X Insurance Company Limited -Versus- M/S. Z Insurance Co. Ltd

DISTRICT: ______________

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. OF _____________

IN THE MATTER OF:

An application under Section 115 of the Code of Civil Procedure 1908.

AND

IN THE MATTER OF:

X Insurance Company Limited

Head Office, Hadi Mansion (4th Floor)

2, Dilkusha C/A

Dhaka 1000

Defendant /

Petitioner

-Versus-

1. A Salt Industries, represented by its Proprietor Sk. Mahabubul Hoque, Singer Char, Thana Rupsha, District Khulna

Plaintiff/

Opposite Party

2.M/S. Z Insurance Co. Ltd.

Being represented by its Managing Director, Head Office

Chamber Building, 122-124, Motijheel Commercial Area

Dhaka

3. The Chief Controller of Insurance,

Department of Insurance

Government of Peoples Republic of Bangladesh, Sadharan Bima Bhaban No.2

139, Motigheel Commercial Area

Dhaka

4. Agrani Bank

Clay Road Branch

Being represented by the Assistant General Manager of that Branch

Khulna

Defendants/

Opposite Parties

AND

IN THE MATTER OF:

Judgement and Order dated 01.09.2005 (ANNEXURE D) passed by the learned Additional District Judge, 1st Court, Dhaka in Civil Revision No. 80 of 2005 rejecting the revisional application challenging Order No. 34 dated 25.10.2004 (ANNEXURE C) passed by Mr. Md. Mahtab Hossain, Joint District Judge, 5th Court, Dhaka in Money Suit No. 64 of 2001 disallowing the application under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 filed by the defendant No.2/petitioner

APPLICATION VALUED AT TK. 15,53,236.56 ONLY

BEING THE SUIT VALUED AT TK. 15,53,236.56 ONLY

To

Mr. Justice Syed J.R. Modasser Hossain, the Chief Justice of Bangladesh and his companion Justices of the Hon’ble Supreme Court.

The humble petition of the defendant/petitioner above named most respectfully –

SHEWETH:

01. That this revisional petition is filed under section 115 of the Code of Civil Procedure [As amended by the Code of Civil Procedure (Third Amendment) Act, 2003]. In this case, the defendant/petitioner craves leave of the High Court Division for revision of an error of an important question of law resulting in erroneous decision occasioning failure of justice by not allowing the Civil Revision No. 80 of 2005 filed before the Court of District Judge, Dhaka challenging an order disallowing the application under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 filed by the defendant /petitioner.

02. That the plaintiff/opposite party has filed Money Suit No. 64 of 2001 on 06.09.2001 in the Court of Joint District Judge, 5th Court, Dhaka against this petitioner and others praying for the following reliefs:

a) That a decree be passed against the defendant Nos. 1 and 2 for an amount of Tk. 15,33,236.56 with interest in favour of the plaintiff.

b) Cost of the suit be decreed against the defendants

c) Any other relief/relief’s be given to the plaintiff if the plaintiff is entitled in the eye of law and equity that may be available to the plaintiff

Certified Copy of the Plaint of the Money Suit No. 64 of 2001 is annexed herewith and marked as ANNEXURE ‘A’.

03. That the defendant/petitioner is an insurance company and carrying on insurance business throughout Bangladesh. The plaintiff/opposite party approached to defendant/petitioner for the purpose of opening up an insurance policy to secure collection of salt stored in its warehouse. The plaintiff insured all its salts with defendant/petitioner and defendant/opposite party No.2. The policy was made on co-insurance basis sharing risks of 70% and 30% in between defendant/petitioner and defendant/opposite party No.2 respectively.

04. That thereafter consequent upon breaking out of flood, water ingressed into the warehouse wherein the salt was stored and washed away all the salt. The plaintiff/opposite party No.1 whereupon has lodged claim and subsequently a joint survey was conducted. The defendant/petitioner admitted the findings of joint survey report dated 06.10.98 and effected payment of insurance claim on 30.03.2000 for loss covering 70% risk for an amount of Tk. 36,24,218.64 by issuing a cheque bearing No.089561 dated 29.03.2000, which was admitted by the plaintiff/opposite party No. 1 in paragraph 13 of the plaint of the Money Suit No. 64 of 2001 (ANNEXURE ‘A’) .

05. That the plaintiff/opposite party No. 1 also accepted the joint survey report and in accordance with that survey report defendant/petitioner has fully paid its part of liability with the plaintiff/opposite party No. 1.

06. That under the terms of the policy in question, the premium so far paid by the plaintiff/opposite party shassll be shared by the defendant/petitioner & defendant/opposite party No.2 rateably. Further, in the schedule of the policy itself there is a clear manifestation of the terms that each co-insurer is liable to the extent of their respective share. While the defendant/opposite party No.2 has been benefited by the policy in question by way of obtaining rateable premium, defendant/opposite party No. 2 should not be precluded of its responsibility of payment of the claim of its part. Thus if any claim subsists that may be enforceable against defendant/opposite party No.2 only. The defendant/petitioner is not at all a necessary party in the suit and without its presence the suit can be properly disposed off. Thus making of any allegation against defendant/petitioner for non-payment is an abuse of process of the Court and an unconscionable practice of making illegal gain.

07. That further the liability of the defendant/petitioner and defendant/opposite party No.2 under the policy in question is not joint or several liability, rather their liability has been fixed and segregated.

08. That the defendant /petitioner appeared in Money Suit No. 64 of 2001 and subsequently when the suit came at the hearing stage, the defendant /petitioner on 05.10.2004 filed an application under Order 1, Rule 10(2) of the Code of Civil Procedure, 1908 for striking out the name of the defendant/petitioner from the plaint as being unnecessarily impleaded.

