Decided on February 23,1995

Sadharan Bima Corporation Appellant
Sanjib Kumar Das Respondents


MUSTAFA KAMAL J. - (1.) This appeal by defendant No.1 Sadharan Bima Corporation by leave is from the judgment and order dated 24.8.93 of the High Court Division passed in Appeal from Original Decree No. 267 of 1992, affirming the judgment and decree dated 3.11.92 passed by the learned Subordinate Judge, Chittagong in Money Suit No. 2 of 1992, decreeing the suit.
(2.) Plaintiff-respondent No.1 Sanjib Kumar Das is a manufacturer and seller of homeopathic medicines under the name and style of SB Memco Laboratory at his village Kulkurmal, Police Station Rangunia, District Chittagong. He obtained a loan from pro-forma defendant No. 2 Janata Bank, Laldighi East, Chittagong on an equitable mortgage of the land and building on which the laboratory is situated. Upon the joint proposal of the plaintiff and the said bank the appellant issued a fire insurance policy dated 5.5.90 insuring the plaintiffs laboratory building, machineries, furnitures and stocks-in-trade for Taka 31,00,000.00 in the plaintiffs said trade name. The policy was to expire on 3.5.91. The Janata Bank upon inspection of the plaintiffs laboratory advised the plaintiff to enhance the insured amount and accordingly upon the plaintiffs request dated 17.7.90 the insured amount was enhanced to Taka 41, 00,000.00. The plaintiff paid the requisite premium while obtaining the insurance policy dated 5.5.90 and after payment of additional premium the insured amount was enhanced to Taka 41, 00,000.00 by an endorsement dated 25.7.90. In the night following 11.10.90 at about 2-00 AM a fire took place in the plaintiffs laboratory resulting in complete damage to the laboratory, furniture, medicines and machineries. The neighbouring people tried to extinguish the fire without success and tried to inform the Fire Brigade of Karnaphuli Paper Mills through Rangunia Police Station. On 12.10.90 a GD entry was lodged at Rangunia Police Station. An Officer of Karnaphuli Fire Brigade, a Narcotic Inspector and the Police visited the place of occurrence on 14.10.90 being a Friday, the plaintiff informed of the occurrence to the appellant by a letter dated 13.10.90 and requested the appellant to survey the damages and pay the compensation. On 14.10.90 the appellant sent some claim forms which the plaintiff duly filled in and deposited to the appellant on 25.10.90. Officers of the appellant held spot enquiry and took photographs, video tape and other alamats from the place of occurrence. Upon the direction of the appellant a joint survey was hold for ascertaining the cause of fire and the quantum of damage. The surveyors submitted a report on 10.12.90 stating that the fire took place owing to short circuit of electricity and that the damage was to the tune of Taka 37, 23,320.91 and recommended for payment of compensation to the plaintiff. Fire caused by electric short circuit was covered by the policy of insurance. The plaintiff requested the appellant to pay the aforesaid amount of compensation by a letter dated 28.3.91 and appellant too by a letter informed the plaintiff that his claim was under active consideration of the authority. The appellant remained silent for a long time which prompted the plaintiff to issue a lawyer's notice on 10. 11.91, but the appellant without replying to the same directly repudiated the claim of the plaintiff by a letter dated 16.11.91 Ext, 11. It was stated therein that Janata Bank without having any insurable inoperable interest in the insured properties became a signatory to the insurance proposal and the plaintiff secured the insurance policy by resorting to falsehood. Another insurance policy of a lesser amount for the same insured properties was taken out by the plaintiff from Green Delta Insurance Company Ltd, but the plaintiff did not disclose this fact to the appellant and therefore, there was a fraudulent suppression of material facts causing serious breach of utmost good faith. It is evident from the survey report, it was alleged, that the cause of fire was other than an accidental fire, Besides, for commission of several other acts of breach of terms, conditions and warranties of the policy the plaintiff disentitled himself to any claim whatsoever. The plaintiff stated in the plaint that the fire policy with Green Delta Insurance Company was in respect of the plaintiffs factory situated at Super Market, Chittagong and the said fire policy expired long ago on 30.5.90. The plaintiff did not suppress any facts and the appellant was bound under the policy to pay compensation to the plaintiff for the aforesaid amount. Hence the suit for a decree for Taka 37,23,320.91, with interest and compensation, filed on 2.1.92.
(3.) Pro-forma defendant No. 2, Janata Bank, by filing a written statement supported the case of the plaintiff, but the appellant, defendant No.1 denied all the averments of the plaintiff in its written statement and apart from reiterating the grounds on which the claim was repudiated by the letter dated 16.11.91 Ext. 11 took the following ground in paragraph 8 of the written statement: "That as the suit was not filed within the time as required under the policy it is liable to be dismissed." ;

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