KANAHYA LAL LOHIA Vs. ASSICURAZIONI GENERALLI

JUDGEMENT

(1.) The plaintiffs claim arises under several policies of insurance issued in September, October a November, 1936 by the defendants, in respect of a fire which occurred on 1 December 1936, and which caused loss and damage to premises and stock contained in a jute godown. In their plaint they claimed also a refund of premia, but this sum was brought into Court by the defendants with their written statement and has since been paid over to the plaintiffs. The defendants case is that none of the policies were subsisting or effecting at the time when the fire occurred owing to breaches by the plaintiffs of certain terms, conditions and warranties which were of the essence of the contracts. It is not suggested that the fire or the resultant loss or damage was in any way due to or affected by any of such breaches. The plaintiffs deny the breaches, and alter, natively plead waiver. There are arbitration clauses in the policies, but the parties agreed to waive them, and to have the question of liability first decided by the Court, with liberty to direct that the amount of the loss be ascertained hereafter by the Court or by arbitration in the event of the defendants liability being established. The policies were issued subject to the Calcutta and Howrah Jute Press Tariff Warranties dated 15 June 1937, with certain exceptions which are immaterial. The material parts are as follows: It is warranted during the currency of this policy (all and each of such warranties being of the essence of the contract and the insured forfeiting all rights and benefits under the policy by any breach or breaches thereof) that: M. No jute hereby insured or on the insured premises shall at any time be contained in any building other than a "godown" as hereinafter defined and no such godown shall at any time during the currency of this policy contain jute (irrespective of the ownership thereof) exceeding in the aggregate 35,000 maunds. The term "godown" in this warranty shall mean the following and shall be incapable of having any other meaning: (i) Any separate self-contained building (with or without partitions) situate at a distance of 14 feet or more from any other building, or any separate self-contained building situate less than 14 feet from another building provided that every wall thereof facing any such other building whether directly or obliquely shall be built of brick or stone without openings of any kind or if containing openings such openings being protected at all times by approved corrugated iron doors and/or shutters, unless such wall in any such other building is built of brick or stone without openings of any kind, or (ii) any compartment or part of any building which complies with Sub-clause (i) hereof provided that such compartment or part is separated from the whole of the rest of the building of which it forms part by perfect party walls built of brick or stone without openings of any kind or if containing openings such openings being protected at all times by double fire-proof doors and/or shutters, or (iii) any two or more compartments or parts of any building which complies with Sub-clause (i) hereof, which are as a whole separated from all other parts of the said building by such walls as are described in Sub-clause (ii) hereof, or (iv) any group of two or more separate self-contained buildings situate at a distance of less than 14 feet from each other provided that if any part of any wall or any building in such group shall be situate within 14 feet of any building not forming part of such group the whole of such wall shall be constructed in the manner described in Sub-clause (i) hereof.

(2.) The defendant also rely upon Clause 8 and 11 of the general conditions of the policies which so far as they are material read as follows: 8. Under any of the following circumstances the insurance ceases to attach as regards the property affected unless the insured, before the occurrence of any loss or damage, obtains the sanction of the company signified by endorsement upon the policy, by or on behalf of the company. (a) If the trade or manufacture carried on be altered or if the nature of the occupation of or other circumstances affecting the building insured or containing the insured property be changed in such a way as to increase the risk of loss or damage by fire. 11. The insured shall also at all times at his own expense produce, procure and give to the company all such further particulars, plans, specifications, books, vouchers, invoices, duplicates or copies thereof, documents, proofs and information with respect to the claim and the origina.1 cause of the fire and the circumstances under which the loss or damage occurred, and any matter touching the liability or the amount of the liability of the company as may be reasonably required by or on behalf of the company together with a declaration on oath or in other legal form of the truth of the claim and of any matters connected therewith.

(3.) No claim under this policy shall be payable unless the terms of this condition have been complied with. The facts and arguments upon which the defendants rely are set out in their written statement as follows: Paragraph 7. Prior to the outbreak of the fire mentioned in the plaint there was a breach of the said warranty M.A. hole was made in the party wall separating the part of the building described in the plaint as "Godown No. 1" from what is described in the plaint as "Godown No. 2", and the said hole was in existence at the time of the fire and was temporarily filled up by the Fire Brigade. The said hole was unprotected. At the time of the making of the said hole and while the same was in existence there was stored in the said "Godown No. 1" approximately 32,206 maunds 34 seers of jute and in the said "Godown No. 2" approximately 32,488 maunds 22 seers of jute. Upon the making of the said hole there was a breach of the aforesaid warranty M in that the said Godowns Nos. 1 and 2 became one "Godown" as defined in the said warranty and contained jute exceeding in the aggregate 35,000 maunds.