Delhi District Court
Smt. Saroj Suri vs United India Insurance Co. Ltd on 13 November, 2019
IN THE COURT OF SH. LAXMI KANT GAUR, ADDITIONAL
DISTRICT JUDGE, CENTRAL, TIS HAZARI COURTS, DELHI
CS No. 211 of 2017
Smt. Saroj Suri
Sole Proprietor
M/s Al Suri Frozen Foods
B33, Lawrence Road Industrial Area,
Delhi110035. .......PLAINTIFF
Versus
1.United India Insurance Co. Ltd.
Through its Manager, Branch Office, 25, Community Centre, Mayapuri PhaseIII, New Delhi110064.
2. United India Insurance Co. Ltd.
Through General Manager, Head Office, 24, Whites Road, Madras14.
3. Standard Surveyors Pvt. Ltd.
58/3, Ashok Nagar,
New Delhi110018. .....DEFENDANTS
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 1 of 64
Date of filing of the suit : 04.05.1987
Date of reserving judgment : 18.09.2019
Date of judgment : 13.11.2019
Suit for recovery of money
Judgment
Preliminary
1. By this Judgment I propose to decide the suit filed by the Plaintiff for the recovery of Rs.22,32,150/ with interest at the rate of 18% per annum.
In Brief
2. Plaintiff is a meat exporter. Defendant no. 1 is an Insurance Company (United India Insurance Co. Ltd.). Plaintiff had two insurance policies, one for brake down of machinery and the other for the meat stock. There was an accident at the cold storage as a result of it entire stock of meat got defrosted and meat became unfit for human consumption. Plaintiff lodged claim under both the policies. Surveyor (defendant No.3) gave three Reports. Two relating to the breakdown of machinery and third about the deterioration of the stock. Loss was assessed at CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 2 of 64 Rs.17,65,575/. Plaintiff accepted it, though the loss according to her was on the higher side. Defendant, however, on an anonymous complaint received, appointed one M/s J.N. Sharma & Co Charted Accountants to examine all the records related to the insurance claim of the plaintiff. At the end, it gave the report that the defendant has not fulfilled the obligations under the policy. Thus, no claim was awarded to the Plaintiff. As it appears the claim of Rs. 22,32,150/ includes Rs.17,65,575/ plus interest.
Case of the plaintiff
3. Like it has already been stated, Plaintiff is a meat exporter. She had taken a cold storage on rent at B33, Lawrence Road Industrial Area, Delhi from M/s Suri & Suri Pvt. Ltd. Though, the premises was that of M/s Suri & Suri Pvt. Ltd but all equipments and machinery was that of the Plaintiff. Since there was a huge quantity of meat which was required to be stored before it was transshipped abroad, on being approached by the Defendant No.1, she had taken two insurance policies i.e. "Machinery Breakdown Insurance Policy" and "Deterioration of Stock Policy" both of 27/04/1984, commencing from 27/07/1984 till 26/07/1985 and paid Rs.39,591/ as the premium for CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 3 of 64 both the parties.
4. Goods stored at all times were "stocks of fresh frozen veal/buffalo meat only". The deterioration policy contained the following particulars:
(i) Premium Rs.24,000/
(ii) Storage capacity Rs.160 MT
(iii) Policy No.040401/37A/1/00001
(iv) Average price at the time of Rs. 12.50 per Kg
storage plus storage charges (Frozen fresh Buffalo (agreed
rate as per policy) between
meat) the insured and insurance
company.
(iv) Insured value Rs.20 lacs
(v) Premises of the insured B33, Lawrence Road
Industrial Area, Delhi.
(a) Chamber No. 1 Rs.12.50 lacs
(b) Chamber No.2 Rs.7.50 lacs
__________
Rs.20.00 lacs
Machinery Breakdown Policy :
(i) Premium Rs.15,591/
(ii) Machinery List attached Rs.12 lacs
(iii) NO.040401/32/1/00020
(iv) Insured Sum Rs.12 lacs
(v) Premises of the insured B33, Lawrence Road
Industrial Area, Delhi.
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 4 of 64
5. There was an inspection carried out by the Animal Husbandry department of Delhi Administration for the grant of Veterinary Health Certificate. This was done at the request of the Defendant Insurance Company. It was also the condition of the policy. It was certified that there was 600 MT of fresh frozen meat in 8000 master cartons was stored in the chambers of cold storage and fit for human consumption. The certificate issued was valid for two years. This meat was to be shipped in two separate shipments. Therefore, there were two certificates also issued of the same date i.e. 01.12.1984 on the request of the plaintiff for frozen boneless meat, one for 5000 master export cartons and another of 3000 master export carton.
6. While issuing the policy interalia following five conditions were also imposed:
I. Temperature should not exceed 18 degree
Celsius.
II. A log book to be maintained by the insured in
the machine room as per proforma supplied by the Insurance Company to be regularly written containing the records of the temperatures on four hourly basis, 24 hours a day. Log books duly filled CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 5 of 64 up to be sent to the Company weekly.
III. Raw material, stocks, to be accepted by the
insured only on certification by the Delhi
Administration that the same is in a healthy
condition and free from bacteria by the concerned Department Administration authorities.
IV. Inspection Certificate granted by the Export Inspection Agency to be made available to the Defendant as and when required by the company during the entire period of the policy.
V. In case of accident to the machinery insured under machinery breakdown policy, the insured to inform the Defendantcompany immediately by telephone/telegram.
7. On 8/12/1984 an accident occurred due to the breakdown of the machinery. At 11:15PM machine operator had informed that Oil Circuit Breaker (OCB) had tripped and the entire plant and machinery compressors had stopped working. Plaintiff was staying on the second floor of the same building. She and Machine Operator tried to switch on the OCB entire night but it did not work.
8. At about 7 AM in the morning Sh. Dinesh Sikri Branch Manager of CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 6 of 64 Mayapuri Branch was informed on phone about the incident at his residence. He had himself visited the cold storage at 10.20 AM and inspected the stock. He was satisfied with the temperature and condition of the stock in both the chambers. He had inspected the OCB as well and advised to call an electrician. One Sh. Mahavir electrician of M/s Prem Electric works was called. He had discussed the entire issue with Sh. Sikri and told him that it would not be possible to open the OCB in live line. Mr. Sikri instructed the Plaintiff to get in touch with DESU for shutting down the line so that the OCB could be repaired. This fact was entered in the log book sheet No. 19981 dated 9/12/1984 and signed by Sh. Sikri. Accordingly, report was made to DESU in writing and it was recorded at CM105985. Finally, it was shut down at 7.15 PM. Electrician called to open the OCB. It transpired that for its repair some parts would be required to be replaced. But by this time market was closed. Finally, on the next day i.e. 10/12/1984 the broken parts could be replaced. A telegram was sent at 3.45 PM to the Insurance Company to inform the latest position. DESU was approached to restore the electricity connection. Plaintiff was asked to deposit a sum of Rs.300/ and Commercial OfficerI of DESU to CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 7 of 64 energise the supply after the payment of the said amount. Restoration, however, could not take place because by that time staff was not available. Finally, on the next day i.e. 11/12/1984 Rs.300/ was deposited and in the presence of Sh. Dinesh Sikri connection was restored at 11.30 AM. It was on his directions OCB was switched on and plant compressors were started. Things did not end here. After minutes of the starting of compressors one of the atmospheric ammonia condenser pipe busted and ammonia gas started leaking in huge quantity. Sh. Dinesh Sikri asked the Machine Operator to vacuum condensers but ammonia still kept leaking. It was not possible to weld the pipe immediately.
9. Sh. Dinesh Sikri phoned Mr Dhingra Divisional Manger and informed him of the situation. Mr. Dhingra advised to get in touch with one Mr. Taneja, a representative of the defendant No. 3 surveyor. Sh. Dinesh Sikri tried to contact him. But he was not found home. There was message left at his residence.
10.Mr. Taneja reached at about 8:00 PM. He asked the Machine Operator to vacuum the condensers continuously and weld the pipe. These instructions were written by Mr Taneja in writing in the log book. Mr CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 8 of 64 Taneja gave written orders to the Machine Operator to vacuum the condensers by sending hot ammonia into the chambers, chiller rooms, blast room and the plate freezer. As a result of this action the temperature in both the chambers shot up.
11.Mr. Taneja asked the Machine Operator to continue to carry on the process of vacuuming entire night and remove the burst pipe in his presence the next day. Accordingly, in the presence of Mr. Taneja on 12/12/1984 after removing burst pipe new pipe was welded. At 2.45 PM on the instruction of Mr Taneja air was again given to the condensers to check leakage. New pipe was vacuumed again. The leakage was plugged by welding. The entire work was over by 5 PM in the evening. Thereafter, air pressure of 190 LBs was given as it was approved by Mr Taneja. Finally, plant came to be in working order at 6 PM.
