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2011 DIGILAW 10 (GAU)

National Insurance Co. Ltd. v. Binapani Das (Roy)

2011-01-04

A.C.UPADHYAY

body2011
1. Heard Mr. B. Bhattacharjee, learned counsel appearing for the appellant as well as Mr. Somik Deb. learned counsel representing the respondent. 2. This second appeal has been preferred by the appellant against the judgment and decree dated 15.9.2009 and 19.9.2009 respectively, passed by the learned Additional District Judge, Dharmanagar, North Tripura, in connection with Money Appeal No.01of 2009, whereby judgment and decree dated 24.11.2008 passed by the learned Civil Judge (Sr. Division), North Tripura, Dharmanagar, in Money Suit No. 01 of 2008 has been dismissed. 3. Facts, leading to the filing of this appeal, may be stated, in brief, as follows: The plaintiff-respondent had a readymade cloths shop situated at Uptakhali Bazar, under North Tripura District. On 2.4.2006, at about 02.00 hrs., in the mid-night, the cloths shop, belonging to the plaintiff-respondent, was completely gutted by fire along with other shops in the Bazar. All readymade garments and other materials, which were in stocked in the shop of the respondent, were completely damaged by fire. The shop of the respondent was duly insured with the defendant-appellant National Insurance Company Ltd., Dharmanagar Branch at the relevant point of time and the sum assured was Rs. 1,20,000 in respect of fire claim. After the incident, the plaintiff-respondent submitted application before the Branch Manager of the appellant-National Insurance Company Ltd., Dharmanagar Branch, for payment of compensation as assured and covered under the policy of insurance. The defendant-appellant, on the basis of the claim made by the plaintiff-respondent, registered the claim case and informed the respondent vide letter dated 20.8.2007, stating therein that the surveyor of their company opined that at the time of fire incident, the said shop of the plaintiff-respondent was empty, and, as such, the surveyor assessed the loss as 'Nil' and accordingly the defendant-appellant treated the claim of the plaintiff-respondent as 'No claim'. The plaintiff-respondent formally issued notice upon the defendant-appellant through his engaged counsel, requesting to pay compensation for the damage caused to the property in the shop due to the said fire incident. However, no amount as compensation was paid to the plaintiff-respondent by the defendant-appellant in terms of the insurance coverage, and, as such, being aggrieved a suit was filed by the plaintiff-respondent for realization of Rs. 1,20,000 as compensation, from the defendant-appellant/Insurance Company, for loss and damage caused to her shop due to the fire incident, which occurred on 2.4.2006. 4. However, no amount as compensation was paid to the plaintiff-respondent by the defendant-appellant in terms of the insurance coverage, and, as such, being aggrieved a suit was filed by the plaintiff-respondent for realization of Rs. 1,20,000 as compensation, from the defendant-appellant/Insurance Company, for loss and damage caused to her shop due to the fire incident, which occurred on 2.4.2006. 4. The plaintiff-respondent stated in the plaint that after the fire incident, the Divisional Fire Officer, North Tripura, Kailashahar, in pursuance of the application filed by the plaintiff-respondent, had assessed the damage of property of the plaintiff-respondent caused due to the said fire incident, and submitted his report stating therein that the damage of property of the plaintiff-respondent is Rs. 1,50,000. The plaintiff-respondent further stated in the plaint that the criminal case filed against her husband alleging him to be author of the fire incident also ended in acquittal of her husband. 5. The defendant-appellant, contested the suit by filing written statement, denying the entire claim of the plaintiff-respondent. The defendant-appellant alleged in the written statement that the plaintiff-respondent's husband intentionally set the insured shop on fire with a view to claim insurance benefit. The defendant-appellant also stated that as per the report of the surveyor of the defendant-appellant, since no debris of the stock of cloth and furniture was found, the loss of the plaintiff- respondent was assessed as nil. The learned trial court framed the following issues for just decision of the case : "(i) Is the suit maintainable? (ii) Whether the plaintiff has any cause of action to file this suit? (iii) Whether the damage in question is covered by the fire Insurance Policy? (iv) Is the plaintiff entitled to get decree as prayed for? (v) To what other relief/reliefs the parties are entitled?" 6. The learned trial court, on consideration of the materials on records, while deciding the issue relating to what articles and its quantity including its price were damaged by fire incident, analyzed the report of the surveyor and came to the findings that in terms of the report of the surveyor since there was no debris of garments at the pace of incident treated the claim of the plaintiff-respondent as invalid and legally not justifiable. The relevant extracts of the discussions made by the learned trial court in respect of the above, may be gainfully depicted herein below: "After the fire incident, there should be some debris but in the instant case, I find D.W.2 who is a licence-holder. Surveyor/loss assessor/valuer was appointed by the Divisional Manager of National Insurance Company Ltd., Agartala to survey and assess the loss sustained by plaintiff in her Readymade Garments Shop due to fire incident on 2.4.2006. Accordingly, on 7.4.2006 said D.W.2 (Surveyor/Loss Assessor/Valuer) physically inspected the gutted down shop of the plaintiff and took some