PLANTERS AIRWAYS CO LTD Vs. NEW INDIA ASSURANCE LTD

JUDGEMENT

(1.) THIS is a suit on a policy of fire insurance. The plaintiff is a transport agent for forwarding goods by air and is a lessee of two go downs situate at premises Nos. 119 and 121, Motor Stand Road, Agartala, Tripura. As a matter of convenience, I shall hereinafter refer to these godowns merely by the aforesaid numbers of the premises where they were situate. In connection with its said business the plaintiff used to store stationery goods and patent medicines in the said two godowns. As the plaintiff v/as responsible for the safety of the goods of his clients which were entrusted to it for transport and which were stored by the plaintiff in the said godowns the plaintiff used to keep them under the cover of insurance policies effected from year to year with the defendant company. In course of such insurance the defendant company issued in 1952 two policies, being policies Nos. 562506 and 562507 dated 21st May, 1952 in favour of the plaintiff. These two polices were renewed with effect from 1st June, 1953 when in the first instance the defendant company issued two provisional cover notes, viz. 40430 and 40431 and subsequently issued two policies Nos. 563383 and 563384 respectively, their period of cover being from 1st June, 1953 to 1st June, 1954. The property covered under the said insurance policies is shown in details in the respective policies. On 12th June, 1953 during the subsistence of the said two policies the stationery goods and patent medicines stored in the said godowns of the plaintiff were damaged and or destroyed by a fire which started in a neighbouring go down belonging to the B. C. C. The plaintiff claims that because of that fire the plaintiff suffered loss and damage which amounts to Rs. 19,995163/ -. The plaintiff asked the defendant company to compensate it for that amount. As the defendant refused to do so the plaintiff has filed this suit. The plaintiff asks for a decree for Rs. 19,99563/- and alternatively, an enquiry for damages, and a decree for the sum to be found due thereupon.

(2.) THE defendant insurance company has taken various defences in its written statement. Firstly, the defendant contends, the plaintiff has no insurable interest in the goods that Were damaged. Secondly, clause (19) of each of the policies is a bar to the plaintiff's claim. Thirdly, the defendant states, the fire in, question started in a go down which was situate in the same building in which the plaintiff's go down is situate and therefore under the terms of the policy the policy stands avoided and the defendant has no liability under the policy. Finally, the defendant contends, the plaintiff has not suffered any loss or damage. On these pleadings of the parties the following issues were settled for determination: -1. Were any goods damaged or destroyed by fire as alleged in paragraph 11 of the plaint? 2. Were such goods held by the plaintiff in trust and or on commission and was the plaintiff responsible in case of damage or loss to such goods? 3. Did the plaintiff have any insurable interest in the goods that were damaged? 4 (a ). Was the go down in which the fire started in the same building in which the plaintiff's go down is situate? (b) Did the building where the fire started communicate with the building where the plaintiff's go down was situated? (c) If the answer to (a) or (b) is in the affirmative are the policies avoided? 5 (a ). Is clause 19 of the Policies a bar to the plaintiff's claim? (b) Is the defendant stopped from relying on clause 19 of the said policies? 6. Did the plaintiff suffer any loss or damage? 7. To what relief, if any, is the plaintiff entitled? another issue had at first been raised by the defendant in the following form: -Did the plaintiff conceal from the defendant the fact that petroleum used to be stored or treated in another part of the same building in which his go down was situated? If so, did the policy thereby become void? subsequently, however, Mr. S. Roy, counsel appearing for the defendant, abandoned this issue.

(3.) TWO witnesses were examined on behalf of the plaintiff. Nirendra Nath Roy, an employee of the B. O. C. agent of Agartala gave evidence as to the relative position of the plaintiff's go down and the go down of the B. O. C. at Agartala where petroleum used to be stored. He also gave evidence regarding the fire that broke out on June 12, 1953. He said that the plaintiff's godown and the godown of the B. O. C. agent were side by side. Both the plaintiff's godown as well as the B. O. C. godown are covered by insurance policies taken out with the assistance of the same agent viz. , one Bikash Chandra Saha. The witness said that as a result of the fire, the B. O. C. godown sustained damage on June 12, 1953. A claim was made before the insurance company in respect of this damage and the claim was duly paid. In cross examination the witness said that the godown of the plaintiff was adjacent to the godown of the B. O. C. agent and under the same roof with only a wall intervening. The wall was a pucca brick-built wall. The fire broke out in the B. O. C. godown. The witness does not know how the fire started. He only knows that one boy by the name of Radhaballav died as a result of the fire.