A.K.Bisi, J. - (1.) -The plaintiff Lohia Jute Press (P) Ltd. instituted the suit claiming declaration that the defendant No. 1 the New India Assurance Co. Ltd. was liable to indemnify and/or reimburse and/or compensate the plaintiff or the defendant No. 2 or either of them for the loss of and damage to the insured goods lying stored at the godown No. 9FA at the factory premises at No. 28, Barrackpore Trunk Road, Calcutta-2, by reason of outbreak of fire and decree for Rs. 49,96,569.76p in favour of the plaintiff or the defendant No. 2. Alternatively the plaintiff claimed an enquiry into loss and damages for such sum against the defendant No. 1 as might be found due upon such enquiry as payable by the defendant No. 1 by way of indemnifying and/or reimbursing and/or compensating the plaintiff or the defendant No. 2 or either of them for loss of and damage to the insured goods. The plaintiff also claimed further interest including interim interest and interest upon judgment @ 18% per annum and other reliefs.
(2.) Briefly the case of the plaintiff is that the plaintiff company was the owner of the entire stock of Polythene Granules stored at godown No. 9FA at the factory premises of the plaintiff at premises No. 28, Barrackpore Trunk Road, Calcutta-2. The said stock of Polythene Granules so lying stored at the said godown consisted of 11546 bags x 25 Kgs. = 285650 Kgs. and 2980 torn bags consisting of 2788.868 Kgs. total weight being 316540.368 Kgs. In consideration of the premium paid by the plaintiff the defendant No. 1 insured the said goods against destruction or damage by fire or lighting during the period from 5th October, 1975 to 6th October, 1976 upto 4 P.M. for the sum of Rs. 60,00,000 (Rupees Sixty lacs) covering such insurance under Fire Insurance Policy No. 130431218 dated January 3, 1976 and Fire Extra Endorsement Nos. 105930014-16 dated April 8, 1976 and April 26, 1976. On 8th May, 1976 fire broke out after midnight at godown No. 9FA of the plaintiff where the said goods were lying stored causing destruction of and/or heavy damage to the said goods. The said godown is a Customs' Bonded Godown.
(3.) By its letter dated May 8, 1976, the plaintiff duly reported the occurrence of the fire and the loss and damage caused by fire to the defendant No. 1 and invited defendant No. 1 to assess the loss and damage at the earliest. On or about the 12th May, 1976 in compliance with the requisition of defendant No. 1 the plaintiff duly filed a claim for Rs. 48,74,575.37p before the defendant No. 1 on the basis of the value of the entire stock of Polythene Granules lying stocked at the said godown at the time of outbreak of fire and insured under the said policy. Defendant No. 1 appointed Mr. S.C. Majumdar and M/s. Ascon & Avins for survey and assessment of loss. The said Surveyors checked the records of the plaintiff relating to the said stock of Polythene Granules and found that a total quantity of 3,16,540.305 Kgs. was lying in the said godown at the time of outbreak of the said fire instead of 3,16,530.868 Kgs. as mentioned in the claim form submitted by the plaintiff. In the course of the salvage operation the said Surveyors handed over to the plaintiff 2261 bags containing 84025 Kgs. of Polythene Granules which according to the said Surveyors were in sound condition. The said Surveyors also handed over a further quantity of 7754 damaged bags of polythene granules containing 50339.540 Kgs. which were in damaged condition and had depreciated in value being affected by fire. Out of the total quantity of 3,16,540.305 Kgs. of polythene granules lying in the said godown at the time of outbreak of fire 1,82,175.765 Kgs. of polythene granules were totally destroyed and lost to the plaintiff.;