IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.F.A.No. 130 of 2002. Judgment reserved on : 8.4.2009 Date of decision : April 20, 2009. National Insurance Company Ltd. …Appellant. Versus Babu Ram & Others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ashwani K. Sharma, Advocate. For the Respondents : Mr. H.S.Upadhyay, Advocate for respondent No.1. Mr. Anshul Bansal, Addl. Advocate General for respondents No. 2 to 4. Kuldip Singh , Judge The insurer of truck bearing registration No. HIS-609 has come in appeal against the judgment, decree dated 6.4.2002 passed by the learned Additional District Judge, Solan in Civil Suit No. 2-S/1 of 2001. The respondent No.1 was the plaintiff, appellant was defendant No.1 and respondents No. 2 to 4 were defendants 2 to 4 in the suit. 2. The brief facts of the case are that respondent No.1 had filed a suit for mandatory injunction and in alternative for recovery of Rs.3,00,000/- against appellant and respondents No. 2 to 4 on the ground of theft of truck bearing registration No. HIS-609 on 31.3.1998 which was insured with appellant for a sum of Rs.3,00,000/-. The further case of 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes 2 respondent No.1 is that truck was parked on 31.3.1998 at Parwanoo. The respondent No.1 on 1.4.1998 came to know that vehicle had been stolen, he went to Police Station, Parwanoo to report the theft to the police but no FIR was registered by respondents No. 2 to 4. The respondent No.1 had been repeatedly requesting respondents No. 2 to 4 for registration of FIR and supplying a copy of such FIR to respondent No.1. The respondent No.1 had written one application on 2.5.1998 to Superintendent of Police, Solan for supplying a copy of FIR but to no effect. 3. The intimation of theft of the truck was also given to appellant and respondent No.1 submitted his claim to appellant for settlement, who neither settled the claim nor paid any amount to respondent No.1. The respondent No.1 issued notice to appellant for settling the claim but without any result. The appellant was legally bound to pay the insured amount to respondent No.1 along with interest at the rate of 18% per annum w.e.f. 1.4.1998 till payment. 4. The respondent No.1 filed complaint before H.P.State Consumer Disputes Redressal Commission against the appellant but Commission on 7.9.1999 had disposed of the complaint of respondent No.1 with the observation that question of theft requires elaborate evidence and inquiry which cannot be decided in summary proceeding. The Commission observed that proper remedy for respondent No.1 is to move Civil Court and with these observations dismissed the complaint of respondent No.1. The respondent No.1 thereupon issued notice under Section 80 C.P.C. to respondents No. 2 to 4 on 3.5.2000 and ultimately filed the suit on 14.12.2000. 5. The suit was contested by appellant by filing written statement in which preliminary objections of maintainability, estoppel, lack of cause of action and concealment of material facts were taken. On merits, the insurance of truck and the amount insured were admitted. It 3 has been submitted that no proof of theft was given by respondent No.1 and, therefore, claim could not be settled. The appellant denied the claim of respondent No.1. The respondents No. 2 to 4 had filed separate joint written statement in which preliminary objections of maintainability, jurisdiction and valuation were taken. On merits, it was pleaded that respondent No.1 on 2.5.1998 submitted an application to Superintendent of Police, Solan for supplying a copy of FIR, but no FIR or daily diary report was registered at Police Station, Parwanoo. Therefore, no copies were supplied to respondent No.1. The service of notice under Section 80 C.P.C. was not denied. It was pleaded that respondent No.1 never approached Police Station, Parwanoo for registration of case of theft regarding truck No.HIS-609. The jurisdiction of the Court to try the suit was denied. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for mandatory injunction as alleged? ..OPP. 2. Whether in alternative the plaintiff is entitled for the recovery amount as alleged ? ..OPP. 3. Whether this suit is not maintainable as alleged? …OPD 1 to 4. 