Madras High Court
M/S.3F Industries Limited vs M/S.United India Insurance Co. Ltd on 28 March, 2018
Author: R.Subramanian
Bench: R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON :14.03.2018 PRONOUNCED ON : 28.03.2018 CORAM THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN C.S.No.305 of 2004 M/s.3F Industries Limited No.7/2, Pycrofts Garden Road, Nungambakkam, Chennai 6. (Amended as per order dated 04.11.2015 in application No.6880/15) ... Plaintiff Vs M/s.United India Insurance Co. Ltd., Rep by Chairman cum Managing Director No.24, Whites Road, Chennai 600 014. ... Defendant Prayer : Plaint filed under Order VII Rule 1 of the Code of Civil Procedure, and under Order IV Rule 1 of O.S.Rules, praying for the following judgment and decree:- (a) to pay a sum of Rs.26,86,485/- with interest at the rate of 24% from the date of plaint till payment and grant such other relief; (b)Towards costs of the Suit. For Plaintiff : Mr. Jeyanthi Venkatesh For Defendant : Mr. M.B.Raghavan for M/s.M.B.Gopalan Associates J U D G M E N T
The suit is one for recovery of a sum of Rs.26,86,485/- with interest at the rate of 24% from the date of plaint till date of recovery.
2. The substance of the plaint averments in brief is as follows:
The plaintiff is a Limited Company, carrying on business in manufacturing edible and other oils. It is also engaged in importing and exporting of edible oils from and to various foreign countries. The plaintiff Company, as a part of its business activity, imported Palmolin oil from different foreign countries in bulk cargo which was received at the ports in India. The consignment of imported edible oil is shipped through container vessels as bulk cargo. Once the cargo reaches the ports in India, it is unloaded and transported to the warehouses by rail or road. It is the case of the plaintiff that it had obtained a Marine Cargo Insurance Open Policy on annual basis for various shipments that are to be undertaken over a period of one year from the defendant. Apart from the above Open Policy, every shipment is covered by an endorsement policy subject to the terms of the open policy referred to above.
3. The endorsements issued by the Insurance Company for each shipment incorporates details like the name the ship, Bill of Lading number, date, the details such as the nature of the cargo and the quantity as well as the insured value of the consignment. The terms and conditions of the contract of the marine insurance incorporated in the annual open policy are applied to every endorsement issued by the Insurance Company at the time of each shipment.
4. The plaintiff submits that during the year 2000, in all, seven shipments were under taken under the above annual marine cargo open policy obtained by the plaintiff. According to the plaintiff, the respective endorsement of insurance for the seven shipments cover the cargo against all risks of physical loss and damage. Loss due to shortage/pilferage is also covered by the policy. The plaintiff would further contend that various quantities of Palmolin were despatched through the year under seven shipments in various ships from different ports in Malaysia. According to the plaintiff, the Bill of Lading issued by the shipper contains the quantity of the oil said to have been loaded in the respective ships.
Name of the ship Quantity loaded as per the Bill of Lading Global Jupiter 999.707 metric tons Natalia 999.866 metric tons Jiogasa Star 1499.364 metric tons Andhika Andalantama 1497.537 metric tons Chembulk Barokha 1499.849 metric tons Oriental Fortune 2499.926 metric tons Performance-8 2002.231 metric tons
5. According to the plaintiff, while the goods were delivered at the ports in India, viz. Nagapatinam and Kakinada, it was found that there was shortage in supply. Since there was in shortage in supply, the plaintiff had made a claim against the defendants for various amounts based on the actual shortage, when the bulk cargo was off-loaded at the ports in India, contending that the Marine Insurance Policy covers the loss, from the warehouse at the foreign country, viz. Malaysia to the warehouse at India. The plaintiff claimed the suit amount as the loss incurred by it due to shortage in quantity. The Insurance Company repudiated the liability claiming that the cover under the policy is only from the port at Malaysia or Singapore to the ports at India. Therefore, according to the Insurance Company, the shortage should be calculated based on the actual quantity that is loaded in the ship and not quantity that was shown to have been loaded as per the Bill of Lading. Claiming that such repudiation of the claim by the Insurance Company is invalid and against the contract of Insurance, the plaintiff has come forward with the present suit for recovery of a sum of Rs.26,86,485/- with subsequent interest at the rate of 24% per annum.