12.Thus, in essence Plaintiff states that the plaintiff was following the instructions of the Insurance Company and also the agent of the defendant i.e the surveyor, all this while.
13.The result was that during this period of time entire stock defrosted and became unfit for human consumption.
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 9 of 64
14.Under the insurance policy a claim was lodged in the prescribed form. The loss of deterioration was claimed at Rs.25.22 lacs and under machinery policy at Rs.2,500/.
15.On 18/12/1984 random samples were taken by the Animal Husbandry Department. It gave the report dated 27/12/1984 that the entire stock of about 160 MT had become unfit for human consumption. Public Analysis Food Laboratory Delhi Administration also confirmed it on the request of Mr. Taneja.
16.By a letter of 18/12/1984, MCD had asked the Plaintiff to destroy the stock within 24 hours. This direction was given after inspection by Zonal Health Officer, Karol Bagh Zone, Delhi.
17.Defendant No.3 Surveyor was appointed by the Defendant No.1 Insurance Company. On its instruction stock was destroyed. Like it has already been stated before, the loss assessed by the Defendant No.3 at Rs.17,65,575/. Since plaintiff was facing financial difficulty, she had given her consent, despite her reservation to it.
18.Subsequently, however, on an anonymous complaint defendant No. 1 had appointed a Charted Accountant M/s J.N. Sharma & Co. to look CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 10 of 64 into the books of account of the Plaintiff. According to the plaintiff, it was unnecessary and against the terms of the policy. It is stated that Plaintiff fully cooperated with him. All the books of accounts were shown to him. Reply to his letter dated 15/12/1986 had also been given. In his report, Charted Accountant had also gone on to make allegation against Mr. Dahiya, Assistant Research Officer, Animal Husbandry Department, which were later replied by him.
19.This was followed by sending of legal notice of the Plaintiff to the defendant no.1 but it was not replied to. Finally, Defendant No.1 had rejected the claim of the defendant vide its letter dated 4 th February, 1987.
Case of the defendant insurance company
20.Defendant No.1 has by and large denied all the allegation of the Plaintiff. According to the Defendant No.1, Plaintiff had not provided books of account and the relevant record to verify the allegations of the Plaintiff and that the plaintiff has committed breach of the terms and conditions of the policy and therefore claim of the Plaintiff was rejected.
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 11 of 64
21.It is stated that Plaintiff be put to strict proof if the goods mentioned were not of M/s Suri & Suri Pvt. Ltd. According to the defendant, it had been reliably learnt that a large quantity of goods of Suri & Suri Pvt. Ltd had been rejected. It is also alleged that Report dated 27/11/1984 of the Animal Husbandry was manipulated. It is evident from the fact that no shipment particulars had been mentioned on the Veterinary Health Certificate. On the other hand on the certificate, policy number and its particulars are mentioned which are of no relevance so far as the shipment is concerned. The policy which the Plaintiff had taken was not a marine policy and was not intended to cover any shipment. It is also stated that the Plaintiff could be put to strict proof if she had received any order of export.
22.Similarly, the certificate dated 1/12/1984 of Animal Husbandry Department for 3000 cartons and 5000 cartons are alleged to be manipulated. It is denied that they were signed by one Sh. Dinesh Sikri, Manager of the defendant insurance company.
23.All the allegation as to the tripping of OCB have been denied. It is denied that Sh. Sikri had inspected the stock (immediately after tripping). He had inspected the stock or verified the quantity and CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 12 of 64 quality of stock and satisfied with the temperatures and stocks in both the chambers. Defendant had denied the entire sequence of breakdown and repair and restarting of plant and also the involvement of Mr. Sikri in this entire process in any manner. It is also denied that Mr. Sikri had spoken to Divisional Manger Mr. Dhingra or Mr Dhingra advised services of Mr. Taneja being taken. The submissions made in respect of the involvement of Mr. Taneja have also not been admitted.
24.Though there is no denial to the lodging of claim but it is denied that it was at the request of the Defendant samples had been taken by the Animal Husbandry Department.
25.There is also no denial to the Defendant No. 3 being appointed as Surveyor by the defendant No.1, but it is added that Plaintiff be put to strict proof as to it having checked the stocks, books of account etc. It is further stated that the Defendant no. 1 had appointed M/s J N Sharma & Co as Investigators. They had asked for the production of books but plaintiff had failed to produce the same and they also did not cooperate with him, therefore the claim of the plaintiff was repudiated.
26.In this case no Written Statement was filed on behalf of the Defendant No3. There had also been no replication filed to the written statement CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 13 of 64 of defendant No.1&2.
Issues
27.On the basis of the pleadings following issues were framed on 15.11.1994 :
1. Whether the plaintiff is carrying on the business as sole proprietor of export of fresh frozen meat since 1981?
2. Whether the plaintiff produced books of accounts and relevant record to the defendants for the purpose of verification?
3. Whether the plaintiff purchased good quality fresh veal/buffalo meat from the approved slaughter house?
4. Whether the Insurance Policy was issued after thoroughly checking the premises and machinery/equipment installed therein?
5. Whether the plaintiff had the necessary certificate of Animal Husbandry Department, Government of India? If so, its effect.
6. Whether the plaintiff observed the conditions imposed and laid down in the Insurance Policy?
7. Whether the accident which occurred on 8th December, 1984 was accident and due to break CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 14 of 64 down in machinery?
8. Whether due to accident of 8.12.84, the stock got defrosted and became unfit for human consumption? If so, its effect.
9. Whether the defendant no.3 was appointed as Surveyor by defendant no.1? If so, its effect.
10. Whether defendant No.3 assessed the loss of the plaintiff at Rs.17,65,575/? If so its effect.
11. Whether the plaintiff is entitled to the suit amount?
12. Whether the plaintiff is entitled to interest? If so at what rate?
13. Relief.
Examination of witness
28.On behalf of the Plaintiff there were two witnesses examined. Sh. S.K. Suri attorney of the Plaintiff was examined as PW1 and Mr. D.K. Taneja surveyor of M/s Standard Surveyors Pvt. Ltd, as PW2.
29.Witness PW1 Sh. S.K. Suri had filed his affidavit in examination in chief on the lines of the case of the Plaintiff. In his affidavit he had referred to many documents including premium receipts of "Machinery Breakdown Insurance Policy" and "Deterioration of Stocks Policy" Ex. PW1/8 and Ex. PW1/9 and policy certificates Ex. PW1/10 and Ex. CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 15 of 64 PW1/11 and letter from Insurance Company Ex PW1/12, letter dated 24/08/1984 Ex PW1/14 by which the actual position of the stock communicated to be incorporated in the policy; certificates from Animal Husbandry Ex PW1/15 (Colly) and Ex PW1/16; logsheet dated 08/12/1984 Ex PW1/17 relating to the tripping of OCB (Oil circuit breaker); logsheet of 09/12/1984 relating to informing DESU for shut down the line; Letter written to DESU on 09/12/1984 Ex. PW1/18; Letter written to DESU dated 09/12/1984 Ex PW1/19 (colly); bill of OCB repair Ex PW1/20; logsheet of dated 10/12/1984 Ex PW1/21; letter dated 11/12/1984 by which the defendant no.1 was intimated about the bursting of pipe Ex PW1/24; log book dated 11/12/84 Ex Pw1/25 as to the shooting up of the temperature of in both the chambers on the instruction being given by Mr. Taneja to the machine mechanic to vacuum the condenser by sending ammonia into both the chambers; cash voucher and bill Ex PW1/26 (colly) as to the purchase of the new pipe; log sheet of 12/12/1984 Ex PW1/17 when the plant came to working order; letter dated 12/12/1984 by which the plaintiff requested the defendant no. 1 for the inspection of goods; log sheets dated 13/12/84 to 24/12/84 Ex PW1/29 (colly); letters written by CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 16 of 64 the Plaintiff to Animal Husbandry department and also MCD Ex PW1/30 and 32 for the inspection of the goods; Letter written by Defendant No.3 to MCD for the inspection of the Goods Ex PW1/31; certificate Ex PW1/33 issued by Animal Husbandry Department stating that the stock was unfit for human consumption; instruction given by MCD ExPW1/34 for destroying the stock; information sent to the defendant Company Ex PW1/35 for seeking necessary directions; letter of defendant No. 1 by which the Plaintiff was asked to destroy the stock as advised by MCD ExPW1/36 and similar instruction given by defendant No. 3 Ex PW1/37; Notification of loss dated 21/12/1984 Ex PW1/38; Defendant No. 3 informing the Plaintiff about its appointment of its appointment to assess the loss dated 12/12/1984 dated PW1/39 Daily stock register along with gate passes and meat arrival memos Ex. PW1/40 (Colly); Letter dated 21/12/84 Ex PW1/41 by which the Plaintiff was asked to complete the necessary formalities, letter dated 21/12/84 and 29/01/85 Ex PW1/42 (colly) for submitting relevant documents asked for; Survey report Ex PW1/43, letter dated 31/03/1985 as to the assessment of the loss and Plaintiff accepting the same by letter ExPW1/45; letter dated 26/06/1985 Ex PW1/46 by CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 17 of 64 which the regional office had recommended the claim for payment to head of defendant no.1; letters/telegrams by which the defendant no1 had been asked to release the amount Ex PW1/48; Letters written by M/s J.N. Sharma & Co. Charted accounts asking for information and the same being replied to by the plaintiff PW1/49 and PW1/50 respectively; letter Ex PW1/51 on which the endorsement is stated to have been made by sh. J.N. Sharma of having examined all the documents of the Plaintiff ExPW1/51; Letter dated 27/11/1986 by which the Assistant Research officer stated to have refuted the allegation made against him ExPW1/A; Legal Notice dated with postal receipts etc ExPW1/52 and letter of 4th February 1987 Defendant No. 1 Ex PW1/53 repudiating the claim of the Plaintiff.
