United India Insurance Co. Ltd. ... vs Sant Shree Gajanan Maharaj ...
2021 Latest Caselaw 1928 Bom

FAs 644&955-10                                 1          Common Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                      FIRST APPEAL No. 644/2010
Sant Shri Gajanan Maharaj Sansthan,
Branch at Pandharpur, through its
Managing Trustee, Shegaon, District Buldana.                       APPELLANT

                               .....VERSUS.....

United India Insurance Company Limited,
Branch Khamgaon, through its Branch
Manager, Maya Building, 1st Floor,
Khamgaon, District Buldana.                                       RESPONDENT


                   Shri A.R. Patil, counsel for the appellant.
             Mrs. Anita Mategaonkar, counsel for the respondent.


                                   WITH
                       FIRST APPEAL NO. 955/2010

United India Insurance Co. Ltd.,
Khamgaon Branch, through the Regional
Manager, Nagpur Regional Office,
Shankar Nagar Square, Nagpur.                                      APPELLANT
                               .....VERSUS.....

Sant Shree Gajanan Maharaj Sansthan Shegaon,
Branch at Pandharpur, through Shri Shivshankar
Sukhdeo Patil, Managing Trustee, Age 68 years,
Occ: Managing Trustee, r/o Shegaon,
Tah. Shegaon, Distt. Buldana.                                     RESPONDENT


              Mrs. Anita Mategaonkar, counsel for the appellant
                 Shri A.R. Patil, counsel for the respondent


CORAM :      A.S. CHANDURKAR         AND        N.B. SURYAWANSHI, JJ.

DATE ON WHICH ARGUMENTS WERE HEARD : 04TH JANUARY, 2021. DATE ON WHICH JUDGMENT IS PRONOUNCED : 29TH JANUARY 2021.

FAs 644&955-10 2 Common Judgment

ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)

Since both these appeals raise challenge to the judgment

dated 25.04.2010 in Special Civil Suit No.41 of 2004 decided by the

learned Civil Judge (Senior Division), Khamgaon, they are being decided

together by this common judgment. For the sake of convenience the

parties are being referred to as per their status before the trial Court.

2. The case of the plaintiff as pleaded is that the plaintiff is a

Public Trust registered under the provisions of the Bombay Public Trust

Act, 1950 and the Societies Registration Act, 1860 and it is represented

by its Managing Trustee. The Trust runs various educational institutions

and charity hospitals at various places in the State of Maharashtra. The

Trust on 04.08.1977 purchased non-agricultural property at Pandharpur

for construction of Sant Gajanan Maharaj Temple and in that process it

spent an amount of Rs.6,96,00,000/-. With a view to safeguard the said

property, it entered into an agreement of insurance with the defendant

which is a company registered under the Companies Act, 1956. The

policy of insurance was dated 13.09.2001 and by paying premium of

Rs.40,399/-, the risk to the Temple along with Bhakt Niwas No.1 to 4,

the compound wall, the main gate as well other miscellaneous material

was sought to be covered. The risk from all damages to the said property

was got covered and the policy operated for the period from 13.09.2001 FAs 644&955-10 3 Common Judgment

to 12.09.2002. By amending the plaint it was further pleaded that on

account of earthquakes during the period from 15.05.2001 to

04.09.2003, there was damage caused to the said structures. A certificate

to that effect was issued by the Collector of Latur. Similarly, river

Chandrabhaga that was flowing adjoining the Temple witnessed heavy

floods during the period from 15.05.2001 to 04.09.2003. The properties

of the trust that were insured were submerged in about twelve feet deep

flood water for three days thereby causing damage to it. As a result of

the same, cracks developed to the foundation to the structure of the

buildings and the Building designer advised dismantling the entire

structure. On the advice of the Civil Engineer, the Temple, the main gate

as well as the Bhakt Niwas was dismantled and thereafter reconstructed.

