1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil First Appeal No.171/1992 (Trilok Chand Versus National Insurance Company) Date of Judgment :: 5th February, 2009 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. N.K. Maloo for the appellant Mr. Suresh Goyal for the respondent BY THE COURT: The plaintiff-appellant has preferred this appeal being aggrieved with the impugned judgment dated 9th April, 1992 passed by the Additional District Judge, Jhalawar in Civil Suit No. 5/89, whereby the learned trial court has dismissed his suit for compensation of a sum of Rs. 42,100/-. 2. Briefly stated the facts of the case are that the plaintiff filed a suit for compensation of a sum of Rs. 42,100/- in the trial court against the respondent, wherein it was pleaded that the plaintiff got his shop and goods insured with the respondent by taking insurance policy on 11th February, 1988 for a sum of Rs. 1,00,000/-. During the intervening night of 25th and 26th February, 1988, at about 3.00 PM, fire took place in the shop of the 2 plaintiff, the information of which was given by the police at plaintiff's house in the night and thereupon the fire was extinguished with the help of neighbours in about four hours. The FIR was lodged with the police and information was given to the Bank because plaintiff enjoyed credit facility from the bank and the insurance was taken in the joint name of the plaintiff and bank. The Insurance Company deputed Surveyor Shri N.K. Sharma, who conducted the survey on 3rd March, 1988, who gave his report to the Insurance Company and verified the plaintiff's claim for loss by fire. However, instead of passing the claim of the appellant, the Insurance Company appointed another Surveyor, who went at the spot for survey after six months i.e. on 16th August, 1988 and he gave his failure report dated 22nd September, 1988 and in view of his report, the claim of the appellant was repudiated. In these circumstances, it became necessary to file the suit. 3. The Insurance Company filed its written-statement, wherein the fact regarding fire and survey were admitted, but stated that `Khandsari' is not an item of Kirana and, therefore, not covered by the policy. It was 3 further stated that the fire was intentional and not accidental, therefore, it was prayed that suit be dismissed. 4. On the basis of pleading of he parties, the trial court framed seven issues, which are reproduced in the order of the trial court. The plaintiff examined himself as PW-1 and PW-2 Santosh Kumar. The defendant examined DW-1 Babu Lal, DW-2 Sanjay Khandelwal (second surveyor) and DW-3 N.K. Sharma. The documentary evidence was also produced. The learned trial court decided all the issues in favour of the plaintiff except issue no.2, which was also decided partly in favour of the plaintiff and in view of finding on remaining part of issue no.2, the suit of the plaintiff was dismissed. 5. The submission of learned counsel for the appellant is that there is no dispute that the shop and goods of appellant were insured at the relevant time. The surveyor went and surveyed the spot on 3rd March, 1988 and recommended the case of appellant for a sum of Rs. 30,180/- in place of Rs. 42,101/-. Thereafter it was the duty of the Insurance Company to make the payment of loss suffered by appellant, but for the reasons best known to the concerned officers of the respondent- 4 Company, the claim of appellant was not passed and another surveyor Mr. Sanjay Khandelwal was appointed, who again went at the spot on 16th August, 1988 and he gave failure report and on his report, the Insurance Company rejected the claim of the appellant. He contended that Shri N.K. Sharma DW-3 was appointed as Surveyor in the present case, who recommended the case of the appellant for a sum of Rs. 30,180/-. If there was any defect or deficiency in the report, then he could have been asked to give further report on certain points or queries, but in no circumstances, the another surveyor could be appointed by the Insurance Company. It shows the malafide intention on the part of the Insurance Company for not granting the compensation to the appellant. In support of his submission, he referred K.R. Deb Versus Collector of Central Excise, Shillong (AIR 1971 Supreme Court 1447). He also read the statement of plaintiff's and defendant's witnesses, particularly the statement of DW-3 N.K. Sharma, who was examined on behalf of the defendants themselves. He also referred the recommendations of both Surveyors i.e. Ex. 20, the report given by first surveyor N.K. Sharma and Ex. A-2, the second report given by second 5 surveyor Sanjay Khandelwal. He contended that respondent has not given any reason whatsoever to reject the first surveyor's report given by N.K. Sharma, wherein he found that appellant has suffered a loss of Rs. 30,180/- and is entitled to the said claim. He further contended that he has placed on record sufficient evidence to prove that appellant suffered a loss of Rs. 42,101/-, hence, the appeal be allowed and total compensation of Rs. 42,101/- be awarded in favour of the appellant. 6. The learned counsel for the respondent supported the impugned judgment passed by the trial court and contended that finding of trial court is based on appreciation of evidence and the same does not call for any interference by this Court, therefore, appeal be dismissed. 7. I have considered the submissions of learned counsel for the parties and examined the impugned judgment as well as the record of the trial court. Un-disputedly, the shop and goods of the appellant were insured with the respondent-Insurance Company on the date of incident i.e. 25th and 26th February, 1988. The Insurance Company appointed Surveyor namely N.K. Sharma, who went at the spot on 3rd March, 1988 and submitted his report on 14th May, 1988 6 (Ex.-20). Subsequently without any sufficient reason, the another surveyor was appointed namely Sanjay Khandelwal, who went at the spot on 16th August, 1988 i.e. after six months from the date of incident and gave his report Ex.A-2 dated 22nd September, 1988. It is relevant to mention that a specific issue no. 1 was framed by the trial court as to whether the `Khandsari' was covered by insurance policy or not. The trial court has decided this issue in favour of the plaintiff. This fact is relevant for the reason that one of the reason for rejecting the claim of the appellant is that Khandsari is not covered by the Insurance Policy. The finding on issue no.1 decided in favour of the appellant has not been challenged by learned counsel for the respondent. The issue no.2 was also decided in favour of the appellant partly and this fact is not disputed that a fire took place in the shop of appellant during the intervening night of 25th and 26th February, 1988. However, the trial court, partly decided issue no.2 against the appellant. The issue no. 3 to 6 were also decided by the trial court in favour of the appellant. 