photographs and during inspection he observed that floor of the plaintiff's shop was covered with charcoal of wooden structure of the shop building and there was no debris of stock (clothes or furniture). So, be has submitted his report, dated 28.3.2007 to the defendants. Said report was marked Exbt. A and perused by me and found that said assessor opined that plaintiff's shop was empty at' the time of fire incident as there was no debris of stock (clothes or furniture). Hence, he submit "NIL loss assessed final survey report". The said D.W.2 has identified his said report and signature before the court. Nothing material produced before this court by the plaintiff to disbelieve the said report of the D.W.2. Normally, after a fire incident in a shop or a house, there would be debris of articles, but in the instant case, I find no debris of garments, furniture, etc., in the place of fire incident of the shop of plaintiff. Moreover, there is no case from the side of plaintiff that after the fire incident all debris have been washed away after heavy shower or flood. Non-finding of any debris of garments or furniture, etc., by the D.W.2 after 4/5 days of fire incident in the gutted down garment shop of plaintiff creating a doubt in the mind of this court to accept the claim of plaintiff that due to said fire incident, the garments, furniture, etc., of her shop were damaged. Interestingly, the Surveyor did not find the debris of racks, showcase, fans, garments, etc., in the shop of plaintiff after the fire incident, during his inspection for which the defendants vide Exbt. A informed the plaintiff that her claim has been treated as "No claim". Interestingly, the Surveyor did not find the debris of racks, showcase, fans, garments, etc., in the shop of plaintiff after the fire incident, during his inspection for which the defendants vide Exbt. A informed the plaintiff that her claim has been treated as "No claim". Since the plaintiff has failed to prove in relation to particulars of damage of articles, its quantity and cost as mentioned in the schedule of the plaint due to said fire incident in her garments shop, I am of the view that the damage in question shown in the schedule of plaint is not covered by the insurance policy. So, this issue is answered in negative." 7. Learned trial court below, in view of the above observation, dismissed the suit and rejected the claim of the plaintiff-respondent. The plaintiff-respondent carried it to the learned appellate court by filing appeal, wherein the appellate' court by its judgment and decree as aforesaid reversed the decision of the learned trial court and awarded the relief claimed by the plaintiff-respondent. It would be pertinent to discuss herein the analysis made by the learned appellate court in reversing the decision of the learned trial court in respect of findings relating to not of any debris by the Surveyor after the fire incident. The relevant extracts of the discussions and the appreciation of evidence made by the learned appellate court on the report of the surveyor relating to the absence of debris in the site of the fire incident are worth quoting herein below : "From Exbt.4 it further reveals that the category of fire that occurred in the shop of the appellant was major and that due to the fire- the stock of clothes including its furniture and documents inside the shop were totally damaged. It is quiet obvious that after the incident of fire, Fire Brigade personnel rushed to the spot and extinguished the fire by pouring water. All sorts of fire fighting instruments might have been applied by the fire brigade personnel to extinguish the devastating fire which had occurred in the market. Due to the fire fighting operation the debris in the shop of the appellant might have been cleared. The surveyor of the defendants had conducted the survey admittedly after 5 days of the incident of fire and not immediately. Due to the fire fighting operation the debris in the shop of the appellant might have been cleared. The surveyor of the defendants had conducted the survey admittedly after 5 days of the incident of fire and not immediately. It does not reveal from the evidence on record that the market area which was gutted by the fire was under police guard. So the chances of removal of debris from the shop of the appellant by miscreants cannot also be ruled out. Moreover before conducting the survey notice had not been issued to the appellant. The survey report, (Exbt. A) also does not indicate as to who had identified the shop of the appellant to the surveyor nor does it disclose in whose presence the survey was done. From the survey report it reveals that at the time of survey some photographs were taken in respect of the shop of the appellant but the respondents have not submitted those photographs along with the survey report. Withholding of the photographs also create doubt about the sanctity of the survey report (Exbt. A.). Since the Surveyor had conducted the survey behind the back of the appellant and since the survey was done 5 days after the fire incident and that when the shop was in abandoned condition, the report of the surveyor is hardly to be relied upon." 8. Mr. Bhattacharjee, learned counsel for the defendant-appellant has strenuously submitted that the absence of debris at the place of occurrence, where the fire incident took place, is a clear indication of the fact that there were no garments in the shop house, when the shop was gutted by fire. Learned counsel for the defendant-appellant has pointed out that the learned appellate court misconstrued the law by rejecting the report of the surveyor, because the surveyor specifically reported that no debris were found in the place, where the fire incident took place. Learned counsel for the defendant-appellant further pointed out that the teamed appellate court assessed the loss caused to the plaintiff-respondent, basing only of the report of the Divisional Fire Officer, which is based on the statement of the plaintiff-respondent without verification. Learned counsel for the defendant-appellant further pointed out that the impugned judgment and decree, passed by the learned appellate court, is based on surmises and conjectures. 