COMMERCIAL UNION ASSURANCE CO Vs. BINJRAJ JOHURMULL

JUDGEMENT

(1.) In this case, the plaintiffs sue the defendant company upon a policy of insurance taken out on 3 November 1924. The policy of insurance is in the form of a marine voyage policy [but it really has reference to goods to be sent by post from Calcutta to other [places; in particular, it has reference to gold and silver to be sent from Calcutta to other places. The system was that, after posting the parcel containing gold or silver as the case might be and after obtaining a receipt from the post office, the receipt was to be taken to the company's office together with the policy and a declaration was to be made and endorsed on the back of the policy so as to show that a particular venture or transit was being covered by the insurance. The endorsement of the policy dated 13 November 1924 states that the insurance covered an item from Calcutta to Sambalpur, post office receipt No. C-421, amount Rs. 1,200 on gold. By the, terms of the policy, it was to be a registered insured parcel post or registered parcel post at and from Calcutta to any place in India against all risks; and the provision as regards the terminus ad quern of the transit was contained in a slip to this effect: Risk to commence from the time receipts for the packages are given by the postal authorities to the assured and to continue until delivered by the postal authorities to the addressees or their representatives.

(2.) Now the plaintiffs case is that, as regards this particular consignment, gold was packed in a box by the witness Gulraj and Nandalal partners themselves on 12 November, that it was carefully kept in an almirah and that these two men themselves posted it on the 13th, that thereafter the receipt was taken to the insurance office and the declaration was made and endorsed upon the back of the policy. The plaintiffs case further is that this package was to go to a place called Tarbha some little distance from Sambalpur (the package was addressed to Mongal Chand Arjundas, Tarbha, Sambalpur), that it got to Sambalpur, that it ultimately got to Tarbha, that it was tendered to the addressee but that the addressee refused it because it did not weigh so much as it should have weighed. Thereupon, the plaintiffs case is that the post office took the parcel back, reconveyed it to Calcutta, gave notice to the plaintiff firm that the parcel was in a damaged condition at Calcutta, that the parcel was there inspected by the Insurance Company's surveyor and by the plaintiff company's representatives and that it was found that a certain kind of stone neatly wrapped up in dark red tissue paper had been substituted for the gold. The plaintiffs claim that the loss of this gold happened during the time when the risk under the policy was on the defendants.

(3.) In answer to that case, the Insurance Company by their written statement set. up various cases. Two cases they did, not set up by the written statement at all. One was that the plaintiffs had no insurable interest. It turns out that the plaintiffs appear to have been purchasing, this gold as commission agents but it also turns out that the policy of insurance is itself adapted to such a case because it says that the plaintiffs have-represented to the company that they are interested in or are duly authorized as owners, agents or otherwise to make the insurance. There is nothing whatever in that point and, at all events, it. was not taken before nor has it been examined by the learned Judge nor has any finding of fact been arrived at on that. I do not trouble myself with that defence at all. The company has no- business to raise it now in this appeal.