8. The only controversy in the present 7 case is as to whether the plaintiff suffered loss of Rs. 42,100/- or not. In this connection, it is relevant to mention that even the respondent does not dispute that Shri N.K. Sharma, surveyor was appointed immediately, who went at the spot on 3rd March, 1988 itself, who gave his report to the respondent Company on 14th May, 1988. As per his report, he assessed the net loss to the tune of Rs. 30,180/-. This report runs in seven pages and appears to be detailed report. Shri N.K. Sharma was examined in the present case on behalf of the Insurance Company as DW-3 and his statement is binding on them. He admitted that Ex. P-20 was prepared by him on 14th May, 1988. In his cross-examination he admitted that he took several photographs of the disputed place from several angles, but the same have not been placed on record by the respondents for the reasons best known to them. From his statement, it is also clear that the goods which were found safe were not mentioned and no claim was passed for the same. This fact clearly establishes that if appellant would have submitted a false claim, then he would have claimed the loss of the entire goods as per stock register, but he did not claim the loss as per stock register, but claimed on the 8 basis of the actual loss suffered by him. The Insurance Company also examined DW-1 Babu Lal, the Deputy Manager of the Insurance Company, who stated that Ex.-1 is the insurance policy which was issued to appellant for kirana goods. He stated that Khandsari does not fall within the meaning of Kirana, therefore, the same is not covered by Insurance Company. As already mentioned above that a specific issue no. 1 was framed in this regard and trial court has recorded a finding that Khandsari is covered by Insurance policy. The said finding has not been challenged by the respondent. He further admitted that they were not satisfied with the report of N.K. Sharma and one of the reason was that Khandsari was not covered by Insurance Policy whereas he had included in it while computing loss. Now this issue has already been decided by the trial court while deciding issue no.1 in favour of the appellant. The reasons for not accepting the report of N.K. Sharma, DW-3 have not been placed on record by the Insurance Company. The same were stated orally by DW-1 in his statement. The second surveyor DW-2 Sanjay Khandelwal went at the spot on 16th August, 1988, whereas incident took place on 26th February, 1988, therefore, it was very 9 difficult for him to prepare a report correctly and in absence of factual aspect on that day i.e. after six months, it cannot be said that he prepared a correct factual report in respect of loss suffered by appellant. It is relevant to mention that even if the Insurance Company was not satisfied with the report given by N.K. Sharma on 14th May, 1988, then they could have further directed the same surveyor N.K. Sharma, who visited the spot on 3rd March, 1988 soon after the incident, to give further report on particular point, but his report could not have been discarded by the Insurance Company. In these circumstances, it appears that the action of the respondents in rejecting the first report given by first surveyor Shri N.K. Sharma, was absolutely illegal and unjustified. 7. The Hon'ble Supreme Court in K.R. Deb Versus The Collector of Central Excise (supra) while dealing with the case of disciplinary action under Central Civil Services (CCA) Rules, observed that if there is some defect in the enquiry conduct by the Enquiry Officer, the disciplinary authority can direct the Enquiry Officer to conduct further enquiries in respect of that matter, but it cannot direct a fresh enquiry to be conducted by some other officer. 10 Paras 13, 14 and 15 of the judgment are reproduced as under: “13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason. The Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9. 14. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. 15. Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise that the 11 Collector was determined to get some Inquiry Officer to report against the appellant.” 8. In view of above ratio of the judgment of the Hon'ble Supreme Court, it is clear that if there was some deficiency or defect in the first report on 14th May, 1988 given by DW-3 N.K. Sharma, surveyor of Insurance Company itself, then the Insurance Company could have directed him to make further survey or enquiry in respect of the same matter, but could not have directed the another surveyor to go at the spot in the matter of fire after a period of six months. Looking to the controversy involved in the present matter, the case appears to be fully covered by the judgment of the Hon'ble Supreme Court in the case of K.R. Deb Versus Collector, as referred above. 9. The further question for adjudication is as to whether the plaintiff-appellant is entitled for total compensation of Rs. 42,100/- or Rs. 30,180/-, as recommended by N.K. Sharma, first surveyor of the Insurance Company. Although from the statement of PW-1, it is clear that he has claimed Rs. 42,100/- as loss suffered by him in the fire took place in his shop, but in my view the report given by N.K. Sharma, Surveyor Ex. 2- is a detailed and 12 reasoned report and can safely be made basis for awarding the compensation in the present case. In these circumstances, I am of the view that the net loss suffered by appellant, which was assessed by N.K. Sharma to the tune of Rs. 30,180/- should be awarded as compensation in his favour. 10. Consequently the appeal is partly allowed. The impugned judgment is set-aside. The suit of the appellant is decreed for a sum of Rs. 30,180/-. The appellant shall be entitled to get interest on the aforesaid amount @ 8% per annum from the date of filing of the suit i.e. 8th February, 1989 till the date of realization. 11. No order as to costs. (NARENDRA KUMAR JAIN),J. DK