{"id":7175,"date":"1997-03-21T00:00:00","date_gmt":"1997-03-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/national-insurance-co-ltd-vs-sujir-ganesh-nayak-co-anr-on-21-march-1997"},"modified":"2016-12-18T13:00:46","modified_gmt":"2016-12-18T07:30:46","slug":"national-insurance-co-ltd-vs-sujir-ganesh-nayak-co-anr-on-21-march-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/national-insurance-co-ltd-vs-sujir-ganesh-nayak-co-anr-on-21-march-1997","title":{"rendered":"National Insurance Co. Ltd vs Sujir Ganesh Nayak & Co. & Anr on 21 March, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
National Insurance Co. Ltd vs Sujir Ganesh Nayak & Co. & Anr on 21 March, 1997<\/div>\n
Author: Ahmadi<\/div>\n
Bench: K.S. Paripoornan, Sujata V. Manohar<\/div>\n
           PETITIONER:\nNATIONAL INSURANCE CO. LTD.\n\n\tVs.\n\nRESPONDENT:\nSUJIR GANESH NAYAK & CO. & ANR.\n\nDATE OF JUDGMENT:\t21\/03\/1997\n\nBENCH:\nK.S. PARIPOORNAN, SUJATA V. MANOHAR\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t       J D G M E N T
\nAHMADI, CJI:\n<\/p>\n
     Special Leave granted.\n<\/p>\n
     The respondent  No.1 Sujir\t Ganesh Nayak & Company is a
\nregistered  partnership\t with  its  head  office  at  Quilon
\ncarrying on  business in import and export of Cashew. It has
\nfour  factories\t  at  Kunnikode,  Mulavana,  perumpuzha\t and
\nAyathil for  processing cashew. The respondent No.1 obtained
\ntwo fire  policies from\t the   appellant  Insurance  Company
\ndated 5.1.1976\tand 2.5.1977  both for\ta period  of  twelve
\nmonths, and  for  the  amount  of  Rs.\t6,00,000\/-  and\t Rs.
\n1,20,000\/- respectively.  Both the  policies had  a Riot and
\nstrike Endorsement to the following effect:\n<\/p>\n
     “Riot   &\t Strike\t  Endorsement-In
\n     consideration of the payment of the
\n     sum of  Rs…. additional\tpremium,
\n     it is  hereby agreed  and\tdeclared
\n     that  notwithstanding  anything  in
\n     the written policy contained to the
\n     contrary the  insurance  under  the
\n     policy shall  extend to  cover Riot
\n     and strike\t damage\t which\tfor  the
\n     purpose of\t this endorsement  shall
\n     mean (subject always to the special
\n     conditions hereinafter contained).
\n     Loss of  or damage\t to the property
\n     insured directly caused by:-\n<\/p><\/blockquote>\n
     1.\t  The act  of any  person taking
\n     art together  with\t others\t on  any
\n     disturbance  of  the  public  peace
\n     (whether  in   connection\twith   a
\n     strike  or\t lock-out  or  not)  not
\n     being an  occurrence  mentioned  in
\n     condition\t 6    of   the\t special
\n     condition thereof.<\/p><\/blockquote>\n
     2.\t  The  action  of  any\tlawfully
\n     constituted      authority\t      in
\n     suppressing   or\t attempting   to
\n     suppress any such disturbance or in
\n     minimising the  consequences of any
\n     such disturbances.\n<\/p><\/blockquote>\n
     3.\t  The willful act of any striker
\n     or\t locked\t  out  worker\tdone  in
\n     furtherance  of   a  strike  or  in
\n     resistance to a lock-out.\n<\/p><\/blockquote>\n
     4.\t  The  action  of  any\tlawfully
\n     constituted authority in preventing
\n     or attempting  to prevent\tany such
\n     act   or\t in    minimising    the
\n     consequences of any such act.”<\/p><\/blockquote>\n
     The Special  condition No.5  (i) (b)  which is relevant
\nfor the determination of the appellant’s case is as under:\n<\/p>\n
\t  “SPECIAL CONDITIONS
\n     For   the\t  purposes    of    this
\n     endorsement but not otherwise there
\n     shall  be\t substituted   for   the
\n     respectively numbered  Condition of