6. The defendant Insurance Company resisted the suit contending as follows:
The fact that there was a Marine Insurance Policy covering the risk and the endorsements were issued by the Insurance Company for each and every shipment is admitted by the Insurance Company. According to the Insurance Company, the policy covers the risk from the Port of loading in the foreign country till it reaches the warehouse of the plaintiff anywhere in India. Therefore, according to the Insurance Company, the loss if any should have been calculated by taking into account the actual quantity of Palmolin loaded in the ship, which is borne out by the documents called Ullage Reports as well as the Surveys Reports. It is the further claim of the Insurance Company that it cannot be made liable for the shortage, which had occurred prior to the loading of the cargo in the vessel. Therefore, the Insurance Company had taken a plea that wherever there is a difference between the quantity shown in the Bill of Lading and the quantity actually loaded in the vessel, the loss should be calculated based on the quantity actually loaded in the vessel and not on the quantity shown in the Bill of Lading.
7. The Insurance Company would also contend that the Bills of Lading issued are said to contain Bills of Lading and the Master of the vessel did not know the actual quantity that is shown in the Bills of Lading. Therefore, according to the Insurance company, wherever there was a difference between the quantity shown in the Bill of Lading and the quantity loaded in the vessel, the loss could be calculated only on the basis of the quantity loaded in the vessel, if there is a shortage or the quantity that is discharged from the vessel at the Indian Port is less than the quantity that was loaded in the vessel, the Company would be liable for such shortage alone and nothing more. In fact the Company had admitted its liability on the basis of such calculation. The Insurance Company also shown the calculation made by it in arriving at net admissible claim for each and every ship in its written statement. On the above said contentions, the Insurance Company sought for dismissal of the suit.
8. On the above pleadings, the following issues were framed for determination in the suit:
1. Whether the repudiation of claim by the defendant is valid under the contract of policy of insurance?
2. Whether the quantity mentioned in the suit Bill of Lading for each of the suit consignments, represents the actual quantity shipped on board the vessel?
3. Whether there is a loss due to shortage during transit of suit claimants as claimed by plaintiff made out under the policies of insurance?
4. Whether the defendant is liable for any amount over and above the amount offered by way of settlement?
5. Whether the suit is barred by limitation?
6. Whether the plaintiff is entitled to various amounts claimed?
7. Whether this Honble Court has territorial jurisdiction?
9. At trial, P.W.1 was examined on the side of the plaintiff and Exhibits P1 to P 102 were marked. The defendant/Insurance company did not let in any evidence and no documentary evidence was filed.
10. I have heard Mrs.Jeyanthi Venkatesh, learned counsel appearing for the plaintiff and Mr.M.B.Raghavan, learned counsel appearing for the defendant.
Issue No.7:
11. This issue relates to the territorial jurisdiction of this Court to entertain the suit. The contract of Insurance, viz. The Policy Cover Note dated 20.09.1997, the plaintiff is a Limited Company having its office at Chennai within the jurisdiction of this Court. The Marine Cargo Insurance Policy has been issued by the defendant at Madras in the year 1999, covering all sailings from 04.08.1999 to 03.08.2000. The said Insurance Policy has been issued by the Insurance Company at Chennai. The subject matter of the Insurance Policy is the risk involved in voyage by sea as well as by road. The issuance of the policy in Madras would provide a cause of action for the plaintiff to sue the defendant at Chennai. Though an issue had been raised regarding the territorial jurisdiction of this Court., no evidence had been let in by the defendant on the said question and the learned counsel for the Insurance Company also did not seriously press the said issue. Hence, I conclude that this Court had got jurisdiction to entertain the present suit.
Issue No.5:
12. The contract of Insurance is for a period of one year covering the loss caused between 04.08.1999 to 03.08.2000. The plaintiff had made a claim regarding the losses that were caused to the consignment in various ships during the said period. The Insurance Company had claimed that it is willing to settle the claims as per its calculation by various correspondence during the year 2001. It is also seen from the written statement of the defendant that defendant had offered to make good the loss as calculated by it, based on its interpretation of the policy for each ship on different dates. The last of such offer was made by the defendant on 03.09.2002, the suit came to be filed on 08.03.2004. Therefore, the suit has been filed within three years from the date on which the Insurance Company repudiated the claim of the plaintiff in part and agreed to compensate for the loss that had occurred, during the voyage by Sea from Malaysia to India and thereafter on road from Indian Port to the warehouse of the plaintiff. Hence, I find that the suit is not barred by limitation.