30.Witness PW2 Sh. D.K. Taneja had also filed his affidavit in examinationinchief. He had interalia submitted that he was deputed by M/s Standard Surveyors Pvt. Ltd. He had personally visited the premises of Plaintiff a number of times and prepared a detailed survey report as to the losses incurred and by the Plaintiff. He had identified the signatures of Mr. J.P. Mistry director of M/s Standard Surveyors Ltd on the report PW2/A. He had further stated that losses suffered by CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 18 of 64 the Plaintiff were not because of the negligence of the Plaintiff but because of an accident.
Examination of witness(s) by the Defendant Insurance Company
31.From the side of the Defendant only one witness Sh. Virendra Kumar Goyal was examined. He had been working as Sr. Divisional Manager in Divisional Office 16 at New Delhi. His affidavit had been drawn on the lines of the case of the Defendant. In his affidavit he had referred to the policy Ex DW1/1 (also Ex.PW1/D1)which had been issued to the Plaintiff. According to his testimony Plaintiff had committed breach of the terms and conditions of the policy therefore the defendant was not liable to make any payment to the Plaintiff Hearing
32.I have heard counsels for the parties and have gone through the record of this case and also the written submissions filed. Findings Issue No.1 Whether the Plaintiff is carrying on the business as sole proprietor of export of fresh meat since, 1981?
Plaintiff is the proprietor of M/s Al Suri Frozen Foods. CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 19 of 64
33.Defendant does not dispute having issued the two policies to M/s Al Suri Frozen Foods one "Machinery Insurance Policy" PW1/10 and "Deterioration of stock policy" Ex PW1/D1. On both polices the name given is of M/s Al Suri Frozen Foods. It does not bear the name of the Plaintiff Mrs. Saroj Suri but only this much as to whom the policy had been issued.
34.If Defendant had any issue with it then, then there could not have been any other person better then the defendant itself to establish this fact that the Plaintiff was not the proprietor of M/s Al Frozen. I am sure it must be having all the applications and other documents submitted for the issuance of the Policy. It could have easily produced those documents to prove that it was not Mrs. Saroj Suri but someone else who was the proprietor of M/s Al Suri Frozen Foods.
35.It may further be noted that there has not been a single question asked in the crossexamination from the attorney of the Plaintiff that she was not the proprietor of M/s Al Suri Frozen Foods.
36.On the contrary the notifications of Loss damages given to the Defendant No.1 Ex PW1/38 and so also estimate of loss bear clearly CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 20 of 64 her signature written as "Saroj Suri" as proprietor of M/s Al Suri Frozen Foods. There are no questions asked as to her signing the claims as the Proprietor of M/s M/s Al Suri Frozen Foods. Neither reports Ms/s J.N. Sharma nor that of the letter ExPW1/53 by which the claim was repudiated that the Plaintiff Mrs Saroj Suri is not the proprietor of the M/s Al Suri Frozen Foods. There is also on record an application submitted by M/s Al Suri Frozen Foods and signed by Mrs. Saroj Suri as its proprietor to "The Processed Food Export Promotion Council", on the basis of which RegistrationcumMembership Certificate was issued to the plaintiff i.e. M/s Al Suri Frozen Foods. In my view there is nothing as such to doubt that Mrs. Saroj Suri is not the proprietor of M/s Al Suri Frozen Foods.
Plaintiff was in the business of export of frozen meat since 1981
37.It does not appear to me that it is material for the decision of this case to make an inquiry in to the question that the Plaintiff was in the business of frozen meat export since 1981. What is of importance is, if the plaintiff was in this business when the policy was issued. When plaintiff wrote in paragraph of 4 of the Plaint that the plaintiff had taken a transit policy from the defendant No.1 Company where under she CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 21 of 64 used to send the fresh frozen meat to Bombay and also gave the policy number. Response of the defendant No.1 insurance company was that issuance of earlier policy in transit is not denied but that allegation has no relevancy. It may be noted this in a way also confirms that the plaintiff was in the export of frozen meat. What is material for us is that the policy Ex PW1/ D1 for "Deterioration of Stock Policy" was issued for "Frozen Meat" and it can be presumed in the normal course of business Defendant No. 1 insurance company would issue such a policy only if it has satisfied itself that the Plaintiff was indeed in that kind of business.
Conclusion
38.I am accordingly concluding that Mrs. Saroj Suri is the proprietor of M/s Al Suri Frozen Foods and it was in the business of "frozen meat".
39. Issue stands decided accordingly.
Issue no. 2.
Whether the plaintiff produced books of accounts and relevant record to the defendants for the purpose of verification?
40. This is an allegation which does not relate to defendant No.3 Standard Surveyor Pvt. Ltd. surveyor appointed by the defendant No.1 insurance CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 22 of 64 company but M/s J.N. Sharma & Co. Charted Accountants. It is stated in para no.12 of the written statement "It is submitted that the defendant had appointed M/s J.N. Sharma and Co. as investigators and they had requested the plaintiff to produce the books of account but the plaintiff failed to produce it the same and substantiate her claim."
41. The best person who could have proved this fact was none other than Mr. J.K. Sharma who had prepared and signed the report Mark 'X' on behalf of the said investigators, where in it was stated "The conduct of the insured would appear to be suspicious and evasive. The insured has not allowed us to make a systematic verification of purchases, certifications , Letters of Credit, orders and the Records which according to our assignment we were expected to examine. We have submitted this report, as we believe, that there is no likelihood of insured producing records since it has not done so inspite of our impressing on it the necessity and also the discussions we have made with the insured in your presence. We can only opine that the existence of a healthy and marketable meat duly supported by orders and required certificates is a fact not proved by the records and the insured.
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 23 of 64
42. The record would show on 25th of January 2012 there was a statement from the side of Defendant insurance company that the copy of the affidavit of Sh. J.N. Sharma had been supplied to the defendant side. The same, however, was not found on record. The case was adjourned on payment of cost of Rs.3,000/ and last opportunity was granted to the Defendant insurance company to complete evidence. On the next date of hearing i.e 16th July 2012 it is noted that the affidavit of Mr. J.N. Sharma be traced from the Court record failing which the defendant's evidence would be closed. There have been dates in between finally there was one witness Mr Virender Goyal was examined as DW1 and the evidence of the defendant was closed. Thus, the defendant insurance company had failed to examine Sh. J.K. Sharma as witness in this case.
43. In other words witness who could have answered the question as to the nonproduction of record was not examined. When Sh. Virender Goyal was asked about the same he had denied a few and admitted some. His testimony reads as under:
"I cannot say if Ex PW1/40 ( colly) and the log books were furnished to M/s J.N. Sharma & Co. It is wrong to suggest CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 24 of 64 that the plaintiff had produced the account books pertaining to December, 1984 before M/s J.N. Sharma & Co. it is wrong to suggest that the certificate from Mr. Dahiya was not manipulated. It is correct that the details of breakdown of machinery were furnished to M/s J.N. Sharma & Co. by the plaintiff. It is wrong to suggest that the Plaintiff had provided the details of stocks of meat to M/s J.N. Sharma & Co."
44. It is obvious that he did not have firsthand knowledge of any of those facts and his answers were by and large based on the report of M/s J.N. Sharma.
