1. The plaintiff, Kasim All Bulbul, carries on business in wood carving and paper machine under the name and style of K.A Bulbul in Lambert Lane, Residency Road, Srinagar. On 8th June 60 he got his stock-in-trade consisting of wood carving, paper machine, business furniture and two pieces of carpet contained in the shop insured with the defendant company for one year from 8th June 60 to 8th June 61 for a sum of Rs. 30,000. This sum of Rs. 30,000 was made up of the following figures:
Stock-in-trade
:
Rs. 29,300.
Business furniture
:
Rs. 500.
Two carpets
:
Rs. 180
2. A policy No. 155860356 was issued in his favour by the defendant company. The plaintiff's shop caught fire on the night between 4/5th February 1961 while he was asleep in Zadaibal. Next morning he came on the scene and found that the shop had been taken possession by the local officials of the defendant company and the police. It was sealed. The plaintiff gave tentative information of this fire to the defendant company. The plaintiff's books were seized by the police. The police inquired into the matter and declared the fire accidental Later on a Surveyor was deputed by the defendant company who made a report. The loss that he sustained on this account was Rs. 27340.31 consisting of the following items:—
Value of paper machine goods
Rs. 18,819.7
Value of carving goods
Rs. 7,841.24
Furniture:
Rs. 500.00
Carpets:
Rs. 180.00
3. The shop remained in possession of the defendant company when on the night of 3rd Nov. 61 another fire broke out which destroyed the remaining articles in the shop. There were some un-insured goods of the value of Rs. 564.50 The total claim of the plaintiff thus comes to Rs. 27,904.81. According to the plaintiff, on the basis of the insurance effected on his goods, the defendant company was liable to make good the loss to him, but did not do so. As the keys of the shop remained with the defendant upto 3rd Nov. 61, the defendant was further liable for the loss of uninsured goods valuing Rs. 564.50 The plaintiff therefore claimed a decree for the above-mentioned amount, i.e Rs. 27904.81
4. In defence the defendant company has taken a number of pleas. They are that the defendant has not been properly sued; the plaint is not properly verified and the suit is time-barred. All the benefits under the policy and the suit stand forfeited because (1) the claim is fraudulent, (2) A false declaration has been made in support of the claim: (3) the loss or damage was occasioned by the wilful act and connivance of the plaintiff; (4) the plaintiff has not complied with the terms and conditions of the policy (5) the plaintiff is not entitled to any relief as the suit was not commenced within three months after the rejection of his claim by the defendant company, and (6) The plaintiff did not comply with condition 11 of the policy and did not submit any claim within the period of 15 days from the date of the alleged loss. Condition 11 is quoted in exten-so in the written statement. The plaintiff was notified by letter dated 25-2-61 that as the claim was not submitted in accordance with this condition, his claim could not be entertained.
5. On facts the defendant did not deny the insurance of the articles of the plaintiff with the defendant company as alleged by the plaintiff. But the defendant alleged that this contract was entered into by the defendant on the basis of false representation and suppression of material facts by the plaintiff which vitiated the whole contract. It was admitted that the plaintiff informed the defendant company at Srinagar on 5-2-61 that his shop had been gutted on the night between 4/5th February 61. On 5-2-61 the plaintiff was asked to submit his claim account books, pass books and submit his claim form. He was reminded by another letter dated 16-2-61. But the plaintiff did not do anything. It is admitted that the defendant company locked the shop but the plaintiff's lock also was there. On 25-2-61 the defendant rejected the claim of the plaintiff. The plaintiff did not submit his account Page: 41books, nor submit his claim in writing. The plaintiff replied the letter of the defendant of 25-2-61 that he could not ascertain the damages as the account books and other documents were lying with the police. By letter dated 28-2-61 the plaintiff was again referred to the letter of the defendant dated 25-2-61. On 27-6-61 the Chief Regional Manager of the defendant company New Delhi notified the plaintiff that he had forfeited all benefits under the policy and his claim stood rejected. The conclusion of the police that the fire was accidental was not correct. Mr. Sarin of Messrs V.N Sarin and Co., was appointed as the Surveyor. The survey report was also against the plaintiff. There was further correspondence between the parties. On 9-5-61 the plaintiff submitted a list of the goods destroyed by fire but that was beyond time. The plaintiff had been guilty of suppression of facts in the proposal form while replying questions 8(a) and (b) in the proposal form. He had formerly insured the same goods in the year 1957 with the Ruby General Insurance Co. Ltd. and the shop was gutted in that year and the plaintiff's claim which was for a huge amount was settled by that company at Rs. 14860/-. The plaintiff had not complied with conditions 11 and 13 of the policy. Therefore he was not entitled to any amount. The presence of the uninsured goods in the shop was also denied. Even if there were any such goods the defendant was not liable for the loss alleged to have been caused to the plaintiff by the fire of 5-11-61.
