K.K.Vishnu Bharatheeyan @ Vishnu Bharatheeya Swamigal Kanadi Madom vs M/S Oriental Insurance Co. Ltd

R.F.A.18/2003 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** ## **RFA.No.18 OF 2003** **AGAINST THE JUDGMENT IN OS 43/1998 DATED 25-10-2002 OF PRINCIPAL SUB COURT,THRISSUR** ## **APPELLANT-PLAINTIFF:** **K.K.VISHNU BHARATHEEYAN @ VISHNU BHARATHEEYA SWAMIGAL KANADI MADOM, PROPRIETOR, MAYA MOVIES, P. O KIZHEKUMURI, TRICHUR. BY ADV. SRI.S.CHANDRASENAN** ## **RESPONDENTS/DEFENDANTS:** |**1**|**M/S.ORIENTAL INSURANCE CO.LTD**| |---|---| ||**ORIENTAL HOUSE, A25/27 ASAF ALI ROAD,**| ||**NEW DELHI 110002**| |**2**|**M/S ORIENTAL INSURANCE COMPANY LTD**| ||**BRANCH OFFICE, P . B NO 158,**| ||**THIRUVAMBADI DEVASOM BUILDING ROUND WEST,**| ||**TRICHUR 680001**| ## **R1 BY ADV. SRI.R.S.KALKURA** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2019, THE COURT ON 19-05-2020 DELIVERED THE FOLLOWING:** R.F.A.18/2003 2 ## **JUDGMENT** ## **Dated this the 19th day of May 2020** Aggrieved by the judgment and decree of dismissal of O.S.No.43/98, on the file of the Sub Court, Thrissur, the appellant, who is the plaintiff has come up with this appeal. 2. The brief facts noticed for the limited purpose of disposal of this appeal are as under :- The appellant /plaintiff was the owner, licensee, in possession of a temporary cinema theater by name 'Maya Movies' situated at Vadakkumuri Village in Thrissur Taluk. The theater was insured with the defendants (for short- Insurance Company) for a sum of Rs.12,00,000/-. The policy was valid for 12 months from 21.11.1994 to 20.11.1995. On 22.5.1995 at about 2.00 a.m. the plaintiff got information that fire broke out in the theater and though, attempts were made to extinguish the same, it was burnt in fire within a short time. The surveyor deputed by the Insurance company assessed the loss as Rs.2,55,685/- and thereafter the plaintiff received a sum of Rs.2,55,685/-. Some scrap and accessories left after fire were sold by the plaintiff for a sum of Rs.40,000/-. So the actual amount received by the plaintiff due to the incident was R.F.A.18/2003 3 Rs.2,95,685/-. But the suit was filed for a decree for realization of a sum of Rs.6,04,315/- with interest and also for cancellation of the receipt dated 17.1.1996 issued by the plaintiff. He was made to sign an unfilled printed form evidencing receipt of the money from the insurance company by playing fraud. Though the payment was only an interim payment, the receipt was obtained by the Insurance Company by practicing fraud indicating that it was full and final settlement of the claim. 3. Per contra, the Insurance Company admitted the policy claim as well the fact that the theater was lost in fire. It was contended that as soon as fire occurrence was reported, B. Ramanandan, the Surveyor deputed to assess the loss, assessed it as Rs.2,58,184/- after spot inspection in the presence of the plaintiff. After deducting the policy amount of Rs.2,500/- a sum of Rs.2,55,685/- was handed over to the plaintiff on 17.1.1996 by way cheque. The plaintiff agreed and accepted the amount as full and final settlement of the claim. The allegation that the said payment was only, part payment of the claim and the plaintiff who was not conversant in English was given an unfilled printed form and made to sign the same and thus the document was obtained as full and final settlement of all claims etc are absolutely incorrect. The claim for Rs.6,04,315/- after R.F.A.18/2003 4 deducting Rs.2,96,685/- from 9,00,000/-is not justified for any reason. The plaintiff accepted the amount as full and final settlement under the policy of insurance and acknowledged it by the receipt. Therefore, the allegation of fraud is not tenable. 4. Before the trial court, P.Ws. 1 to 6 were examined and Exts.A1 to A28 were marked. On the side of the Insurance Company, D.Ws 1 and 2 were examined and Exts.B1 to B6 series were marked. 5. Heard Adv. S. Chandrasenan, the learned counsel appearing for the appellant/plaintiff and Adv. R.S. Kalkura, the learned counsel appearing for the respondents/defendants. 