1. This First Appeal is filed by appellant-original plaintiff No.2-National Dairy Development Board being aggrieved and dissatisfied with the judgment and decree dated 20-1-1995 passed by the 2nd Joint Civil Judge (S.D.), Bhuj, in Special Civil Suit No.46 of 1982 dismissing the suit qua the appellant-plaintiff No.2.
2. The facts in short are that a civil suit being Special Civil Suit No.4 of 1982 was filed by the respondent No.3- original plaintiff No.1 and appellant-original plaintifaf No.2 against the respondent Nos.1 and 2 seeking a decree of Rs.6,40,538.82 with interest from the date of filing of the suit till realisation contending inter alia that the respondent No.1 and 2 have failed to deliver Skim Milk Powder at the requisite place in safe and in sound condition and thereby the plaintiffs suffered damages to the extent of Rs.6,40,538.82 due to their negligence.
3. At the end of trial, after hearing the learned advocates appearing for the respective parties, learned 2nd Joint Civil Judge (S.D.) at Bhuj partly decreed the suit in favour of the respondent No.3-present plaintiff No.1 to the extent of Rs.4,25,041/- while it is dismissed qua present appellant-original plaintiff No.2 is concerned and against defendant No.2 vide judgment and decree dated 20-1-1995. Hence, the present appeal has been preferred by the present appellant-original plaintiff No.2.
4. Heard learned Senior Advocate, Mr.Dhaval C.Dave, with learned advocate, Mr.Jigar M.Patel for the appellant. Though notice is duly served upon the respondents, no one appears on their behalf.
5. Mr.Dhaval C.Dave submitted that the appellant suffered damage to the extent of Rs.6,40,538.82 of which, the appellant was paid Rs.4,25,041/- by the respondent No.3 and, therefore, the remaining amount was required to be recovered from the respondent Nos.1 and 2 and, therefore, the findings of the trial court that appellant was fully insured by the respondent No.3, which, in the capacity of Insurance Company has paid Rs.4,25,041/- and hence, the appellant cannot claim any amount from the respondent Nos.1 and 2 was not sustainable. He further submitted that though the trial court answered the issue No.3 by holding that appellant had suffered loss to the extent of Rs.6,40,532.82, trial court ought to have granted decree qua the appellant also for balance amount. It is therefore submitted that a great error has been committed by the trial court in not passing a decree in favour of the appellant and hence, it is requested that judgment and decree may be modified to that extent.
6. This Court has gone through the impugned judgment and decree of the trial court. It is to be noted that issue No.3 framed by the trial court reads as under:
“3. Whether the plaintiff proves that they have suffered loss amounting to Rs.6,40,532.82 paise as alleged in the plaint ?”
7. Although aforesaid issue No.3 has been replied in affirmative, the trial court has come to the conclusion that though loss is occurred to the appellant to the extent of Rs.6,40,532.82, however, since the insurance company has indemnified the appellant to the extent of Rs.4,25,041/-, it is not entitled to claim any more amount from the insurance company. It is not disputed by the appellant-plaintiff No.2 that it received Rs.4,25,041/- from the respondent No.3 and, therefore, decree for the balance amount of Rs.2,14,491.82 is required to be paid by the present respondent Nos.1 and 2 i.e. original defendants to the present appellant. In view of the above, this appeal is required to be partly allowed by modifying the judgment and decree.
8. Thus, this appeal is partly allowed. Impugned judgment and decree dated 20-1-1995 passed by the 2nd Joint Civil Judge (S.D.), Bhuj, in Special Civil Suit No.46 of 1982 is modified and original defendants are liable to pay to the appellant-plaintiff No.2 amount of Rs.2,15,491.82 being the balance amount of damage caused to the appellant along with interest @ 18% per annum from the date of decree till realisation. The remaining part of impugned judgment and decree remains unaltered. Decree to be drawn accordingly.
[M.D.SHAH,J.] radhan