4. Whether the plaintiff is estopped to file the present suit owing to his acts, conduct and acquiescences? ..OPD-1. 5. Whether the plaintiff has no cause of action as alleged?...OPD. 1 to 4. 6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction?.. OPD. 2 to 4. 7. Relief. The issues No. 1, 4 and 6 were answered in negative, issue No.2 in affirmative, under issue No.3 it was held that suit is maintainable and under issue No.5 it was held that respondent No.1 has cause of action and ultimately a decree of Rs.3,00,000/- was passed in favour of 4 respondent No.1 and against appellant with the direction to deposit the decretal amount within 30 days from the date of decision, failing which interest at the rate of 12% per annum shall be charged from the institution of the suit till realization of the amount. The respondent No.1 was also held entitled to cost. 6. I have heard Mr. Ashwani K. Sharma, Advocate, learned counsel for the appellant, Mr. H.S.Upadhyay, Advocate, learned counsel for respondent No.1 and Mr. Anshul Bansal, learned Additional Advocate General for respondents No. 2 to 4 and have also gone through the record. It has been submitted on behalf of the appellant that the appellant had repudiated the claim of the respondent No.1 for not supplying documents especially copy of FIR regarding the theft of the truck. He has submitted that no doubt the insured amount as per policy was Rs.3,00,000/- but truck was of 1981 model, therefore, as per policy, the respondent No.1 was entitled to, if any, amount after deducting depreciation. The learned Additional District Judge has erred in awarding interest, in any case the interest allowed is on the higher side. He has submitted for setting-aside the impugned judgment, decree. 7. The learned counsel for the respondent No.1 has supported the impugned judgment, decree and has submitted that respondent No.1 approached the Police Station, Parwanoo repeatedly for registration of FIR for the theft of the truck but despite that no case was registered by the police. He has submitted that registration of FIR for the theft of the truck or supplying the copy of FIR of the theft of the truck to appellant was not a condition precedent as per policy Ex.PW-1/A for settling the claim of respondent No.1. The appellant and respondent No.1 were bound by the terms of the policy and appellant had no right to repudiate the claim of respondent No.1 by unilaterally reading a non-existent condition in the policy. The truck was insured for Rs.3, 00,000/- in terms of the policy. 5 The appellant is not entitled to any deduction from the insured amount. The interest ordered to be paid by the learned Additional District Judge is not on the higher side. The learned Additional Advocate General has submitted that respondents No. 2 to 4 have no grievance against the ultimate relief granted by the learned Additional District Judge inasmuch as, suit has been decreed against appellant. 8. Ex.PW-1/A is the insurance policy of truck bearing registration No. HIS-609 of 1981 model. The respondent No.1 is the insured in Ex.PW-1/A and the insured amount is Rs.3,00,000/-. The period of policy is from 25.9.1997 to 24.9.1998. The appellant in the written statement has not denied the insurance policy of the truck. It has been submitted by the learned counsel for the appellant that claim of respondent No.1 was repudiated by the Insurance Company for not supplying the copy of FIR regarding the theft of the truck. The learned counsel for the appellant has failed to show from the policy any term to the effect that the insurer would settle the claim only if copy of FIR regarding the theft is supplied by the insured or the insured would not be entitled to any claim in case the copy of FIR regarding the theft of the truck is not supplied to the insurer. 