Delhi District Court
M/S Sss Trade Zone Pvt. Ltd vs United India Insurance Co. Ltd on 14 September, 2022
IN THE COURT OF SHRI SANJAY SHARMAI :
DISTRICT JUDGE (COMMERCIAL COURT)
EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 209/2019
M/s SSS Trade Zone Pvt. Ltd.
Through its Director/Authorized Representative
50, CSC, Transport Center,
Punjabi Bagh
Delhi - 11035 ................Plaintiff
Versus
United India Insurance Co. Ltd.
D8, CS Azad Marg, Vikas Marg,
Laxmi Nagar,
Delhi - 110092 ................Defendant
Date of institution : 01.10.2018
Date of reserving judgment : 26.8.2022
Date of judgment : 14.9.2022
JUDGMENT:
The plaintiff has filed the present suit for recovery of a sum of Rs.5,96,156/ against the defendant alongwith interest @ 18% per annum.
1.1 In brief, the facts as averred in the plaint are that the plaintiff is a private limited company incorporated under the Companies Act, 1956 and is engaged in the business of distribution of imported product by the name F 88, Fashion Energy Drink (herein after referred to as the product). The present suit has been filed by its Director/Authorized Representative appointed vide resolution dated 12.4.2018.
CS (Comm) No. 209/2019SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 1 of 19 1.2 It has been averred that in the month of April 2015, the plaintiff approached the defendant at his office at Laxmi Nagar, Delhi for insuring a consignment of the product which was to be imported from A 2752, Wollersdorf, Austria to New Delhi. On 24.4.2015, the plaintiff company entered into a 'Marine Cargo Specific Voyage Policy' bearing No.2215002115P100951661 with the defendant which is an Insurance company. It has been averred that the product was imported from Austria in two containers vide commercial invoice No.900001277 dated 13.5.2015 and No.900001278 dated 15.5.2018, which arrived at ICD, Tughlakabad, Delhi on 05.7.2015. It has further been averred that since the custom clearance was taking time, both the containers were shifted from ICD, Tughlakabad, Delhi to Customs Bonded Warehouse on 27.7.2015 and 28.7.2015 where they were emptied. It has further been averred that after completion of all the formalities, the consignment was shifted from Customs Bonded Warehouse to the warehouse of consignee, i.e. the plaintiff, at Nangloi, Delhi through M/s BV Road Carriers. It has further been averred that at the time of unloading, the officials of the plaintiff noticed that various cans were leaking/got damaged due to jerks and jolts and bad road conditions in transit from Customs Bonded Warehouse to the warehouse of the plaintiff.
1.3 The matter was informed to the defendant company which deputed Protocol Insurance Surveyors and Loss Assessors Pvt. Ltd. Protocol House, to undertake the survey and assessment of the losses and on 05.9.2015, during inspection 19616 cans were found damaged. Accordingly, the plaintiff company raised a claim of Rs.8,09,356/ with the defendant company and had also annexed the claim bill and marine CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 2 of 19 claim. Thereafter, the Protocol Insurance Surveyors and Loss Assessors Pvt. Ltd. prepared the Marine Survey Report and recommended an amount of Rs.6,46,574/ being the liability of the defendant company. 1.4 On 18.12.2015, Mr. Davinder Kumar Arora - Surveyor, prepared the report stating that since both the containers arrived at the final port, i.e. ICD, Tughlakabad, on 05.7.2015, as per Clause No.8.1.3 of the Policy, the 60 days period expired on 03.9.2015, while the consignee had taken delivery of the said consignment in three lots on 21.8.2015, 26.8.2015 and 02.9.2015 before the expiry of 60 days, therefore, the entire claim is admissible. It is alleged that the officials of the plaintiff company visited the office of the defendant for a number of times but the defendant company postpone the claim by giving false assurances every time.
