1. This is an appeal filed by Sohan Slngh, the proprietor of a firm formerly of Rawalpindi, against the order of the Tribunal set up under Act 70 of 1951 dismissing the petitioner-appellant's claim filed under Section 18 of the Act against the Liverpool and London and Globe Insurance Company Limited of Calcutta for recovery of Rs. 50,716-3-3.
2. The facts of the case are that the petitioner-appellant had insured his goods with the respondent Company for Rs. 60,000/- against loss or damage including loss or damage due to not or civil commotion by a policy which came into force on 17-6-1946 and was renewed for a further period of one year on 17-8-1947, the alleged damage, amounting to the sum claimed, being alleged to have occurred in October 1947.
3. The preliminary objection raised by the Company was that the petitioner could not enforce his claim under Section 18 of Act 70 because the policy was not one which was entered into before and was in force on 15-8-1947. This contention was upheld by the Tribunal which dismissed the application.
4. In order to understand the nature of the point involved it is necessary to set out relevant portion of Section 18 (1) which reads:
'Where any property in West Pakistan belonging to a displaced person was insured with any insurance company before the 15th day of August, 1947, against any risk arising out of fire or theft or riot and civil commotion and there has been a loss in respect of such property arising out of any such risk at a time when the contract of insurance was in force, such company shall not be entitled to refuse payment of the sum due underany claim in relation thereto on the ground that .....'
Sub-section (2) provides how claims covered by Sub-section (1) are to be dealt with by the Tribunal.
5. The highly technical point was raised on behalf of the Company that although the property in respect of which compensation for loss and damage is being claimed was insured before 15-8-1947 the contract expired on the 17th August and the renewal which took place for a further period of one year from that date was a fresh contract and not a continuation of the original contract.
6. In upholding the Company's objection on this point the Lower Court followed a passage on page 354 of the Law of Insurance by Preston and Collnvaux, the English case -- 'Stockell v. Hey-wood', (1897) 1 Ch. 459 (A) and the decision in -- 'Ram Singh v. Century Insurance Co. Ltd.', 1933 Cal 170 (AIR V 20) (B).
7. Actually the passage from Preston's is simply taken from the case -- 'Stockell v. Hey-wood (A)', which relates to personal accident in-surance. The question for consideration in that case was whether a sum of 500/- payable on an accident insurance policy should be paid to the executors of the will of the deceased who died an accidental death, or to certain trustees to whom he had assigned his assets for the benefit of his creditors about two years before he met his death.
It was held by Kekewich J. that an accident policy of this kind is different from a life insurance policy and that each annual renewal amounts to a fresh contract. In these circumstances the amount was not payable to the trustees as the policy had been renewed since the assignment was made.
8. The facts in the Calcutta case are that a term In a fire insurance policy read:
'The Company hereby agree with the Insured that if, after payment of the premium, the property above described shall be destroyed or damaged by fire, or lightning at any time bet-ween 3-11-1927 and 4 O'clock in the afternoon of 3-11-1928, 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 the policy, the company will pay or make good all such loss or damage'.
The policy was not renewed on the date of its expiry, but the premium for its renewal was sent by the insured from Abbotabad, where the property was situated, to the company at Calcutta on the 18th November and was received and accepted on the 26th November. The property was destroyed by fire on the 20th November and the claim was sent on the 22nd November and received on the 28th November, when the company intimated that it cancelled the renewal.
In a suit by the Insured it was held by Ran-kin C. J. and C. C. Ghose J. that the renewal of a policy is a fresh contract dating back to the date of the expiry of the original contract and the acceptance of the premium on the 26th being under a mistake, as the property was non-existent on that date, the transaction of renewal was void and the company was not liable.
9. The present policy contains rather a similar clause to that set out above, but the other somewhat sinister facts do not exist in the present case, in which It appears that the policy was renewed with the Rawalpindi representative of the Company on the due date and a receipt was issued from Calcutta on 4-9-1947, the same being described as received 'for the continuance of the policy' from 17-8-1947 to 17-8-1948.
10. It will be seen that neither in the English case nor in the Calcutta case was the Court considering a statutory provision like Section 18 (1) of Act 70. In one case the Court was deciding who should receive the amount admittedly payable and actually paid into Court by the company, and in the other case the company was seeking to evade liability on the ground that when the policy was renewed the property had already been destroyed.
No question similar to that decided in either of these cases arises in the present proceedings, in which the Company is not at this stage seeking to evade liability under this policy but merely seeking to deny the claimant the benefits of the provisions of Section 18 of the Act.
