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Judgment
Shivakant Prasad
This is a suit claiming a decree for a sum of Rs.73,28,754.54/- against the defendants as pleaded in paragraph 9 of the plaint together with interim interest and interest upon judgment @ 24% per annum and other consequential reliefs. The plaintiff is engaged in the business of manufacture and sale of refined rice bran oil (hereinafter referred to as the 'said oil') which is manufactured at the plaintiff's facilities at G.T. Road, Pemra, P.O.- Jotram, Burdwan and is thereafter transported to various parts of the country by tankers through various transport companies having oil tankers. The plaintiff obtained an Insurance Policy known as Marine Cargo Open Policy from the defendant no. 1 under which the plaintiff was insured for loss arising from transit risk including accident etc. for the purpose of indemnifying itself from any loss.
The defendant no. 2 is a transporter of goods carrying on business under name and style of 'Amrit Transport' as sole proprietor through which concern, pursuant to orders received, the plaintiff despatched 27,800 and 27.960 MT of the said oil to one Marico Industries Limited by two tankers of the defendant no. 2 bearing no. WB-03A/3149 and WB-23A/4816 (hereinafter referred to as the first and second consignment) which were despatched on 28.9.2003 and 10.10.2003 respectively but could not ultimately be traced out and/or were lost, as informed by the defendant no.
It is contended that the first and second consignments of oil were valued Rs. 13,20,500/- and Rs. 13,70,040/- respectively.
The plaintiff also entered into another contract with defendant no. 2 for transportation of 27,000 MT of the said oil, the value whereof was Rs. 13,23,000/- which was loaded in a tanker bearing no. WB19A/3925 and dispatched on 12.10.2003 but the said tanker met with an accident at Arroghat, Jaspur and the entire oil was lost. Such loss has been duly confirmed by the defendant no. 2 and the surveyor of the defendant no. 1.
Thereafter plaintiff lodged claims under the Insurance Policy with the defendant no. 1 but as per plaintiff's contention, the defendant no. 1 failed to make payment of the said sums on account of loss of goods suffered by the plaintiff by raising false and incorrect contentions. The plaintiff has claimed that it has suffered total loss of Rs. 73,28,754.54/- as per the particulars hereunder-
PARTICULARS
i) Principal amount for the First Consignment Rs. 13,20,500.00
Interest @ 18% p.a. from the date of dispatch
i.e. 28.9.2003 to 7.5.2008 Rs. 10,95,978.82
ii) Principal amount for the Second Consignment Rs. 13,70,040.00
Interest @ 18% p.a. from the date of dispatch
i.e. 10.10.2003 to 7.5.2008 Rs. 11,29,663.67
iii) Principal amount for the Third Consignment Rs. 13,23,000.00
Interest @ 18% p.a. from the date of dispatch
i.e. 12.10.2003 to 7.5.2008 Rs. 10,89,572.05
Total Rs. 73,28,754.54
It is submitted by the Plaintiff that the defendant no. 1 is obliged to make payment of the said sums to the plaintiff in terms of the contract of insurance for the loss suffered by the plaintiff. The defendant no. 2 is also jointly and severally liable along with the defendant no. 1 for the loss and damage which the plaintiff has suffered. The plaintiff duly served notice under Carrier's Act upon the defendant no. 2 but to no effect.
The plaintiff has pursued remedy under the Consumer Protection Act, 1885 between the period July 2006 to Marc, 2008 and ultimately by an order dated 31st March 2008, the National Consumer Disputes Redressal Forum has held that the plaintiff will be entitled to obtain benefit of Article 14 of the Limitation Act, in the event a suit is filed.
The defendant no. 1 contested the suit by filing written statement whereas the defendant no. 2 did not enter appearance in the suit. The defendant's case in brief is that the suit is liable to be dismissed for misjoinder of parties and causes of action as the cause of action never arose out of the same transaction and common questions of law and facts are not involved in respect of the claims made by the plaintiff against defendants and that the defendant no. 1 is not jointly liable with the defendant no. 2.Whiledenying and disputing material particulars made in the plaint, the defendant no. 1 has specifically contended that the complaint regarding the alleged loss was lodged with the Burdwan Police Station after a time gap of one and half months of the incident with no plausible explanation for such delay in intimation of the accident. The carrier's issuance of non delivery certificate to the plaintiff was after expiry of the limitation period and thus the prospect of recovery, if any, against the said carrier stood prejudice due to deliberate inaction of the plaintiff in violation of the duty of assured as provided in the relevant clause of the policy as the plaintiff has failed to take reasonable step against the carrier to recover the missing consignment.
