Patna High Court
Barbigha Cold Storage Co. (P) Ltd. vs National Insurance Co. Ltd. And Anr. on 1 July, 1980
Equivalent citations: AIR1981PAT21, 1981(29)BLJR3, AIR 1981 PATNA 21, 1981 BBCJ 58, (1981) BLJ 125, (1981) 51 COMCAS 118, 1981 BLJR 3, (1980) PAT LJR 457
JUDGMENT Choudhary Sia Saran Sinha, J.
1. The point involved in this civil revision, referred to a Division Bench by a learned single Judge of this Court, is a short and simple one.
2. The petitioner, a Cold Storage Company Private Ltd,, existing in the district of Monghyr, entered into a contract of insurance with the National Insurance Co. Ltd., (Opposite Party No. 1). Opposite party No. 1 has its head office at Calcutta but it has different units, one of them being at Patna, opposite party No. 2. Undisputedly, they both undertake the business of insurance in India and are not foreign Insurance Company.
3. An insurance agreement was entered between the parties sometime in the year 1974, Undisputedly, both the Civil Courts at Calcutta as also at Patna were Courts of competent jurisdiction for the purpose of settlement of disputes arising out of the insurance contract. A dispute did arise between the parties and the petitioner filed an application in forma pauperis against the opposite party in the Court of the Subordinate Judge at Patna seeking a relief for Rs. 9 lacs against the opposite party. The opposite party challenged the jurisdiction of the Subordinate Judge at Patna to entertain this application on the ground that as per agreement between the parties, as embodied in the insurance contract, forum had been restricted only to the Civil Court at Calcutta, This objection raised by the opposite party weighed with the Subordinate Judge, Patna, and he dismissed the petition filed by the petitioner returning the miscellaneous petition to it for presentation before a competent Court of jurisdiction, It is this order of the Subordinate Judge, which is under challenge before this Court in this civil revision.
4. It is undisputed that the Insurance Act, 1938, (hereinafter referred to as 'the Act') will apply to the parties in the instant case, Section 46 of the Act in clear and unambiguous terms provide as follows :--
"The holder of a policy of insurance issued by an insurer in respect of insurance business transacted in India after the commencement of this Act shall have the right, notwithstanding anything to the contrary contained in the policy or in any agreement relating thereto, to receive payment in India of any sum secured thereby and to sue for any relief in respect of the policy in any Court of competent Jurisdiction in India; and it the suit is brought in India any question of law arising in connection with any such policy shall be determined according to the law in force in India".
In view of this statutory provision in Section 46 of the Act, any agreement between the parties restricting the forum only to the Calcutta Court cannot but be regarded as bad in law. Unfortunately, attention of the Court below does not appear to have been drawn to the provisions of Section 46 of the Act.
5. Mr. K.D. Chatterjee, learned counsel for the opposite party, however, contended that Section 46 was intended to apply only to a foreign Insurance Company and not to an Insurance Company having its origin and business in India. To support his contention Mr. Chatterjee laid emphasis on the terms "in India" occurring at more than one places in Section 46 of the Act. It is difficult to accept this contention of Mr. Chatterjee. Section 2 (9) of the Act defines 'insurer'. It consists of two parts: While one part includes an Insurance Company of Indian origin, the other part is wide enough to embrace even a foreign Insurance Company functioning in the manner laid down therein. Section 46 of the Act refers to the term 'insurer' as denned in Section 2 (9) of the Act and this being the position and the purpose for which Section 46 of the Act was enacted, the Parliament might have thought it necessary to emphasise the words "in India" in Section 45 in the manner it has been done.
6. Referring to certain paragraphs of Maxwell on the Interpretation of Statutes, Mr. K.D, Chatterjee contended that the words used in Section 46 of the Act have to be construed in the context of the Subject and the Object of that Section, I have given my anxious consideration to the words used in Section 46 of the Act and considering the clear and unambiguous terms thereof I am of the view that Section 46 was intended to apply even to the Insurance Company as the opposite party. The Legislature, it should ordinarily be presumed, meant what they have actually expressed. The object of all interpretation is to discover the intention of Parliament but the intention of Parliament must be deduced from the language used, for 'it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament, cannot make the law'. Rules of interpretation, strictly speaking, cannot be of much assistance where the language used is clear and unambiguous capable of only one meaning so as to indicate the clear intention of the maker of the law. It is true that where the language used is susceptible of two meanings one is entitled to look to the subject as also the object of the legislature but, as stated above, the position in the instant case is different. The Insurance Act was enacted to consolidate and amend law relating to the business of insurance. Obviously, the purpose of this legislation, inter alia, was to benefit both the insurer and the insured and in appropriate circumstances to assist the insured in seeking relief for the amounts he is entitled. There is no merit in the contention of Mr. Chatterjee.
