M/s G.M.P. Finishing Mill & Anr. v. United India Insurance Co. Ltd

Hon'ble Mr. Justice L.N. Mittal Present : Mr. V.K. Sandhir, Advocate, for the appellants L.N. Mittal, J. (Oral) This is second appeal by plaintiffs having remained unsuccessful in both the courts below. Plaintiffs filed suit against United India Insurance Co. Ltd. seeking declaration that respondent-defendant is bound to meet loss suffered by the plaintiffs/appellants for their Generator Set of 125 KVA capacity as intimated to defendant vide letter dated 26.8.2002 with reference to insurance policy which was valid from 28.6.2002 to 27.6.2003 and mere mentioning of wrong policy number in the said request was bonafide and typographical error. The plaintiffs also sought mandatory injunction directing defendant to finalise the insurance claim of the plaintiffs. It is undisputed that the plaintiffs had obtained insurance of their Generator Set from the respondent-defendant. The Generator Set went Regular Second Appeal No. 3323 of 2009 -2- out of order and the plaintiffs lodged claim with defendant vide letter dated

26.8.2002. The plaintiff's case is that their claim was covered by the insurance policy but the claim has been rejected. It was alleged that due to inadvertence and bonafide mistake wrong policy number was mentioned in the claim letter. The defendant vide letter dated 18.3.2003 intimated the plaintiffs that their claim was not covered by the insurance policy and thus, the claim was rejected. The stand of the defendant in the written statement is that claim of the plaintiffs was not covered by the insurance policy as the Generator Set was not working on account of natural wear and tear. Learned Civil Judge (Junior Division), Amritsar vide judgment and decree dated 30.5.2007 dismissed the suit. First appeal preferred by the plaintiffs stands dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 2.3.2009. Feeling aggrieved, the plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that Surjan Singh DW2 who was appointed as Surveyor by the defendant- respondent-Insurance Company was not an expert in the field of Generator Set and therefore, his report that the Generator Set was not working on account of natural wear and tear could not be accepted. The contention is devoid of any substance. Plaintiff's own witness Arun Behl PW2 stated in cross-examination that he could not tell if the Generator Set had gone out of order due to wear and tear. It is undisputed that if the Generator Set went out of order on account of wear and tear, respondent-Insurance Regular Second Appeal No. 3323 of 2009 -3- Company was not required to pay the claim of the plaintiffs. On the other hand, defendant examined Surjan Singh DW2 who submitted his report dated 17.2.2003 Ex. DW2/B stating that the Generator Set had gone out of order on account of natural wear and tear and therefore, the claim made by the plaintiffs was not covered by the insurance policy. The said evidence of the defendant stands un-rebutted. In fact statement of Arun Behl PW2 corroborates the defendant's version. The contention that Surjan Singh was not an expert has no merit because he has stated that he had obtained degree of Engineering from Indian Navy. Merely because he had not brought his Engineering degree, it cannot be said that he was not an expert witness. On the other hand, he also stated that he had experience of 32 years and therefore, for this reason as well his report cannot be discarded particularly because his report and statement stand un-rebutted. The plaintiffs have not led any evidence to depict that Generator Set had not gone out of order on account of natural wear and tear. The defendant's evidence that Generator Set had gone out of order on account of natural wear and tear thus stands un-rebutted. In addition to the aforesaid, report of Surjan Singh DW2 reveals that he visited the plaintiffs on 30.8.2002 and asked plaintiffs to produce cover note and pre-inspection report of the Generator Set but the plaintiffs told that the same were not available. Surjan Singh gave claim form to the plaintiffs but the same was returned blank after signing it and Surjan Singh was told that he himself should fill in the claim form. Again on 14.9.2002 Surjan Singh went to the plaintiffs and gave a reminder for submission of claim form duly filled in, estimate and particulars of the repairer, but the needful was not done by the plaintiffs. A second reminder Regular Second Appeal No. 3323 of 2009 -4- dated 12.10.2002 was given by Surveyor Surjan Singh to the plaintiffs to submit the aforesaid documents and some other documents but in spite thereof, the plaintiffs did not submit the requisite documents. The Surveyor waited till 17.2.2003 when he submitted his report Ex. DW2/B to defendant- Insurance Company. Thus, for more than five months since 30.8.2002 till

17.2.2003, the plaintiffs failed to submit the requisite documents and consequently no fault can be found with the defendant in rejecting claim of the plaintiffs. Learned counsel for the appellants vehemently contended that Surjan Singh in his deposition in the court referred to report dated 27.2.2003 submitted by him to the Insurance company but the said report has not seen the light of the day and on the other hand report dated 17.2.2003 has been produced in evidence. The contention is bereft of any material because it is only clerical error. Both the courts below have appreciated the evidence and non- suited the plaintiffs. The concurrent finding recorded by the courts below against the plaintiffs cannot be said to be perverse or illegal so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is completely without any merit and is accordingly dismissed in limine. June 28, 2010 'dalbir' ( L.N. Mittal ) Judge