The said carrier lodged a complaint with Sankrail Police Station regarding missing of the vehicle being WB-23A-4816 carrying other consignment from Budge Budge to Nepal. It is specifically contended that no payment can be made by the defendant no. 1 if the conditions of the Insurance Policy has been violated because plaintiff has intentionally suppressed the actual carrying capacity of the tanker from the defendant no. 1. Accordingly, the defendant no. 1 has prayed for dismissal of the suit with exemplary costs.
On the above pleadings the following issues are framed on recast-
1) Is the suit maintainable in law and in fact?
2) Is the suit barred by limitation?
3) Has the plaintiff cause of action?
4) Whether the plaintiff pursued any other remedy on the self-same cause of action?
5) Whether the plaintiff is responsible for overloading the oil in the tanker?
6) Whether the tanker through which oil was being transported had the capacity to take the required load?
7)Whether the plaintiff's business for transportation of the consignments was duly indemnified for any loss in transit by a valid Marine Cargo Open Policy issued by the defendant no. 1 for any loss or damage?
8) Whether the plaintiff sustained any loss and/or damages due to the laches on part of the defendants?
9) Is the plaintiff entitled to a money decree as claimed?
10) To what relief or reliefs, is the plaintiff entitled?
During trial the plaintiff has adduced evidence but the defendant did not adduce any evidence in support of its written statement. The plaintiff has adduced in evidence the following documents-
SERIAL NO.
1
Exhibit A
Insurance Policy No.100900/21/03/4400010 issued by National Insurance Company Ltd.
2
Exhibit B
Invoice Cum Challan dated 28.9.2003 of the consignment to M/s Marico Industries Limited, Maharashtra by tanker no. WB03A/3149
3
Exhibit C
Letter of Amrit Transport Company dated 08.10.2003 with regard to the whereabouts of the tankers No. WB23A /4817 and WB03A /3149 which were loaded on 20.9.2003 and 28.9.2003 respectively.
4
Exhibit D
Letters of the plaintiff dated15.10.2003& 22.10.2003 to Amrit Transport with regard to whereabouts of the tankers viz, WB03A/3149,WB23/4816&WB13A/3925.
5
Exhibit E
Letter of Amrit Transport dated 23.10.2018 to Sethia Oils Limited regarding information of the tankers no.WB03A/3149,WB23A/4816&WB19A/3925.
6
Exhibit F
Letter dated 3.11.2003 issued by Sethia Oils Limited to National Insurance Company Limited intimating Non-delivery of the consignment of the Refined Rice Bran oil to the consignee M/s Marico Industries Ltd. Jalgaon
7
Exhibit G ( Collectively)
a) Letter dated 04.11.03 and 05.11.03 by the transporter to the plaintiff informing about accident of tanker no. WB 19A/3925
b) Letter dated 04.11.03 by plaintiff to defendant no.1to appoint surveyor to assess loss
c) Letter dated 05.11.2003 by transporter to plaintiff in response to its query regarding the tank lorries bearing No. WB 03A/3149 and WB 23A/4816.
8
Exhibit H
Invoice dated06.11.2003issued by Sethia Oils Limited for transport of 27.000 MT Rice Bran Oil to M/s Marico Industries
9
Exhibit I
Letter dated 12.11.2003 by the transporter to the plaintiff with regard to the tanker No. WB03A/3149 and WB23A/4816 that their representatives have not yet been able to locate the tankers.
10
Exhibit J ( collectively )
a) Letter dated 13.11.2003 by Er. S.B. Ghose Surveyor cum Investigator appointed by National Insurance Co. Ltd. informing the plaintiff and the defendant no.2 about major accident of Tanker No. WB 19A/3925 and calling upon the defendant no 2 the transporter to explain for not displaying the name of the transporter and the capacity of the tanker on its body.
b) Letter dated 17.11.2003 by the defendant no.2 to the plaintiff about lodging an F.I.R at Burdwan Police Station against the missing two lorries vide Case No. 1529 at 16.11.2003.
c) Letter dated 25.11.2003 to Er. S. B. Ghosh enclosing Xerox copy of police report of Jaspur P.S. relating to accident of said tanker, Invoice, challan, C/Note, Weight slip and for requirement of any other documents / papers.
d) Letter dated 6.12.2003 by the plaintiff to the transporter informing him that it has suffered a loss of RS. 13,23,000/- due to road accident of Tanker Being No. WB 19A/3925. The Plaintiff asked the transporter to indemnify the loss along withRs.25,000/- paid as advance for settlement of the loss.