Issues Nos.1, 2, 3 and 4:
13.1. All the issues are taken up together as they are interlinked with each other. The contract of Insurance is admitted. The general cover note issued by the Insurance Company covering the loss caused during the voyage is admitted. The Marine Cargo Open Cover No.9 of 99 issued by the Insurance Company governs the terms of the Insurance between the parties. The subsequent endorsements relate to every voyage. The document, viz. Marine Cargo Open Cargo Policy No.9 of 99 marked as Ex.P102, in the said document voyage is shown to be from any country Port to Kakinada/Vizak/Nagapattinam/Chennai and there from anywhere in India. The general conditions relating to transport of Cargo by Sea, which is known as Institute Cargo Clause (A) is attached to the said Cover Note. Of Course, the learned counsel for the plaintiff would draw my attention to the contents of the attachment to Ex.P102, which is titled as Inland Transit (Rail or Road) Clause (a), which reads as follows:
This Insurance attaches from the time the goods leave the warehouse and/or the store at the place named in the policy for the commencement of transit and continues during the ordinary course of transit including customary transshipment if any
(i) Until delivery to the final warehouse at the destination named in the policy (or)
(ii) In respect of transits, by Rail only or Rail and Road, until expiry of 7 days after arrival of the railway wagon at the final destination railway station (or)
(iii) In respect of transit by Road only until expiry of 7 days after arrival of the vehicle at the destination town named in the policy whichever shall first occur. 13.2. Mrs. Jeyanthi Venkatesh, learned counsel appearing for the plaintiff would contend that the risk covered by the policy is from the warehouse at the place of export till the warehouse in India. Therefore, according to her, the loss should be calculated on the quantity shown in the Bills of Lading issued at Singapore or Malaysia, as the case may be and not on the actual quantity loaded in the ship.
13.3. Mr.M.B.Raghavan, learned counsel appearing for the Insurance Company would submit that the policy covers a combination of modes of transport viz. voyage by Sea as well as voyage by road and rail. The term voyage as shown in the policy covers, the loss that occurred during transit from any country port to any port in India and there from anywhere in India. This according to him could only mean that the coverage starts from the port at the country of origin and ends at the warehouse of the plaintiff in India. Therefore, according to Mr.M.B.Raghavan, the liability of the Insurance Company would commence only from the time the goods are loaded into the ship at the origin port and not before the said loading. The crucial issue that is to be answered here is as to when the liability of the Insurance Company under the Policy commences, whether it is from the moment the Cargo is loaded onto the ship in the port of origin or at any point prior to that? The matter being one relating to contract, the parties will be governed strictly by the terms of the contract only.
13.4. In Amravati District Central Cooperative Bank Limited v. United India Fire and General Insurance Company Ltd., reported in 2010 (5) SCC 294, the Honble Supreme Court had pointed out that the contract of Insurance should be construed strictly to determine the extent of liability of the insurer. After referring to the earlier judgment of the Supreme Court in General Assurance Society Ltd v. Chandmull Jain, reported in AIR (1966) SC 1644, the Honble Supreme Court, had quoted the following observations in that judgment:
11. . In interpreting documents relating to a contract of insurance, the duly of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. The following passage from germane in Oriental Insurance Co. Ltd., v. Sony Cheriyan, reported in (1999) 6 SCC 451, was also quoted with the approval.
17.The Insurance Policy between the insurer and the insured represents a contract between the parties, since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the Insurance Policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the Insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein. 13.5. The Marine Cargo Open Cover issued by the Insurance Company, which has been marked as Ex.P102, very clearly states that the cover is granted, subject to the conditions of the Companies Marine Cargo Policy and the assured limit is about Eight Crore of Rupees per one approved vessel or conveyance. The assured voyage is shown to be from any country port to Kakinada/Vizak/Nagapattinam/Chennai and there from anywhere in India. The other clauses may not be very germane, since the dispute is restricted to the interpretation of the nature and extent of the cover that is under taken by the Insurance Company under the Policy. From the above description of the term voyage in the policy, it would only mean the Cover begins from the port of origin or when the goods are loaded on to the ship at the port of origin and not at any time prior in point. The portion of the policy extracted above, relied upon by Mrs.Jeyanthi Venkatesh, learned counsel appearing for the plaintiff relates to inland transit and the same cannot be applied to transit by sea. It is only the conditions shown as Institute Cargo Clause (A), which covers the risk of loss or damage, during carriage by sea that could be applied to the present case. In view of the categorical and unambiguous description of the term voyage in the policy, it is clear that the policy covers the loss that occurs after the cargo is loaded in the ship at the port of origin.