The Trust was required to spent huge amount for dismantling the existing

structures and thereafter reconstructing the same. On the basis of these

developments the Trust pleaded that it was required to bear substantial

costs and therefore there was a cause of action for recovering an amount

of Rs.6,75,00,000/- from the defendants. It was pleaded the insurance

agreement was entered into at Khamgaon as the defendants had their

office there and it was renewed from time to time also at Khamgaon. The

premium was paid at Khamgaon and therefore part of cause of action had

arisen there. On these pleadings, the Trust filed Special Civil Suit

No.41/2004 on 19.08.2004 seeking a declaration that it was entitled for FAs 644&955-10 4 Common Judgment

the insurance claim under the policy for the damages caused to the

buildings. A decree for an amount of Rs.6,75,00,000/- was prayed for.

3. The Insurance Company-defendant filed its written statement

at Exhibit 11. It raised an objection to the territorial jurisdiction of the

civil Court at Khamgaon on the ground that the property insured was

located at Pandharpur which fell within the jurisdiction of the Solapur

Court. The execution of the insurance policy was not disputed nor the

fact that the premium for the same was paid. The claim for the insurance

was however opposed on the ground that no damage had been caused by

the earthquake as alleged. Despite request being made to the Trust to

supply information about the date and time when the earthquake

occurred, no details were given. It was further denied that by virtue of

floods to river Chandrabhaga, damage had been caused to the building in

question. It was alleged that on account of defect in construction the

buildings developed cracks and therefore such damage was not covered

under the insurance policy. It was also pleaded that the surveyor had

visited the site in question and as per the survey report the liability of the

insurance company was only to the extent of Rs.1,23,868/- but this was

subject to providing a certificate by the Meteorology Department. Such

certificate had not been produced. It was thus pleaded that the suit was

liable to be dismissed.

FAs 644&955-10 5 Common Judgment

4. Before the trial Court, the parties led evidence and after

considering the same the trial Court recorded a finding that it had

territorial jurisdiction to entertain the suit. It further held that the Trust

had proved that the insured property developed cracks due to the

earthquake and natural water pressure. It further held that the Insurance

Company did not prove that the insured property developed cracks due to

architectural and engineering defects. It assessed the loss at

Rs.19,66,844/- and held the Insurance Company liable to pay the same

under the policy. The suit was accordingly decreed to the aforesaid

extent. The plaintiff being aggrieved by the failure on the part of the trial

Court to decree the suit on its entirety has filed First Appeal

No.644/2010. The Insurance Company being aggrieved by the decree as

passed has challenged the same by filing First Appeal No.955/2010.

5. Shri A.R. Patil, learned counsel for the plaintiff-Trust

submitted that the trial Court committed an error in partly decreeing the

suit. The fact that the Temple, the four buildings of Bhakt Niwas, the

compound wall and the main gate having been duly insured pursuant to

the insurance policy dated 13.09.2001 (Exhibit 55) for an amount of

Rs.6,75,00,000/- and it having been proved that the structures were

damaged on account of the earthquake that occurred on 26.01.2001, the

entire claim as raised by the Trust with the Insurance Company ought to FAs 644&955-10 6 Common Judgment

have been allowed. There was evidence on record that on account of

floods to river Chandrabhaga which was at a distance of one kilometer

from the Temple complex, the foundation of the buildings had sustained

damage. The Trust had led substantial evidence to indicate the damage

as caused by examining material witnesses. There was no reason to insist

from any certificate of the Meteorology Department and merely because

Municipal Council had informed about such damage having been caused

to the structures the same could not be the ground to deny the entire

claim. On the contrary, the Court was pleased to appoint experts as

Court Commissioners and the reports in that regard at Exhibits 118 and

120 clearly justified the claim of the plaintiff. The claim as made was on

account of damage suffered by the insured property during the period

when the insurance policy was in operation. It had been rightly held by

the trial Court that the Insurance Company had failed to prove that any

damage was caused due to structural or engineering defects. There was

no reason for the trial Court to restrict the grant of the insurance claim

only for the damage caused to Bhakt Niwas Building Nos.1 and 2 and to

refuse to grant any amount on account of damage to the Temple or other

insured structures. The witnesses examined by the Trust had led credible

evidence and there was no reason for only decreeing the suit to the extent

of Rs.19,66,844/-. It was thus submitted that on a proper appreciation of

the entire evidence on record it was clear that the suit was liable to be FAs 644&955-10 7 Common Judgment

