Allowed

Kirti K. Shah v. the Oriental Insurance Co.Ltd

Bombay HC1 Sept 2009S/3381/2001

Case brief

AI extract

What is this about?

In a suit for recovery by a plaintiff of his insurance claim against a fire, the court held that the plaintiff was not bound by the 7-day rule of intimation. Decreed in favor of the plaintiff for Rs.5 lakhs with interest at 12% p.a. from the date of filing till the date of judgment.

What did the court decide?

Decision to pay Rs.5 lakhs with interest at 12% p.a. from date of filing till judgment.

Kirti K. Shah Vs the Oriental Insurance Co.Ltd — Insurance | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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SUIT NO. 3381 OF 2001

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Kirti K.Shah

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...Plaintiff

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vs.

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The Oriental Insurance Company Limited...Defendants

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Mr.Vasant K. Mehta for the Plaintiff.

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Mr.Yadav Bhargavan i/b. M/s.R. Bhargavan &
Associates for the Defendants.

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 CORAM : V.M. KANADE, J.

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DATED : SEPTEMBER 1, 2009

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P.C. :-

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1Mr.Kirti K. Shah, plaintiff present in

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court states that the affidavit is affirmed by him

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and he admits that the contents of the said

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affidavit are true and correct. The affidavit is

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taken on record and is marked Exhibit P. The
plaintiff has also filed compilation of original

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documents. These documents are taken on record and
marked Exhibit P-1 (Colly) and are taken on record.

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2Heard Counsel for the plaintiff. Counsel

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for the defendant seeks time to take instructions

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and to file written statement. Request for

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adjournment is refused. The suit has been

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transferred to the list of �Undefended Suits� by
order dated 17.10.2007 passed by the Additional
Prothonotary and Senior Master. The suit is filed
in the year 2001 and writ of summons was served on
the defendant soon thereafter. Affidavit of service

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was filed on 14.3.2002. No steps have been taken by
the defendants to file their written statement.

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3The Plaintiff�s Counsel has tendered the

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affidavit in lieu of evidence and compilation of

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original documents. The plaintiff has stated that

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the contents of the said affidavit are true ad

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correct. The plaintiff is a Manager and Karta of
Kirti K. Shah (HUF) and is carrying on business in

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the name and style of �M/s.Kirti Trading Company� as

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its proprietor. The plaintiff is doing business in
all kinds of timber goods of every description,
plywood, laminate sheet, etc. as its dealers and
merchants. The defendants are an Insurance company

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and have their registered office at New Delhi. The
plaintiff was also carrying on business in the said
premises in the name and style of M/s.Karan Plywood

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as its proprietor. The plaintiff had taken a fire
insurance policy from the defendants in the name of
his firm M/s.Karan Plywood and insurance premium
was paid regularly and the policy was renewed year
to year. So far as the present claim is concerned

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i.e. in respect of the firm M/s.Kirti Trading
Company, the plaintiff had put up a wooden partition
in his godown and was storing the goods separately
in both these firms and a fresh insurance policy for

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the said firm of M/s.Kirti Trading Company was taken
out by him and insurance premium of Rs.977/- was

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paid to the defendant by Cheque No.330238 dated
16.3.98 as premium amount to the defendants� Bombay

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Divisional Office. The said cheque was accepted and
a receipt also was given dated 18.3.98 in respect of

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the second firm M/s.Kirti Trading Company.
Accordingly, the defendants issued fire insurance
policy being policy no.12/200/326/19492/11/98/04200
dated 23.3.98 for 12 months from 23.3.98 to 22.3.99.
The insurance risk which was covered by the said
policy was to the extent of a sum of Rs.5 lakhs.