1.5 It has further been averred that on 22.6.2016, a sum of Rs.2,13,200/ was received by the plaintiff towards one GR No.4482 dated 21.8.2015. When the plaintiff asked for the amount towards remaining GRs bearing Nos.4484 dated 26.8.2015 and 4490 dated 02.9.2015, the defendant neither released the said amount not gave satisfactory answers. The plaintiff issued a legal notice dated 20.4.2018 to the defendant through its Counsel and has also filed a complaint case vide No.CC/241/2017 before the District Consumer Forum, East District. Hence, through the present suit, the plaintiff has claimed a sum of 5,96,156/ after adjusting the sum of Rs.2,13,200/, out of the total claim amount of Rs.8,09,356/.
2. Defendant was duly served with the summons of the suit on 03.9.2021 and its Counsel Shri NK Parikh Advocate entered CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 3 of 19 appearance. In the preliminary objections of the written statement, it has been stated that the suit is beyond limitation since the consent for settlement was given by the plaintiff on 11.6.2016 by waiving rights to claim any further amount, when an amount of Rs.2,13,200/ was transferred to it. It has further been stated that a complaint case being No.241/2017 was filed by the plaintiff under the CP Act but the plaintiff failed to contest the same and thus, was dismissed. 2.1 In parawise reply, the defendant alleged that ICD, Tughlakabad, Delhi was the final port of discharge and the liability of the Insurance Company was decided on the terms and conditions of the policy, particularly the Duration Clause. It has further been been alleged that the consignment was not shifted at Punjabi Bagh address as per the address given in the policy but were unloaded at Nangloi godown of the plaintiff. It has further been alleged that admittedly the consignment was damaged due to delay in taking delivery from the final port of discharge at Tughlakabad as also because of transit from godown to godown covering more than 30 kms. While denying the other contentions of the plaintiff, the defendant stated that the amount of Rs.2,13,200/ paid by it to the plaintiff covered all the claims of the plaintiff and it consented to it and accepted the said amount in full and final settlement of all its claims.
3. The plaintiff also filed replication to the written statement of defendant, reiterating the contents of the plaint and denying the counter allegations.
4. From the pleadings of the parties, following issues were framed on 14.3.2022 :
1) Whether the plaintiff is entitled for a decree
CS (Comm) No. 209/2019
SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 4 of 19
against the defendant in the sum of Rs.5,96,156/-
alongwith interest, if any, and if yes, at what rate and for which period? OPP
2) Whether the plaintiff is entitled for a penalty of Rs.25,000/- for withholding the aforesaid suit amount? OPP
3) Whether the claim in question in the suit was already settled with the defendant for a sum of Rs.2,13,200/- vide letter dated 11.6.2016? OPD
4) Whether the present suit has been filed beyond the period of limitation? OPD
5) Relief.
5. At the trial, the plaintiff examined Shri Sanjeev Garg Director of the plaintiff company as PW1 who deposed the facts as stated in the plaint, by way of affidavit Ex.PW1/A and also proved various documents which are as under :
Board Resolution dated 05.4.2021 as Ex.CW1/1. Photocopy of Marine Cargo Specific Voyage Policy in my favour issued by the defendant as Ex.CW1/2. (Admitted document).
Photocopy of Invoice No.900001277 dated 13.5.2015 as Ex.CW1/3. (Admitted document).
Photocopy of Commercial Invoice No.900001278 dated 15.5.2018 as Ex.CW1/4. (Admitted document).
Photocopies of Bills of landing sea way bill bearing No.18100035505.011 as Ex.CW1/5 and 18100035 505.012 as Ex.CW1/6. (Admitted documents).
Photocopy of Goods Receipt No.4482 dated 21.8.2015 as Ex.CW1/7 (Admitted document).
CS (Comm) No. 209/2019SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 5 of 19 Photocopy of Goods Receipt No.4484 dated 26.8.2015 as Ex.CW1/8. (Admitted document).
Photocopy of Goods Receipt No.4490 dated 02.9.2015 as Ex.CW1/9 (Admitted document).
Photocopy of Claim Bill as Ex.CW1/10. (Admitted document).
Photocopy of Marine Claim Form as Ex.CW1/11.
(Admitted document).
Photocopy of Survey Report prepared by Protocol Insurance Surveyors & Loss Assessors Pvt. Ltd. As Ex.CW1/12. (Admitted document).
