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2022 Supreme(Mad) 90
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
Refex Industries Limited, Rep. by its Managing Director, Anil Jain - Appellant
Versus
United India Insurance Company Ltd., Chennai - Respondent
Civil Suit No. 747 of 2012
Decided On : 11-01-2022
For the Appellant :Srinath Sridevan, T.K. Bhaskar, Advocates.
For the Defendant :M.B. Raghavan, Advocate.
Headnote:
Code of Civil procedure, 1908 - Order VII, Rule 1 r/w Order IV Rule 1 of Original Side Rules - Indian Evidence Act, 1872 - Section 60, 6, 3,101 - Insurance Act, 1938 - Section 64-UM - Companies Act, 2013 – Burden of proof – Oral evidence - Whether there was any explosion in refilling plant - Whether plaintiff is able to prove theory of explosion through circumstantial evidence by placing reliance upon attendant circumstances - Whether there is any indication pointing towards explosion in site - Whether there was an explosion in this case, it cannot be decided merely based on theories - Held, Court has to apply test as provided under Section 3 of Act - A fact is said to be proved when after considering evidence and circumstances, Court either believes fact to exist or considers its existence so probable that a prudent man under circumstances of particular case will act upon supposition that fact exists - In short, to prove something is to demonstrate that a fact or state of affairs exists - if present case is assessed and evidence available is appreciated, this court is not able to come to a conclusion that an explosion took place in the refilling plant and as a result of same, R134a gas escaped from the cylinder - Counsel for plaintiff was repeatedly attacking surveyor’s report and evidence of DW-1 and also reports marked - Unfortunately, this exercise was undertaken even without plaintiff proving their case - It is trite law that plaintiff can never succeed by poking holes on case of defendant - Plaintiff came up with a specific case of explosion and therefore, burden of proof was on plaintiff to first establish their case - Plaintiff also wanted to specifically establish the fact of explosion - Therefore, onus of proof also lies on plaintiff to prove this fact - Same is abundantly clear under Section 101 of Act - If plaintiff fails to discharge this burden, they are bound to fail in suit and how so ever bad is case of defendant, it will not in any way come to aid of case of plaintiff - On a cumulative reading of facts and circumstances of case and evidence available on record, this court comes to a conclusion that theory of explosion has not been proved by plaintiff and finding of surveyor to the effect that there was only a breakage of valve as a result of which gas escaped from cylinder, stands reasoning - Suit deserves to be dismissed.
JUDGMENT :
Prayer: Civil Suit has been filed under Order VII, Rule 1 of the C.P.C. Read with Order IV Rule 1 of Original Side Rules, pleased to pass a judgment and decree as under:-
a) Director the Defendant to pay to the Plaintiff, a sum of Rs.4,84,93,052/- with interest thereon at the rate of 18% per annum from the date of plaint until the date of realisation in full; and
(b) direct the defendant to bear the cost of the proceedings.
1. The Plaintiff has filed the instant suit seeking for a direction to direct the defendant to pay to the plaintiff, a sum of Rs.4,84,93,052/- with interest thereon at the rate of 18% per annum from the date of plaint until the date of realisation in full. The plaintiff further prays for a direction to direct the defendant to bear the cost of the proceedings.
Case of the Plaintiff:
2. The plaintiff is a Company incorporated under the Companies Act, involved in the business of sale and refilling of refrigerant gases. The plaintiff states that during the course of its business, the plaintiff stored large quantities of refrigerant gases, such as Tetrafluoroethane (R134a). The plaintiff’s factory is situated in Thandalam Village and the tanks storing these gases are located therein. The plaintiff states that the value of refrigerant gas is very high and hence decided to insure the factory against any risk arising out of or in the course of the operation. The plaintiff claims that during the course of initial discussion with the defendant Company, the officials of the defendant Company told the plaintiff that unless they take a Standard Fire and Special Perils Policy, any damages arising due to the loss of the refrigerant gas would not be covered. It was for this reason that the plaintiff chose the Standard Fire and Special Perils Policy, which is more expensive than a simple machinery policy. The plaintiff then undertook a Standard Fire and Special Peril Policy from the defendant vide policy No. 010202/11/10/11/00000237. This policy covered the plaintiff’s factory for the period from 9-1-2011 to 8-1-2012. The plaintiff claims that all premiums were fully paid.
3. The plaintiff states that the tank storing R134a was nearly full containing 90,899 Kg and that the total cost of this gas comes to Rs.4,29,49,777/- and on 03-01-2012, there was a sudden explosion which resulted in failure of the valve and consequent loss of entire gas stored in the tank. The plaintiff claims that the explosion was of such a nature that the sound was heard in the local village up to 1 Km radius. The plaintiff intimated the local police and the defendant Company immediately. The plaintiff states that the local Village Panchayat President also wrote a letter to the plaintiff Company asking for the nature of the incident based on the complaint from the locals.
4. At this juncture, the defendant Company nominated M/s. Meticulous Surveyors Pvt. Ltd., as the surveyor to examine the loss suffered by the plaintiff. The surveyor visited the site on 04-01-2012. Thereafter, the plaintiff submitted the claim form on 27-02-12. The plaintiff further states that upon receipt of the surveyor’s report, various inconsistencies were found and a detailed objection to the same was also given to the defendant on 16-03-2012.
5. The grievance of the plaintiff is that on 09-04-2012, the defendant repudiated the entire claim made by the plaintiff based on a report from IIT, Madras and as per the report of IIT, Madras there was no explosion at all and there was only a gradual loss of gas from the tank due to breakage of safety valve. The plaintiff states that according to the defendant, the damage caused was due to normal wear and tear and this was not covered under the policy. Since the defendant repudiated the policy, the plaintiff has filed the present suit to recover the loss suffered by the plaintiff.
Case of the Defendant:
6. The defendant is an insurance Company. The defendant sates that the plaintiff insured various assets of their refilling plant includ