11. Having regard to the general purpose of the Act, which is almost entirely Intended to benefit displaced persons and relieve them from the hardships consequent on their displacement, I do not think there can be any doubt that the Act was intended to benefit all displaced persons who had property in West Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15-8-1947 and in force at the time when the loss or damage waa sustained, whether this occurred before or after the 15th of August.
It seems to me to be inequltous that a particular person should be deprived of the benefits of Section 18 simply because his Insurance policy fell due for renewal a day or two after the 15th August and was renewed before the loss or damage occurred. Thus although technically the renewal of a policy of this kind may constitute a fresh contract for certain purposes, I am not prepared to hold that this Is so for the purpose of deciding whether a case is cognizable by a Tribunal and whether a displaced person is entitled to the benefits contained in Section 18(1) of this Act.
I must add that I am somewhat surprised that any insurance company should have sought to raise a technical plea of this kind rather than submit to the investigation of the claim of the insured on its merits.
12. Another technical plea has also been raised on behalf of the Company regarding the appeal on which the usual court-fee of Rs. 4/-has been paid. It is contended that the order of the Tribunal dismissing the application amounts to a decree and that an 'ad valorem' court-fee was therefore payable in the appeal on the amount in dispute which exceeds Rs. 50,000/-. It is contended that the memorandum of appeal falls within the scope of Art. 1 of Schedule I to the Court-fees Act which fixes the scale of court-fees payable on the following:
'Plaint, written statement, pleading, a set-off or counter-claim or memorandum of appeal (not otherwise provided for in this Act) or of cross-objection presented to any Civil or Revenue Court except those mentioned in Section 3'. It is conceded that no specific provision has yet been made in the Schedule to the Court-fees Act for appeals against the orders of Tribunals set up under Act 70.
13. This view certainly derives some support from the decision of Harish Chandra J. in -- 'Sita Ram v. Mool Chand', 1954 All 672 (AIR V 41) (C), and the decision of Wanchoo C. J. and Modi J. in -- 'Kishandas v. Parasram', 1955 Raj 81 (AIR V 42) (D).
In the latter case an appeal had been filed by a displaced person against the dismissal by the Tribunal of his application under Section 5 of the Act for the adjustment of his debts, and he had paid court-fee in accordance with Art. 11 of Sch. II to the Court-fees Act, which deals with appeals when the appeal is not from a decree or an order having the force of a decree. It was held that since Section 9 of the Act contemplates the passing of a decree, the appeal was an appeal against a decree and as such covered by Art. 1 of Sch. I.
14. In the Allahabad case the appeal was against the dismissal of a displaced creditor's application under Section 13 of the Act. The application had been dismissed because three out of the four respondents who had not appeared and against whom proceedings were being taken 'ex parte' were held by the Tribunal to be residing in a place to which the Act did not apply. The order was held to amount to a decree and therefore court-fee was held to be payable on the memorandum of appeal in accordance with Article 1, Schedule I. It was pointed out that the word 'decree' is mentioned in Sub-sections (2) and (3) of Section 14 which deal with the procedure in a petition under Section 13.
15. On the other hand in -- 'Krishan Gopal v. Sant Ram', 56 Pun LR (SN) 9 (E) Khosla J. held that an order dismissing a displaced creditor's application under Section 10 of the Act, which deals with claims by displaced creditors against displaced debtors; is merely a final order with respect to which no decree-sheet needs to be drawn up. He held that the question of drawing up a decree-sheet only arises where a debt is found to be due and a decree for its recovery is passed.
Admittedly the point did not arise before him in connection with court-fee payable on the appeal, as the objection taken was that in the case of a dismissed application a copy of the decree-sheet of the Tribunal had also to be filed with the appeal along with a copy of the order.
16. My own view is that it was certainly never anybody's intention that displaced persons, whether debtors or creditors should have to pay 'ad valorem' court-fees on appeals against orders dismissing their applications, & I am inclined to share the view of Khosla J. that an order dismissing an application, whether under Section 5 or Section 10 or 13, is merely a final order which does not necessitate the drawing up of any decree-sheet or amount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all.
I am therefore of the opinion that the present memorandum of appeal is sufficiently stamp- ed and in view of my finding on the main question in the appeal I accept it and set aside theorder of the Tribunal dismissing the applicationunder Section 18 with costs. Counsel's fee Rs-. 50. Theparties have been directed to appear before theTribunal on 13-2-1956.