Photocopy of Marine Survey report prepared by Er.
Davinder Kumar Arora as Ex.CW1/13. (Admitted document).
Statement of Account of the plaintiff company mentioned as Mark P1.
Legal Notice dated 20.4.2018 as Ex.CW1/15 and postal receipts as Ex.CW1/16.
6. The defendant examined Shri HB Aggarwal - Deputy Manager, as DW1 who supported the version of the defendant as appearing in the written statement. He also relied upon and proved certain documents which are as under :
The consent letter of the plaintiff company as Ex.DW1/1.
Copy of complaint filed by the plaintiff before the Ld. District Forum as Ex.DW1/2. (Admitted document) Copy of reply filed on behalf of defendant company CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 6 of 19 before the Ld. District Forum as Ex.DW1/3. (Admitted document) Copy of order of the Ld. District Forum as Ex.DW1/4. (Admitted document) The Insurance Policy including terms & conditions as Ex.DW1/5. (Admitted document) Marine Survey Report of the Surveyors as Ex.DW1/6 (colly.). (nine documents) Addendum Survey Report dated 16.12.2015 issued by M/s Protocol Insurance Surveyors & Loss Assessors as Ex.DW1/7 .
Copy of letter dated 15.1.2016 of the defendant company to the Surveyors alongwith postal receipt as Ex.DW1/8.
Reply dated 22.2.2016 given by Surveyors as
Ex.DW1/9.
Fact finding report of M/s Cunningham & Lindsey
International Surveyors & Loss Assessors Pvt. Ltd. as Ex.DW1/10.
7. I have heard Shri Prateek Tiwari - Ld. Counsel for the plaintiff and Shri S. Ghosh - Ld. Counsel for the defendant and have also gone through the written submissions filed by the plaintiff as well as records of the case.
My issuewise findings are as under:
ISSUE No.4 :
8. The burden to prove this issue was upon the defendant. However, no evidence was led on this issue by the defendant. It is stated CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 7 of 19 in the written statement by the defendant that the suit of the plaintiff is barred by limitation as the consent for settlement was given by the plaintiff on 11.6.2016 after waiving the rights to claim any further amount as against the total claim raised by it for a sum of Rs.8,09,356/. 8.1 It is the case of the plaintiff that the said settlement was only in respect of one GR bearing No.4482 dated 21.8.2015 which is so mentioned in the said letter dated 11.6.2016 Ex.DW1/1. In any case, the plaintiff was aggrieved with the said settlement made by the defendant and raised protest against the same. Hence, the cause of action if any, arose in favour of the plaintiff on 11.6.2016. The present suit was filed by the plaintiff on 01.10.2018, i.e. within three years from the said date and therefore, the suit has been filed within the period of limitation. Hence, this issue is decided against the defendant.
ISSUE No.2 :
9. The onus to prove this issue was upon the plaintiff. It has claimed damages in the form of penalty of Rs.25,000/ for withholding the entire claim filed by it. It is a settled law that in order to claim damages it has to be proved the exact amount of loss, if any, caused to the claimant for any negligence on part of the defendant. The plaintiff has failed to prove any such fact or the actual loss suffered by it because of the nonsettlement of the entire claim as filed by it before the defendant. On the contrary, it is the case of the defendant that the entire claim of the defendant was settled which was accepted by it vide letter dated 11.6.2016. The plaint is silent as to the reasons for claiming the amount of penalty/damages and it is mentioned only in the prayer clause that a penalty of Rs.25,000/ be directed to be paid by the defendant. It is also CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 8 of 19 noteworthy that PW1 in his affidavit of examinationinchief has not claimed the said amount of penalty/damages as pleaded in the plaint. The facts as pleaded in the plaint are required to be proved on oath. The failure on part of the plaintiff/PW1 in deposing and claiming the said amount in his evidence, amounts to relinquishing the said part of the claim. Hence, it is held that the plaintiff is not entitled to any penalty as claimed in the plaint. This issue is accordingly decided against the plaintiff.
