Andhra Pradesh High Court - Amravati
Br.Mgr Oriental Insura.Comp.Ltd Anr vs M/S.Sri Venkateswara Poly Systems Ors on 14 October, 2024
APHC010152002001
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY ,THE FOURTEENTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 1533/2001
Between:
Br.mgr Oriental Insura.comp.ltd & Anr ...APPELLANT
AND
M/s Sri Venkateswara Poly Systems Ors ...RESPONDENT
Counsel for the Appellant:
1. A KRISHNAM RAJU
Counsel for the Respondent:
1. SRINIVAS CHITTURU
2. GUDURI VENKATESWARA RAO
The Court made the following:
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.1533 OF 2001
JUDGMENT:
-
This Appeal, under Section 96 of the Code of Civil Procedure [for short
„the C.P.C.‟], is filed by the Appellants/Defendant Nos.5 and 6, challenging the
Decree and Judgment, dated 16.02.2001 in O.S.No.96 of 1996 passed by the
learned Additional Senior Civil Judge, Tirupati [for short „the Trial Court‟]. The
1st Respondent herein is the plaintiff, respondent Nos.2 to 5 are defendant
Nos.1 to 4 and the appellants are the defendant Nos.5 and 6 in the said Suit.
2. The 1st respondent/plaintiff filed the Suit for recovery of Rs.2,24,615/-
being the amount payable by the defendants towards repairing charges and
damages with interest at 12% per annum from 05.04.1993 to 20.02.1996.
3. Both the parties in the Appeal will be referred to as they are arrayed
before the Trial Court.
4. The brief averments in the plaint in O.S. No.96 of 1996 are as under:
(i) On 20.01.1993 Yash Plast Industries, Ahmadabad booked the plaint
schedule property at 3rd defendant‟s office to transport the same to the
plaintiff‟s factory at Tirupati from Ahmadabad under Lorry receipt No.A92224,
dated 20.01.1993. On 22.01.1993 the Yash Plast Industries issued telegram
to the plaintiff asking the plaintiff to get Marine-cum-Erection Insurance Policy
for the schedule property immediately. Plaintiff approached the defendant
Nos.5 & 6 and gave proposal form for Marine-cum-Erection Insurance Policy.
On 29.01.1993 defendant Nos.5 and 6 issued policy and then the plaintiff
informed the same by phone to 3rd defendant to lift the goods for
transportation. The 3rd defendant promised to deliver the goods at plaintiff‟s
factory by 05.02.1993. For the above transportation of the goods, defendants
charged a sum of Rs.10,025/- from the plaintiff whereas normal charge is
Rs.10,000/- for 10 tones.
(ii) It is further averred in the plaint that the 1st defendant gave intimation
on 25.02.1993 and requested the plaintiff to take delivery of the goods.
Immediately the plaintiff visited the office of the 1st defendant and shocked to
note that the goods were damaged in the transport and refused to take
delivery unless letter of acknowledgement of damages by 1st defendant was
given. The 2nd defendant gave a letter to that effect on 26.02.1993 clearly
admitting their negligence and damage to the goods in the transport. Plaintiff
took delivery and immediately informed the same not only to 2nd defendant but
also to defendant Nos.5 and 6, requesting the insurance people to send the
surveyor to assess the damages. Surveyor visited the goods on 07.03.1993
and later filed a report. Plaintiff sent back the goods to Yash Plast Industries,
Ahmadabad and got them repaired. Plaintiff paid Rs.14,500/- towards
transporting charges for the machinery from Tirupati to Ahmadabad and back.
The company charged Rs.1,17,000/- towards inauguration and hence he filed
the suit claiming damages of Rs.50,000/- plus Rs.1,17,000/- spend towards
repairs. Interest is claimed at 12% per annum till the date of realization.
(iii) It is further averred in the plaint that after inspection of P.W.2,
Development Officer of defendant Nos.5 and 6, approached the plaintiff and
asked him to pay additional premium on the ground that he collected less
premium by mistake and the plaintiff paid the same. But, the Insurance
Company repudiated the claim on the ground that the plaintiff suppressed the
fact of damages on 09.03.1993, when he paid premium and hence, there is no
liability to the Insurance Company. Hence, the suit.