decreed in its entirety. To substantiate his contentions, the learned

counsel for the plaintiff relied upon the decisions in United India

Insurance Co. Ltd. Versus Kiran Combers & Spiners [(2007) 1 SCC 368],

New India Assurance Company Limited Versus Zuari Industries Limited

& Others [(2009) 9 SCC 70], Oriental Insurance Company Limited

Versus Ozma Shipping Company & Another [(2009) 9 SCC 159], New

India Assurance Company Limited Versus Pradeep Kumar [(2009) 7 SCC

787], Traders Syndicate Versus Union of India [AIR 1983 Calcutta 337]

and Dilipsingh Versus Dhaniram Naravandas & Others [AIR 1976

Bombay 38].

6. Ms. Anita Mategaonkar, learned counsel for the defendant-

Insurance Company in support of the grounds raised in First Appeal

No.955/2010 submitted that the trial Court had no territorial jurisdiction

to entertain the suit as filed. The property insured was situated at

Pandharpur in Solapur District which was beyond the territorial

jurisdiction of Khamgaon Court. The claim for insurance was based on

the damage caused to the insured property on account of occurrence of

the events also at Pandharpur. Merely because the insurance policy was

entered into at Khamgaon the same could not be a reason to confer

jurisdiction on the Court at Khamgaon. She then submitted that the

evidence on record led by the Trust was not sufficient to hold that on FAs 644&955-10 8 Common Judgment

account of the earthquake as well as the flooding of river Chandrabhaga

damage had been caused to the insured property. On the contrary, it was

the specific case of the Insurance Company that on account of structural

and engineering defects the property was required to be dismantled.

Referring to the deposition of the Surveyor of the Insurance Company, it

was submitted that this witness could notice damage only to the two

buildings where the Bhakt Niwas was located. No damage to the Temple

or other structures was pointed out by the members of the Trust to the

representatives of the Insurance Company. The Court Commissioners had

inspected the property after its reconstruction and their evidence was not

of much help to the Trust. The claim as raised by the Trust was on a

higher side and though the construction of the properties was much prior

to the damage being caused, the Trust had been claiming the entire cost

of construction without considering the aspect of depreciation. The trial

Court ought not to have granted any amount of claim as made by the

Trust. It was thus submitted that on these counts the judgment of the

trial Court was liable to be set aside.

7. In reply to the submission that the trial Court had no

territorial jurisdiction Shri A.R. Patil, learned counsel for the Trust

submitted that the objection raised to the territorial jurisdiction did not

go to the root of the matter and it was necessary for the defendant to FAs 644&955-10 9 Common Judgment

have indicated the prejudice caused on account of the suit being tried at

Khamgaon. In any event, it was submitted that since the part of cause of

action had arisen at Khamgaon the suit had been rightly entertained. In

that regard, he relied upon the decisions in Kiran Singh & Others Versus

Chaman Paswan & Others [AIR 1954 SC 340], Union of India & Another

Versus Shri Ladulal Jain [AIR 1963 SC 1681], A.B.C. Laminart Pvt. Ltd.

& Another Versus A.P. Agencies, Salem [AIR 1989 SC 1239], Mantoo

Sarkar Versus Oriental Insurance Co. Ltd. & Others [2009 ACJ 564] and

Malati Sardar Versus National Insurance Co. Ltd. & Others [2016 ACJ

542].

8. In the light of the pleadings of the parties and the contentions

now raised in the appeals, the following points arise for determination:-

(a) Whether the trial Court has correctly held that it had territorial jurisdiction to try the suit as filed?

(b) Whether the plaintiff has proved that it is entitled to be indemnified under the terms of the policy of insurance at Exhibits 55 to 58?

(c) Has the defendant proved that it is not liable to satisfy the claim as raised by the plaintiff?

(d) If the plaintiff is successful in proving that it is entitled to be indemnified under the policy of insurance what is the amount of insurance claim to which it is entitled?

