyor/Investigator Mr. Sunil Jain who informed the plaintiff regarding terms and conditions of the Insurance Policy as per which the insurer was to be informed regarding theft of vehicle within 24 hours of the incident, for raising any insurance claim. However, plaintiff came to know about any such term or condition only for the first time as no such condition was mentioned on the policy cover note nor the same was ever informed by defendant to the plaintiff. Vide letter dated 02.07.2009, surveyor asked the plaintiff to submit certain documents and accordingly, plaintiff submitted all the requisite CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 4 of 18 documents with the investigator on 07.07.2009. On 07.09.2010, plaintiff approached the office of Ombudsman under Rule 13 of Redressal of Public Grievances Rules, 1998 with the prayer to direct the Insurance Company to pay the sum of Rs. 6,40,000/- against claim of plaintiff. However, vide letter dated 29.10.2010 plaintiff's claim was rejected by the Ombudsman on the ground that only the disputes of the companies are dealt with by the office of Ombudsman. Thereafter, defendant kept avoiding plaintiff's claim on one or other pretext. Lastly, vide letter dated 29.10.2010, defendant rejected plaintiff's claim on the ground that the plaintiff had breached the terms of insurance policy by not informing the defendant immediately after the occurrence. Aggrieved with such rejection of its claim, plaintiff filed present suit before this court for seeking recovery of the insured sum of Rs. 6,40,000/- alongwith pre suit interest @ 9% per annum from the date of rejection of the claim till the date of filing of the suit. Plaintiff has also claimed 18% per annum interest on the total suit amount of Rs.8,12,000/- from the date of filing of suit till date of recovery.
5. The defendant contested the suit by filing written statement wherein various preliminary objections were taken such as that the suit is barred by limitation having been filed after lapse of 4 years 7 months from the date of alleged theft of the vehicle; suit is not maintainable as the plaintiff failed to file any complaint within the period of two years before the Consumer Forum; suit is CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 5 of 18 not maintainable as the plaintiff has violated the terms and condition of Insurance Policy as he informed the defendant company regarding theft after long delay of around 4 months from the date of alleged theft and in view thereof, defendant is not liable to pay any claim to the plaintiff. It is further alleged that plaintiff was negligent as he failed to lock the vehicle properly while parking the same and hence the vehicle got stolen due to the negligence of the plaintiff.
6. In reply on merits, defendant evasively denied averments of plaint regarding insurance of vehicle in question vide cover note no. 200703028543 and 1305782311028323 but failed to give any specific denial to the same. Defendant even denied that the vehicle in question had been stolen or any FIR/complaint was lodged in that regard in the concerned police station. It is further stated that the plaintiff failed to inform the defendant immediately after alleged theft of vehicle. It is further alleged that the vehicle was never stolen rather the plaintiff concocted the story just to extract suit amount from the defendant. Defendant also denied that plaintiff ever wrote any letter to defendant at any point of time for informing them regarding theft. Defendant further denied that the plaintiff was informed by the Surveyor regarding any such condition of policy to give information to the insurer within 24 hours of occurrence. It is further submitted that ignorance of law/rules/provisions/terms and conditions of the CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 6 of 18 policy shall not be an excuse as they are mandatory and required to be followed by every citizen. Even on merits, defendant reiterated that filing of complaint under Consumer Protection Act is the efficacious remedy available with the plaintiff and the plaintiff intentionally did not file any such complaint and instead filed the present suit just to waste the precious time of the court. Defendant categorically denied that any cause of action had arisen in favour of plaintiff at any point of time.
7. In the replication, plaintiff reiterated its claim as set out in the plaint and except the admissions made in the written statement, plaintiff denied all the other averments of written statement as wrong and incorrect.
8. On the basis of pleadings of the parties and documents on record, following issues were framed vide order dated 26.02.2014:-
1) Whether the suit of the plaintiff is barred by limitation?
2) Whether the plaintiff is entitled to a decree for recovery of money, as prayed for?
3) Relief.
