B.N.Banerjee, J. - (1.) The plaintiff sues the defendant insurance company for recovery of Rs. 9,000, with interest thereon, on a motor car insurance policy in respect of his Lanchester Saloon Car, which was said to have been lost to the plaintiff by theft; alternatively the plaintiff claims an enquiry as to damages for loss of the car by theft and a decree for the amount of damages so ascertained.
(2.) According to the plaintiff, by a policy of insurance, dated March 24, 1961, the defendant company, in consideration of premium paid, insured the plaintiff and undertook to indemnify him against loss of or damage to his abovementioned car, for a sum of Rs. 10,000 and agreed that if the car was lost, inter alia, by theft, at any time during March 18, 1961 and December 28, 1961, the defendant company would pay to the plaintiff the value of the said car at the time of such theft, provided that the liability of the defendant company would not exceed on the whole the said sum of Rupees 10,000. After the expiry of the first period of insurance, the policy was renewed for a period of one year from December 29, 1961 to December 28, 1962, for the reduced sum of Rupees 9,000. This reduction was made, it is said, at the suggestion of the defendant company on account of the depreciation of the estimated value of the car. During the continuance of the period of this insurance, on December 31, 1961, the plaintiff went to attend a function at the Ordnance Club and parked the car on Clyde Row, near the Club, at about 21-45 hours. When he came out of the Club at about 02.30 hours, on January 1, 1962 he discovered that the car was lost by theft. The plaintiff informed the Officer-in-charge, Hastings Police Station, and also gave notice to the defendant company about the theft. Thereafter, on January 10, 1962, the plaintiff submitted a written claim, with necessary particulars, claiming Rs. 9000 as the estimated amount of the loss. The defendant company, however, repudiated its liability under the policy, on the ground that the plaintiff had made material misrepresentation about the purchase value of the car in the proposal form. In these circumstances, the plaintiff filed this suit, for reliefs hereinbefore stated.
(3.) The defendant company filed a written statement denying liability for the claim. The defendant company admitted receipt of a notice concerning the theft of the car but did not admit that the car was lost by theft. Without prejudice to the above contention, the defendant pleaded that on March 18, 1961, the plaintiff made several statements and declarations in a proposal form and his statements and declarations were made the basis of the policy, which expressly provided that the truth of the statements in the said proposal would be condition precedent to the liability of the defendant company to pay under the policy. In disregard of the requirement that utmost good faith was necessary in both the parties during the making of the contract of insurance, it was alleged, the plaintiff made a written declaration in the proposal form that he had purchased the car for Rupees 10,000 and that the estimated value of the car was also Rs. 10,000. Tt was, however, discovered by the defendant company that the declararation was false or fraudulent and that the plaintiff had purchased the car only for Rs. 6000. The defendant, it was pleaded, was therefore entitled to repudiate the liability under the policy and did so. It was also pleaded that the plaintiff was not entitled to any sum under the policy far less any interest thereon. Alternatively, it was pleaded that the indemnity claimed was excessive.;