United India Insurance Co. Ltd. vs KEWAL KRISHNA MADAN

Mr. Justice K.D.Shahi, Chairman

THIS is an appeal against the judgment and order dated 25.9.2002 passed by the District Forum, Udham Singh Nagar in Complaint No. 163 of 1997, Kewal Krishna Madan v. United India Insurance Co. Ltd. awarding a sum of Rs. 1,06,000/- with cost against the appellant in favour of the complainant. The brief facts of the case are that Shri Kewal Krishna Madan, complainant was the owner of Unat Brij Bhandar, Bareli Road near Urvashi Cinema. He has got shop, seeds and furniture of the Bhandar insured. The insurance was effective from 31.5.1996 to 30.5.1997. In the night of 10/11th December, 1996 at 3:00 a.m. a theft was committed and the thieves committed theft of stock of the seeds, furniture, weighing machine, accounts papers, ledger and a cash of Rs. 20,000/-. The complainant lodged FIR with the Police Station and made a claim to the Insurance Company. It is said that the Insurance Company has admitted the theft but recommended for payment of Rs. 8,418/- only against the huge loss of the complainant. Therefore, the claim petition was filed.

The Insurance Company contested the petition, admitted the running of the shop by the complainant, also admitted the insurance. In Para 4 of the claim petition, details of theft was given. Reply of the appellant was that the contents of Para 4 of the complaint is admitted only to the extent that a theft took place in the shop of the complainant. The amount of loss was not admitted. It is further revealed in the written statement that the FIR was lodged against the real brother-in-law (Sala) of the complainant and his son. It is alleged that the whole story has been cooked up to get unlawful claim from the Insurance Company. It was further pleaded that on survey, it was found that the complainant has suffered a loss of Rs. 8,418/- only which the claimant can get from the Insurance Company. It was alleged that the present complaint is pre-mature as it has not been repudiated as at. After taking the evidence of the parties and hearing their Counsels, the learned Forum observed that it agrees with all the contentions of the complainant. It does not agree with the contention of the Insurance Company, hence allowed the recovery of the above amount.

BEING aggrieved by the said order, the present appeal has been filed. We have heard the learned Counsel for the parties and gone through the records. This is a very peculiar case with peculiar facts. The complainant is the owner of the Beej Bhandar. In his complaint, he did not say even a single word that he is tenant of the shop. The shop is owned by none-else but by the thief, his brother-in-law Shri Hans Raj. The second thief is said to be the son of Hans Raj. Thus, Sala is the owner of the shop and the theft is said to have been comitted by none-else., but the said Sala and his son. The copy of the charge-sheet is on record and it is specifically mentioned in the charge-sheet that the FIR was lodged under Section 392, IPC alleging that Hans Raj, his son Harish and two other persons broken up the lock and looted the Beej Bhandar, cash etc. On investigation the police found that Hans Raj is the real Sala of the complainant and Harish is son of Hans Raj. The police further found that complainant is the tenant and the owner of the shop is Hans Raj. Hans Raj wanted that his shop should be vacated and when he could not get the shop vacated, the accused persons trespassed in the shop and removed the articles. The charge-sheet was filed under Sections 442, 438, 380, IPC. That is about trespass and theft. Thus it is apparent that what the actual dispute is for the vacation of the shop. The culprits do not appear like permanent thieves. They are not habitual robbers but they appear to have broken the lock and removed the articles to get possession of the shop. Thus the real dispute is between the landlord and the tenant for the vacation of the shop and a colour of theft has been given in this case. Our above view is also fortified from the fact that the Surveyor has reported the length and breadth of the shop as 7 ft. x 10 ft. x 9 ft. The entire shop is in the area of 70 sq. ft. 9 ft. may be its height. The complainant alleges that this 20 qtls. of wheat, 2 qtl. of Lentil, 5 qtls. of barely, 5 qtls. of jai, 1 qtls. of Baraeea, 2 qtls. of peas, 10 kgs. of lady fingers, 40 kgs. of onion seeds have been stored in this shop. In our view, this is impossible. In such a small shop 35 qtls. of grains cannot be stored beyond which, it is also said that there was furniture, weighing machine, stock, papers in this shop. All this cannot be kept in such a small store.