9. During trial, PW1 Sh Sanjeev Soni, the proprietor of plaintiff firm himself entered the witness box and tendered his affidavit wherein he has affirmed the facts as averred in the plaint CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 7 of 18 on oath and relied upon various documents as Ex.PW1/1 to Ex.PW1/7. Ex.PW1/1 is the Memorandum of Agreement between Indian Oil Corporation and M/s Sanjeev Filling Station; Ex.PW1/2 is the letter vide which plaintiff informed the defendant regarding theft of vehicle in question; Ex.PW1/3 is the defendant's letter dated 29.10.2010 vide which plaintiff's insurance claim was repudiated; Ex. PW1/4 is the letter dated 02.07.2009 sent by Investigator Mr. Sunil Jain to the plaintiff; Ex.PW1/5 is letter dated 19.11.2010 of Insurance Ombudsman; Ex. PW1/6 is the copy of complaint dated 07.09.2010 filed by plaintiff before Insurance Ombudsman; Ex. PW1/7 is plaintiff's letter dated 02.02.2010 addressed to defendant; Mark A is the photocopy of cover note policy no. 1305782311028323; Mark B is the photocopy of untrace report; Mark C is the photocopy of order dated 10.09.2009 vide which the untrace report was accepted by Ld. CJM, Gautam Budh Nagar and Mark D is the copy of vehicle particulars.
10. Plaintiff's evidence was closed vide order dated 14.10.2015 and matter was posted for DE. In rebuttal, defendant filed the evidentiary affidavit of Sh. Mohit Nagar, Deputy Manager, Legal claim and examined him as DW-1. DW1 tendered his affidavit as Ex. DW/A and relied upon only three documents. Mark A is the copy of terms and conditions of the private car package policy; Mark B is the copy of FIR No. 81/09 dated 04.03.2009 and Ex. DW1/1 is defendant's letter dated 12.12.2009 addressed to CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 8 of 18 plaintiff informing him regarding breach of policy's condition no.1 .
11. Both the witnesses were duly cross-examined by respective opposite counsels and relevant part of their examination shall be discussed at the appropriate place while giving issue wise findings.
12. I have heard submissions of learned counsels from both the sides and also gone through the entire record with their assistance. After giving my thoughtful consideration to rival contentions of parties and having gone through the entire material available on record, my issue-wise findings are as under:-
13. Issue No.1 :- Whether the suit of the plaintiff is barred by limitation?
Though the onus seems to have not been put on either side but language of the issue itself shows that the onus to prove the same was upon defendant. In the written statement as well as the evidentiary affidavit filed on behalf of DW-1, defendant has taken the defence that the suit is barred by limitation by stating that cause of action for filing the present suit had arisen on 02.03.2009 when the vehicle in question was allegedly stolen whereas, the present suit has been filed on 10.10.2013 i.e. after the lapse of more than 4 years 7 months from the date of alleged theft, therefore, the suit having not been filed within 3 years of CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 9 of 18 first cause of action, same is clearly barred by limitation.
14. However, I do not find any merits in the contention for the reason that the present suit has been filed by the plaintiff for seeking recovery of insurance claim which was repudiated by the defendant vide its letter dated 29.10.2010. Hence, in my view the cause of action for filing the present suit firstly arose in favour of the plaintiff only on the date when his claim for insurance was repudiated by the defendant company i.e. on 29.10.2010.
As a matter of record, suit was filed before this court on 14.10.2013 i.e. well within the period of three years from the date of first cause of action. In view thereof, issue is decided in favour of the plaintiff and against the defendant.
15. ISSUE NO. 2: Whether the plaintiff is entitled to a decree for recovery of money, as prayed for? OPP The onus of proving the said issue was upon the plaintiff. I have carefully perused the pleadings and documents on record. In the written statement, defendant has evasively denied that insurance policy of vehicle in question vide two cover note bearing No. 200703028543 and 1305782311028323 without giving any specific denial to the same and in view of provision of Order 8 Rule 2-5 CPC, same amounts to deemed admission of defendant. Furthermore, there was no such challenge to cover note or insurance police by defendant even during evidence as neither CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 10 of 18 DW-1 in his evidentiary affidavit came up with any such defence nor categoric deposition of PW-1 regarding issuance of policy vide aforementioned cover notes, was put to challenge. In cross- examination of DW1, no question or suggestion was put to him to deny his claim in this regard. Furthermore, defendant's own document Ex. DW-1/1 which is a letter dated 12.12.2009 written by defendant to plaintiff, clearly shows that defendant had never raised any such dispute with regard to insurance cover in favour of plaintiff in respect of vehicle in question. There is no denial or dispute as to the validity of insurance in favour of plaintiff in respect of vehicle in question at the time of theft.