5. The brief averments in the written statement filed by the defendant
Nos.1 to 4 by contending that they have not collected excess amount from the
plaintiff and hence plaintiff has no right to claim damages. They are not liable
to pay any amount for the negligence and carelessness. Moreover, they
stated that the liability is only with the defendant Nos.5 and 6.
6. The brief averments in the written statement filed by the defendant
Nos.5 and 6 by contending that the plaintiff concealed the fact that the transit
had already been affected before payment of the insurance premium and this
would amount to mis-representation of the facts and suppression of material
facts and hence the defendants repudiated the claim of the plaintiff.
7. Based on the above pleadings, the Trial Court framed the following
issues:
(i) Whether the plaintiff is entitled for damages?
(ii) Whether the suit is bad for mis-joinder and non-joinder of
parties?
(iii) Whether there is privity of contract between plaintiff and 6th
defendant?
(iv) To what relief?
8. The Trial Court also framed the following additional issue after
the defendant Nos.5 and 6 added as parties:
Whether the plaintiff suppressed the facts?
9. During the course of trial in the trial Court, on behalf of the Plaintiff,
PW1 to PW4 were examined and Ex.A1 and Ex.A29 were marked. On behalf
of the Defendants, DW1 and DW2 were examined and Ex.B1 to Ex.B5 were
marked.
10. After completion of the trial and on hearing the arguments of both sides,
the Trial Court partly decreed the suit with proportionate costs vide its
judgment, dated 16.02.2001, against which the present appeal is preferred by
the appellants/defendant Nos.5 and 6 in the suit questioning the Decree and
Judgment passed by the Trial Court.
11. Heard Ms.P. Deepthi, learned counsel, representing on behalf of Sri A.
Krishnam Raju, learned counsel for the appellants and Sri P. Girish Kumar,
learned senior designated counsel, representing on behalf of Sri Guduri
Venkateswara Rao, learned counsel for the respondent/plaintiff.
12. Now the point that arises for determination is;
Whether the Trial Court is justified in decreeing the suit against the
appellants/defendant Nos.5 and 6?
Point:
13. The undisputed facts are on 20.01.1993 Yash Plast Industries,
Ahmadabad, booked the plaint schedule property at the 3rd defendant‟s office
to transport the same to the plaintiff factory at Tirupati from Ahmadabad and
on 22.01.1993 the Yash Plast Industries issued a telegram to the plaintiff
asking the plaintiff to get Marine-cum-Erection Insurance Policy for the
schedule property immediately and the plaintiff obtained the policy of Marine-
cum-Erection Insurance Policy from the appellants/Insurance Company on
29.01.1993 through the Development Officer of the appellants/insurance
company. The plaintiff further pleaded after obtaining policy, the plaintiff
informed the same by phone to the 3rd defendant to lift the goods for
transportation and the 3rd defendant after receipt of the phone call from the
plaintiff, lifted the goods and promised to deliver the goods at plaintiff factory
by 05.02.1993 and later at the time of taking delivery, the plaintiff noticed
about the damage occurred on the plaint schedule property. It is a suit for
recovery of damages sought by the plaintiff. Though decree is passed against
all the defendants jointly and severally, the other defendants have not filed
any appeal. The Trial Court held in its judgment that the defendant Nos.5 and
6 can recover the amount from the defendant Nos.1 to 4, if they paid the
amount to the plaintiff, as they have got the right of subrogation. Except the
defendant Nos.5 and 6, none of the defendants filed the appeal against the
decree and judgment passed by the Trial Court.
14. In order to prove the case of the plaintiff, the Managing Director of the
plaintiff-company, is examined as P.W.1. In cross examination P.W.1 admits
on 29.01.1993 he had insured the goods booked under Marine-cum-Erection
Insurance Policy and he also paid the premium and Ex.A.13 is the receipt,
Ex.A.14 is the policy copy and Ex.A.15 is the copy of the application given by
the plaintiff to the insurance company. He deposed that after receiving the
policy, they issued telegram to the defendant Nos.2 to 4 to lift the goods and
then they lifted the goods. He further deposed that on 26.02.1993 he received
information from the local office that the goods were reached from the
defendant Nos.2 to 4 and when he went there and found the same are totally
damaged and he informed the same immediately. In cross examination
nothing was elicited to disprove the above admissions made by P.W.1 in his
evidence. In cross examination it was not at all suggested to P.W.1 by the
learned counsel for the appellants before the Trial Court that the goods were
dispatched prior to obtaining a policy from the appellants by the plaintiff.