\n     the policy the following:-\n<\/p><\/blockquote>\n
     CONDITION 5.\n<\/p><\/blockquote>\n
     (i)  This insurance does not  cover
\n     :-\n<\/p><\/blockquote>\n
     (a)       ...\t ...\t   ...\n     (b)  Loss or  damage resulting from\n     total or  partial cessation of work\n     or the retarding or interruption or\n     cessation\t of   any   process   or\n     operation.\n     (c)       ...\t ...\t   ...\n     (d)       ...\t ...\t   ...\n     (e)       ...\t ...\t   ...\n<\/pre>\n
     The workers  of the respondent No.1 raised a demand for
\nhike in\t wages during  the period there was no work and this
\ndemand led  to a  strike. The  matter was  taken up  by\t the
\nDistrict Labour\t officer for conciliation and was thereafter
\ndealt with  by the  Labour Commissioner\t as well  as by\t the
\nMinster\t for   Labour.\tThe   striking\tworkers\t  physically
\nobstructed the\tmovement  of  goods  .\tBy  a  letter  dated
\n28.4.1977, the\trespondent No.1\t informed the appellant that
\nthe staff  members and\tlabour in its factories have gone on
\nstrike from  26.3.1977 and  that the  striking workers\thave
\nrestricted the\tmovement of  the goods\tlying in the baskets
\nare exposed  to the  risk of  deterioration and damage. By a
\nletter dated  10.5.1977, the  appellant communicated to\t the
\nrespondent No.1\t that the  loss sustained  by the respondent
\nNo.1 was not covered by the policy. The respondent No.1 by a
\nletter dated  17.8.1977 asked  the appellant  for an advance
\nPayment of  Rs.\t 4,00,000\/-  and  by  another  letter  dated
\n25.8.1977 asked\t for payment  of Rs.  4,28,827.01p.  By\t the
\nletter dated 22.9.1977, appellant reiterated that in view of
\ncondition 5(i)(b)  of the  Riot and  strike Endorsement, the
\nInsurance Company  had no liability for the loss incurred by
\nthe respondent\tNo.1. On  25.10.1978,  the  respondent\tNo.1
\nserved a  legal notice.\t The suit  for recovery of the claim
\nwas filed on 2.6.1980.<\/p><\/blockquote>\n
     The appellants  contested the  suit inter\talia on\t the
\nground that  the suit was barred by limitation as well as by
\ncondition No.  19 of  the policy  and on the ground that the
\nclaim made  by the  respondent No.1  was not  covered by the
\npolicy. Condition  19 of  the policy which was set up by way
\nof defence runs as under:\n<\/p>\n
     “Condition\t  No. 19  – In\tno  case
\n     whatever  shall   the  company   be
\n     liable for any loss or damage after
\n     the expiration  of 12  months  from
\n     the happening of loss or the damage
\n     unless the\t claim is the subject of
\n     pending action or arbitration.”<\/p><\/blockquote>\n
     On behalf of the respondent No.1, it was contended that
\nCondition No.  19 was  hit by section 28 of the contract act
\nInasmuch as  it seeks to shorten the time within which legal
\naction can  be commenced from that provided under the law of
\nlimitation. Further,  the respondent  No. 1  reiterated that
\nthe claim  was covered by the two policies. The Trial Court,
\nvide its  judgment dated  30th\tJune,  1986,  observed\tthat
\ncondition No.  19 was  not hit by section 28 of the contract
\nAct and\t further that  the  suit  was  otherwise  barred  by
\nlimitation as  the claim  was repudiated by the letter dated
\n10.5.1977 and  the suit\t filed on 2.6.1980 was after a lapse
\nof more than three years from the date of such repudiation .
\nThe Trial  Court also  found that the damage was not covered
\nby the\tInsurance Policy  in view  of the  special Condition
\n5(i)(b) of  the Riot  and Strike Endorsement. In appeal, the
\nHigh Court  allowed the claim holding that the condition No.
