Surveyor Report - When there was other overwhelming evidence, including the report of first surveyor, the report made by second surveyor at the back of the plaintiffs could not carry any value in the eyes of law.

Kiran Anand Lall, J.

1. Undisputed facts are that M/s. Cargo Tyre Agencies, opposite New Grain Market, G.T. Road, Fazilka, was a partnership concern, having two partners, Dalip Singh and Harjinder Kaur. The firm was carrying on the business of sale and purchase of tyres and tubes, etc., and the stock of tyres, tubes and other goods of like nature, lying in the shop had been got insured by it with the United India Insurance Company Limited, Fazilka (for short, the insurance company), for a sum of rupees three lac, against insurance policy No. 200103/57/1/0012/89-90, for the period from 4.10.1989 to 3.10.1990. The insurance company had issued the cover note (No. 381971) in this behalf on 4.10.1989, covering the risk of loss and damage on account of theft, fire, and strike, etc.

2. On the night intervening 19.12.1989 and 20.12.1989, a theft took place in the shop of the firm, and goods worth rupees two lac, approximately, were stolen. Dalip Singh, one of the partners, lodged a report with the police in this behalf, whereupon a case bearing FIR No. 100 dated 20.12.1989, was registered. Information was given to the Insurance Company also, in this regard. After investigation, the police, ultimately, gave a certificate dated 24.3.1990 to the effect that the theft had remained untraced. Since the stolen goods were insured, the firm lodged a claim with the insurance company, giving loss estimate of Rs. 1,28,514/-. The company got the matter investigated from Anil Kumar Gulati, Chartered Engineer, Street No. 12, Abohar, and S.S.B. Surveyors Private Limited, Sector-17, Chandigarh, and thereafter, approved the claim regarding loss, vide letter dated 26.12.1990 issued by its Branch Manager. The case of the plaintiffs, before the trial court, was that before releasing the amount, the Branch manager demanded Rs. 5000/-, as hush money, from them, which they refused to pay. It was at that stage that a complaint, purporting to have been made by one Shamsher Singh was received by the insurance company, stating that infact, no theft had taken place and the claim lodged by the firm with the company was false. The insurance company got the matter reinvestigated through one Sarwan Singh. During re-investigation, the investigator could not trace out the alleged complainant. He also did not join either of the two partners of the firm in the investigation. In the meantime, police submitted a cancellation report, to the court. And, relying upon that cancellation report, the insurance company also repudiated the claim of the firm vide letter dated 31.10.1990. The firm, thereafter, stood dissolved with effect from 1.4.1992.

3. Dalip Singh and Harjinder Kaur plaintiffs, then, filed a suit for recovery of Rs. 1,93,908/- against the insurance company, on the basis of the insurance policy. The company contested the suit, by denying the genuineness of the claim of the plaintiffs, and pleaded that, infact, no theft had taken place. Locus standi of the plaintiffs to file the suit was challenged and so was the maintainability of the suit in the form it was filed. Plea of non-joinder of necessary parties was also taken up. It was further pleaded that the suit was barred under Section 69 of the Indian Partnership Act. Parties went to trial on the following issues framed on 2.3.1994:

1. Whether plaintiffs is entitled to recover the suit amount with interest at the rate of 18% per annum? OPP

2. Whether suit is not maintainable? OPD

3. Whether suit is bad for non-joinder of necessary parties? OPD

4. Whether suit is barred under Section 69 of Indian Partnership Act? OPD

5. Whether plaintiffs have no locus standi to file the present suit? OPD

6. Relief.

4. After completion of trial, the trial court dismissed the suit, believing the version of the insurance company. The first appellate court, however, did not agree with the trial court, set aside its verdict, and decreed the suit along with interest at the rate of 6% per annum from the date of filing of the suit.