THE COMMISSIONER OF INCOME TAX III, HYDERABAD vs. Ms. Jamuna Bai

Page No.# 1/6 GAHC010174152007

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA 133/2007 1:M/S KUNDANMAL SHARMA and ORS REP. BY KUNDANMAL SHARMA, TINGRAI, HOOGRIJAN ROAD, TINSUKIA, DIST. TINSUKIA, ASSAM. 2: M/S. SHREE MAHABIR RICE and FLOUR OIL MILLS A PROPRIETORSHIP CONCERN TINGRAI HOOGRIJAN ROAD TINSUKIA DIST. TINSUKIA ASSAM VERSUS 1:ORIENTAL INSURANCE CO. LTD. REGD. OFFICE AT ASAF ALI ROAD, NEW DELHI, REP. BY REGIONAL MANAGER, ULUBARI, GUWAHATI-7.

Advocate for the Petitioner : Advocate for the Respondent : MR.A AHMED

:: BEFORE :: HON’BLE MR. JUSTICE PRASANTA KUMAR DEKA For the Appellants : Ms. M Hazarika Sr. Advocate Ms. S Khound Advocate

Page No.# 2/6 For the Respondent : Mr. A Ahmed Advocate Date of Hearing : 06.12.2018 Date of delivery of Judgment and Order : 06.12.2018

:: JUDGMENT

& ORDER :: (ORAL)

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

Page No.# 3/6 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? 4. The plaintiffs/ appellants adduced the projected coparcener Rajesh Sharma as the PW 1 and on the other hand, the defendant/ respondent as per the records is seen to have filed the evidence on affidavit of one Mr. Harikishore Bhattacharjee, Senior Assistant of the Oriental Insurance Company Limited, Tinsukia Divisional Office as the DW 1. The plaintiffs/ appellants in order to establish the case exhibited various documents including certificates issued by the bank official, Income Tax Official, Income Tax Assessment Order for the year 1993-94, the copy of the FIR. On the other hand, the defendant/ respondent relied the proposal form for cash insurance showing that the coverage stands in the name of M/s Shri Mahabir Rice, Flour and Oil Mills i.e. the plaintiff/ appellant no. 2 and the insurance policy. The trial court held that the plaintiff no. 1 is a HUF constituting a coparcenary under the Mitakshara School of the Hindu Law and vide issue no. 4 held that the plaintiff/ appellant no.

Page No.# 4/6 2 is a proprietorial concern of plaintiff/ appellant no. 1, HUF. While deciding the issue no. 3 the learned trial court on the basis of the findings in issue no. 4 held that the money was in possession of the plaintiffs/ appellants and further held that the claim made by the plaintiffs/ appellants was not hit vide Exception 1(b) of the Cash Insurance Policy. The respondent/ insurance company preferred RFA No. 32/2004 in this court challenging the judgment and decree dated 26.09.2003 passed by the learned Civil Judge (Sr. Divn.), Tinsukia in Money Suit No. 18/1997. After the pecuniary jurisdiction of the courts below was enhanced the RFA was transferred and subsequently it was registered as Money Appeal No. 19/2006 in the court of learned District Judge, Tinsukia. The first appellate court reversed the finding of the trial court mainly on the ground that the plaintiffs/ appellants failed to prove that the appellant no. 2 is the proprietorial firm of the appellant no. 1, HUF. Further, it was held that the plaintiff/ appellant no. 2 failed to prove that the money so carried from Jorhat was against the sale of the mustard oil at Jorhat by producing Books of Accounts. 5. Being aggrieved, the plaintiffs/ appellants preferred this second appeal which was admitted on 23.11.2007 after formulating the following substantial questions of law:- 1) Whether the plaintiff No. 2 is the proprietary concern of Kundanmal Sharma and not of the plaintiff No. 1, M/s Kundanmal Sharma & others? 2) Whether entrustment of cash to Rajesh Sharma is not and could not be hit by Exception No. 1(B) of the Insurance Policy? 3) Whether entrustment of cash to one of the coparceners of the HUF (Plaintiff No. 1) who is the proprietor of the plaintiff No. 2 would amount to entrustment to person other than the insured or any employee of the insured and hence be hit by Exception 1(B) of the Insurance Policy? 6. Ms. Hazarika, learned Senior Counsel, submits that the first appellate court failed to appreciate the exhibits on record in its proper perspective. The certificates issued by the Bank Manager, Income Tax Officer supports the fact that the plaintiff/ appellant no. 1, HUF is the proprietor of the plaintiff/ appellant no. 2 firm. It is further submitted that the plaintiff/ appellant no. 2 firm being the proprietor of the HUF plaintiff/appellant no. 1, as such, any coparcener of the HUF dealing with the business is a person within the definition of the person insured or an employee of the insured. 7. Mr. Ahmed, learned counsel for the respondent/ insurance company, on the other

