Calcutta High Court (Appellete Side)
Oriental Insurance Company Limited vs Mitra & Ghosh Publishers (Pvt.) Ltd on 18 May, 2009
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Tapan Kumar Dutt
F.A. No. 24 of 2006
Oriental Insurance Company Limited.
Versus
Mitra & Ghosh Publishers (Pvt.) Ltd.
For the Insurance Company: Mr. Abhijit Ganguly,
Ms. Tanushree Dasgupta.
For the Respondent: Mr. Moloy Basu,
Ms. Runu Chowdhury.
Heard on: 28.04.2009.
Judgment on: 18th May, 2009.
Bhaskar Bhattacharya, J.:
This appeal is at the instance of the defendant, the Insurance Company, and is directed against the judgment and decree dated 31st May, 2003, passed by the learned Judge, Seventh Bench, City Civil Court at Calcutta, in Money Suit No. 642 of 1997, thereby passing a decree for Rs.5,57,500/- in favour of the plaintiff by directing the defendant to pay the said amount within thirty days from the date of decree.
Being dissatisfied, the defendant has come up with the present first appeal.
The respondent before us filed a suit being Money Suit No.642 of 1997 before the Seventh Bench, City Civil Court at Calcutta, thereby praying for recovery of sum of Rs.6,12,300/- and further sum of Rs.71,000/- as interest.
The case made out by the plaintiff/respondent may be summed up thus:
a) The plaintiff is a company registered under the Companies Act and carries on business of publication of printed books from its registered office at 10, Shyama Charan De Street.
b) Every year a Book Fair is held in Calcutta in the fair ground at the crossing of Jawaharlal Nehru Road and Park Street sometime in the month of January or February called the "Calcutta Book Fair" where the printed books of different languages from various countries of the world are exhibited and sold. The fair is conducted by the Publishers and Booksellers Guild.
c) Under the supervision of the Guild, large numbers of well-decorated wooden and wood-framed stalls are set up on the fair ground by professional decorators and contractors in order to allow the Booksellers and Publishers to exhibit and sell books from those stalls.
d) The plaintiff was allotted a stall being Stall No.503 covering an approximate area of 75 square meters by the Guild in the Book Fair in order to exhibit and sell its books and in the year 1997, the Book Fair was opened on 29th January, 1997.
e) The plaintiff took out a Fire Insurance Policy "C" from the defendant being Policy No.311302/1027/97 dated 18th January, 1997 and thereunder, the stock printed books to be exhibited and sold through the said stall of the plaintiff at Calcutta Book Fair was insured for a sum of Rs.6,00,000/- and further insurance was taken for Rs.60,000/- on account of cash handled in the fair.
f) The requisite premium for the said policy of insurance was duly paid by the plaintiff on 27th January, 1997. Under the terms of the said policy, the defendant was required to indemnify the plaintiff against destruction or damages to the insured property or any part thereof caused, inter alia, by fire. The period of risk covered by the policy was between 28th January, 1997 and 10th February, 1997.
g) At about 3 p.m. on 3rd February, 1997 a devastating fire broke out at the said fair as a result of which large section of the stalls including their stock of books were completely destroyed.
h) The stall of the plaintiff including its stock of books were also destroyed and/or damaged by the said fire or by water used in effort to extinguish the said fire. At the time the said fire broke out at the fair, there were 11,224 copies of books in the plaintiff's stall worth Rs.6,61,000/- and a sum of Rs.
12,360/- was in cash.
i) On the very same day, the plaintiff in writing informed the defendant about the said destruction and damage and also claimed payment by way of re- imbursement of the value of the insured with the defendant.
j) Subsequently, by a forwarding letter dated 10th February, 1997 the plaintiff submitted before the defendant the claim-form duly filled up by giving in details the particulars of claim.
k) After receiving the claim lodged by the plaintiff, the defendant refused to entertain the same on the purported ground that according to the report of the surveyor engaged by the defendant, there was no loss occurred to the plaintiff due to fire and as such, it was outside the scope of Fire Policy.
