JUDGMENT P.K. Musahary, J. 1. Hoard Mr. A.M. Mazumdar and Mr. P.C. Deka, Learned Senior Counsel assisted by Mrs. N. Saikia for the Appellant and Mr. S. Dutta, Learned Counsel for the respondents No. 1 to 3. None appears for the proforma respondent No. 4. 2. Loss suffered by the insured on account of damage of stock was not indemnified by the insurer. Claim being repudiated in alleged violation of insurance policy coverage uberrima fides, the appellant instituted a money suit for realization of a sum of Rs. 34,40,000 from the insurer respondents No. 1, 2 and 3 jointly and severally with interest @ 14% on the said sum under the provision of Section 34, CPC on account of interest paid to the bank against the loan taken from it. The Money Suit No. 133/04 was adjudicated by the Civil Judge (senior Division) No. 2, Guwahati in which a judgment and order was passed on 13.11.2007 decreeing a sum of Rs. 11,46,666 each bearable by the insured plaintiff itself, the insurer respondents and the supplier of machineries proforma respondent No. 4 against whom, the appellant claimed no damage. 3. Against the aforesaid impugned Judgment and Order dated 13.11.2007, on being aggrieved by and dissatisfied with the insured has preferred an appeal, registered as RFA No. 3/2008. Similarly the insurer company has also preferred an appeal being RFA No. 15/2008. Both these appeals have been heard together. 4. The genesis of claim of Rs. 34,40,000 with interest(c) 14% per annum from the insurer respondent company could be gathered from the plaint and be narrated in brief as under: (1) The appellant company is formed by some indigenous educated unemployed youths with great difficulty and in spite of opposition and stiff competition from outside companies, established a cold storage plant at Khanapara, Guwahati, Assam taking loan from Bank and other sources by paying heavy interest @ 14%. The plant established by the appellant has a very highly sophisticated refrigeration mechanism as large quantities of food stuffs could be stored at a given time which are liable to fast decay in the event of any break down or shut down of machinery. After establishment of the plant, the appellant had to take steps for insurance of the costly plant including its machineries, stocks etc. against the risk of accidents, calamities/eventualities that may cause loss, damage, deterioration etc. to the goods in stock. After establishment of the plant, the appellant had to take steps for insurance of the costly plant including its machineries, stocks etc. against the risk of accidents, calamities/eventualities that may cause loss, damage, deterioration etc. to the goods in stock. To minimize such risks, the appellant executed 4 different insurance policies with the respondent Insurance Company. The insurance policies are: (i) The Machinery Break Down policy (MB) (ii) Deterioration of Stock policy (DOS) (iii) Standard Fire and Special perils policy (FIRE) (iv) Standard Fire and Special perils of Stock policy (FIRE STOCK) (2) The respondent Insurance Company upon payment of Premium by the appellant issued separate policy papers in respect of the above policies. However, the DOS policy bearing No. 2003-209 which was with regard to deterioration of stock, the policy papers appended by the insurance company contains policy documents and guideline of electronic equipment insurance policy. The respondent Insurance Company in spite of several requests did not furnish the correct policy document of DOS (Deterioration of Stock) policy to the appellant. (3) The policy documents received by the appellant with regard to Machinery Breakdown policy bearing No. 2003-208 with assured sum of Rs. 15,35,644 and the DOS policy bearing No. 2003-209 with assured sum of Rs. 96,00,000 commenced from 19.3.2003 and would remain valid up to 18.10.2003, for which appellant paid premium of Rs. 70,560. (4) As the potatoes are perishable goods and are prone to deterioration for various reasons the respondent insurance company got the entire stock potatoes checked thoroughly and after finding them absolutely in good condition, it executed the insurance. (5) On 29.3.2003 at about 10:30 P.M. the control panel and sub-control panel of the refrigeration system in the plant caught fire resulting to break down on the entire cooling system. The fire originated due to abrupt fluctuation of voltage and the same resulted into abrupt halt in the functioning of the refrigerating system. The operator of the plant made serious efforts to restore the system but to no avail as substantial damage has been caused to the sub-control panel. (6) As the effort to restore the system failed, the appellant on 30.3.2003 informed the per forma. Respondent No. 4 company having its office at Kolkata. On the other hand the appellant engaged local technicians for repairing the electrical component for restoring electricity to the plant. (6) As the effort to restore the system failed, the appellant on 30.3.2003 informed the per forma. Respondent No. 4 company having its office at Kolkata. On the other hand the appellant engaged local technicians for repairing the electrical component for restoring electricity to the plant. The control panel was repaired and electricity was restored on 30.3.2003 at night and the plant started. The representative of the respondent Insurance Company also arrived on 3.4.2003. Due to such cut off of electricity, the plant could not be started for more than 46 hours. Although, the electricity was restored in the evening of 31.3.2003 the appellant could notice that the temperature inside the plant rose alarmingly and carbon-dioxide was formed. (7) In the morning of 2.4.2003 it was discovered that some bags of potatoes were in a wet condition as a result of perspiration. The refrigeration expert was consulted and the expert arrived on 3.4.2003 and found that due to formation of heavy carbon-dioxide the temperature was not falling down. The appellant tried to rearrange the wet bags to stop further damage. However, on 6.4.2003 the appellant could realize the extent of damage suffered. One by one more and more bags were getting wet and damaged in spite of the best efforts made by the appellant. Then the appellant informed respondent No. 3 over telephone about the incident. On receiving the phone call the respondent No. 3 advised the appellant to make claim in