\n19 could  not limit  the period during which the suit was to
\nbe filed   and\t that it simply required the respondent No.1
\nto make\t its claim known within the period of 12 months from
\nthe happening  of the  loss or\tdamage. It also reversed the
\nfinding of the Trial Court that the claim was not covered by
\nthe two\t policies. so  far as  limitation is  concerned, the
\nHigh Court  further observed that the letter dated 10.5.1977
\ncould not  be read as a letter of repudiation of claim as by
\nthen no\t claim whatsoever  was preferred  by the  respondent
\nNo.1 and  further that\tin any\tcase the  last date of three
\nyears from 10.5.1977 fell within the summer vacation and the
\nsuit filed  on 2.6.1980 on reopening of the Court was within
\nlimitation.\n<\/p>\n
     In the  present appeal,  the appellant  contended\tthat
\ncondition No.  19 extinguishes\tthe right  of the assured as
\nthe suit  was not  filed within\t 12 months from the day when
\nthe loss or damage had occurred. It is further reiterated in
\nthe appeal  that special  Condition 5(i)(b)  of the Riot and
\nStrike Endorsement excludes the claim of the respondent No.1
\nfrom the scope of two Insurance Policies.\n<\/p>\n
     Section 28 of the contract Act may be quoted now before
\ngoing into further discussion :\n<\/p>\n
     “Section 28.   Every agreement,  by
\n     which   any    party   thereto   is
\n     restricted\t    absolutely\t    from
\n     enforcing his  rights under  or  in
\n     respect of\t any  contract,\t by  the
\n     usual  legal   proceedings\t in  the
\n     ordinary tribunals, or which limits
\n     the time  within which  he may thus
\n     enforce his rights, is void to that
\n     extent.”<\/p><\/blockquote>\n
     On a  plain  reading  of  the  relevant  part  of\tthis
\nprovision it  seems clear  that if  the agreement  seeks  to
\nshorten the  time from that prescribed by law, it would fall
\nwithin the  mischief of\t this  provision.  Before  the\tHigh
\nCourt, the  appellant relied on a full Bench decision of the
\nPunjab High Court in Pearl Insurance Company V. Atmaram (AIR
\n1960 Punjab 236) Where in it was held that such a clause did
\nnot limit  the time  within which  the insured shall enforce
\nhis rights  but only  limited the  period during  which\t the
\ncontract will  remain alive  and hence such a clause was not
\nhit by\tsection 28  of the contract Act. The respondent No.1
\non the\tother hand  placed  reliance  on  Secretary,  Taluka
\nAgricultural Produce  Cooperative Marketing  Society Ltd. V.
\nNew India Assurance Company Limited(1989 ACJ 26) wherein the
\nHigh Court  of Karnataka  held that the period of limitation
\ndespite such a Condition of twelve months was three Years as
\nprovided for  in Article  44 of the Limitation Act. The High
\nCourt  followed\t  the  decision\t  of  this   court  in\tFood
\nCorporation of\tIndia V.  New India  Assurance Co.<\/a> (19994) 3
\nsec 324,  wherein the  real nature of the restriction placed
\nby section  28 was  examined and the effect of such a clause
\nin reducing  the period of limitation was considered. Before
\nus, two other decisions cited were, The Vulcan Insurance Co.