FAs 644&955-10 10 Common Judgment

9. Since the issue of territorial jurisdiction was raised by the

defendant before the trial Court which answered the same against the

defendant, it would be necessary to first consider that issue. It is not in

dispute that there was an contract of insurance between the plaintiff and

defendant which culminated into execution of annual policies of

insurance at Exhibits 55 to 58. The property to be insured was situated at

Pandharpur, District Solapur. The contract between the parties was

entered into at Khamgaon, District Buldana on 14.09.2001 and the

amount of premium was paid by the plaintiff and received by the

defendant at Khamgaon. The claim for insurance was also raised by the

plaintiff at Khamgaon after which the present suit based on the policy of

insurance came to be filed in the Court of Civil Judge (Senior Judge)

Khamgaon.

The aforesaid indicates that as the contract of insurance

between the parties was executed at Khamgaon and the policy of

insurance was also issued by the Office of defendant at Khamgaon, part of

cause of action arose at Khamgaon. On acceptance of premium by the

defendant at Khamgaon, the policy of insurance commenced and though

the property insured was located at Pandharpur, District Solapur the

Court at Khamgaon had jurisdiction to entertain the suit based on the

insurance policies at Exhibits 55 to 58 as the part of the cause of action

had arisen at Khamgaon. We find that the trial Court has rightly held that FAs 644&955-10 11 Common Judgment

the Court had territorial jurisdiction to entertain the suit. The decisions

relied upon by the learned counsel for the plaintiff in ABC Laminant Pvt.

Ltd., Kiran Singh & Others , Union of India & another and Rajesh Coach

Bulders, Kolhapur (supra) clearly support the finding recorded by the trial

Court on this question. In any event the defendant has failed to point out

any prejudice caused by virtue of the suit having been tried at Khamgaon.

Such prejudice has neither been pleaded nor proved. It is thus held that

the Court at Khamgaon, District Buldana had territorial jurisdiction to

entertain the suit and the finding recorded by the trial Court in that

regard is liable to be upheld. Point (a) is answered in the affirmative.

10. For considering the entitlement of the plaintiff to the

principal relief claimed in the suit, it would be necessary to first refer to

the plaint averments as made. According to the plaintiff, the Trust had

purchased immovable properties at Pandharpur on 04.08.1997 after

which a Temple of Sant Gajanan Maharaj was constructed by spending an

amount of Rs.6,96,00,000/-. With a view to protect that property, the

Temple along with the Bhakt Niwas as well as compound wall and main

gate was duly insured with the defendant. The risk covered was from

damage to the structures including damage from earthquakes and natural

water pressure. It has then been pleaded that on account of earthquakes

during the period from 15.05.2001 to 04.09.2003 as well as on account FAs 644&955-10 12 Common Judgment

of floods to river Chandrabhaga that was flowing at a short distance from

the structures there was damage caused to the entire structure of the

Temple, buildings of Bhakt Niwas, the compound wall as well as the main

gate. As a result the Building Designer and Valuer appointed by the

plaintiff inspected the structures on 12.12.2002 and on his

recommendation as well as advice of the Civil Engineer the plaintiff had

proceeded to dismantle the entire structure of the Temple and the gate.

Similarly the buildings housing the Bhakt Niwas and the main gate were

also dismantled. On this basis, it is the case of the plaintiff that the entire

cost of the structures and the entire policy claim of Rs.6,75,00,000/- was

recoverable from the defendant. It has also pleaded that the plaintiff

spent substantial amount on reconstruction of all these structures.

11. The Insurance Company in its written statement had denied

that the structures were damaged on account of earthquakes and flooding

of river Chandrabhaga. The necessity of having the structures demolished

was disputed and according to the defendant the damage was caused on

account of structural and engineering defects in the property.

12. In the light of these pleadings, it would be necessary to refer

to the relevant evidence led by the parties to substantiate their respective

stands and to determine whether the plaintiff is entitled to be FAs 644&955-10 13 Common Judgment

indemnified under the policy of insurance. The Trust examined its

Supervisor at Exhibit 15. In his deposition, he stated that for construction

of the Temple, an expenditure of Rs.2,50,00,000/- approximately was

incurred. Expenditure of Rs.3,16,00,000/- was incurred on the

construction of the buildings of Bhakt Niwas. Further amount of

Rs.65,00,000/- was spent on the construction of the main gate and

Rs.12,00,000/- was spent on the construction of the compound wall. The

insurance policies at Exhibits 55 to 58 were exhibited in his deposition.

