Punjab-Haryana High Court
Oriental Insurance Company Ltd vs Raj Pal Son Of Sh. Swaran Singh on 13 October, 2009
RSA No. 1439 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 1439 of 2008
Date of Decision: 13.10.09
Oriental Insurance Company Ltd., through its Regional
Manager, SCO No. 109-111, Sector 17-D, Chandigarh.
... Appellant
Versus
Raj Pal son of Sh. Swaran Singh, resident of Mehanmati,
Tehsil and District Karnal.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Ashwani Talwar, Advocate,
for the appellant.
Mr. Vikram Singh, Advocate,
for the respondent.
SHAM SUNDER, J.
**** This appeal, is directed, against the judgment and decree, dated 30.01.08, rendered by the Additional District Judge (Fast Track Court), Karnal, vide which, he accepted the appeal, against the judgement and decree, dated 20.07.06, rendered by the Court of Additional Civil Judge (Senior Division), Karnal, and decreed the suit of the plaintiff /respondent.
2. Raj Pal, plaintiff/respondent, purchased TATA Sumo vehicle, from Metro Motors Ambala Cantt., for a sum of Rs. 3,48,000/-, and borrowed an amount of Rs. 1,75,000/-, as a loan, RSA No. 1439 of 2008 2 from Canara Bank Branch, Bara Gaon. The vehicle was registered in the name of the plaintiff, and insured by the appellant/respondent, from 05.03.97 to 04.03.98, after paying a premium of Rs. 10,051/-. It was stated that, on 06.10.97, the aforesaid vehicle, was on its way, from Rishikesh to Mehanmati, being driven by Rattan Singh son of Daulat Ram. It was further stated that when its driver halted, at village Ram Kalan, at about 7.50 PM, on a roadside Dhaba, for having meals, three persons alongwith two ladies having a child, requested him for a lift upto Haridwar, to which, he agreed. It was further stated that the hitch-hikers offered some intoxicating substance, to Rattan Singh, driver of the vehicle, as a result whereof, he felt giddiness, and, thereafter, they took away the vehicle. Thereafter, FIR No. 78/97 dated 14.10.97, under Sections 328, 379 and 406 of the Indian Penal Code, was got registered. It was further stated that the claim, on the basis of the insurance policy, was made, by the plaintiff, with the defendant. It was further stated that the vehicle, in question, could not be found, by the Police, as a result whereof, an untraced report, was submitted, by the Station House Officer, Police Station Shampur, District Haridwar, on 16.12.97. The defendant, was many a time, asked to admit the claim of the plaintiff, but to no avail. Ultimately, a suit for declaration with consequential relief for mandatory injunction, or in the alternative for recovery, was filed.
3. None appeared, on behalf of the defendant, despite due service, as a result whereof, it was proceeded against exparte on RSA No. 1439 of 2008 3 16.11.2000.
4. After hearing the Counsel for the plaintiff/respondent, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff.
5. Feeling aggrieved, an appeal was preferred, by the plaintiff/respondent, which was accepted, by the Additional District Judge (Fast Track Court), Karnal, vide judgment and decree dated 30.01.08.
6. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant.
7. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellant, submitted that the respondent, failed to prove, on record, that he was the registered owner of the vehicle, bearing registration No. HR-07-B-9588. He further submitted that, no doubt, it was admitted that, the vehicle, in question, was insured with the appellant. He further submitted that the first Appellate Court, was wrong, in decreeing the claim of the plaintiff/respondent, in toto, without calculating the depreciation. He further submitted that, even the interest awarded @ 18% per annum, was on the higher side. He further submitted that the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, that the plaintiff, was the registered owner of the vehicle, in question, and was entitled to the claim. He further RSA No. 1439 of 2008 4 submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside.
9. On the other hand, the Counsel for the respondent, submitted that, in the first Appellate Court, an application, for additional evidence, was moved, and the registration certificate, was produced and proved. He further submitted that the first Appellate Court, thus, rightly held, that the plaintiff/respondent, was the registered owner of the vehicle, in question. He further submitted that, no plea, with regard to the depreciation, was taken up, by the defendant/appellant, in the written statement, and the Court, was right, in granting the decree for the whole amount claimed. He further submitted that the interest awarded by the first Appellate Court, also could not be said to be on the higher side.
10. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, with some modification, for the reasons to be recorded, hereinafter. It is settled principle of law, that this Court, cannot interfere with the findings of fact, recorded by the first Appellate Court, until and unless, it comes to the conclusion, that the same, were perverse, on account of misreading or misappreciation of evidence. The plaintiff/respondent, moved an application under Order 41 Rule 27 of the Code of Civil Procedure, in the first Appellate Court, for additional evidence, for producing and proving the registration certificate of the vehicle, in question. He RSA No. 1439 of 2008 5 produced and proved the registration certificate. The first Appellate Court, was, thus, right in holding, that the plaintiff/respondent, was the registered owner of the vehicle, in question, which was fully insured. It is also evident, from the judgement of the first Appellate Court, that the vehicle, in question, was not being plied, in violation of the terms and conditions of the insurance policy. The first Appellate Court, was also right, in holding that, the vehicle, was snatched by some miscreants. The first Appellate Court, was, thus, right in holding, that the plaintiff, was entitled to the amount of Rs. 3,48,000/-, for which, the car, was purchased, and which was snatched, by the miscreants, as the same, was insured. The first Appellate Court, was, however, wrong in granting interest @ 18% per annum, which was highly excessive. The findings of the first Appellate Court, to this extent require modification.
11. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, subject to the modification of rate of interest, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgment and decree of the first Appellate Court, are, thus, liable to be upheld subject to the aforesaid modification. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court.
13. For the reasons recorded above, the instant Regular Second RSA No. 1439 of 2008 6 Appeal, being devoid of merit, must fail, and the same is dismissed with costs, with the modification, that the plaintiff/respondent, is held entitled to the amount of Rs. 3,48,000/- with interest @ 8% per annum, from the date, it became due, until the passing of the decree, and at the rate of 6% per annum, after the passing of decree, till the realization of the amount, on the principal amount.
13.10.2009 (SHAM SUNDER) Amodh JUDGE