1. ' The plaintiffs had their registered office at Dacca where they had established their factory for processing and preparing Pineapple Slices. On 23-10-1971 the defendants insured a consignment of 950 cases of Pineapple Slices covering the risk including war risk from Dacca to Karachi via Chittagong. The cover note dated 23-10-1971 covering all these risks was issued by the defendant who accepted the premium of Rs, 3,132.30 under a receipt dated 22-11-1971. The plaintiffs shipped the consignment of 950 cases on Board Flat "Noor" towed by ship "Ahmad" for Chittagong and this information was conveyed to the defendants by the plaintiffs. The goods did not reach Karachi and according to the plaintiffs since war and warlike operations started in East Pakistan from November, 1971 the consignment was lost due to enemy action. The plaintiffs served a notice on the defendants on 28-12-1971 unconditionally abandoning the consignment and also lodged a claim for Rs, 1,26,000 but the defendant failed to compensate the plaintiffs. The defendants in their written statement have pleaded that the plaintiffs have no right to sue as their registered office is in Dacca and that they have no insurable interest. It has been pleaded that the defendants had issued an open cover note insuring specified goods in transit on steamer or power vessel from Dacca to Karachi via Chittagong subject to the warranty that the interest insured was shipped under deck and on condition that information of shipment be given by the shippers to the insurance company.
2. It has further been pleaded that war risk was not covered by the defendants. While denying that the goods were shipped on board Flat "Noor" alternatively it has been pleaded that the transit of consignment on board Flat "Noor" amounted to a breach of warranty as it was not shipped under deck.
3. ' While admitting that war between India and Pakistan broke out, the time and date of commencement of hostilities has been denied. The defendants have also denied that the goods insured under the cover note were on their way to Chittagong from Dacca on Flat "Noor". The defendants have further stated that they did not issue the insurance policy because no notice of shipment as required under the terms of the cover note was given and, therefore, the insurance did not commence. The defendants have denied the claim. On these pleadings the following issues were framed :
(1) Are the plaintiffs an "enemy" and not competent to sue?
(2) Had the plaintiffs an insurable interest in the consignment in suit? If not, what is its effect?
(3) Was the consignment in suit actually shipped on board flat "Noor" as alleged? If no, what is its effect.
(4) Was the consignment in suit lost due to war between India and Pakistan?
(5) Was the risk of war covered under the cover note in suit?
(6) Was it a warranty of the insurance that the consignment should be shipped under deck? Was the shipment made on deck of fiat "Noor"? If so did it amount to breach of that warranty? If so, what is its effect?
(7) Was notice of shipment of the consignment in suit given to the defendants in accordance with the terms and conditions of the cover note? If not, what is its effect?
(8) Did plaintiffs give any notice of abandonment as alleged? If no, what is its effect?
(9) What amount of loss, if any, has the plaintiffs suffered?
(10) To what relief, if any, are the plaintiffs entitled?
4. Issue No, 1. -Not pressed by the defendants. In fact the plaintiffs have produced a certificate issued by the Controller of Capital Issues whereby the plaintiffs' registered office was permitted to be shifted from Dacca to Karachi.
5. Issue No, 2. -Not pressed by the defendants.
6. Issue No, 3. -Both the parties have examined one witness each who have produced several documents. The plaintiffs witness has stated that by telegram dated 22/24-11-1971 the plaintiffs' the then head office at Dacca had informed its Karachi office that 950 cases had been shipped from Dacca and ship's name was to be cabled after the goods were shipped from Chittagong. A letter dated 18-11-1971 has also been produced to show that 950 cases containing Pineapple slices weighing 30 ounces each were loaded on Flat "Noor" to be towed by ship "Ahmad". Again similar information was conveyed by the plaintiffs to the defendants on 26-11-1971 in which they have stated that insurance risk must be covered for the flat which would be towed to Chittagong by "Ahmad". The same was again reiterated in the letter of the plaintiffs dated 6-12-1971 in which they had notified that premium of Rs, 3,122.30 had been paid against defendant's receipt dated 22-11- 1971 and requested for issuance of the policy. This letter was acknowledged by the defendants by their letter dated 12th December, 1971. Again on 14th December, the defendants addressed a letter to the plaintiffs stating that after discussion with them they were satisfied that the consignment had been loaded on Flat "Noor" to be towed by ship "Ahmad" to Chittagong for onward shipment to Karachi. They further stated that these facts have been confirmed by their Dacca Branch. There is no other evidence on record to show that the goods were not shipped. In view of these admitted facts my finding on this Issue is in the affirmative.
