The Oriental Insurance Co. Ltd. vs Halar Salt And Chemical Works
2021 Latest Caselaw 2065 Guj

           C/FA/5126/2019                                             ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 5126 of 2019
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                   In R/FIRST APPEAL NO. 5126 of 2019
================================================================
                     THE ORIENTAL INSURANCE CO. LTD.
                                  Versus
                     HALAR SALT AND CHEMICAL WORKS
================================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MS MEGHA JANI(1028) for the Defendant(s) No. 1
================================================================
  CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
         and
         HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 11/02/2021
                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) (1) Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 10.06.2019 passed by Principal Senior Civil Judge, Jamnagar in Special Civil Suit No.113 of 2001, whereby the plaint of the original plaintiff­ respondent herein was partly allowed with a direction to the defendant­appellant herein i.e. Insurance Company to pay compensation of Rs.18,76,280/­ from the amendment in the plaint i.e. 12.08.2011 till its realization with 9% interest; the appellant has filed the present appeal.

(2) It is the case of the respondent­original plaintiff in the plaint that they are doing business in the name and style of M/s.Halar Salt and Chemical Works. Due to devastating

C/FA/5126/2019 ORDER

earthquake on 26.01.2001, the plaintiff suffered loss to the machinery and estate and accordingly the plaintiff claimed damages for repairing of such estate. As the claim of the plaintiff was not considered by the appellant­ insurance company, the same led to filing of the aforesaid civil suit, which came to be decreed by the impugned judgment and decree dated 10.06.2019 passed by Principal Senior Civil Judge, Jamnagar.

(3) At the outset, learned advocate Mr.Rathin Raval appearing for the appellant­Insurance Company has submitted that the Insurance Company is not liable to pay compensation as there was no exiting insurance policy on the date of initial incident of 26.01.2001. It is submitted that the earthquake had occurred on 26.01.2001, whereas the policies had expired on 17.12.2000 and the claimant did not renew the said policies on time. It is submitted that in the cross­examination of the claimant, he has admitted that after the policy at Exh.56, he was not having any new policy. Learned advocate Mr.Raval has further pointed out that the prayer as per the amended plaint has been allowed without framing of any specific issue. It is also pointed out that all the issues were framed at Exh.13, and in all nine issues, which were framed by the

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court below, most of the issues were held in favour of the appellant­Insurance Company.

(4) Learned advocate for the appellant­Insurance Company has further submitted the respondent­ original plaintiff had submitted the amended plaint to claim loss due to aftershocks of the earthquake. It is submitted that the court below has allowed the amount on the alleged loss of aftershocks. It is submitted that the plaintiff has merely made averments and prayer to award the amount allegedly suffered due to aftershocks. However, no evidence was led by the plaintiff to substantiate its case. It is submitted that there was no surveyor's report, no expert evidence etc. on record and the court below merely on pleadings and prayers allowed the entire amount without framing proper issue. It is submitted that it is a well­settled principle of law that the court below cannot make an award based on the issues which are not framed and accordingly it is prayed that the matter may be remanded back to the court below. In support of his submissions reliance is placed on the judgements of the Apex Court in the cases of Vishwanatha Achari vs. Kanakasabapathy reported in 2005 (6) S.C.C. 56 and Biswanath Agarwalla vs Sabitri Bera and Ors., 2009 (15) S.C.C. 693.

         C/FA/5126/2019                                                ORDER



(5)   Per    Contra,        learned         advocate          Ms.Megha            Jani
      appearing             for         the         respondent­original

plaintiff has submitted that the judgment and decree of the court below does not require any interference. It is submitted that the court below, after analyzing the relevant policies, has precisely held in favour of the plaintiff. It is asserted by Ms.Jani that the plaintiff was holding a valid insurance policy between 15.12.1999 to 17.12.2000 under the head of fire, thunderstorm and earthquake. She has also submitted that the plaintiff had also paid all the premium and his policy was also renewed. It is submitted that the plaintiff had time and again sent notices to the appellant­Insurance Company for claiming damages, but no response was given in this regard. Thus, she has submitted that the judgement and decree may not be interfered with.

(6) We have heard the learned advocates appearing for the respective parties at length. The relevant documents are also perused by us. In order to appreciate the short controversy raised in the present appeal, it would be apposite to examine the issues framed by the court below. The following issues were framed by the court below Exh.13:

   C/FA/5126/2019                                                  ORDER



"(1) Does      the       plaintiff      prove        that    the        plaintiff

firm is a registered partnership firm ?