ISSUES No. 1 and 3 :
10. There is no dispute regarding the fact that the plaintiff had purchased a Marine Policy from the defendant as pleaded in the plaint. It is also not disputed that the consignment of the plaintiff was damaged during transit for which it raised a claim before the defendant for a sum of Rs.8,09,356/. It is also not disputed that the said claim was processed by the defendant and a Surveyor company was appointed which gave its report. The real dispute arose when the defendant allowed and paid an amount of Rs.2,13,200/ only to the plaintiff in full and final settlement of its entire claim whereas the plaintiff claims that the said amount was only against one GR whereas it has laid claim in respect of three GRs. 10.1 The defendant also raised an objection that earlier, the plaintiff filed a complaint under the Consumer Protection Act to which a reply was also filed by the defendant but the said complaint was dismissed for nonprosecution and therefore, the plaintiff is not entitled to file a fresh case before the Civil Court. The remedy before the Consumer Court and before a Civil Court are different in nature though the outcome maybe similar. A person seeks compensation or damages CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 9 of 19 before the Consumer Court whereas recovery of a liquidated amount is claimed before the Civil Court. It is also a settled law that where two different remedies under two different enactments are available to a person , he can exhaust the same at the same time. Hence, the mere fact of the plaintiff having filed a complaint before the Consumer Forum, which was not even decided on merits, is no bar for filing the present suit for recovery.
10.2 The main contention of the defendant in rejecting the entire claim of the defendant had been that there was a delay in shifting the consignment by the plaintiff from ICD, Tuglakabad, Delhi, the port of discharge, to its godown at Nangloi, Delhi. It was pointed out by Ld. Counsel for the defendant that as per Clause 8.1.4 of the Insurance Policy, the insured was duty bound to move the consignment into its warehouse from the port of discharge within 60 days of arrival of the consignment.
10.3 The defendant had firstly appointed M/s Protocol Insurance Surveyors and Loss Assessors Pvt. Ltd. to assess the loss which gave its report dated 28.9.2015. In the said report, the Surveyor reported that the container containing the consignment was transported from Mundra Port where it was received from Austria to ICD, Tuglakabad, on 02.7.2015. It further reported that from ICD, Tuglakabad, the consignment was shifted to Customs Bonded Warehouse on 27.7.2015 and 28.7.2015 due to non clearance of consignment by the Customs Department. It further reported that the consignment reached the Consignee's premises at Nangloi, New Delhi on 22.8.2015, 27.8.2015 and 03.9.2015. It was only after unloading that the damage was noted by the insured and the CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 10 of 19 Insurance Company was informed. The Surveyors further admitted that on inspection conducted on 05.9.2015, various cans were found damaged totalling 19,616. They finally assessed the loss at Rs.6,46,574/ and recommended the same as the net liability of the Insurance company. 10.4 On receipt of the said report, the defendant sought clarifications from the said Survey Agency vide their letter dated 15.1.2016 on various aspects and considering the same, the Surveyors issued an addendum dated 16.12.2015 and segregated the claim as per the three GRs. They then rejected the claim of the plaintiff in respect of GR No.4484 and 4490 stating that the consignment was received by the plaintiff after the expiry of 60 days period under the said two GRs.
However, the claim in respect of GR No.4482 was allowed and the net liability of the defendant was fixed at Rs.2,64,872/. 10.5 Thereafter, another Surveyor M/s Cunningham Lindsey Surveyors and Loss Assessors Pvt. Ltd. were approached by the defendant who also gave their report dated 17.3.2016 wherein it was reported that the insured got released the consignment from the Custom Authority after 60 days and due to this delay the consignment may have got damaged which was not covered under the policy. It was also observed that the insured had given its delivery address of Punjabi Bagh but shifted the consignment to Nangloi and is thus, guilty of changing the course of transit. This Surveyor also reported that there was no confirmation of shifting of consignment from Tuglakabad to the PWC, Fatehpur Beri and therefore, the damage could have been caused at the warehouse of the insured during shifting, repacking and segregation and thus, recommended for substandardizing the claim by appropriate CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 11 of 19 percentage.
