Decided on September 29,1970



- (1.) The only point that arises for determination in this appeal is as to whether a contract of insurance is liable to be avoided by the insurer on account of the fact that there has been a misrepresentation with regard to the quality of the goods insured.
(2.) M/s. Sova Chand Fushraj of Jalpaiguri booked a consignment consisting of 38 double gummy bags said to contain pekoe dust tea weighing 68 mds. 35 srs. Under Invoice No. 4, R.R. No. A102241 dated February 10, 1952, at the Jalpaiguri Railway Station on the North Eastern Railway for carriage to and delivery at Chitpore, a station on the East Indian Railway. The plaintiff claimed to be an endorsee of the Railway receipt for valuable consideration and, admittedly, this consignment was insured by him with the defendant Insurance Society hereinafter under Policy No. MJ 5138 dated February 05, 1952, and it covered all risk including theft, pilferage, non-delivery etc. The sum insured for was Rs. 14,000 and Rs. 70 as the premium due thereon was duly accepted and received by the defendant Society. The consignment did not reach in time, and so the Society on behalf of the plaintiff carried on correspondence with the Railways. Some months thereafter an intimation was sent by the Railways to the effect that the goods had arrived and the plaintiff, accompanied by the lawyer of the Society, called a Chitpore Railway Station and it was found that the consignment offered was not the consignment booked. The plaintiff thereupon refused to accept it and, admittedly at the instance of the Society a suit was instituted against the Railways for compensation for non-delivery of the goods. This suit was registered as Money Suit No. 18 of 1953 in the Sixth Court of the Subordinate Judge at Alipore. The Railway contested the suit alleging, inter alia, that the consignment was not of pekoe dust. The learned Subordinate Judge, on the evidence, came to the conclusion that it was ordinary dust tea which had been booked and not pekoe dust, that the consignment which was offered was not the consignment which had been booked and found the value of the consignment at the rate Rs.1-9-0 per pound and valued the compensation for the consignment at Rs. 8,593-12-0. After deducting the freight therefrom, the learned Judge found that a sum of Rs. 8,422 would be due from the Railways to the plaintiff as compensation for non-delivery of the consignment booked and decreed the suit in part for the above sum with proportionate costs thereon (Ex. E). During the pendency of this Money Suit against the Railways, the Railways, the plaintiff filed the instant suit against the Society claiming the sum of Rs. 14,000 from it together with a sum of Rs. 3,360 by way of interest at 8 per cent. The Society denied this liability. But the learned Judge held that the Society was liable and, as admittedly a sum of Rs. 9, 356-78 was received by the plaintiff from the defendant, decreed the suit in part for the balance, namely for the sum of Rs. 4, 643-22. The learned Judge allowed interest at the rate of 4 per cent and reduced the claim on account of interest to Rs. 1, 680. The result, therefore, was that he passed a decree in favour of the plaintiff for the sum of Rs. 6,323-22 with full costs.
(3.) Against this judgment and decree the Society has filed this appeal, and on its behalf Mr. S. K. Lahiri, learned Advocate appearing for it, submits that as the contract of insurance was in respect of pekoe dust tea, whereas a matter of fact ordinarily dust tea had been booked, there has been a misrepresentation and the contract is liable to be avoided by the Society, and accordingly, the Society would not be liable for any sum to the plaintiff.;

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