(2) Does the plaintiff prove that it has taken three polices under the different heads with the defendant Insurance Company for its partnership firm?

(3) Does the plaintiff firm prove that it has incurred loss of Rs.56,90,000/­ (Rupees Fifty Six lacs Ninety thousand) due to earthquake caused on 26.01.2001 ?

(4) Does the plaintiff prove that the decision of the plaintiff (sic. Defendant) to reject the claim of damage occurred on 26.01.2001 due to the natural calamity (earthquake) of the plaintiff is illegal and unconstitutional ?

(5) Does the defendant prove that insurance of the plaintiff was not in existence with the defendant Insurance Company on 26.12.2001 (sic. 26.01.2001) ?

(6) Does the defendant prove that it has no responsibility of paying the amount of compensation of the damage Rs.56,90,000/­ (Rupees Fifty Six lacs Ninety thousand) occurred to the plaintiff ?

(7) Is the plaintiff eligible to get interest ? If yes, at what percentage ?

(8) Is the plaintiff eligible to get the compensation of the damage and claim of repairing to the tune of Rs.56,90,000/­ (Rupees Fifty Six lacs Ninety thousand) from the defendant insurance

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company ?

(9) What order and decree ?

The issues are answered as below:

      (1)     In affirmative
      (2)     In affirmative
      (3)     In affirmative
      (4)     In negative
      (5)     In affirmative
      (6)     In affirmative
      (7)     In partial affirmative
      (8)     In negative
      (9)     As per the final judgement."


(7)   It      is      an     established           fact    that        the       court
      below,           after       examination            of    the        relevant
      policies              has   finally          awarded     an      amount          of

Rs.18,76,280/­ from the date of the amendment in the plaint i.e 12.08.2011 with annual 9% interest for the damages, which the plaintiff had suffered due to aftershocks of the earthquake. A perusal of the judgement of the court below reveals that though it is believed by the court below that there was no policy as on the date of occurrence of earthquake i.e 26.01.2001, the award has been passed on the basis of the amended prayer in the plaint for the damage which has occurred due to aftershocks.

C/FA/5126/2019 ORDER

(8) From the issues, as noted hereinabove, it is noticed that the most relevant issue no.5, which pertains to holding a valid insurance policy by the plaintiff as on 26.01.2001 has been held in favour of the appellant­Insurance Company. After holding the said issue in favour of the appellant­Insurance Company, the court below has finally decreed the suit in favour of the plaintiff by passing the award of the claim of Rs.18,76,280/­ for the damage, which has occurred to the machinery of the plaintiff due to aftershocks, occurred after 26.01.2001. The aforementioned issues, which are framed by the court below vide Exh.13 indubitably indicate that no issue with regard to damage, which has occurred to the machinery of the plaintiff due to aftershocks has been framed. The issue with regard to the quantum of damages due to aftershocks is also not framed. Though, the pertinent issues are conspicuously absent and not framed, the suit has been decreed in favour of the plaintiff.

(9) Such an approach of the court below is erroneous and against the well established principles of law. The appellant­Insurance Company is certainly prejudiced by non­framing of the issue in this regard. Had the issue been framed, appropriate evidence would have been adduced in this regard. Thus, the court

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below has fallen in error in awarding the claim of the plaintiff for damage of machinery which had occurred due to aftershocks in absence of framing of issue in this regard and without affording any opportunity to the appellant­Insurance Company to lead any evidence refuting the claim of the plaintiff. (10) On the substratum of the afore­noted observations, this Court is of the considered opinion that the matter requires remand by directing the court below to frame appropriate issues. Hence, the impugned judgment and decree dated 10th June, 2019 passed by Principal Senior Civil Judge, Jamnagar in Special Civil Suit No.113 of 2001 is hereby quashed and set aside. The matter is remanded to the court below, Jamnagar for deciding the case afresh after framing appropriate issues. The court below shall render its fresh decision on merits and in accordance with law, expeditiously and within nine months from the date of receipt of the present order. In the process of deciding the case afresh as per the directions above, both the parties shall be given opportunity to lead their respective evidence. It is observed that this Court has set aside the judgment and decree on the limited issue which is raised before us. Needless to say that we have not expressed any opinion on merits.

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(11) The present appeal is allowed to the aforesaid extent. The Record and proceedings, if any, to be returned forthwith.

Sd/-

(N.V.ANJARIA, J)

Sd/-

(A. S. SUPEHIA, J) NVMEWADA