15. P.W.2 is an authorized Surveyor of appellants/insurance company. As
per his evidence, he is an authorized Surveyor for Oriental Insurance
Company from 1978 onwards and there was a damage for the machinery
during the transit and on the directions from the Divisional Manager, Tirupati,
he assessed the loss of Rs.98,300/- and Ex.A.17 is his report. He further
admits he visited the firm of the plaintiff on 02.03.1993. He also further admits
the machinery was packed with wooden boxes and the damage to the
machinery was during the transit as per his report and he made the survey as
per the oral instructions of their Divisional Office.
16. P.W.3 is the Development Officer of Oriental Insurance Company. As
per his evidence, he is working as a Development Officer in Oriental
Insurance Company from 1983 onwards and his duty is to book the policy,
collect the premium and submit the same to the insurance company and that
the receipt for the premium will be issued by the concerned Branch Manager.
He also further admits he submitted proposals of the plaintiff firm to the
insurance company for Marine-cum-Erection Insurance Policy and Ex.A.15 is
the proposal form filled by him. He further admits he also collected premium
and remitted to the insurance company for Marine-cum-Erection Insurance
Policy. He further admits Ex.A.25 is the copy of the letter written by him on
09.03.1993 to the Divisional Manager, Tirupati by informing that he collected
less premium from the plaintiff on 29.01.1993 due to oversight.
17. As per the case of the plaintiff, he submitted a proposal for Marine-cum-
Erection Insurance Policy. As per the own admissions of officer of the
appellants/insurance company, the plaintiff obtained Marine-cum-Erection
Insurance Policy for the transportation of four cases of 16 cheese winders and
he collected the premium for Marine-cum-Erection Insurance Policy and
submitted the proposal along with premium amount to the Oriental Insurance
Company for issuance of policy and the policy was given by the company.
18. P.W.4 is the Proprietor of Vijaya Durga Lorry Supply Office, Renugunta.
As per his evidence, they supplied lorry for transporting the goods belongs to
the plaintiff in the month of March, 1993 from Renugunta to Ahmadabad and
he received Rs.8,000/- as freight charges.
19. D.W.1 is the Branch Manager of the 1st defendant. As per his evidence
on 20.01.1993 the plaintiff assigned four cases of 16 cheese winders from
Ahmadabad to Tirupati and the transport charges were collected in excess as
alleged by the defendants and they have collected the transport charges in
accordance with the rules.
20. The entire record reveals that the consignment of four cases of 16
cheese winders were booked through 3rd defendant by the consigners to the
plaintiff, the plaintiff forwarded the proposal of issuance of policy for Marine-
cum-Erection Insurance Policy through Development Officer of appellants i.e.,
P.W.3. The same is supported by P.W.3. According to P.W.3, officer of the
appellants/insurance company, he collected premium for Marine-cum-Erection
Insurance Policy from the plaintiff and he submitted the same to the
appellants/insurance company along with premium amount and the policy was
obtained by the plaintiff on 29.01.1993 itself. Ex.A.15 goes to show that the
plaintiff applied for Marine-cum-Erection Insurance Policy and the period of
coverage mentioned as from 29.01.1993 to 28.02.1993. After collecting the
premium, the Oriental Insurance Company issued a policy. Ex.B.2 is the
receipt, dated 29.01.1993 issued by the Oriental Insurance Company and it is
clearly mentioned that the premium was paid for Marine-cum-Erection
Insurance Policy. After collecting the requisite premium, the Marine-cum-
Erection Insurance Policy was issued by the appellants/ insurance company.
After obtaining the policy only, the plaintiff asked the carriers to lift the goods.