11
Exhibit K ( collectively)
Weight Slip dated 28.9.2003, Road challan /Authorization letter of Amrit Transport, Weighing ticket of Sri Krishnan Enterprise dated 28.9.2003 in respect of Vehicle No. WB 03A/3149
12
Exhibit L ( collectively)
Weight Slip dated 10.10.2003, Road challan /Authorization letter of Amrit Transport, Weighing ticket of Sri Krishnan Enterprise dated 10.10.2003.in respect of Vehicle No. WB23A/4816
13
Exhibit M ( collectively)
Road challan /Authorization letter of Amrit Transport, Weighing ticket of Sri Krishnan Enterprise dated 12.10.2003, Proforma Invoices cum Challans of Plaintiff dated 10.10.2003 and 12.10.2003 in respect of Vehicle No. WB 19A/3925
14
Exhibit N
Letter dated 15.10.2004 by the plaintiff to the defendant No. 1 with regard to the claim for leakage of refined rice bran oil due to accident of Tanker no. WB 19A/ 3925 of Amrit Transport on 3.11.2003
15
Exhibit O
Letter dated 26.10.2004 by the plaintiff to the defendant No. 1 forwarding a Xerox copy of letter of Burdwan Central Excise Division, Government of India dated 20.11/03 informing that for claim of refund, Central excise is not admissible
16
Exhibit P (Collectively)
Letters dated 24.11.2004, 9.12.2004 27.01.2005 and 08.02.2005 by the Plaintiff to the defendant No. 1 with regard to Claim due loss of Refined Rice Bran oil due to accident of Tanker no. WB 19A/3925 on 03.11.03
17
Exhibit Q ( Collectively)
a) Letter dated 14.3.2005 by Defendant no. 1 to Plaintiff to forward some documents to it with regard to the Claim due to accident.
b) Letters dated 18.3.2005, 6.4.2005, 6.4.2005 by Plaintiff to Defendant no.1 submitting the documents for loss of consignments carried by three tankers viz,WB19A/3925,WB3A/3149& WB23A/4816.
18
Exhibit R
a) Letter dated 29.6.2005 by Defendant no.1 to Plaintiff on the question of overloading and whether any bill was raised by the plaintiff Company on the consignee for the aforesaid consignment and whether any payment was received by the plaintiff from the consignee against the said consignment?
b) A letter dated 1.7.2005 by the Plaintiff to Defendant no.1 giving clarification with regard to the questions put forward by Defendant no.1.
19
Exhibit S
a) A letter dated 21.7.2005 by Plaintiff to Defendant no.1 where the plaintiff mentioned that its claims were held due to the overloading and in this letter it explained the issue of overloading to the Defendant no.1.
b) Letter dated 16.8.2005 by Plaintiff to Defendant no.1 reminding and requesting to look into the matter and settle the claims expeditiously.
20
Exhibit T
A letter dated 09.09.2005 by the Defendant no.1 to Plaintiff requesting for some documents in original.
21
Exhibit U
a) Letter dated 16.8.2005 by Plaintiff to as reminder to the defendant no.1 requesting it to look into the matter and settle the dispute expeditiously
b) A letter dated 16.9.2005 by Plaintiff to Defendant no.1 in reply to its letter dated 9.9.2005 with regard to the requirement of original documents.
22
Exhibit V
Letter dated 30.3.2006 by plaintiff to requesting the defendant no.1 to settlement of pending Marine claims for loss of three consignments due to accident and non delivery.
23
Exhibit W
Letter dated 10.7.2006by defendant no.1 to plaintiff with regret and inability to accept any liability under the three captioned claims because
a) The Plaintiff did not inform the police nor took legal action against defendant no.2.
b) Tankers were carrying excess of its capacity
24
Exhibit X
Letter dated 11.7.2006 by plaintiff to the defendant no.1with a request to provide a copy of Survey Report.
Issue nos. 2, 3 and 4 are taken up together for convenience in discussion and for brevity.