9. PW-1 Babu Ram has stated that on 31.3.1998 after repairs, he parked the vehicle No.HIS-609 near Negi Petrol Pump. On 1.4.1998 Conductor of the truck told him that the vehicle No.HIS-609 was stolen on 31.3.1998. The vehicle was searched but was not traced. He went to Police Station, Parwanoo for lodging the report and he had also written letter copy Ex.PW-1/B, as well as letter copy Ex.PW-1/C. He lodged the claim vide copy Ex.PW-1/D but despite that the claim was not settled by the insurer and they demanded copy of FIR. 10. PW-2 Shiv Singh has stated that he was member of Kalka- Shimla Goods Transport Union from 1992 to 1998. Babu Ram owner of 6 vehicle No.HIS-609 was member of Kandaghat Union, Ex.PW-2/A was issued by him and it bears his signatures. The vehicle was stolen in the year, 1998 and since then he had not seen the said vehicle. PW-3 Baldev Singh owner of vehicle No.HP-13-0225 has stated that said vehicle was registered with Kandaghat Truck Union. Babu Ram is the owner of vehicle No.HIS-609 which was registered with Kandaghat Union, this vehicle used to ply in Kandaghat area. He had not seen this vehicle since March, 1998. PW-4 Bal Krishan was Conductor on truck No.HIS-609 for 7 – 8 months. PW-4 has stated that in March, 1998 this vehicle was taken to Patiala for repairs and he accompanied the vehicle. The vehicle after repairs was brought on 31.3.1998 and was parked near Petrol Pump owned by Negi. Babu Ram was also with him but he proceeded to Kandaghat after the truck was parked near Petrol Pump. He locked the truck at about 10.00 – 11.00 P.M. on 31.3.1998 and left for taking his meals. On return, he found truck was not on the spot. He tried to locate the truck but to no effect. He contacted Shiv Singh, President of Truck Union on telephone and told him about the truck. He requested Shiv Singh to inform Babu Ram also. On next day, he personally went to Kandaghat and met Babu Ram in the evening and told him about the truck, Babu Ram had gone to Shimla to attend some case. The truck was searched but was not traced till the date witness deposed in the Court. 11. The purpose of examining DW-1, DW-2, DW-3 and DW-4 appears to be that respondent No.1 did not lodge any report at Police Station, Parwanoo for the theft of the truck. DW-5 B.S. Dhatiwalia, Branch Manager, National Insurance Company has stated that plaintiff in writing informed the theft of the vehicle which was received on 27.4.1998 vide Ex.PW-5/C. The Insurance Company asked the plaintiff to send the copy of FIR vide letter Ex.PW-5/D but plaintiff did not send copy of FIR and claim form. The Insurance Company had written letters Ex. DW-5/E and 7 Ex.DW-5/F. On 23.6.1998 the plaintiff had sent notice Ex.DW-5/G. The claim of the plaintiff was rejected and he was informed to this effect vide Ex.DW-5/N. In cross-examination, he has stated that Insurance Company did not make inquiry regarding the theft as no proof of theft was given by the plaintiff. 12. DW-1 Harbans Singh has stated that letter Ex.DW-1/A was received in the office of Dy.S.P., Parwanoo which was marked by Dy.S.P. to SHO, Police Station, Parwanoo on the same day. The perusal of Ex.DW-1/A would show that it has been stated therein that the vehicle HIS-609 was missing since 31.3.1998 and a missing report to this effect was submitted on 2.4.1998 by respondent No.1, he again went to Police Station and he was told that FIR would be registered but respondent No.1 was asked to continue search of the truck at his own level. It has also been submitted in Ex.DW-1/A that copy of FIR was not supplied to respondent No.1. It has come on record that no FIR or report regarding the theft of the truck was registered at Police Station, Parwanoo, but registration of FIR of theft is not a condition precedent as per policy Ex.PW-1/A for settling the claim of respondent No.1 and when FIR was not registered for the theft of the truck HIS-609 then there was no question of supplying the copy of FIR to appellant by respondent No.1 regarding the theft of the truck. The correspondence placed on record by appellant does indicate that appellant in fact has not denied the theft, rather appellant insisted for supplying FIR. The claim of respondent No.1 was not repudiated on the ground that truck was not stolen. The claim was not settled as respondent No.1 failed to supply FIR. The respondent brought to the notice of Superintendent of Police, Solan that the truck No.HIS-609 was missing vide Ex.DW-1/A dated 2.5.1998. FIR could have been registered when Ex.DW-1/A came to the notice of superior police officers including Superintendent of Police, Solan and Ilaqua Dy.S.P. by invoking 8 Section 36 Cr.P.C. In Ex.DW-1/A respondent has stated that truck No.HIS-609 was missing since 31.3.1998 from Parwanoo. The respondent No.1 cannot be denied