6. Admittedly, Maya Movies, the theater owned by the plaintiff was insured for a sum of Rs.12 lakhs with the Insurance Company under policy No.F/95/425, valid for twelve months from 21/11/1994 to 20/11/1995. The theater was lost in fire on 22/5/1995 and it was reported immediately and thereafter claim was preferred by Ext.B2. DW2, the Surveyor deputed to assess loss had conducted survey in the presence of the plaintiff and assessed the loss and submitted report to that effect. Thereafter as full and final settlement of the claim, an amount of Rs.2,55,685/- was paid and the same was acknowledged by the plaintiff by Ext.B3 receipt. R.F.A.18/2003 5 7. The argument raised by the learned counsel for the plaintiff is that Ext.B3 is a forged document as the Insurance Company has practiced fraud on him and obtained it as full and final settlement of his claim. In fact it was only a part-payment for the unfortunate event occurred. But the definite contention of the Insurance Company was that the amount was received as full and final satisfaction, unconditionally and it was acknowledged by Ext.B3 receipt. At the outset, it is to be noted that what is challenged in the appeal is Ext.B3 on the ground of fraud. Ext. B3 is the receipt dated 17.1.1996 issued acknowledging receipt of the amount. The same is seen signed by the plaintiff and also by his manager and the seal of the theater was also seen affixed in the document. Thus, the controversy in this case is confined to a very narrow field and the foremost question that arises for determination is, whether the plaintiff had specifically pleaded that Ext.B3 was vitiated by fraud and whether the pleadings were with accuracy and certainty. For deciding the controversy, it is necessary to reproduce Order VI Rule 4 of C P C which reads as under: “ **4. Particulars to be given where necessary** .- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, R.F.A.18/2003 6 particulars (with dates and items if necessary) shall be stated in the pleading.” 8. A reading of this provision of law makes it very much evident that a party who challenge the genuineness of a document by alleging fraud, has to give particulars of such fraud specifically with certainty in the pleadings and if the pleadings are vague and not specific, no amount of evidence would rescue the party or salvage the position. 9. In **General Manager, Electrical Rengali Hydro Electric Project, Orissa v. Sri. Giridhari Sahu** [(2019) 10 SCC 695] the Apex Court has held as follows: “38. Therefore, in a civil suit, if the plaintiff alleges fraud, misrepresentation or undue influence, he is obliged to give particulars. An allegation of fraud is a matter of a grave nature. So is the allegation of undue influence and misrepresentation. The intention underlying Order VI R.4 of CPC is that the opposite party is to be put on sufficient notice as to the case which he is called upon to meet. The law loathes, parties to the lis being taken by surprise resulting in the violation of the basic principle of justice that a party should be able to effectively meet the case set up against him. What is fraud? Is it the same as misrepresentation? 39. In Indian Contract Act, 1872 (hereinafter referred to as 'the Contract Act', for short), definition of “fraud”, is as follows: “17. 'Fraud' defined.- 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: - (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having R.F.A.18/2003 7 knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. Explanation.- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.” In Paragraph 44 it is further observed as follows: “43. A perusal of the definition of the word “fraud”, as defined in S.17 of the Contract Act, would reveal that the concept of fraud is very wide. It includes any suggestion, as a fact, of that which is not true, by a person who does or does not believe it to be true. It may be contrasted with S.18(1) of the Contract Act which, inter alia, defines “misrepresentation”. It provides that it is misrepresentation if a positive assertion is made by a person of that which is not true in a manner which is not warranted by the information which he has. This is despite the fact that he may believe it to be true. In other words, in fraud, the person who makes an untruthful suggestion, does not himself believe it to be true. He knows it to be not true, yet he makes a suggestion of the fact as if it were true. In misrepresentation, on the other hand, the person making misrepresentation believe it to be true. But the law declares it to be misrepresentation on the basis of information which he had and what he believed to be true was not true. Therefore, the representation made by him becomes a misrepresentation as it is a state which is found to be untrue. Fraud is committed if a person actively conceals a fact, who either knows about the fact or believes in the existence of the fact. ..............” 