ASHA SONI Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) THE Plaintiff has sued for recovery of Rs. 24,88,763/- being the balance of Rs. 32,28,530/- claimed by the Plaintiff from the Defendant under a policy against the risk of fire taken from the Defendant. The Plaintiff also claims pendente lite and future interest. On the defences raised in the written statement (to which replication was filed), the following issues were struck on 25th August, 1999. (1) Whether the Plaintiff has no locus standi to institute and maintain the present suit? OPD (2) Whether the suit is bad for non-joinder of Punjab National Bank as a party, if so, its effect? OPD (3) Whether the payment of Rs. 7,11,237/- made by Defendant No. 1 under the policy of insurance was in full and final settlement of the claim of the plaintiff? OPD (4) Whether the Plaintiff is entitled to the amount claimed in the suit or any other amount? OPP (5) Whether the Plaintiff is entitled to any interest, if so, at what rate and for what period? OPP (6) Relief.

(2.) THE Plaintiff filed affidavit by way of examination-in-chief of Shri naveen Soni being the son and attorney of the Plaintiff. He was cross-examined before the Local Commissioner. The Plaintiff also summoned and examined as PW-2, Mr. J. L. Tikku, the Joint Surveyor in the case and as PW-3, Mr. Mahendra singh. The examination-in-chief of PW-3/ Mr. Mahendra Singh was deferred on the request of the counsel for the Plaintiff since he had not brought the summoned record. However, the record does not show the said witness to have been examined after 5th September, 2005. Thus, factually, two witnesses as aforesaid, were examined by the Plaintiff. The Defendant filed affidavit by way of examination-in-chief of its Divisional Manager Shri A. K. Gupta who was cross-examined before the Local Commissioner. The Defendant also examined before the local Commissioner as DW-2, Mr. Adarsh Kumar Gupta, one of the surveyors. The defendant also examined as DW-3, Mr. O. P. Gupta also working as senior divisional Manager with the Defendant and who was also cross-examined before the local Commissioner. The counsels for the parties have been heard. My issue-wise findings are as under:-Re : Issues No. 1 and 2 ? [ (1) Whether the Plaintiff has no locus standi to institute and maintain the present suit? OPD (2) Whether the suit is bad for non-joinder of Punjab National Bank as a party, if so, its effect? OPD]

(3.) THE Plaintiff in the plaint itself stated that she had taken various limits from the Punjab National Bank and had also taken a hypothecation limit against the hypothecation of stocks which the Plaintiff used to maintain at the premises where the incident of fire occurred. It was further pleaded that since the loan was taken by the Plaintiff from Punjab National Bank and further since the goods were hypothecated with the Bank, the said goods were got insured by the Bank for the account of the Plaintiff and for which the policy, subject matter of suit was taken. The objection of the Defendant is that the policy was issued by the Defendant to Punjab National Bank, Khari Bavli branch, Delhi and as such the said Bank alone has the right to sue, if at all and the Plaintiff has no right to sue for claims under the policy which is not in the name of the plaintiff and in any case, without impleading the said Bank as a party to the suit.