16. In the written statement, though the defendant has denied the factum of theft of said vehicle by stating that there was no occurrence of theft of the vehicle in question as neither FIR nor any complaint had been made to the concerned Police Station but, there appears to be no challenge to the testimony of PW1 in this regard as neither PW1 was cross-examined on any such aspect nor any suggestion was put to PW-1 to deny his assertion that vehicle in question was stolen and an FIR in that regard was also lodged with concerned police station. In this regard, even DW-1 in his evidentiary affidavit is totally silent as he only deposed that the plaintiff was negligent at the time of theft of vehicle as he did not properly lock and park the same and the vehicle got stolen on account of plaintiff's own negligence. Hence, as far as the loss of CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 11 of 18 vehicle due to theft is concerned, there is in effect no serious dispute from defendant's side. Rather DW1 in his evidentiary affidavit seems to have impliedly admitted that the vehicle was stolen as he has taken the plea that the same was stolen due to negligence of plaintiff.
17. The claim of the plaintiff has been resisted by the defendant primarily on the ground that plaintiff by not immediately informing the defendant regarding theft of vehicle, has committed a breach of condition no.1 of insurance policy which dis-entitles him to raise any claim in this regard. In the evidentiary affidavit of DW-1, copy of the terms and conditions of policy is mentioned as Ex. DW-1/1 whereas, the copy placed on record is only marked as Mark 'A'. There is nothing on record to suggest that same are the terms and conditions forming part of the policy issued in the name of the plaintiff. Although plaintiff has also placed on record only the photocopy of cover note and marked it as Mark 'A', but considering the fact that cover note is not a disputed document, there is no legal bar in reading it into evidence. Besides cover note, plaintiff has however categorically denied to have received any other policy document from the defendant at any point of time. Plaintiff's deposition in this regard has not been rebutted as defendant has neither cross examined PW1 on this point nor DW1 in his evidentiary affidavit came up with any such assertion that policy document/schedule containing CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 12 of 18 any such terms and conditions was ever sent to plaintiff at the time of insurance or even after grant of insurance.
18. Keeping in view the aforementioned position on record, plaintiff at the relevant time when vehicle was stolen, was having a valid insurance policy in respect of said vehicle. In view of said circumstances, the onus shifts upon the defendant to prove on record the alleged breach of terms and condition of insurance policy by the plaintiff. For proving the same, it was incumbent upon the defendant to first place on record the original policy containing the alleged terms and conditions which made it mandatory for the plaintiff to immediately inform the defendant regarding theft of insured vehicle. And in case, the defendant was not in possession of the original policy, the defendant ought to have lead secondary evidence to prove the policy and its terms and conditions. But, as a matter of record, defendant neither issued any notice upon plaintiff for seeking production of original policy nor defendant even proved the copies of terms and conditions which the defendant placed on record with written statement as Annexure A and which are available on record as Mark A. During course of arguments, defendant's counsel submitted that Mark 'A' is the computer generated copy of terms and condition of private car policy and same are available on the website of defendant company. But, defendant never took any step to prove said document in accordance with law as no CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 13 of 18 requisite certificate of Section 65-B of Indian Evidence Act has been filed by DW1. Nothing has been brought on record in order to prove that said terms and conditions contained in Mark 'A' are available on the website of defendant company. Even DW1 has not deposed anything in this regard in his evidentiary affidavit.
19. As per the plaintiff's case, except the cover note, he was never supplied any other policy document or the terms and conditions of policy by the defendant. Whereas, the defendant in the written statement though denied that the plaintiff was firstly informed about the terms and conditions only by Surveyor but defendant has failed to aver that such terms and conditions were forming the part of insurance policy or that any such policy schedule containing any such terms and condition was sent to plaintiff after issuance of cover note.
20. It is also pertinent to mention that DW1 in his cross- examination has deposed that the policy schedule alongwith terms and conditions of policy was sent to the plaintiff after the insurance. Further in his cross examination, DW1 stated that the company used to keep the record of proof of delivery of terms and conditions but he had not brought the same on that day. He denied the suggestion that the defendant had issued only cover note/policy schedule and never sent the terms and conditions of the policy. DW1 however, admitted the suggestion that the cover CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 14 of 18 note did not find mention of any such condition regarding intimation to the Insurance Company within 24 hours of theft. DW-1 further voluntarily deposed that the terms and conditions of the policy of each category of vehicle were readily available on the website of the company.