45. It has been submitted by the Ld Counsel for the defendant "Ex PW1/17 is the letter which is written by Plaintiff to M/s J.N. Sharma & Co. allegedly stating that the documents have been supplied to M/s J.N. Sharma & Co. and curiously an endorsement is made at the bottom of the said letter at page 2 of the said letter. Endorsement was typed at the same time in the office of Plaintiff. Probably plaintiff thought that will be able to influence the surveyor and get their signatures. Surveyors have not signed the said endorsement as stated in the cross examination of PW1 Sh. S.K. Suri." Meaning of all this is, that plaintiff wanted M/s J.N. Sharma to sign on the dotted lines as to they having CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 25 of 64 received and examined the documents produced but they did not sign it. It also means that the documents which had been asked for had not been supplied.
46. This line of arguments stems from the part of the crossexamination where Attorney of Plaintiff (PW1) admits issuance of various letter by M/s J.N. Sharma for the production of documents and those documents were stated to have been delivered to the Defendant by the said letter Ex. PW1/D17. This letter had also at the end typed content in advance to take an acknowledgment of M/s J.N. Company & Company of having received those documents. This typed acknowledgment is being referred in the evidence as endorsement. Relevant part of the testimony reads. " Ex PW1/D 17 is the letter received written by Plaintiff Company to M/s J.N. Sharma & Company. It is correct that the endorsement made at point A to A at the second page of Ex PW1/D 17 has been typed by the Plaintiff in their office. This endorsement was typed when the letter was made and even before the letter was received by the surveyor. This letter delivered by hand as well and the receipt was given by M/s J.N. Sharma" ( emphasis supplied)
47. The way things are being presented is not correct. Though it is correct CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 26 of 64 there is an acknowledgment typed in advance but there is no dispute that this letter dated 29/10/1985 was delivered in the office of M/s J.N. Company & Company as has been underlined above and also the documents received as referred to therein. At the time of receiving the letter its copy was signed Sh. J.K. Sharma of M/s J.N. Company & Company. He notes while putting his signature in receipt of that letter in his hand writing "Received Copy and confirmed". There was a letter Ex PW1/ D8 which had been sent from the office of M/s J.N. Company & Company dated 31st of October, 1986. The letter begins by saying "we acknowledgment receipt of a letter dated 29/10/1985 in connection with the above. We have taken note of the letter." This letter does not deny the receipt of the documents submitted with the letter. It though complains that all those documents which had been asked for have not supplied, documents supplied were not adequate and also questioning the integrity of these documents. For example it is stated in para (a) of the letter it is stated " you have not provided us with copies of letters of credit for which the consignment had been sent out and for which you had presumably stocked the goods which forms subject of claim" ; In para (e) it stated " copies of orders as mentioned on the CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 27 of 64 bills have not been supplied" and in para (f) it is stated " we have seen that the books of Accounts and in particular cashbook was balanced in pencil up to 16/10/1985." I am therefore of the view there cannot be too much read in to the fact that the acknowledgedment which may have been typed with the letter in anticipation of it being signed at the time delivery of documents by the letter.
48. The letter of 29/10/1985 by which the documents had been supplied to M/s J.N. Sharma & Co. by the plaintiff reads as under : " M/s J.N. Sharma & Co. 29.10.85 Chartered Accountants, Keshmiri Gate, Delhi.
Sub : In the matter of M/s Alsuri Frozen Foods Lawrence Road, Delhi. Policy No. 40401/32/00020 without prejudice Policy No. 40401/32/1/00020.
Sir, With reference to your letter No.JNS/8586/271/412 & our other meetings in connection with the above insurance policy, we submit that we have producd before you already the following documents and records for your verification and that you have verified the same.
1. Bank Certificate of exports NO.TOMCOO 7215/84 dated 17.10.84 C061025 dated 12.7.84 and C061050 dated 3.10.84 for realisations made containing the following informations.
2. Invoices of exports No.1 ASF/AGR/KWT/001 dated 14.5.84 made No.2 ASFF/AMB/KWT/001 dated 24.6.84 No.3 ASFF/AGRICOL/KWT/002 dated 15.9.84
3. Shipping Bill No. 7700 dated 14.5.84, 7699 dated 14.5.84 and 004873 dated 11.9.84.
4. Bills of lading No. KWT/4 dated 14.5.84, KWT/1 dated 23.6.84 and KWT/2 dated 14.9.84.
5. G.R.I. No. GB 569422, GB 569421 & GB 735594.
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 28 of 64
6. Copies of L/C's & orders for export of goods were shown to you.
7. Agreement between M/s ALSURI FROZEN FOODS & M/s Suri & Suri Pvt. Limited.
8. Certificate of 1.12.1984 of Animal Husbandry Department of Delhi Administration giving quality and quantity of meat stored, the method used for meat and also stating that all precautions were observed for keeping the stored meat fit for human consumption.
9. Cash Book for 198485.
10. Ledger for 198485.
11. Purchase memos/Bills for 20.09.84 to 18.10.84.
12. Credit Book for 20.09.84 to 18.10.84.
13. Material inward reports register and finished stock register clerifying that all the goods stored there were purchased in Sept. 84 and Oct. 1984.
14. Cash Book vouchers relating to the Prem Electric Works."
49. M/s J.N. Company & Company had replied to this letter in the following manner (parts already reproduced above) :
" We acknowledge receipt of a letter dated 29.10.1985 in connection with the above. We have taken note of the letter. While the following matters ahve been discussed with you, we would for the sake of record submit that :
a) You have not provided us with copies of letters of credits for which consignments had been sent out and for which you had presumably stocked the goodswhich form subject of the claim.
b) You have not provided us copies of the Bills for goods sent.
c) You have not advised us the circumstances under which GRI form of 14.5.1984 was used for exporting goods against order of 21.5.1984.
d) You have not given us copies of the Delhi Administration certificates taken by you and the reasons why some of them do not tally quantity ise with stock of goods in hand.
e) Copies of orders as mentioned on the bills have not been provided.
f) We have seen that the Books of Accounts and in particular the Cash Book was balanced in pencil upto 16.10.1985.
g) We had asked you to help us to tally the stock register with the purchases made for the apparent difference on 20.09.1984 which was done by providing three additional purchase slips.
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 29 of 64
h) We have noted that from 4.10.84 to 18.10.1984 for full fifteen days daily purchaes had been made. On Dashehra (4.10.84) and Muharram (6.10.1984) also purchases had been made. We were advised by you that purchases are made at the Delhi Administration Slaughter House and the goods are delivered at the Insured's premises on the same day.
i) The updated accounts of parties with full address have not been provided. We had asked these details for last batch of purchases starting from 20.9.84 to 18.10.1984.
j) We had asked for a copy of final accounts drawn upto 31.3.85 which we were told had not been finalised. We have noted above the principal items of information not supplied and the facts which would form basis of our report to the Insurance Company which we would submit shortly.."
50. Things do not ends here. What we have in the series of letter being sent from the side of the M/s J.N. Company & Company making one query or the other and Plaintiff continuing to refute those allegations. For example, there is a comprehensive letter of plaintiff dated 24/01/1986 part of Ex. PW1/ D 12 which touches on various queries made over that period of time from the Plaintiff. The said letter reads as under:
"M/s J.N. Sharma & Co.
Chartered Accountants, Kashmere Gate, Delhi.
Sub : Your letter No.JNS/8586/Dated 31.10.85, 5/12/85 & NJS/8586/985 Dt.31.12.85 regarding Insurance claim in the matter of A.L. Suri Frozen Foods.
We are very much surprised to receive your letters wherein you have asked for certain details & raised certain queries CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 30 of 64 these requirements are frivolous as you had stated in the letter dated 29th Oct. 1985 that you had received & checked & verified all the details that were required & needed by you in the above case and again repeated the same. But still to clarify your doubts we submit hereunder our replies to your queries mentioned in your letters.
Your letter dated 31.12.85 you had stated the purpose of your queries & for that we state that on the day of the accident we had in our stocks the meet mentioned in the certificates issued by Delhi Administration Deptt. of Animal Husbandry and also by the surveyors M/s Standard Surveyors P. Ltd after due checking in detail. The certificate of the Delhi Administration Deptt of Animal Husbandry was issued as per clause '4' of the Insurance Policy According to the certificates it is clear that the goods stored were of good quality & were fit for human consumption & export. This shows that there was no dispute about the quantity or quality of goods upto 1.12.84 and after that the plant was functioning properly upto 8.12.84 the accident to circuit breaker took place.
After the accident the Insurance Company deputed its several persons & surveyors M/s Standard surveyors Pvt. Ltd. to check the details. On the several visits undertaken by the engineers & staff of the above deptt. no body raised any objection about the quality or quantity of the goods stored therein. They themselves verified the above and further got it checked by the Municipal Corporation Delhi & the Delhi Administration Animal Husbandry Deptt. New Delhi. The stocks of goods were destroyed at the specific instructions of the representatives of the Insurance Company & the surveyors. Each & every carton was throughly checked counted & verified by the representative of the surveyors against their signatures available on stock register as well as on the gate passes issued.