As stated supra, in cross examination nothing was elicited from the plaintiff‟s
witnesses that the goods were lifted prior to 29.01.1993. Ex.A.16 shows on
26.02.1993 the plaintiff informed the damages of machinery transported,to the
insurance company and requested to appoint a Surveyor to estimate the loss.
The evidence of P.W.2, the authorized Surveyor of Oriental Insurance
Company, goes to show that he estimated the loss after physical verification
and he estimated the loss for Rs.98,300/-. As per the Surveyor Report, he
verified the machinery on 02.03.1993 itself.
21. It is the contention of the appellants that the premium for Marine-cum-
Erection Insurance Policy was paid on 09.03.1993 by suppressing the facts
that the goods were already lifted by them. Here the plaintiff noticed at the
time of taking delivery on 26.02.1993 about the damage of cheese winders. It
is the specific case of the appellants that the plaintiff paid premium for Marine-
cum-Erection Insurance Policy on 09.03.1993 by suppressing the fact of
damage of machinery and paid additional premium on 09.03.1993. As stated
supra, as directed by the appellants, P.W.2 inspected the damage of goods on
02.03.1993, hence there is no substance in the contention of the appellants
that the plaintiff suppressed the fact of damage of machinery. As per the
evidence of Development Officer of appellants/insurance company, he himself
filled the columns in the proposal form, Ex.A.15 and collected the premium
from the plaintiff and the application form is Ex.A.15. Ex.A.26 is got marked
through P.W.3. As per his evidence, plaintiff submitted proposal for applying
policy for Marine-cum-Erection Insurance Policy and Ex.A.15 is the proposal
form filled by P.W.3 and P.W.3 also collected requisite premium for Marine-
cum-Erection Insurance Policy from the plaintiff and forwarded the same to
the appellants/insurance company. After that only, the policy of coverage was
issued from 29.01.1993 to 28.02.1993 by the appellants/insurance company.
For negligence act of the appellants‟ staff for collecting less premium for the
proposal made by the plaintiff, the plaintiff cannot be found fault and the
plaintiff is no way concerned for negligence attitude of the employees of the
appellants for collecting less premium of Marine-cum-Erection Insurance
Policy. The evidence of P.W.3 coupled with Ex.A.26 goes to show that
inadvertently due to his own default, the officer of the appellants/insurance
company i.e., P.W.3 collected less premium and later he collected balance
premium on 09.03.1993. The same is also found in Ex.B.4. It was reflected
the same in Ex.B.4 that balance amount only was collected from the plaintiff.
It does not mean that the risk was commenced from 09.03.1993 up to one
month. Further more the case of the plaintiff is that after obtaining the policy
only, they telephoned to the carriers to lift the goods and later only the goods
were transported.
22. The material on record reveals that the consignment of four cases of 16
cheese winders worth about Rs.4,53,024/- were booked through 3rd defendant
by the consigners, M/s.Yash Plast Industry, Ahmadabad to the plaintiff and the
same was informed to the 3rd defendant/transport company to lift the goods for
transportation as pleaded by the plaintiff after obtaining policy on 29.01.1993.
The same is not denied by the appellants in their evidence or nothing was
elicited from the plaintiff‟s witnesses in cross examination by the learned
counsel for the appellants. Ex.A.27 and Ex.A.28 supports the evidence of
P.W.4, the same clearly shows that the plaintiff spent Rs.14,500/- towards
transport charges for carrying the machinery boxes to Ahmadabad for repairs
and to bring them back. Further more, it is already proved that the plaintiff
spent Rs.1,17,000/- for repair charges by way of documentary evidence and
Rs.14,500/- for transporting charges and is also entitled to recover the freight
charges of Rs.10,025/- and therefore he is entitled an amount of Rs.24,525/-
towards damages and also repairing charges of Rs.1,17,000/-, in total the
plaintiff is entitled an amount of Rs.1,41,525/- as granted by the Trial Court.