\nLtd. V. Maharaj Singh and Another,<\/a> (1976) 1 SCC 943; and The
\nBaroda spinning\t & Weaving  Co.\t Ltd.  V.  The\tSatyanarayan
\nMarine &  Fire\tInsurance  Co.\tLtd.,  1913(15)\t Bombay\t Law
\nReporter 948.  In the  letter case,  the Clause\t in question
\nread thus:\n<\/p>\n
     “12. Forfeiture  — If the claim be
\n     made and  rejected and an action or
\n     suit be  not commenced within three
\n     months  after  such  refection  all
\n     benefit under  this policy shall be
\n     forfeited.”<\/p><\/blockquote>\n
     The clause meant nothing more than this, namely, if the
\nsuit is\t not filed  within three  months of rejection of the
\nclaim, the rights under policy will be forfeited. The Bombay
\nHigh Court following certain English decisions held that the
\ncontract Act  as the  Clause did not restrict the limitation
\nbut merely extinguished the right.\n<\/p>\n
     In Baroda\tSpinning &  Weaving Co. Ltd. (supra), in the
\nHigh Court  of Bombay  the five\t insurance policies provided
\nthat ‘if  the claim  be made and rejected and action or suit
\ncannot be commenced within three months after such refection
\nall benefits  under the\t policy shall  be forfeited’. On the
\nsuit being  filed three\t months after  the rejection  of the
\nclaim the  High Court  held that  the said condition was not
\nwithin the  scope of  section 28  of the  contract Act since
\nthat section  spoke about  enforcement of a subsisting right
\nand not a right\t which stood extinguished on the repudiation
\nof the claim and the action not having been commenced within
\na period of three months. In taking this view the High Court
\nreferred to an earlier decision in Hirabhai v. Manufacturers
\nLife Insurance\tCompany (1912)\t14  B.L.R  741\twherein\t the
\nclause was:\n<\/p>\n
     “No suit  shall be\t brought against
\n     the company  in connection with the
\n     said policy  later\t than  one  year
\n     after the\ttime when  the cause  of
\n     action accrues.”<\/p><\/blockquote>\n
     The view  taken was  that the  clause was\tintended  to
\nconvey that  if no  suit was  instituted within\t a year than
\nneither party  shall be\t regarded as  having any  subsisting
\nright  against\tthe  other  to\tenforce\t the  contract.\t The
\ncorrectness of this view was doubted as it was felt that the
\nclause did  not operate\t as a  release of  forfeiture of the
\nrights of the assured but was intended to limit the time for
\nfiling of  the suit  and fell within the mischief of section
\n28 of  the contract Act and was therefore void. Batchelor J.
\nwho was party to the decision in Hirabhai’s case also agreed
\nthat the  view taken  in that case was difficult to sustain.
\nIt would  seem from  these two\tdecisions  that\t unless\t the
\nlanguage of  the clause\t in a contract is susceptible of the
\nmeaning that  it releases  or forfeits\tthe  rights  on\t the
\nexpiry of  the stipulated  period the same would fall within
\nthe net\t of section  28 if  the clause\tmerely restricts the
\nperiod within which action should be commenced.\n<\/p>\n
     However, strong  reliance was placed on the decision of
\nthis Court  in Vulcan Insurance Case (supra) in which clause
\n19 of  the policy  was verbatim\t the same  as in the present
\ncase.  Relying\t on  that  clause  this\t Court\tobserved  in
\nparagraph 23 as under:\n<\/p>\n
     “We do  not propose,  as it  is not
\n     necessary, to  decide  whether  the
\n     action commenced by respondent No.1
\n     under section 20 of the Act for the
\n     filling\tof    the    arbitration
\n     agreement and  for\t appointment  of
\n     the arbitration  agreement and  for
\n     appointment  of   arbitrators   was
\n     barred  under   clause  19\t of  the
\n     policy. It has been repeatedly held
\n     that such\ta clause  is not  hit by
\n     section 28\t of the contract Act and
\n     is valid”.<\/p><\/blockquote>\n
     Counsel  for   the\t respondent   contended\t  that\t the
\nobservation was clearly in the nature of an obiter dicta and
\ndid not\t lay down  the correct law. That was a case in which
\nrespondent No.1\t had entered into a contract with respondent
\nNo.2 for  taking advances  of the  security of\tthe  factory
\nPremises, plant,  machinery, stock-in-trade, etc. A mortgage
\nwas executed  by him  in favour\t of the respondent-bank. The
\nbank insured  the mortgage properties from time to time with
\nthe appellant-company  under different\tinsurance  policies,
\nthe terms  whereof being  same .  Afire\t broke\tout  in\t the
\nfactory premises and the insurance company was duly informed
\n. The  surveyor estimated  the loss  at Rs.  4620\/-  without
\nprejudice to  the terms and conditions of the policy . After
\nsome   correspondence,\t the   appellant-insurance   company
\nrepudiated  the\t  claim\t under\tthe  terms  of\tthe  policy.
