V KSRINIVASA SETTY Vs. PREMIER LIFE AND GENERAL INSURANCE COLTD

JUDGEMENT

(1.) The plaintiff was the owner of a Studebaker Champion Motor Car. On June 24, 1949 he signed a proposal (Ex. I) for insuring this motor car with the defendant, (hereinafter called the company) against loss or damage to it and third party liability arising from its use. On that proposal, a policy (Ex. II dated July 26, 1949 was issued by the Company insuring the car for one year, so far as material to this case, against any damage occasioned by accidental external means. The policy contained a recital that the proposal and declaration as stated in the schedule to that policy shall be the basis of the contract between the parties and shall be deemed to be incorporated in it. The policy was made subject to the conditions contained in it or endorsed thereon. One of those conditions provided that the due observance and fulfilment of such conditions and the endorsements and the truth of the statements and answers in the proposal shall be conditions precedent to the liability of the company under the policy.

(2.) On the night of November 15, 1949, while the car was being driven by the plaintiff's driver Pushparaj P.W. 5. when the plaintiff was returning from Kolar to Bangalore, it met with an accident at a place eighteen miles from Bangalore. This accident, according to the other evidence which the plaintiff adduced in the case, was the result of an attempt made by his driver to avoid two cyclists coming from the opposite direction on the wrong side of the road without lights. The car then, according to the plaintiff's story dashed against a stone culvert and capsized. The car, according to the plaintiff, was very seriously damaged although the plaintiff and his driver escaped with minor injuries.

(3.) It is undisputed that the plaintiff immediately reported this accident to Sreeramulu P.W. 1, who was the then Chief Agent of the company and its Branch Manager when he was examined by the plaintiff as his witness. The car was then removed with the aid of a crane to the premises of a firm known as Shanti Kiran Motors, although the company does not admit that it was so removed by P.W. 1 on its behalf. The plaintiff's case is that the Company neglected either to effect the necessary repairs to the damaged car or to substitute a new car in its place as it was, according to him, bound to do. He therefore, brought this suit for the recovery from the company of a sum of Rs. 15,660/- which is the aggregate of the sum of Rs. 13,500/- the value of the car insured, charges claimable for removing the car from the place of accident to the premises of Shanti Kiran Motors and compensation for the period during which the car was unavailable to him. The learned District Judge dismissed the plaintiff's suit and the plaintiff has appealed.