RAM LAL BASRANTA Vs. NATIONAL INSURANCE COMPANY LTD

JUDGEMENT

(1.) This regular first appeal under Sec. 96 of the Code of Civil Procedure is directed against the judgment and decree passed by the learned District Judge (Forests), Shimla, H.P. on 2/7/2007, in Civil Suit No.24-S/1 of 2005/03, whereby the suit filed by the appellant/plaintiff (hereinafter referred to as the plaintiff) for recovery of Rs.7,00,000.00 against the respondent/defendant (hereinafter referred to as the defendant), came to be dismissed.

(2.) Brief facts leading to the filing of the suit are that plaintiff is a resident of Village Dochi (Lalpani), Tehsil Chopal, District Shimla, H.P. The plaintiff was having a truck No. HP-08-0757 which he got insured with the defendant for Rs.6,60,000.00 by obtaining a policy bearing No. 98/6308226 amounting to Rs.15,091.00 which was effective from 27/8/1998 to 26/8/1999. It was averred that on 29/4/1999 the above said truck of the plaintiff was to forcibly taken away miscreants at gun point when it was on its way r by some from Sataun District Sirmaur to Chandigarh and a report to this effect was lodged at Police Station, Raipur. Thereafter, the plaintiff informed the defendant and claimed the amount of insurance, but his claim was repudiated on the ground that there was no valid contract of insurance between the parties as the payment of premium had not been received by the defendant. As per plaintiff, on 24/7/1998, he had issued one cheque to the defendant for getting his above said truck insured but since certificate of insurance was not given to him, he made the payment in cash on 27/8/1998 vide receipt No. 5436 dtd. 27/8/1998 and had also requested the defendant to return the cheque dtd. 24/7/1998, but the same was not returned to him. On these grounds, it was also averred that since the plaintiff had paid the entire premium to the defendant and the truck of the plaintiff had been duly insured, the defendant is liable to make payment of premium amount to him. The plaintiff also claimed interest on the premium amount at the rate of 18% per annum from 12/5/1999 till this amount is actually paid to him and prayed that the suit be decreed with costs.

(3.) The defendant resisted the suit on the ground that the same is not maintainable and is also barred by limitation and estoppel. As per defendant, on the date of theft of the truck in question, the said truck was not insured with the defendant and as such Insurance Company is not liable to make any payment to the plaintiff. As regards payment of premium, it was averred that in fact the plaintiff had not made any payment in cash but he had issued a cheque amounting to Rs.15,090.00 on 27/7/1998 and thereafter the premium amount was deposited by Shri S.K. Gupta, Development Officer, of the defendant and at that time the cheque amount was found short by Rs.1.00 from the premium amount and, therefore, Shri S.K. Gupta had deposited Rs.1.00 from his own pocket to make the payment of the premium and the risk of the plaintiff was covered subject to the realization of the cheque amount. The defendant also averred that when cheque amounting to Rs.15,090.00 was sent to the bank, it was dishonoured for want of sufficient funds and an intimation to this effect was sent to the plaintiff informing him about dishonouring of cheque and also that the defendant is not bound to bear the risk of the plaintiff qua the aforesaid truck. The defendant denied that the above said truck was forcibly taken away by any person on 29/4/1999. On these grounds, it was averred that at the time of alleged theft of the above said truck, there was no contract between the parties and as such defendant is not liable to make any payment to the plaintiff and prayed that the suit be dismissed.