7. Referring to the decision of the Supreme Court in Hakam Singh v. Gammon (India) Ltd. (AIR 1971 SC 740) Sri Chatterjee also submitted that if several Courts had jurisdiction, by agreement between the parties the Jurisdiction can be limited to one of such Courts. His contention was that this being the general law, it cannot be the intention behind Section 4g to undo the above general law, In support of his contention Mr. Chatterjee referred to certain decisions but as the facts of all these cases are different from the facts of the instant case, I consider it unnecessary to discuss the details of these cases
8. Mr. Verma, learned counsel for the petitioner, contended that while the decision of the Supreme Court in AIR 1971 SC 740 (supra) laid down the general law, Section 46 laid down the special provision to regulate the relationship between the insured and the insurer under the Act and this being the position, even if Section 46, meant for applicability to a particular kind of contract, transgressed on the general law, its provisions shall stand good and valid if the maker of the law so intended, The terms "notwithstanding anything to the contrary contained in the policy or in any agreement relating thereto" occurring in Section 46 of the Act lead to irresistible conclusion that the intention was that the benevolent provision of S, 46 of the Act was to prevail over the terms of the contract, terms of the policy and "the agreement, if any, to the contrary. This being the position, the second contention raised by Mr. Chatterjee too has no substance and it must fail.
9. Mr. Verma, learned counsel for the petitioner, relied on a decision in Isaqmahmad Habibiji v. The United India Fire and General Insurance Co. (Ltd,). Hyderabad, (AIR 1978 Guj 46) which supports the view that I have taken above.
10. The result is that the impugned Order No. 34 dated 15-11-1979 of the learned Subordinate Judge, Patna, is set aside and it is directed that he shall proceed to dispose of the miscellaneous petition filed by the petitioner in accordance with law, assuming Jurisdiction in the Court presided over by him to entertain the same. The civil revision is allowed accordingly but in the facts and circumstances of the case there shall be no order as to costs.
B.P. Jha, J.
11. I agree with my learned Brother. By virtue of Section 46 of the Insurance Act, 1938, the holder of a policy of x marine insurance, shall have two rights, namely, (i) to receive payment in India and (ii) to sue for any relief in respect of the policy before any Court of competent Jurisdiction in India, These two rights have been conferred on the holder of the policy of an insurance issued by an Insurer in respect of the insurance business transacted in India. Section 46 is a non obstante clause. According to non obstante clause the holder of a policy insurance is entitled to receive payment in India and to sue for relict in respect of the policy in any Court of competent Jurisdiction in India in spite of any agreement or any statement contained in the policy Ho the contrary. The holder of a policy of insurance is entitled to avail these two rights. In the present case, the petitioner could have brought a suit before the Calcutta Civil Courts on the basis of the conditions laid down in the policy. It is on the basis of the agreement made in the policy that the trial Judge held that the Calcutta Civil Court has jurisdiction in this matter, Unfortunately, Section 46 of the Insurance Act was not placed before the trial Judge. It is for this reason that this mistake has been committed by the trial Court.
12. On a perusal of Section 46 of the 'Act' it is clear that even if there is any agreement for filing a suit at a certain 'place, a policy holder is entitled to file a suit before any Court of India having competent jurisdiction. It is conceded by Mr. K.D. Chatterjee, learned counsel for the opposite party, that both the Calcutta and Patna Civil Courts have Jurisdiction to entertain such suit. In this view of the matter, the Patna Civil Court is entitled to try the suit in question. This section will apply to any insurer who transacts its business. In my opinion, it does not only apply to foreign insurer companies.
13. Certain decisions have been cited by learned counsel for the respondents which have no nexus with the facts and law of this case. We have no dispute with the principles laid down in those cases. These decisions were cited, namely (1) Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate (AIR 1958 SC 353), (2) Leach v. Rex (1912 AC 305), (3) Sheikh Gulfan v. Sanat Kumar Ganguli (AIR 1965 SC 1839) and (4) Beswick v. Beswick (1968 AC 58). In the first case their Lordships were discussing the meaning of words "any person" occurring in Section 2 (k) of the Industrial Disputes Act, 1947. In the second case the Hon'ble Members of the House of Lords were discussing as to whether a wife can be compelled to give evidence against her husband or not. In the third case, their Lordships of the Supreme Court held that ordinary meaning should be given to the words used in the Statute. They further held that the words should be interpreted in the context of the subject matter of the Statute. In the fourth case it was held that the widow was not entitled to enforce her obligation in her personal capacity but is her capacity as an administratrix.
14. In this circumstance none of then decisions apply.
15. In the result, the petition is allowed bat there will be no order as to costs.