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4On or about 10.6.98, the entire godown in

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which the plaintiff�s shop was situated was

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destroyed as a result of the fire which had taken

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place at about 5 a.m. On the said date and all the
timber goods and material stored therein belonging

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to the two firms of the plaintiff was destroyed.
Fire Brigade Authorities prepared panchanama and
completed the necessary formalities. There was in

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all about 16 godowns and the plaintiff gave an
intimation to the defendants by letter dated 10.6.98

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about the said fire in order to lodge his claim in
respect of M/s.Karan Plywood after sending insurance

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policy in respect of the said firm. However, since

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the defendants had not dispatched the insurance
policy which the plaintiff had taken out in March
1998, he was unable to dispatch the insurance
policy since the said policy was with the defendant.
The defendants filed its surveyor�s letter dated
12.10.98 and acknowledged the receipt of the said
letter. Since there were two separate claim in
respect of the two separate firms, the defendants
informed the plaintiff to write letter of intimation
and lodge his claim of M/s.Kirti Trading Company.

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The plaintiff, therefore, by his letter dated
31.8.98 lodged his claim in respect of M/s.Kirti
Trading Company separately as advised by the
defendant�s agent. The defendant appointed their
surveyor to verify the loss suffered by the
plaintiff�s firm M/s.Kirti Trading Company. The said
surveyor called upon the plaintiff to furnish
further information by letter dated 4.9.98 and
accordingly, the plaintiff by letter dated 16.9.98
supplied the additional documents and information

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which was required by the plaintiff. The defendants�

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agent denied the claim of the plaintiff in respect
of the firm M/s.Kirti Trading Company. Thereafter,

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the plaintiff visited the defendants� office on

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number of occasions and thereafter, the surveyor by
its letter dated 16.11.98 called upon the plaintiff

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to supply details of the stock and other
particulars. The plaintiff, accordingly, supplied
the said information along with the documents to the

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defendants. Thereafter, the defendants again by
letter dated 4.3.99 requested the plaintiff to send

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his claim in a format. The plaintiff informed the
defendants and also personally met the defendants
officer and clarified the position and the
defendants got satisfied about it. Neither the
defendants or its surveyor had asked the plaintiff
to give clarification regarding the allegedly late

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submission of intimation and loss. In fact, at the
instance of the defendants, the said intimation was

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given on 31.8.98. Since the defendants did not
release the claim of the plaintiff in spite of

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compliance of several requisitions which were sent
by the defendants which were promptly attended to by
the plaintiff, the plaintiff again made enquiries

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with the defendants as to why claim was not
sanctioned and finally, the plaintiff was informed
that the claim was rejected on the ground that the
intimation was not given within seven days from the
date of occurrence of the fire. The plaintiff,
therefore, has filed this suit for the recovery of
the said amount of Rs.7,60,875/- together with
interest on Rs.5 lakhs at the rate of 18% per annum.

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5Counsel for the plaintiff has submitted

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that out of the 16 shops which were situated in the

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said godown, the defendants had approved all other
claims except the claim in respect of M/s.Kirti
Trading Company. He submitted that the plaintiff has

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produced the entire documentary evidence which
proves that all the queries which were raised by the

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defendants had been complied and the requisite
information was supplied by the plaintiff to the

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defendants. He further submitted that the contention
of the defendants that their claim was not lodged
within seven days from the date of occurrence of the
incident also was incorrect since the defendants
themselves had informed the plaintiff to give a
separate intimation in respect of firm M/s.Kirti
Trading Company. Accordingly, the plaintiff has
given intimation on 31.8.98. He, therefore,
submitted that no defence was raised by the
defendants and therefore, no written statement has
been filed by them.In my view, the plaintiff has
made out a case for judgment and decree as claimed
by him.

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6The suit, therefore, is decreed in terms of

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prayer clause (a). The plaintiff, therefore, is
entitled to judgment and decree in respect of the
insurance claim which was covered by his insurance
policy to the tune of Rs.5 lakhs. The defendants,

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therefore, are directed to pay an amount of Rs.5
lakhs to the plaintiff with interest at the rate of

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12% per annum from the date of filing of the suit
till the date of judgment.

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7Suit, accordingly, is disposed of.

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(V.M. KANADE, J.)

Kirti K. Shah v. the Oriental Insurance Co.Ltd

Case brief

What is this about?

What did the court decide?

Kirti K. Shah v. the Oriental Insurance Co.Ltd

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Coram

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