10. There is no quarrel that the object and intention of the legislature is to avoid raising of allegation of fraud, undue influence etc on mere suspicion and conjecture. Lack of R.F.A.18/2003 8 specific pleadings no doubt, a very serious defect. Except what is stated in paragraph No.10 there is no specific pleading in the plaint that the insurance officials played fraud on the plaintiff and thus obtained Ext.B3 receipt as full and final settlement of the claim. For easy reference Para .10 of the plaint is reiterated. “10. The receipt obtained from the plaintiff for Rs.2,55,685/- is not a valid document and it has been obtained only by adopting fraud inorder to defeat the just claim of Rs.12 Lakhs. The plaintiff did not sign a document in full and final settlement of amount due. The plaintiff went to office of the 2[nd] defendant as suggested, the defendant offered a part payment and obtained a receipt on 17.1.1996. Since the receipt so obtained is by fraud or foul play it is not legal and the same required to be cancelled.” 11. What was the fraud played by the Insurance Company has not been pleaded with accuracy and certainty. In this regard, there is lack of pleadings. The party has to satisfy that there is some basis to the allegation of fraud. Furthermore, these facts clearly establish that the damage assessed by the Surveyor was paid as full and final settlement of the claim and it was received without protest. The evidence of the plaintiff that, he who is not conversant with English language was made to affix his signature in a printed form, had no case that he was compelled by the insurance officials R.F.A.18/2003 9 to sign the same under pressure. Significantly, this allegation is conspicuously absent in the pleadings. He was present in the office accompanied by his manager who is conversant with English language and he was the person who was managing everything for him. Needless to say in the absence of specific and definite pleadings that Ext.B3 is vitiated by fraud, the evidence adduced by the plaintiff and the argument advanced by the learned counsel for the plaintiff that Ext.B3 is vitiated by fraud will not any way improve the position. (See **Bishundeo Narain and another** Vs. **Seogeni Rai and others** (AIR 1951 SC 280), **United India Ins.Co Ltd** Vs. **Andrew Vivera** (1989 (1) KLJ 614 (DB) ). 12. In the case at hand, the amount was received as full and final settlement unconditionally, by Ext.B3 receipt dated 17.1.1996. Ext.B3 clearly indicates that it was received as full and final settlement of the entire claim. There was no protest or request for arbitration on 17.1.1996. The learned counsel appearing for the plaintiff could not make out any case to point out any irregularity or circumstances to doubt the genuineness of the document. There is total lack of pleadings. It is well settled that no kind evidence can be looked into on a plea which was never put forward or raised. Here, in fact R.F.A.18/2003 10 after a long delay Ext.B4 notice was issued on 31.7.1997 raising an allegation that the amount received was interim payment. However, there was no allegation of fraud in the notice, but the allegation that it was interim payment, was clearly refuted by the Insurance Company by issuing Ext. B5 reply notice on 29.8.1997. Thereafter on 21.1.1998 the suit was filed with a belated claim without any explanation for the delay, that the document was obtained fraudulently, definitely creates reasonable doubt about the case of the plaintiff as regards fraud. In fact it appears to be not at all reliable. Without specific pleading it is difficult to believe that the Insurance Company played fraud on the plaintiff for obtaining signature in Ext.B3 document, from the plaintiff as well from his manager. The position could be other way round so as to say that the actual damage assessed by the surveyor was received as full and final settlement of the claim without any protest or dispute and thereafter as a result of an afterthought, just as an experiment, filed the suit raising the allegation of fraud against the insurance company. Therefore, the claim is not legally sustainable. 13. So also the contention of the learned counsel for the plaintiff that all the stamps affixed in Ext.B3 were not duly R.F.A.18/2003 11 cancelled and hence the document is null and void, appears to be too far-fetched argument. It is needless to mention that as it was found admissible in evidence, further consideration may not be required for due adjudication of the lis. 14. In view of the ratio as laid down in the above referred decisions, and on scrutiny of the evidence on record, nothing remains further, for consideration in the present appeal. The trial court has rightly declined relief to the plaintiff and I find no error warranting interference by this court. Therefore, the appeal is dismissed. No Costs. **Sd/SHIRCY V. JUDGE** **sb**