P L D 1975 Karachi 458 (PLP)

On the aforesaid pleadings various consent issues were adopted, the most important of these issues being issue No. 5, whether the loss, if any, was covered under the contract of insurance ? By consent this issue No. 5 was agreed to be tried as a preliminary issue. If the decision on this issue went against the plaintiffs the entire suit would stand disposed of, but if the plaintiff succeeded he could then lead evidence to prove quantum of damages etc. For determination of this issue the plaintiff has relied upon various books and treatises dealing with this great tragedy in East Pakistan. The defendants on the other hand have examined one Noor Mohammad, a West Pakistani Business Executive, who was stationed at the time as Export Manager in Hamidia Jute Mills Ltd., Chittagong and he stayed there up to the date of surrender i.e. 16‑12‑1971. The defendants have also relied upon the "Riot and Strike Endorsement", covering the conditions of the policy of insurance to show that the alleged loss came under the exceptions contained in the endorsement and the loss was not therefore covered by the policy. Mr. Salim Akhtar on behalf of the defendants Insurance Company has first argued on the nature of this exception and the special provision as to burden of proof, contained in the Riot and Strike Endorsement" being part of the contract of insurance under the policy. He has next argued that the alleged loss had occurred under the circumstances which fell within this exception. For the purpose of this case the relevant conditions in the "Riot and Strike Endorsement", relied upon by the plaintiff and the defendant counsel respectively, are conditions Nos. 2 and

6. These conditions are therefore reproduced here in extenso :‑ "Condition No. 2: It is hereby agreed and declared that notwithstanding anything in the written policy contained to the contrary, the insurance under the policy shall extend to cover Riot and Strike which shall mean loss of or damage to the property insured, directly caused by the action of any lawfully constituted authority in suppressing or attempting to suppress any such disturbance or in minimising the consequence of any such disturbance." Condition No. 6: This insurance does not cover any loss or damage occasioned by or through or in consequence, directly or indirectly, of any of the following occurrences, namely:‑‑ (a) War, invasion, act of foreign enemy, hostilities or warlike operations (whether war be declared or not), civil war. (b) Mutiny, civil commotion assuming the proportions of or amounting to popular rising, military rising, insurrection, rebellion, revolution, military or usurped power, or any act of any such person acting on behalf of or in connection with any organisation with activities directed towards the overthrow by force of the Government de jure or de facto or to the influencing of it by terrorism or violence. In any action, suit or other proceeding, where the Company alleges that by reason of the provisions of this condition any loss or damage is not covered by this insurance, the burden of proving that such loss or damage is covered shall be upon the insured." The first question raised by the counsel for the parties is regarding burden of proof. Mr. Salim Akhtar on behalf of the defendants has relied upon this para. under condition 6, in the policy Riot and Strike Endorsement, under which once the allegation is made by the Insurance Company that on account of any mutiny or civil commotion etc. the loss is not covered by the policy, the burden of proof that such circumstances did not exist, would be upon the insured, i.e. the plaintiff. The learned counsel for the plaintiff has on the other hand contended that such a clause contained in agreement or policy of insurance is void and must be left out of consideration, as it violates the law contained under sections 101, 102 and 103 of the Evidence Act. That the burden of proof for establishing any fact is governed by law and not by agreement of the parties. Sections 101 to 103 of the Evidence) Act, no doubt lay down the "general rules", regulating the burden of proof, but the law as to burden proof contained in these rules is subject to or is modified by presumptions, admissions and estoppels. Admissions as used in the Civil Procedure Code operate as a waiver, relieving the other side from the necessity of tendering evidence to prove the fact thus admitted. An admission raises a presumption that is to be accepted as true until the contrary is shown. The admissions therefore, shift the onus and the burden of proving the contrary then lies on the other party. It cannot therefore be said that the rules as to burden of proof are absolute and imperative and must operate whether the parties want them or not. If in an agreement it is accepted that the burden of any alleged fact would be on the insured there is nothing in law to prevent such condition in the agreement from being effective. Such a condition cannot be brushed aside as invalid, inoperative or redundant. In Privy Council case Levy