All these have been duly checked, verified & confirmed by you.
We are surprised to find your queries relating to L/C & past exports etc. as there do not have any relevancy with the various terms of the insurance policy. But still we had on several earlier occasions provided you with all the details which after checking, verifying & confirming you had stated that you had received all the information vide letter dated 29.10.85. The contents of these letters are nothing but repetition of the earlier queries in one form or the other. Once again we give below the replies to your various CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 31 of 64 queries. The query relating to purchase price at Rs.4/- per K.g.
The price of Rs.4/- per K.g. is of uncleaned caracasses i.e. before cleaning & debonning. After the caracases is cleaned & debonned, its cost comes to about Rs.10/- per K.g. Then further we have to pack it in our own boxes and process them as per the requirement of the purchasers & further it is kept as a temp. of -20'C. At this temp. the weight of the meat reduces still further. We have claimed the price at Rs.9/- per K.g. and we hope this will satisfy your need.
3) As per the record seen and verified by you i.e. purchase memo you have confirmed that the name of the supplier and the address are given therein and the said amount mentioned in the purchase memo is recorded in our cash book and the respective ledger which have been checked by you as verified. The suppliers have given their Addresses which are mentioned in the purchase memo and the same are correct. The supplier are till available in these addresses.
4) From Delhi there are many exporters who export meat from Bombay after processing them at Delhi. The meat is sent by Road in the insulated, Air-conditioned Trucks which maintain temperature upto -18' C all the times. At Bombay the goods are off-loaded in the cold storage which maintain temp. of
-18'C. After completion of custom formalities and when the ship is available with proper freezing arrangement the meat is shipped in the same after completion all the requisite formalities. Besides this inspection shipping company and Insurance Authorities also check the stocks and the temperature where it is stored in the ship. You have already verified the dates when the stocks were dispatched from Delhi to Bombay for onward shipment from our stock register which you have already confirmed by putting tick and signatures.
5) We utilise the service of various transporter and Cold Storages at Bombay.
6) Refer your letter dated 31.10.1984. In our letter dated 29.10.85 we have provided you the details of shipment and other documents against which stock were shipped. This includes the invoices, bank certificates, showing shipping bill, Bill of lading and GRI forms numbers etc. You have already verified the same. As regards the further shipment for which we were holding the stocks and which got deteriorated it is submitted that you were shown the L/C's and orders all particulars were given to you and you have noted the same in your note book as well. You have also confirmed the same in CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 32 of 64 your letter JNS/85/85-86/271/410 dt.18.9.85 at para 3, we are still ready to show the same to you for your satisfaction.
7) We have not followed your this objection GRI forms is a subject matter of customs authorities. We have already provided you the relative GRI forms number of 3 shipment in our letter dated 29.10.85.
8) We have already provided you the same vide our letter dated 29.10.85 at clause NO.8 y our allegation is incorrect because you have not followed it properly we can explain you the same on your personal visit at ours.
9) Your this query has no relevancy with the subject matter. We have already shown you the books written with ink.
10) The three additional purchase slips as alleged to have been provided later on, were actually entered in the books of accounts on the respective dates which were verified by you from the Cash book and ledger. The same were actually misplaced at your end.
11) We have already given the reply of this query as above.
12) We have already given the reply to this para raised in your letter dated 5.12.85.
13) You have checked each and every entries in respect of the purchase and stocks pertaining to our claim.
We hope you will be satisfied with the above explanation. It was also agreed before the Regional Manager of the Insurance Company that you will verify any further record by visiting our office so that the report is given by you to them at the earliest. There has been too much delay on your part at the earliest. There has been too much delay on your part in not submitting the creating suspicious in our mind for which we will be compelled to proceed in the court of law. It may be further added that for all practical information purposes we have provided you all the necessary documents and records etc. for your due verification & checking vide our letter dated 29.10.85. You also confirmed the same after due receipt of the same.
Alsuri Frozen Foods B-33, Lawrence Rd. Indl. Area Delhi-110035.
Copy to : The United Insurance Co. Ltd. 26, Kasturba Gandhi Marg, Delhi for information. This will reference to their letter dt. 1.12.85. In light of the explanation given above please let us know what further queries are yet to be provided. The investigating authorities although have been CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 33 of 64 provided with all kind of cooperative but is not in mood to give the report for the reason not known to us.
Please difuse with the CA of J.N. Sharma and Co. and pass our rightful and genuine claims without any delay.
Alsuri Frozen Foods B-33, Lawrence Rd. Indl. Area Delhi-110035."
51. This letter was replied by M/s J.N. Company & Company by its letter of 3rd February 1986 Ex PW1 / D 3 which reads as under:
"Ref. No : JNS/8586/ 3rd February, 1986
M/s Alsuri Frozen Foods,
B33, Lawrence Road Industrial Area,
Delhi110035.
Reg : Claim under Policy No.40401/32/00020- Claim for Deterioration of Stocks. 'without Prejudice'.
Dear Sirs, We are in receipt of your letter dated 24th January, 1986 in connection with the above claim which you have inducated to be a reply to our letters of 31 st October, 5th December and 31st December, 1985. We also refer to the meeting your representative had with us in our office, in the office of the Insurance Company and the assurances given by him time to time that the information asked by us would be provided. From your letter it appears that you would like us to finalise our report on the basis of the information we have been able to gather from you and from other connected sources and that you are not interested in helping us to bring the entire matter to more intelligible shape for and for the Insurance Company to take a suitable decision. You have objected to a number of our queries as not relevant and you want us to believe that the socalled purchase slips prepared by you have the addresses of the suppliers. The imprression which we find in your letter is that the addresses given on the slips are not useful to locate and relate the purchase slips to persons mentioned in the slips.
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 34 of 64 From your letter we find that inspite of its length and rhetoric it does not provide any additional information inspite of the assurances.
You have not said anything about the purchases made on Fridays and Holidays. You have not produced any person so far who might have sold you the goods at the rate of Rs.9/ per kg. Since it is you who have prepared the purchase slips we expected that you would be little more forthright inproviding the information. We had requested you to provide us the addresses of the transporters and parties at Bombay where you had kept the goods. You have not done so. We had explained that our assignment covered verification of all records and all transactions. From your letter we gather that you have reservations on the point. Your reply, we may submit, does not add to our knowledge. It appears that you have nothing to offer as a reply to our various observations already communicated to you by letters and also in person from time to time.
We have, however, no desire to join issues with you and since you are not willing to provide the information, we are seeking permission from the Insurance Company to submit our report on the lines already discussed with your representative. You would appreciate that your attitude and reply does not go to help us in completing our assignment. Thanking you, Yours faithfully, Sd/ CHARTERED ACCOUNTANTS CC :
The Regional Manager, United India Insurance Co. Ltd., Regional Office, Kailash Building, Kasturba Gandhi Marg, New Delhi110001.
CHARTERED ACCOUNTANTS"
52. This is the letter which become the basis for concluding that the plaintiff had not been producing the documents and violated the terms CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 35 of 64 of the policy. Letter of Defendant insurance company dated 4th February, 1986 Ex PW1/ D16 by which the claim of the plaintiff was repudiated, reads as under:
" REGD. A.D.
VSC :KM:34:87
February 4, 1987
M/s Alsuri Frozen Foods,
Lawrence Road,
New Delhi.
Re : Claim No.40401/37A/7/62/84 Policy No.040401/37 A/00001 A/c M/s Alsuri Frozen Foods.
Dear Sir, We regret that inspite of our letter dated December 15, 1986 and earlier correspondence you have failed to produce your books of accounts and supply necessary information and document and have failed to substantiate your claim and comply with the terms and conditions of the policy and have committed breach of terms and conditions of the policy. Your claim is, therefore, not payable in terms of the policy and is hereby repudiated.
Thanking you, Yours faithfully, Sd/ (V.S. CHOPRA) DIVISIONAL MANAGER"
53.Therefore at the end of the day one finds that it is not just information and documents being supplied by the plaintiff but also of the adequacy of the information supplied and relevance of the information asked. I CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 36 of 64 am of the view that it was for the Defendant insurance company to establish that the information it was asking for was relevant and the information being supplied by the Plaintiff was inadequate thus giving a cause for the repudiation of the claim. It has already been stated before Mr. J.K. Sharma was the best person who could have established this fact but has not been examined in the Court. The issue stands decided accordingly, in favour of the plaintiff and against the defendants.