At Exhibit 58 is the cover note of the fire policy for the period from

24.09.1999 to 23.09.1999. At Exhibit 55 is another cover note of the fire

policy and the period of insurance mentioned is from 13.09.20001 to

12.09.2002. Total premium was paid by valuing the insured property at

Rs.6,75,00,000/-. One of the conditions of the policy was the coverage

with regard to damage caused due to earthquakes. This policy was then

renewed for the period from 24.09.2002 to 23.09.2003 and that policy is

at Exhibit 56. Thereafter further cover note for the period from

24.09.2003 to 23.09.2004 is at Exhibit 57. The risk from earthquake, fire

and shock has been covered. The Supervisor examined by the plaintiff

admitted in his deposition that damage to the buildings was caused

during the earthquakes that occurred after 2001. There were earthquakes

during the period from 2001 to 2003 and that the claim of the plaintiff

was based on the damage caused during the period from 2001 to 2003.

FAs 644&955-10 14 Common Judgment

It has further come in his evidence that the construction of the Temple

commenced in the year 1994 and was completed in the year 2001. The

insurance policy with regard to the construction was obtained for the first

time in the year 2001 from the defendant. It was in the year 2001 that it

was revealed for the first time that damage had been caused to the

construction undertaken by the Trust at Pandharpur. The actual amount

spent for the construction of the structures was about Rs.6,75,00,000/-

and it is for that reason that the properties were insured for that amount.

13. The plaintiff then relied upon the deposition of Shri Pankaj

Shitoot, a Civil Engineer who has been examined as the third witness at

Exhibit 114. As per the certificate at Exhibit 75 dated 15.12.2002, the

Civil Engineer stated that he had visited the site on 12.12.2002 and had

found that there were wide cracks at the foundation of the

superstructures of the marble work of the Temple and the stone gate. It

was opined that the entire structure be dismantled as it was likely to

collapse at any time. This witness stated that the advice given by him

was accepted by the Trust after which the structures were dismantled. In

his cross-examination, he stated that there were about ten cracks to the

superstructures of the entrance gate. There were many cracks to the

superstructures of Bhakt Niwas Nos.1 and 2 but he could tell the exact

number of cracks.

FAs 644&955-10 15 Common Judgment

The plaintiff also examined the Court Commissioners who

had inspected the properties of the Trust pursuant to their appointment

by the Court.

14. The defendant examined its Branch Manager Vijay Dongre at

Exhibit 127 who stated that during his tenure as Branch Manager an

intimation was received from the plaintiff as regards the damage caused

on account of the earthquake on 26.01.2001 and such intimation was

given on 20.01.2002. After receiving such intimation the said witness

along with the Surveyor of the Insurance Company Shri Narendra Khatri

visited the properties of the plaintiff on 29.01.2002. The Surveyor had

assessed the loss and the plaintiff had also submitted an estimate of the

damage caused. On noticing that the damage would be covered under

the terms and conditions of the policy but subject to a certificate from the

Meteorology Department, the plaintiff was informed to obtain such

certificate. He referred to a letter dated 03.04.2002 at Exhibit 135 that

was issued to the Meteorology Department in that regard. He also

referred to a letter sent on 02.01.2004 in which it was stated that as no

certificate from the Meteorology Department was submitted the claim of

the plaintiff was treated as "No Claim". In his cross examination he

stated that there was no intimation received from the plaintiff about the

damage alleged to be caused by the earthquake. He further admitted that FAs 644&955-10 16 Common Judgment

after issuing the letter at Exhibit 135 to the Meteorology Department

there was no follow up. He admitted that he visited the buildings of

Bhakt Niwas on 29.01.2002.

The defendant then examined the Surveyor Narendra Khatri

at Exhibit 136. He deposed that after being informed by the defendant to

carry out the survey he visited the site on 29.01.2002 and carried out the

survey. His report is at Exhibit 142. In his affidavit at Exhibit 136 he

specifically stated that the plaintiff's witness had only shown him the

damage caused to building nos. 1 and 2 of the Bhakt Niwas. No other

structure affected by the earthquake was shown to him. This stand taken

by him was not disturbed in his cross-examination.

