Jagroop Singh Brar vs Branch Manager and Another

Rakesh Kumar Jain, J.—The plaintiff is in second appeal, aggrieved against the judgment and decree of the lower appellate Court vide which the judgment decree of the learned trial court has been reversed.

The plaintiffs case is that M/s Brar Tractors Kotkapura is running the business of sale of Escorts and Farmatrac Tractors. One of its tractor, was kept in the show room for display at Baghapurana and was insured with M/s United India Insurance Company Limited (defendant). The tractor was purchased by the plaintiff vide bill No. 1377 dated 30.03.2001, bearing chassis No. 288808 and engine No. 292755. The insurance period was from 15.4.2001 to 14.4.2002. It is alleged that on the night intervening 2/3-08-2001, tractor in question was stolen by some unknown persons by breaking open the lock of the shutter of the show room. The theft was reported in the police station Baghapurana vide F.I.R. No. 121 dated 3.8.2001 u/s 457/380 of IPC. The defendants, vide their letter dated 28.2.2002 repudiated the claim of the plaintiff. The plaintiff has claimed damages and compensation to the tune of Rs. 16,57,443/- as per the following detail:

(a) Loss in the tractor Rs. 3,21,798/- (b) Losses suffered for non-sale of tractor, which is the normal sale during the two years period would be 85 tractors @ Rs. 11,792/- per tractor, as a result of non-payment of claim. Rs. 10,02,320/- (c) Expenses incurred by plaintiff on advertisement/bill postings, carrying of police staff of Baghapurana to Choonawadvice versa hiring of taxies for follow up trips for staff and agents from Punjab to Rajasthan time and again etc. Rs. 1,00,000/- (d) Bank interest paid to the bank @ 14% per annum with quarterly rests in the case of one tractor. Rs. 1,33,325/- (e) Compensation on account of extreme harassment, mental agony caused to the plaintiff for deficiency in service by defendants. Rs. 1,00,000/-.

On notice, the defendant filed written statement in which preliminary objection was taken that the suit has been filed without affixing requisite Court fee and is not maintainable. Further, the plaintiff has also filed a complaint before the District Consumer Disputes Redressal Forum claiming Rs. 3,50,000/-. On merits, it was averred by the defendants that the story of theft is made up by the plaintiff in order to squeeze money from the defendants. The learned trial Court framed following issues:

(1) Whether the plaintiff is entitled to declaration, as prayed for? OPP

(2) Whether the suit is not maintainable in the present form? OPD

(3) Whether the Court fee as required is ad velorem on the plaint? OPD

(4) Whether the suit is barred by the principle of resjudicata? OPD

(5) Relief.

The plaintiff himself appeared as PW-1 and closed the evidence after producing on record documents Ex.Pl to Ex.P-24. On the other hand, the defendants examined Sh. B.R. Sharma, Branch Manager as DW-1 and produced on record documents Ex.D-1 to Ex.D-28. The learned trial Court decided all the issues in favour of the plaintiff and granted a decree for the recovery of Rs. 16,57,443/- with costs and interest. The first appellate Court, however, reserved the judgment decree of the learned trial Court on two counts namely, claim set up by the plaintiff is imaginary and hypothetical and since the tractor has already been recovered, the plaintiff is not entitled to seek any damages. Secondly, on the ground that the plaintiff has not filed the suit by affixing requisite court fee and has cleverly drafted his plaint to give it a shape of a suit for declaration and mandatory injunction, which was not maintainable

Sh. S.K. Chawla, learned Counsel for the appellant has vehemently contended that the first Appellate Court has committed an error of law in reversing the well considered judgment and decree of the learned trial Court. The learned Counsel, however, could not raise any meaningful argument in order to justify the claim set up by the plaintiff, where it has been alleged that had the tractor in question not stolen from its show room, the plaintiff would have sold several tractors (85 tractors) to the public by displaying it in its show room and would have earned a lot, at least at the rate of Rs. 11,792/- per tractor. He also could not prove that the plaintiff had incurred Rs. 1 lac towards hiring of taxis to follow up his theft case in Punjab or elsewhere. Since the tractor was later on recovered by the police from Rajasthan and was handed over to plaintiff on Sapurdari by the Court, therefore, there was no question of payment of compensation on account of loss of tractor. Learned Counsel for the appellant also could not convince this Court about the other damages or compensation which were highly flimsy and unrealistic

In so far as the second point is concerned, the suit has been filed for damages for a specific amount and in view of decision of this Court in Jatinder Nath Sharma and Anr. v. Vijay Gupta and Anr. 2006(4) R.C.R. (Civil) 539 (P&H), the plaintiff has to file requisite Court fee on such amount of damages but the same has not been filed, thus the suit in the present form is not maintainable.

In view of the above, I do not find any illegality in the judgment decree of first appellate Court nor any question of law has been raised much less substantial to be adjudicated by this Court. Thus, this appeal is hereby dismissed with no order as to costs.