Delhi High Court
Metro Bearing Company vs The New India Assurance Co. Ltd. on 7 October, 2009
Author: Sanjiv Khanna
10.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13741/2006
Date of decision: 7th October, 2009
METRO BEARING COMPANY ..... Petitioner
Through Ms. Isha Khanna, Advocate.
versus
THE NEW INDIA ASSURANCE CO. LT ..... Respondent
Through Mr. Pankaj Seth, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
ORDER
1. The petitioner had made a claim under an insurance policy on
account of burglary in their godown at Lal Kuan, Delhi on 4th March, 2001.
The respondent- insurance company appointed Atul Kapur and Company
as surveyors, who initially submitted their survey report dated 24 th August,
2002. On the basis of quantities mentioned in the stock register and the
quantities found at the time of physical inspection, in the survey report the
loss was assessed at Rs.3,38,038/- and after adjustment as the insurance
policy pertain to both stock at the godown and the shop at Rs.2,39,747.28.
2. The said survey report was examined by the respondent-insurance
W.P. (C) No. 13741/2006 Page 1
company, who came across a list of stocks furnished by the petitioner
dated 27th March, 2003. The said list is captioned as "valuation of
remaining stock at godown and shop as on 6.3.2001".
3. Discrepancies were noticed in the said list and the list as per stock
register maintained by the petitioner on the basis of which the surveyor
had computed loss of Rs.2,39,747.28.
4. The surveyor thereupon called upon the petitioner to explain their
position. By their letter dated 27th March, 2003, the petitioner explained
the list dated 6th March, 2001 as under:-
" The list provided earlier for remaining stock
at godown & shop as on 6.3.01 was wrongly
submitted giving full stocks and not the remaining
stock at godown & shop as on 6.3.2001 without
deleting the stolen items."
5. After considering the reply furnished by the petitioner, the surveyor
submitted their addendum dated 30th March, 2003 and based on the
valuation of the remaining stock at godown and shop as on 6 th March,
2001 certified the total loss as Rs.18,432/-. While doing so, the surveyors
have recorded as under:-
"Subsequently the insured has reverted by only
clarifying that the list of stocks remaining after
the loss had been prepared by his accountant,
who had apparently made some errors therein
and the quantities shown therein are incorrect.
He stated that the quantities shown there in
respect of the stolen items seem to be the
quantities before the loss. However, it was
observed that this explanation of the insured did
W.P. (C) No. 13741/2006 Page 2
not seem to be justified since the quantities in
that list did not even tally with the quantities in
stock before the loss, as was being clarified by
the insured.
In view of the above, we as well as the insurers
explained to the insured that he was required to
clarify the exact basis on which the quantities
were mentioned in the said list and in case they
were in-correct then he should reasonably
establish that the quantities therein were due to
an apparent mistake. It was explained that in
case he failed to clarify the above, the quantities
mentioned and certified by the insured to be in
stock with them after the loss would have to be
considered for the purpose of calculating their
loss. It was clarified that this would have to be
done even though these may be inconsistent with
their records, our verifications or the
FIR/recovery/investigations made by the police,
as the quantities remaining after the loss had
been duly certified by the insured themselves."
6. The writ petition raises disputed questions of fact. It cannot be said
that the stand of the insurance company per se is arbitrary and unfair.
The insurance company and the surveyors have relied upon a list which
was submitted by the petitioner himself and captioned as list of stock
which was found on physical verification after the burglary. It is the
contention of the petitioner that the caption given to the said list is
incorrect. This is a disputed question of fact, which will require oral
evidence and cross-examination of the petitioner, his employees as well as
the surveyors and verification of the physical inventory of the stock before
and after the burglary. It will not be appropriate for this Court to go into
W.P. (C) No. 13741/2006 Page 3
these aspects in a contractual dispute relating to an insurance policy.
Accordingly, the writ petition is not entertained. Liberty is granted to the
petitioner to file a civil suit. The petitioner will be also at liberty to move
an application under Section 14 of the Limitation Act, 1963. If any such
application is filed, the same will be considered and decided by the civil
court on merits. It is clarified that the observations made by this Court in
this order are for the purpose of deciding the present writ petition and will
not influence the civil court.
SANJIV KHANNA, J.
OCTOBER 07, 2009
VKR
W.P. (C) No. 13741/2006 Page 4