7. Issue No, 4. -The goods were shipped in a Flat from Dacca to Chittagong for onward shipment to Karachi. The parties have not led any evidence to show what happened to this consignment. The only evidence is the statement of the plaintiffs' witness and the documents produced by him to the effect that the goods were not received by them and that they have been claim from the defendants. From the documents that have been produced it is fully established that the goods had been loaded at Dacca for Chittagong on or before 18th November, 1971. The defendants also seem to have verified this fact from their Dacca office which was confirmed by them. What happened to the consignment during this transit is not known to anybody. The conditions in East Pakistan during the later part of November and December, 1971 are known to everybody. These incidents were of such historical importance that they are found in the official documents like White Paper, other historical documents and writings of the authors and judicial notice of such facts can be taken. During this period warlike operations were launched against Pakistan. The Indian troops and their accomplices had been ravaging through the then East Pakistan and all this culminated into a fulfiedged war. Those were the days of serious rioting, civil commotion, mutiny and attack by foreign enemy agents. Section 57 (ii) of Evidence Act provides that the Court shall take judicial notice of the commencement, continuance and termination of hostilities between Government of Pakistan and any other state or body of persons. In all such matters and cases where the Court takes judicial notice of certain facts the Court may refer to appropriate books or documents of reference. In this regard reference can be made to the East Pakistan Tragedy by L.
8. Rushbrook Williams, "Pakistans Crisis in Leadership", by Fazal Mauqeem Khan. "The last days of United Pakistan" by G. W. Chowdhry, "Blood & Tears" by Qutubuddin Aziz, "Witness to Surrender" by Siddiq Salik and Kessings Research Report 9 "Pakistan from 1947 to Creation of Bangladesh". The White Paper has set out in detail the background of the developments which culminated in armed rebellion. From the description given in these books it is clear that India had attacked East Pakistan in the night of 21/22nd November, 1971. In these circumstances judicial notice of facts can be taken that war in East Pakistan started on 21st November, 1971 and ended on 16th December, 1971.
9. ' Mr. Ashraf the learned counsel for the defendant has contended that there should be a positive proof of loss otherwise it is possible that the plaintiff might have obtained these goods from the Flat and sold them away to any third party. The period from mid-November, to December, 1971 has been the time when Pakistanis were trying to run away from East Pakistan, hardly there would have been any chance to sell the property in such turbulent times. The defendants have not led any evidence to show that these properties were sold away or appropriated by the plaintiffs. The Plaintiffs have claimed that the goods were lost and did not reach Karachi. As the defendants had insured the goods against all risks including War risk finding on this issue may not be of any material bearing if it is proved that the goods had been lost. It has been proved that goods have lost after they were shipped from Dacca. The plaintiffs' witness has testified that after the goods were shipped for Chittagong information was received of its arrival there or of shipment from Chittagong to Karachi. In the facts and circumstances of the case I hold that the insured goods were lost during transit but it has not been proved that they were lost due to war.
10. Issue No, 5.--In view of Exh. 5/10 where the defendants have charged premium for war risk, the learned counsel for the defendants has not pressed this issue: Issue No, 6.-Mr. Ashraf the learned counsel for the defendants has contended that as the plaintiffs have committed breach of warranty they are not entitled to compensation under the cover note.
