QUAZI AZIMUDDIN QUAZI ALI Vs. HERCULES INSURANCE CO LTD

JUDGEMENT

(1.) This is a claim against an insurance company for loss arising out of fire. The suit was originally filed by one Kazi Ali who died pending the suit and his heirs and legal representatives have been brought on record subsequently as plaintiffs. Kazi Ali was carrying on business as a carting and transporting agent. It was his case that one Ebrahim Coka another person by name Sopher and a firm called Abdul Satar & Co. engaged him to transport certain bales of cloth and yarn from Bombay to Shrivardhan in Janjira State. Owing to certain circumstances, into the details of which it is unnecessary to go 181 bales out of those bales, which were originally intended for export from Janjira, could not be exported, and they had to be brought back and stored at a place called Khandpale where Kazi Ali used to reside. These goods arrived at Khand-palo in the month of May 1944. It is the plaintiffs' caso that Kazi Ali built a godowu in or about, the month of November 1945 and stored these 181 bales in the said godown. On 29-11.1945, Kazi Ali took oat a policy of fire insurance from the defendants in respect of the said 181 bales for a sum of Rs. 4,90,000 and of the building of the godown for Rs. 10,000 aggregating to a sum of five lacs of rupees for a period of one year commencing from 26-11-1945. The said goods continued to be in the said godown until 27-2-1946, when in the early hours of the morning they wore totally destroyed by fire. The plaintiffs have claimed in this suit a sum of RS. 4,36,500 which they say was the value of the goods that were burnt and part of the building that wag destroyed as sot out in particulars EX. a to the plaint.

(2.) The defendants by their written statement deny that the godown was in existence on 28.11. 1945 that is, the date from which the risk under the policy commenced; they further deny that 181 bales of cloth or yarn were in the said Quazi Azimuddin Quazi Ali and Ors. vs. Hercules Insurance Co. Ltd. (26.07.1951 - B... Page 3 of 7 (26.07.1951 - B... Page 3 of 7 godown if it existed on that day; they also plead that Kazi Aii failed to observe condition No. 11 of the policy with regard to producing and procuring such particulars with respect to the claim as may be reasonably required by the insurance company and urge that the supplying of such particulars was a. condition precedent to any claim under the policy; they also urge that they rejected, the said claim and in terms of condition No. 13 of the policy all benefits under the policy are forfeited unless an action or suit is commenced within three months after rejection.

(3.) Quite apart from these contentions raised by the written statement, Mr. Beynon, who appeared for the defendants, raised a somewhat interesting question of law. His submission was that by the terms of the policy, to which I will presently refer, the company only insured the legal liability of the assured to third parties in respect of the goods; and as Kazi Ali was a bailee and it is not his case that the fire was due to his negligence, he was not liable to the true owners of these goods and, therefore, the defendants were not liable under the policy at all. Now, before I consider whether it is open to the defendants to raise such a contention without pleading it, it is necessary to ascertain the true scope of the policy. The policy insures (a) the building of the godown for RS. 10,000 in respect of which no question of interpretation of the terms of the policy arises; and (b) also insures for a sum of RS. 4,90,000 the goods lying in the godown which are described in these terms: "Piecegooda of every description and/or yarn and/or textile fabrics in pressed bales and/or in cases, the property of the insured or held by him in trust or on commission for which he is responsible contained in building insured by item (a) above," Now, the words "the property of the insured" in such policies cover not only goods belonging to the insured but also goods in respect of which he has a lieu or a charge for services rendered or for expenses incurred. Macgillivray on Insurance Law (Edn. 3), at page 328, states the position thus: ". . . . The words 'his own' when used IB such a context cover not only goods in respect of which he is the absolute owner, but also the goods of others entrusted to him in respect of his lien or other beneficial interest therein." Then, with regard to the further words "held by him in trust or on commission" the same author continues (p. 328):