It is well settled that causes of action are bundle of facts in a suit. In so far as the point of limitation is concerned it is for the Court to first decide whether the plaintiff's claim or any part of the claim is barred by limitation. The plaintiff has averred in paragraph 15 that in between the period July, 2006 to March, 2008 the plaintiff has pursued remedy under the Consumer Protection Act, 1885 and the National Consumer Disputes Redressal Forum has held that the plaintiff will be entitled to obtain benefit of Article 14 of the Limitation Act, in the event a suit is filed. The suit has been filed on 12th May, 2008. So, the suit is filed within the period of limitation. The plaintiff has an insurance policy from the defendant no.1 insuring its goods and its goods were lost during transportation by the defendant no.2, hence, the plaintiff has cause of action against the defendants. The remedy pursued under the Consumer Protection Act cannot be a bar against the instant suit in the light of leave granted by the National Consumer Disputes Redressal Forum. Thus, issue 2 is answered in the negative and issues 3 and 4 in the affirmative.
Regarding Issue no. 7 Mr. Gopinath Khandelwal, Company Secretary of the plaintiff's company has deposed in this suit and proved on evidence the above mentioned documents as Exhibits. He has stated on oath in response to question nos. 10 to 15 proving the Insurance Policy (Exhibit-A) issued by the defendant no. 1 in favour of the plaintiff which is valid for the period from 04.04.2003 to midnight of 03.04.2004 and it covers all risks including SRCC relating to packaging description being Bulk Cartoon, Tankers, Tins and other packages Gunny bags and the commodity descriptions viz. many articles including rice bran, raw and refined oil. In answer to question no. 16, he stated that since 1989 plaintiff is getting insured through the defendant no.1 except for three years during which time the insurance done was from United India Insurance Company.
The first and second consignments were dispatched on 28.9.2003 and 10.10.2003 respectively which were lost and could not be traced as per the report submitted by the defendant no. 2 transporter. The third consignment was dispatched on 12.10.2003. Therefore, I find that the two consignments were lost and third consignment met with an accident as per the report of the police as a result the plaintiff suffered loss in transit which were duly covered by the Insurance Policy. Accordingly, I hold that plaintiff's business for transportation of the consignments was covered for any loss in transit by a valid policy Exhibit A issued by the defendant no. 1.
Issue nos. 1, 5, 6 and 8
Challenging the maintainability of the suit, Mr. Utpal Bose Learned Sr. Advocate for the defendant no. 1 by inviting attention of this court to paragraph 5 of the plaint has submitted that there is no proof of the orders received by the plaintiff for the dispatch of 27,800 MT and 27,960 MT of the said oil to Marico Industries Limited on 28.9.2003 and also on 10.10.2003. There is no averment as such made in the plaint as to when the two consignments got lost. It is submitted that this factual aspect of the case is required to be proved to show the genuineness of the claim made by the plaintiff under the Insurance Policy as to who placed the orders for dispatch of the consignments. The consignments generally reaches the destination within seven days from the date of dispatch. So, there is element of suspicion in the claim of the plaintiff for the reason that the report was not taken on enquiry from the defendant no. 2 within proximate time and that no such enquiry in respect of such loss of consignments was even made by the plaintiff. It is further pointed out that the plaintiff has not placed material evidence on record regarding contract for carriage of the consignments of 27,000 MT of the said oil for transportation by the defendant no. 2. It is stated that the third consignment was dispatched on 12.10.2003 but the plaintiff has not given any notice to the carrier/transporter claiming loss of the consignments.
It is further argued by Mr. Bose that the defendant no. 1, being the insurance company, would be liable and responsible for the payment of claim of the plaintiff for the loss of goods in transit as per the Insurance Policy Exhibit-A only when there is no breach/violation of the clauses embodied in the Insurance Policy. Accordingly, the defendant no. 1 has denied the contention as made in the paragraph 5 of the plaint that pursuant to orders received, the plaintiff had despatched the said consignments to Marico Industries Limited or to any other party by two tankers of the defendant no. 2 bearing no.WB-03A/3149 and WB-23A/4816. It has also been denied that the said consignments have been lost in the transit and not yet traced out by the plaintiff and/or defendant no. 2. It has further been submitted that the complaint regarding the alleged loss was lodged with Burdwan Police Station after a time gap of one and half months of the incident with no plausible explanation for such delay or lack of intimation to the defendant no. 1. Mr Bose further pointed out that such conduct on part of the plaintiff raises a suspicion as to whether at all consignments were so dispatched by the plaintiff through the transporter defendant no. 2 herein. It is also argued that no legal action is alleged to have been taken by the plaintiff against the missing consignments entrusted to the defendant no. 2 for transportation of the said oil and further that the tanker did not have the capacity to transport 27 MT of cargo and as per the report of the surveyor, there was a gross negligence on the part of the Assured and the accident might reasonably be attributed to over loading of the cargo in the tanker.