11. According to him the plaintiffs have committed breach of various warranties contained in the cover note which included shipment of goods in a steamer or power vessel and failure of the plaintiffs to give notice of shipment. So far the breach of the last warranty is concerned it is covered by issue No, 7 under which it shall be dealt with separately. No doubt the defendants have pleaded that the plaintiffs have committed breach of warranty inasmuch as they did not ship the goods on board a steamer vessel but no specific issue on this point has been raised by the defendants, not even a general issue has been framed with regard to breach of warranty. The defendant's grievances about breach of warranty have been raised in issues Nos. 6 and 7 which clearly relate to the shipment of goods under deck and non-service of notice of shipment.
12. Therefore, under these circumstances it can safely be presumed that objection relating to the shipment of goods on a vessel other than steamer vessel has been waived by the defendants. As the defendants have failed to raise any issue on this question it would not be proper to give any finding on this aspect of the case as its determination depends upon the evidence which has not been produced. In these circumstances it would not be proper to give any finding on a disputed question of fact in respect of which neither an issue has been framed nor any evidence has been led. However with due deference to the arguments of the learned counsel for the defendants on this aspect it may be pointed out that to support his contention the learned counsel has referred to a clause in the cover note which provides as follows :- "In Transit By: Any steamer or power vessel."
13. ' This particular clause to my mind, covers the goods in transit. There are various types of insurance policies and covers which are issued. "In Transit cover" is issued in respect of such goods which are on board the vessel at time of issuing the policy or the cover note. The present cover was issued before shipment covering the voyage from Dacca to Karachi via Chittagong. The defendant had intended to cover the risk in respect of voyage from Dacca to Karachi via Chittagong on payment of premium which was accepted by them. In spite of the fact that the plaintiffs intimated the defendants that the goods were shipped on Flat which was being towed by ship "Ahmad" from Dacca to Chittagong no objection was raised at any stage by the defendants. In fact the premium was accepted by the defendants after this information had been conveyed to them. Now at this late stage the defendants cannot be allowed to say that they are not liable to cover the risk as the goods were shipped on board Flat "Noor" and not on a steamer vessel. The insurer if it thinks fit may waive the breach of any condition. A waiver can be in writing or oral. It can also be spelt out from the conduct of the insurer. Ivamy in General Principles of Insurance Law observed that "the insurers are equally precluded from relying upon the breach where their conduct misleads the assured and induces him to alter his position in the belief that the Policy is valid." If the insurer accepts the premium with actual knowledge of breach it will amount to waiver. In Beasant v. Northern Life Assurance Co. (1), life policy was insured with condition requiring notice and payment of extra premium if the assured joined the militia. The Insurance Co. Received three years ordinary premium with knovledge of assured enlistment and it was held that breach was waived by the insurer. In the present case the defendants were aware of shipment on Flat and accepted the premium without any objection. The objection if any stood waived.
14. ' Taking up the second objection of the learned counsel for the defendants it has been contended by him that as the goods were not shipped on a steamer vessel the question of loading the goods under deck does not arise. The plaintiffs' witness has stated that the Flat had holds which were covered by iron cover. This means that the goods were carried in covered holds. This statement has remained unchallenged and, therefore, my finding is that the plaintiffs have not committed breach of warranty.
15. Issue No, 7. -The defendants have contended that in terms of cover note the plaintiffs were bound to give a notice of shipment and as they have failed to do so breach has been committed. The clause for notice of shipment is as follows :- "Declaration-notice of shipments falling within the scope of this cover are to be made as follows :-
(a) By shipper prior to shipment or as soon as possible thereafter to the under-mentioned branch/agency of the company: The Pioneer Insurance Company the Pakistan Insurance Co. Ltd. 310 Qamar House, M. A. Jinnah Road, Karachi."
