RAM SINGH Vs. CENTURY INSURANCE CO LTD

JUDGEMENT

(1.) The plaintiff in this suit claims to recover the sum of Rupees 20,000 together with interest and costs under a policy of insurance against loss by fire being No. 1260486 issued by the defendant company on 26 November 1927 in respect of building No. 57, Abbotabad Cantonment, which was destroyed on 20 November 1928. The policy, as stated, was issued on 26 November 1927 and insured the plaintiff in the sum of Rs. 20,000 against fire in respect of the building owned by him at Abbotabad for one year from 3 November 1927 to 3 November 1928, upon which date the policy is stated to be renewable. On 20 November 1928 the premises insured were completely destroyed by fire, but on the 18 the plaintiff had posted to the defendant company a cheque for Rs. 85 on account of the renewal premium. Actually the amount of the renewal premium was Rs. 100, but he was allowed a discount amounting to Rs. 15 by reason of which the company, on receipt of the cheque on 26th November 1928, sent him two receipts, one for Rs. 85 and another for Rs. 100 formally renewing the policy. At that time the company had no knowledge of the fire, and a letter informing them as to the fire was despatched on 22nd and received on 28 November. This appears from a letter written by the company bearing the latter date in which they confirmed as follows a telegram sent to the plaintiff on the same day: Renewal receipt No. 88 under policy No. 1260486 for Rs. 20,000 covering 57 cantonment hereby withdrawn and cancelled stop premium of Rs. 85 being returned to you stop our letter of 26 November and enclosures are also hereby withdrawn and cancelled stop letter follows.

(2.) Summarizing the position the insured sent his cheque in renewal of the policy before the fire; the company formally renewed the policy in ignorance of the fire; subsequently on learning of the fire they purported to withdraw and cancel the renewal receipt. For the present purpose it is not suggested that the plaintiff ought to have informed the company of the fire before the company could post the renewal receipt, nor for the present purpose has it been suggested that everything was otherwise than perfectly bona fide. I say "for the present purpose" because though three issues were submitted and accepted I have been invited by learned Counsel on both sides first to try issue las it may determine the whole suit. The issues are as follows: (1) Was the policy in force on 20 November by reason of the payment and acceptance of the renewal premium on 26 November ? (2) Was the renewal of the policy, if any, procured by fraudulent concealment of the fact of the destruction of the risk by the plaintiff ? (3) Did the plaintiff commit any breach of condition of the policy as alleged in para. 6 of the written statement. At the hearing Mr. Banerjee for the company stated in relation to issue 3 that he would confine himself to the particulars given in paras. 6(i), 6(ii) b, 6(iii) and 6 (v) of the written statement. Before considering the question to be determined I should state that neither side wished to call any oral evidence nor has the evidence taken on commission been referred to and I gave every opportunity to tender any documentary evidence which it was desired to use. I have been informed that all material documentary evidence has been exhibited and it consists exclusively of the very few documents to which I shall have to refer. I further wish to draw attention to the letter of 28 November 1928 from the company to the plaintiff which says: As the fire is stated to have taken place on the 20 instant we are not liable as we had clearly intimated to you in our letter of the 14 idem that we would not cover the risk until we receive your further instructions which did not reach us until the 26 instant.

(3.) On my drawing Mr. Banerjee's attention to this passage, he said that nothing turned upon it, and he did not desire to go into any question which that paragraph might be considered to have foreshadowed. The contention advanced on behalf of the plaintiff which purports to be expressed in issue 1 and to which no objection has been taken, even if the point has not been expressly pleaded, is that actually there was no renewal; that the word "renewal" is really misused in the policies, that under the policy itself the plaintiff was continuously insured until and by reason of the renewal. This is based upon the clause of the policy which runs as follows: The company hereby agrees with the insured (but subject to the conditions printed on the back of this policy, and to any other conditions thereon otherwise expressed) that if, after payment of the premium, the property above-described or any part thereof, shall be destroyed or damaged by fire or lightning at any time between 3 November 1927 and 4 o clock in the afternoon of 3 November 1928, or during any subsequent period for which the insured shall pay to the company, and the company shall accept the sum required for the renewal of this policy, the company will pay or make good all such loss or damage etc.