23. The learned counsel for the appellants placed reliance case of National
Insurance CO. Ltd. Vs. Sujir Ganesh Nayak & CO. and another1 wherein
the Hon‟ble Supreme Court held as follows:
16. From the case-law referred to above the legal position that emerges
is that an agreement which in effect seeks to curtail the period of
limitation and prescribes a shorter period than that prescribed by law
would be void as offending Section 28 of the Contract Act. That is
because such an agreement would seek to restrict the party from
enforcing his right in Court after the period prescribed under the
agreement expires even though the period prescribed by law for the
enforcement of his right has yet not expired. But there could be
agreements which do not seek to curtail the time for enforcement of the
right but which provide for the forfeiture or waiver of the right itself if no
action is commenced within the period stipulated by the agreement.
Such a clause in the agreement would not fall within the mischief
of Section 28 of the Contract Act. To put it differently, curtailment of the
period of limitation is not permissible in view of Section 28 but extinction
of the right itself unless exercised within a specified time is permissible
and can be enforced. If the policy of insurance provides that if a claim is
made and rejected and no action is commenced within the time stated in
the policy, the benefits flowing from the policy shall stand extinguished
and any subsequent action would be time barred. Such a clause would
fall outside the scope of Section 28 of the Contract Act. This, in brief,
(1997) 4 Supreme Court Cases 366
seems to be the settled legal position. We may now apply it to the facts
of this case.
24. The learned counsel for the appellants also placed another reliance in
the case of Union of India and another vs. Indusind Bank Limited and
another2 wherein the Hon‟ble Supreme Court held as follows:
24. On a conspectus of the aforesaid decisions, it becomes clear
that Section 28, being substantive law, operates prospectively, as
retrospectivity is not clearly made out by its language. Being remedial in
nature, and not clarificatory or declaratory of the law, by making certain
agreements covered by Section 28(b) void for the first time, it is clear
that rights and liabilities that have already accrued as a result of
agreements entered into between parties are sought to be taken away.
This being the case, we are of the view that both the Single Judge and
Division Bench were in error in holding that the amended Section
28 would apply.
25. Considering that the unamended Section 28 is to apply, it is
important to advert to the said section and see what are its essential
ingredients. First, a party should be restricted absolutely from enforcing
its rights under or in respect of any contract. Secondly, such absolute
restriction should be to approach, by way of a usual legal proceeding,
the ordinary tribunals set up by the State. Thirdly, such absolute
restriction may also relate to the limiting of time within which the party
may thus enforce its rights.
25. In a case of P. Dasa Muni Reddy vs. P. Appa Rao3, the Hon‟ble Apex
Court held as follows:
The doctrine which the courts of law will recognise is a rule of judicial
policy that a person will not be allowed to take inconsistent position to
(2016) 9 Supreme Court Cases 720
(1974) 2 Supreme Court Cases 725
gain advantage through the aid of courts. Waiver sometimes partakes of
the nature of an election. Waiver is consensual in nature. It implies a
meeting of the minds. It is a matter of mutual intention. The doctrine
does not depend on misrepresentation. Waiver actually requires two
parties, one party waiving and another receiving the benefit of waiver.
There can be waiver so intended by one party and so understood by the
other. The essential element of waiver is that there must be a voluntary
and intentional relinquishment of a right. The voluntary choice is the
essence of waiver. There should exist an opportunity for choice between
the relinquishment and an enforcement of the right in question. It cannot
be held that there has been a waiver of valuable rights where the
circumstances show that what was done was involuntary. There can be
no waiver of a non-existent right. Similarly, one cannot waive that which
is not one‟s as a right at the time of waiver.
26. In a case of Jaswantsingh Mathurasingh and another vs.
Ahmedabad Municipal Corporation and others4, the Hon‟ble Apex Court
held as follows:
14. The principle of Waiver connotes issuance of notice and non-
response thereto. Everyone has a right to waive an advantage or
protection which law seeks to give him/her. Undoubtedly, if a notice is
issued and no representation was made by either the owner, tenant or a
sub-tenant, it would amount to waive the opportunity and such person
cannot be permitted to turn round, after the scheme reaches finality, to
say that there is non-compliance of sub-rules (3) and (4) of Rule 21. It
would amount to putting premium on dilatory and dishonest conduct.