16. ' The plaintiffs' witness has stated that be had visited the defendants and showed them the telegram which was sent from their head office at Dacca confirming shipment. Again the plaintiffs intimated these facts to the defendants by their letters of 26th November, 1971 and 6th December, 1971. The defendants got it confirmed from their office at Dacca and after being satisfied of shipment the defendants accepted the premium and confirmed it by their letter dated 14th December, 1971. These documents show that the defendants were not only intimated of the shipment but they had satisfied themselves and verified those facts as well. Mr. Ashraf the learned counsel has contended that the intimation should have been sent prior to shipment. The clause reproduced above clearly stipulates that the notice of shipment by the shipper should be prior to shipment or as soon as possible thereafter. Taking the circumstances that were prevailing during the relevant time it can safely be concluded that the letters written by the plaintiffs were in conformity with this clause. In any event the notice was not required to be in writing and, therefore, the plaintiff who had orally intimated the defendants may constitute sufficient notice of shipment.
17. It is pertinent to note that the defendants had satisfied themselves with the factum of shipment and did not raise this objection at any stage till the claim was made. My finding on this issue is in the affirmative.
18. Issue No, 8.-The learned counsel for the defendants has stated that the question of abandonment would arise if the goods had been loaded on a steamer or a vessel. However, in view of the findings on the forgoing issues I have to consider whether the goods were abandoned or not. The plaintiffs
(1) (1923) 1 W W R 362 had served a notice on the defendants dated 28-12-1971 in which they have clearly and unconditionally abandoned the goods. My finding on the issue is in the affirmative.
19. Issue No, 9.-The plaintiffs have stated that a consignment of 950 cases of Pineapple Slices weighing 39 ounces each was shipped. These goods belonged to the plaintiffs which were produced in their own factory. The plaintiffs have not produced any in voice but have given description of the goods that each case contained two dozen tins and price of one dozen tins was Rs, 66/5 As. At that time. Plaintiffs have stated that plaintiffs used to earn profit at 25% of the value of the goods but they have not claimed any profit and are claiming the costs of the goods which calculated from this rate comes to Rs, 1,25,696.50. This statement of the plaintiffs has gone unchallenged and there is no cross-examination on this aspect of the case. The plaintiffs have thus proved the value of the goods.
20. Issue No, I0.-The learned counsel for the defendants has contended that as the defendants had not issued any Policy the plaintiffs are not entitled to claim any amount. The main contention is that the defendants had issued a cover note but the liability of the defendants was to commence after the policy had been issued by them. This contention does not seem to be correct. It is an admitted position that the defendant had issued an open cover note on 23-10-1971 which covered all risks including leakage and breakage and breakage during voyage from Dacca to Karachi via Chittagong in respect of shipments made from midnight 23-10-1971 until midnight 22-10-1972. The policy/certificate was to be issued on receipt of notice of shipment and the insured amount was fixed at Rs, 1,36,000. It is not a condition of the cover note that it will not be operative till the policy is issued. Cover note is not any strange or unknown document to the insurance business. Cover note is usually issued in respect of insurance especially motor, burglary and fire insurance. In marine insurance also it is issued and is called a slip or cover note. It is a practice of insurance companies that before a policy of insurance is issued, to cover the risk for the intervening period a cover note is issued. Its duration is fixed for a period specified in it. As held in Mac Kie v. European Assurance Co.
21. (1), the cover note is itself a contract of insurance. It governs the rights and liabilities of the parties in the event of the loss occurring during its currency. According to Ivamy "The assured is, therefore, entitled to enforce the contract contained in the cover note, provided that he has complied with its conditions, e.g. As to payment of the premium". If a loss occurs during the currency of the cover not the insurer unless he has previously cancelled the cover note, in the terms specified therein, will be responsible for the loss. The defendants issued the cover note and having full knowledge of the shipment accepted the premium. The loss occurred during the currency of the cover note which the defendants neither cancelled nor previously declined to cover the risk. The defendants are therefore liable to compensate the. Plaintiffs for the loss suffered by them. I, therefore, decree the suit against the defendants for Rs, 1,25,696.50 with costs. =1.1.11
(1) (1869) 21 L T 102