NOW the theft is also said to be of the entire articles in the shop and the Surveyor has also found that the entire shop was empty and only a few packs of vegetable seeds were kept in it. Besides these articles, there was also wooden Almirah in the shop. Thus, according to the Surveyor report, entire shop was empty except a few packs of vegetable seeds. It was alleged that the theft took place on tractor and trolley, at 3 a.m. It is said that there were two other culprits, total numbering four. Otherwise case should have been registered under Section 395 of IPC. In loading 35 qtls. by 4 persons in a tractor-trolley within a few seconds or minutes is not possible. It will take hours together. The shop is said to be situated by the side of a cinema hall in Kichha, Udham Singh Nagar. The copy of this FIR or check report is not on the reocrd. But it is presumed that the police station must be situated nearby. Loading of the tractor for hours together, driving the tractor to the destination where the stolen articles had been taken will take a number of hours'' time. It is not said that telephone was not there. It is not said that the police station was far off. The police could have been immediately called and the recovery could have been made had such a huge quantity of grains been stolen. But not even a single grain is said to have been recovered in this case. All these facts show that the case of theft or looting is a cooked up case but we are sorry that Insurance Company has also admitted the theft and the Forum or this Commission is not entitled to make out a third case. The complainant has alleged that his sum of Rs. 20,000/- has also been looted. It is surprising that the complainant will leave a sum of Rs. 20,000/- in cash in such a shop regarding which dispute for vacation was going on. Besides, the insurance paper is on record. Insurance policy is on record. It does not show that any cash was also insured against burglary and house-breaking, all contents of shop have been insured. There is next column of Money Insurance. No premium at all has been paid for money insurance. There is nothing to show that there was any insurance for cash, but the learned Forum has allowed the claim regarding cash of Rs. 20,000/- which is totally unjustified.

WHAT is the actual theft. This is a very small shop. It is impossible that so much of seeds shall be kept in it. The Surveyor found that some seeds, weighing machine, furniture have been removed and the Surveyor has estimated the loss of Rs. 8,418/- only to the complainant. The facts reveal that this was not a shop in which seeds of more than this money could have been kept. The complainant does not appear to have produced his stock register. Any receipt of sale or purchase also does not appear to have been produced. He did not inform what was his actual sale per day. There is no evidence to show that this was a very huge shop where such seeds could have been kept in the month of December when wheat, barely etc. had been sown latest by the month of October. The theft is alleged to have been committed in the night of 10/11th December, 1996 at 3:00 a.m.

THIS is not a case where compensation could have been awarded to the complainant. In fact, it is either a criminal case or a civil case or a dispute between landlord and tenant. But as discussed above, we have got no jurisdiction to make out a third case. Theft is admitted. Loss has been assessed by the Surveyor. Policy is there. Insurance is there. In view of the facts and circumstances of the case, we fully agree with the finding of the Surveyor and we find that it is a fit case where a compensation of Rs. 8,418/- only could have been awarded. Coming to the finding recorded by the learned Forum, we are not in agreement with the above finding for two reasons. Primarily the finding is incorrect and based on no facts. The facts reveal otherwise. Secondly, the learned Forum did not give any reasoning for its finding. The Forum discussed the entire facts of the case in three pages and all of a sudden started writing that there is deficiency in service by the appellant and the Forum does not agree with the allegations of the Insurance Company that merely because the culprits are the own Sala and his son, the case may be false. It again, all of a sudden gave a finding that the theft is not only of Rs. 8,418/- only. The Forum wrote that it is in agreement with the complainant that the theft was to the tune of Rs. 80,000/-. It again said that it does not agree with the Surveyor report. Why, this has not been written ? Any reasoning whatsoever has not been given why the Forum agrees with the allegations of one party and did not agree with the allegations of the other party. Without reasoning, there is no judgment in the eye of law. If judgments are given in this manner that in one line it is said that I agree with this, I do not agree with that, the claim can be decreed or dismissed for any amount. The judgment of the learned Forum is totally against facts and circumstances of the case. The complainant was not entitled to such a handsome amount merely on such a theft which can be only laughed at. We are not entitled to award compensation of even a single paisa but as said above, we are not here to make out a third case. Shop is admitted, the theft is admitted, loss of Rs. 8,418/- is also admitted. The Insurance Company was prepared to give this amount as well. Therefore the complainant should get this amount. This means that the claim was fit to be decreed only for Rs. 8,418/-.

When the learned Counsel for the complainant was cornered down on the merits of the case, he argued at length on limitation and argued that the appeal is barred by time. The case was decided on 25.9.2000. The appeal was filed on 3.11.2000. It could have been filed by 25.10.2000. It is delayed for about 8 or 10 days. The appeal was sent by registered post. It is not there when the application for copy was made but the copy was made available to the appellant on 10.10.2000. It is settled principle of law that limitation shall run from the date of issue of copy and not from the date of actual judgment because it is only after the receipt of the copy of the judgment, the parties are presumed to know on what basis his case has been decided and whether he should file appeal or not. If taken from 10.10.2000, the appeal is well within time. Even otherwise, the appeal was filed in State Commission, Lucknow. The State Commission has admitted the appeal, has given it a number and registered it. When the appeal has been registered by the Commission, it cannot be again de-admitted and de-registered. When the appeal has been admitted, the limitation stands condoned. The delay, if any, stands condoned. In this case, primarily there is no delay and even if there is any delay, it stands condoned. In these circumstances, the rulings referred by the learned Counsel for the complainant do not apply to the facts of the present case. On merits, the discussions have already been made above. ORDER

THE appeal is hereby allowed. THE judgment and order dated 25.9.2000 is hereby set aside. However, the claim is allowed for recovery of Rs. 8,418/- only. THE appellant is directed to pay this amount within a month, failing which, the claimant will get interest on this amount from today at the rate of 12% per annum. Cost of the appeal shall be easy. Appeal allowed.