10.6 It was only after receipt of the said report that the defendant approved the claim of the plaintiff for a sum of Rs.2,13,200/ and paid it to the plaintiff, stating that it was towards the full and final settlement of the entire claim.
10.7 It is, thus, observed that the defendant company engaged two different Surveyors without any cogent explanation or reasoning. The second Surveyor had not recommended any amount in its report as payable to the plaintiff. It is not known as to how the defendant arrived at a figure of Rs.2,13,200/ despite the fact that the first Surveyor in its modified report had assessed the net liability of the insurer at Rs.2,64,872/.
10.8 The defendant company has further heavily relied upon a letter of the plaintiff dated 11.6.2016 addressed to it, wherein the plaintiff had accepted the offer made by the defendant for a sum of Rs.2,18,526/ as full and final settlement. It was submitted by Ld. Counsel for the defendant that vide this letter, the plaintiff had settled the entire claim and therefore, it cannot claim any further amount as claimed in the present suit. In response, the plaintiff submitted that the said settlement was only in respect of one GR bearing No.4482 as mentioned in the subject of the said letter and not for the entire claim. Ld. Counsel for the plaintiff also submitted that the defendant has failed to place on record and mention the technical opinion of the Surveyor firstly appointed by the defendant namely Er. Davinder Kumar Arora dated 18.12.2015 Ex.CW1/13. In that report, it was opined that the delivery was taken by the plaintiff within 60 days of the consignment arriving at the port of CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 12 of 19 discharge at Tuglakabad. It was also reported that the consignment arrived there on 05.7.2015 and was shifted to Customs Bonded Warehouse on 05.8.2015 and the insured did not elect to shift the goods or storage in any other warehouse of its choice nor for allocation or distribution. Hence, Clause 8.1.2 of the ICC A did not come into operation. It was also opined that no notice of the Customs Department was received regarding clearance, as per the insured and it was because of the delay on part of the Custom Authorities to clear consignment that the consignment had to be shifted to their own bonded warehouse. 10.9 The above observations and the technical opinion of the Surveyor appointed by the defendant has not been mentioned in the written statement nor was ever questioned in any manner by writing any letter to the said expert. This opinion was also not considered by the two respective Surveyors. The defendant admitted this technical report during admissiondenial of documents and there was no crossexamination of PW1 on his report except that it was obtained in collusion with the Surveyor. It is needless to say that the said Surveyor Shri Davender Kumar Arora was appointed by the defendant itself and he had reported to the defendant only and there is no question of his having provided the report in collusion with the plaintiff. Even otherwise, there is nothing on record to suggest that he gave a collusive report. Once the said report has been admitted by the defendant, it could not have been questioned in crossexamination of PW1.
10.10 Even the first Surveyor M/s Protocol Insurance Surveyors in their first report Ex.DW1/6 had reported that the containers were shifted to Customs Bonded Warehouse on 27.7.2015 and 28.7.2015 due to non CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 13 of 19 clearance of the consignment by the Customs Department. It means that the plaintiff was not at fault and it was only to avoid heavy demurrage and detention charges that the consignment was so shifted from ICD, Tuglakabad to Customs Bonded Warehouse. It was also reported therein that the consignment was safely unloaded at Customs Bonded Warehouse from where it was shifted to Nangloi and during the transit, the consignment got damaged due to jerks and jolts due to bad road condition and cans started leaking. It also reported that the consignment reached Nangloi on 22.8.2015, 27.8.2015 and 03.9.2015, i.e. within 60 days. In the first report Ex.DW1/6, the Surveyor had calculated the loss cumulatively of the three GRs vide which the consignment was shifted to Nangloi. However, in the second report Ex.DW1/7 which was segregate in respect of the three different GRs, it was opined that only the consignment vide GR No.4482 reached the warehouse of the plaintiff within 60 days and therefore, assessed the net liability of the insured only in respect of the said GR. It was opined that the consignment vide the other two GR was delivered after 60 days and therefore, the claim in respect of other two GR Nos. 4484 and 4490 was not considered. 10.11 The second report of the same Surveyor is apparently self contradictory. The dates when the consignment reached the warehouse of the plaintiff remained the same in both reports but in the first report, it was opined that all three consignments reached the warehouse of the plaintiff within 60 days whereas in the second report, it was opined that only one consignment reached the plaintiff's warehouse within 60 days. This contradiction is not explained anywhere, not even in the third report of the second surveyor M/s Cunningham Lindsey. However, it makes it CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 14 of 19 abundantly clear that the claim was approved only in respect of one GR No. 4482 dated 21.8.2015 while the claim in respect of the other two GRs bearing No.4484 and 4490 was neither assessed nor recommended.