writing. Accordingly, by a letter dated 9.4.2003 the respondent No. 3 was informed about the damaged stock claiming damage of 10.000 bags of potatoes approximately. Then the respondent insurer deputed its Surveyor Shri G.S. Singh (DW4) on 11.4.2003 who visited the plant and carried out the inspection of damaged stock which had been laid in the yard of the plant and also those which were still in the Chamber Nos. 2 and 4 of the cold storage. The said surveyor took some photographs and made a detailed note of the damaged stock for making assessment of the loss suffered by the appellant. According to appellant, the said surveyor has no knowledge about the agricultural products and he was not qualified to survey such industrial unit inasmuch as he was a 'B' class Motor Vehicle surveyor. Due to such objection, the Second Surveyor, Shri Tilak Chandra Hazarika, (DW3) was deputed. According to appellant, the said surveyor has no knowledge about the agricultural products and he was not qualified to survey such industrial unit inasmuch as he was a 'B' class Motor Vehicle surveyor. Due to such objection, the Second Surveyor, Shri Tilak Chandra Hazarika, (DW3) was deputed. He visited the cold storage unit on 8.5.2003 that is 41 days after the incident. In the meantime, on 29.5.2003 the appellant lodged a formal claim under DOS policy claiming Rs. 30,40,000 only on account of the loss suffered by it due to damage of stock. The said surveyor filed the final survey report on 23.10.2003 without furnishing a copy of the same to the appellant. On 9.12.2003 the Second Surveyor aforesaid again insisted the appellant to submit machinery breakdown challans, bills and receipts and payments etc. The appellant could not furnish the same and the surveyor by a letter dated 29.12.2003 asked the appellant as to why no claim had been lodged with regard to the machinery breakdown and the expenses incurred for the purpose of its restoration. According to appellant as there was no machinery breakdown but a clean case of shut down of machineries only due to electricity failure, it was not required to lodge claim in regard to machinery breakdown as demanded by the said Surveyor. 5. The last letter dated 20.1.2004 requesting the respondent insurer for early settlement of the claim under DOS policy for Rs. 34,40,000 for damage of 17,200 bags of potatoes of 50 kgs per bag having failed to yield any response and finding no way out, the appellant approached this Court by filing WP(C) No. 1242/04 which was disposed of by an order dated 2.3.2004 directing the respondent insurance company to examine the matter for payment of the dues, if any, within a period of 2 months. Against this order, the respondent company filed a review petition being Review Application No. 65/04, which was not passed and dismissed by an order dated 23.7.2004. 6. By a communication dated 15.7.2004 (Ext. Against this order, the respondent company filed a review petition being Review Application No. 65/04, which was not passed and dismissed by an order dated 23.7.2004. 6. By a communication dated 15.7.2004 (Ext. 19) the respondent Insurance Company repudiated the appellant's claim under DOS policy No. 209 on the following grounds - (1) intimation of the claim was not given on time inasmuch as the alleged incident took place on 29.3.2003 and the information was given only on 9.4.2003 i.e., after 11 days, although, as per basic principle of all General Insurance policies the claim intimations must be given instantly, (2) the potatoes were already damaged when they arrived at the site for storage and the loss to the potatoes wore not due to admissible peril, (3) the alleged breakdown to the machinery occurred on 29.3.2003 has not been substantiated with credible proof for replacement of the damaged parts by production of necessary bills/cash memos that the actual replacement has taken place. As per the rules, claim under DOS policy becomes admissible only when the Machinery Breakdown claim becomes payable and/or paid and therefore, the claim under DOS policy is not tenable and no liability attaches to the insurance company. 7. The respondent Insurance Company in its joint Written Statement filed on behalf of defendant Nos. 1, 2 and 3 in the trial court took the same grounds with some more details, particularly in respect of alleged purchase of machinery parts from M/s. Ambika Electrical Stores and alleged replacement of the same after the incident of machinery breakdown. It has been contended that the appellant could not produce any document like cash memo etc. in support of purchase of machinery parts from M/s. Ambika Electrical Stores for which there is no evidence of replacement of any machinery parts after the alleged incident of machinery breakdown. According to respondent Insurance Company M/s. Ambika Electrical Stores also could not show any document like duplicate copy of cash memo, ledger cash in account, sales tax paying return, etc., in support of selling of any machinery/electrical parts to the insured after the incident. The said electrical store produced photocopy of a bill dated 31.3.2003 without challan number showing the sale of some machineries on verbal order of the appellant on 2.5.2002 (before the incident) which is not found genuine. The said electrical store produced photocopy of a bill dated 31.3.2003 without challan number showing the sale of some machineries on verbal order of the appellant on 2.5.2002 (before the incident) which is not found genuine. Further it is contended in the written statement that the appellant produced two photocopy of bill Nos. 1012 and 1013 dated 31.3.2003 of M/s. Ambika Electrical Stores showing supply of some machineries and electrical parts to the appellant but the said store produced a photocopy of a bill dated 31.3.2003, where it was mentioned that as per verbal order dated 2.5.2002 vide challan No. nil dated 2.4.2002, they supplied the machinery and electrical parts to the insured. So the materials were supplied by the said electrical stores some months before the incident on 29.3.2003 but after the incident and so the question of replacement of new parts does not arise. 