IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Tapan Kumar Dutt
F.A. No. 244 of 2005
The Oriental Insurance Company Limited
Versus
Khadi-O-Gramin Shilpa Samity
For the Insurance Company: Mr. Indranath Mukherjee. For the respondent/Opposite Party: Mr. Partha Pratim Roy. Heard on: 12.05.2009 & 14.05.2009.
Judgment on: 12th June, 2009.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of the defendant in a suit for recovery of money and is directed against the judgment and decree dated 26th April, 2004, passed by the learned Civil Judge, Senior Division, Berhampore, District- Murshidabad, in Money Suit No.14 of 1993, thereby passing a decree for recovery of Rs.2,98,397/- against the defendant/Insurance Company. Being dissatisfied, the defendant/Insurance Company has come up with the present first appeal.
The plaintiff/respondent before us filed in the Court of the learned Assistant District Judge, Berhampore, a suit being Money Suit No.14 of 1993 thereby praying for recovery of Rs.3,35,759.44p. and the case made out by the plaintiff/respondent may be summed up thus:
a) The plaintiff carried on business of manufacturing and wholesale of Silk Khadi Fabrics duly certified by Khadi V.I. Commission having its registered office within the jurisdiction of the Court.
b) The plaintiff had seven branches including the one at Chak Islampore under P.S. Raninagar for carrying on business of manufacturing and wholesale of Silk Khadi Fabrics.
c) The branch of the plaintiff at Chak Islampore, was also used as Central Office-cum-Godown Production Centre up to the first part of the year 1989 and accordingly, huge stock of the organisation was kept therein and for above reason, the stock-in-trade of the plaintiff at the said Branch was covered under Insurance Policy No.311373/2/161/MIS/1540/88(BP) covering the risks of burglary with the defendant for the period from 9th June, 1988 to 8th June, 1989 for Rs.4,10,000/- and the premium payable was Rs.2,074/- for the said period and thereafter, a sum of Rs.2,460/- for the year 1989-90, a sum of Rs.3,000/- for the year 1991-92, a sum of Rs.2,936/- for the year 1991-92 and a sum of Rs.2,921/- for the year 1992-93.
d) On the night of 4th March, 1989 some unknown criminals committed theft and got cloths, silk sarees, matka etc. from the room and godown of the plaintiff by breaking locks of the gate and the room valued at more than Rs.3 lakh and accordingly, an F.I.R. was lodged at Raninagar P.S. and on that basis, Raninagar P.S. Case No.28 of 1989 dated 3rd April, 1989 under Section 461/379 of the Indian Penal Code was started. e) During investigation, the investigating agency visited the spot, examined the witnesses and seized some stolen property which were left behind by the miscreants but in spite of all possible attempt failed to recover the stolen cloths and to apprehend the real miscreants and ultimately F.R.T. was submitted by the Investigating Officer and the same was accepted by the Court.
f) The plaintiff lodged the claim with the defendant on 6th March, 1989 under the prescribed form in terms of the insurance policy a sum of Rs.3,50,759.44p. One Sri S.R. Pagaria, the Insurance Surveyor and Assessor, surveyed the entire matter and collected papers from the plaintiff from time to time.
g) In spite of compliance of all the requirements of the surveyor, no action was taken by the defendant for final settlement of the claim of the plaintiff. h) The plaintiff on different dates asked the defendant to make final settlement of the claim both verbally and also in writing, but the defendant after a long silence on 21st February, 1991 sent a copy of the letter, addressed to the surveyor, to the plaintiff by which the defendant asked the surveyor to submit report.
i) Thereafter the defendant appointed one Sri Dulal Ghatak as Investigator from the local Branch Office for the claim lodged by the plaintiff and the plaintiff accordingly supplied all papers to the said investigator as required. j) The defendant again appointed Sri Bibhuti Chakraborty as Investigator from Regional Office to investigate into the matter and intimated the same to the plaintiff on 4th June, 1992.
k) The plaintiff made all co-operations with Sri Bibhuti Chakraborty in course of investigation. Subsequently, the surveyor S.G. Pagaria submitted the report in due course and thereafter, Sri Dulal Ghatak also submitted the report but no action was taken by the defendant.
l) The plaintiff informed the entire matter to the defendant by letter dated 20th August, 1992 under registered post and the copy was forwarded to the Grievance Cell, Divisional Manager.
m) The Grievance Cell of the defendant company acknowledged the receipt of the letter in writing on 28th August, 1992 and also assured the plaintiff that the concerned office would be asked to expedite the matter. n) That after lapse of couple of days, the plaintiff again issued letter to the Chairman-cum-Managing Director of the defendant/company on 17th September, 1992 under registered post.