l) By a reply dated 21st April, 1997, the plaintiff requested the defendant to reconsider its decision as the report of the surveyor on the basis of which the defendant purported to reject the claim of the plaintiff was not correct. The plaintiff further stated that as the Managing Director of the plaintiff, who was also the President of the Guild, did not oblige the said surveyor with a certificate in favour of a sub-contractor known to him, the said surveyor out of vengeance gave a false report in order to deprive of the plaintiff of its legitimate claim.
m) Subsequently, the plaintiff sent two further reminders dated 18th August, 1997 and 3rd August, 1997 calling upon the defendant to settle the claim but the defendant refused to pay the amount. Hence the suit. The suit was contested by the defendant by filing written statement thereby denying material allegations made in the plaint and the defence of the defendant may be summed up thus:
a) The defendant categorically denied and disputed that the plaintiff had taken out any Fire Policy being Policy No.311300/1027/97 dated 18th January, 1997 as alleged. It was further denied that under the alleged policy the plaintiff had insured for a sum of Rs.6,00,000/- and further amount on account of cash.
b) It was denied that the stock of the plaintiff, if any, including its stock of books, were destroyed or damaged on 3rd February, 1997 by any fire as alleged or at all. It was disputed that when the fire broke out there were 11,224 copies of books or any other number of books in the plaintiff's stall worth Rs. 6,61,000/-. It was further denied that a sum of Rs.12,360/- or any amount of money was held in cash by the plaintiff at the time when the alleged fire had broken out.
c) Monish Chandra Chakraborty, one of the Directors of the plaintiff, made a statement on February 18, 1997 that the Director of the plaintiff had collected a sum of Rs.15,645/- as the amount of cash of sale on February 3, 1997. Such statement is contrary to the case as alleged by the plaintiff.
It was further alleged that the stock of the transferred books and sale- statement of the plaintiff did not substantiate the claim of the plaintiff.
d) The defendant sent a surveyor for the purpose of giving report of the alleged loss suffered by the plaintiff and it was pointed out in the said report that except for partial burn to the roof tarpaulin, there was no mark of burn anywhere in the Stall No.503 occupied by the plaintiff. From the said report given by the surveyor, the defendant was of the opinion that the cause of loss was looting/plundering of the books by some miscreants while attention of majority of the authorities was on extinguishment of fire in the Book Fair.
At the time of hearing, one Sabitendra Nath Roy gave evidence in support of the claim of the plaintiff while three witnesses were examined on behalf of the defendant for the purpose of controverting the evidence adduced by the plaintiff.
As pointed out earlier, the learned Trial Judge by the judgment and decree impugned herein decreed the suit in part thereby holding that the plaintiff was entitled to get compensation to the extent of Rs.5,97,500/- with the finding that fire was the approximate cause of the loss suffered by the plaintiff and as such, even if it is not proved that all those books were actually burnt, the plaintiff was entitled to get the compensation for the loss suffered by them.
Being dissatisfied, the defendant has come up with the present appeal. After hearing the learned counsel for the parties and after going through the materials on record, we find that the fact that a devastating fire had taken place at the fair on the date mentioned in the plaint has been proved beyond doubt. It is also established that the plaintiff took a fire insurance policy of the defendant and at the relevant point of time, the said policy was in force. According to the appellant, the stall No.503 allotted to the plaintiff was not burnt and the books of the plaintiff were either looted or destroyed by the water showered by the fire brigade people and thus, the claim put forward by the plaintiff does not come within the conditions of the policy taken by the plaintiff.
To appreciate the aforesaid defence, we propose to consider some of the materials on record. DW-3, the surveyor employed by the insurance company, himself stated in his evidence that he visited the Stall No.503 on the day following the date of incident. According to him, he found the stall in empty condition with some racks and collapsible gate in broken condition and the tarpaulin on the top was in burnt condition. In cross-examination, he admitted that the tarpaulin on the top of the stall had been burnt at places and that he stated in the report that he found the stall No. 503 in wet and damp condition but not burnt. He further stated that the fire brigade showered the water to resist the spreading of fire. He further admitted that during his inspection, he came to know that the fire brigade directed that the books should be thrown away out of the stall and that the same was done. He further stated that in his opinion the overhead tarpaulin caught fire and the fire brigade came and poured water to resist the fire and the books of the stall No.503 were thrown away out of the stall. He further admitted that he had no paper to show that the loss might have been caused by looting or plundering. He further opined that if the books were inside the stall and became wet for spreading water for resisting the fire, in that event, the case would come within the terms of the policy.