8. One of the issues raised by the appellant is that the DOS policy papers appended by the insurance company contained policy documents and guidelines of electric equipments Insurance policy and the respondents did not furnish the correct policy document and, therefore, the appellant was totally in darkness with regard to the procedure that has to be followed in case of any emergency and also how to lodge the claim for damage. For this important question raised by the appellant, no issue was framed by the learned trial court. This issue is connected with one of the grounds of repudiation of the appellant's claim that the claim was not lodged instantly, rather as late as 11 days after the alleged incident, and it was in violation of the terms and conditions of the DOS policy. There is, therefore, a need to find out at the first instance whether the respondent insurer furnished a correct DOS policy to the appellant. The copy of the DOS policy No. 2003-209 filed by the appellant has been exhibited as Ext. 3 which is attached with Annexure "A" with heading 'Electronic Equipment Insurance policy' containing the terms and conditions of the policy. Similarly the copy of said DOS policy filed by the respondent has also been exhibited as Ext. The copy of the DOS policy No. 2003-209 filed by the appellant has been exhibited as Ext. 3 which is attached with Annexure "A" with heading 'Electronic Equipment Insurance policy' containing the terms and conditions of the policy. Similarly the copy of said DOS policy filed by the respondent has also been exhibited as Ext. K but it is not attached with the aforesaid Annexure of Electronic Equipment Insurance policy, rather attached with schedule I titled "Deterioration of Stocks (Potatoes) Insurance policy" with Standard Form for Refrigeration plant (Stock) policy (For potatoes only) containing the elaborate terms and conditions therewith. From the aforesaid Ext. 3 and Ext. K it is found that the first pages thereof are exactly same in respect of policy name, number, premium, period, value, quantity, goods insured etc. except the policy documents. PW2, Shri Abhijit Saikia, one of the Directors of the appellant company, in his cross-examination deposed that he knew the terms and conditions of the Machinery Breakdown policy, which has been exhibited as Ext. I. During the course of hearing Shri S. Dutta, Learned Counsel for the respondent submitted that the terms and conditions of DOS policy and MB policy are almost same and a duty has been cast upon the insured to immediately or instantly inform the insurer company about the incident. It is also deposed by PW2 that they took loan from the UCO Bank and submitted the DOS policy as surety in the bank. The UCO Bank, being a professional financial institution must have closely scrutinized the DOS policy before acceptance and found it complete with its policy documents, including the terms and conditions. This PW2 has not deposed that his company submitted the Ext. 3 DOS policy with incorrect policy documents or jacket in the said Bank as a surety. It is not believable that a Bank would accept an incorrect or incomplete document as surety for extending loan of huge amount to a party. The original DOS policy, if it is so submitted as surety, must be lying with the Bank and the same could have been produced before the learned trial court through the Bank personnel to prove the allegation of furnishing incorrect DOS policy jacket but no such attempt was made by the appellant. The original DOS policy, if it is so submitted as surety, must be lying with the Bank and the same could have been produced before the learned trial court through the Bank personnel to prove the allegation of furnishing incorrect DOS policy jacket but no such attempt was made by the appellant. Moreover, there is no oral or documentary evidence to the effect that the appellants, before institution of the Money Suit, even made any complaint with the respondent insurer regarding alleged furnishing of incorrect DOS policy jacket or demanded replacement of incorrect policy jacket by a correct one. Respondent insurer examined one Diganta Hazarika, Assistant Manager, as DW1. In cross-examination he stated that the terms and conditions of both the policies were explained to the plaintiff before acceptance of the proposal and the plaintiff duly received the policies. This witness further stated in cross-examination that the DOS policy is depended on Machinery Breakdown (MBP) policy. He denied the suggestion that the plaintiff did not receive the DOS policy. The above evidence are enough to come to a conclusion that the appellant was in possession of the original DOS policy with correct jacket and it was well aware about the terms and conditions of the said policy. 9. Once it is found or proved that the appellant was in possession of the correct DOS policy and had the knowledge of or at least had been informed about the terms and conditions of the policy at the time of acceptance of the proposal, the question of keeping the appellant in darkness and not being aware of the procedure for lodging claim for damage would not arise and such a story would not be accepted as true, rather rejected as an afterthought. 10. The respondents/defendants have pleaded that the potatoes were already rotten or damaged at the time they arrived at the site. No issue has been framed by the learned trial court in this regard. This issue has been raised seriously by the insurer respondents and this is one of the main grounds for repudiation of appellant's claim under DOS policy. Attempt was made by the respondents to prove this allegation through DW2, Dipti Kakati, Investigator, who filed evidence on affidavit but failed to turn up before the trial court for cross-examination by the appellant. Mr. Attempt was made by the respondents to prove this allegation through DW2, Dipti Kakati, Investigator, who filed evidence on affidavit but failed to turn up before the trial court for cross-examination by the appellant. Mr. A.M. Mazumdar, Learned Senior Counsel for the appellant submits that the evidence of this witness can not be taken into consideration in view of the Apex court's decision rendered in the case of Gopal Saran v. Satyanarayan, AIR 1989 SC 1141 , wherein it was held that it would not be safe to rely on the examination-in-chief recorded which was not subjected to cross-examination in spite of order of the court. From the records it is found that DW3 was asked by the learned trial court to appear for cross-examination but he failed to turn up and as such this Court would not