13.6. Mr.M.B.Raghavan, learned counsel appearing for the Insurance Company would also draw my attention to the Cover Notes issued for each of the shipments which are marked as Exhibits P6, P68, P53, P23, P31, P48 and P77. In all these Cover Notes, it is very clearly stated that the Insurance Cover is available from the load port at Malaysia to the Indian Port and there from to anywhere in India. None of the said Cover Notes do say that the cover is from anywhere in Malaysia to anywhere in India. Each of the said Cover Notes mention the movement of the cargo from a particular port in Malaysia. Therefore, from the terms of the Policy as well as the Cover Notes issued for each and every voyage, it could be seen that the cover is only from the port of origin till the port in India and thereafter, anywhere in India. Therefore, the contract of Insurance being in the nature of the contract of indemnity, the same will have to be strictly interpreted. Any attempt to give expansive or wide interpretation to the contract of Insurance would, in my considered opinion, will result in the Court attempting to rewrite the contract between the parties, which is not within the domain of the Court. Therefore, on a reading of the policy, the general conditions as well as the Cover Notes issued in this case, the inevitable conclusion is that the loss that is covered is the loss that takes place during voyage from the port of origin to any Indian Port and thereafter to anywhere in India. Therefore, the Insurance Company cannot be held liable for any loss that had occurred prior to the cargo being loaded on the ship at the Port of origin.
13.7. Mrs.Jeyanthi Venkatesh, learned counsel appearing for the plaintiff would vehemently contend that the Bill of Lading for each of the ship has been issued by the shipper, wherein it is shown that a specific quantity has been loaded in the ship. Therefore, the same should be accepted as the quantity that was loaded in the ship and the Insurance Company cannot escape its liability by referring to the Ullage Reports or the Survey Reports, which show a lesser quantity having been loaded on to the ships. She would also rely upon Exs.P26, P32, P40, P63 and P78, which are the Bills of Lading to contend that the quantity that is mentioned in the Bills of Lading must be taken as a basis to arrive at the loss.
13.8. Per Contra, Mr.M.B.Raghavan, learned counsel appearing for the Insurance company would point out that all the Bills of Lading, which have been issued are only said to contain Bills of Lading and they do not reflect the actual quantity that is loaded on to the ship. Referring to the endorsements in each of the Bill of Lading which reads as follows:
The vessel undertakes to deliver only that portion of the cargo actually loaded, which is represented by the percentage that the total amounts specified in the Bills of Lading, bears to the total of the commingling shipment delivered at destination The quantity, measurement, weight, gauge, nature and value and actual condition of the cargo unknown to the Vessel and the Master, to be delivered at the port of discharge or so near thereto as the Vessel can safely get, always afloat upon prior payment of freight as agreed and the endorsement a quantity in bulk said by the shipper to be Mr. M. B. Raghavan would submit that the Bills of Lading issued are all only said to contain Bills of Lading were the actual quantity that was loaded into the ship was not verified. In fact pointing out that some of the Bills of Lading have been issued at Singapore for the goods that were shipped from ports in Malaysia, Mr.M.B.Raghavan would submit that the Bills of Lading have been issued based on the representations of the shipper and hence the quantity that is reflected in the Bills of Lading cannot be taken to be the quantity actually loaded on to the ships. He would also point that there are Survey Reports and Ullage Reports, which have been filed as Exhibits, which would show that actually a lesser quantity was loaded on to the ships and the Insurance Company had in fact admitted its liability based on the quantity shown as quantity loaded in the ship in the Ullage Reports and the Survey Reports. The learned counsel for the Insurance Company has also furnished a comparative chart for each and every consignment, wherever there is no dispute on the loaded quantity, the learned counsel for the Insurance Company had worked out in the actual difference on the basis of the quantity shown in the Bill of Lading.