Issue No. 3 Whether the plaintiff purchased good quality fresh veal/buffalo meat from the approved slaughter house?
54. There is a Veterinary Health Certificate on record Ex PW1/15 dated 1/12/84 which shows there was an inspection of stock by the Sh. S.M. Dahiya Asstt. Research Officer Incharge Diagnostic Laboratory Animal Husbandry Department Delhi Administration of the stock on 27/11/1984. The relevant part of the same reads as under:
This is to certify that at the request of M/s United India Insurance Company Limited B/o Maya Puri, New Delhi110064, Insured Goods CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 37 of 64 of M/s Suri Frozen Foods, B33, Lawrence Road, Delhi, I have examined the under mentioned goods.
Description :
About 8000 master Export Carton (160 M.T. Ap of Frozen Boneless Meat of Culled Buffalo (both male & female). The meat is from Buffaloes not used for draught Milch and Breeding purpose. (Slaughtered by Muslim Halal Method).
Shipment :
Policy No.040401/37A/1/00001 issued at New Delhi on dated 27.7.84 to M/s Alsuri Frozen Foods. B33, Lawrence Road, New Delhi.
55. It is stated in para 6 of the Plaint as under :
" That the plaintiff carried on her work from time to time and on 27.11.1984, an inspection was also carried out by the Animal Husbandary Department of Delhi Administration, Delhi for grant of Veterinary Health Certificate. This was done at the request of the Defendantcompany as also on the Plaintiff's request as per the policy condition. Certificate dated 1.12.1984 was issued by Animal Husbandary Department certifying that approx. 8000 master cartons approx. 160 MT of fresh frozen boneless meat of CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 38 of 64 veal/buffallo was stored in the chambers of the cold storge which was certified as Halal good quality, free from infection, prepared under hygienic conditions and fit for human consumption. The certificate cited above was stated to be valid for two months from the date of its issue. It is on the strength of this Certificate that the fresh frozen meat can be exported because the quality is certified by this certificate and the authority issuing the certificate is Animal Husbandary Department, Export Agency one approved by the Govt. of India only for export of fresh frozen meat. Detailed tests are done when the material is examined and tested in the Laboratory and only if the material meets the strict standards set down by the Govt. then export is permitted."
56. Reply to same in the corresponding para of the written statement filed by the insurance company reads as under:
" Para 6 of the plaint is wrong and denied. The plaintiff is put to strict proof of the same. It is denied that the plaintiff had been carrying on her work from time to time. The plaintiff is put to strict proof of any export made by her or of any materials purchased by her. It is submitted that it is learnt that in the same premises, the company under the name and style of Suri & Suri Pvt. Ltd. alleged to be carrying on the same business has been functioning and the plaintiff is put to strict proof that the goods mentioned by her were not of Suri & Suri Pvt. Ltd. but of her. It is further submitted that CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 39 of 64 it reliably learnt and it appears that large quantity of goods of Suri & Suri Pvt. Ltd. were rejected. It is denied that the alleged inspection was done on 27th Nov. 1984. It is submitted that it appears that the plaintiff has maneouvered in inspection report. It is submitted that mere look at the certificate which has been issued in pursuance of the said inspection would clearly show that no shipment particulars are mentioned in the alleged Veternity Health Certificate. On the other hand, the policy number and its particulars are mentioned which have no relevancy whatsoever with the shipment. Inasmuch as this Policy was not a Marine Policy and was not intended to cover any shipment. The policy related to only a machinery breakdown policy and the particulars thereof are wholly irrelevant for the purpose of shipment as well as for the purpose of the alleged inspection. The mentioning of the policy particulars clearly shows and suggests that it was a manipulation. The plaintiff is put to strict proof that it, had stored 160 MT of fresh frozen boneless meat or veal/buffalo in the chambers or that it was a Halal good quality, free from infection, prepared under hygienic conditions and fit for human consumption. The plaintiff is put to strict proof of the order, if any, received by her in regard to the export, the purchase of the meat which is said to have been stored. The plaintiff is put to strict proof of the quantity as well as of the quality of the meat alleged to have been stored. The plaintiff is also put to proof of the examination or validity of the alleged test certificate."
57. It may be stated here that there is no specific denial from the side of CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 40 of 64 Insurance company that there was no request made from its side. I have gone through the crossexamination of the witness PW1. There was no question put to him that there was no such certificate issued or there was no such certificate issued at the instance of insurance company. Although in the report of Sh. J.N Sharma & Co. there have been some question raised about the fact if the said certificate had been issued at the request of the insurance company or not but no one from Sh. J.N. Sharma & co. was examined as Witness in this case. On the contrary the witness of the defence DW 1 Virendra Kumar Goyal Divisional Manager did admit in the crossexamination that this certificate issued by the Delhi Administration has the signatures of Sh. Dinesh Sikri. When this certificate was put to him in the crossexamination he had deposed "I can identify signatures of Mr. Dinesh Sikri on Ex PW1/15 at point X. it is correct that Mr. Dinesh Sikri was the manger of defendant as on 1/12/1984. It is correct that Mr. Dinesh Sikri was the manager at the time of insurance policies were issued. I cannot say if Ex PW1/15 was handed over to Mr. Dinesh Sikri before 08/12/1984 to verify the stock available with the Plaintiff for export."
58. There is no explanation as to why and under what circumstances Mr. CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 41 of 64 Dinesh Sikri had signed this certificate. In the normal circumstances no responsible officer would put his signature on a document like this unless it had his approval. The report begins with by stating that it was being prepared at the request of the insurance company and Sh. Sikri puts his signature on it with the stamp of the insurance company. It only indicates that this inspection of the stock was carried at the instance of this officer of the insurance company or one may say at the insurance of the Defendant Insurance Company.
59. There are two things which can also be concluded from it first that the stock of meat existed in the physical form and it was inspected by the animal husbandry department and found it be fit for human consumption and also that this certificate was valid for two months from the date of issue i.e. 1/12/84.
60. The issue related to the purchase of the said meat is a bit difficult one. There is no direct evidence before the Court as to the said meat being purchased. There is a stock register filed on record. But entries in the stock register would have no meaning unless there are accompanying receipts of the purchases. The stock register would show that on every page of the stock book there is a column which says "received from"
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 42 of 64 and below it, it is mentioned "Supplies as per purchase Book" except for the purchases which had been made in the month of October 1984, where this column is lying blank. In any case like it has been stated reading this stock register would not be complete unless the court has the benefit of reading of "Purchase Book". There is no such book on the record filed.
61. When the witness PW1 was asked about such records. He had deposed "Books of account of the said firm were regularly maintained. Books of account were like stock register, ledgers, account books etc were also maintained during the year 198284. The stock purchased by M/s Al Suri Frozen Foods must have been reflected in the books of account of the firm. It is incorrect to suggest that I have not placed on record any books of account like stock register, ledgers etc. I cannot if those records are lying with us. Vol. There was a fire in our factory in the year 1996 in which certain documents were destroyed. It is correct that those documents were available with us when the present suit was filed. It is correct that even in the year 1990; all the books of account were available. Vol. All the documents are already placed on record. The account books, ledgers etc. used to be maintained by our CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 43 of 64 accountant. I do not remember the name of the accountant. It is correct that plaintiff herself has not maintained the accounts. We did not receive any invoice from the butcher from where we used to purchase the raw meat. There was no practice of raising invoices by the butchers at that time and the payment used to be made on the basis of aforesaid meat arrival memos."
62. In the crossexamination of PW1 there were questions asked about the stock register. At one stage the questions were asked about the meat arrival memos. In reply to a suggestion given the witness had deposed "it is incorrect to suggest the entries in the stock register do not corroborate with meat arrival memo filed by the Plaintiff which are exhibited as Ex PW1/18 (colly) which are from pages from 325 to
353)."
63.I have seen the meat arrival memo and also the stock register on record. One may say that these meat arrival memos are of different dates from 05/10/1984 to 18/10/1984. They do correspond with the entries in the stock register except for the entry of 04/10/1984 in the stock register showing the quantity of meat being received as "7400" for which there is no corresponding meat arrival memo and also there is a small error in CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 44 of 64 the entry of 12/10/1984 where the quantity of meat shown is "7389" though meat arrival memos would show that to be "7589".
