Decided on December 06,2018

Kundanmal Sharma And Ors Appellant


Prasanta Kumar Deka, J. - (1.) Heard Ms. M Hazarika, learned Senior Counsel assisted by Ms. S Khound, learned counsel appearing for the appellants. Also heard Mr. A Ahmed, learned counsel appearing for the respondent/ insurance company.
(2.) The present appellant no. 2, Shree Mahabir Rice & Flour Oil Mills, a proprietorship firm along with M/s Kundanmal Sharma and others as the plaintiff/ appellant no. 1 preferred Money Suit No. 18/1997 against the respondent/ insurance company. The plaintiff/ appellant no. 2, the firm, which is carrying on business, during the course of the business required to carry huge amount of cash from one place to another place. As such, to cover various risks involved in transmit the plaintiff/ appellant no. 2 obtained the Cash Insurance Policy dated 25.07.1994 from the defendant/ respondent for coverage of Rs. 1.70 Crore with a single carrying limit of Rs. 2,00,000/- specifying the place/ places from which the said cash would be carried to the office premises situated at Tinsukia town. Shri Rajesh Sharma, one of the coparceners of the plaintiff/ appellant no. 1 while carrying cash amount of Rs. 1,00,500/- on 31.10.1994 from Jorhat, an employee of the truck owner in which Rajesh Sharma was travelling, got down of the truck with the said money bag and fled away. FIR was lodged on 01.11.1994 and it was informed duly to the defendant/ respondent and claimed the amount so stolen under the said policy. After observing all the formalities, the defendant/ respondent vide its letter dated 26.03.1997 repudiated the claim lodged by the plaintiff/ appellant no. 2 on the ground 1(b) of the Policy which reads as follows: "Loss of cash entrusted to any person other than the insured or an employee of the insured." Being aggrieved by such repudiation, the plaintiff/ appellants preferred the money suit seeking for recovery of a sum of Rs. 1,48,740/- with interest accrued thereon. In the plaint, the plaintiffs/ appellants raised the plea that Rajesh Sharma is one of the coparceners of the plaintiff/ appellant no. 1, the Hindu Undivided Family (HUF). As such, entrustment of the said cash to Rajesh Sharma cannot be termed to hit the Exception 1(b) of the Insurance Policy. The defendant/ respondent filed its written statement denying the pleadings in the plaint with a specific plea that at the relevant time, the money lost was neither in the custody of insured nor in the custody of the employee of the insured. The money was left in the truck with Shri Devendra Rai, an employee of the truck owner, M/s Shree Mahabir Trading Company. In the written statement it was further denied with respect to the status of the proprietorial firm i.e. the plaintiff/ appellant no. 2 as pleaded in the plaint being a proprietorial firm of the said HUF and accordingly, prayed for dismissal of the suit.
(3.) On the basis of the said pleadings, the learned trial court framed the following issues:- (i) Whether the suit is maintainable in law and in fact? (ii) Whether the plaintiff has right to file this suit? (iii) Whether the suit is bad for want of causes of action? (iv) Whether M/s Sri Mahabir Rice, Flour and Oil Mills is a proprietor concern of Sri Kundanmal Sharma or of M/s Kundanmal Sharma and others (H.U.F.)? (v) Whether the claim of the plaintiff has rightly been repudiated by the defendant? (vi) Whether the plaintiffs are entitled to a decree as prayed for? (vii) To what reliefs, if any, the parties are entitled to?;

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