Judgment:
G. Radhakrishna Rao, J.
1. The defendant in O.S. No. 189 of 1978 on the file of the Subordinate Judge, Guntur is the appellant herein and the present appeal is preferred against the judgment and decree in O.S. No. 189 of 1978. Two fire insurance policies bearing Nos. 128135832 and 128135833 which were valid upto 12-6-1978 were taken by the respondent-plaintiff from the appellant-insurance company and insured their stocks at M/s. Maddisudarshanam & Sons and M/s. Karpurapu Ramakrishna Murthy & Co., Ltd., under lease to Srinivasa Cotton and Oil Company and sub-leased to plaintiff-respondent. For further process viz., pressing work, the respondent used to shift the stocks to M/s. Sakambari Cotton Exports Private limited, Amaravathi Road, Guntur all along. Depending upon the stocks position of plaintiff-respondent at the three places, he used to arrange the transfer of insurance to adequately cover the stocks at the respective places within the insured limits. The practice alleged to have been prevailing is that in case the goods have been transferred from one company's godown to another company, the policy coverage can be transferred without paying any additional premium. In the instant case, a claim for Rs. 2,56,410/- was made by the respondent on account of fire accident of the goods that took place on 16-5-1978 at the premises of M/s Shakambari Cotton Exports Private limited. The claim of the respondent-company is merely based on the custom and practice that was being adopted by the insurance company in connection with the goods that were transferred from one place to another.
2. The plaintiff-respondent's case is that on 15-5-1978 they have sent two letters under certificate of posting intimating the insurance company to arrange for transfer of insurance of goods to cover the stocks lying in the premises of M/s. Shakambari Cotton Export Private Limited and plaintiff-respondent was expecting as usual the endorsement of transfer with effect from 15-5-1978. It is stated that the aforesaid letters were received by the appellant on 18-5-1978 and so since the accident took place after the posting of letter or intimating the authorities concerned through post which ought to have been accepted with effect from 15-5-1978 and the rejection of the claim by the insurance company on the ground that they have received it on 18-5-1978 is bad.
3. For the determination of the coverage of policy the crucial point is whether any attempt has been made on 15-5-1978 to intimate the insurance company about the transfer of goods and whether it has got effect to from 15-5-1978 or gives right to the party-concerned to claim that any damage that was caused between 15-5-1978 and 18-5-1978 and that they are entitled to make the loss good.
4. The learned counsel for the appellant drawn our attention to the Clause 8 of the fire insurance policy which reads as follows:
'Under any of the following circumstances the insurance ceases to attach as regards the property affected unless the insured, before the occurrence of any loss or damage obtains the sanction of the company signified by endorsement upon the policy by or on behalf of the company ...'
It is also contended that unless and until the acceptance is given by the insurance company the claimant is not entitled to claim the amount under the policy. In this case, P.Ws. 1 and 2 were examined on behalf of plaintiff- respondent to prove the practice of the insurance company in accepting the claim on policies with retrospective date viz., the date of intimation given by the parties concerned. Their testimony and the documentary evidence Esx.A-1 to A-6 shows that the insurance company's practice is that after receipt of intimation they used to accept the same with retrospetive effect. There is no controversy whether the acceptance in other cases way given effect to retrospectively or from the date of accident. In this case 15-5-1973 is the date of intimation by the plaintiff-respondent and the defendant-appellant received it on 18-5-1978. According to defendant-appellant it only received after the accident took place and they arc entitled to reject the same and mere forwarding of the letter by itself is not sufficient. It is true that forwarding of the letter by the insured is not sufficient. Unless and until it is accepted by the concerned insurance company, the policy cannot be given effect to. In this case P.W. 3's evidence shows that they have sent the intimation by certificate of posting and in support of them they have relied upon Exs. A-12 and B-l. Both the documents contain the stamp and date as 15-5-1978. In fact no explanation was forthcoming in the chief- examination as to why they adopted the mode of certificate of posting which is generally been doubted and in view of the fact that the said letters were received by the appellant three days later though the appellant's office is situated in the same town. But in the cross-examination of P.W. 3 it has been specifically stated as follows:
'First I sent the letter of transfer of risk to the defendant's office on 15th but we were informed that the concerned Inspector was not available and we were asked to send it by post and so we sent it by post. Because we are asked to send by post, we obtained certificate of posting. Previously for the letters we sent to others, we have not sent them by certificate of posting. Previously we were handing over the letters for the risk to the Inspector concerned. We sent the transfer letters in the envelope Ex.B-1, Ex.B-1 contains the postal stamp of 18-5-1978 as the date of delivery. It also bears the date 15-5-1978. It is not true that we have manipulated the certificate of posting and the postal stamp as on 15-5-1978 after the fire accident.'
Though concerned person who has stated that the Inspector was not available was not examined, after all it is a company; they will send their own man and in the cross-examination only that clarification has been given. It is for the defendant to deny the same and rebut the explanation as hearsay evidence by adducing evidence in that behalf. The aforesaid answers have been elicited from the cross-examination of P.W. 3. This indicates that initially an attempt was made to send the agent to intimate the authorities concerned as the shifting was already over on 14-5-1978 and that the agent was informed that the concerned Inspector was not available and he was asked to send it by post.
5. Generally we can find in the pleadings or in the chief examination as to why the special mode of posting was adopted. But in this case instead of eliciting either in the chief-examination or pleadings, it was elicited in the cross- examination and sufficient explanation was given for adopting the special mode of posting and the non-practice of posting the letters anterior to it especially by certificate of posting, amply supports the case of the respondent- plaintiff and corroborated by the stamps and date containing on both the documents relied upon.
6. None were examined on behalf of the defendant-appellant to show that the concerned Inspector of the insurance company was present on that particular day i.e., 15-5-78 and that the alleged attempt made by the plaintiff-respondent is not correct. The appellant was not prevented to rebut the same with the help of records available and by examining the concerned official and the non- examination of the receiving clerk who is the proper person to state about the visit of the agent of the company is fatal to the case and made this Court to feel what was stated by the plaintiff is correct. Normally in cases of this type after the accident the parties in their anxiety to claim the amount from insurance company, will try to create documents anterior to it with the active connivance of the postal authorities or with the support of other authorities. When there is possibility of creating such material, when the explanation was given in the cross-examination of P.W. 3 for posting the letter by certificate of posting and when no official was examined to rebut the explanation, we feel that the evidence may go in advantage of the plaintiff-respondent's uncontroverted fact that the documents were sent by certificate of posting,
7. Whenever an intimation is given about the transfer of risk the attempt made in that regard and the acceptance as stipulated in Clause 8 alone has to be taken into consideration. But in this case believing the version of P.W. 3 that they made an attempt to approach the authorities with regard to transfer of risk and had it been received on that day without any protest as stated, definitely they would have acquired the benefit of coverage of policy with effect from 15-5-1978 as was done in the case of other companies and as supported by the evidence of P.Ws. 1, 2 and 3 and Exs.A-1 to A-6. It is on that short point that this Bench is of the view that the conclusion arrived by the lower Court on Issue No. 1 that the plaintiff-respondents are entitled for the amount, is correct, reasonable, and does not warrant any interference by the High Court.
8. Accordingly, the appeal is dismissed. No order as to costs.