Regular Second Appeal No.3344 of 2010 (O & M ) IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 03, 2011. Regular Second Appeal No.3344 of 2010 (O & M ) Firm Vijay Finish, Batala Road, Amritsar, a registered partnership concern through one of its registered parters Manoj Mehra ….Appellant Versus The Oriental Insurance Company Limited ..Respondent CORAM: HON’BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not. 3. Whether the judgment should be reported in the Digest? Present: Mr. Baldev Raj Mahajan, Advocate, with Mr. Abhinash Jain, Advocate, for the appellant. Mr. Ashwani Talwar, Advocate, for the respondent. -.- MOHINDER PAL, J. Plaintiff-appellant is in second appeal aggrieved against the judgment and decree passed by the lower appellate Court whereby judgment and decree passed by the trial Court decreeing the suit of Regular Second Appeal No.3344 of 2010 (O & M ) the plaintiff-appellant for recovery of Rs.7,17,796.91 along with interest at the rate of eighteen per cent per annum from the defendant- respondent were set aside; thereby dismissing the suit of the plaintiff. I have heard the learned counsel for the parties and have gone through the records of the case. The plaintiff-appellant, a firm dealing in the business of processing of textile goods (for short `the plaintiff-firm’), secured two burglary insurance policies from the defendant-respondent i.e Oriental Insurance Company Limited (for short `the Insurance Company’) operating from 25.5.1989 to 24.5.1990 for Rs.12,00,000/-. These policies included burglary risk to the stock of the cloth of all kinds being processed in the plaintiff firm. Unluckily, a burglary took place in the factory premises of the plaintiff-firm on the night intervening 11/12.2.1990 and a large quantity of cloth of different varieties and stuff of cloth were stolen therefrom. It included grey processed and semi processed cloth amounting to Rs.7,17,796.91, the details of which were given in the plaint. It was pleaded by the plaintiff firm that the value of the goods stolen had been worked out at the cost price of the plaintiff firm though by sale of the said goods, the plaintiff firm could have earned a lot more. Immediately after the theft, F.I.R. No.72 dated 12.2.1990 had been lodged by the plaintiff-firm with the police of Police Station Sadar, Amritsar. The concerned authority of the Police Station issued a certificate dated 23.5.1990 about the fact that the stolen goods had not been recovered. A claim was also lodged by the plaintiff firm with the Insurance Company. The plaintiff firm also included the central excise duty amount of Rs.71825/- levied by the department of Central Excise Regular Second Appeal No.3344 of 2010 (O & M ) in the loss suffered i.e Rs.7,17,796.91 and filed a suit for the recovery of Rs.7,89,621.91 against the insurance company along with interest when the Insurance Company did not honour the claim of the plaintiff-firm. However, the amount of central excise duty of Rs.71825/- was waived by the plaintiff-firm in favour of the Insurance Company. As such, the total amount claimed was Rs.7,17,796.91 along with interest and the trial Court decreed the suit of the plaintiff to the extent indicated above by holding that the burglary had taken place in the premises of the plaintiff firm and that the plaintiff firm had two valid insurance policies which included the risk of burglary vide judgment and decree dated 13.3.2003. However, on appeal by the Insurance Company, the lower appellate Court set aside the judgment and decree passed by the trial Court by holding that the plaintiff-firm failed to prove that the burglary had taken place in the factory premises of the plaintiff- firm vide judgment and decree dated 8.2.2010. Hence, this second appeal by the plaintiff firm. The short question involved in this appeal is whether the burglary had taken place in the factory premises of the plaintiff firm or not because it has been admitted by the Insurance Company in the written statement filed by it in the suit that the two policies were in existence at the relevant time but, however, pleaded that on verification it was found by the Insurance Company that no burglary took place in the premises of the plaintiff firm. In order to prove its claim, the plaintiff-firm led sufficient oral as well as documentary evidence. Vijay Mehra (P.W.1), Chartered Accountant of the plaintiff-firm, supported the case of the plaintiff-firm. Balance sheets (Exhibits P.1 and P.2) of the stock tally register maintained by the plaintiff-firm showed that