IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 121 of 1997. Reserved on: 24.12.2007. Decided on: 11.01.2008. New India Assurance Company. … … Appellant. Versus M/s Kumar General Store. … … Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant: Mr. K.D. Sood, Advocate. For the Respondent : Mr. Jagdish Vats, Advocate. Rajiv Sharma, Judge: A challenge has been laid by way of this regular second appeal to the judgment and decree passed by the learned District Judge, Kinnaur Sessions Division, Rampur Bushehar in Civil Appeal No.96- R/13 of 1996/90 dated 23.11.1996. The brief facts necessary for the adjudication of this second appeal which can be culled out from the judgments of the Courts below are that the respondent (hereinafter referred to as the plaintiff for convenience sake) had filed a civil suit for recovery of rupees one lac in the Court of Sub Judge Ist Class, Rampur Bushehar, District Shimla on 14.5.1987. Plaintiff Darshan Lal is the sole proprietor of M/s Kumar Whether reporters of local papers may be allowed to see the judgment? No. - 2 - General Store and it is averred in the plaint that the appellant (hereinafter referred to as the defendant for convenience sake) had kept its agent Shri Prem Raj in Rampur Bushehar for doing the insurance business. Shri Prem Raj approached the plaintiff on 14.9.1985 and consequently a proposal form was filled in on the same date and the plaintiff paid premium of Rs.346/- by way of cheque. The defendant Company issued the policy, i.e. Ex. D-2. The policy was valid with effect from 16.9.1985 to 15.9.1986. There was rock sliding as a result of which the shop of the plaintiff including its goods was damaged on 6.11.1985. The claim put forth by the plaintiff was rejected by the Insurance Company. The trial Court dismissed the suit of plaintiff on 16th November, 1989. Feeling aggrieved by the judgment dated 16th November, 1989, the plaintiff preferred an appeal in the Court of learned District Judge, Kinnaur Sessions Division, Rampur Bushehar on 12.3.1990. The learned District Judge framed the following points for determination:- “1. Whether the judgment and decree passed by the learned Court below is justifiable on the basis of the oral as well as documentary evidence adduced by the parties? 2. Final order.” The learned District Judge gave the following findings on the points formulated:- Point No.1. Yes. Final Order: The appeal is accepted and the judgment and decree passed by the Ld. Lower Court is set aside and the suit is decreed for Rs.40,000/-. The learned District Judge accepted the appeal and set aside the judgment and decree passed by the trial Court. The suit of the plaintiff for Rs.40,000/- alongwith costs and interest at the rate of 12% per annum from 6.11.1985 was decreed. The present regular second - 3 - appeal has been preferred by the Insurance Company against the judgment dated 23.11.1996 passed by the learned District Judge, Kinnaur Sessions Division, Rampur Bushehar. The present second appeal was admitted by this Court on the following substantial questions of law:- 1. Whether a court can over ride the terms of contract entered into in writing between the parties on the basis of equity? 2. Whether a court can rely upon the rules of the Tariff Advisory Committee to nullify the terms of insurance entered into between the parties? 3. Whether the court could have said that though the terms of the contract are otherwise, because a particular premium has been charged, the risk covered should have been such which is not covered under the terms of the policy? 4. Whether in the facts and circumstances the report of the Tariff Advisory Committee was even otherwise applicable to the multi-peril especially when the plaintiff had himself admitted that in the proposal form, the word Fire Policy had been struck off? 5. Whether the court could have substituted its own intention with regard to the contract over and above the clear cut intention of the parties, which was entered into between by means of written policy of insurance? Mr. Kapil Dev Sood had strenuously argued that the judgment dated 23.11.1996 passed by the learned District Judge is not sustainable in the eyes of law and Mr. Jagdish Vats had supported the judgment dated 23.11.1996. I have heard the learned counsel for the parties and perused the entire record carefully. Since all the questions are inter-connected, they are taken up together for discussion. - 4 - The facts as projected hereinabove lie in a very narrow campus. The plaintiff had signed the proposal on 14.9.1985 and consequently the policy was issued by the Insurance Company Ex.D-2, valid with effect from 16.9.1985 to 15.9.1986. The plaintiff while appearing as PW-1 has identified his signatures on the proposal form, i.e. Ex.PW-2/A. He has stated that the policy obtained by him was multi-peril policy. PW-2 is Shri Darshan Lal. He has supported the case of the plaintiff. He has stated that Prem Nath was the insurance agent who insured the shop of the plaintiff. Shri Prem Nath has told him that a new scheme of the Company has come and he accordingly charged Rs.346/- for the insurance. PW-3 is a material witness and he was serving in the Insurance Company. He has stated that for fire the amount of premium was Rs.3.10 per thousand. He has specifically stated that the insurance policy is taken for fire, but it includes road/land and rock sliding. He has admitted in cross-examination that due to non- availability of prescribed form Ex.PW-2/A might have been filled in, i.e. the proposal form. He admitted that the policies are enforced according to G.I.C. instructions. PW-4 has only stated with regard to the damage caused to the shop of the plaintiff. PW-5 B.B. Sehgal has produced the tariff