\nThereupon respondent  No.1 wrote  to the  insurance  company
\nthat since  it had  repudiated the claim ,  a difference had
\narisen between\tthe parties  and appointed a sole arbitrator
\nto decide the dispute. At the same time it mentioned that if
\nthe insurance  company desired\tto nominate an arbitrator it
\nmay do\tso .  The insurance  company however  took the stand
\nthat since  it had  repudiated the  claim,  the\t arbitration
\nclause\tin  the\t policy\t was  rendered\tinoperative  and  no
\narbitration proceedings could legally be initiated. This led
\nto the\trespondent No.1\t filing an application under section
\n20  of\tthe  Arbitration  Act,\t1940.  The  application\t was
\ncontested. The\ttrial court  held that on the repudiation of
\nthe claim under clause 13, the dispute fell within the scope
\nof the arbitration clause 18 but was barred by limitation in
\nview of clause 19. on appeal, the Delhi High Court held that
\nclause 18  was restricted  in its  scope and did not attract
\nall kinds  of disputes\tand differences\t yet reference to he
\narbitration is not ousted and the arbitration clause remains
\noperative unless barred by clause 19 and in the instant case
\nit was\tnot barred  since respondent  No.1 had commenced the
\narbitration process which was pending when the time ran out.
\nThe High  Court, therefore,  reversed the  trial court order
\nand remanded  the case\tfor appointment\t of arbitrators. The
\ninsurance company  carried the\tmatter to  this court. While
\ndealing\t with\tthe  submissions  at  the  Bar,\t this  court
\nparagraph 8  of the  judgment observed\tthat only  one point
\nneed be\t decided, namely, whether in view of the repudiation
\nof the liability under clause 13, a dispute was raised which
\ncould be  referred  to\tarbitration  ?\tIt  also  said\tthat
\nincidentally reference will be made to the other question as
\nto whether  the proceedings  were barred by clause 19 of the
\npolicy? This  court answered the first point in the negative
\nand hence  no decision was necessary on the second point but
\nthe court  answered it only incidentally. This is also clear
\nfrom the observation extracted earlier.\n<\/p>\n
     The next  case we\twould like   to\t notice is  the Food
\nCorporation of India (supra); the abridged factual matrix is
\nthat it,  as principal, had appointed millers for procuring,
\nhulling and  supplying rice on certain conditions. On behalf
\nof these  millers the  respondent insurance company executed
\nfidelity Insurance  Guarantee in  favour  of  the  appellant
\nhereunder the  former undertook\t to indemnify the latter for
\nany loss  suffered by  the appellant  by reason of branch of
\nagreement.  Under  the\tterms  of  the\tguarantee  when\t the
\nappellant found\t that it  had suffered\tlosses on account of
\nbreach of terms and conditions of their respective contracts
\nby the\tmillers it  made demands on the insurance company to
\nindemnify it. These demands were made well before the expiry
\nof six\tmonths from  the date of termination of the contract
\nwith the  concerned miller.  The insurance  company did\t not
\nsatisfy the  demands which  led the appellants to file suits
\nto recover the losses. Those suits were decreed in favour of
\nthe  appellants\t  against  the\t respondents  including\t the
\ninsurance companies.  The insurance  companies filed appeals
\nin the\tHigh Court which were allowed holding that the terms
\nof the\tguarantee concerned in each case did not entitle the
\nappellant to  sue the  insurance companies after ‘six month’
\nperiod from  the  date\tof  termination\t of  the  respective
\ncontracts with\tthe rice  millers. The\tmatter was therefore
\ncarried in appeal to this Court.\n<\/p>\n
     Under the\tfidelity Insurance  Guarantee the  concerned
\ninsurance company had undertaking to make good the loss upto
\nthe specified limit when claimed by the appellant, of course
\nsubject to  the restriction “that the Corporation shall have
\nno rights  under this  bond after the expiry of (period) six
\nmonths from  the date  of termination of the contract, i.e.,
\nthe contract with the rice miller. On a plan reading of this
\nrestriction clause,  it\t is  clear  that  if  the  appellant
\ndesired to  enforce its rights under the contract, if should
\ndo so within ‘six months’ of the termination of the contract
\nand if it failed to do so its right under the contract would
\nextinguish. It\twas therefore,\timperative for the appellant
\nto lodge  its claim  with the  insurance company within\t the
\nperiod of  six months to assert its rights failing which the
\nright would  stand forfeited.  This Court,  therefore,\theld
\nthat the suits were barred under the restriction adverted to
\nsince they  where admittedly  filed after  the rights  stood
\nextinguished on the expiry of six months after the insurance
