ORIENTAL INSURANCE CO LTD Vs. PRAKASH GINNING FACTORY

JUDGEMENT

(1.) The present first appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 4.3.1989 passed in Special Civil Suit No.42 of 1980 by the learned Civil Judge (S.D.), Rajkot.

(2.) The premise on which the present first appeal is submitted by the appellant original defendant is that original plaintiff No.1 M/s.Prakash Ginning Factory, a registered partnership firm, had filed the suit to recover the amount of Rs.8 lakhs with interest from the defendant, namely, the Oriental Fire and General Insurance Co., who is the present appellant. The case is based on the circumstance that on 2.4.1979, in the midnight hours, fire broke up in the factory and on account of which the factory shade, godown, building and machinery and hypothecated goods to the Bank of Baroda were destroyed and damaged. This Bank of Baroda is defendant No.2 in the present suit proceedings and this defendant No.2, pursuant to the order of this Court, in past, came to be transposed as co-plaintiff in the suit proceedings and made as original plaintiff No.2 and this transposition is permitted on account of the fact that Bank of Baroda had advanced money against the place as well as hypothecated goods to the original plaintiff firm and, therefore, both have submitted the suit claiming relief against the present appellant original defendant No.1.

(3.) Mr.M.J.Shelat, learned advocate, appearing for the appellant - Insurance Co. has contended that the trial court has committed an error in coming to the conclusion that 200 cotton bales were destroyed in the alleged fire which took place on 2.4.1979, despite the fact that there is surveyor's report which is indicating 100 cotton bales. It was also contended that one civil engineer has inspected the premises after the fire took place and his report at Exh.342 has stated that platform in the godown of plaintiff's factory was not such that it could take weight of 200 cotton bales and, therefore, while coming to this conclusion, the trial court has not considered the evidence in its true perspective. It has also been contended that entire evidence in the form of oral testimony of Mr.Karnik, who had gone for the purpose of inspection of damage to the building and nothing else, which interpretation to keep aside the said evidence is erroneous. Mr.Shelat, learned advocate, has further pointed out that a serious error is committed in not relying upon the survey report of Mr.Bhukhanwala, who is a qualified surveyor, who inspected the site and assessed the damage. It has also been pointed out and contended that deposition of said Mr.Bhukhanwala at Exh.299 which clearly indicates the weight and number is also not properly construed and, therefore, the finding which has been arrived at is not in consonance with the evidence on record.