27. Three Judges Bench of Hon‟ble Apex Court in a case of Kalpraj
Dharamshi and another vs. Kotak Investment Advisors Limited and
another5 , the Hon‟ble Apex Court held as follows:
1992 Supp (1) Supreme Court Cases 5
(2021) 10 Supreme Court Cases 401
119. For considering, as to whether a party has waived its rights or not, it
will be relevant to consider the conduct of a party. For establishing
waiver, it will have to be established, that a party expressly or by its
conduct acted in a manner, which is inconsistent with the continuance of
its rights. However, the mere acts of indulgence will not amount to
waiver. A party claiming waiver would also not be entitled to claim the
benefit of waiver, unless it has altered its position in reliance on the
same.
28. Admittedly, in the case on hand, the plea of waiver has not been
pleaded by the appellants in the written statement and no evidence is
adduced. It is a settled principle of law that the parties to the suit cannot travel
beyond pleadings and so also the Court cannot travel beyond the pleadings
and it is also well settled that the Court cannot record any finding on the
issues which are not part of the pleadings and any finding recorded on an
issue dehor the pleadings is without jurisdiction.
29. In a case of Bachhaj Nahar vs. Nilima Mandal and another 6 , the
Hon‟ble Apex Court held as follows:
The object and purpose of pleadings and issues is to ensure that the
litigants come to trial with all issues clearly defined and to prevent cases
being expanded or grounds being shifted during trial. Its object is also to
ensure that each side is fully alive to the questions that are likely to be
raised or considered so that they may have an opportunity of placing the
relevant evidence appropriate to the issues before the court for its
consideration.
30. In the case on hand, admittedly, except Ex.A.22 letter correspondence
from the appellants to the plaintiff, there are no other notices or letter
correspondence between the appellants and plaintiff. In Ex.A.22 plea of
waiver has not been pleaded by the appellants. The appellants did not plead
(2008) 17 Supreme Court Cases 491
the plea of waiver in the written statement itself. In cross examination nothing
was elicited from plaintiff‟s witnesses about the plea of waiver by the learned
counsel for the appellants. It was settled that waiver can be inferred only if
and after it is shown that the party knew about the relevant facts and was
aware of his right to take the objection question. It is also well settled that for
applying the principle of waiver, it will have to be established that though the
party was aware about the relevant facts and the right to take an objection, he
has neglected to take such an objection. Admittedly, in the case on hand, in
Ex.A.22 plea of waiver has not been pleaded and no evidence was produced
by the appellants and in cross examination nothing was elicited from the
plaintiff‟s witnesses by the learned counsel for the defendants with regard to
plea of waiver, therefore, the appellants are not permitted to take the plea of
waiver in the appeal proceedings.
31. Another ground urged by the appellants to set aside the decree and
judgment passed by the Trial Court is that the plaintiff has to file a suit within
three calendar months from the date of denial by the appellants for claiming
damages, but, the plaintiff has not instituted the suit within three calendar
months and that the suit filed by the plaintiff is barred by limitation.
32. The learned counsel for the appellants placed reliance in the case of
V.M. Salgaocar and bros. vs. Board of Trustees of Port of Mormugao and
another7 wherein the Hon‟ble Apex Court held as follows:
The mandate of Section 3 of the Limitation Act is that it is the duty of the
court to dismiss any suit instituted after the prescribed period of
limitation irrespective of the fact that limitation has not been set up as a
defence. If a suit is ex facie barred by the law of limitation, a court has
no choice but to dismiss the same even if the defendant intentionally has
not raised the plea of limitation.
(2005) 4 Supreme Court Cases 613
33. In the case on hand the date of denial of the claim by the appellants is
23.08.1993. Admittedly, the appellants wrote a letter to the plaintiff under
Ex.A.22 by expressing their inability to entertain the claim of the plaintiff and
they have not pleaded about three months limitation to file a claim before any
forum. In the case on hand the date of denial of claim for the first time by the
appellants is 23.08.1993. The plaintiff instituted the suit before the Trial Court
on 22.02.1996. The relief of claim by the plaintiff in the suit is for claiming the
relief of amount from the defendants under the head of damages. Therefore,
the suit is filed within three years from the date of denial by the appellants and
that the suit claim is not barred by limitation.