act upon his evidence on affidavit alone to accept the pleading of the respondent that the potatoes were already damaged before or at the time they arrived at the site. In absence of other cogent and reliable evidence, it would lead to hold that the potatoes were damaged only after they arrived at the site. 11. After holding so, this Court is confronted with a vital question as to whether the potatoes got damaged at the site due to breakdown of the machineries of the appellants in the plant. As per evidence of PW1 and 2, the Directors of the appellant company, on 29.3.2003 at about 10:30 P.M. the control panel and the sub-control panel of the refrigeration system in the plant caught fire resulting in the breakdown of the entire cooling system and the fire was ignited due to abrupt fluctuation of voltage and the same resulted in the abrupt halt in the functioning of the refrigeration system. The operator of the plant made serious efforts to restore the system but he failed as substantial damage had been caused to the sub-control panel which stopped the flow of current into the Fin coils and Solenoid which are absolutely essential requirements for running of the refrigeration machinery. The appellant, after failing to restore the system informed the proforma respondent No. 4 (Supplier of the Machinery) on 30.3.2003 seeking help to repair the system but the representative of respondent No. 4 from Kolkata could come and start repair work only on 3.4.2003 that is after 5 days of the incident. The appellant, after failing to restore the system informed the proforma respondent No. 4 (Supplier of the Machinery) on 30.3.2003 seeking help to repair the system but the representative of respondent No. 4 from Kolkata could come and start repair work only on 3.4.2003 that is after 5 days of the incident. The plant operator, Mr. Monohar Borah was examined as PW3. According to him he was on duty at the time of accident and the compressor was running smoothly but suddenly the sub-control panel caught fire and electricity went out. He immediately called the other operator and extinguished the fire by using fire extinguisher. They tried to find out what had gone wrong and then informed their Director as the situation was out of control and electricity could not be restored. PW3 further deposed that in the next morning electricians from Ambika Electricals came and tried to repair the damage and make the machineries functional. They could not finish the job and told them that they would be able to repair the panels on the next day as certain parts were necessary and the same were not available with them at that time. This witness, PW3 did not corroborate the evidence of PW1 and 2 that they ever informed the respondent No. 4 on 30.3.2003 and a representative of respondent No. 4 came from Kolkata and started repair work on 3.4.2003. In cross-examination, PW3 deposed that the people from Ambika Electrical had made the machinery of the plant workable. The relevant portion of deposition of PW3 in cross-examination is quoted below: I have been working in the plant since 2002. People from Ambika Electrical had come to the plant and checked up machinery off and on. Since installation of the plant machinery it was functioning well without any defect. If it failed due to electrical defects, people from Ambika Electrical came and repaired them. We also repaired minor electrical defects and if failed to do, the people from Ambika Electrical had come. I had passed I.T.I. The machinery of the plant never becomes hot. I did shift duty, I do not know if its compressor becomes hot while other operator was working there. The people from Frick India shad come off and on and checked up the machinery. I do not remember when the people from Prick India had come since installation of the plant. I did shift duty, I do not know if its compressor becomes hot while other operator was working there. The people from Frick India shad come off and on and checked up the machinery. I do not remember when the people from Prick India had come since installation of the plant. I would not do the repairing works of machinery while breakdown took place because of the occurrence had taken place on 29.3.2003.... I did not do the electrical works.... The evidence of PW3 makes it clear that the operator of the plant simply checked the machinery and did not make any effort to repair the machinery when the breakdown took place. The repair work was done by the Ambika Electrical and not by the representative of the respondent No. 4. 12. The appellant examined one Ahia Mandal as PW5, who was working as fitter cum welder in the Frick India Company (respondent No. 4). He was, according to his deposition, sent by his company to Guwahati when they came to know that the machines have gone out of order due to fire on electricity components. He examined the appellants machine on 3.4.2003 and found that the electrical panels had been gutted due to electricity fault and short circuit. He sent the information to the company and an engineer was sent who replaced the damaged part of the machine. One Mr. Sanjib Kumar Haldar, Junior Engineer (Electrical) of the company was examined by the appellant as PW6 who corroborated the evidence of PW5. According to PW6, the fire might have occurred due to high voltage and/or voltage fluctuationing. He himself repaired the solenoid coil, float coil, control tube and some inter-connection wire. 13. As per evidence of PW1, one of the Directors of the appellant-company, they used to make complaint with the Assam State Electricity Board (ASEB in short) authority off and on regarding frequent voltage fluctuation. But there is no documentary evidence of lodging such complaint with the ASEB authority. According to PW1, the ASEB authority did not confirm as to whether the incident of break down of machineries took place due to high voltage. The other Director of the appellant-company, PW2 also stated in cross-examination that they have not taken any certificate from the ASEB regarding breakdown of their machinery due to high voltage fluctuation because there was no column in the claim form. The other Director of the appellant-company, PW2 also stated in cross-examination that they have not taken any certificate from the ASEB regarding breakdown of their machinery due to high voltage fluctuation because there was no