NIBRO LIMITED Vs. NATIONAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This suit for recovery of Rs. 7,40,606.65 together with costs and interest has been filed H by the plaintiff against the defendant-National Insurance Company Limited. The plaintiff is a company incorporated under the Indian Companies Act, 1956 having its registered office at E-5 Hauz Khas, New Delhi. The plaint has been signed and instituted by one Shri G. Jhajharia who claims to be the Director and principal officer of the plaintiff company authorised to sign the plaint and institute the suit. The defendant is a nationalised company.

(2.) The plaintiff has a factory at Delhi Road, Gurgaon, Haryana. It is stated in the plaint that the factory of the plaintiff was insured by the defendant since 1973 against, theft, fire, damages etc. from time to time under the policies taken by the plaintiff. The plaintiff with a view to re-insure its factory requested Shri Dilip Bhattacharjee, the Development Officer of Division No. II of the defendant to visit and inspect the premises. Accordingly, Shri Dilip Bhattacharjee visited the factory of the plaintiff on 31st May 1982 and agreed to insure the factory building, goods and raw-material against theft, fire, damages etc. He further agreed to issue the cover-note on the next day. According to the plaintiff, on 1st June 1982 Shri Dilip Bhattacharjee collected a cheque for Rs. 12,324.00 which included Rs. 6,364.00 towards fire insurance premium, Rs. 5,400.00 towards burglary and Rs. 516.00 towards traders combined risk. It is alleged in the plaint that Shri Dilip Bhattachargee signed the cover-note in the presence of Shri A. K. Jhajharia, however, Shri Dilip Bhattacharjee said that he will issue the insurance policy very soon and took away the cover-note with him to do the needful in the matter. According to the plaintiff Shri Bhattacharjee issued insurance cover-notes under cover-notes no. 614129 and 591291 on 1st June 1982 itself for an aggregate sum of Rs. 40,60,000.00 . It is alleged that the plaintiff's proposal and the cheque were duly accepted by the insurance company through Shri Dilip Bhattacharjee, the Development Officer and the above-mentioned cover-notes were issued on 1st June, 1982 to convey the acceptance.

(3.) A fire broke out in the factory of the plaintiff on the morning of 2nd June 1982 at about 10:30/10:40 A.M. It is alleged that the officers of the plaintiff present in the factory immediately informed the Fire Brigade, Gurgaon on the telephone as well as by deputing representatives and the was brought under control by the Air Force Fire Station and the Gurgaon Municipal Fire Station at about 2.50 P.M. However, the said fire caused substantial damage to the main building, its installations, raw-materials, semi-finished/finished goods and to the goods lying in the customs bonded warehouse etc. It is further alleged that the plaintiff on 3rd June 1982 informed the Senior Divisional Manager of the defendant about the fire and requested the defendant to depute its surveyor immediately to survey the damage. Accor dingly, a surveyor was deputed by the defendant who assessed the loss at Rs. 2,72,458.71. The surveyor however had not calculated the loss caused to the goods lying in customs bonded warehouse because the customs authorities were not. available for inspection at the relevant time. It is alleged that the plaintiff time and again requested the defendant to depute a surveyor to inspect the loss suffered by the plaintiff in the customs bonded warehouse and pay the claim but despite that the defendant neither paid the claim nor sent the surveyor to assess the loss at the customs bonded warehouse. The plaintiff, therefore, issued a notice on 22nd January, 1983 through its Advocates M/s Gagrat & Co. calling upon the defendant to get the survey done in the customs bonded warehouse and for payment of Rs. 2,72,458.71 with interest @ 18 percent per annum within 15 days of the said notice. It is alleged that the said notice issued by M/s. Gagrat & Co. was received by the office of the defendant on 25th January, 1983. Since the defendant neither made the payment nor sent the surveyor, the plaintiff assessed the loss at Rs. 6,27.632.76.