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This is a suit for declaration that the correct estimate of damaged to the insured vehicle bearing no. DL8CX-1487 is Rs.11,40,000/- which amounts to Constructive Total Loss as it exceeds the 75% of the insured declared value with consequential relief of recovery of insured amount of Rs.7,80,000/- alognwith pendente lite and future interest @12% per annum, damages and recovery of parking charges.

FACTS

1. Admittedly, plaintiff (a registered partnership firm) is the owner of vehicle bearing no DL8CX-1487 (make Corolla Altis D-4D G, manufactured by Toyota). The vehicle was insured with the defendant company since its purchase on 20.07.2011 and the policy was renewed each year till the policy year 2017-18. The last relevant details of the policy are as under:

ADMISSION AND DENIAL OF DOCUMENTS

4. No admission and denial of documents was conducted ISSUES

5. Vide order dated 03.08.3018 following issues were framed :

(i) Whether the plaintiff is entitled to decree of declaration regarding loss caused to the insured vehicle of plaintiff and to catagorize the vehicle under the category of 'Constructive Total Loss', as prayed for? OPP
ii) Whether plaintiff is entitled for a decree for sum of Rs.7,80,000/- alongwith pendente lite and future interest, if so at what rate? OPP

ISSUEWISE FINDINGS

(i) Whether the plaintiff is entitled to decree of declaration regarding loss caused to the insured vehicle of plaintiff and to Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 8 of 16 catagorize the vehicle under the category of 'Constructive Total Loss', as prayed for? OPP

vii) Whether the suit is without any cause of action? OPD

10. The issues are taken up for discussion together as they are inter- connected.

10.1. The onus to prove these issues was upon the plaintiff 10.2 It has been argued on behalf of the plaintiff that it has successfully established its claim because the estimate of the service station at Rs.11,40,000/- has been proved through PW-2 as Ex PW-2/2 (colly.). The same remain uncontroverted. Also, leading the Court through the examination of the surveyor as DW-2 it has been demonstrated that his testimony cannot be relied upon as the report Ex. DW-2/4 did not bear the signature of 'Advisor' of Grace Toyota who accompanied the surveyor at the time of physical inspection. Further, it has been argued that photographs taken by the surveyor were never brought on record. It has been adumbrated that report of the surveyor was preliminary and he was contradicted on his testimony whether the vehicle of the plaintiff was dis-mantled. It has been submitted that the defendant company has maintained the stand that the plaintiff did not allow dis-mantling of the vehicle whereas Sh. N.L. Sharma (DW-2) stated that the vehicle was dis-mantled on 17.08.2017. It has further been argued that even though he denied having prepared any interim report, email dated 07.09.2017 (at 15:18) sent on behalf of defendant company to the plaintiff, it is stated that a preliminary report had been submitted by the surveyor and the Jhunsons Chemicals vs. National Insurance Col. Ltd. and Ors Pages 9 of 16 surveyor has further admitted as DW-2 that after submitting report Ex. DW-2/4, he did not inspect the vehicle afresh. Thus,it has been argued that the report of the surveyor is unreliable.

10.12 However, the plaintiff had to stand on its own legs and demonstrate by way of pre-ponderance of probabilities that the estimate given by the service station (Ex. PW-2/2 (colly.)) was genuine and therefore, the loss caused to the vehicle could be categorized as total constructive loss. However, for reasons already mentions above, the report was not proved.

10.13 Therefore, the issue is decided against the plaintiff.

ii) Whether plaintiff is entitled for a decree for sum of Rs.7,80,000/- alongwith pendente lite and future interest, if so at what rate? OPP