It is also argued that there has been wilful misconduct of the plaintiff in not enquiring about the status of the transportation and that the tanker was overloaded beyond the capacity of the tanker. Mr. Bose invites my attention to exclusion clause 2(2.1) of the Insurance Policy Exhibit-A which provides that in no case shall the insurance cover loss, damage or expense attributable to wilful misconduct of the assured and in view of said Exclusion clause, no claim of the plaintiff can be covered for any loss or damage, expense etc. for the reason of misconduct of the plaintiff. He argues that the defendant no. 1 is not liable for the loss, if any, suffered by the plaintiff in as much as the plaintiff could not establish his claim for the consignment of 27MT of oil for transportation by the said carriage/tankers as the capacity of the tankers was not made known to the defendant no.1.He also argues that there has been fraudulent practice by the plaintiff when by one of its letter written to the defendant no.1, plaintiff states that it is a standard market practice in India for transporter to save road tax by declaring low capacity of their tankers and trucks and carrying higher quantity of cargo as per their actual carrying capacity.
It is further pointed out that the driver and khalasi (helper) of the tanker were not enquired by the plaintiff and no steps against the defendant no.2 taken since clause 8 of the said Policy provides for minimising loses as a duty of the Assured which has not been adhered to. Mr. Bose adverted to reasonable despatch clause10 relating to avoidance of delay which provides a condition under the Insurance Policy that the Assured shall act with reasonable despatch in all circumstances within their control and argued that the defendant no. 2 Amrit Transport has employed tanker WB-03A/3149 for arranging to load the cargo but it has not named the driver of the vehicle and is undated, there is no signature on weighing ticket dated 28th September, 2003 for loading 27,800 Kg by the said vehicle. It is revealed from documents Exhibit-K collectively that the consignment was loaded on 28.9.2003 as per public weighing ticket. It is evident from a letter dated 7th October, 2003 being part of Exhibit-A that Ashok Sethia Executive Director of plaintiff company wrote letter to Amrit Transport defendant no. 2 which reflects that consignment of refined rice bran oil to Jalgaon by tanker no. WB-23A/4817 on 20.09.03 and tanker no. WB-03A/3149 on 28.09.2003 were sent by the defendant no. 2 but both the tankers have not reached at the destination although considerable time has passed since the date of dispatch of the tankers and thereby the plaintiff sought for information immediately about the latest position of those tankers. In reply to the said letter Exhibit-A, the defendant no. 2 informed the plaintiff by its letter dated 8.10.2003 (Exhibit-C) that the said tankers were loaded on 20.09.03 and 28.09.03 respectively from Burdwan for carrying said oil to Jalgaon and two tankers were proceeding towards its destination but till then the said tankers have not reached its destination and defendant no. 2 was trying hard to locate the tankers and assured the plaintiff that they will reach its destination very soon. Exhibit-L relates to consignments carried by a lorry no. WB-23A/4816 wherein Sarma as the driver has been authorised for transporting 27,960Kg of the said oil on 10thOctober, 2003. As against this, Mr Bose refers to invoice cum challan being part of Exhibit-M wherein Avtar Singh driver has been assigned to drive the tanker no. WB-23A/4816 in place of Sarma. I find from Exhibit-M that defendant no. 2 entrusted M/s Sarma for transporting goods by lorry no.WB-9A/3925 to transport 27,000Kgon 12th October, 2003. Invoice cum challan dated 12.10.2003Exhibit-M reflects that consignment was to be carried by the driver Jasbir Singh. So it is submitted that there is wilful misconduct on the part of the plaintiff. By letter dated 22nd October, 2003 Exhibit-D, the plaintiff company called upon the defendant no.2 to inform the whereabouts and latest position in respect of the consignment of the said oil by the said tankers loaded on 28.9.2003, 10.10.2003, 12.10.2003 from Burdwan for carrying the consignments to Jalgaon but the tankers have not yet reached at the destination despite considerable time having been lost. In response to the letter dated 15.10.2003 and 22.10.2003 of the plaintiff, the defendant no.2 Amrit Transport further informed that they have sent their representative to trace out the three tankers but no message was received despite the best effort made which fact is reflected from the letter dated 23.10.2003 Exhibit-E of the defendant no. 2 and the letter dated 12.11.2003 Exhibit I by the transporter to the plaintiff with regard to the tanker No. WB03A/3149 and WB23A/4816.