11. As per Clause 8.1.3 of the Policy, the consignment had to be taken away by the consignee within 60 days of the consignment reaching the final port of discharged. The consignment reached the ICD, Tuglakabad on 05.7.2015. It has been admitted in the written statement by the defendant that the said place was the final port of discharge. Even DW1 admitted this fact in his crossexamination deposing that the port of destination and port of discharge are same, deposing further that the place of destination was the godown . Ld. Counsel for the defendant pointed out that in the shipping bills Ex.CW1/5 and CW1/6, the port of discharge is mentioned as Mundra. However, in the same bill, the place of delivery is mentioned as ICD, Tuglakabad, meaning thereby that the shipper had to deliver the goods to the consignee at ICD, Tuglakabad which thus, becomes the port of discharge since it could not have taken the delivery of consignment at Mundra. It is also an admitted fact on record which also appears in the first report of the Surveyor M/s Protocol Insurance Surveyors and Loss Assessors Pvt. Ltd. Ex.DW1/6 that the consignment reached at ICD, Tuglakabad on 05.7.2015 and from there it was shifted to the Custom Bonded Warehouse on 27.7.2015 and 28.7.2015. It was done so because the Customs Authority did not gave the required clearance. Though it was alleged that the plaintiff failed to pay the customs duty but there is nothing on record to suggest that except mere suggestion which was given to PW1. It is also mentioned in the said Survey Report Ex.DW1/6 that consignment was dispatched from the Customs Bonded CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 15 of 19 Warehouse to the Warehouse of the plaintiff at Nangloi through three GRs dated 21.8.2015, 26.8.2015 and 02.9.2015. This fact is also fortified by the evidence led by the plaintiff who proved the said three GR receipts on record, namely Ex.PW1/7, PW1/8 and PW1/9. Counting 60 days from 05.7.2015, the last date when the plaintiff could have removed the consignment would have been 03.9.2015 and as per record, the last consignment vide GR No.4490 was collected by the plaintiff on 02.9.2015. It is, thus, clear that the plaintiff had received the goods from the port of discharge within 60 days and the second report (addendum) of M/s Protocol Insurance Surveyors and Loss Assessors Pvt. Ltd. Ex.DW1/7 is factually incorrect and is apparently prepared at the behest of the defendant company to appease it. Similarly, the report of the second Surveyor M/s Cunningham Lindsey is also not reliable and trustworthy as it is inconclusive and without any recommendation. However, even in that report, the GR numbers and the dates on which the plaintiff took delivery of the consignment are not disputed. Once it is held that the plaintiff had taken the delivery of the consignment within 60 days of its reaching the port of discharge, there was no violation of Clause 8.1.3 of the Policy.