9. On the other hand, Mr. Learned counsel for the defendant-appellant further pointed out that the impugned judgment and decree, passed by the learned appellate court, is based on surmises and conjectures. 9. On the other hand, Mr. Somik Deb, learned counsel for the plaintiff-respondent has pointed out that the learned appellate court has distinguished the shortcomings made by the learned trial court, while appreciating the report and the evidence given by the surveyor in the suit. Learned counsel for the plaintiff-respondent has submitted that the grounds set up by the defendant-appellant, are merely grounds for preferring an appeal, and these grounds can not be treated to be substantial questions of law to be decided in a second appeal. 10. On careful consideration of the rival contentions made by the learned counsel appearing for the parties, it, appears that 1 he appellate court observed and appreciated that delay of five days in making the survey by the surveyor appointed by defendant-appellant/Insurance Company without notice whatsoever, to the plaintiff-respondent before conducting the survey cuts at the root of the report of the surveyor. Furthermore, learned appellate court observed that, the surveyor did not submit the photographs, which were taken in respect of the shop house of the plaintiff-respondent at the time of preparation of the survey report and finally the survey report prepared on the direction of the defendant-appellant was submitted on 28.3.2007 after nearly one year from the date of the incident. Learned appellate court has also reflected the above factors coupled with withholding of the photographs created a suspicion regarding the sanctity of the survey report of the surveyor engages by the appellant Insurance Company. The report of the surveyor has to be treated as a piece of evidence, which is subject to rejection by a court of law after due appreciation. Therefore, rejection of report of the surveyor by the appellate court on due appreciation cannot be deemed to be misunderstanding of the law by the appellate court. 11. While deciding the second appeal by exercising jurisdiction under section 100, CPC this court cannot proceed to re-appreciate the evidence in the absence of substantial question of law and cannot set aside the findings of the subordinate courts by re-appreciating the evidence. 12. 11. While deciding the second appeal by exercising jurisdiction under section 100, CPC this court cannot proceed to re-appreciate the evidence in the absence of substantial question of law and cannot set aside the findings of the subordinate courts by re-appreciating the evidence. 12. There must be first a foundation for the substantial question of law in pleading and secondly the question to be considered in the second appeal should be the substantial question of law merged from substantial findings of fact arrived at by the court of fact and thirdly it must be necessary to decide that question of law for a just and proper decision of the case. The High Court, in the absence of substantial question of law that arose for consideration between the parties in the second appeal, cannot interfere with the findings of the first appellate court by taking different view on re-appreciation of evidence. 13. Since the appellate court only appreciated the evidence of a witness on facts, I am, therefore, of the definite view that in such circumstance, this court cannot re-appreciate the evidence and scrutinize the findings recorded by the appellate court under section 100, CPC. The High Court, it is well settled, while exercising jurisdiction under section 100, CPC, cannot reverse the findings of the lower appellate court on facts, merely on the ground that on the facts found by the lower appellate court another view was possible. 14. On careful analysis of the materials on records, it appears that there is no substantial question of law to be decided in connection with this second appeal and the substantial question of law projected on behalf of the defendant-appellant, appears to be on the question of fact decided by the learned appellate court. On careful analysis of the discussions made by the learned appellate court, it appears that there is no perversity in the finding of the learned court below on facts, warranting interference in the second appeal. 15. Keeping in view of the pleaded case of both the parties, the court is of the considered view that the appellant-plaintiff cannot succeed his case basing on appreciation of evidence. Over and above, the appellant-plaintiff had utterly failed to persuade this court for interference with the finding of facts by the 1st appellate court. 16. 15. Keeping in view of the pleaded case of both the parties, the court is of the considered view that the appellant-plaintiff cannot succeed his case basing on appreciation of evidence. Over and above, the appellant-plaintiff had utterly failed to persuade this court for interference with the finding of facts by the 1st appellate court. 16. For the reasons discussed above, it is further held that there is no substantial question of law as contemplated in section 100 of the CPC, which call for decision, by this court in the present second appeal. The appeal is devoid of merit. Accordingly, the same is dismissed at the admission stage.