9911796707
TMI Blog1909 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... on the face of the policy so far as material are as follows: It is further warranted (2) that the risk of loss or damage by fire is not insured hereby unless expressly so stated in writing hereon in which case such fire risk shall be subject to the following additional conditions: (a). Any loss occasioned by smoking or cooking having been carried on in the said boat shall not be recoverable hereunder. 8. That no smoking nor cooking shall be carried on in the said boat but in a dinghy provided for the purpose. 9. That in the event of loss: (a) the Manjee or Charandar must report to the nearest police station within 24 hours and must state that the cargo is insured. (b) After report has been made to the police the Manji, Charandar and two of the crew of the said boat shall proceed at once to Calcutta and report themselves to the Company and shall thereupon make a declaration or statement regarding the said loss. (c) The assured shall within 7 days of the happening of such loss furnish to the Company a true and faithful statement and detailed account of such loss (on form obtainable from the Company) showing where and how such loss occurred. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 31st August and 14th September 1906, a portion of the jute being placed on board in the canal at Ghiur on which the plaintiff's premises abut, the boat there owing to the shallowness of the water in the canal being then taken out into the river where the remainder of the jute was placed on board. This boat according to the evidence on behalf of the plaintiff had been purchased by Mohim from one Gopeewar a few days prior to the date on which the jute was begun to be loaded. 9. On the 15th September the challan having been given to the Manji the boat started and on same day reached Raipore, where for a period of seven or eight days the boat was held up by stress of weather. The crew on board consisted of the Manji Mohim and four others and there was also a Charandar Hazari Duffadar. 10. The plaintiff also says that one Rameswar Chowdhry and his man accompanied the boat in their own dinghy for the purposes of making the soundings necessary for the safe navigation of the boat, and further that a dinghy was also attached to the boat for the purpose of cooking as required by the terms of the policy. 11. On the evening of the 14th October the boat arrived at Kha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendants allege that the plaintiff owing to this loss was not in a good financial condition, and with a view to repair his losses he purchased for ₹ 60 an old and rotten boat. Then having effected the policy and having loaded this boat with some of the jute; that was salved from Sharabut's boat and earth, together with a small quantity of jute in good condition, this old and rotten boat, with its composite cargo along with two, tins of kerosine oil Which had been placed on board was set fire to with intent to defraud the defendants by pretending that this old loaded boat as alleged was the boat and cargo mentioned in the policy. 19. Having gone through the whole of the evidence we think that there are elements of considerable suspicion connected with the plaintiff's case. The learned Judge, however, who tried the case and had the advantage of seeing and hearing the witnesses, has accepted the evidence of the plaintiff and his witnesses and has disbelieved the defendants' witnesses. 20. In these circumstances, we do not think there is sufficient ground to justify us in differing from the findings of fact of the learned Judge as to the sailing of the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. no smoking or cooking shall be carried on in the said boat. 25. Now, the learned Judge has not by his judgment found what was the cause of the fire that destroyed the boat or whether or not smoking or cooking took place on board. 26. It has been urged before us on behalf of the plaintiff that the onus of proving that the cargo was destroyed by a fire caused by cooking or smoking lies on the insurers. This would appear to be so: Boyd v. Dubois (1811) 3 Camp. 133; but this does not dispose of condition 8 which provides that no smoking or cooking shall be carried on in the said boat. Condition 8 is a condition precedent to the liability of the insurers under the policy; and if smoking or cooking was carried on in the said boat it matters not whether the smoking or cooking caused the fire or not. It would appear that the plaintiff must prove that he has complied with all warranties as being conditions precedent to the policy attaching (Arnould, page 1452) or that the performance thereof has been effectually waived. 