Delhi District Court
R.P.C Foods vs The Oriental Insurance Co Ltd on 1 November, 2023
IN THE COURT OF SH. SAHIL KHURMI,
CIVIL JUDGE-01, CENTRAL DISTRICT, TIS HAZARI COURTS,
DELHI
CNR No:-DLCT03-0048032018
CS No.2110/2018
1. M/s. R.P.C. Foods,
Through its Partner Sh. Prashant Asrani,
at M-212, G Floor, Lado Sarai,
New Delhi-110030.
2. M/s Sai Global
Through its Partner Sh. Chetan Asrani,
F-301, Lado Sarai,
New Delhi-110030. .............. Plaintiff
Versus
1. The Oriental Insurance Company Ltd.,
Through its Chairman-cum-Managing Director,
Oriental House, A-25/27, Asaf Ali Road,
New Delhi-110002.
2. The Divisional Manager,
D.O.:22, 28/12, East Punjabi Bagh,
New Delhi-110026. .........Defendants
Date of institution of suit : 28.07.2018
Date on which judgment was reserved : 31.10.2023
Date of pronouncement of Judgment : 01.11.2023
SUIT FOR RECOVERY OF RS.2,52,976/- WITH PENDENTE
LITE INTEREST @ 18% PER ANNUM.
JUDGMENT
1. The present suit has been filed by plaintiff for recovery of Rs.2,52,976/- against the defendants.
CS SCJ No.2110/2018 Page 1 of 132. The brief facts as stated in the plaint are that the plaintiffs are in the business of import and export of eatable goods from various countries and for the same the plaintiff is having continuously marine cargo insurance policy for the last many years and the same are continuing without any break from the office of defendant No.2, working under the control and instructions of defendant No.1. It is further stated that the plaintiff No.1 keeps amount always deposited with the defendant No.2 by way of depositing cash or cheque from time to time.
3. It is the case of the plaintiff that plaintiff in due course of its business obtained Marine Policy No.271900/21/2016/1234, Certificate No.0023 dated 30.06.2019 from the defendant No.2 towards the food products. It is further stated that the food products were dispatched on 30.06.2016 from IZMIR Turkey Port to Mumbai Port. It is further stated that the plaintiff No.2 approached the plaintiff No.1 and offered to purchase the goods which is the subject matter of above said marine policy. It is further stated that the consignment was containing 935 bags of 15 kgs each + 250 bags of 10 kgs each total 16525 Kgs (Dried Oregano) and 80 bags of 25 Kgs each total 2000 Kgs (Dried Roma Semary-Whole).
4. It is further stated that the total quantity 18,525Kg in 1265 bags. It is further the case of plaintiff that the plaintiff No.1 with the proposal of the plaintiff No.2 and accordingly a High Seas Sale Agreement was executed on 08.07.2016 between the plaintiff No.1 and 2. It is further stated that plaintiff No.2 is competent to take all steps regarding the CS SCJ No.2110/2018 Page 2 of 13 above said food articles with the defendants and concerned departments. It is further stated that the consignment containing 935 bags of 15 Kgs each+250 bags of 10 Kgs each total 16525 Kgs (dried oregano) and 80 bags of 25 Kgs each total 2000Kgs (dried Roma Semary-whole), total quantity 18,525 kg in 1265 bags reached at Mumbai port on 22.07.2016 as per bill of entry No.6118954 dated 25.07.2016, bill of landing YDNEX 01126 dated 03.06.2016, invoice No.069497 dated 10.06.2016 valued 19720 USD.
5. It is further stated that plaintiffs came to know of suffering losses of food articles in transit on 25.07.2016 and a claim to this effect was lodged on Marine Policy No.271900/21/2016/1234 issued by the defendant No.2 in the name of plaintiff No.1. It is further stated that defendant No.2 appointed Sh. Utpal Sharma as Surveyor and Loss Assessor on 05.08.2016 to conduct the survey and assess the losses of above food articles. It is further stated that the said surveyor duly carried out the survey of consignment of food articles at Mumbai Port side and observed that most of the bags were wet due to water and on seeing this, the surveyor sought to unload the bags and confirmed that most of the bags containing food articles have been affected badly and are in wet condition and the said surveyor observed that since the oregano bags were water soaked and as a result thereof fungus developed inside and became unhygienic because it may cause toxicity and the surveyor assessed the loss to be Rs. 2,12,676/- and further observed that the goods were damaged.