Certified Copy of the Application under Order 1, Rule 10(2) of the Code of Civil Procedure, 1908 is annexed herewith and marked as ANNEXURE ‘B’.

09. That the learned Court upon hearing of the application vide Order No. 34 dated 25.10.2004 rejected the application and fixed the next date for further hearing on 06.11.2004.

Certified Copy of the Order dated 25.10.2004 is annexed herewith and marked as ANNEXURE ‘C’.

10. That being aggrieved by and dissatisfied with the rejection of the application under Order 1 Rule 10(2) of Code of Civil Procedure by Mr. Md. Mahtab Uddin, Joint District Judge, 5th Court, Dhaka in Money Suit No. 64 of 2001, the petitioner above named filed Civil Revision No. 80 of 2005 before the Court of District Judge, Dhaka and which was subsequently transferred to the 1st Additional District Judge, Dhaka. Thereafter upon hearing the learned revisional Court below rejected the revision vide Order dated 01.09.2005.

Certified Copy of the Order dated 01.09.2005 passed by the lower Revisional Court is annexed herewith and marked as ANNEXURE ‘D’.

11. That the defendant/petitioner therefore has been constrained to file this application for revision before this Hon’ble Court on the following amongst other:

G R O U N D S

I. For that in the facts and circumstances of the suit the learned revisional Court below has committed a serious error of law in passing the impugned order which has resulted in an error in the decision occasioning failure of justice and as such the impugned order is liable to be set aside.

II. For that the learned revisional Court below erred in law occasioning in failure of justice in not considering that the defendant/petitioner having paid the claim amount of its part has been discharged from its obligation of payment under the policy in question and thereby is no longer liable for any amount payable by defendant /opposite party No.2.

III. For that the revisional Court below has failed to consider the overwhelming evidence on record, in as much as, the policy in question depicts that each co-insurer is liable to the extent of their respective share in risks, which occasioned a serious error of law in passing the impugned order which has resulted in an error in the decision occasioning failure of justice.

IV. For that the revisional Court below has failed to consider that the defendant/petitioner is not a necessary party nor its presence is required for complete disposal of the suit which has resulted in an error in the decision occasioning failure of justice.

V. For that the revisional Court below has failed to consider that the liability of the defendant/petitioner and defendant/opposite party No.2 is not joint and several liability under the policy in question, rather, the liability of both was fixed and segregated, which has resulted in an error in the decision occasioning failure of justice.

VI. For that the learned revisional Court has passed the impugned order on the basis of a misconception and misrepresentation of facts, in as much as, no where in the Insurance Policy the defendant/petitioner has been shown as lead insurer, which has resulted in an error in the decision occasioning failure of justice.

VII. For that the impugned order is otherwise illegal and liable to be set aside.

12. That it is submitted that important question of law is involved in the instant revisional petition and as such the defendant/petitioner prays for leave of this Hon’ble Court to file the instant revisional petition as required under section 115 of the Code of Civil Procedure, 1908 [As amended up to date].

13. That it is submitted that because of the recent amendment of section 115 of the Code of Civil Procedure it is necessary that leave be granted to file the instant revisional petition. It is also submitted that this is the first case of the present nature and a decision from this Court would act as future guidance for the Court below.

Wherefore, it is most humbly prayed that the Hon’ble Court may graciously be pleased to

a) Grant leave to file the instant revisional petition and issue Rule calling upon the plaintiff/opposite parties No. 1 to show cause as to why Judgement and Order dated 01.09.2005 passed by the learned Additional District Judge, 1st Court, Dhaka in Civil Revision No. 80 of 2005 rejecting the revisional application challenging Order No. 34 dated 25.10.2004 passed by Mr. Md. Mahtab Hossain, Joint District Judge, 5th Court, Dhaka in Money Suit No. 64 of 2001 disallowing the application under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 filed by the defendant No.2/petitioner, and after hearing of the parties and cause shown, if any, make the Rule absolute;

b) Pending hearing of the Rule, stay operation of the Judgement and Order dated 01.09.2005 passed by the learned Additional District Judge, 1st Court, Dhaka in Civil Revision No. 80 of 2005 rejecting the revisional application challenging Order No. 34 dated 25.10.2004 passed by Mr. Md. Mahtab Hossain, Joint District Judge, 5th Court, Dhaka in Money Suit No. 64 of 2001 disallowing the application under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 filed by the defendant /petitioner till disposal of the Rule;

c) Cost of the proceeding be awarded in favour of the defendant/appellant/petitioner; and

d) Pass such other or further order or orders as may be deemed fit and proper.

And for this act of kindness the defendant/petitioner as in duty bound will ever pray.

A F F I D A V I T

I, ____________________________, son of _____________________________, of X Insurance Company Limited, of _________________________________, aged about ____ years, occupation service, by faith _______, nationality Bangladeshi, do hereby solemnly affirm and say as follows:

01. That I am the officer and tadbirker of the defendant No.2/petitioner and well conversant with the facts of the case and competent and authorised to swear this affidavit.

02. That the statements of facts made in this petition are true to my knowledge and matters of records, which I verily believe to be true and the rests are submission before this Hon’ble Court.

Prepared in my office:
DEPONENT
Advocate The deponent is known to me and identified by me.
Solemnly affirmed before me by the said deponent on this the __________ day of ____________________ at _______ a.m. Advocate
Commissioner of Affidavits

Supreme Court of Bangladesh

High Court Division