6. On these pleadings my learned predecessor-in-office framed the following Issues in the case:
1. Is the suit properly stamped? OPP
2. Is the plaint properly verified? OPP
3. What was the value of the goods lying in the shop of the plaintiff at the time of the fire on the night of 4/5th February 1961 and what was the value of the goods damaged or destroyed by the fire? OPP
4. Is the plaintiff's right to claim extinguished by lapse of time?
5. Is the plaintiff? suit not within time?
6. Has the plaintiff been guilty of suppression of material facts and false representation at the time of obtaining the policy from the defendant, and as such is the policy of insurance void and unenforcible and not binding on the defendant?
7. Has the plaintiff not filed claim within the time stipulated in the policy and as such he has forfeited all rights and claims under the policy?
8. Is the claim of the plaintiff fraudulent?
9. Was the fire occasioned by the connivance or wilful act of the plaintiff:
10. Has the plaintiff's good? of the value of Rs. 500/- been damaged or destroyed in the fire of November 1962 in the same premises and if so, is he entitled to et the sum of Rs. 500/- from the defendant?
11. Is the plaintiff not entitled to any relief as he was not filed the suit within 3 months of the rejection of his claim by the defendant as provided in the policy?
12. To what relief is the plaintiff entitled?
7. One additional issue was framed by order of this court dated 4-10-62 which is to the following effect:
13. Is the declaration made in support of the suit claim made by the plaintiff true and correct and if not has he forfeited all the benefits under the policy?
8. The parties led evidence and the case was argued at length by the learned counsel for the parties.
9. The plaintiff produced the following witnesses in support of his case: Shambhu Nath, Head Constable of the Kothibagh Thana, Abdul Rashid SHO of the said Thana in February 61, Ghulam Mohd, Ama Shah, Mohd Shaban Bhat, G.M Mir, Safdar Ali, son of the plaintiff. The plaintiff himself went into the witness box. Again in rebuttal the plaintiff examined two witnesses. Gobind Kaul and Gulla Khaa.
10. The defendant examined five witnesses: D.N Chopra, V.N Sarain, Jaipal Bahadur Heon, Abdul Ahad Sheikh and R.N Dubash. I need not reproduce in detail the evidence of these witnesses, but reference shall be made to the statements of particular witnesses while discussing particular issues.
11. Before me some of the issues were not at all pressed. For instance, issues 1 and 2 were not at all discussed before me. Therefore they will be deemed to have been waived. The third issue relates to the value of the goods lying in the shop of the plaintiff at the time of the fire on the night between 4/5th February, 61 and the value of the goods damaged or destroyed by fire. The plaintiff in support of this issue has produced the following witnesses:
12. Ama Shah states that the value of goods which were gutted by fire on the night between 4/5th February 1961 in the shop of the plaintiff at Lambert Lane was of the value of thirty, to thirty-two to thirty-five thousand rupees. This witness states that he has been carrying on the polishing of the wood carving articles of the plaintiff for a number of years. Mohd. Shaban, who is a broker, states that the goods that were gutted by fire on the relevant night were worth about Rs. 30,000/-. Similarly G.M Mir who supplied paper machine goods to the plaintiff states that the value of the goods destroyed by fire in the shop of the plaintiff was between Rs. 25 to 30 thousand rupees. The plaintiff's son also places the value of the gutted grounds between 25 to 30 thousand rupees. The plaintiff also in his own statement places the same valuation. The evidence of these Page: 42witnesses is based on their own estimate of the valuation of the goods. No witness has or could possibly state the correct value of the goods gutted. The plaintiff has produced some books, i.e, the sale book, the stock book and the Counter-foils of certain cash memos. According to the plaintiff on the basis of these documents he has fixed the valuation of the goods gutted as given by him in the plaint. Although this evidence is not full proof, yet there is no direct evidence produced by the defendant to contradict this evidence. The surveyor produced by the defendant Mr. V.N Sarin proprietor of Messrs V.N Sarin and Co., puts the estimated loss of goods at Rs. 6508.20, and the furniture at Rs. 150/-.
