IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 241 of 2000 Date of decision: 11.05.2010 Piarey Lal … Appellant Versus Oriental Ins. Co. Ltd. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Virender Singh Chauhan, Advocate. For the respondent: Mr. Lalit K. Sharma, Advocate. V.K. Ahuja, J. (Oral): This is an appeal filed by the appellant under Section 100 C.P.C. against the judgment of the Court of learned District Judge, Shimla, dated 1.10.1999, allowing the appeal filed by the respondent partly as against the appellant. 2. Briefly stated, the facts of the case are that the appellant here-in-after referred to as ‘the plaintiff’ filed a suit for recovery of Rupees One Lac as against the respondent here-in-after referred to as ‘the defendant’. The suit was filed in fact for declaration and mandatory injunction and not for the recovery of the amount directing the defendant to pay a sum of Rupees One Lac, the insured amount consisting of Rs.50,000/- for the house and Rs.50,000/- for the goods 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 insured, for which premium was paid of Rs.380/-. The plaintiff alleged that the he had taken policy of Rupees One Lac, paid the premium, but the house was destroyed in fire including the goods and accordingly, he filed a suit for declaration and mandatory injunction as against the defendant directing him to pay the amount in question. 3. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff was owner-in-possession of the house situated in chak Gaona, as alleged? OPP 2. Whether the plaintiff insured his house vide policy No.235106/309/03916/93/00918 from 20.11.92 to 19.11.1993 for a sum of Rs.1,00,000/- i.e. Rs.50,000/- building and Rs.50,000/- goods of Karyana General Store, as alleged? OPP 3. Whether the plaintiff at the direction of the defendant paid Rs.380/- as the premium of the policy as alleged? OPP 4. Whether in the month of November, 1993 in the intervening nights of 13/14 November, 1993 fire broke out in the house of the plaintiff and the fire gutted every thing of the house, as alleged? OPD 5. Whether the plaintiff is entitled for mandatory injunction against the defendant to release the amount of Rs. One Lakh, as alleged? OPP 6. Whether the suit is not maintainable in the present form, as alleged? OPD 7. Whether the plaintiff is estopped from instituting the present suit? OPD 8. Whether the plaintiff has obtained the insurance policy by concealing relevant information about selling the premises in question besides making breach to the terms and conditions of the Insurance policy, as alleged? OPD 3 9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 10. Whether the policy of insurance has been falsely obtained by mis-representing and suppressing the material facts? OPD 11. Whether the house in question was sold with possession by the plaintiff way back in the year 1988 to one Sh. Krishan Singh, as alleged? OPD 12. Whether there was no stock lying in the ground floor of the building and the building was in dilapidated condition, as alleged? OPD 13. Relief. 4. Parties led their evidence and the learned trial Court vide its judgment decided all the issues in favour of the plaintiff and as against the defendant and consequently, decreed the suit of the plaintiff in full for recovery of Rupees One Lac. 5. On appeal, the learned District Judge vide his impugned judgment held that the plaintiff was only entitled to a sum of Rs.50,000/- for the insured amount for the house, but not for the recovery of Rs.50,000/- for the goods, hence the present appeal preferred by the plaintiff. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The appeal has been admitted by this Court on the following substantial question of law:- “Whether the learned Lower Appellate Court is justified in insisting on the production of the vouchers/bills of the merchandise stored in the premises which was completely destroyed in fire when the law provides for proving the fact on the basis of secondary evidence when the primary evidence is destroyed?.” 4 8. On an appraisal of the record, it is very much clear that the plaintiff had not given any value of the goods allegedly destroyed in the fire. He did not state specifically that the bills in question were also lying in shop, which were destroyed in the fire. He did not lead any other evidence vide which he could prove the extent of loss of goods caused to him. He did not produce any record in regard to the value of the goods. He did not state approximately about the value of the goods lost in fire. He could have examined any witness from whom the purchases had been made or led evidence in this regard, in which he had failed. He also examined PW-1 Pyare Lal and PW-2 Balak Ram, whose statements are very vague in nature and they did not further substantiate the case of the plaintiff in any manner. The evidence in question had been rightly appreciated by the learned first Appellate Court and the learned first Appellate Court had come to a right conclusion that the plaintiff was not entitled to a sum of R.50,000/- as value of the goods insured with the defendant. The findings recorded by the learned first Appellate Court do not call for an interference by this Court and as such are accordingly affirmed. 9. In view of the above discussion, I accordingly hold that there is no merit in appeal filed by the appellant, which is dismissed. However, parties are left to bear their own costs. 10. In view of the dismissal of the main appeal, Miscellaneous Application pending, if any, shall stand disposed of. ( V.K. Ahuja ), May 11, 2010 Judge (BSS) 5