9911796707
TMI Blog1998 (7) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... chased the chillies worth ₹ 17,581-50 ps., in the name of one Suresk Kumar Agarwal, The entire stock was in the godown along with the empty gunny bags worth ₹ 2,861-50 ps, The stock in the godown was insured with the defendant -insurer under policy No.14000/01/02472 for the period between 7-4-1981 to 7-6-1981 for an amount of Rs, 1,00,000/-. On the interventing night of 5/6/-6-1981 at 10.00 p.m. the godown caught fire. The entire stock in the godown was damaged in the fire accident. The plaintiff wrote a letter informing the defendant-insurer about the fire accident. A Surveyor who had been deputed by the insurer visited the godown and inspected the same and also the records. Since the defendant failed to reimburse the loss, after exchange of notices, the plaintiff filed the suit. 3. The defendant resisted the suit by filing its written statement mentioning inter alia that there was not so much of stock in the godown on the date of the accident, and there were no empty gunny bags at all and that the claim for gunny bags was not covered by the insurance policy and as the plaintiff failed to give the particulars of the amount claimed he was not entitled to claim the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mply proves the same. The firm has been carrying on business in Ghee and red-chillies is not in dispute. Admittedly the stock in the godown of the firm has been insured under a valid insurance policy for the period in between 7-4-1981 to 7-6-1981 for an amount of ₹ 1,00,000/-, Ex.A.24-Policy marked in this case amply proves the same even otherwise. That there was a fire accident on the interventing night of 5/6-6-1981 is an undisputed fact. The most contentious facts in between the parties are about the existence of the stock on the date of the accident and its quantum and to what extent the accident resulted in damages. 10. In proof of its claim, the respondent firm examined PWs.1 to 16, of which PWs.1 and 14 are the partners of the firm, PWs.2 to 10 are the various ryots from whom the stock of chillies is said to have been purchased under various vouchers, PWs. 11 and 13 are the commission agents through whom the firm purchased the stock pertaining to the other ryots, PW15 is a witness to the fire accident, and PW16 is the village Munsiff of Gollaprolu village who has submitted his report to the Tahsildar informing inter alia the fire accident. Exs.A3 to A13, A17 to A20, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entries and under Ex.A43 entry he appended his signature in token thereof in the stock register. Proof of the individual entries apart the evidence of PW1 clearly discloses that these accounts have been maintained in due course of business. To that extent it is sufficient to make these accounts relevant under Section 34 of the Indian Evidence Act is the question Section 34 of the Evidence Act reads as follows : 34. Entries in books of accounts when relevant:--Entries in books of accounts, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability. 13. The proof required as can be seen from the section is that the accounts shall be kept regularly in the course of business so as to make them relevant. Therefore, in view of the evidence of PW1 the day-book ledger and the stock register have been proved to have been kept in regular course of business. What probative value that can be attached to these entries is an altogether different aspect. Merely because the accounts are kept in regular course of business and entri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant entries shall have to be brought on record by making them separately. It may be mentioned here that the regular procedure in making the accounts and the entries made therein has not been strictly adhered to. The learned Counsel for the appellant at this stage submitted that the Court has to see the cumulative effect of the entire evidence adduced on record in the interest of justice, although there have been some lapses in not getting the relevant evidence on record. Certainly it is not a case where there have been no entries duly made in the account book. It is a case where there has been lapses on the part of the Counsel in bringing the relevant evidence on record. The proper procedure should be that in the first instance the account books shall be brought on record separately and the individual entries in the account books shall have to be brought on record independently by giving different exhibit marks and that would give the necessary clarity and avoid any amount of confusion. Corresponding entries in the ledger have also been made in this case. Thus, the entries in the daybook and ledger shows the relevant purchases that have been made from the ryots prior to 5-6-1981. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusions arrived at by the learned Subordinate Judge. 15. The crucial question as to whether the stock purchased upto 3-6-1981 was in existence on the date of the accident and eventually have been burnt in the said accident. The learned Counsel for the respondent contended that since the stock had been proved to be in existence by 3-6-1981 and as the fire accident occurred on the intervening night of 5/6-6-1981 the presumption can be drawn under Section 114(d) of the Evidence Act about the continuance of the things as existed on 3-6-1981. There is every force in the contention of the learned Counsel. Illustration (d) to Section 114 of the Evidence Act says that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence. Since the period interregnum between the last date of purchase and the date of fire accident is shorter, the illustration (d) to Section 114 of the Evidence Act can be invoked in this case. A presumption of continuity can therefore be drawn. As against this evidence, as afore discussed, there are Exs.B7 and B8 on the side of the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to one Mr. Ramesh Agarwal, the Court below has rejected the claim of the respondent on the premise that the existence of the stock pertaining to the said Agarwal has not been shown in the stock register. Although the other relevant records prove the purchase of the stock, that is not the criterion and the criterion on the other hand in existence of the stock on the date of the accident. Since there is total absence of proof in regard thereto, I have no compelling reason to differ with the finding of the trial Court arrived at on an appreciation of oral and documentary evidence, Obviously, there has been no insurance coverage in respect of the gunny bags. Therefore, the Respondent-Cross-Objector cannot validly make any claim in respect of these two items. The judgment of the Court below insofar as this claim is concerned, is well founded and there are no compelling reasons for me to differ with the same. The Cross-Objections filed by the Cross-Objector Respondent must also fail. The rate of interest as granted by the trial Court is 18% which was not the prevailing rate of interest even in regard to the commercial transactions. The usual rate being allowed by the Courts of law is 12% ..... X X X X Extracts X X X X X X X X Extracts X X X X
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