13. The learned counsel for the defendant has criticized the account books produced by the plaintiff and has stated that they were not genuine. They were prepared for the sake of this case. The plaintiff from the very beginning had an evil design of setting fire to this shop which contained a small quantity of goods, and to inflate and bolster up his false claim he got those account books prepared. He has argued that the account books start right from the date the insurance was effected. He has at length cross-examined the plaintiff's son who has admitted that he writes the accounts of the plaintiff along with another clerk, Mohd Ishaq. According to the learned counsel for the defendant the accounts have been prepared at one time, being in the same ink and hand though covering a sufficiently long period of time. This argument of the learned counsel for the defendant is not without force, but in view of the ultimate fate that the case is to meet at any hands, I do not think I should very seriously probe into the matter of the valuation of the goods that were gutted. I must therefore accept, the figure of loss sustained by the plaintiff as put by him as correct. Therefore issue 3 is decided in favour of the plaintiff.
14. In my opinion there is an overlapping of issues. For instance issues 4 and 5 are practically the same. Issue 7 also can be held to be covering the same subject matter as issues 4 and 5. Issues 6 and 8 also cover the same subject matter. Therefore I would group these issues and arrange them in the following manner:
Issues 4, 5, 7 and 11 one group.
Issues 6, 8 and 13 another group.
15. In fact the whole controversy between the parties has arisen with respect to the grouped issues.
16. Let me now take up issues 4, 5, 7 and 11.
17. The case of the defendant is that under the terms of the policy of insurance the plaintiff had to intimate the details of the loss to the defendant company within 15 days of its occurrence. Further he had to institute a suit within three months of the rejection of the claim by the defendant. The fire broke out admittedly on the night of 4/5th February 61. The plaintiff did in fact inform the defendant company's branch at Srinagar on the morning of 5th February. The then SHO Kothibagh Mr. Abdul Rashid seized the books of the plaintiff from his house on 5-2-61 and prepared a seizure list Ex. PW2/2. The books remained in the custody of the police till 5-5-61. When the plaintiff moved the ADM Srinagar on 3-6-61; the books were returned to him by means of a receipt Ex. PW 1/2 on 5-5-61, vide the statement of Shambu Nath Head Constable Thana Kothibagh PW 1. It is therefore conceivable that the plaintiff was not in a position to give a detailed list of the articles which were burnt to the defendant company within 15 days. The plaintiff has however given a detailed list of the loss caused to him on 9th May 61. The defendant's contention was based on condition 11 of the policy which runs as under:
“On the happening of any loss or damage the insured shall forthwith give notice there of to the company and shall within 15 days after the loss or damage or such further time as the company may in writing allow in that behalf, deliver to the Company.
(a) A claim in writing for the loss or damage containing as particulars an account as may be reasonably practicable of all the several articles or items of property damaged or destroyed, and of the amount of the loss and damage thereto respectively, having regard to their value at time of the loss or damage not including the profit of any kind.
(b) Particulars of all other insurances, if any the insured shall also at all time at his own expense produce, procure and give to the company all such further particulars;-plans, specifications, books vouchers, invoices, duplicate or copies thereof, documents proof and information with respect to the claim and the claim and cause of the fire and the circumstances under which the loss or damage occurred, and any matter touching the liability or the amount of the liability of the company as any be reasonably required by or on behalf of the company together with a declaration on oath or in other legal form of the truth of the claim and of any matters connected therewith.