64. There are questions being raised about the stock register but in the crossexamination I have not been able to find anything to challenge the meat arrival memos except that in the final submissions made and also the report of Sh. J.N. Sharma wherein there had been doubts expressed as to the meat being purchased on holidays like Dusshera, Muhrarram and Sundays when the slaughter house remain closed. Forth of October, 1984 was Dussehra, sixth was Muharram and there were Sundays on 7th and 14th of October, 1984. The stock entries have dates continuously from 4th to 18th of October, 1984. I don't have to say much about the 4th of October 1984 because there is no Meat Arrival Memo of that date on record. So far as the other days are concerned I am of the view in the absence of any crossexamination of the witness on these lines and having explanation of the witness on record in this respect, it would be unfair to reach any such conclusion as against the plaintiff. At the same time, it may be said that, in the absence of any questions being put to challenge the authenticity of those Meat Arrival Memos it can be said meat had arrived in the premises of the Plaintiff CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 45 of 64 as against the Meat Arrival Memos in terms of the Meat Arrival Memos Ex PW1/D18 (Collectively). Consequently, one may presume that Plaintiff had paid for it in the normal course of things though there is no such record filed on record.
65. One may therefore conclude on balance of probabilities that the Plaintiff had purchased the goods in terms of the Meat Arrival Memos Ex PW1/D18 (Collectively) and it was fit for human consumption. Issue stands decided accordingly.
Issue No.4 Whether the Insurance Policy was issued after thoroughly checking the premises and machinery/equipment installed therein?
66. This is an issue which should not detain us for long. There is a long of list of inventory of insured machinery attached with the "Machinery Insurance Policy" ExPW1/10. It gives precise description of machinery in three pages and also value of each item. The total of the items given is Rs.12,00,000/. There no way this inventory could have been prepared without the thorough checking of the machinery by the insurance company. It is not even a case set up by the Defendant No.1 CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 46 of 64 that it had issued the policy without checking the machinery.
67. I accordingly conclude that the "Machinery Insurance Policy" was issued after checking the machinery and equipment installed in the premises of the Plaintiff.
Issue no.5.
Whether the plaintiff had the necessary certificate of Animal Husbandry Department, Government of India? If so, its effect.
68. I am of the view there is perhaps some error in the framing of the issue as there is no certificate from Animal Husbandry Department of Govt. of India. The only Animal Husbandry Certificate is of relevance has already been discussed under issue No.3. There is no reason therefore to give any separate finding on this issue.
Issue No. 6 Whether the plaintiff observed the conditions imposed and laid down in the Insurance Policy?
69. In paragraph eight of the Plaint it has been stated that before the grant of policies the defendant insurance company had imposed certain terms and conditions. One can find the said terms and conditions in a letter sent from the side of the defendant insurance company, Ex PW1/D1. Defendant insurance company has not denied the same but has also CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 47 of 64 added that there were other terms and conditions of the policy as well referred to in the policy.
70.It has been though submitted on behalf of the Defendant Insurance Company that there had been violations of terms and conditions of the policy but there is no elaboration as to which of those conditions had been violated. It is stated in paragraph 1 of the written statement "inspite of various requests made by the surveyors and the defendant company, the plaintiff has not produced its book of account and relevant records to enable the answering defendant to verify the allegations made by the plaintiff and has committed breach of the terms and conditions of the policy."
71.Therefore the question of breach of conditions has been linked to non production of books of account and relevant records and in the absence of those records inability of the defendant to verify if there had been breach of conditions or not.
72.It has already been discussed before that so far as the surveyor defendant no. 3 is concerned it did not have any issue with regard to the records not being produced. This is a complaint which M/s J.N Sharma & Co Chartered Accountant had made. It has already been noticed that CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 48 of 64 no one from M/s J.N. Sharma & Co. has been examined to establish as to which were those books of accounts and records which were not produced and which were those conditions breach of which had been committed. In the absence of any such articulation of specific terms and conditions stated to have been breached I find it would be unfair to parties to conduct a roving inquiry into the matter visiting each and every term and condition and returning a finding thereon. May be after Sh. J.K Sharma from M/s J.N.Sharma & Co Chartered Accountant had been examined as was being proposed by the defendant at one stage, we would have got some basis of looking at this issue. That would have given opportunity to the plaintiff also to rebut any such evidence brought on record. To look at it in a different way one may say that by not examining any one from M/s J.N. Sharma & Co and proving the report Mark X submitted by it which became the basis for repudiating the claim of the Plaintiff, the defendant has failed to establish that there had been violation of any of the terms and conditions of policy.
73. Issue is accordingly decided in favour of the plaintiff and against the defendant.
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 49 of 64 Issue No. 7 Whether the accident which occurred on 8th December, 1984 was accidental and due to break down in machinery?
74.The case of the Plaintiff is that the accident which had taken place on 8th of December, 84 was because of breakdown of the machinery. To be precise it had happened because of the tripping of Oil Circuit Breaker (OCB). This led to sequence of events from 8th of December 84 onwards till plant was finally restored at 6 PM on 12/12/1984.
75.There is repeated reference to Sh. Dinesh Sikri manger at the concerned branch who had been kept in loop about the incident and Sh. D.K. Taneja of Defendant No.3, surveyor. In fact the plaint and the affidavit filed of the PW1, attorney of the Plaintiff, would show that they had been actually guiding the entire operation from the time they were notified of the tripping of OCB till machine was restored to order. One can see each averment made is supported by some kind of documentary proof. One can examine the events unfolding from the date i.e 8 th of December, 1984 when this incident occurred and finally when the machine started functioning again on 12/12/1984 at 6 PM one by one. CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 50 of 64 08/12/84 It is stated in the affidavit that it was informed by the machine operator that at 11.15 PM OCB had tripped. This fact was reported in the logbook. There is a copy of the logbook Ex PW1/17 on record where this fact has been recorded.
09/12/1984
a). It is stated that in the early morning at 7 AM, this was informed to Sh. Dinesh Sikri Branch Manger on phone at his residence and he had assured he would visit the site and this is the first thing he would do in the morning. He had reached at 10.20 AM. He had noted the temperature, inspected the stock, noted the temperatures in the storage chamber and inspected the OCB and instructed to call an electrician who may repair the OCB. One Mahavir of electrical contractor M/s Prem Electric work was called. He had informed that it would not CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 51 of 64 be possible to open OCB with live line. He had then instructed the Plaintiff to inform DESU to shut down the live wire. These instructions were given in writing on the logbook of 09/12/84. One can find these instructions on the logbook, though every word stated there is not readable. It reads "visited the cold storage on 9/11/84 at 10.30 AM. Inspected chamber no.1. Noted the temperature 0 degree C and also asked the insured to ask DESU people to shut down and repair OCB immediately."
(underlined portion supplied for being not readable).
b). There was a telephone call made to DESU.
They wanted this request be made in writing.
Accordingly the request was made in writing at 12.00 and late at 6.40 PM. Finally shut down was done at 7.15 PM after a lot of running around.
Electrical contractor was called to repair OCB. After it was opened it was found it required some parts to CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 52 of 64 be replaced. The same, however, could not procured as the market was closed.
c). One can find carbon copies of those letters on record Ex. PW1/19 (Colly). It gets corroborated by another note of Sr. Executive Engineer Ex PW1/22 wherein he writes that he was contacted by M/s Suri and Suri for an urgent shut down on their circuit breaker and he got the supply isolated through their breakdown gang on the presumption that he was empowered to do so. After having realised it on the next day i.e 10/12/84 he had sent it to the concerned officer for regularize it and to take the requisite charges.
10/12/84
a). The details of what had transpired were informed to defendant. OCB could be repaired by
4.PM. At 3.45 PM there was a telegram was sent to defendant to inform of the latest position. DESU was approached to restore the supply. Rs.300/ had been CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 53 of 64 deposited. It appear it included the earlier Rs.150/ which by Ex PW1/20 were to be paid from the isolation of supply.
b). Plaintiff filed on record bill of repairs Ex PW1/20 logsheet of 10/12/84 and receipt of Rs.300/ Ex PW1/23 deposited on 11/12/84 as per the orders of competent authority of DESU.