o) The plaintiff got a letter from the defendant dated 11th February, 1993 repudiating the claim of the plaintiff on baseless reasons. The defendant, in terms of the policy, is under obligation to pay the amount claimed by the plaintiff and accordingly, the plaintiff claimed Rs.3,50,759.44p. from the defendant for the articles, but as the articles seized by the police, as stated above, was of the value of Rs.15,000/-, the plaintiff is entitled to Rs.3,35,759.44p. from the defendant for which the suit was filed. The suit was contested by the defendant by filing written statement thereby denying the materials allegations made in the plaint and the defence of the defendant may be summed up thus:
1) The suit was not maintainable and was barred by limitation. 2) It was denied that there was any theft in the godown of the plaintiff on 4th March, 1989 or that articles valued more than Rs.3 lakh was removed from the plaintiff's godown. The F.I.R. lodged by the plaintiff was baseless. 3) The plaintiff initially informed the defendant about the alleged theft and the value of the stolen articles was stated to be the sum of Rs.3,26,000/- but subsequently, on 7th March, 1989 the plaintiff filed a claim-form with a list of stolen property and the value thereof was given as Rs.3,38,145/-. From the date of lodging the F.I.R. till the date of filing the claim-form, the value of stolen articles was described differently but no document was ever produced in support of the claim.
4) The plaintiff did not keep any stock register or any other document of the stock. So, the police could not prepare any inventory list of the actual stock which remained after burglary.
5) From the enquiry, it was found that just after the alleged burglary, some articles were removed by the plaintiff from the godown before arrival of the police and it was also found that Sri Ashok Kumar Dutta, the alleged Secretary of the plaintiff, had removed a few bundles of matka, khata, than and other silk cloths from the plaintiff's business on 4th March, 1989. 6) As per terms of the policy, it is duty of the plaintiff to appoint night guard for watching the godown and also to make proper protection of the articles by fixing wooden or iron doors, windows and other openings under lock and key. There is also a direction of the policy that just after any burglary, written statement in writing of the loss of damage with an estimated value of each article lost and the amount of damage sustained with documentary and other evidences must be given to the defendant.
7) After getting information of the alleged theft from the plaintiff, the defendant started investigation through their surveyor and independent investigator. The surveyor and investigator did their job separately and at the time of investigation, the plaintiff did not make any co-operation with the surveyor and investigator and did not produce the relevant documents which were required for the purpose of investigation. 8) However, the surveyor and the investigator investigated the matter with full care and from all corners and the report was submitted by the surveyor and the investigator to the defendant and after considering their report and other information, the defendant came to the conclusion that no proper enquiry was made by the plaintiff in accordance with law and the plaintiff had furnished different list of alleged stolen property at different times and they had furnished false statement of stolen property with the inflated value of goods allegedly stolen.
9) The statement that Sri S.G. Pagaria and Sri Dulal Ghatak submitted the report and the report were not considered by the defendant are not true. The defendant considered all the reports submitted by their authorised surveyor and for better investigation, thereafter engaged Sri B. B. Chakraborty to investigate the whole thing. The price of the goods as mentioned in the schedule of the plaint was not the then market price and the price was an excessive and inflated one.
10) The plaintiff did not comply with the terms and conditions of the policy and thus was not entitled to get any compensation.
At the time of hearing of the suit, Asoke Kumar Dutta, the Secretary of the plaintiff, gave evidence in support of the plaint case while one Swapan Kumar Mukherjee, the Branch Manager of the appellant of the Berhampore Branch, alone deposed on behalf of the Insurance Company.
The learned Trial Judge, as indicated earlier, by the judgment and decree impugned herein decreed the suit in part thereby awarding a sum of Rs.2,98,397/- as compensation payable to the plaintiff for the loss suffered by it. Being dissatisfied, the defendant has come up with the present appeal. After hearing the learned counsel for the parties and after going through the materials on record, we find that there is no dispute that the plaintiff had a valid insurance against theft and burglary for a sum of Rs.4,10,000/- at the relevant point of time. The sole witness for the defendant has admitted in his evidence that there was a theft at the office of the plaintiff on March 4, 1989. It appears that the plaintiff claimed that the total loss due to the theft was Rs.3,50,759.44p. but as the police recovered a part of the stolen property worth Rs.15,000/- and returned those to the plaintiff, it claimed a sum of Rs.3,35,759.44p. as compensation after deducting the said amount of Rs.15,000/-.
It appears from the evidence of the D.W.1, that after the theft, the defendant appointed one Sri Pagaria as the surveyor and the investigator who submitted a report after investigation pointing out that the loss suffered by the plaintiff was to the extent of Rs.2,98,397/-. The defendant appointed another surveyor viz. Sri Ghatak who also submitted his report after investigation but the defendant, for the reason best known to it, decided not to produce those two reports. It appears that the defendant subsequently appointed one Sri Chakraborty as the investigator who allegedly submitted a report pointing out that the contents of the report of Sri Pagaria and Sri Ghatak were erroneous and that the plaintiff failed to substantiate any loss due to the alleged theft. Such report has been produced by the D.W.1 by proving the handwriting of Sri Chakraborty but neither Sri Pagaria, nor Sri Ghatak nor Sri Chakraborty was produced as a witness to face cross-examination by the plaintiff nor has the defendant given any explanation for such non-examination. The learned Trial Judge, in such circumstances, held that the plaintiff should get a decree of Rs.2,98,397/- assessed by Sri Pagaria, the surveyor of the defendant itself. The learned Trial Judge refused to take into consideration the report of Sri Chakraborty as he did not face the cross-examination of the plaintiff.