circular, i.e. Ex.PW-5/A. He has stated that Ex.D-2 was the miscellaneous policy and not a fire policy. Mr. S.S. Bedi, Branch Manager of the Corporation had appeared on behalf of the Company and he has stated that the policy was valid upto 15.9.1996. He has admitted that Shri Prem Raj was the agent of the Company since 1988. However, he has stated that the policy did not cover land sliding risk. He also stated that additional premium is required to be paid for covering land sliding etc. Multiple policy was introduced in March, 1986 which - 5 - includes land slide risk. Mr. S.S. Bedi has admitted that as per Tariff Advisory Committee Rules the rate fixed includes the land sliding etc and the Company had received the cheque on 16.9.1985 and the proposal was also accepted. However, he has stated that in the Multi Peril Policy, the rock/land sliding was not included. What emerges from the facts as stated above is that the plaintiff had obtained the insurance policy after paying premium of Rs.346/- vide Ex.D-2. The entire case hinges on the interpretation of Ex.PW-5/A, dated 15th April, 1985. The Ex.PW-5/A has been issued by the Tariff Advisory Committee, Bombay under the subject ‘Simplification of All India Fire Tariff Ist Stage – Simple Risks.’ The relevant extract of communication dated 15th April, 1985 reads thus:- “Tariff Advisory Committee have decided to introduce a new simplified Section 1(a) – General Tariff – Dwellings, Offices, Hotels and Shops Tariff with effect from 1st June 1985 and withdraw existing Sub- Sections (A) and (B) of Section 1 of General Tariff from All India Fire Tariff simultaneously. Insurers are requested to insert this Tariff (Ann0065ure – I) before the page Index of the existing Section – 1 – General Tariff of Part III of All India Fire Tariff. In view of the introduction of this Section 1(A) – General Tariff – Dwellings, Offices, Hotels and Shops etc., Tariff the existing Section 1 – General Tariff is renumbered as Section 1(B) – General Tariff and Index of this Section 1(B) is revised as per attached Annexure II. The salient features of the simplified Tariff are as under:- (i) Sub-section ‘A’ & ‘B’ of the General Tariff are merged in one Section. (ii) Two types of Fire Policies are offered to Insureds : - 6 - (a) Fire Policy ‘A’ covers Fire, Riot, Strike, Malicious Damage, Explosion / Implosion Damage, Air Craft Damage, Impact Damage, Storm, Tempest, Cyclone, Hurricane, Tornado, Flood, Inundation, Earthquake, Volcanic Eruption or other convulsion of nature, Subsidence and Landslide (including Rockslide) Damage. (b) Fire Policy ‘B’ covers Fire, Explosion / Implosion Damage, Riot, Strike, Malicious Damage, Air Craft Damage, Impact Damage. There is also an option to the Insureds to exclude Riot, Strike and Malicious Damage Peril from the scope of Fire Policy ‘B’ by giving a discount in rate: (1) Rs.0.10 per mille for Dwellings, Offices, Hospitals etc. (2) Re.0.20 per mille for Residential Hotels etc., (3) Re.1.00 per mille for Shops.” It is evident from the reading of Ex.PW-5/A that new Section 1(a) was to come into force with effect from 1st June, 1985 and the existing sub-Section (A) and (B) of Section 1 of General Tariff from All India Fire Tariff were to be withdrawn simultaneously. The Insurance Companies were directed to insert this tariff before the existing Section-1-General Tariff of Part III of All India Fire Tariff. It is evident from the extracted portion of Ex.PW-5/A that land slide (including rock sliding) damage was to be covered with effect from 1st June, 1985. - 7 - The premium to be paid for this purpose was 3.10. The plaintiff has filled in proposal Ex.PW-2/A on 14.9.1985 and the policy was issued on 16.9.1985 and on that date as per Ex.PW-5/A Section 1(a)-General Tariff-Dwellings, Offices, Hotels and Shops Tariffs had come into force with effect from 1st June, 1985. True it is that in proposal form Ex.PW-2/A as well as in Ex.D-2 policy, the land slide was not mentioned but PW-3 has categorically admitted that Ex.PW-2/A might have been filled due to non-availability of prescribed form. The plaintiff had paid the premium at the rate of 3.10 that was to cover the risk of land slide in Fire Policy-A. In fact, it was incumbent upon the Insurance Company to bring its forms in tune with Ex.PW-5/A by providing two types of Fire Policies, i.e. Fire Policy- A and Fire Policy-B. Once the Company has accepted the premium of 3.10, it was for Fire Policy-A and the Company cannot wriggle out of the same by stating that it was not specifically provided for in Ex.D-2. The submission made by Mr. Kapil Dev Sood that while interpreting Ex.PW-2/A the Court will be re-writing the contract is not acceptable. The Court has only given true effect to Ex.PW-5/A and has concluded that the risk of the plaintiff was covered for land sliding after payment of Rs.3.10 as premium. The plea raised by Mr. Kapil Devi Sood that the plaintiff had only taken miscellaneous policy and the risk of land sliding was not covered thereunder is not acceptable for the simple reason that the Company has charged the premium of the Fire Policy as stipulated in Ex.PW-5/A. The appellate Court after correctly appreciating the evidence, more particularly the Ex.PW-5/A has rightly accepted the appeal and decreed the suit of the plaintiff. In view of the above discussion, the judgment passed by the learned District Judge, Kinnaur Sessions Division, Rampur Bushehar - 8 - dated 23.11.1996 calls for no interference by this Court. Consequently, there is no merit in the appeal and the same is dismissed and the judgment dated 23.11.1996 passed by the learned District Judge is affirmed. All the interim orders passed are also vacated. January 11, 2008. (Rajiv Sharma) (sck). Judge