It is apparent from the aforesaid evidence of the witness of the defendant and other evidence on record that after the fire had taken place, the fire brigade took charge of the entire fair-area and at their instance, the books were all thrown away from the stalls and water was sprinkled all over the stalls to prevent further spreading of the fire and in the process, the books were lost. No evidence has been adduced by the appellant to show that the plaintiff had removed their books to a safe place in good condition and made a fictitious claim.
Therefore, the question that falls for determination in this appeal is whether within the terms of the policy taken by the plaintiff, it is entitled to get compensation when actual burning of the books has not been proved but it has been established that due to the bona fide action of the fire brigade in extinguishing the fire caught at the roof of the stall in question, the books were thrown away and lost in the process.
It appears from Ext-3, the policy taken by the plaintiff, that the Insurance Company agreed (subject to the conditions and exclusions contained in the policy or endorsed or otherwise expressed) that if after the payment of the premium, the property insured described in the schedule is destroyed or damaged by fire, the company would pay to the insured the value of the property at the time of happening of its destruction or the amount of such damages or at its option reinstate or replace such property or any part thereof.
Mr. Ganguly, the learned counsel appearing on behalf of the appellant laboriously contended before us that the books have not been proved to be destroyed or damaged by fire as required under the terms of the policy and further, the case comes under the exclusion clause No.2 which is quoted below:
"loss by theft during or after the occurrence of any insured peril except as provided for in Riot, Strike, Malicious and Terrorist Damage clause"
Therefore, the first question that we are required to answer is whether in order to claim damages in the case before us it is necessary to prove destruction or damage of the insured articles actually by fire or if the fire be the proximate cause of damage or destruction, even then the insured would succeed.
Para 603 of Halsbury's Laws of England, 4th Edition, 2003, Volume 25 gives answer to the said question in the following terms:
"603. Fire as proximate cause of loss. To constitute a loss within the meaning of a fire policy, it is not necessary to show that the subject matter has itself been burned; it is sufficient that the loss has been proximately caused by fire..........
For example, losses may be sustained through attempts to check the progress of the fire, property may be destroyed by water used to extinguish the flames or building may be blown up by the fire brigade for the purpose of preventing the fire from spreading. Other losses may be sustained in attempts to save property from fire; the property may be destroyed or damaged in course of removal. In all these cases, though the property is not burned, its loss is nevertheless proximately caused by fire. Losses by theft during a fire must also be regarded as proximately caused by fire."
We respectfully follow the said observations and hold that in order to claim compensation in this case, all that is required to be proved is that the fire is the proximate cause of the damages. There is no dispute that if the fire had not taken place, the plaintiff would not suffer any damage.
The next question is whether the case is covered by exclusion No.2 as quoted above.
In this case, immediately after the fire had broken out, the fire brigade authority took charge of the stall and the surrounding area and in order to prevent spreading out of fire, the said authority had thrown away those books and sprinkled water thereon as would appear even from the evidence of DW-3. There is no material produced before the Court to substantiate the allegation of theft nor is there any oral evidence given by any witness of the appellant proving the allegation of theft. Even the Insurance Company has not placed any document to show whether any allegation of theft was made by any person in this behalf. Thus, the Insurance Company failed to produce any evidence in support of its defence that it was a case of theft during or after the occurrence. By making a vague allegation of theft the Insurance Company cannot evade its responsibility of compensating the insured.
We have already pointed out that there was valid policy at the time of occurrence and therefore, the learned Trial Judge rightly decreed the suit.
Both the points taken by Mr. Ganguly having failed, we dismiss this appeal.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bharttacharya, J.) I agree (Tapan Kumar Dutt, J.)