Mr. Mukherjee, the learned counsel appearing on behalf of the appellant, strenuously contended before us that the learned Trial Judge erred in law in passing a decree in favour of the plaintiff although the plaintiff failed to prove that it had fulfilled all the conditions of the policy of the insurance. Mr. Mukherjee contends that the one of the conditions of the policy is that the plaintiff must take proper step for protection of the goods stolen and at the same time, it must be established that none of the employees of the plaintiff was in anyway connected with the alleged theft. Mr. Mukherjee contends that in this case, the plaintiff started a criminal case against its own employee indicating that he was involved in the theft in question and thus, the learned Trial Judge erred in law in passing a decree. Moreover, according to Mr. Mukherjee, the plaintiff could not prove the actual amount of loss suffered even if we accept for the sake of argument that there was really any theft. He, therefore, prays for dismissal of the suit.
Mr. Roy, the learned advocate appearing on behalf of the defendant, on the other hand, has supported the judgment and decree passed by the learned Trial Judge and has prayed for dismissal of the appeal. The only question that arises for determination in this appeal is whether the plaintiff was successful in proving the theft and the consequential loss and that the claim was covered by the policy.
We have already pointed out that it has been established from Exbt-2 that there was a valid policy against theft and burglary at the relevant point of time and such fact has been corroborated by the act of the defendant in appointing three successive surveyors and investigators over the same incident one after the other. It appears that the plaintiff lodged complaint before the police and the police on investigation started a case against suspected persons including an employee of the plaintiff but the said employee was acquitted. Thus, it has not been established that the said employee was in anyway involved. The D.W.1 himself has admitted in cross-examination that there was a theft in the office-cum-godown of the plaintiff. If further appears that the police recovered a part of the stolen goods amounting to Rs.15,000/- and as such, the plaintiff deducted that amount from the total amount initially claimed. The stock register and all other documents showing the existence of the articles in the godown at the time of the theft has been proved and no evidence showing that those documents were manufactured by the plaintiff was given by the defendant. Even the sole witness for the defendant admitted that he had no personal knowledge about the actual loss. In such circumstances, we do not find any reason to disbelieve the documents proved by the plaintiff showing the articles those were stolen.
The D.W.1 himself admitted in his evidence that their own surveyor viz. Sri Pagaria gave report that the loss suffered by the plaintiff was to the extent of Rs.2,98,397/- and the learned Trial Judge has restricted the decree to that amount. The plaintiff has not filed any appeal or cross-objection against such decree. We, therefore, find that the surveyor appointed by the defendant himself having ascertained the said loss, the defendant itself cannot assail such finding without leading any convincing evidence to show that the said report is wrong. Mr. Mukherjee, in this connection, vehemently contended that the learned Trial Judge ought to have relied upon Exbt-A, the report given by Sri Chakrabory, and held that the report submitted by Sri Pagaria could not be accepted for the reason assigned by Sri Chakraborty.
In our view, the contents of Exbt-A, based on alleged investigation by Sri Chakraborty, are worst pieces of hearsay evidence unless Sri Chakraborty appears in the witness box to substantiate the basis of such report. The basis of such report is founded on some disputed questions of fact and as such, before accepting the conclusion arrived at by Sri Chakraborty as true and in applying the same against the plaintiff, an opportunity to cross-examine Sri Chakraborty must be given to the plaintiff so that the plaintiff may get a chance to show that Sri Chakraborty in fact did not make any proper investigation at all or that the said report is based on mendacious statements. By proving mere signature of Sri Chakraborty all that was proved was that he gave such a report; but by that process, the contents of the report is not proved.
We, therefore, find that the learned Trial Judge rightly ignored the contents of Exbt-A in the absence of examination of the author of such document.
We further find that the appellant without just reason suppressed the reports given by Sri Pagaria and Sri Ghatak who were appointed by the appellant, who investigated the claim of the respondent and gave report. If all the three reports were exhibited by calling the authors thereof as witnesses by the defendant, the Court would have the opportunity of considering the findings of the investigation done even at the instance of the appellant. Be that as it may, the appellant could not place any material showing ineligibility of the plaintiff to get compensation for the alleged non-compliance of the terms of the policy when the factum of theft has been well established. Since no appeal or cross-objection has been filed by the plaintiff against the decree passed by the learned Trial Judge accepting the compensation assessed by assessor appointed by the defendant, within the limited scope of this appeal we do not find any reason to upset the ultimate decree passed in favour of the plaintiff. On consideration of the materials on record, we thus find no reason to differ with the findings recorded by the learned Trial Judge and consequently, dismiss this appeal with costs which we assess at 300 Gms. (Bhaskar Bhattacharya, J.)
I agree.
(Tapan Kumar Dutt, J.)