his rightful claim for the inaction of police for not registration of FIR regarding the theft of truck. It is clear from the above evidence that truck HIS-609 owned by respondent No.1 was stolen from Parwanoo in the intervening night 31st March and 1st April, 1998. In these circumstances, the appellant has erred in not settling the claim of respondent No.1 in absence of copy of FIR. 13. The learned counsel for the appellant has submitted that truck HIS-609 was of 1981 model and, therefore, as per policy Ex.PW- 1/A, Section 1 – Loss or Damage the appellant is entitled to deduction of depreciation to the extent of 50% on the estimated value of the truck Rs.3,00,000/-. In other words, according to learned counsel for the appellant, the respondent No.1 is not entitled to more than Rs. 1,50,000/- in any case. The Section 1 – Loss or Damage of policy is as follows:- “1. The Company will indemnify the Insured against loss of or damage to the Motor Vehicle and/or its accessories whilst thereon. (a) by fire explosion self ignition or lightning (b) by burglary housebreraking or theft (c) by riot and strike (d) by earthquake (Fire and Shock Damage) (e) by flood typhoon hurricane storm inundation cyclone hailstorm frost (f) by accidental external means (g) by malicious act (h) by terrorism (i) whilst in transit by road rail inland waterway lift elevator or air. Subject to a deduction for depreciation at the rates mentioned below in respect of parts replaced. % of Depreciation 1. For all rubber sylon plastic parts tyres and battery 50% 2. For all parts made of glass Nil 3. For all other parts Age of Vehicle upto 6 months Nil between 6 months and 1 year 5% 9 between 1 year and 2 years 10% between 2 years and 3 years 15% between 3 years and 4 years 25% between 4 years and 5 years 35% between 5 years and 10 years 40% over 10 years 50%.” The insurer as per policy is bound to indemnify the insured against loss or damage to the vehicle and/or its accessories in case of theft subject to a deduction for depreciation of rates mentioned in respect of ‘parts replaced’. Therefore, as per policy, the deduction for depreciation is for parts replaced and when those parts replaced were over 10 years, then deduction of depreciation at 50% would apply. In the present case, no part of the truck was replaced, therefore, appellant cannot take benefit on account of deduction for depreciation. The present case is of theft and, therefore, appellant is liable to pay whole of the insured amount Rs.3,00,000/- to respondent No.1. 14. The learned counsel for the appellant has submitted that the Court below has allowed interest at the rate of 12% per annum which is on the higher side. The respondent No.1 approached the appellant for settling his claim but appellant refused to settle the claim of respondent No.1 on such ground which was not available to appellant in terms of policy Ex.PW-1/A. There was no requirement for supplying copy of FIR for settling the claim but appellant insisted respondent No.1 to supply the copy of FIR of stolen truck. The respondent No.1 could not supply the copy of FIR as no FIR was registered even though, the respondent No.1 had contacted the police authorities for registration of case, as discussed above. The learned Additional District Judge has allowed 12% interest in case the appellant failed to deposit Rs.3, 00,000/- within 30 days from the date of judgment. In other words, initially the learned Additional District Judge has not allowed any interest but payment of interest at the rate of 12% per annum was ordered on failure of appellant to deposit 10 Rs.3,00,000/- decretal amount within 30 days from the date of decree. In these circumstances, interest at the rate of 12% per annum on Rs.3,00,000/- awarded by the learned Additional District Judge, cannot be said to be illegal or on the higher side. 15. The learned Additional District Judge has appreciated the material on record properly in passing the decree of Rs.3, 00,000/-, conditional interest at the rate of 12% per annum cannot be said to be wrong, illegal. No case for interference has been made out. 16. No other point was urged. 17. The result of the above discussion, the appeal fails and is accordingly dismissed with costs. ( Kuldip Singh ), Judge. April 20, 2009. (GR)