18. No claim under this policy shall be payable unless the terms of this condition have been complied with.”
19. According to the defendant the plaintiff did not supply the detailed list within 15 days of the occurrence of the fire, and therefore the plaintiff forfeited his right under the policy Emphasis was laid on the last portion of this condition which says that no claim under this policy shall be payable unless the terms of this condition have been complied with. But I think it was physically impossible for the plaintiff till the 5th of May 61, to give a Page: 43complete and detailed list of the loss sustained by him as his books were with the police. Therefore to that extent the plaintiff has an explanation or a justification in not supplying the detailed list to the company within 15 days of the damage. But there is the second part of this matter which is covered by condition 13 of the policy. This condition runs as under:
“If the claim be in any respect fraudulent, or if any false declaration be made or used by the insured or anyone acting on his behalf to obtain any benefit under this policy, or if the loss or damage be occasioned by the wilful act or with the connivance of the insured, or if the claim be made and rejected and an action or suit be not commenced within three months of such rejection, or in case of an arbitration taking place in pursuance of the 18th condition of this policy within three months after the arbitrator or arbitrators or umpire shall have made their award, all benefits under this policy shall be forfeited.”
20. In this case we have it in the evidence of Mr. Jaipal Bahadur DW 2 Chief Regional Manager of the defendant company Northern India that the claim of the plaintiff was rejected by means of a letter of the company dated 25-2-61. The same thing has been testified to by Mr. R.N Dubash D.W 5 who has been an employee in this concern from 1957 and is now the O/c of the Company at Srinagar. According to him the company rejected the claim of the plaintiff on 25-2-61. There are a number of letters also which reiterate and refer to the initial letter of the defendant dated 25-2-61. These letters are Ex. D.W 5/1 dated 22-6-61, Ex. D.W 5/3 dated 27-12-61, D.W 5/4 dated 20-11-61. All these letters are signed by Mr. K.B Pestonjee who was then in charge of the Srinagar branch and is now in Manila and therefore incapable of appearing before the court. His signatures have been identified by Mr. R.N Dubash.
21. The suit was instituted on 1-2-62 which is clearly about a year after the rejection of the claim of the plaintiff by the defendant. Therefore in terms of this policy the right of the plaintiff to recover the suit amount is extinguished. In the proposal from Ex. D.W 4/1 the condition is that the declaration made in this form shall be the basis of the contract between the parties. The insurance company agrees to compensate the insured only subject to the conditions mentioned in the policy which appear on the back of the policy.
22. An argument has been advanced that the condition of instituting legal proceedings within three months of the rejection of the claim of the insured by the Insurance company is against sections 23 and 28 of the Contract Act. Section 28 reads as under:
“Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.”
XXXXXX
23. Section 23 of the Contract Act makes the following agreements as unlawful.
24. If they are forbidden by law or are of such a nature that if permitted would defeat the provisions of any law, or are fraudulent, or involve or imply injury to the person or property of another, or if the court regards them as immoral or opposed to public policy. A list of illustrations is appended to this section.
25. Section 28 makes all agreements in restraint of legal proceedings void.
26. It is argued that such an agreement is immoral and opposed to public policy and further it curtails the ordinary period of limitation. I need not consider these sections in detail because the matter is completely covered by authority. It will surely be a waste of time to embark on a discussion of the points raised. The following authorities may be mentioned:
27. In Porter's Law of Insurance (6th edn.) page 195 it is stated that insurance may lawfully limit the time within which an action may be brought to a period less than that allowed by the statute of limitation and that the true ground, on which the clause limiting the time of claim rests and is maintainable is that, by the contract of the parties the right to indemnity in case of loss and the liability of the Company therefor do not become absolute, unless the remedy is sought within the time fixed by the condition in the policy.
28. AIR 1924 Cal. 186; AIR 1917 Bom 225 (sic); AIR 1951 Bom 347; AIR 1914 Bom 225 (2); (1909) ILR 36 Cal 516; ILR 38 Bom 344 : AIR 1914 Bom 225 (2); AIR 1926 Rang 3; AIR 1962 J&K 15 : AIR 1966 All 385.