\ncompany repudiated the demands.\n<\/p>\n
     Sahai, J.\twho wrote a separate but concurring judgment
\nextracted the  clause of  the Fidelity\tInsurance  Guarantee
\n(which\twe  have  extracted  earlier)  and  then  posed\t the
\nquestion ‘what\tdoes it\t mean? What is the impact of Section
\n28 of the Contract act on such clause? pointing out the said
\nsection 28 was a departure from the English law (there is no
\nsuch  statutory\t bar  in  English  law)\t the  learned  Judge
\nobservation that:\n<\/p>\n
     “Even  though  the\t phraseology  of
\n     section 28\t is explicit and strikes
\n     at the  very root\tby declaring any
\n     agreement\tcurtailing   the  normal
\n     statutory period  of limitation  to
\n     be\t void\tthe  courts   have  been
\n     influended by the distinction drawn
\n     by English\t Courts in extinction of
\n     right by  agreement and curtailment
\n     of limitation”.<\/p><\/blockquote>\n
     Referring to  the language\t of the various terms of the
\nagreement, the learned judge holds in paragraph 8 thus:\n<\/p>\n
     “From the agreement i is clear that
\n     it\t does  not  contain  any  clause
\n     which could  be said to be contrary
\n     to Section\t 28 of\tthe Contract Act
\n     nor it  impose  any  restriction  t
\n     file a  suit within six months from
\n     he date  of  determination\t of  the
\n     contract as  claimed by the company
\n     and held  by the  High Court.  What
\n     was agreed\t was that  the appellant
\n     would not have any right under this
\n     bond after the expiry of six months
\n     from the date of the termination of
\n     the  contract.   This   cannot   be
\n     construed as  curtailing the normal
\n     period of\tlimitation provided  for
\n     filing  of\t  the  suit.  If  it  is
\n     construed so it may run the risk of
\n     being violative  of Section  28  of
\n     the  Contract  Act.  It  only  puts
\n     embargo  on   the\tright\tof   the
\n     appellant to  make its  claim known
\n     not later\tof contract.  It  is  in
\n     keeping with the principle with has
\n     been explained in English decisions
\n     and  by  our  own\tcourt  that  the
\n     insurance companies  should not  be
\n     kept in dark for long and they must
\n     be apprised  of  their  liabilities
\n     immediately both  for facility  and
\n     certainty.\t   The\t   High\t   Court
\n     erroneously construed  it as giving
\n     up the  right of  enforceability of
\n     its claim after six months.”<\/p><\/blockquote>\n
     From the  case law referred to above the legal position
\nthat emerges  is that  an agreement which in effect seeks to
\ncurtail the  period of\tlimitation and\tprescribes a shorter
\nperiod\tthan  that  prescribed\tby  law\t would\tbe  void  as
\noffending section  28 of  the Contract\tAct. That is because
\nsuch a\tan agreement  would seek  to restrict the party from
\nenforcing his  right in\t Court after  the period  prescribed
\nunder  the   agreement\texpires\t  even\tthough\t the  period
\nprescribed by  law for\tthe enforcement of his right has yet
\nnot expired. But there could be agreements which do not seek
\nto curtail  the time  for enforcement of the right but which
\nprovides for the forfeiture or waiver of the right itself if
\nno action  is commenced with in the period stipulated by the
\nagreement. Such\t a clause  in the  agreement would  not fall
\nwithin the  mischief of\t section 28  of the Contract Act. To
\nput it\tdifferently, curtailment of the period of limitation
\nis not\tpermissible in\tview of Section 28 but extinction of
\nthe right itself unless exercised within a specified time is
\npermissible and\t ca be\tenforced. If the policy of insurance
\nprovides that  if a claim is made and rejected and no action
\nis commenced  within the  time stated  in  the\tpolicy,\t the
\nbenefits flowing  from the  policy shall  stand extinguished
\nand any\t subsequent action  would be  time  barred.  Such  a
\nclause would  fall outside  the scope  of Section  28 of the
\nContract Act.  This, in Brief, seems to be the settled legal
\nposition. We may now apply it to the facts of this case.\n<\/p>\n
     Now let  us first notice the view expressed by the High
\nCourt in the impugned judgment. The finding on this issue is
\navailable in para 12 of the judgment which runs as under:\n<\/p>\n
     “In the  instant case, clause 19 of
\n     the  contract   of\t insurance  only
\n     states  that   the\t insured   shall
\n     enforce  his   claim   before   the
\n     expiration of  twelve months of the
\n     date of happening of the damage. It
\n     does  not\texpressly  prohibit  the
\n     insured from  filing a  suit beyond
\n     that period.  Under the  Limitation
\n     Act, there\t is a  specific\t article
\n     for filing\t a suit\t for damages due
\n     under the\tcontract  of  insurance.