column in the claim form. The appellant made no attempt to adduce any witness from the ASEB to prove the fact that they lodged complaint regarding high voltage fluctuation before the incident in the plant or to prove the fact that they requested the ASEB to issue any certificate to that effect and the same was denied to them. Even after the incident, there is no evidence to the effect that the appellant, after they found the machinery breakdown was due to high voltage fluctuation, intimated the ASEB for taking any corrective measures. The evidence available on record are not sufficient to come to a conclusion that the machinery breakdown took place due to frequent voltage fluctuation. But it has been proved sufficiently that there was a machinery breakdown in the appellant's plant which was first repaired by its own men and later restored with the help of an electrical engineer from the Supplier Company respondent No. 4 by 3.4.2003 and in the mean time its stock (the potatoes) was getting damaged. That being the position the respondent Insurance Company disowns the liability of indemnity, as according to them, the claim under DOS becomes admissible only when the Machinery Breakdown claim becomes payable and/or paid. 14. Mr. Dutta, Learned Counsel for the respondent insurer, submits that the Machinery Breakdown (MBS) policy is no doubt an independent policy in so far as it covers all types of plant and machineries while the DOS policy, on the other hand, is dependent on MBS policy because it covers only the stock of the cold storage. The assured on the basis of MBS policy would be entitled to claim the value of the damaged stock provided it has a DOS policy subject to fulfillment of certain conditions as laid down in Clause 3 of the DOS policy (Ext. K) which is quoted below: 3. The insured refrigeration machinery specified in Schedule I is Under constant supervision, and that the persons commissioned to undertake such supervision are capable of immediately taking appropriate measures to prevent any impending accidents or to minimize any damage that may occur. According to Mr. K) which is quoted below: 3. The insured refrigeration machinery specified in Schedule I is Under constant supervision, and that the persons commissioned to undertake such supervision are capable of immediately taking appropriate measures to prevent any impending accidents or to minimize any damage that may occur. According to Mr. Dutta, there was lack of supervision and deficiency in service on the part of the respondent No. 4, who commissioned the machinery in so far as it paid no proper care after installation of the plant and also failed to extend immediate technical help after the incident of machinery breakdown was reported and it sent its engineer only on 3.4.2003 that is after 4 days of the incident. The insured also, according to Mr. Dutta, found negligent in taking appropriate measures with the ASEB to rectify the alleged frequent electricity fluctuation in the plant and thus to prevent any probable accident or minimize the damage that may take place. As per evidence of PW1, Director of the appellant company no electrical engineer was engaged in the plant. In her evidence in cross-examination she also stated that no log book for maintenance and particulars of use of the machineries has been produced. 15. Further Mr. Dutta submits that under Clause 4 of the DOS policy, the insured is required to keep a stock book in which the quantity, place and value of each types of goods stored at any time are entered along with the names and addresses of hirers etc. up to date in the proforma prescribed by the company. The appellant failed to produce the stock book/register before the trial court. One Mr. Apurba Das, store keeper and marketing supervisor of the appellant was examined as PW4, who deposed in cross-examination that he had not come with the stock register and he had not even seen the stock register in the records. In such a case the legal presumption would be that the appellant did not maintain stock book as required under the aforesaid clause of the DOS policy which would disentitle the appellant to claim benefit under the DOS policy. 16. At one stage of the hearing, Mr. In such a case the legal presumption would be that the appellant did not maintain stock book as required under the aforesaid clause of the DOS policy which would disentitle the appellant to claim benefit under the DOS policy. 16. At one stage of the hearing, Mr. P.C. Deka, Learned Senior Counsel appearing for the appellant submitted that the facts of issuance of 4 policies including the DOS policy, payment of premium, occurrence of accident and damage of stock are all admitted and there is no dispute on them. Dispute however lies, according to Mr. Deka, only in regard to apportionment of liability amongst the appellant insured, respondent insurer and the pro forma respondent supplier of machineries as ordered in the impugned judgment and order which is not only unheard of in the insurance law but also perverse. The perversity of the impugned judgment and order as submitted by Mr. Deka, writ large as it has directed the pro forma respondent No. 4 to pay the equal portion of the insurance liability although no such claim has been made by the appellant as they have repaired and restored the machinery to service during warranty period. The Learned Senior Counsel submits that the impugned judgment and order is liable to be modified fixing the entire liability of payment of insurance solely on the respondent Insurance Company with enhanced rate of interest at 14% per annum from the date of incident, which is proportionate to rate of interest being paid by the appellant to the UCO Bank against the loan amount taken from it for setting up the industry. No authority has been cited by the Learned Senior Counsel in support of his submission that a liability of insurance can not be proportioned in the manner done by the learned trial court. However, he has cited the following cases in support of his submission for fixing/enhancing the rate of interest at 14% AIR 1989 Ker. 302 (303). AIR 1982 Kant. 178 (181) AIR 1989 Delhi 107/114 AIR 1989 SC 1141 (2001)35 SCC 71 The question of enhancement of the rate of interest would be decided only after a finding would be recorded holding a particular party or parties liable to pay the claimed amount. 