29. In AIR 1924 Cal. 186 (Supra) some English cases were discussed and condition No. 13 of the policy as in the present case was there. This condition amongst other things stated:
“If the claim be made and rejected and an action or suit be not commenced within 3 months after such rejection and in the case of arbitration taking place in pursuance of the 18th condition of this policy within three months of the arbitration when the arbitrator or the umpire shall have made the award, all benefits under the policy shall be forfeited”.
30. In this case an action commenced after the stipulated period of three months was held to contravene neither section 23 nor Section 28 of the Contract Act.
31. In (1909) ILR 36 Cal. 516 it was held that where it was stipulated that the action should be commenced within six months of the loss, if action was not taken within six months of the loss, it would Page: 44grant complete immunity to the insurance company.
32. In ILR 38 Bom. 344 : (AIR 1914 Bom 225 (2)), it was held that there was a distinction between the extinction of a right and the loss of a remedy, that Section 28 of the Contract Act was aimed only at covenants not to sue at any time and at covenants not to sue for a limited time, that a conditional release or forfeiture was a different thing from a covenant not to sue, although to avoid circuity of action a covenant not to sue had sometimes been held equivalent to effect to a conditional release and that the condition of forfeiture in the policy in question in suit was not within the scope of Section 28 of the Contract Act.
33. Other authorities on the point are also to the same effect.
34. By learned predecessor-in-office Nair, J. in AIR 1962 J&K 15 while discussing the various authorities on the subject held:
“What section 28 forbids is not extinguishment of the rights or liabilities of a party to a contract on the happening of a specified event but the limiting of the time within which a party may enforce his rights. A party will have no right to enforce, if the rights have already been extinguished by the contract. In such a case there can be no question of the time for the enforcement of the rights being limited.”
35. The latest authority on the subject is AIR 1966 All 385 wherein according to a clause in the loss-cum-fire insurance policy the insured had to file within 15 days of the loss a complete claim giving full particulars. The loss occurred on 18-8-47. Insured sent a telegram on 21-8-47 as “sugar is looted. Please note.” The company replied on 25-8-47 asking for policy number and circumstances of loss. The insured sent reply on 8-9-47 giving some particulars. Even this did not give all particulars. The company ultimately rejected the claim. On these facts it was held that the communication was beyond 15 days. The mere fact that the application under section 13 of the Displaced Persons (Debts Adjustment) Act, 1951 regarding the claim of the insured who was a displaced person was within time, would not entitled him to get any relief in respect of the loss.
36. In this case even if the plaintiff was entitled to any relief he had forfeited all rights under the policy when he failed to bring his suit within three months of 25th February 61 when his claim was rejected by the insurance company. The claim was not rejected only once, but the basic stand taken by the company in its letter of 25-2-61 was repeated in a number of letters for instance, D.W 5/2 dated 28-2-61, D.W 5/3 dated 27-12-61, D.W 5/4 dated 21-H-61 and D.W 2/1 dated 27-6-61. The plaintiff had no justification to wait till 1-2-62 to file the suit. By that time his right, had been completely extinguished.
37. In this way issues 4, 5, 7 and 111 are decided against the plaintiff. His suit are clearly time-barred.
38. The second group of issues that can be conveniently taken up together is Nos. 6, 8, and 13. The case of the defendant is that the plaintiff has been guilty of suppression of material facts and has made a false representation at the time of obtaining the policy from the defendant. His claim cannot therefore be entertained. Emphasis on this aspect of the case is laid on the reply of the plaintiff to question 8(a) and 8(b) of the proposal Ex. D.W 4/1 which is as under:
8(a) Has the property been insured in the past or at the present time? If so, give full particulars.
8(b) Have you sustained loss. Give full particulars.
