ABANI MOHAN SINHA, J. - (1.) This appeal by plaintiff-appellant is directed against the judgment and decree of dismissal passed by the learned Judge 4th Bench, City Civil Court, Calcutta in Money Suit No. 65 of 1974. The plaintiff brought this suit for recovery of insurance claim and for other reliefs. He was the owner of Motor Car Standard omnibus ADX 1353. The vehicle was insured with Common wealth Assurance Company Ltd. on 19/11/1968. The said company merged with New India Insurance Company Ltd. after the nationalisation of the insurance with effect from 1-1-1973. The plaintiff obtained a comprehensive risk policy on payment of Rs. 812.00 as premium for a sum of Rs. 20,000.00 on 19-1-69. The vehicle was involved in an accident near Cuttack resulting in an extensive damage to it tantamounting the total loss. The fact was brought to the notice of the police and insurance company. The insurance company instructed the plaintiff to bring the damaged vehicle to Calcutta for getting it repaired thoroughly after an estimate. A claim form duly filled in by the plaintiff was made over to the insurance company in due course. The damaged vehicle was brought by the plaintiff to Calcutta by incurring a cost of Rs. 600.00. The plaintiff obtained the estimate from M/s. French Motor Car Company of Calcutta at a cost of Rs. 750.00. The estimated cost of the repair was Rs. 12,277.50 including sales tax of parts and materials to be used in repairs. The plaintiff wanted to have the car repaired through reputed concern of M/s. French Motor Company Ltd. but the defendant, insurer insisted for having it done by M/s. Broadway Garage of Calcutta. the plaintiff complied with the direction and incurred a further cost of Rs. 50.00 for taking the vehicle to such garage. It is the further case of the plaintiff that the defendant, the insurance company under the contract of insurance made themselves liable to compensate the plaintiff by making a payment of Rs. 20,000/- for which the car was insured. In spite of repeated demands made by the plaintiff neither the car was delivered to the plaintiff after repair nor the plaintiff was paid any damage for the insured car. The plaintiff sent a letter of demand to the insurer on 24-1-71 demanding delivery of the car. The plaintiff got an offer for sale of the car, the defendant insurance company failed to deliver the car by 31-1-71 as demanded and the car could not be sold. The defendant did not settle the claim of plaintiff on various pretexts and the plaintiff suffered a loss of Rs. 24,272.00. The plaintiff has prayed for recovery of such sum from the defendant-insurance company with cost.
(2.) The defendant-insurance company contested the suit by filing a written statement denying all the material allegations of the plaintiff. They contend that under the policy of insurance in case of differences arising out of the contract of insurance should be referred to the decision of an arbitrator to be appointed in writing by the parties and if they could not agree upon a single arbitrator, to the decisions of two arbitrators appointed by each of the parties within the stipulated period of twelve calendar months. In case of difference between the joint arbitrators and umpire appointed by the arbitrators, the said umpire should sit with the arbitrators and preside over the meeting. It is further case of the defendant that the plaintiff did not care to inform the insurance company immediately of the alleged accident and that the plaintiff having failed to comply with the conditions 7 and 8 of the policy was not entitled to recover anything from the defendant, insurance company. It is their further case that the plaintiff brought the car on his own and not at the direction of the defendant and the alleged estimate of the plaintiff was inflated. It was also contended by the defendant that in terms of condition 7 of the policy the plaintiff was bound to refer the alleged dispute to arbitrators and obtain the award for the claim. The plaintiff having failed to comply with such condition, the plaintiff's suit, it is contended, was liable to be dismissed with cost.
(3.) The learned trial Judge in his judgment held that the contract of insurance incorporated condition No. 7 which requires that all differences arising out of the policy shall be referred to the decision of an arbitrator within 12 months of the disclaimer made by insurance company with regard to any liability under insurance claim and that in the present case such disclaimer was made on 20/04/1971. He further held that as the plaintiff failed to make a reference to the arbitrator in terms of condition 7 within 12 calendars months of the disclaimer, the plaintiff could not bring the suit in Civil Court. He further held that the suit was barred by limitation as the damage was claimed by the plaintiff beyond 3 years from the date of occurrence or the causing of the alleged loss and that the date of refusal to pay the damage or the date of disclaimer by the defendant could not extend the period of limitation. Being aggrieved by and dissatisfied with the judgment and decree of dismissal passed by the learned trial Judge, the plaintiff has come up in appeal.;