Wruttembergische Und Badshce Vereinighe Verisicherung Sgeseli Schaften Aktiengeselischaft Hell and another vs M/s. Coromandel Crucibles Industry, Samalkota and others

Mrs. Amareswari, J.—The question involved in this revision is whether the suit should be filed at Kakinada or at Madras or in West Germany.

The plaintiff M/s. Coromandal Crucibles Industries, Samalkot filed the suit in the '' Munsifs Court at Kakinada. The first defendant is an Insurance Company of Germany represented by its Claims Survey Agents in India M/s. P. E. Hardcastle & Company, Bombay. The second defendant is M/s, P.E. Hardcastle & Company, Bombay. Defendant 3 is the owner of the ship, which brought the consignment. Defendant 4 is the agent of the 3rd defendant having his office at Madras. According to the plaintiff, the consignment fell short by 779 Kgs. He therefore, filed the suit against defendants 1 to 4 to make good the loss sustained by them. The defendants raised a plea that the District Munsifs Court, Kakinada has no jurisdiction and the dispute, if any, has to be decided in a court at Germany. According to the defendants, the bill of lading was executed in Germany and, therefore, it is the Court in Germany that has jurisdiction to try the suit. They also contended that as per Art. 12 of the Insurance Conditions read with Art. 48 of V.V.G. (Stated to be the German Law relating to Insurance matters), the suit will have to be filed in Germany. The trial court held that as per the Bill of Lading and the Certificates of Marine Insurance, the claims are payable at Madras and therefore the suit will have to be filed in a court at Madras. It returned the plaint to be presented before proper court. The plaintiffs preferred an appeal. In the appeal he had given up defendants 3 and 4 and confined the claim only to defendants 1 and2. The lower appellate court came to the conclusion that since the cause of action arose at Samalkot, the Court at Kakinada has jurisdiction.

In this revision it is contended by Sri V.L.N.G.K. Murthy, learned counsel for the petitioner that though the certificate of Marine Insurance provides that the claims are payable at Madras, the general condition of the policy under Art. 48 provides that if the contract has been medicated or concluded by an Insurance Agent, the competent jurisdiction for any and all law suits brought forth against the insurer on grounds of the contracted insurance will be that of the town or place where the Agent was having his business seat or his residence, if he does not have a business seal, at the time of the mediation or the conclusion of the contract. According to him, the Agent was not in the picture at the time when the contract was arranged and the consignor i.e. Lonza Company has its Office at Germany, and the Insurance Company is also situated in Germany and, therefore, only the courts in Germany will have jurisdiction to try the suits arising out of the contract and covered by insurance.

The case came up for hearing in the first instance before our learned brother Muktadar, J., who did not agree with the contention advanced on behalf of the petitioners. The learned Judge expressed the view that the Court at Kakinada has jurisdiction to entertain the suit. However, in view of the importance of the question, the learned Judge referred it to a Division Bench.

The contract of insurance covers the risk of transit up to Samalkot where the plaintiff resides. It is at Samalkot, the plaintiff had realised that the consignment was short of 779 Kgs. It cannot, therefore, be said that no cause of action has arisen at Samalkot and that the Court at Kakinada ceases to have jurisdiction over the dispute. But what is contended on behalf of the petitioners is that under Art. 12 of the Insurance Policy read with Art. 48 of the V.V.G. the Courts in Germany alone have jurisdiction to try the suit. In effect what is submitted is that by agreement the parties have provided for an exclusive forum and excluded all Courts in India. We have gone through Art. 12 of the Insurance Policy which is as follows:

"Art. 12 Jurisdiction."

For disputes arising out of the general policy are competent for jurisdiction according to Art. 48 V.V.G. the Courts of the place at which the Assurer -- with more insurers the one mentioned as a leading Insurer, has his principal branch (business office)".

The language of the Article does not indicate that the parties intended to have an exclusive forum by excluding all Courts in India. In a matter relating to ouster of jurisdiction, the language must be specific and unambiguous. Otherwise, a Court which has jurisdiction to try a suit will be deprived of its jurisdiction. In the instant case, the cause of action has arisen at Samalkot and hence, the Court at Kakinada has jurisdiction to try the suit. In our opinion, the general condition contained in Art. 12 does not have the effect of ousting the jurisdiction of Court at Kakinada.

In this connection, we may refer to a decision of a Division Bench of our High Court in The Black Sea Steamship U.L. Lastochkina Odessa, Union of Soviet Socialist Republic and Another Vs. The Union of India, . This is a case arising out of International Trade and Commerce and cause of action arose in two countries. The learned Judges held that once the parties are amenable to jurisdiction of a Court, it is open to the Court in a particular country, though the parties have agreed to have their actions adjudicated upon in a different country to entertain the cause and adjudicate upon it, if it considers that the ends of justice will be better served by a trial in its country. We are in respectful agreement with the view expressed by the Division Bench of our High Court. We feel that ends of justice will be better served by a trial in the Court at Kakinada, rather than in the Court at Germany.

For the above reasons we agree with the tentative opinion expressed by Muktadar, J, and held that the Court at Kakinada has jurisdiction to try the suit and the preliminary objection raised on behalf of the defendants is devoid of force.

In the result, the order under revision is confirmed and the revision petition is dismissed but in the circumstances without costs. The trial Court is directed to dispose of the suit as expeditiously as possible.

Petition dismissed.