15. On a consideration of the entire evidence on record it

becomes clear that after completion of the construction of the Temple,

buildings of the Bhakt Niwas, the compound wall and the main gate,

these properties were insured by the Trust to safeguard it against any

damage likely to be caused from earthquakes, fire, shock, etc. The

insurance policies drawn by the defendant are from 24.09.1999 to

23.09.2004 (Exhibits 55 to 58). The properties insured are shown to be

valued at Rs.6,75,00,000/- in 2001. The letter dated 10.02.2004 issued

by the Additional Collector, Latur (Exhibit 74) gives information about

earthquakes having occurred between 15.05.2001 to 04.09.2003. As per FAs 644&955-10 17 Common Judgment

the letter dated 20.01.2002 written by the Trust to the defendant (Exhibit

131) on account of impact of the earthquake that occurred on

26.01.2001, the five buildings of the Bhakt Niwas were damaged

resulting into water seepage from the terrace. There is no reference in

this letter to any damage having been caused to the Temple, the

compound wall or the main gate. Pursuant to the letter dated 20.01.2002

(Exhibit 131 written to the defendant, it appointed Narendra H. Khatri as

the Insurance Surveyor and Loss Assessor to inspect the damage as caused

to the insured properties of the Trust. He deposed (Exhibit 136) that he

was shown only Building Nos.1 and 2 of the Bhakt Niwas by the

representative of the Trust as properties damaged in the earthquake.

There is no cross-examination of the said witness on this aspect and this

stand of the defendant that only two buildings of the Bhakt Niwas were

shown for inspection has gone unchallenged. The Insurance Surveyor

accordingly carried out his survey on 28.01.2002 and 29.01.2002. He

accordingly submitted his report to the defendant (Exhibit 142) which is

dated 26.03.2002. The Building Designer of the Trust, Pankaj Shitoot

inspected the properties of the Trust on 12.12.2002 and certified the

damage caused to the Temple, its buildings, the compound wall and the

main gate (Exhibit 75). It is on his advise that the Trust decided to

dismantle the Temple, its buildings and main gate. This witness in

paragraph 11 of his deposition (Exhibit 114) admitted that cracks had FAs 644&955-10 18 Common Judgment

developed to Building Nos.1 and 2 of the Bhakt Niwas. In the context of

the letter at Exhibit 131, the defendant on 03.04.2002 (Exhibit 135)

sought information about occurrence of an earthquake on 26.01.2001

from the Meteorology Department at Latur. There was however no

response to the same.

From the aforesaid evidence on record it is clear that though

it was the case of the Trust that all the insured properties suffered

damage on account of earthquakes and flooding of river Chandrabhaga, it

informed the defendant of such damage being caused only to Building

Nos.1 and 2 (Exhibit 131). Acting on this information the defendant

appointed its Surveyor and he was also shown only Building Nos.1 and 2

by the representative of the Trust as having been damaged on account of

the earthquake. There is no evidence on record to substantiate the claim

of the Trust that all the insured properties had suffered damage due to

the earthquakes. The trial Court therefore was justified in holding that it

was only Building No.1 and 2 that suffered damage on account of the

earthquakes. This is also made clear in the report of the Surveyor dated

26.03.2002 (Exhibit 142).

16. The trial Court in exercise of powers under Order XXVI Rule 9

of the Code of Civil Procedure, 1908 passed an order below Exhibit 13 on

12.08.2005 and directed local inspection of the insured properties. The FAs 644&955-10 19 Common Judgment

parties were directed to propose the names of qualified Architects and

Engineers to ascertain whether damage was caused to the properties on

account of earthquakes and water pressure or otherwise on account of

architectural and engineering defects at the time of construction. The

Court Commissioners inspected the properties on 21.06.2006 and

submitted their reports (Exhibits 118 and 120). Both these witnesses

admitted in their cross-examination that when they inspected the

properties, the Temple and the main gate were already dismantled. In

fact in the report dated 14.02.2006 (Exhibit 120), the Court

Commissioner Anil Kemkar admitted that damage to the structures was

not caused either by the earthquakes or due to water pressure. Similar

opinion has been expressed in the joint report by both the Court

Commissioners dated 25.06.2006 (Exhibit 118).