34. Learned counsel for the appellants placed another reliance in the case
of Himachal Pradesh State Forest Company Limited vs. United India
Insurance Company Limited 8. In the case on hand after the policy was
obtained by the plaintiff, the goods were transported during the period of
coverage of policy. Therefore, the facts and circumstances in the cited
decision is not at all applicable to the facts of the present case.
35. Learned counsel for the appellants placed another reliance in the case
of K. Lubna and others vs. Beevi and others 9 . The facts and
circumstances in the cited decision are relates to the Tenancy Act. Therefore,
the facts and circumstances in the cited decision are different to the instant
case.
36. Learned counsel for the appellants placed another reliance in the case
of Malluru Mallappa (died) through Legal Representatives vs.
Kuruvathappa and others 10 . The ratio laid down in the cited decision is
relates to provision under Order 41, Rule 31 and Sections 96 and 100 of the
Code of Civil Procedure. Therefore, the facts and circumstances in the cited
decision are different to the instant case.
(2009) 2 Supreme Court Cases 252
(2020) 2 Supreme Court Cases 524
(2020) 4 Supreme Court Cases 313
37. The material on record reveals that the consignment of 16 cheese
winders worth about Rs.4,53,024/- were transported by the consigner to the
plaintiff after obtaining Marine-cum-Erection Insurance Policy and
subsequently plaintiff noticed at the time of taking delivery, the goods were
damaged and in a worst condition. Further more, the premium was also paid
and policy is in force by the time of transporting the machinery to the
destination. Further more, the Ex.A.27 and Ex.A.28 supported by the evidence
of P.W.4 clearly goes to show that the plaintiff spent an amount of Rs.14,500/-
towards transport charges for return back the machinery to Ahmadabad for
repairs and to bring them back. Further more, in total the plaintiff entitled an
amount of Rs.1,17,000/- towards repairing charges and an amount of
Rs.24,525/- for damages, in total the plaintiff is entitled an amount of
Rs.1,41,525/-. Further more, the decree and judgment passed by the Trial
Court is against all the defendants. Except the defendant Nos.5 and 6, none of
the defendants challenged the decree and judgment passed by the Trial
Court. By decreeing the suit, the Trial Court clearly gave finding that the
defendant Nos.5 and 6 i.e., appellants herein can recover the amount from the
defendant Nos.1 to 4, if they paid the amount to the plaintiff, as they have got
right of subrogation. But, instead of availing the said remedy, the appellants
i.e., defendant Nos.5 and 6 filed the present appeal. As stated supra, none of
the defendants except defendant Nos.5 and 6, challenged the decree and
judgment passed by the Trial Court.
38. The law is well settled by the Hon‟ble Apex Court in a case of Urban
Improvement Trust, Bikaner vs. Mohan Lal11 wherein it is held that;
"this Court has repeatedly expressed the view that the Government and
statutory authorities should be model or ideal litigants and should not put
forth false, frivolous, vexatious, technical contentions to obstruct the path
of justice".
(2010) 1 Supreme Court Cases 512
39. As stated supra, the decree and judgment passed against all the
defendants, but the insurance company/defendant Nos.5 and 6 alone filed the
appeal. The Oriental Insurance Company being public authority has to look
after the benefits of policy-holders and it is not supposed to rely on technical
pleas for the purpose of defeating legitimate claims of citizens. Statutory
authorities exist to discharge statutory functions in public interest and should
have responsible to litigants. The insurance company cannot raise frivolous
and unjust objections, nor act in a callous and high-handed manner. They
cannot behave like some private litigants with profit motives nor can they
resort to unjust enrichment.
40. In the light of the aforesaid reasons, I do not find any illegality or
irregularity in decree and judgment passed by the Trial Court. The decree and
judgment passed by the Trial Court is perfectly sustainable under law and it
requires no interference, resultantly the appeal is dismissed.
41. In the result, the Appeal Suit is dismissed, confirming the decree and
Judgment, dated 16.02.2001 in O.S.No.96 of 1996 passed by the learned
Additional Senior Civil Judge, Tirupati. Considering the facts and
circumstances of the case each party do bear their own costs in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
_________________________
V. GOPALA KRISHNA RAO, J
Date: 14.10.2024
PGR
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.1533 OF 2001
Date: 14.10.2024
PGR
