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FA/1876/2010 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1876 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
HINDUSTAN
INDUSTRIES - Appellant(s)
Versus
UNITED
INDIA INSURANCE CO LTD & 2 - Defendant(s)
=========================================================
Appearance :
MR
BHARAT T RAO for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 26/08/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present appeal arises against the judgement and the order dated
31.12.2007 passed by the Civil Court in Special Civil Suit No.
61/94, whereby the suit has been dismissed.
The
short facts of the case appear to be that the factory of the
appellant-plaintiff located at Plot No.28 of Survey No.275/76 at
village Shapar-Veraval was insured with the respondent Insurance
Company. As per the plaintiff, on 17.06.1993, at about 12.00 at
night, there was fire burst in the factory and the plaintiff
sustained damages of Rs.7,48,750/- plus Rs.5,04,220/-, the
additional damage was caused to the plaintiff. As the insurance
company did not pay the amount, the Suit was filed by the plaintiff
being Special Civil Suit No.61/94. The respondent insurance company
resisted the suit contending inter alia that it had appointed
Mr.V.Trivedi & Co. to assess the loss and damage and as per the
report of the said Surveyor and the finding given by him, the fire
was not accidental. The defendant-insurance Company contended that
as the fire was not accidental and the loss had not occurred due to
accidental genuine short circuit fire, the risk was not covered and
therefore, the insurance company was not liable to pay the amount.
The Civil Court had framed the issue inter alia as to whether the
ground of repudiation of the liability by the Insurance Company was
genuine or whether the plaintiff is entitled to recover the amount
of damage from the defendant. The evidence was led by both the
parties and ultimately, the Trial Court dismissed the suit by the
above referred judgement. It is under these circumstances, the
present appeal before this Court.
We
have considered the evidence, which has been made available by the
learned advocate for the appellant at the time of hearing of the
matter.
The
learned counsel appearing for the appellant first contended that the
finding recorded by the lower Court that the fire was artificial and
not accidental is not correct and in his submission, the Surveyor of
the Insurance Company had only to opine that what quantum of damage
is sustained and could not have opined on the ground of genuineness
of the fire or otherwise. He submitted that after the fire,
reporting was made to the fire brigade of Rajkot Municipal
Corporation and as per the report of the Chief Fire Officer of
Rajkot Municipal Corporation, the cause of fire was electric short
circuit, therefore, he submitted that when there was already a
report of the fire brigade officer, the learned judge could not have
relied upon the opinion of the surveyor Shri Trivedi on the ground
of genuineness of the fire or otherwise. He therefore submitted
that the error has been committed by the Trial Court which deserves
to be interfered with.
The
examination of the said contention shows that from the very
beginning, in the written statement, the contention was raised by
the Insurance Company that it was a man made fire and a calculated
move to extract money from the defendant Insurance Company. In
furtherance to the said averment in the written statement, the
report of Shri V. Trivedi & Company, independent Surveyor was
relied upon. Therefore, from the very beginning, repudiation of the
liability was on the ground that it was not genuine accidental fire,
but was a man made artificial fire and a calculated move to extract
money from the insurance company. Therefore, in such circumstances,
the burden was upon the appellant-plaintiff to prove by examination
of any expert to show the Court that fire was not an artificial and
was genuinely accidental fire. It is an admitted position that on
the aspects of genuineness of the fire, or that fire was not
artificial one, no evidence of any expert has been produced by the
plaintiff. The report of the fire brigade, upon which reliance has
been placed refers to the electric short circuit and it does not
speak that such electric short circuit was an accidental one or
otherwise. The ground for repudiation of the liability of the
liability by the insurance company was that the fire was not
accidental, but was self created fire or a man made fire. Therefore,
it was for the plaintiff to prove by satisfactory evidence that
there was sufficient circumstances leading to the conclusion that
the fire was accidental fire and not main made or artificial. As
against the same, the Insurance Company has led evidence of Shri
Trivedi at Exh.116. In the examination-in-chief, he has stated four
reasons for supporting his conclusion as to why the fire was not an
accidental one. Such reasons are narrated as ABCD in the
examination in chief by way of an affidavit. Nothing contrary has
come out in the cross-examination except to the extent that he had
no material for such purpose. But the pertinent aspect is that in
the grounds stated in his deposition by Shri Trivedi who was
considered as an expert by the Insurance Company, first was that
there was no raw material in the premises which may lead to
accidental fie. Second ground stated was that the firewood was at a
different place and the places at which the electric line was
passing did not contain any material which can be said inflammable.
The third ground stated by him is that the firewood was at distance
in the open ground and when it was required, the same was being
carried to the boiler. The fourth ground was that in the
manufacturing process, there is no use of petrol, diesel, kerosene
or gas or any inflammable material which may lead to the accidental
fire. The fifth ground was that the electric switch was in the same
condition and there was no fire at that place. Therefore, he has
opined that the fire was a self created one and it was not
accidental. Further circumstance, which has been considered by the
learned Judge is that if there was accidental genuine fire due to
electric short circuit, first there will be defusing of all the fuse
and the wires will also get burnt. No such circumstance had come on
record and on the contrary, there was neither any defusing nor any
damage to the electric wires. Under these circumstances, when the
plaintiff had not led any evidence of any expert and the Insurance
Company led evidence to show that the fire was not accidental, the
finding record by the learned Judge cannot be said to be erroneous.
It
was next contended by Mr.Rao, learned counsel appearing for the
appellant that the document of correspondence between the Insurance
Company and Shri Trivedi, Surveyor, were there on record at Exhibits
121 and 122 and in his submission, as per the said correspondence,
the surveyor Shri Trivedi had admitted that he had no material to
show that the fire was not accidental, therefore, the learned judge
ought not to have given the finding that the fire was not genuine
but artificial.
As
such, the fire was accidental or genuine can be considered on the
basis of various circumstantial evidence which existed at the time
when the surveyor visited the premises. The learned Judge in the
discussion at paras 21 and 22 elaborately has considered the said
aspects. If the circumstances lead to the conclusion that the fire
was not accidental, the same cannot be faulted with merely because
in the correspondence between the surveyor and the insurance
company, it was stated that there was no material. As such, the
report of the surveyor has been fully accepted by the insurance
company and was pressed in service by the Insurance Company.
Be
it noted that the plaintiff had filed the Suit and the burden was
upon the plaintiff to prove that the fire was accidental, more
particularly when the defence was that the fire was not accidental
and the liability was repudiated. If the plaintiff has failed to
discharge the burden, as against the same, the Insurance Company has
proved the said factum, it cannot be said that the error has been
committed by the learned Judge in finding that the fire was not
accidental and the ground for repudiation of the liability by the
Insurance company is not legal.
No
other contention is raised.
In
view of the above, the appeal is meritless, therefore dismissed.
(JAYANT
PATEL, J.)
(BANKIM
N. MEHTA, J.)
*bjoy
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