KHAN ALI SHAH Vs. RUBY GENERAL INSURANCE

JUDGEMENT

(1.) THIS is a suit for the recovery of RS. 1,39,586 on the basis of two fire insurance policies bearing Nos. 241030 and 214312 taken out by the plaintiff from defendant No. 1 namely the Ruby General Insurance Company Limited, hereinafter referred to as the defendant company". The plaintiffs case is that he is the sole proprietor of the concern styled as "Kashmir Motors", that he effected insurance of certain properties with the defendant company which carries on the business of insurance within the State of Jammu and Kashmir as also at other places against fire risks by virtue of the aforesaid two policies, that on December 28, 1963, the building known as "Regal Talkies1 belonging to Bakshi Abdul Majid of Srinagar caught fire and was gutted, that the fire also spread to another building belonging to Bakshi Abdul Majid where the godown of the plaintiff wherein were stored various goods in respect of which the present claim has been instituted was, that all the goods in the said godown were wholly burnt, that the plaintiff lodged a claim with the defendant company for the damage sustained by him in regard to the insured properties which were burnt by fire, that a regular claim on duly filled up forms was also submitted by him to the defendant company pursuant to which the company sent its assessors to assess the damage, that the said assessor assessed the plaintiffs total damage at Rs. 1,39,586 that though the damage sustained by the plaintiff and claimed by him amounted to Rs. 2,05,757 -47 he accepted the assessment made by the assessor to avoid controversy, that out of the property insured on the basis of policy No, 241030 the properties detailed at items Nos. 1 and 2 of the said policy were damaged and out of the properties covered by Policy No. 214312 one vehicle was totally destroyed by fire, that the said policies covered the risk on the properties insured from 1 -8 -1963 to 1 -8 -1964 and at the time when the fire broke out the said policies were duly in force that after the assessment made by the assessor of the defendant company the plaintiff has been asking the company to pay up the claim as found by its own assessor but it has been keeping quiet, that finally he served a notice on the defendant company on June 22, 1965 in response to which the company repudiated his claim by its Advocates notice dated July 21, 1965, and that as the defendant company has wrongly repudiated his claim and he is under the policies entitled at least to Rs. 1,39,586 as found by the companys own assessor, hence the suit. The plaintiff has also impleaded the United Commercial Bank as a defendant on the allegation that the latter is also interested in the insured properties as they stood pledged to it as a security for the money advanced to him.

(2.) THE suit has been resisted by defendant, No. 1 alleging inter alia that the plaintiff is not the sole proprietor of the concern "Kashmir Motors" were insured with it, the risk covered only accidental fire, that the properties in question were destroyed not by accidental fire but by rioters, that the risk of loss occasioned in consequence of riot and civil commotion etc. was excluded from the scope of policies, that after the incident the plaintiff realised his mistake in not having got his goods insured against the risk of riot as well and got the remaining properties of "Kashmir Motors" insured against civil commotion and riot also by virtue of fresh endorsement on the policies on January 20, 1964, that the suit having been commenced by the plaintiff on the basis of the policies beyond three months of rejection of his claim, he has forfeited all the benefits thereunder, that having forfeited all the benefits under the policies by virtue of clause (13) of the conditions governing the insurance the suit is not maintainable, that the suit of the plaintiff not being the subject of any pending action or arbitration and having been brought more than 12 months after the happening of the loss or damage the liability of the defendant has ceased and become extinguished under clause 19 of the terms and conditions upon which the policies were granted, that on December 28, 1963, there was a terrible riot consequent upon the disappearance from Hazratbal shrine at Srinagar of the holy relic and a mob infuriated by this incident indiscriminately committed unlawful acts of rioting, looting and incedirism, that the rioters set fire to the Regal and Amresh Cinemas and to other properties of Bakshi Abdul Majid and also looted and set fire to the goods and a vehicle of "Kashmir Motors" stored and stocked in one of the buildings adjoining the Regal Cinema and also set fire to the Police Station, Kothi Bagh, which was situated in the same locality, that the damaged property was got surveyed at the repeated requests of the plaintiff without prejudice to the right of the defendant to raise such objection or objections as were available to it against the ten -ability of the plaintiffs claim that the report of the Surveyor specifically mentions that the amount assessed was not payable to the plaintiff because the destruction of the properties of Kashmir Motors was not caused by accidental fire but was the result of the acts or acts of rioters as stated above that the defendant has never accepted the plaintiffs claim or any part thereof, that as the vehicle destroyed by the rioters had been kept in the show room of Kashmir Motors on the Residency Road, Srinagar in contravention of the terms of the insurance policy the risk of the vehicles was not covered at the time of the fire, that the loss sustained by the plaintiff not being covered by the policies of insurance, his claim was not entertainable and was rightly repudiated and that the plaintiff had no cause of action against the defendants.

(3.) IN the written statement filed by defendant No. 2, it has been contended that as the goods pawned to it, the policies were also assigned in its favour and the money due thereunder was payable to it, it has been unnecessarily joined as a party to the suit.