IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 698 OF 2001 BETWEEN: The Oriental Insurance Company Limited. …APPELLANT AND K.Bhagyavathamma and another. …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 698 OF 2001 JUDGMENT: The defendant in O.S.No. 27 of 1999 on the file of the Senior Civil Judge, Madanapalle, is the appellant herein. 2. The suit was filed for recovery of a sum of Rs.2,01,330/- being value of the Ambassador Car bearing No. AP 03 D 1116, which is said to have been committed theft on 22-09-1998 at about 8-45 P.M. 3. The plaintiff is the owner of the vehicle and on 22-09-1998 when it was parked in front of his house near Bala Mandhir, Madanapalle, it was committed theft of and a police complaint was given, but it was not recovered. The vehicle was insured with the first defendant and also it was under hypothecation with second defendant. The plaintiff has made a claim for recovery of the insured amount to a tune of Rs.2,00,000/- and as the said amount was not paid, the present suit was filed for recovery of the suit amount. 3. The first defendant filed a written statement denying several allegations in the plaint with regard ownership of the plaintiff over the Ambassador car bearing No. AP 03 D 1116 diesel engine 1984 model worth of Rs.2,50,000/-, incident of theft and registering the crime by the police, while admitting the policy of insurance of the Ambassador car insured by the plaintiff. It was further submitted that the policy was in force from 26-09-1997 to 25-09-1998. The defendant company is only liable as per the terms and conditions of the policy, but not the claim of plaintiff. The vehicle of the plaintiff is badly damaged due to lapse of time by using and its value is depreciated year by year. The plaintiff has not taken proper care for keeping her vehicle in safe and the missing of car is only negligence of the plaintiff and her husband. The Divisional Manager, Oriental Insurance Company Limited, appointed investigator and submitted his report and also estimated the value of the car of Rs.64,000/-. Therefore, the 1st defendant pleaded for dismissal of the suit. 2nd defendant was set exparte. 4. On the basis of the above pleadings, the following issues were framed by the trial Court for trial: 1) Whether the theft of the car bearing No. AP 03 D 1116 is true? 2) Whether the plaintiff is entitled for the suit amount or any part thereof? 3) To what relief? 5. On behalf of the plaintiff, PW.1 was examined and marked Exs.A-1 to A-12. On behalf of the defendant, DWs-1 and 2 were examined and marked Exs.B-1 and B-2 and Ex.X-1. 6. After considering the evidence on record, the learned Senior Civil Judge decreed the suit of the plaintiff for a sum of Rs.1,91,330/- with interest at 6% per annum from the date of suit till the date of payment. Aggrieved by the said judgment and decree, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the claim of the plaintiff for the value of the car as granted by the lower Court is legal and sustainable? 2) Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? 8. POINTS: Learned counsel for the appellant contends that there is no dispute about the insurance of the vehicle. Though, the theft was initially denied, the evidence on record and the record filed by the plaintiff under Ex.A-5 and the evidence of DW-1 clearly goes to show that the vehicle was lost in theft. The coverage of the policy of insurance under Ex.B-1 covering the risk is also not in dispute. The learned counsel for the appellant contends that as per the terms of policy, the liability of the defendant is restricted to the valuation as on the date of theft and from the evidence of DW-2 and valuation report, it was estimated at Rs.64,000/- only and there is no other evidence on the side of the plaintiff to prove the value claimed by her is real and correct and therefore, the judgment of the lower Court is not correct so far it exceeds the amount of Rs.64,000/-. In this connection, it is useful to refer Clause-3 of Ex.B-1. “The company may at its own option repair, reinstate or replace the Motor Car or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the company shall not exceed the actual value of the part damaged or lost less depreciation plus the reasonable cost of fitting and shall in no case exceed the insured estimate of the value of the Motor Car (including accessories thereon) as specified in the Schedule or the value of the Motor Car including accessories thereon) at the time of the loss or damage, whichever is less”. 9. Evidently, this being a suit for recovery of damages of the value of the car, naturally it is for the plaintiff to prove as to for what amount the car was purchased and what was the value on the date of the loss. Though the plaintiff claimed to have purchased the car for Rs.2,50,000/-, no single document is filed to prove the same. Evidently, the vehicle is of the year, 1984 model and it was converted into a diesel vehicle and was being run by the plaintiff. The incident of theft is said to have happened after 14 years after the manufacture of the vehicle. It is for the plaintiff to produce the best evidence about the consideration that was paid for the purchase, but curiously no document is filed and on the other hand, complaint is made against the defendant for not properly proving the valuation. Merely because a policy of insurance was given for Rs.2,00,000/-, it does not mean that the value of the vehicle, which was insured, shall be paid totally to the plaintiff irrespective of the conditions of the policy. Evidently, the policy, which was produced as Ex.B-1 and admitted by the parties, clearly prescribes the depreciation value. The lower Court has deducted the depreciation at 5% taking into consideration the age of the car from the date of policy and not from the date of month, which is evidently erroneous. If the table furnished in the policy Ex.B-1 is taken into consideration, for a vehicle, which is more than 10 years old, the depreciation is above 50%. Therefore, the method adopted by the lower Court to arrive at the value of the car, which was lost in theft, is against the terms in the policy Ex.B-1 and more so, no positive evidence is adduced by the plaintiff to prove the value. Therefore, as matter stands, the valuation of the vehicle given by DW-2, who has inspected the vehicle, is not rebutted and there is no reason to discredit his evidence. But, however since insurance company itself has fixed the value at Rs.2,00,000/- from the date of policy, the determination of the value at Rs.64,000/- by the DW-2 appears to be on a lower side. Therefore, taking into consideration and totality of the circumstances, I feel the ends of justice would meet if the value of the vehicle is fixed at Rs.1,25,000/- instead of Rs.1,91,330/- fixed by the lower Court. The plaintiff will be entitled to said amount with interest as granted by the lower Court. 10. With the above modification, the appeal is allowed partly. The claim of the plaintiff is decreed for a sum of Rs.1,25,000/- with interest at 6% per annum from the date of suit till realisation with proportionate costs. Both parties should bear their own costs in this appeal. Date: 14-02-2011. ________________________ N.R.L.NAGESWARA RAO, J INL THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 698 OF 2001 14th February, 2011 INL