11.1 The second ground on which the claim has been opposed by the defendant is that the plaintiff shifted the goods to his warehouse at Nangloi whereas the address given in the Policy was of Punjabi Bagh Delhi. There is no Clause in the Policy which required the plaintiff to take the goods to Punjabi Bagh. PW1 in his crossexamination explained this fact while admitting that the shipment documents containing the address of the consignee mentioned the address of Punjabi Bagh, CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 16 of 19 deposing that the said address was of his company but his warehouse was at Nangloi. There was no crossexamination on this explanation. There appears to be no column in the shipment documents as to where the goods are to be stored or of the address of the warehouse. Even otherwise, the condition in the policy is of taking the delivery of the consignment within 60 days and nothing more. It is up to the plaintiff to safely unload the consignment at a proper place which was its warehouse at Nangloi and therefore, no fault can be found in the said act of the plaintiff and the claim could not have been rejected on that ground. 11.2 It is clear from the above discussion and reference of the Survey reports, particularly Ex.DW1/7 that the claim only in respect of one GR bearing No.4482 was assessed and approved whereas it was not even considered in respect of the other two GRs, since according to the Surveyor, the delivery against the said GRs was taken beyond the period of 60 days which has been held to be incorrect. Reference was made to the letter of the plaintiff dated 11.6.2016 Ex.DW1/1, referred to above, wherein the plaintiff accepted the claim of Rs.2,18,526/ as full and final settlement. However, a perusal of the said letter shows that it was only in respect of GR No.4482 and which is otherwise obvious, since the defendant had also approved the claim only in respect of the said GR. Thus, it cannot be said that the plaintiff had settled the claim for all the three GRs and fully and finally. When the claim of the plaintiff for the other two GRs was not considered, there is no question of the plaintiff settling the claim for the same. It is also noteworthy that DW1 in his crossexamination deposed that the plaintiff filed one claim for three GRs out of which, claim in respect of one GR, which was filed within 60 days CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 17 of 19 as per the report of the Surveyor and as per the terms and conditions of the Policy, was settled and the claim for the other two GRs was rejected since it was not covered under the terms and conditions of the Policy. He further deposed that the claim for the other two GRs was rejected by settling only for one GR fully and finally and admitted that no separate communication for rejecting the claim of other two GRs was specifically made.
11.3 The defendant has failed to place on record any document showing its calculation about the processing and settling the claim of the plaintiff and therefore, it is held that the claim of the plaintiff was settled only with respect to GR No.4482 and its claim in respect of other two GRs was wrongly declined though the consignment against the said two GRs was also received by the plaintiff within the period of 60 days of its reaching the port of discharge.
12. The plaintiff has claimed the balance of the total claim amount of Rs.8,09,356/ after deducting the amount already received by it, which is the total cost of the damaged cans of the food drinks. In the first Survey report of M/s Protocol Insurance Surveyors and Loss Assessors Pvt. Ltd. Ex.DW1/6, the assessment of loss has been made and it has been observed that the actual invoice value, cost of insurance and actual freight paid are more than the CIF value of insurance and therefore, the rate of damaged items was considered as per the insured value, i.e. sum insured of the policy. It was also observed that declared amount of duty for insurance was less than the actual custom duty paid. It also observed that as per policy, the valuation is CIF + 10% and on that basis, it calculated the net liability of the insurer at Rs.6,46,574/. Though CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 18 of 19 it was in respect of all the three GRs cumulatively but would be correct even if calculated separately for the three GRs. In the opinion of this Court, the criteria adopted by the Surveyor for reaching the net liability was correct, as aforesaid.
12.1 The defendant has failed to show and prove violation of any term and condition of the policy by the plaintiff, so fundamental in nature, so as to deny the claim made by it. Hence, it is held that the plaintiff is entitled for an amount of Rs.6,46,574/ towards the claim in respect of the damage caused to its consignment and in respect of all the three GRs. Since the plaintiff has already received a sum of Rs.2,13,200/, it is awarded the balance amount of Rs.4,33,374/ with interest @ 8% per annum from the date of filing of the suit till realization of the actual amount. Thus, Issue No. 1 is accordingly decided in favour of the plaintiff and Issue No. 3 is decided against the defendant. ISSUE No.5/Relief :
13. In light of the above discussion and findings on the above issues, the suit of the plaintiff is decreed and the defendant is directed to pay a sum of Rs.4,33,374/ alongwith interest @ 8% per annum from the date of filing of the present suit till the realization of actual amount. Cost of the suit are also awarded to the plaintiff.
Decree Sheet be prepared accordingly. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 14th day of September 2022 (SANJAY SHARMAI) District Judge (Commercial Court) East District Karkardooma Courts, Delhi CS (Comm) No. 209/2019 SSS Trade Zone Pvt. Ltd. Vs. United India Insurance Co. Ltd. 19 of 19