Letter dated 15.10.2004 Exhibit-N issued by the plaintiff to the defendant No. 1 reflects that the plaintiff registered its claim for leakage of refined rice bran oil due to accident of Tanker no. WB 19A/3925 of Amrit Transport on 3.11.2003 dispatched from Burdwan to Jalgaon. It further reflects that the final survey cum investigation report received from Er.S.B. Ghosh, Surveyor-cum-Investigator, Ranchi, loss due to accident was assessed at Rs.10,83,170.00/-. The point no. 15 relates to recommendation of the said surveyor-cum-investigator as under -
Loss Recommended is for Rs.10,83,170/- subject to the following:
a) Submitting vehicle Registration Book of Tanker (WB-19A-3925) alongwith Road Permit. Fitness of the Tanker.
b) Authentication of Selecting the Amrit Transport as a Registered Transporter/Carrier.
c) Reasons for not lodging claim on the carrier.
d) Producing Sri Pritam Singh of Amrit Transport whenever so desired by M/s NIC.
The said surveyor was not examined by the defendant no.1.
In reply to the said requirement, the plaintiff by its said letter Exhibit-N made it clear that following documents were submitted-
a) Xerox of certificate of Registration and Fitness certificate of the tanker no. WB19A/3925.
b) Xerox of trade licence no. 858 and professional tax challan of Amrit Transport in support of authenticity of Amrit Transport.
c) Xerox copy of claim letter on Amrit Transport along with relevant regd. a/d card for the loss suffered in transit by the plaintiff.
d) Regarding production of Mr Pritam Singh of Amrit Transport before M/s. NIC as recommended by the surveyor, plaintiff made it clear that they are not police authorities empowered to call and produce any person except requesting Mr. Pritam Singh to come to the office of M/s. NIC.
Thus relying on the claim lodged with the defendant no. 1 on behalf of the plaintiff, Mr. Sakya Sen learned Advocate has submitted that under the said letter Exhibit-N, the plaintiff has sufficiently satisfied the condition for the claim of the loss recommended by the said surveyor cum investigator. However, it was not within the power of the plaintiff to produce said Pritam Singh of Amrit Transport. That apart, there is no communication by the defendant no.1 M/s. NIC calling upon to hear said Pritam Singh. Mr. Sen brings my attention to copy of a letter dated 17.11.2003 of the defendant no. 2 addressed to the plaintiff that an FIR was lodged at Burdwan Police Station against the missing two tankers vide case no. 1529 dated 16.11.2003 and a letter dated 25th November, 2003 being the part of Exhibit-J to argue that plaintiff wrote to the said surveyor in response to the latter's letter enclosing a xerox copy of police report of Jaspur Police Station relating to accident to tanker no. WB 19A/3925 along with copies of invoice, challan, C/Note, weight slip and other papers relating to said tanker for verification. Police report dated 15.11.2003 in Hindi with its translated copy in English would clearly reveal that the said vehicle met with an accident on 2.11.2003 in the mid night in Jaspur Raigarh at the crossing which was carrying 27 tons of refined oil loaded from Sethia Oil Limited for consignee namely Marico Industries Jalgaon due to the tanker's steering getting jammed and tanker turning upside down in a deep ditch.
Thus, it is argued by Mr. Sen that the transportation of the consignment of the tankers cannot be called in question. Adverting to question no.219 and answer given by the plaintiff witness namely, Gopinath Khandelwal in respect of the capacity of the vehicle that it had capacity to load only 16600 kgs has been answered by the witness that it is the registered capacity but not the carrying capacity. Mr. Sen on the issue of overloading relied on a decision reported in case of M/s. ICICI Lombard General Insurance Company Ltd. Vs Suresh Mehta & Anr. reported in 2017 SCC Online Del 9511 wherein Delhi High Court relied on the observation of the Hon'ble Supreme Court in the case of Lakhmi Chand Vs Reliance General Insurance (2016) 3 SCC 100 wherein it was held that compensation under an insurance should not be denied unless and until the clause which is pleaded to be in breach is a reason for happening of the accident and condition.
