NEW INDIA ASSURANCE CO. LIMITED Vs. YATENDRASINGH

JUDGEMENT

(1.) THIS appeal is directed by the defendant against the judgment and decree dated 2.1.1990 passed by the District Judge, Jhabua, in Civil Suit No. 3-B/1986.

(2.) IT is not in dispute that truck No. M.B.I. 9486 owned by the respondent stood insured with the appellant on the date of accident, i.e. 13.5.1984. It was carrying 144 bags of Temru leaves. It burnt alongwith the load near village Lakhankot (Alirajpur). Respondent's case, in brief, was that the truck caught fire near village Lakhankot. The driver Noshad Ali and the cleaner Thavariya for extinguishing the fire took the truck to a 'Nulla' but there was no water and ultimately the truck alongwith 144 bags of Temru leaves burnt. Report was lodged at P.S. Alirajpur and information was given to the appellant. The respondent made claim for payment of Rs. 1,51,400/- as damages. The appellant's Surveyor Prakashchand Kimti (D.W. 2) and M.P. Bhargava inspected the spot and found respondent's claim genuine. Respondents claim Inspector Swami came on the spot and settled the claim for Rs. 1,22,000/- including Rs. 2,000/- for salvage. But the appellant refused to pay compensation. On 11.6.1986 the respondent filed civil suit for recovery of Rs. 1,51,000/- with interest at the rate of 12% per annum. The appellant resisted the claim and inter alia pleaded that the Motor Vehicles Rules permitted carrying of load of maximum height of 13 feet. The plaintiff in violation of the Rules and terms and conditions of the permit carried load of 144 bags of Temru leaves, the height of which was 17-18 feet and if struck against the high tension electricity line where it was crossing the road and caused short-circuit, as a result of which fire broke. Therefore, it was not liable to pay compensation. Learned District Judge framed as many as 8 issues. He answered issue Nos. 1 and 2 in favour of the respondent and held that the value of the truck in question was Rs. 1,25,000/- and it was burnt on 13.5.1984 as a result of accident. He also decided issue Nos. 3 and 4 in favour of the respondent and held that Shri Kimti and Sh. Bhargava, the Surveyors of appellant assessed damages at Rs. 1,22,000/-, and Shri Swami, the representative of the appellant made agreement with respondent for paying this amount. He answered issue No. 3 in negative holding that it was not proved that the respondent committed breach of M.V. Rules and terms and conditions of the permit by loading the truck at more height than was permitted and it caused short-circuit which resulted in burning of the same. The learned Judge answered issue No. 7 in negative and held that the Court had jurisdiction in the matter and decreed the suit with cost directing the appellant to pay Rs. 1,20,000/- with interest @ 9% p.a. for the period from 20.6.1986 to the date of decree and thereafter @ 6% p.a. Hence, this appeal by defendant. The respondent also filed cross-objection for grant of future interest @ 12% per annum.

(3.) WE considered the arguments advanced by Counsel for both sides and perused the record. The question is whether the truck caught fire, as a result of striking of the bags against the wire of the high tension line, crossing the road or due to the process of friction of Temru leaves as pleaded by the appellant and respondent respectively. According to the appellant the load of the truck was 17-18 feet high. It struck the wires of high tension line crossing the road near village Lakhankot and there was sparking and due to short-circuit, the truck caught fire. Prakashchand Kimti (D.W. 2) deposed that 1000 bundles, each bundle containing 50 leaves were filled in 50" x 40" size gunny bag its height comes to 12" x 15" and on tying it with rope, the height was reduced by 3". He deposed that the height of the platform of the truck is 4 1/2-5 feet from the surface of the ground, on loading 144 bags of Temru leaves in 17-18 feet long and 6 1/2-7 feet wide truck, the height of the load would be about 14-14 1/2 feet and on tying it with the rope, the height would be reduced by 4"-6". According to this witness the height would be about 13 1/2 feet-14 feet. But as admitted by (D.W. 5) A. Faiyaz, Head Clerk of Forest Department, no standard size of bags for loading Temru leaves had been prescribed by the Forest Department and the size of Temru leaves also differed. As admitted by Prakash, the width of the truck can be extended to some extent according to the desire of the owner. Under such circumstances, it cannot be said that the height of the load of 144 bags would always be 17-18 feet from the surface of the land.