13.9. Mr.M.B.Raghavan, learned counsel appearing for the Insurance Company would also invite my attention to the Division Bench of this Court in Container Corporation of India Ltd., by its General Manager v. Priya Dyes & Chemicals Rept. By its Authorised Signatory, reported in 2012 (4) LW 163, in which the effect of the endorsement said to contain in the Bill of Lading is considered.
13.10. The Division Bench after considering the various cases on the effect of statement in the Bill of Lading had after referring another Judgment of the Division Bench of this Court in M/s.Thakur Shipping Co. Ltd., Bombay and another v. Food Corporation of India, reported in AIR 1983 Madras 105, held that once the Bill of Lading contains the words said to contain or said to weigh, the liability of the Insurance Company would be limited only to the quantity actually found to have been loaded in the vessel and not the quantity, which is shown in the Bill of Lading.
13.11. It is also pointed out by Mr.M.B.Raghavan, the learned counsel appearing for the Insurance Company the period of Cover in each case is 60 days from the date of departure of the vessel. It is not in dispute between the parties that the Insurance Company will not be liable for any loss that occurs after the 60 days period. In the case on hand except for the vessel Nataliya, for which the Cover Note was issued by the Insurance Company on 26.09.1997, in all other cases the total discharge of the vessel had been completed within the 60 days period. Insofar as the vessel Nataliya is concerned the discharge commenced on 10.10.1997 and the Cover issued by the Insurance Company would be available till 10.12.1997.
13.12. The Survey Report relating to the said vessel Nataliya has been marked as Ex.P11 from the Survey Report, it is seen that the discharge, which commenced on 10.10.1997 was completed on 02.09.1998. In view of the policy conditions the Insurance Company would be liable for the loss that is caused only up to 10.12.1997 i.e., 60 days from 10.10.1997. The total quantity that was delivered up to 10.12.1997 is shown to be 234.07 metric tons. The vessel had carried 999.866 metric tons, as per the Bill of Lading and there is no dispute regarding the loaded quantity in respect of this vessel. The total quantity discharged from the vessel on completion of entire discharge was 977.745 metric tons leaving shortage of 22.121 metric tons. The plaintiff would claim that it is entitled to the cost of the entire 22.121 metric tons, which is about Rs.2,89,121/-.
13.13. The Insurance Company would however contend that the Company is liable to compensate for the loss that had occurred only during the 60 days period from 10.10.1997 to 10.12.1997, the total quantity that was discharged for the entire period i.e., from 10.12.1997 to 02.02.1998 is 977.745 metric tons. The proportionate quantity that could have been discharged as per the Ex.P17 is 234.07 metric tons, therefore, the proportionate shortage for that period would be 5.295 metric tons, after deducting the 0.5% excess that is allowable under the policy conditions. The Insurance Company has worked out the loss at Rs.3,217/-. The claim of the insured, namely the plaintiff is on the basis that the total loss is about 22.121 metric tons and the Insurance Company is liable to compensate it, in respect of the entire loss. The fact that the Insurance Company is liable only for the loss that is caused during the 60 days period is not in dispute. Therefore, it is only the quantity that was delivered within the 60 days period and the proportionate loss during that period that could be taken into account in order to assess the actual loss, in respect of the shipment made through the vessel Nataliya.
13.14. As per Ex.P17, the total quantity of cargo discharged from that vessel within 60 days period is 234.07 metric tons, the proportionate shortage works out 5.295 metric tons, the value of the said 5.295 metric tons is about Rs.58,613/-. The Insurance Company has after deducting a sum of Rs.55,343/- which represents 0.5% excess of the total value of the consignment allowable under the Policy had fixed the loss at Rs.3,217/-. I am unable to agree with the calculation actually adopted by the Insurance Company, while fixing the quantum of loss, the Insurance Company had taken into account the actual quantity of cargo that was delivered during the 60 days period. For deducting the 0.5% excess allowable under the Policy the Insurance Company has taken the entire value of the cargo, i.e., Rs.1,10,68,625/- and worked out 0.5% of it at Rs.55,343/-. This deduction, according to me, is not justified. The basis for fixing the quantum of loss and the basis for fixing the excess deductions should be the same. If the Insurance Company has taken the basis for fixing the quantum of loss at 234.07 metric tons, the 0.5% excess could also be deducted only from the value of 234.07 metric tons and not from the value of 999.866 metric tons. If so worked out, the value of 234.07 metric tons at Rs.11,071/- per metric ton works out to Rs.25,91,389/-, 0.5% of the said Rs.25,91,389 is equal to about Rs.12,956/-. The Insurance Company would be entitled to deduct only aforesaid sum of Rs.12,956/- as 0.5% excess, allowed by the Policy conditions from a sum of Rs.58,613/-, which is arrived at as the value of the loss by the Insurance company. Therefore, the Insurance Company would be liable to pay a sum of Rs.45,657/- towards the loss caused by way of shortage insofar as the shipment through the vessel Nataliya.