\n     Any  clause   in  the  contract  of
\n     insurance curtailing  the period of
\n     Limitation will  be hit  by Section
\n     28 of  the contract of insurance is
\n     construed in  such a way, it limits
\n     the period\t of limitation to twelve
\n     or damage\tand it\twould  seriously
\n     prejudice\t the   rights\tof   the
\n     insured. The  insurer can very well
\n     defeat the\t claim of the insured by
\n     rejecting\tthe   claim  after   the
\n     period of\t12 months  from the date
\n     of\t  happening    of   the\t  loss.”<\/p><\/blockquote>\n
     The High  Court started with the analysis as to whether
\nthe  clause   restricts\t the   period\tof   limitation\t  or
\nextinguishes the  right but  ultimately\t rest its conclusion
\non the\tfinding that the contract is unconscionable-a ground
\nwhich is  not contended\t for by\t the parties. The high Court
\nfurther proceeds to say:\n<\/p>\n
     “Under  Article   44(b)\t of  the
\n     Limitation\t Act,\tthe  period   of
\n     limitation runs  from the\tdate  of
\n     rejection of the claim. Thereafter,
\n     it is  clear that\tclause 19 of the
\n     contract\t of    insurance    only
\n     prescribes the  period during which
\n     the claim is to be preferred by the
\n     insured   before\t the   insurance
\n     company and  it does  not,\t in  any
\n     way,   curtail    the   period   of
\n     limitation\t prescribed   under  the
\n     Limitation Act for filing a suit of
\n     the nature.”<\/p><\/blockquote>\n
     The clause\t before this Court in Food Corporations case
\nextracted hereinbefore\tcan instantly  be compared  with the
\nclause in  the present\tcase. The contract in that case said
\nthat the  right shall  stand extinguished  after six  months
\nfrom the  termination of  the contract. The clause was found
\nvalid because  it did  not proceed  to say  that to keep the
\nright alive  the suit  was also\t required to be filed within
\nsix months. Accordingly, it was interpreted to mean that the
\nright was  required to\tbe asserted  during  hat  period  by
\nmaking a  claim to  the Insurance  Company. It was therefore
\nheld that  the clause  extinguished the right itself and was
\ntherefore not hit by Section 28 of Contract Act. Such clause
\nare generally  found in\t insurance contracts  for the reason
\nthe  undue   delay  in\t preferring  a\tclaim  may  open  up
\npossibilities of  false claims\twhich may  be  difficult  of
\nverification with  reasonable exactitude  since memories may
\nhave faded  by then  and  even\tground\tsituation  may\thave
\nchanged. Lapse\tof time\t in such cases may prove to be quite
\ncostly\tto  the\t insurer  and  therefore  it  would  not  be
\nsurprising that\t the insurer  would insist that if the claim
\nis not\tmade within  a stipulated  period, the\tright itself
\nwould stand  extinguished. Such a clause would not be hit by
\nSection 28 of the Contract.\n<\/p>\n
     Keeping the  above legal distinction in mind we may not
\nconsider the  facts of\tthe present  case. The two insurance
\npolicies were  both for a period of twelve months and bore a
\n‘Riot and  Strike’ endorsement\tconvering damage  caused  by
\nriot and  strike to  the property of the insured. On account
\nof the strike in the unit from 26.3.1977, the production had
\ncome to\t a halt\t and as\t the management\t was not  allowed to
\nremove the goods the unit suffered heavy damage and loss for
\nwhich a\t claim was  made which\tclaim was  rejected  by\t the
\ninsurer. The  insured served  notice and  then filed a suit.