27. As we have already said, the learned Judge has made no findings at all with regard to the cause of the fire or whether or not smoking or cooking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urs distance, or the Manji or Charandar or both of them might be drowned, the condition is one which might be impossible of fulfilment and therefore may be neglected. With the greatest respect to the learned Judge we are unable to agree in this view. The condition is one of the essential conditions on the footing of which the defendants contracted with the plaintiff; by inserting it the parties must be taken to have considered it of importance, and it is only on the fulfilment of this and other conditions that the liability of the defendants attaches. The fact that the condition may be impossible of fulfilment cannot affect this liability; if it were intended to do so qualifying words should have been introduced into the contract. On this point we may refer to the case of Worsley v. Wood (1796) 6 T.R. 710, in which case it was stipulated that the person assured should procure a certificate from the minister, churchwardens and some respectable house-holders of the parish not concerned in the loss importing that they were acquainted with the character and circumstances of the person insured, and knew or believed that he by misfortune and without any kind of fraud or evil practice ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... don where month means calendar month. In support of this we need not do more than refer to the decision in Simpson v. Margetson (1847) 17 L.J.Q.B. 81, Turner v. Barlow (1863) 3 F. F. 946) and Bruner v. Moore [1904] 1 Ch. 305. The ordinary meaning of the word month in the English language is a lunar month and not the artificial month in the Gregorian calendar. This is sufficiently shown by the fact that until the year 1850 the word month in an Act of Parliament meant lunar month, since which date, however, by virtue of a statutory enactment the word month is used in Acts of Parliament to mean a calendar month. But the rule as to month meaning a lunar month in contracts still remains the law in England. 33. The learned Counsel, however, for the plaintiff has argued before us that the rule is different in India having regard to certain Statutory Enactments of the Indian Legislature. The Statutory Enactments relied on are the General Clauses Act and Section 25 of the Indian Limitation Act. 34. The definition of the word month, however, in the General Clauses Act is only for the purpose of Acts passed by the Indian Legislature. Then coming to Section 25 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efraud the defendant Company. They further did not admit that the conditions of the policy had been complied with, and in particular charged certain specific breaches of specific conditions. 39. The learned Judge who heard the case came to the conclusion that the story told by the plaintiff was substantially correct, and that the story of the defendants as to the purchase of the old boat and as to the fraud perpetrated was entirely unworthy of belief. 40. We have heard the evidence dealt with, and I must confess that the plaintiff's case seems to me to be open to very grave suspicion. It is, however, needless to deal with the evidence, because though on paper there are many grounds for doubting its reliability, I do not feel sufficiently convinced of its falsity to justify me in differing on the facts from the learned Judge who both saw and heard the witnesses. 41. But the substantial grounds of appeal which the appellant. has pressed arise on the non-compliance by the plaintiff with the conditions to be found on the face of the policy. The learned Judge in construing these conditions has held that a distinction must be drawn between the clauses which provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re conditions and in my opinion are conditions precedent to the assured's right to recover under the policy. 46. First, as a general rule conditions appearing on the face of the policy are conditions precedent, and secondly some of the conditions at any rate directly affect the risk to be undertaken by the insurers. For instance, Clause 5 provides for the appointment of a Charandar to take care of the cargo. Clause 6 the provision of money to enable assistance to be got in case of accident. Clause 8 provides that no smoking or cooking shall be carried on in the boat. If these conditions are not complied with the risk of loss is substantially increased. It was argued that Clause 8 was unnecessary as long as the policy contained the exception in Clause 2(a), but I do not agree with the contention. The presence of fire for cooking or smoking would materially increase the risk of loss by fire; if the defendant could prove that the fire was caused by smoking or cooking, he would of course be absolved from liability under Clause 2(a), but it would remain that the fire risk was increased while the defendants could not escape liability without proving that the fire was caused by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nar and not an English calendar month. 52. In England there is a dictum at Nisi Prius in the case of Hart v. Middleton (1845) 2 C. K 9 to the effect that in mercantile transactions month means calendar, and not lunar month, but that dictum is directly at variance with the case of Bruner v. Moore [1904] 1 Ch. 305, which lays down that month means lunar month, though the presumption that month means lunar month can be displaced by evidence to show that in any particular instance it was intended by the parties to mean calendar month or that there was a custom or a statute under which month meant in the particular case calendar month. That the latter case, which is a carefully considered judgment and not the dictum in Hart v. Middleton (1845) 2 C. K 9, expresses what is really the law is shown by legislation for in the Sale of goods Act 56 and 57 Viet. c. 71, Section 10(2), it is enacted that in a contract of sale month means prima facie calendar month. This provision would have been quite unnecessary had the dictum in Hart v. Middleton (1845) 2 C. K. 9 been a correct statement of the law. 53. Is the law as laid down in Bruner v. Moore [1904] 1 Ch. 305 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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