21. The evidence adduced on record by DW1 nowhere establishes that any such terms or conditions which makes it obligatory for plaintiff to inform the defendant regarding theft within 24 hours of occurrence, was either forming part of policy schedule or cover note or such terms and conditions were subsequently sent to plaintiff through post. As per DW1, the defendant company does keep the record of proof of delivery of said schedule and terms and conditions but despite that defendant did not bother to place any such proof on record. It is a settled law that an adverse inference is liable to be drawn against the party who withholds the best evidence available with him.
22. During the course of argument, it was argued that even on the cover note, it was specifically mentioned that terms and conditions of policy are available on the website of insurance company and therefore, plaintiff cannot be allowed to take the plea that he was not aware of any such conditions of policy as mentioned in Annexure 'A'. The said Annexure has been placed on CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 15 of 18 record as Mark A. The opening para of first page of said document reads as under:
"Whereas the insured by a proposal and declaration dated as stated in the Schedule which shall be the basis of this contract and is deemed to be incorporated herein has applied to the Company for the insurance hereinafter contained and has paid the premium mentioned in the schedule as consideration for such insurance in respect of accidental loss or damage occurring during the period of insurance."
Bare reading of the opening words makes it clear that Mark A is not a complete document rather the same is the part of policy schedule. Whereas, defendant has failed to place on record any such policy schedule containing any such terms and conditions, signed by insurer so as to show existence of any binding contract between the parties for making plaintiff liable for non-adherence of said terms and conditions contained thereof.
23. At the cost of repetition, it is mentioned again that PW1 in his evidentiary affidavit has specifically deposed that at the time of insurance, plaintiff was handed over only the cover note of the policy and no other document in respect of the terms and conditions was ever provided by the defendant company at any point of time. The said deposition of PW1 has remained unrebutted as no question or suggestion was put to the witness to controvert the same. The only suggestion put to PW-1 was that CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 16 of 18 the delay in intimating the defendant regarding theft was intentional and deliberate, though the same was also denied by PW1 as wrong and incorrect.
24. In view of above discussion, defendant has miserably failed to prove even the existence of any such term or condition agreed upon between the parties for imposing any contractual obligation upon plaintiff to inform the defendant regarding theft of vehicle immediately after the occurrence. Hence, question of any breach on part of the plaintiff does not arise.
25. As far as the allegation of negligence on the part of plaintiff to lock and park the vehicle is concerned, I may mention that except the bald assertion in affidavit of DW1, nothing has been brought on record by the defendant in support thereof. Whereas, suggestion put to PW-1 in this regard has been categorically denied by him.
26. Having regard to aforementioned discussion, defendant has miserably failed to discharge his burden of proving any breach of terms and conditions of policy on the part of the plaintiff. Resultantly, plaintiff has successfully proved by preponderance of probability, his entitlement for the insurance claim. As per the cover note of the Insurance Policy No. 1305782311028323, the insured declared value of stolen vehicle was Rs. 6,40,000/-.
CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 17 of 18 Accordingly the suit of the plaintiff is liable to be decreed to the extent of sum of Rs. 6,40,000/-.
27. In the suit amount the plaintiff appears to have also included the pre-suit interest calculated @ 9% per annum on the insured value from the date of raising of the claim till rejection of the same by the defendant. However, considering the fact that there was no such stipulated on the policy cover for charging interest on the delayed payment of claim, I am of the view that the plaintiff is not entitled to any pre-suit interest.
28. At the time of passing this judgment, it was pointed out that the suit has been filed in the name of M/s Sanjeev Filling Station through its proprietor Sh. Sanjeev Soni. But in view of the fact that plaintiff being a proprietorship firm has no legal entity, the suit ought to have been filed in the name of sole proprietor. But since, the defect in the name of the plaintiff is merely an irregularity, the same can be cured even at this stage. Accordingly, plaintiff is directed to file the amened memo showing the correct name of plaintiff and subject to filing of amended memo with correct name of parties, decree sheet shall be drawn in terms of this judgment.
29. Relief :
In view of my findings on the aforementioned issues, CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance Page 18 of 18 present suit is decreed in the sum of Rs. 6,40,000/- alongwith 6% pendente lite and future interest. Decree sheet be drawn accordingly subject to filing of amended memo of parties. File be consigned to Record Room.
(Sunena Sharma) Addl. Distt Judge-03/South-East Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 23.01.2016.
CS No.270/2015 Sanjeev Filling Station vs. Reliance General Insurance