13.15. As regards the other vessels, inasmuch as the entire discharge was completed within the 60 days period, the dispute is only with reference to the quantum actually shipped and the quantum shown to have been shipped in the Bill of Lading. Insofar as the vessel Global Jupiter is concerned, the Bill of Lading quantity is 999.707 metric tons, the actual loaded quantity as per Ex.P69 is 997.409 metric tons, the quantity discharged is 990.373 metric tons, therefore, the actual shortage is 7.107 metric tons, after deducting 0.110 metric tons for temperature variation, the Insurance Company has arrived at the shortage at 6.997 metric tons, though the plaintiff would claim that the next shortage is 9.334 metric tons, based on the Bill of Lading quantity. 13.16. I have already concluded that the Bill of Lading quantity cannot be taken into account to assess the loss and it is the only actual quantity that it is loaded on the ship at the port of origin that could be taken into account. If thus worked out the loss, insofar as the shipment in the ship Global Jupiter is concerned works out to Rs.47,985/-. Insofar as the other ships the following tabular column will shown the actual loss i.e., worked out on the basis of the actual quantity of cargo loaded on the ship at the port of origin.
Name of the Ship Loaded quantity Discharged quantity Shortage Value Jiogasastar 1390.537 1379.729 10.808 81,961/-
Andhika Andalatma 1493.779 1468.057 25.722 2,46,158/-
Performance 8 1996.425 1984.699 11.726 2,20,419/-
Oriental Fortune 2493.601 2471.245 22.356 2,57,701/-
13.17. Insofar as the vessel Chembulk Barokah is concerned, it is seen that the records available that the quantity received is more than the quantity shown to have been loaded at the port of origin. Therefore, according to the Insurance Company, there is no loss in respect of the consignment on that vessel. The said contention is acceptable and therefore, the plaintiff is not entitled to any loss in respect of the consignment shipped through the vessel Chembulk Barokah. Insofar as the consignment relating to the vessel Oriental Fortune, it is claimed by the Insurance company that the vessel is more than 15 years old and the Insurance company, therefore, will be entitled to deduct excess premium of Rs.1,44,317/-, in respect of the said vessel. The said claim is based on the Survey Report dated 28.04.2000, which shows that the year and place of the building of the vessel as 1984 at Japan. I do not think the said contention could be accepted because the Insurance Company had not raised any plea to that effect nor there is any other documentary evidence to show that the Insurance Company is entitled to additional premium in respect of the vessel, which is more than 15 years old. Therefore, I do not think the claim of the Insurance Company on that ground could be entertained, hence the loss in respect of the vessel Oriental Fortune is fixed at Rs.2,57,701/-.
13.18. For the foregoing reasons, the Issue No.1 is answered to the effect that the repudiation of the claim to the extent of the quantum of loss is valid. Issue No.2 is also answered to the effect that it is the actual quantity shipped that should be taken into account in order to assess the loss and not the quantity shown in the Bill of Lading. Issue No.3, is answered to that effect, there was a loss but the said loss was of much lesser quantity than what has been claimed by the plaintiff, except in case of Nataliya, Issue No.4 is answered that to the effect that the defendant/Insurance Company is liable to make good the loss caused by the actual shortage, except in case of the Vessel Chembulk Barokah, where the loss is nil.
Issue No.6:
14. The plaintiff has claimed the various amounts as loss based on the quantity shown in the Bill of Lading, in view of the answer given to Issue No.2, it is concluded that the plaintiff is entitled to the value of the shortage calculated on the basis of the actual quantity of the cargo loaded on the ship at the loading port.
15. In the result, the suit is decreed for a total sum of Rs.8,99,881/-, towards the loss of actual shortage of goods with interest at 9% from the date of plaint till date of payment and proportionate costs.
