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Commercial Union Assurance Co. Vs. Binjraj Johurmull and ors. - Court Judgment

LegalCrystal Citation
Subject Insurance
Decided On
Reported inAIR1931Cal285
AppellantCommercial Union Assurance Co.
RespondentBinjraj Johurmull and ors.
- .....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 13th 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 aregistered 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.....

Rankin, C.J.

1. In this case, the plaintiffs sue the defendant company upon a policy of insurance taken out on 3rd 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 13th 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 12th 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.

4. The next defence that was mooted was that there is a regulation of the post office to the effect that gold is not to be sent at all to a greater extent than Rs. 700 worth in one package. That was not pleaded, though the matter appears to have given the learned Judge of the first instance a certain amount of trouble. Not having been pleaded, I see no reason why such a plea as that should be entertained.

5. It further turns out that the Insurance-Company knew all about the regulation and knew all about the business of the plaintiff company and that the intention was really that the plaintiffs should insure with the defendants instead of having to take the necessary steps to insure with the post office. It being pointed out to the defendants' counsel that this defence on the fact is not a very laudable one in the mouth of an insurance company, that defence has very properly been abandoned.

6. There was a third defence that in sanding this gold the plaintiffs had committed a breach of another post office regulation to the effect that such a consignment should not be sent otherwise than as an insured registered package. The learned Judge has entered into some discussion upon that regulation too. Mr. Ameer Ali for the defendants-appellants had informed us that, on the defendants' witnesses admitting that they knew all about the post office regulations and about the course of the plaintiff's business, ha in the trial Court declined to press further the defence which depended upon these goods being sent otherwise than by an insured registered post.

7. These defences having been put entirely on one side, the questions in this case resolve themselves really into two. The first question is whether this parcel at the time it was delivered to the post office is proved to have contained gold at all or whether it is not consistent with the evidence that the stone which was discovered in the parcel upon its return to Calcutta had been originally put into the parcel prior to its despatch. There are certainly some circumstances in this case that would well warrant the insurance Company approaching it with great suspicion: the learned Judge how-over has investigated into these matters of suspicion. The plaintiffs called a partner named Gulraj who was examined and cross-examined to a very considerable length. The learned Judge came to the conclusion that the plaintiff firm was a prosperous firm, that it would never pay them to commence a fraudulent scheme for extracting Rs. 1,200 from the Insurance Company and that Gulraj had given evidence which was not altogether satisfactory but in such a way as to load him to think that the claim in the suit was a perfectly honest claim. He found as a fact that he could believe Gulraj in his story as to how he had packed these goods himself and as to how he had posted them and he came to the conclusion that the gold was in the parcel at the time it was tendered to the post office in. Calcutta. Mr. Ameer Ali in his criticism of that decision has pointed out that, while he does not say that Gulraj would have lent himself to any such fraudulent scheme as packing stone into the parcel instead of gold, nevertheless some servants of the plaintiff firm might well have done such a trick and that Gulraj and his partner might nevertheless when they came to Court, be setting up an entirely false story when Gulraj said that he had packed the box himself and taken it himself to the post office. In my judgment, whatever circumstances of suspicion there may be, when certain aspects of this case are looked at very closely, the learned Judge's finding in respect of Gulraj who appeared to him to be making an honest claim makes it entirely wrong for this Court to disturb his conclusion. The learned Judge says:

I am quite satisfied from the evidence which he gave and from the demeanour of Gulraj in the box that, as far as he is concerned, this is a perfectly honest claim and that there is no justification for any kind of aspersions upon the honesty of the principals of the firm.

8. That finding being given by the learned Judge who saw the witness, I do not think it would be right enough on our part now to say that he was committing perjury in Court, although he had been honest enough at the time and had nothing to do with this transaction. It appears to me to be plain that we would be doing an injustice to the witness in whose favour the learned Judge has made the observation which I have quoted. We must therefore take it that at the time this parcel was despatched from Calcutta it weighed some 53 tolas and if it had been despatched on the 14th from Calcutta, it ought to have reached Sambalpur the next day or soon after that and, within a very short time thereafter, it should have been tendered for acceptance to the addressee in Tarbha. As the evidence stands, we have no direct evidence at all as to what happened at Tarbha except this, that we know that the delivery was refused. There is a telegram dated 22nd November from the addressee in Tarbha which says that it was refused because its weight was too small; nothing is said about the parcel being damaged. But that telegram is not in law evidence of the truth of the statement which it contains. However it is quite certain that the delivery was refused by the addressee and it is quite certain that in accordance with the post office regulation, the parcel was returned to Calcutta for delivery to the consignor. When the parcel got back to Calcutta, the post office sent a formal letter to the plaintiff's saying that the parcel had arrived in a damaged condition and that they must go and take delivery of it and give a receipt and so on.

9. The parcel was examined by Mr. Simpson in the presence of Gulraj and another as the plaintiffs say and there is not much agreement as to what the condition of the parcel was. It appears that the seals were bruised to some extent, but Mr. Simpson does not seem to be at all satisfied that the parcel had ever been opened until it was opened in the Calcutta office. The position therefore is this: that, if we find as we must, that this gold to the weight of some 53 tolas was despatched from Calcutta, and if it is quite clear that at the time the package came back to Calcutta there was only some 19 tolas of gold there, are we able to say that the loss occurred between Calcutta and Sambalpur on its outward journey and, if we are not able to say that, can the plaintiff's recover upon the policy? The learned Judge has construed the policy to mean that, even if the loss occurred on the return journey from Sambalpur to Calcutta, the policy would cover the risk and he does that by acceding to Mr. Chatterjee's argument that the simple English language in the slip in the insurance policy is to have read into it the Post Office Act and the various regulations made by the Governor General in Council under that Act. I protest altogether against that idea and, were it necessary to pass an opinion upon the question, I would have the groatest hesitation in holding that this was anything more than a policy of Insurance on a voyage from Calcutta to Sambalpur and that, if the addressee refused delivery and the event occurred that [the goods to be delivered were never going to be delivered to the addressee, that does not mean that the policy is to be extended until the return journey has been made to Calcutta. However that [question, in my opinion, does not arise. 'I am satisfied on the evidence that this parcel, which, as we must take it, contained 53 tolas of gold when it was received by the post office in Calcutta, did not contain that gold at the time it was tendered for delivery to the addressee in Tarbha. The fact that the goods were refused coupled with the fact that when the parcel was brought back to Calcutta it was found in the condition in which it was, and that there was nothing but a piece of stone weighing some 19 tolas in it is enough in my opinion, to entitle us to hold that the loss was not after the refusal but before the refusal, and in my opinion, that being so, the defendants have no real defence in this suit.

10. In these circumstances the appeal must be dismissed with costs.

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