39. To both these queries the plaintiff has said ‘No.’
40. The contention of the learned counsel for the defendant is that the plaintiff had insured the goods of his shop with another insurance company in the year 1957 namely, the Ruby General Insurance Co. During that year also his shop was gutted by fire. He made a claim for Rupees 25000/- from the Insurance Company, but his claims was settled at Rs. 14807/-. According to the Manager of the Ruby General Insurance Co. Mr. D.N Chopra, the settlement was arrived at on 24-2-58. The shop of the plaintiff had caught fire on 24-4-57 and the policy of insurance with that company had come into force for one year from 9-10-56 to 9-10-57. The plaintiff and his son admitted this previous insurance, but their case was that the plaintiff is an illiterate person who does not know English. He only knows how to sign ‘KA Bulbul’ and at the time of entering into the present contract he was not explained the terms of the proposal form or of the insurance policy. D.W 4 Abdul Ahad Sheikh Inspector of the New India Assurance Co., has deposed on solemn affirmation that he filed in the form Ex. D.W 4/1 on 5th June 60 and the answer that he entered against each query in the proposal form was at the instance of the plaintiff. He made the plaintiff understand all the questions and recorded his answers. Col. No. 8 was also filled at the instance of the plaintiff. The plaintiff signed the proposal form after knowing the contents thereof. The plaintiff however tried to negative this evidence by the statement of Gulla Khan who says that the plaintiff is an illiterate person. In view of the statement of Abdul Ahad Shaikh and reading in between the lines the statement of the plaintiff himself, it is difficult to hold that the plaintiff was not put a specific question whether he had not insured this property with another insurance company earlier. I feel that the plaintiff purposely Page: 45withheld this information from the insurance agent because when previously he had insured the goods of the shop with the Ruby. G. Insurance Co., and his shop had caught fire he had claimed Rs. 25000 but was given only Rs. 14000 and odd. Feeling somewhat apprehensive about the state of affairs then, he wilfully suppresed this fact from the defendant insurance company. So on facts it is proved that the plaintiff has made a false statement in reply to question No. 8.
41. Now we have to see what is the legal effect of this false statement. The law on this point is so well settled both in England and India that it does not require any elaborate discussion. Anyhow the following authorities may be mentioned.
42. The effect of non-disclosure or misrepresentation is that the insurers have the right to repudiate, that is to say, to avoid contract. (See Morrison v. Universal Marine Insurance Co., (1873) 8 Exch. 197 and United Sheo Machinery Co., of Canada v. Brunet, (1909) AC 330, at p. 339).
43. Where, however, insurers answer a claim by repudiating the policy on the ground of fraud, misrepresentation or non-disclosure, they are not bound to offer a return of premium (Vide (1887) 2 TLR 630).
44. The Privy Council as far back as 1921 held in AIR 1921 PC 195: that if untrue answers are given in a proposal form the contract is void. The materiality or otherwise of the truth told is not at all material.
45. Then again in AIR 1935 PC 1 there was a fire insurance of a building and the insured represented to the insurance company that all the ground floor walls were of brick but it was found that only one was of brick and out of the remaining three, one was of timber and in the other two were as to two-third of their length in timber and one-third only brick. On these facts it was held that there was a material misdescription.
46. In AIR 1931 PC 21 (sic) it was held that if a person knowingly makes a untrue statement to induce the other to enter into a contract, it is a sufficient basis for an action of deceit if the other relies on that statement.
47. Similar in AIR 1937 PC 146 : AIR 1942 Cal. 412, AIR 1959 Pat 102, AIR 1954 Mys 134 and AIR 1958 Mys 53 it was held that giving of wilfully untrue answers in the proposal form would vitiate the whole insurance contract.