17. We have gone through the records as to how the appellant led itself to lodging the claim. By a letter dated: 9.4.2003 (Ext. 17. We have gone through the records as to how the appellant led itself to lodging the claim. By a letter dated: 9.4.2003 (Ext. 5), the appellant informed the Branch Manager of the respondent Insurance Company at Beltola, Guwahati about the damage of the stock due to breakdown of machinery on 29.3.2003 and requested him to assess the loss. The appellant deputed one Surveyor, Mr. G.S. Singh (DW4) to the spot on 11.4.2003 to assess the loss but before submission of report by him, the appellant by a letter dated: 21.4.2003 (Ext. 9) informed the Branch Manager of the respondent company that they have disposed the damaged stock. The appellant then sent a letter dated 16.5.2003 (Ext. 10) to the surveyor informing him that "as per a final estimate of damaged stock, the number of bags damaged would be an approximate of 15,200" each bag containing 50 kgs. of potatoes in average and the total loss was estimated to be Rs. 30,40,000. Thereafter the appellant sent another letter dated 20.1.2004 (Ext. 16) informing the Regional Manager of the respondent company at Guwahati that "the total loss was actually of 8600 gults. (Approx.) "which amounts to approximately 17,200 bags of 50 kgs. each" and the total loss was for Rs. 34,40,000. Ultimately a claim in prescribed form for detonation of stock (Ext. L) was filed by the appellant on 29.5.2003 showing damage of 15,200 bags of potatoes, each bag containing 50 kgs. and claiming Rs. 30,40,000. No estimate of loss or damage of potatoes has been furnished alongwith the said petition (Ext, L). There is no record to show that the estimate of damage was done in presence of representative of the respondent Insurance Company. There is also no evidence on record that the appellant got the value of the damaged stock assessed by any qualified and licensed valuer or surveyor. The learned trial court has taken into account the potatoes stored in the cold storage before the machinery breakdown took place but it has not enquired or satisfied itself how the appellant has assessed the actual damage of the potatoes. In the cross-examination, PW1 Smt. Anjita Saikia, the main Director of the appellant company deposed as follows - ...We have not submitted the estimate of the damaged stock after fitting proper weight of the same. In the cross-examination, PW1 Smt. Anjita Saikia, the main Director of the appellant company deposed as follows - ...We have not submitted the estimate of the damaged stock after fitting proper weight of the same. But we have submitted the estimate as per lot stored in the rack of the Chamber. We have not produced any record as to such lot and rack, etc. The Chamber No. 4 was unloaded in the month of May' 2003 because the potatoes of Chamber No. 4 got deteriorated badly.... 18. In this regard it would be pertinent quote a relevant portion from the evidence of the other Director of the appellant company, Mr. Abhijit Saikia, PW2 - ...I do not remember what Statement I have given in connection with damaged potatoes to defendant company on 9.4.2003. Some 30 days after the machinery being filled up and after separating out of the bad potatoes, we had given a final estimate that about 9800 bags of potatoes were damaged. I can not give accurate account how many potatoes became damaged till 8.4.2003 because of the fact that we could not find out the accurate account of that since we had not separated good from the bad potatoes from the Chamber completely. We had not shown the potatoes which had in the Chamber to the defendant company till 6.4.2003 after breakdown of the machinery.... 19. The above evidence of PWs1 and 2 clearly shows that the good potatoes were not separated from the bad ones and the bad potatoes were not even shown to the defendant Insurance Company. There was, as admitted by PW1, no proper weight of the damaged stock. This must be the reason why the appellant, on different occasions gave different estimates of damaged potatoes at 15,200 bags worth Rs. 30,40,000 (vide Ext. 10), 17,200 bags worth Rs. 34,40,000 (vide Ext. 16) and 9,800 bags (vide evidence of PW2). All these estimates are found to be nothing but guess works of the appellant to suit the claim under the DOS policy. 20. We have gone through the records as to how the appellant led itself to lodging the claim. By a letter dated: 9.4.2003 (Ext. 5), the appellant informed the Branch Manager of the respondent Insurance Company at Beltola, Guwahati about the damage of the stock due to breakdown of machinery on 29.3.2003 and requested him to assess the loss. 20. We have gone through the records as to how the appellant led itself to lodging the claim. By a letter dated: 9.4.2003 (Ext. 5), the appellant informed the Branch Manager of the respondent Insurance Company at Beltola, Guwahati about the damage of the stock due to breakdown of machinery on 29.3.2003 and requested him to assess the loss. The appellant deputed one Surveyor, Mr. G.S. Singh (DW4) to the spot on 11.4.2003 to assess the loss but before submission of report by him, the appellant by a letter dated 21.4.2003 (Ext. 9) informed the Branch Manager of the respondent company that they have disposed the damaged stock. The appellant then sent a letter dated 16.5.2003 (Ext. 10) to the surveyor informing him that "as per a final estimate of damaged stock, the number of bags damaged would be an approximate of 15,200" each bag containing 50 kgs. of potatoes in average and the total loss was estimated to be Rs. 30,40,000. Thereafter the appellant sent another letter dated 20.1.2004 (Ext. 16) informing the Regional Manager of the respondent company at Guwahati that the total lost was actually of 8600 quits. (Approx.) "which amounts to approximately 17,200 bags of 50 kgs. each" and the total loss was for Rs. 34,40,000. Ultimately a claim in prescribed form for detonation of stock (Ext. L) was filed by the appellant on 29.5.2003 showing damage of 15,200 bags of potatoes, each bag containing 50 Kgs, and claiming Rs. 30,40,000. No estimate of loss or damage of potatoes has been furnished alongwith the said claim petition (Ext. L). There is no record to show that the estimate of damage was done in presence of representative of the respondent Insurance Company. There is also no evidence on record