1. This first appeal has been filed against the judgment and decree passed in civil suit No. 22B of 1948 by the Additional District Judge Jabalpur dismissing the claim of the plaintiff-appellant, V.P. Desa.
2. The plaintiff's case was that he had booked his motor car on 12-9-1947 at Quetta with the North Western Railway to be carried to Jabalpur and that the car was lost in transit. He claimed a sum of Rs. 6,000 as its value from the Union of India, defendant No. 1, as representing the Railways. The car was insured with the National Fire and General Insurance Co., Ltd., Calcutta, defendant No. 2, and hence the Insurance Co., was also sought to be made liable for the claim. The plaintiff stated that he could maintain the suit at Jabalpur as he was displaced person within the meaning of the Displaced Persons (Institution of Suits) Act, 1948.
3. The Union of India stated that the North Western Railway with which the consignment was stated to have been booked, was in the Dominion of Pakistan, and as the consignment was never handed over to the Indian Railways, no liability was incurred by them in respect of its loss. It was further stated that the car in question was lying at Karachi for want of the requisite export permit.
4. The Insurance Company denied liability on the following grounds :
(i) The car was still lying at Karachi and has not been lost;
(ii) Their liability was excused under the general exceptions in the policy in as much as the loss, if any, was occasioned by civil commotion riots or civil war;
(iii) As notice was not immediately given as required by condition 1 and the matter was not referred to arbitration according to condition 7, of the policy, the suit was not tenable; and
(iv) The court had no jurisdiction as the plaintiff was not a displaced person.
5. The trial court found that the car was not handed over to the Indian Railways and so the Union of India was not liable. As regards the liability of the Insurance Company, the court held that loss of the car was not proved and so they were not also liable. On other pleas raised by the Insurance Company it was held that the case was not covered by the general exceptions in the policy but the suit was barred as the plaintiff did not refer the matter to arbitration. The court also held that the plaintiff was a displaced person and accordingly the plea of want of jurisdiction was not tenable.
6. We may first refer briefly to the question of jurisdiction. This plea was raised presumably on the wrong impression that the relevant provision in the Displaced Persons (Institution of Suits) Act was confined only to those persons who were forced to leave Pakistan on account of disturbances. The plaintiff was in the employment of Government and opted for India before, the setting up of the two Dominions. Nevertheless, he comes within the definition of a displaced person in that Act which extends to persons voluntarily coming to India on account of the division of the country. We, therefore, agree with the finding of the trial court on this point.
7. Passing on to the question of the liability of the Indian Railways, it would be noticed that the consignment was booked on 12-9-47, that is, after the Dominion of Pakistan had come into existence, Section SO of the Indian Railways Act, which defines the liability of the railways over which a consignment booked with one of them travels, would have no application to the case unless the consignment in suit was taken over by one of the Indian Railways. For they are not liable on the basis of contract which was admittedly made with a foreign railway.
8. The plaintiff must, therefore, prove that the car had reached the Indian Railways before he can succeed. The plaintiff had written some letters to the Superintendent, Claims, Bombay, in this connection. Those letters were sent to Quetta and there was some correspondence between the Divisional Superintendents of Quetta and Karachi. These documents are Ex. P. 7 to P. 15, and Exs. 1D1 and 1D2.
It appears from Ex. P. 10, dated 19-4-48, that the plaintiff was informed by the Superintendent Claims, Bombay, that a permit for export of the car from Pakistan was necessary and if a permit had not been obtained, the plaintiff should approach the N. W. Rly. for disposal of his claim. The plaintiff in the witness-box professes ignorance of this letter but it was addressed to his counsel and he must be deemed to know about it.
9. It is clear from Exs. 1D1 and 1D2 that the car was held up in the Lost Property Office at Karachi for want of an export permit. These letters were received by the Superintendent Claims, Bombay, in reply to his official enquiries from the Pakistan authorities about the movement of the car, which were started at the instance of the plaintiff. Shri Lobo for the plaintiff contends that these documents are not proved and should be rejected.
The documents, however, are proved to have been received in official correspondence by the witnesses examined by the Union of India, viz. 1DW1 Chintaman and 1DW2 Rochaldas and there can be no doubt about their genuineness. They are, therefore, admissible under Section 35 of the Indian Evidence Act, and prove definitely that the car never reached the Indian Railways.
10. Shri Lobo, however, referred to a letter from the Divisional Superintendent, Karachi, dated 18-3-50 (Ex. P. 15) in which it was stated that the Superintendent Claims, Bombay, 'is the competent authority to deal with the matter as the destination station is situated over (his) Railway'. This letter does not, however, advance the case of the plaintiff. The reason for calling the Superintendent Claims, Bombay, as 'Competent authority' was only that the destination station was within his jurisdiction.
At best, the letter shows that the Karachi authorities were not prepared to deal directly with the plaintiff, but that does not change the position of the Indian Railways which cannot be made liable as it is not shown that the consignment had reached them. The claim against the Union of India is not, therefore, tenable.
11. Coming to the claim against the Insurance Company, we have to decide whether the consignment has been lost within the meaning of the policy, Ex. P 17. The relevant clause runs as follows :
'The Company will indemnify the Insured against loss or damages to the motor car whilst in transit by road, rail etc.'
To satisfy this condition, the loss should have occurred while the car was in transit.
12. The burden of proving that such loss has occurred is on the plaintiff. All that has been shown by him is that he booked the car at Quetta and it did not reach him. However, it appears from the documents Exs. 1D1 and 1D2 that the car is lying at Karachi for want of an export permit. It is further clear from Ex. 1D2 that the car could be exported if a permit was obtained or it could be delivered at Karachi.
It is true that this letter was addressed to the Superintendent Claims, Bombay, and not to the plaintiff; but the fact remains that the car is in existence and can be exported on a proper permit or taken delivery of at Karachi.
13. The plaintiff was informed of the situation as early as 19-4-48 vide Ex. P. 10 but he took no steps to do the needful. He has an agent Julious Brothers who booked the car at Quetta of him but he made no enquiries from them and did not ask them to take, any action as is apparent from his own statement as PW1. It is true that there were no permit Regulations when the consignment was booked and they were imposed later, and we do not also know whether they apply to consignments which were in transit when they came in force.
All these questions, however, do not affect the case, as there would be no loss, if on account of some regulations imposed by Pakistan, or even otherwise, the car is not allowed to come out of its territory. This is because the word 'loss' in the policy means evidently the loss of the articles in bulk, either by disappearance or destruction, and does not apply to a case, like the present, where the article is known to be in existence and is also available, even if on conditions which are within the power of the insured but of which he chooses not to take advantage. The suit, therefore, also fails against the Insurance Company.
14. In view of the above, we need not discuss the other pleas raised by the Insurance Company. As the trial court has correctly decided the suit, the appeal is dismissed with costs.