48. The matter has again been fully discussed in AIR 1962 SC 814 where a policy holder who had been treated a few months before he submitted his proposal for the insurance of his life with the insurance company by a physician of repute for certain serious ailments as anaemia, shortness of breath and asthma, not only failed to disclose in his answers to the questions put to him by the insurance company that he suffered from these ailments but he made a false statement to the effect that he had not been treated by any doctor of any such serious ailment, it was held that judged by the standards laid down in section 17 of the Contract Act, the policy holder was guilty of a fraudulent suppression of material facts when he made his statements, which he must have known were deliberately false and hence the policy issued to him relying on those statements was vitiated. In the circumstances of the case it was held that no advantage could be taken of the Explanation to section 19 of the Contract Act. In this case it was further held:
“Where, according to terms of the life insurance policy, all moneys that had been paid in consequence of policy would belong to the insurance company if the policy was vitiated by reason of a fraudulent suppression of material facts by the insured, and the contract is bad on the ground of fraud, the party who has been guilty of fraud or a person who claims under him cannot ask for a refund of the money paid. It is a well established principle that courts will not entertain an action for money had and received where, in order to succeed, the plaintiff has to prove his own fraud. Further in cases where there is a stipulation that by reason of a breach of warranty by one of the parties to the contract, the other party shall be discharged from the performance of his part of the contract, neither Section 65 nor Section 64 of the Contract Act has any application.”
49. In view of all these authorities, it is clear that the plaintiff simply on the ground that he gave a false reply to questions 8(a) and (b) in the proposal form cannot claim any compensation for fire having been caught by the goods in his shop. In this case this question was very material and withholding of the real information from the insurance company would automatically absolve the insurance company from any liability under the contract. As already remarked, the Privy Council has gone to the length of holding that the answers to a question being material or immaterial, would not make any difference. The plaintiff's suit would there for fail on this account alone.
50. Issue 8 is not very clear but I have grouped it with issues 6 and 13. In my opinion this issue is based on the fraud alleged to have been committed by the plaintiff in suppressing the material information regarding the previous insurance of the goods of his shop with the Ruby General Insurance Co., in the year 1957. But if this issue is construed as suggesting that the claim of the plaintiff is not bona fide. I have given my finding already that all the weaknesses that the plaintiff's case may have, it can be safely held that it is proved that he lost goods of the valuation mentioned in the plaint during the fire. So these observations dispose of issues 6, 8 and 13.
51. The learned counsel for the defendant has laid great stress on the fact that the fire was caused by the wilful act of the plaintiff. No doubt the plaintiff's conduct is somewhat not above suspicion. According to the plaintiff and his witness Ama Shah, his son Safdar Ali and the plaintiff himself they closed the shop as usual at about 7-30 In the evening. The shop caught Are in the night. The plaintiff or anybody on his behalf did not repair to the scene of occurrence till 10 the next morning. The plaintiff says that he did not know about the occurrence. Although this statement would seem improbable, but there is nothing on the file to clearly contradict this statement of the plaintiff. The police registered the case as a suspicious one and conducted investigation but later on the police also discovered that the fire was accidential (Vide the statement of Abdul Rashid P.W 2). The defendant has led no positive evidence to show that the plaintiff himself set the goods of the shop on fire. The defendant's case is based on certain suspicious entries in the account books of the plaintiff and on the conduct of the plaintiff. But that by itself is not sufficient to hold that the plaintiff himself wilfully set his shop on fire or connived at it. In my opinion this issue should be decided against the defendant.
52. The plaintiff claims Rs. 564.50 as the value of uninsured goods which caught fire on November 3, 1961 because according to him the keys of the shop were still with the defendant company. In the first place the plea of the plaintiff that the shop remained under the possession and lock and key of the defendant upto 3rd Nov. 61 is not established. Apart from that fact unless it is shown that the destruction by fire of this uninsured goods was the result of the negligence of the defendant, no responsibility can be fastened upon the defendant. If the plaintiff's case were that he was present on the scene of occurrence on Nov. 3, 1961 to salvage his merchandize, but for the fact that the shop was locked by the defendant, there was some case for the plaintiff. But there is no such suggestion on the part of the plaintiff. Even if the shop was under the lock and key of the defendant and it caught fire which was accidental, the defendant would not by the mere fact of the destruction of the goods therein be liable for the damage. Therefore in my opinion the plaintiff cannot even claim this amount. From the finding on the issues recorded above, the plaintiff's suit has to be dismissed and is hereby dismissed, but in view of the hardship caused to the plaintiff and his suit failing on a technical point, the parties are left to bear their own costs.
LGC/D.V.C
53. Suit dismissed.