that the appellant got the value of the damaged stock assessed by any qualified and licensed valuer or Surveyor, the learned trial court has taken into account the potatoes stored in the cold storage before the machinery breakdown but it has not enquired or satisfied itself how the appellant has assessed the actual damage of the potatoes. In the cross-examination, PW1, Smt. Anjita Saikia, the main Director of the appellant company deposed as follows - ...We have not submitted the estimate of the damaged stock after getting proper weight of the same. But we have submitted the estimate as per lot stored in the rack of the Chamber. In the cross-examination, PW1, Smt. Anjita Saikia, the main Director of the appellant company deposed as follows - ...We have not submitted the estimate of the damaged stock after getting proper weight of the same. But we have submitted the estimate as per lot stored in the rack of the Chamber. We have not produced any record as to such lot and rack etc. The Chamber No. 4 was unloaded in the month of May' 2003 because the potatoes of Chamber No. 4 got deteriorated badly.... 21. In this regard it would be pertinent to quote a relevant portion from the evidence of the other Director of the appellant company, Mr. Abhijit Saikia, PW2 - ...I do not remember what Statement I have given in connection with damaged potatoes to defendant company on 9.4.2003. Some 30 days after the machinery being filled up and after separating out of the bad potatoes, we had given a final estimate that about 9800 bags of potatoes were damaged. I can not give accurate account how many potatoes became damaged till 8.4.2003 because of the fact that we could not find out the accurate account of that since we had not separated good from the bad potatoes from the Chamber completely. We had not shown the potatoes which had in the Chamber to the defendant company till 6.4.2003 after breakdown of the machinery.... 22. The above evidence of DWs1 and 2 clearly shows that the good potatoes were not separated from the bad ones and the bad potatoes were not even shown to the defendant Insurance Company. There was, as admitted by DW1, no proper weight of the damaged stock. This must be the reason why the appellant, on different occasions, gave different estimates of damaged potatoes like 15,200 bags worth Rs. 30,40,000 (vide Ext. 10), 17,200 bags worth Rs. 34,40,000 (vide Ext. 16) and 9,800 bags (vide evidence of PW2). All these estimates are found to be nothing but guess works of the appellant to suit the claim under the DOS policy. 30,40,000 (vide Ext. 10), 17,200 bags worth Rs. 34,40,000 (vide Ext. 16) and 9,800 bags (vide evidence of PW2). All these estimates are found to be nothing but guess works of the appellant to suit the claim under the DOS policy. As no assessment was done by any qualified Surveyor/Valuer in respect of damage of stock, the learned trial court had to base its findings in this regard simply on the pleadings and claim petition of the appellant and recorded its findings thus - ...As regards the quantum of damage, there seemed to be no dispute with respect to the fact that the plaintiff sustained a heavy loss of Rs. 34,40,000.... 23. The learned trial court may think or seem that there is no dispute on the quantum of damage but it has to find out from the records as to whether the respondents really disputed the same. It is on record that the respondent Insurance Company engaged one Mr. Tilak Chandra Hezarika as Second Surveyor, who was examined as DW3 and was duly cross-examined by the appellant. This Surveyor submitted final survey report and assessment of loss on 23.10.2003, which was exhibited as Ext. E. The report on assessment of loss reads as follows - ASSESSMENT OF LOSS: The insured submitted the following estimate of loss: 1. Preliminary estimate submitted along claim intimation letter dated 9.4.2003. Cost of stock No. of bags Qty. damages Rs. 400.00/Qtls. 10,000 (50 kg/bag) 5,000 Qtls. Amount works out to = Rs. 400.00 x 5000 = Rs. 20,00,000.00 I made the estimate of good bags and quantity of rotten potatoes removed from the chamber. The estimate was made on the basis of vacant and occupied chambers and racks and floor. Chamber No. IV seen totally vacant indicating removal of 4,000 quintals (8,000 bags of 50 kg). A rough counting of vacant floors of other 3 chambers, I found that the quantity removed would be around 2,000 Quintals. As on date of visit the stock position was as below. Stock (damaged) Removed Good stock at Ch. I, II, and III Ch. IV 6,500 Qntis 17,500 Qntis nil The aforesaid Surveyor, DW3 sent a letter dated 9.12.2003 Ext. A rough counting of vacant floors of other 3 chambers, I found that the quantity removed would be around 2,000 Quintals. As on date of visit the stock position was as below. Stock (damaged) Removed Good stock at Ch. I, II, and III Ch. IV 6,500 Qntis 17,500 Qntis nil The aforesaid Surveyor, DW3 sent a letter dated 9.12.2003 Ext. E 6 (viii), informing the appellant that the DOS insurance was only an extension to the Machinery Break down insurance and hence, DOS insurance will remain dormant until liability under the MB insurance is established in terms and within the scope of the policy. It was made clear in the said letter that his above report dated 23.10.2003 would remain inconclusive so far as the insurer is concerned as there was no assessment of liability under the MB insurance. DW1, Mr. Diganta Hazarika, the Assistant Administrative Officer of the respondent Insurance Company stated in cross-examination that his company accepted the aforesaid report submitted by the Surveyor (DW3) but they have not accepted the claim of the appellant because the report on machinery breakdown was not submitted. 24. On the face of such evidence and materials on record we fail to persuade ourselves to agree with the finding of the learned trial court that the respondent insurer has no dispute on the alleged heavy loss of Rs. 34,30,000 sustained by the appellant. The respondent insurer has adduced sufficient evidence, as discussed earlier, to the effect that the claim under DOS insurance policy would be payable by the insurer company only after it is established that the insurer respondent company is liable to pay the claim under the MB insurance policy. In the pleadings and evidence, the appellant had taken the stand that it has no claim against the pro forma respondent No. 4, (Supplier of the machinery) and against the respondent insurer as well for machinery breakdown but it has a claim against the respondent insurer under the DOS policy only because the stock (potatoes) got damaged due to machinery breakdown. 