In view of the fact that the local inspection was carried out

after dismantling of the insured properties and earthquakes as well as

water pressure having been ruled out as the cause of damage, the reports

of the Court Commissioners at Exhibits 118 and 120 are not of much

assistance to the case of the plaintiff. In the light of the aforesaid

evidence on record, we are of the considered view that the plaintiff has

succeeded in proving that damage was caused only to Building Nos.1 and

2 of the Bhakt Niwas on account of the earthquakes that occurred during

the period when the insurance policy drawn by the defendant was in FAs 644&955-10 20 Common Judgment

operation. The report of the Surveyor (Exhibit 142) appointed by the

defendant prior to dismantling the insured properties is thus liable to be

accepted. Though the report of the Surveyor appointed by the insurer is

not conclusive of the matter as held in New India Assurance Company

Ltd. (supra), in absence of any other material on record the report

(Exhibit 142) would have to be accepted. The defendant has failed to

prove that it is not liable to satisfy the claim of the plaintiff. Points (b)

and (c) are answered accordingly.

17. In the light of the finding recorded that the plaintiff has

proved that it is liable to be indemnified by the defendant only in respect

of the claim towards Building Nos.1 and 2 of the Bhakt Niwas, it would

be necessary to determine the exact amount of insurance claim to which

it is entitled. As noted above, it is only the Surveyor of the defendant

Narendra Khatri who inspected the insured properties on 29.01.2002.

before they were dismantled. The Building Designer examined by the

plaintiff has also spoken about the cracks noticed in Building Nos.1 and 2

of the Bhakt Niwas. The Court Commissioners admitted that they had

inspected the properties after they were re-constructed. Thus, except the

report dated 26.03.2002 (Exhibit 142) prepared by the Surveyor

appointed by the defendant there is no other documentary evidence

which can be relied upon to determine the claim of the plaintiff.

FAs 644&955-10 21 Common Judgment

As per the report dated 26.03.2002 (Exhibit 142), the

valuation of the four buildings of the Bhakt Niwas as per the audit report

of the plaintiff was taken into consideration. It was found that there was

no under insurance of the Buildings. After noting that Building Nos.1 and

2 had suffered damage, the loss was assessed at Rs.1,23,868/-. The trial

Court has found that this assessment was on a lower side. On the basis of

the value assessed in paragraph 11 of the report, it was found that

Building Nos.1 and 2 were worth Rs.1,09,26,914/-. After considering the

age of the buildings as nine years, depreciation at 18% was taken at the

value of the two buildings was assessed at Rs.19,66,844/-. It is on this

basis that the plaintiff has been awarded the aforesaid amount towards

value of Building Nos.1 and 2 under the insurance policy.

18. In absence of any other credible material brought on record

by the plaintiff, we find that the trial court has rightly determined the

value of Building Nos.1 and 2 of the Bhakt Niwas at Rs.19,66,844/- after

due depreciation. The valuation of these two buildings has been taken

from the audit report of the plaintiff. The reasons assigned by the trial

Court in paragraphs 17 to 20 of its judgment are based on the material

available on record and there is no reason to take a different view of the

matter. This is after considering the ratio of the decisions relied upon by

the learned counsel for the plaintiff. Point (d) is accordingly answered by FAs 644&955-10 22 Common Judgment

holding that the plaintiff is entitled to partly succeed in proving its

entitlement to an amount of Rs.19,66,844/- towards damage suffered by

Building Nos.1 and 2 of the Bhakt Niwas. Rest of the claim of the

plaintiff thus stands disallowed.

19. In the light of the answers given to Point Nos.(a) to (d) we do

not find any reason to interfere with the judgment of the trial Court at the

behest of either of the parties. Accordingly, the judgment dated

25.04.2010 passed by the learned Civil Judge (Senior Division)

Khamgaon in Special Civil Suit No.41 of 2004 stands confirmed. First

Appeal No.644/2010 and First Appeal No.955/2010 stand dismissed.

The parties shall bear their own costs.

          (N.B. SURYAWANSHI, J.)             (A.S. CHANDURKAR, J.)


APTE

Rohit              Digitally signed by
                   Rohit Apte

Apte               Date: 2021.01.29
                   11:04:52 +0530