THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 5 of 2001 DATE: 31-01-2011 Between: M/s Coastal Fish Farm, M.M.Puram, Pulla Village. .. Petitioner And United India Insurance Co. Ltd., Rajahmundry Branch and 2 others .. Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 5 of 2001 JUDGMENT: The plaintiff in O.S.No.209 of 1989 on the file of Principal Senior Civil Judge, Rajahmundry, is the appellant herein. The suit was filed for recovery of the damages for loss of the property, which was said to have been insured with the defendants. The claim was made for a sum of Rs.60,345/-. 2. According to the case of the plaintiff, they have got fish ponds and the partnership firm has taken insurance for a sum of Rs.2,50,000/- in respect of the bunds of the tanks effective from 18.11.1985 to 18.11.1986 from the defendants at Eluru Branch. Subsequently, as the loan granted by the Andhra Bank has been enhanced, another policy said to have been taken from the same Insurance Company at Rajahmundry to be effective from 19.08.1986 to 19.08.1987 to a tune of Rs.4,00,000/-. Since there was said to be some floods in August, 1986, the tanks have been damaged in spite of the precautions taken by the plaintiff and the plaintiff made a claim for Rs.1,00,000/- towards damages and the Rajahmundry branch has appointed a Surveyor, who has conducted the survey, and a sum of Rs.44,136/- was estimated as the damages. But, as the amount was not paid, the plaintiff issued a notice for recovery of the said amount and filed the suit. 3. The defendants have raised a contention that the policy obtained from the Rajahmundry branch is vitiated by suppression of the facts and there is no liability that the claim of the plaintiff for damages at Rs.1,00,000/- claimed in the notice or the amount claimed as Rs.45,000/- on the basis of the Surveyor’s report is not legal and sustainable and, therefore, the suit is liable to be dismissed. 4. On the basis of the pleadings, the following issues were framed for trial: 1. Whether this suit is barred by limitation? 2. Whether this Court does not have territorial jurisdiction of try this suit? 3. Whether D2 and D3 are not necessary parties to the suit? 4. Whether the plaintiff is entitled to any claim in view of subsistence of two policies and whether the obtaining of policies by the plaintiff is actuated by malice and fraud? 5. What is the damage that the plaintiff sustained? 6. Whether the plaintiff is entitled to the suit claim? 7. Whether the plaintiff is entitled to interest, and if so, at what rate? and 8. To what relief? 5. On behalf of the plaintiff, P.Ws. 1 and 2 were examined and marked Exs.A-1 to A-16 and on behalf of the defendants, D.W.1 was examined and marked Exs.B-1 to B-5. 6. After considering the rival contentions, the learned Principal Senior Civil Judge, Rajahmundry held that the policy under Ex.A-4 obtained from the Rajahmundry branch is not valid as there is a suppression of the fact and also held that there is no proof of the actual damage and, consequently, granted decree for a sum of Rs.13,484/-, being the amount determined as discharge towards the liability under the insurance policy by the Eluru branch. Aggrieved by the said judgment and decree, the present appeal is filed. 7. The points, that arise for consideration, are 1) whether the plaintiff is entitled to the suit amount as claimed?; and 2) whether the judgment and decree passed by the learned Principal Senior Civil Judge, Rajahmundry in rejecting the claim of the plaintiff is legal and sustainable? POINT NOS.1 & 2: 8. Learned counsel for the appellant contends that even if the policy under Ex.A-4 from Rajahmundry branch is to be excluded from consideration, as held by the lower court, still there is a valid coverage of the policy for the risk involved in this case under Ex.B-1 policy, as it is effective from 18.11.1985 to 18.11.1986; and, therefore, the amount of compensation should not have been restricted to a lesser amount. Evidently, a Surveyor was appointed by Eluru branch and he gave a report under Ex.B-3, which clearly goes to show that the plaintiff was diligent in protecting the bunds and taken every precaution even in the floods, but in spite of it, the damage has been caused; ultimately he determined the damages to a tune of Rs.44,136/-. The learned Principal Senior Civil Judge, Rajahmundry found that the plaintiff has not proved the actual damages though it was confined to only Rs.45,000/- basing on the report of the Surveyor and the Surveyor’s report under Ex.B-3 cannot be looked into as it relates to an investigation under the policy Ex.A-4, which is not valid, and consequently, in the absence of any proof of the damages, the discharge given by the defendants is the only amount, to which the plaintiff is entitled to. 9. It is to be noted that the property insured under both the policies is the same and the nature of risk is also the same. The lower court also accepted the validity of the policy under Ex.B-1, which covers a risk of Rs.2,50,000/-. Evidently, the Branch Office, Eluru has not appointed any Surveyor to determine the damages. The report of the Surveyor under Ex.B-3 is not disputed by the defendants and, in fact, it is a piece of evidence collected by the defendants with regard to the damages of the same property covered under the policy. Therefore, merely because, the Surveyor was appointed for determination of Ex.A-4 policy, it does not mean that the evidentiary value of the report is lost. The defendants, therefore, cannot deny the factum of assessment of the damages made by the Surveyor, who was appointed at the instance of the defendants. Evidently, the evidence or the report of the Surveyor is an independent piece of evidence, which can be relied on by the plaintiff. The defendants are not challenging that report as being fraudulent or to the benefit of the plaintiff, ignoring the real damages. 10. Therefore, in view of the above circumstances, the lower Court erred in rejecting the report under Ex.B-3 on the ground that it relates to a report called for and Ex.A-4 policy for fish ponds. But this Court has held that the said report is binding on the defendants and it conclusively determines the extent of the damages suffered by the plaintiff and no further independent proof is necessary when the plaintiff is confined in the damages to the report of the Surveyor under Ex.B-3. Therefore, in view of the above circumstances, when there is a valid coverage of the policy and acceptable estimate of the damages made by the Surveyor under Ex.B-3 in discharge for a lesser sum is not valid and the defendants have to make good the entire damage suffered by the plaintiff. Evidently, there is no negligence or any acts of the plaintiff in not protecting the damages. 11. Therefore, for the above reasons, the judgment and decree passed by the learned Principal Senior Civil Judge, Rajahmundry is set aside and instead the plaintiff is entitled to a sum of Rs.44,136/- (Rupees Forty four thousand one hundred and thirty six only) at 12% per annum from the date of notice i.e. 04.01.1988 till the date of decree and thereafter at 6% per annum to the date of realization. Each party shall bear their own costs in this appeal. The amount deposited, if any, before the Court below in pursuance of the decree shall be given credit to. ________________________ N.R.L.NAGESWARA RAO, J 31st January, 2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.No. 5 of 2001 DATE: 31-01-2011 MR