Page No.# 5/6 hand, refuting the submission of Ms. Hazarika submits that the proposal for the policy itself is a clear piece of evidence wherein the insured is shown as a proprietorial firm and not beyond that. It is submitted further that contract of insurance must be read as per the terms of the policy without supplementing any intent in order to make a new contract. In support of the said submission, Mr. Ahmed relies on the case laws of BHS Industries v. Export Credit Guarantee Corporation Limited & another reported in (2015) 9 SCC 414. 8. Considered the submissions of the learned counsel appearing for the parties. Perused the case records including the exhibits and the evidence on record. The cause of action for the suit arose on the ground of repudiation of the claim made by the plaintiffs/ appellants on the basis of the policy covering the risk while transmitting cash. An incident took place in the last part of 1994 and as per the pleadings in the plaint while carrying out the cash returns from the sale of mustard seed from Jorhat, one of the employee of the truck in which Rajesh Sharma, the coparcener was travelling took away a sum of Rs. 1,00,500/-. As the said transmission of money was covered by the said policy Exhibit B so a claim was lodged before the defendant/ respondent. It was repudiated vide Exhibit 3 i.e. the repudiation letter dated 26.03.1997. Vide the said letter Exhibit 23, the defendant/ respondent mentioned that the competent authority is unable to entertain the loss since it falls outside the scope of the policy coverage vide Exception No. 1(b) of the Cash Insurance Policy. 9. The moot question the plaintiffs/ appellants are to establish that the person Rajesh Sharma who admittedly carried the amount is one of the coparceners of the plaintiff/ appellant no.1, HUF and the plaintiff/ appellant no. 2 is the proprietorial firm of the said HUF. From the records it is seen that in order to establish the said link between the plaintiff/ appellant nos. 1 & 2, the plaintiffs/ appellants relied and exhibited Exhibit 2, the certificate issued by one SC Dutta on 30.11.1998, Income Tax Officer, Ward No. 3, Tinsukia; Exhibit 3 is the photocopy of the Assessment Order of the Income Tax Officer, Ward No. 3, Tinsukia; Exhibit 4, Returns showing total income of the assessee, Kundanmal Sharma, Karta of M/s Kundanmal Sharma & others, proprietor of M/s Mahabir Rice, Flour and Oil Mills; Exhibit 5, the certificate issued by the Branch Manager/ Accountant of Union Bank of India, Tinsukia. The said certificates were not proved by the respective authors and as required, the contents of the said exhibits cannot be held to be proved. The learned trial court while deciding issue no. 4 accepted the contents of the aforesaid exhibits on its full face value without asking for

Page No.# 6/6 its proof. The said certificates cannot be held to be public document in order to draw its presumption with respect to its contents. The author/ authors of the said certificates must come to the court in order to prove the contents thereof and the basis on which the said certificates were issued. 10. The learned trial court by relying the said certificates held that the plaintiff/ appellant no. 2 is a proprietorial concern of plaintiff/ appellant no. 1. In the plaint it is specifically stated that the said Rajesh Sharma is one of the coparceners of the plaintiff/ appellant no. 1, HUF. But the plaintiffs/ appellants failed to prove the link between the plaintiff/ appellant nos. 1 & 2 and accordingly, it cannot be held that Rajesh Sharma is a coparcener of HUF and endowed with the said status he carried the cash amount in order to entitle the plaintiffs/ appellants the claim made by them. As the plaintiffs/ appellants failed to show the relation of Rajesh Sharma with the plaintiff/ appellant no. 2, as such, the repudiation by the defendant/ respondent under Exception No. 1(b) of the Insurance Policy cannot be termed to be illegal. Accordingly, the plaintiffs/ appellants failed to prove that the plaintiff/ appellant is the proprietary concern of M/s Kundanmal Sharma and others and the entrustment of cash to Rajesh Sharma is hit by the Exception No. 1(B) of the Cash Insurance Policy. As hereinabove stated, the plaintiffs/ appellants failed to prove the relation between them, and under such circumstances, the substantial question of law No. 3 is decided against the plaintiffs/ appellants. The substantial question of law No. 1 is also decided in the affirmative and the question No. 2 is decided against the plaintiffs/ appellants. Accordingly, I do not find any merit in this second appeal and the same stands dismissed. 10. No order as to cost. Send back the LCRs.

JUDGE Comparing Assistant