v. Assicurazioni Generali (1940 A C 791), "A condition in a policy of fire insurance issued by the respondent‑Company to the appellant provided (inter alia) that the insurance did not cover any loss or damage occasioned by or contributed to by certain specified occurrences, including "civil commotion", and further provided that "in any action, suit or other proceeding, where the Company alleges that by reason of the provisions of this condition any loss or damage is not covered by this insurance, the burden of proving that such loss or damage is covered shall be upon the insured". Held, that, as a matter of agreement between parties, the onus of proof of any particular fact, or of its non‑existence, may be placed on either party in accordance with the agreement made between them, and that therefore the onus of proving that one or other of the occurrences specified in the condition existed at the time of the fire which occasioned the loss was on the insured." The general rule is that the onus of proving that a condition has been broken rests upon the insurers. But, by express words in the policy, this onus of proof may be placed upon the insured. This proposition, after the decision in the above Privy Council case, has become the subject of an express decision. On similar principles, it was held in P L D 1964 Pesh. 159 that a party accepting the onus without demur cannot afterwards challenge its validity. In 1.939 M. L R 244, it has been observed that "Where a person accepts the burden of proof and undertakes to discharge it, he cannot be allowed to turn round and say that he has been wrongly treated in the matter of burden of proof." I am accordingly of opinion that the general rules as to burden of proof in the Evidence Act, can be modified by express words in a contract, including 8 a policy of insurance. Therefore, if the insured has accepted the onus of proof regarding any exception, there is, nothing illegal about it, and such clause in the agreement can be given effect to as a valid clause. The question then arises, whether at the time of the alleged loss due to looting of the properties of West Pakistani nationals by the local elements, there was civil commotion or a popular rising within the meaning of clause (b) of condition No. 6 of Riot and Strike Endorsement. The allegation in the plaint is that this loss occurred on 27‑11‑1971. In the letter dated 17‑4‑1972 written by the plaintiff intimating the loss to the defendants (Exh. 6/10) it has been stated that the loss had occurred, "in the months of November and December 1971" due to looting and disturbances. This fact was repeated in subsequent letters until February 16, 1973 when a legal notice was sent through the Advocate, that the said loss occurred on November 27, 1971. Therefore, the period during which the loss occurred was either November to December 1971, or 27th November 1971 as maintained by the plaintiff subsequently. It has then to be seen whether during the relevant period, or on the date in question, there was civil commotion, uprising, rebellion or revolution, in East Pakistan. Mr. Noor Mohammad, the only witness examined by the defendants was a West Pakistani working as Export Manager, Hamidia Jute Mills Ltd. Chittagong and he had stayed in East Pakistan until the surrender on 16th December 1971. He has stated in his evidence that during October and November 1911 the administration had collapsed and on 21st November 1971 the Indian troops had entered through the borders into East Pakistan. The police had joined Mukti Bahini and they were not co‑operating with the Civil Administration. There was organised looting and destruction of the property of West Pakistani nationals and a list of these residents had been prepared and they were being killed, looted or harassed, one by one. The idea was not to deprive certain individuals of their property but the purpose of this general looting was to paralyse the administration. In the White Paper on, "The Crisis in East Pakistan", published by the Government of Pakistan on 5th August 1971, it has been stated that the idea of overthrowing Government of Pakistan and to establish a free and independent Bangla Desh had been launched in the month of March 1971. Indian arms were smuggled, Pakistan Day was re‑named the Resistance Day and Pakistan National Flags were replaced by Bangla Desh Flags. The National Liberation Movement gained ground and the mobs attacked vital points armed with rifles, shot‑guns and daggers. Arms and ammunitions shops were looted and stocks of arms were piled up for use of mutineers. In April 1971 thousands of helpless Muslims who had entered Bengal at the time of Partition, were massacred. Even women and children were butchered 9n cold‑blood. These tragic events culminated in the war which was formally declared between India and Pakistan on 8‑12‑1911. But before this formal declaration of war the Indian troops had entered East Pakistan as would appear from the account given in "Pakistan's Crisis in Leadership" by Major‑General Fazal Muqeem Khan, published by National Book