In Lakhmi Chand (supra) Hon'ble Apex court has relied upon the following passage of the Hon'ble Courts decision in Narcinva V KamatVs. Alfredo Antonio Deo Martins (1985) 2 SCC 574:
"69. The proposition of law is no longer res-integra that the person who alleges breach must prove the same. The insurance company is, thus required to establish the said breach by cogent evident. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability."
And the following paragraph of the decision in National Insurance Co. Ltd. Vs Swaran Singh (2004) 3 SCC 297:
... The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defence available to the insurer against either the insured or the third party. The insurance company to avoid liability, must only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon the facts breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident."
And observed as follows:-
It becomes very clear from a perusal of the above mentioned case law of this court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent-Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V.Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was in fact caused on account of rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR No. 66 of 2010 was registered for the offences referred to supra under the provisions of the IPC. There facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in the Revision Petition No. 2032 of 2012 is liable to be set aside, as the said findings recorded in the judgments are erroneous in law."
Applying the said principle of law, Delhi High Court in M/s. ICICI Lombard General Insurance Company Ltd.(supra)has also held that overloading of the vehicle cannot be a ground for rejection of the plaintiff's claim on the ground that there is breach of terms of insurance policy.
Mr. Sen has also relied on the above cited case of Lakhmi Chand (supra) to argue that burden to prove breach of term under Insurance Policy is on the insurance company and not on the claimant and relied on para 14, 15 and 16 of the decision. Mr. Sen argues that the Defendants have not adduced any evidence, far less in respect of overloading causing the accident. He also submits that the Plaintiff has been submitting returns with the Defendant no.1 and paying its premium since 1989 and that the Plaintiff was never warned about the same by the Defendant no.1. He also submits that in July 2004, the defendant no.1 had allowed similar claim against a tanker which was carrying more than the registered capacity. He refers to Plaintiff's letter dated 21st July 2005 Exhibit S written to the defendant in such respect. He further submits that the defendant no.1 has not denied such statements and has not led any evidence to the contrary.
Per contra: Mr. Bose has argued that there has been breach of contract of insurance which permits the insurance company to disown its liability to compensate the damage, if any suffered by the plaintiff. I do agree with such submission but it is well settled principle of law that if breach of a term of a contract of insurance so permits the insurer to complain of the breach is required to prove that the breach of the term of contract of insurance has been committed by the plaintiff who has claimed under the contract. It has been decided by judgments above that in a situation like this, such complain of breach of term would fail if the insurer does not lead any evidence.
In the present case, the defendant being the insurer who claims breach of term as discussed above has not led any evidence but has attempted to prove its case by way of cross examination of the plaintiff witness by inviting my attention in particular to questions 140 to 219 the deposition of the plaintiff's to argue that a) the Plaintiff had not done background verification of the defendant no.2 and the tankers; b) the Plaintiff had not followed up on the fate of the consignment in reasonable time; c) local authorities were not informed of the incident; d) no legal proceeding was initiated against the transporter and e) the tanker was carrying more than its declared capacity which was not informed to the insurance company. I am unable to persuade myself with such submission of Mr. Bose in the context of my discussion above. It may be a fact that the Plaintiff normally uses various transporters and defendant no. 2 transporter was used for the first time in respect of the transportation of the said consignment. In this regard Mr. Bose submitted that the antecedents of the transporter was not checked by the plaintiff. Secondly, relevant statutory or other documents of other transport was not looked into before engaging it. Thirdly, no enquiry about the authority of Amrit Transport was made. From the deposition of the plaintiff's witness I am of the view that the Plaintiff has acted like a reasonable man and the answers of the Plaintiff's witness that they had enquired about Amrit Transport from other transporter and had checked the documents of the time of loading at the factory of the plaintiff seem satisfactory and has not been controverted by any evidence on behalf of the defendant no.1. There does not appear to be any inordinate delay in registering the claim with the defendant no. 1 or enquiring about the status of the consignment from the defendant no. 2 and I find that the plaintiff has acted reasonably. This Court has found that communications between the plaintiff and defendant no. 2 are writ large to understand that the plaintiff very eagerly was enquiring about the said oils loaded on the tankers in question belonging to the defendant no. 2 as the witness has well answered to question no. 175 that immediately after 15-20 days, enquiry was made from the defendant no. 2.