25. We have already discussed earlier and found that the appellant got its plant inspected by an engineer of the ASEB after the accident to ascertain as to whether the machinery break down took place due to frequent voltage fluctuation or due to poor maintenance of the machineries. 25. We have already discussed earlier and found that the appellant got its plant inspected by an engineer of the ASEB after the accident to ascertain as to whether the machinery break down took place due to frequent voltage fluctuation or due to poor maintenance of the machineries. The inspection was done unilaterally by the appellant through an engineer (PW6) sent by the supplier of the machinery from Kolkata without ensuring the presence of any representative from the ASEB and the insurance company. There was no definite finding by the said engineer from Kolkata that the machinery breakdown had taken place due to sudden voltage fluctuation. In his evidence, he simply expressed an opinion to the effect that "the fire might have occurred due to high voltage and/or voltage fluctuationing". Even assuming that the machinery breakdown was due to voltage fluctuation and as a result of which the stock (potatoes) got damaged, will it automatically bind the respondent insurer with the liability to indemnify the insured appellant under the DOS policy. Such proposition is not only absurd but also unwarranted because the insurance is nothing but a contract where the parties, namely the insured and the insurer, like the parties in other commercial contracts, are bound by the terms and conditions laid down in the proposal or policy of insurance. This is because a contract of insurance is a species of commercial transactions. The contract of insurance, of course, is required to fulfill four essentials, namely - (i) definition of the risk, (ii) duration of the risk (iii) Premium and (iv) amount of insurance. All the essentials are present in the present case. 26. There is, however, only one allegation from the insured that the DOS insurance policy was not furnished by the insurer for which the insured did not know the terms and conditions contained in the said policy and it also did not know how to lodge the claim. We have already discussed in length earlier and come to a conclusion that such plea is unbelievable because the appellant, whose Directors are educated persons, secured loans from the UCO Bank by furnishing the said policy as security. We have already discussed in length earlier and come to a conclusion that such plea is unbelievable because the appellant, whose Directors are educated persons, secured loans from the UCO Bank by furnishing the said policy as security. Even otherwise also, once the appellants proposal for DOS policy was accepted by the insurer and the insured has admittedly paid the premium towards the said policy, it would be presumed legally that the insured has the knowledge about the terms and conditions of the policy. 27. This leads to a conclusion that the appellant knew or at least was aware about the important clause like Clause No. 3 of the DOS policy, which we have quoted earlier, which makes the claim of the insured under this policy conditional. From its own pleadings and evidence, the appellant has shown that although it informed the party (respondent No. 4) who commissioned the machinery, immediately on 30.3.2003 about the alleged accident of machinery breakdown of 29.3.2003, the said party could send its engineer only on 3.4.2003, i.e., after 4 days and they could make the said machinery functional only on 8.4.2003. Thereafter on 9.4.2003, the appellant informed the respondent insurer after a day of 10 days, which again is in contravention of condition No. 4(a) of the policy which requires the insured to give immediate notice of the accident and lodging of claim in writing within 14 days. 28. We would consciously refer ourselves to the principle of law enunciated by the Apex court in the case of General Assurance Society v. Chandmull Jain AIR 1966 SC 1644 wherein it is held that in interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. The contract between the appellant and the respondent company for DOS insurance policy is found subject to conditions mentioned in Clause 3 of the policy as referred to above. The meaning and purport of the said clause is clear and no ambiguity could be imported so as to interpret the same against the company. This being the legal position, we have no scope to consider the appellant's claim beyond the terms and condition of the policy accepted by the parties. The meaning and purport of the said clause is clear and no ambiguity could be imported so as to interpret the same against the company. This being the legal position, we have no scope to consider the appellant's claim beyond the terms and condition of the policy accepted by the parties. This, would lead us to disagree with the findings of the learned trial court that the respondent Insurance Company contributed to the damages or loss sustained by the appellant plaintiff. Consequently we would also disagree with the learned trial court's order to share the responsibility by apportioning the damage and pay Rs. 11,46,666 by each party. 29. In view of the above discussions and reasoning, we find the impugned judgment and order dated 13.11.2007 passed by the learned Civil Judge No. 2 Kamrup, Guwahati as unsustainable and liable to be set aside which we do accordingly. This would not however entitle the appellant to realise the claimed amount from the respondent Insurance Company under the DOS policy in terms of the impugned judgment and order dated 13.11.2007. 30. This appeal stands dismissed without any order as to cost. 31. RFA No. 15/2008 (Oriental Insurance Co. Ltd. v. Eden Cold Storage (P.) Ltd.) Having heard this appeal analogously and in view of the judgment and order passed by us as above setting aside the impugned judgment and order dated 13.11.2007 passed in Money Suit No. 133/04 passed by the learned Civil Judge No. 2, Kamrup, Guwahati, this appeal stands allowed without costs. Petition allowed.