S SUBRAMANIAM Vs. HINDUSTAN GENERAL INSURANCE SOCIETY LTD

JUDGEMENT

(1.) THE plaintiff who was unsuccessful in both the Courts below has filed this second appeal. The suit was filed by him for recovery of a sum of Rs. 3715-20 against the defendant-insurance company. The plaintiff's lorry MDS 4779 was insured with the defendant against loss or damage by any accident for the period from 11-8-1962 to 10-8-1963. The licenced carrying capacity of the lorry was 5. 392 tons as admitted in these proceedings. Subsequently on 7-11-1962 the licenced carrying capacity was increased to 6. 1742 tons. The proposal for insuring the vehicle was made on 11-8-1962 and this proposal was signed by Parasmal mahar, who was the financier and who had a hire purchase agreement in his favour. In this proposal form, which is marked as Ex. B1 in this case, in the column relating to particulars of vehicle to be insured, the licensed carrying capacity of the vehicle was given as 5 tons. The defendant accepted the proposal and issued the insurance policy No. 12710, CV, Ex. A-1 in this case. The policy starts with the following clause:

(2.) THE defendant repudiated the claim on the ground that there was a fraudulent misrepresentation in the proposal as to the carrying capacity of the vehicle and that the licenced carrying capacity of the vehicle is a material fact in fixing the premium. It also contended that the increase in the licensed carrying capacity made on 7-11-1962 was not intimated to the defendant and higher premium paid and that therefore the company was entitled to avoid the contract of insurance.

(3.) THE point for consideration is whether, on the facts of this case, under the terms and conditions of the policy is defendant company is entitled to avoid the contract, and refuse payment of the loss or damage to the vehicle.