11/12/84
a). It is stated that after the deposit of Rs.300/ the electricity was restored at 11.30 in the presence of Sh. Dinesh Sikri. After a minutes of the switching on compressor of the plant one of the atmospheric ammonia condensers busted and ammonia gas started leaking. Sh. Sikri instructed the machine operator to vacuum the condensers but ammonia still kept leaking. Welding of wall was not possible immediately. Sh. Sikri who present their had contacted Divisional Manger Sh. Dhingra who had advised him to get in touch with Sh. Taneja. Then CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 54 of 64 Sh. Taneja was called. He had reached at around 8 PM. He had instructed the condensers be vacuumed continuously making it possible to weld the pipe and to not permit the ammonia to spread. He had written instruction to send ammonia in both the chambers, chiller rooms, blast room and plate freezer. This led to sudden shooting up of temperatures in the two chambers. He also asked to continue with the vacuuming process for the entire night and change the pipe next day.
b). Copy of the letter Ex PW1/24 and the log sheet Ex PW1/25 with the notings of giving instructions are on record.
c). Ex PW1/24 is the letter which repeats what has been stated. It bears the seal of the defendant insurance company. In logbook one can find detailed instructions being given. It is also noted thereon " The breakdown of OCB ... ( not readable)... DESU has given the electric supply at CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 55 of 64 11.30 AM. The temp of chamber no.1 + 9 degree c & No.2 +11 degree C. Mr. Dinesh Sikri himself checked the ... ( not clear) ..in chambers and .. ( not clear)... ."
d). There also instructions of Mr. Taneja also on this logbook. There are two sets of instructions on it. One is of the time when he had reached there and the other is of about 10.55 PM. The set of instruction include getting the condensers started so that the ammonia could be liquefied and the welding work could be started and also instruction to keep a record of the temperature. The second note would show that there was an attempt made to weld the pipe but it got fire. He advised the pipe to be cut and weld with a full (not clear) pipe in the morning so that entire gas drains out and moreover risk of leakage after welding is ruled out.
12/12/84
a). On 12th new pipe was welded by 2.45 PM. In CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 56 of 64 order to check leakage air was given in the condensers. It was found to be leaking. It was again welded to remove leaking. Finally job was over 5 PM. It was checked again. Finally plant started working at 6.00 PM.
b). There is a logsheet 12/12/84 on record Ex PW1/27. It has a number of notes written in Hindi of machine operator giving the details how he has been following the instructions of Mr. Taneja.
76.It is clear what has been stated in the testimony by PW1 stands corroborated with documents. What is more there was no question put to the witness in the entire crossexamination of witness PW1 challenging what has been stated.
77.There is an affidavit of Sh. D.K. Taneja on record. It is a little surprising main focus of his affidavit in examination in chief is not on his being called and attending to the fault in the compressor and attending to the repair in the pipe, though in the crossexamination at one stage he had stated that the he had been called by Mr. Sikri to conduct the survey. The main focus his testimony had been the survey CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 57 of 64 report. In that report though there is reference being made to the visits at premises of the Plaintiff. Report uses the expresses "we" without any specific reference to Mr. D.K. Taneja.
78.Defendant nevertheless cannot escape the repeated reference to Mr. Dinesh Sikri. It would appear that he had been in loop at every stage of this accident. He was the best person who could have dispelled everything what is being said by the Plaintiff. For reasons best know to the defendant insurance company this witness was never examined in Court. I am, however, certain that there is a case to draw adverse inference against the defendant under section 114 (illustration (g) 1) of the Indian Evidence Act, to say that if he had appeared in the court he would have favoured the case of the plaintiff.
79.I am of the view despite no reference being made in the testimony of Mr. Taneja with specific reference to his involvement in the repairing process it would still be possible to say on balance of probabilities that this accident did take place because of the breakdown in the machinery. 1
114. Court may presume existence of certain facts. -- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case Illustration
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 58 of 64
80.Issues stands decided accordingly.
Issue no.8.
Whether due to accident of 8.12.84, the stock got defrosted and became unfit for human consumption? If so, its effect.
81. In the affidavit filed by the witness PW1, it is stated that the effect of all this was that the meat defrosted and blood started coming out of master cartoons of frozen meat as a result of the rise in temperatures. Defendant insurance company wrote a letter to Animal husbandry for the inspection of the goods dated 13/12/1984, Ex PW1/30. Defendant No.3 i.e Surveyor too wrote to MCD for the inspection of goods. Plaintiff wrote a letter to MCD 18/12/84 for the inspection of the stock. On the request of the Plaintiff and the defendant insurance company Animal Husbandry department and taken random samples and had issued the certificate, Ex PW1/33, that the stock had become smelly and unfit for human consumption. Zonal health officer MCD had by letter dated 18/12/84 Ex PW1/34 had given the direction to destroy the stock by letter dated 18/12/84. Plaintiff had sent a telegram Ex PW1/35 dated 18/12/84 to the defendant insurance company. By letter dated CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 59 of 64 21/12/84 Ex PW1/36 permitted the stocks to be destroyed. Similar was the direction given be defendant No.3 surveyor by the letter of the same date Ex.PW1/37.
82.I have seen the said documents. Witness had also not been cross- examined to challenge the said facts.
83.It is clear that from all those documents filed that the stock had defrosted and become unfit for human consumption. If the finding of on the issue are read along with these reports, there would be no manner of doubt as to the defrosting of the stock and its becoming unfit for human consumption was the direct result of the accident.
84. Issue stands decided accordingly.
Issue No. 9 & 10.
Whether the defendant no.3 was appointed as Surveyor by defendant no.1? If so, its effect.
Whether defendant No.3 (Standard Surveyor Pvt. Ltd.) assessed the loss of the plaintiff at Rs.17,65,575/? If so its effect.
85. I am of the view on these two issues there is not much of dispute and therefore can be decided together. The DW1 Sh. Virender Kumar Goyal in the crossexamination had deposed:
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 60 of 64 "It is correct that after the Plaintiff had filed the present claim, the defendant had appointed Standard Surveyor Pvt. Ltd. to verify the claim of the plaintiff."
He was asked a question:
" Q; Kindly see pages 151 and 152 and pages 153 to 155 of the Surveyor's report submitted by Standard Surveyors Pvt. Ltd verifying the Plaintiff's claim after evaluation of the report. Is that correct?
Ans. It appears to be correct. (Vol. During the processing of the claim before settlement there was an anonymous complaint regarding the genuineness of the claim. Thereafter the company deputed a Charted Accountant M/s JN Sharma & Company to verify the Account part of the claim and liability of staff. On the basis of that this report was repudiated.)"
86. There is no dispute that under the said policy the loss payable was assessed at Rs. 17,65,575/.
87. Issues are accordingly decided in favour of the plaintiff and against the defendants.
Issue No.11 Whether the plaintiff is entitled to the suit amount?
88.Only basis we have for calculating the compensation being awarded is the report Ex PW1/D 3 A. According to the testimony of the witness PW2, Sh. D.K. Taneja, he was the one who had conducted survey in CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 61 of 64 this case. He had deposed that this report was prepared under his supervision and instructions though it had been signed by the Director of the defendant no. 3 company. There are no questions in his cross examination questioning this report or the basis on which the compensation was proposed to be awarded.
89. The fact of the matter is insurance company had already started processing the case for compensation to be awarded on the basis of the said report. Had it not been for the anonymous complaint received by the insurance company the compensation would have been awarded. Therefore there is a good basis of reaching the conclusion that the Plaintiff is entitled to receive from the defendant insurance company, amount which had been referred to in the said report.
90.In the plaint filed there is no specific amount mentioned for which the decree may be passed. It seems it had been inadvertently left blank. As per the surveyor report Ex PW1/ D3A, Rs, 17,65,575/ was to be payable. It is the same amount demanded by the Plaintiff from the defendant insurance company by its legal notice.
91.Thus one may conclude that the Plaintiff is entitled to receive from the defendant No.1 insurance company a sum of Rs.17,65,575/. CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 62 of 64 Issue No. 12 Whether the plaintiff is entitled to interest? If so at what rate?
92.It would be fair to say that if this court has come to conclusion that an amount of Rs. 17,65,575/ is due to be paid to the plaintiff then plaintiff can also be said to be entitled to interest on the said amount. In the legal notice sent plaintiff has demanded interest at the rate of 18% per annum from 31/03/1985 till the payment is made. Suit was filed on 4 th May, 1987. It has been valued at Rs. 22,32,150/. Apparently this amount appears to include the interest as well on the said amount. This case has been going on for last about 35 years. At this point of time the question as to who has been responsible for delay as lost its meaning. One can blame everyone for the delay including the courts.
93.I am of the view interest from 31/03/1985 (report of survey Ex PW1/ D3A is dated 20/03/1985) till the date of the filing of the suit at the rate of 6% per annum and 3 % per annum form the date of filing of suit till realisation would meet the ends of justice. CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 63 of 64 Issue no.13 Relief
94.In view of the above discussion and the facts and circumstances of the case, I am decreeing the suit in favour of the plaintiff and against the defendants for recovering a sum of Rs. 17,65,575/ from the defendant no.1 with interest @ 6% p.a. from 31.03.1985 till the date of filing of the suit and @ 3% p.a. from the date of the filing of the suit till realisation. The plaintiff shall also be entitled to costs.
95.Decree sheet be prepared separately.
96. File be consigned to record room.
Announced in the open court on 13th November,2019 (LAXMI KANT GAUR) Additional District Judge(05), Central District, Delhi.
CS No.211/17 Smt. Saroj Suri vs. United India Insurance Co. Ltd. ors. page 64 of 64