In this case repeated reminders were given to the defendant no. 1 on behalf of the plaintiff to look into the claim made under the contract of insurance as reflected from the letter dated 16th August, 2005 addressed to the Division Manager of the defendant no. 1 Exhibit-S collectively and as per Exhibit-R collectively. The claim so registered with the defendant no. 1 was in respect of loss of refined rice bran oil due to accident of tanker and the theft of two tankers on the transit. There is no dispute as regards accident of the tanker. No evidence has also been produced to show that the other two tankers didn't go missing or that tankers' going missing is suspicious. It would appear from the Exhibit-T dated 9.9.2005 that the defendant no. 1 called upon the plaintiff to produce originals of certain documents. The plaintiff by his letter dated 30th March, 2006, Exhibit-V called upon defendant no. 1 to settle the pending marine claims informing that as marine insurers and its contract is collateral to the contract of affreightment as embodied in the consignment note issued by the carrier and there has been no failure on the part of the assured/ plaintiff and for which under the policy the defendant no. 1 as Marine insurer should be aware that in case of all risk cover there is no onus on the part of the policy holder to substantiate the cause of loss. It is only sufficient if proved that there is loss and quantifiable loss. By letter dated 10.7.2006 defendant no. 1 wrote to the plaintiff that though documents and relevant survey investigation report have been submitted nevertheless no police authority nor any legal action against the transporters have been taken so the defendant no. 1 was in difficulty to accept that the tankers certified to carry far less quantity of oil, were carrying oil far in excess of its capacity. However, with the rider that such claims may be reviewed without prejudice. The plaintiff by its letter dated 11th July, 2006 had made request for the survey report conducted by the defendant no. 1. The survey report clearly provides for assessment of the loss suffered by the plaintiff but yet the defendant no. 1 has been deferring the claim to be reviewed later.
In the context of what has been discussed above and bearing in mind the principle of law discussed in the above cited decisions I am of the considered view that under the terms of contract of insurance, having interpreted the terms of the contract and for want of proof of alleged breach of terms and conditions by the Plaintiff, the plaintiff is entitled to the claim as prayed for. It is settled principle of law that violation of terms and conditions of policy of insurance and its burden of proof is on the insurer and the defendant no.1 has failed to discharge such burden in this case. From the documentary evidence relating to correspondence between plaintiff and the defendant no. 2 and the defendant no. 1 it can safely be said that admittedly the plaintiff is the concern manufacturing the said oil which are transported at various places obviously through transporters. The police report as discussed above is evident of the fact that said oil was transported by Amrit Transport on being consigned to the defendant no. 2 by the plaintiff under challan. On behalf of the defendant no. 1 much has been argued to discredit the claim of the plaintiff on certain grounds as mentioned above but the burden of proof is writ large on defendant no. 1 to have enquired on its own to ascertain that the plaintiff and defendant no. 2 are hand in glove and no such consignments were ever transacted. It is trite law that in contract of insurance the rights and obligations are governed by the terms of the contract which are no doubt required to be strictly construed to determine the extent of liability of the insurer (See: 2009(5) SCC 599). It is well settled law that under Insurance Policy, the insurer undertakes to indemnify for the loss suffered by the insured on account of risk covered by the policy, ergo, the defendant no. 1 as the insurer is liable to make good to the plaintiff, the insured under the contract of insurance, for the loss of goods in transit. Accordingly, the above issues are answered in favour of the plaintiff.
In view of my discussions and findings in the forgoing issues, issue nos. 9 and 10 are answered in the affirmative in favour of the plaintiff by holding that the plaintiff is entitled to a decree for principal sum of Rs. 40,13,540/- being the value of the consignments together with interest @ 9% from the date of the institution of the suit till satisfaction of the decree. Considering that the claim is of the year 2003 and the suit has been pending for a long time, in the event the principal sum and interest thereon is not paid within a period of 3 months from date, the plaintiff shall also be entitled to interest @ 9% from 1st January, 2004 till the institution of the suit.
I make it clear that defendant no. 2 the carrier is jointly liable to compensate the claim of the plaintiff.
There will be no orders as to cost.
The suit is decreed accordingly.