28.03.2018 jv Index: Yes Internet: Yes Speaking order List of the Witnesses examined on the side of the Plaintiff:
P.W.1 Rahman List of Exhibits marked on the side of the Plaintiff:
Sl. No. Description of Documents Date 1 Ex.P1 Minutes of the Meetings of the Board of Directors. 20/10/2014 2 Ex.P2 Certificate of Incorporation for change of company name. 8/8/2012 3 Ex.P3 Certified copy of Invoice.
24/9/1997 4 Ex.P4 Certified copy of Bill of Entry.
30/9/1997 5 Ex.P5 Certified copy of Protest Letter from the Master Oct 1907.6
Ex.P6 Certified copy of Policy Endorsement of MIT.NATALIA. 26/9/1997 7 Ex.P7 Certified copy of Certificate of Weight & Quality. 26/9/1997 8 Ex.P8 Certified copy of Claim Bill from the plaintiff.9
Ex.P9 Certified copy of Ships Tanks Inspection Certificate. 8/10/1997 10 Ex.P10 Certified copy of Letter from the Master. 8/10/1997 11 Ex.P11 Certified copy of Survey Report.
10/11/1997 12 Ex.P12 Certified copy of Letter from the plaintiff. 24/9/1998 13 Ex.P13 Certified copy of Letter from the defendant. 16/4/1999 14 Ex.P14 Certified copy of Letter from the plaintiff. 26/4/1999 15 Ex.P15 Certified copy of Letter from the plaintiff. 11/6/1999 16 Ex.P16 Certified copy of Letter from the defendant. 30/3/2001 17 Ex.P17 Certified copy of Letter from the defendant. 16/5/2001 18 Ex.P18 Certified copy of Letter from the plaintiff. 17/8/2001 19 Ex.P19 Certified copy of Letter from the defendant. 21/8/2001 20 Ex.P20 Certified copy of Letter from the plaintiff. 28/8/2001 21 Ex.P21 Certified copy of Commercial Invoice. 14/10/1999 22 Ex.P22 Photo copy of Claim Bill.23
Ex.P23 Certified copy of Policy Endorsement of M/T.ANDIKA A NDALANTAMA. 20/10/1999 24 Ex.P24 Certified copy of Bill of Entry.
23/10/1999 25 Ex.P25 Certified copy of Ullage Report.
27/10/1999 26 Ex.P26 Certified copy of Bill of Lading.
15/11/1999 27 Ex.P27 Certified copy of Survey Report.
7/12/1999 28 Ex.P28 Certified copy of Letter from the plaintiff. 17/12/1999 29 Ex.P29 Certified copy of Letter from the defendant. 27/10/2000 30 Ex.P30 Certified copy of Letter from the Respondent MIT CHEIVIBULK BAROKAR. 30/3/2001 31 Ex.P31 Certified copy of Policy Endorsement of M/T.CHEIVIBULK BAROKAR. 15/12/1999 32 Ex.P32 Certified copy of Bill of Lading.
11/12/1999 33 Ex.P33 Photo copy of the Commercial Invoice. 13/12/1999 34 Ex.P34 Photo copy of the Bill of Entry.
22/8/2000 35 Ex.P35 Photo copy of the Tillage report.
16/12/1999 36 Ex.P36 Photo copy of the Claim Bill.37
Ex.P37 Photo copy of the Letter of Protest.
16/12/1999 38 Ex.P38 Photo copy of the Letter from the plaintiff. 17/12/1999 39 Ex.P39 Original Letter from the plaintiff M/T.ORIENTAL FORTUNE. 12/6/2000 40 Ex.P40 Photo copy of the Bill of Lading.
5/3/2000 41 Ex.P41 Photo copy of the Bill of Entry.
27/4/2000 42 Ex.P42 Photo copy of the Survey Report.
28/4/2000 43 Ex.P43 Photo copy of the Claim Bill.44
Ex.P44 Photo copy of the Letter of Protest.
5/3/2000 45 Ex.P45 Photo copy of the Commercial Invoice. 6/3/2000 46 Ex.P46 Photo copy of the Notice of Readiness. 11/3/2000 47 Ex.P47 Photo copy of the Certificate of Inspection. 12/3/2000 48 Ex.P48 Certified copy of Policy Endorsement of Ma.ORIENTAL FORTUNE. 1/6/2000 49 Ex.P49 Photo copy of the Letter from the plaintiff. 12/6/2000 50 Ex.P50 Photo copy of the Bill of Lading.