\nOne of\tthe grounds  on which  the suit was contested by the
\ninsurance company was based on the language of clause 19 and
\n12 extracted earlier.\n<\/p>\n
     Clause 19\tin terms  said that  in no  case  would\t the
\ninsurer be  liable for\tany  loss  or  a  damage  after\t the
\nexpiration of  twelve months  from  the happening of loss or
\ndamage unless  the claim is subject of any pending action or
\narbitration. Here the claim was not subject to any action or
\narbitration proceedings.  The clause  says that if the claim
\nis not\tpressed within\ttwelve months  from the happening of
\nany loss  of damage, the insurance company shall cease to be
\nliable. There  is not dispute that no claim was made nor was
\nany arbitration proceeding pending during the said period of
\ntwelve months.\tThe  clause  therefore\thas  the  effect  of
\nextinguishing  the   right  itself   and  consequently\t the
\nliability also.\t Notice the  facts of  the present case. The
\ninsurance company  was informed\t about\tthe  strike  by\t the
\nletter of  28.4.1977  and  by  letter  dated  1.5.1977.\t The
\ninsured was  informed that  under  the\tpolicy\tit  had\t not
\nliability. this\t was reiterated\t by letter  dated 22.9.1977.
\nEven so\t more than  twelve months  after on  25.10.1977\t the
\nnotice of  demand was  issued and  the\tsuit  was  filed  on
\n2.6.1980. It  is precisely  to\tavoid  such  delays  and  to
\ndiscourage such\t belated claims that such insurance policies
\ncontain a clause like clause 19. That is for the reason that
\nif the\tclaims are  preferred with  promptitude they  can be
\neasily verified\t and settled  but if  it is  the  other\t way
\nround, we  do not think it would be possible for the insurer
\nto verify  the same  since evidence  may not  be  fully\t and
\ncompletely  available  and  memories  may  have\t faded.\t The
\nforfeiture clause 12 also provides that if the claim is made
\nbut rejected,  an action  or suit  must be  commenced within
\nthree  months\tafter  such  rejection;\t failing  which\t all
\nbenefits under\tthe policy would stand forfeited. So, looked
\nat from\t any point  of view,  the suit\tappears to  be filed
\nafter the  right stood\textinguished. That is the reason why
\nin Volcan Insurance case (supra) while interpreting a clause
\ncouched in  similar terms  this court  said: ”\tIt has\tbeen
\nseparately held\t that such a clause is not his by Section 28
\nof the\tContract Act.”\tEven if the observations made are in
\nthe nature  of obiter  dicta we\t think\tthey  proceed  on  a
\ncorrect reading of the clause.\n<\/p>\n
     For the  foregoing reasons,  we allow  this appeal, set
\naside the  decree, order  and judgments\t of the courts below
\nand direct that the suit shall stand dismissed with no order
\nas to costs throughout.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India National Insurance Co. Ltd vs Sujir Ganesh Nayak & Co. & Anr on 21 March, 1997 Author: Ahmadi Bench: K.S. Paripoornan, Sujata V. Manohar PETITIONER: NATIONAL INSURANCE CO. LTD. Vs. RESPONDENT: SUJIR GANESH NAYAK & CO. & ANR. DATE OF JUDGMENT: 21\/03\/1997 BENCH: K.S. PARIPOORNAN, SUJATA V. MANOHAR ACT: HEADNOTE: JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-7175","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNational Insurance Co. 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