the amount of loss as claimed by the plaintiff-firm was correct according to the books of Regular Second Appeal No.3344 of 2010 (O & M ) accounts. Buta Singh (P.W.2) proved on the file the site plan of the alleged theft. Constable Dwarka Dass (P.W.3) proved on file F.I.R (Exhibit P.W.3/1) a perusal of which shows that the matter regarding burglary having been committed at the premises of the plaintiff-firm was reported to the police at the earliest. The concerned authority of the Police Station had issued a certificate dated 23.5.1990 mentioning about the fact that the goods stolen from the factory premises of the plaintiff-firm had not been recovered. Yashpal Mehra (P.W.6) proved on record the document Exhibit P.W.6/19 which shows the sale of the cloth from the factory premises of the plaintiff-firm. Exhibit P.W.6/21 is the statement showing the purchase of clothes made by the plaintiff- firm, which were stocked in the factory premises of the plaintiff-firm at the time of theft. The documents (Exhibits P.W.6/10 P.W.6/21) proves that the articles which had been stolen from the factory premises of the plaintiff-firm had been purchased by it and were actually lying in the factory premises. As stated above, the Insurance Company did not dispute and, in fact, admitted in the written statement that the sum assured by the plaintiff-firm with the Insurance Company against all risks was Rs.12,00,000/-. The lower appellate Court, for dismissing the suit of the plaintiff-firm by reversing the judgment and decree passed by the trial Court, was influenced by the statements of Varinder Kumar Bakshi (D.W.1) and K.D. Kohli (D.W.2). However, for the reasons to be given hereinafter, the lower appellate Court was not justified in reversing the well-based findings of the trial Court and dismissing the suit of the plaintiff-firm. Varinder Kumar Bakshi (D.W.1) did not himself conduct the investigation. He deposed that his father had conducted the investigation at the spot and had prepared report Exhibit D.W.1/1. It means that Varinder Kumar Bakshi (D.W.1) had no personal knowledge Regular Second Appeal No.3344 of 2010 (O & M ) of the contents of the report Exhibit D.W.1/1, which had been prepared by his father. In his cross-examination Varinder Kumar Bakshi (D.W.1) stated that the investigation and survey regarding the theft in question had not been done by him and that he had simply brought the report prepared by his father. He further admitted that he had not brought with him, at the time of his deposition in Court, the annexures and enclosures on the basis of which his father had prepared the report Exhibit D.W.1/1. Thus, the statement of Varinder Kumar Bakshi (D.W.1) was not supporting the case of the Insurance Company at all. So far as the evidence furnished by K.D. Kohli (D.W.2), who was Insurance Surveyor of the Insurance Company is concerned, he had based his opinion that the plaintiff firm was not entitled to the compensation claimed by relying on the report Exhibit D.W.1/1, which report, as mentioned above, is of no help to the Insurance Company. Varinder Kumar Bakshi (D.W.1), who had tried to prove the report Exhibit D.W.1/1, had no knowledge about the same because it had been prepared by his father. The evidence on record, discussed above, leads to the irresistible conclusion that the burglary had taken place at the factory premises of the plaintiff firm on the night intervening 11/12.2.1990 and the trial Court was justified in decreeing the suit of the plaintiff-firm to the tune of Rs.7,17,796.11. Resultantly, this appeal succeeds. The same is, accordingly allowed and the judgment and decree passed by the lower appellate Court are set aside and that of the trial Court to the extent suit of the plaintiff firm has been decreed for recovery of Rs.7,17,796.91 from the Insurance Company are restored. However, the plaintiff-firm will not be entitled to recover the decretal amount of Rs.7,17,796.91 along with interest at the rate of 18 per cent per annum, as ordered by the trial Regular Second Appeal No.3344 of 2010 (O & M ) Court. Instead, the plaintiff-firm will be entitled to recover the decretal amount along with interest at the rate of 9 per cent per annum from the date of judgment and decree passed by the trial Court i.e 13.3.2003 till its realization. The judgment and decree passed by the trial Court are modified with regard to the entitlement of interest of the plaintiff-firm to the extent indicated above. There shall be no order as to costs. Dated: March 03,2011. (MOHINDER PAL) ak JUDGE