18/2/2000 51 Ex.P51 Certified copy of the Commercial Invoice. 28/2/2000 52 Ex.P52 Certified copy of Bill of Entry.
2/3/2000 53 Ex.P53 Certified copy of the Policy Endorsement.54
Ex.P54 Photo copy of the Survey Report.
13/3/2000 55 Ex.P55 Photo copy of the Survey Report.
25/3/2000 56 Ex.P56 Certified copy of the Policy Endorsement. 28/3/2000 57 Ex.P57 Certified copy of the Survey Report. 13/4/2000 58 Ex.P58 Original Claim Bill.59
Ex.P59 Photo copy of the Bill of Entry.
25/4/2000 60 Ex.P60 Certified copy of the Letter from the plaintiff. 12/6/2000 61 Ex.P61 Certified copy of the Letter from the plaintiff. 19/1/2001 62 Ex.P62 Original Letter from the respondent. 23/4/2001 63 Ex.P63 Certified copy of the Tanker Bill of Lading. 19/4/2000 64 Ex.P64 Certified copy of the Commercial Invoice. 21/4/2000 65 Ex.P65 Original Claim Bill.66
Ex.P66 Photo copy of the Ullage Report.
21/4/2000 67 Ex.P67 Photo copy of Bill of Entry.
21/4/2000 68 Ex.P68 Certified copy of Policy Endorsement. 25/4/2000 69 Ex.P69 Photo copy of the Survey Report.
3/5/2000 70 Ex.P70 Certified copy of Bill of Entry.
17/5/2000 71 Ex.P71 Certified copy of Survey Report.
29/5/2000 72 Ex.P72 Certified copy of Letter from the plaintiff. 19/1/2001 73 Ex.P73 Certified copy of Letter from the defendant. 23/5/2001 74 Ex.P74 Photo copy of Commercial Invoice.
10/10/2000 75 Ex.P75 Photo copy of Tanker report.
22/10/2000 76 Ex.P76 Photo copy of Tanker Gauging report. 22/10/2000 77 Ex.P77 Photo copy of Policy Endorsement.
16/10/2000 78 Ex.P78 Photo copy of the Bill of Lading.
10/10/2000 79 Ex.P79 Photo copy of Bill of Entry.
21/10/2000 80 Ex.P80 Time long for cargo discharge.81
Ex.P81 Photo copy of Letter from the Plaintiff. 20/10/2000 82 Ex.P82 Photo copy of Letter from the Master. 20/10/2000 83 Ex.P83 Photo copy of Letter the plaintiff.
21/10/2000 84 Ex.P84 Photo copy of Letter from Unicorn Maritime P. Ltd. 21/10/2000 85 Ex.P85 Photo copy of Letter to Master.
21/10/2000 86 Ex.P86 Photo copy of Letter to Master.
22/10/2000 87 Ex.P87 Photo copy of Joint survey report.
22/10/2000 88 Ex.P88 Photo copy of Letter of protest.
22/10/2000 89 Ex.P89 Photo copy of Tank inspection report. 22/10/2000 90 Ex.P90 Photo copy of Certificate.
30/10/2000 91 Ex.P91 Photo copy of Letter to plaintiff.
31/10/2000 92 Ex.P92 Photo copy of Letter from plaintiff. 1/11/2000 93 Ex.P93 Photo copy of Insurance claim.
3/11/2000 94 Ex.P94 Photo copy of receipt.
12/12/2000 95 Ex.P95 Photo copy of Survey report.
13/12/2000 96 Ex.P96 Photo copy of Letter from the plaintiff. 21/12/2000 97 Ex.P97 Photo copy of Letter from the defendant. 31/1/2001 98 Ex.P98 Photo copy of Letter from the defendant. 6/2/2001 99 Ex.P99 Photo copy of Letter from the defendant. 23/8/2001 100 Ex.P100 Photo copy of Certificate of Incorporation. 13/5/1966 101 Ex.P101 Photo copy of Policy endorsement.
4/8/1999 102 Ex.P102 Photo copy of Marine cargo.
4/8/1999 List o f the Witnesses examined on the side of the Defendant: Nil List of Exhibits marked on the side of the Defendant: Nil 28.03.2018 jv To The Sub Assistant Registrar, Original Side, High Court, Madras.
R.SUBRAMANIAN,J.
jv Pre Delivery Judgment C.S.No.305 of 2004 28.03.2018