Karnataka High Court
National Insurance Company Limited vs M/S Tata Elxsi Limited on 24 January, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.2232 OF 2017 (GM-CPC)
BETWEEN:
NATIONAL INSURANCE COMPANY
LIMITED
Bengaluru Regional Office,
2nd Floor, Subharam Complex,
No.144, M.G.Road,
Bengaluru - 560 001.
Represented by its Manager. ... PETITIONER
(BY Sri. C. M. Poonacha, ADV.)
AND:
M/s. TATA ELXSI LIMITED
Having its Registered Office
At ITBP Road, Whitefield,
Bengaluru - 560 048.
Represented by its General Manager,
Administration & Legal
Mr. S. Pandu Rao. ... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 06.12.2016 PASSED IN O.S.NO.
25846/2012 BY THE COURT OF XIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, MAYOHALL UNIT, BANGALORE VIDE
ANNEXURE-A IN SO FAR AS IT RELATES TO DISMISSING THE
APPLICATION OF THE PETITIONER WITH RESPECT TO
ADDITIONAL ISSUE NO.1 TO 3 AND TO ALLOW I.A. DATED
11.04.2016 FILED BY THE PETITIONER/ DEFENDANT NO.2 IN
O.S.25846/2012 PENDING ON THE FILE OF THE COURT OF
XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT, BANGALORE AT ANNEXURE-E.
2
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner herein is defendant No.2 in O.S.No.25846/2012 which has been filed by the respondent/plaintiff seeking recovery of certain sums of money on the basis of a contract of indemnity said to be in existence between the parties.
2. After filing of the written statement, the Trial Court framed the following issues on 02.01.2014 which read as hereunder:-
ISSUES "1. Whether the plaintiff proves that it has a valid insurance policy with the defendants?
2. Whether the plaintiff proves that defendants are liable to pay an amount of Rs.5,41,57,808-00?
3. Whether the plaintiff proves that defendants are liable to indemnity the plaintiff for the accounts recovered by M/s. Hella KGAA Hueck & Co.?3
4. Whether the plaintiff is entitled for interest at the rate of 18% per annum?
5. Whether the plaintiff is entitled for the reliefs sought for?
6. What order or decree?"
3. Thereafter, the defendants filed an application under Order XIV, Rule 5 of Code of Civil Procedure, 1908 (CPC) seeking the following additional issues be framed, which read as hereunder:-
Proposed additional issues:
"1. Whether the plaintiff proves that as per the terms of agreement between it and M/s. Hella KGaA Hueck & Co., the plaintiff was legally liable to pay the claim of 800,000 € claimed by M/s. Hella KGaA Hueck & Co? If so, whether the said sum of 800,000 € was actually paid to M/s. Hella KGaA Hueck & Co by the plaintiff/deducted by M/s. Hella KGaA Hueck & Co from the plaintiff.
2. Whether the plaintiff proves that the damages suffered by it is to the tune of 800,000 €?4
3. Whether the plaintiff proves that it was legally obligated to pay towards any negligent acts / errors / omissions committed by it to M/s.Hella KGaA Hueck & Co so as to entitle it to claim the suit claim amount from the defendant in terms of the policy of insurance.
4. Whether the defendant proves that it is entitled to repudiate the policy of insurance, having regard to the fact that the plaintiff did not reveal a possibility of a claim for damages from the existence of errors at the time of making the proposal to the defendant for issuance of the policy of insurance"
4. The Trial Court, by order dated 06.12.2016 has allowed only proposed additional issue No.4 to be raised as an issue and has held that proposed additional issue Nos.1 to 3 are not necessary to be raised for the purpose of adjudication of the suit. Being aggrieved by that order, defendant No.2 in the suit has preferred this writ petition.
5. I have heard learned counsel for petitioner and perused the material on record.
5
6. It is noted that the suit is based on a contract of indemnity. The respondent/plaintiff is seeking to be indemnified on the basis of that contract. If the respondent has to be indemnified and granted that relief, then, issue No.3 has been already raised by the Trial Court. In order to refute the claim of the respondent/plaintiff, defendants could take all contentions that would arise both on facts and in law in respect of issue No.3 only. However, the Trial Court raised an additional issue which is proposed additional issue No.4 i.e., with regard to repudiation of the policy and insurance and has cast the burden on the defendant. While holding that the proposed additional issue Nos.1 to 3 need not be raised, I find that the Trial Court was justified in holding so, as the burden of proving the case is on the plaintiff, if it is to be entitled to the relief sought by it, on the basis of the contract of insurance entered with the insurance company.
7. While proving issue No.3, necessarily, the plaintiff would have to let in evidence on proposed additional issues Nos.1 to 3 as they are nothing but aspects of issue No.3. It is only when the plaintiff produce any 6 material evidence with regard to its entitlement to be indemnified by the defendant, then only, the said issue could be answered in favour of the plaintiff. Therefore, it was unnecessary on the part of the defendants in the suit to seek proposed additional issue Nos.1 to 3 and thereby, cast a burden on the plaintiff to prove the said issues. The Trial Court, therefore rightly held that the said issues need not be raised independently. In my view, the said issues are aspects of issue No.3 already raised. The Trial Court has rightly raised an additional issue which is proposed additional issue No.4. Therefore, the Trial Court was justified in only partly allowing the application filed by the petitioner herein.
8. I do not find that the petitioner can have any further grievance in view of the observations made during the course of this order. Hence, the writ petition would not call for any further interference with the aforesaid observations, the Writ petition is disposed.
Sd/-
JUDGE ST