Foundation, 1973. In Chapter XI, page 159 it has been mentioned in that book, that India invaded East Pakistan openly and in strength on the night of November 20/21., 1971, the eve of Eid. This information was conveyed by C. O. S. Eastern Command to V. C. G. S. The Indian army that entered that night advanced with the support of tanks and there was a general escalation and flare up along the whole East Pakistan borders. The main battle was fought in Gharibpur 5 miles inside the Pakistan borders. There were also air attacks from either side. The guerilla activities in the interior became intense and by November 25, 1971 the multi‑armed, Indian army thrust towards Jessore, Sylbet, Comilla, etc. Jabba Nagar was occupied by the Indians on November 27, 1971. By December 3, 1971 India had captured Bodan. Thus, there was total flare up and conflagration in East Pakistan even on the date of the alleged loss namely 27th November 1971. It has been argued by the learned Advocate on behalf of the plaintiff that after the visit of President Yahyah Khan, the Army had taken over the Civil Administration and started the mopping up operations. That in fact what happened after March 1971 up to the time of formal declaration of war by India on 3‑12‑1971 was the result of an action of the Army Administration in suppressing the popular rising. That the looting etc. was the consequence of these army operations suppressing the mobs. The learned Advocate has thus tried to show, that the loss fell within the Riot and Strike Endorsement, condition No. 2, and the loss was therefore covered by the policy. Mr. Mansoor Ahmed Khan has referred to various books published on the subject of this conflict in East Pakistan. However, what is contemplated under condition No. 2 is the loss caused by the action of lawful authority in suppressing disturbance "directly" and not as a remote consequence. For instance, supposing the rioters had taken refuge in the godown of the plaintiff and the Army authorities had blown up the godown to dislodge the rioters. That would be the act of the Government suppressing disturbance, directly resulting in loss of the godown. But it cannot be argued that since the Army had taken over the administration and this had accelerated the mass uprising, therefore the loss was due to Army action. Nor is there any authority for the proposition that the civil disturbances continued only from March to May 1971 and thereafter the Army was in complete control and there were no disturbances worth the name, until the war was declared. Mere expression of opinion by some of the Authors in the books referred to by Mr. Mansoor Ahmed Khan, cannot be relied upon as gospel truth. For instance, Kalim Siddiqui has stated in his book "Conflict, Crisis and War in East Pakistan" (McMillan 1972), that India finally went to war when it became clear that the Awami League or the various Mukti Bahinis although armed and trained by India were incapable on their own, of dislodging or even seriously harassing, the Pakistan Army. The escalation of Indian enforcement between March and the invasion in November 1971: was a slow gradual process." For the purpose of this case however, it is not necessary to go into the question of ultimate causes of disturbances in East Pakistan. The Court must take judicial notice of the facts which are too well known to require any further proof. Hardly any evidence is required to prove that during November 1971 there were widespread disturbances all over East Pakistan resulting in loss of life and damage to property. These disturbances could well be termed as civil commotions falling within condition No. 6 of the Endorsement attached to the Policy. As discussed above it was for the insured to prove the negative by establishing that the loss or damage to the insured articles in the godown was not the result of civil commotion on date of its occurrence. Obviously, the plaintiff insured has failed to discharge this burden. The circumstances under which the loss occurred however, leave no room for any doubt on this question. I am unable to agree with the contention of the learned Advocate for the plaintiff, that the disturbances were caused due to coercive operations by the Army administration and damage was the direct result of such operations. Condition No. 2 has therefore no application to the facts of this case. The true meaning and the scope of this policy is that where the arm of the ordinary law is paralysed by commotion, disturbance or riot, the insurers are not liable for loss or damage caused C thereby. From the evidence and the surrounding facts and circumstances of which judicial notice can be taken, one could draw the inference and reach the conclusion that the damage complained of was the direct result of such civil commotion and serious disturbances in the country, bringing the case within the exception as laid down under condition No.

6. The result is that the entire suit must fail and it is accordingly dismissed but no order is made as to costs under the circumstances of the case. K. B. A. Suit dismissed.