6. It is further stated that plaintiffs are having marine cargo policy for the last more than 5 years from the defendants and the plaintiffs have CS SCJ No.2110/2018 Page 3 of 13 been maintaining running account regarding the premium at relevant time i.e. July, August, 2016 and there was a balance of more than Rs. 21,000/-. It is further stated that as per the Marine Cargo Insurance Policy therein the amount is deposited from time to time and thereafter the consignment maintains cash/cheque deposit/premium account, the C.D.A/c number is 0000011789. It is further stated that as per the statement of account released by the defendants for the period the opening balance on 01.04.2016 is Rs.33,748 and closing balance as on 30.09.2016 is Rs.15070/-. It is further stated that the premium of marine cargo appears vide Certificate No.271900/21/2016/1234/0023 for Rs. 6510/-. Statement of account was issued by concerned office incharge of defendants department.
7. It is further stated that during the period of last three years the present claim has occurred. It is further stated that the balance prior to the date of loss/claim or even thereafter was more than Rs. 21,000/- lying with the defendant No.2 and the said amount is over and above the premium. It is further stated that plaintiffs never intended to avoid the premium and that the claim raised by the plaintiffs is genuine and needs to be settled/cleared by the defendants. It is further stated that the defendants are liable to settle the claim of Rs. 2,52,976/- (Rs. 2,21,676 towards losses sustained to the plaintiff in transit, survey fee Rs. 8200/- + 10% incidental charges).
8. It is further stated that plaintiffs made several correspondence on several dates in writing or through emails to the insurance company from time to time but to no avail. It is further stated that the act and conduct of the defendants are against the insurance contract which CS SCJ No.2110/2018 Page 4 of 13 amounts to breach of trust and deficiency of service on the part of insurance company. Therefore the defendants are liable to pay the damages as claimed besides the interest @ 18% per annum with effect from 25.07.2016 till the date of realization. It is further stated that defendants in response to the plaintiff's letter dated 24.12.2016 sent reply dated 28.12.2016 stating thereby that a cheque of February 2016 was dishonoured and after deducting Rs. 30,000/- there was a negative balance of Rs. 9000/- and that the claim cannot be entertained.
9. It is further stated that policy in question was never cancelled and still continues. It is further stated that no intimation regarding dishonour of cheque was given to square up the balance. It is further stated that the continuance of policy and acceptance of deposits by the defendants clearly indicates that the police is in continuance. It is further stated that plaintiff No.1 got served the legal notice dated 10.04.2017 upon defendants thereby calling them to settle/clear the claim of the plaintiffs lodged on above said policy, however, defendants did not reply the aforesaid notice till date. Hence the present suit has been filed.
10. Summons of the suit were issued to the defendants by the Ld. Predecessor of this court, which have been duly served on the defendants and defendants have put appearance through their counsel and thereafter matter was fixed for filing of written statement.
11. Written statement was filed on behalf of defendants wherein averments made in the plaint were denied and it is submitted on behalf of defendants that the present suit is beyond the period of limitation and liable to be dismissed with cost. It is further submitted that this Court does not have jurisdiction to try and adjudicate the present suit on CS SCJ No.2110/2018 Page 5 of 13 account of limitation clause 8 of Contract which says "It is also hereby further expressly agreed and declared that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calender months from the date of such disclaimer have been made the subject matter of suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder" as the limitation period of filing any suit has already expired on 27.12.2017. It is pertinent to mention that the defendants never placed on record the said contract and hence the defence that the present suit is barred by limitation is not proved by defendants.
12. It is further submitted that the present suit has not been signed, verified and instituted by a competent authority and as such the same is liable to be dismissed. It is further submitted that as per record available with the office of the defendants, plaintiff No.1 obtained an Marine Open Policy bearing No.271900/21/2016/1234 from defendant No.2 office for one year w.e.f. 01.04.2015 to 01.04.2016 for covering consignments imported from anywhere in Turkey to New Delhi by sea where under the plaintiff was bound to declare each and every consignment to the defendants and the premium was to be paid in advance as CASH DEPOSIT (CD ACCOUNT). It is further submitted that the consignments were insured on CIF+DUTY+10% subject to other various terms and endorsements as mentioned in the policy i.e. Institute Cargo Clauses (A) and an deductible excess clause of 5% of claim amount. It is further submitted that it was also a conditions of the policy that in case of dishonour of premium cheques the company shall not be liable under the policy and the policy shall be void aninitio (from CS SCJ No.2110/2018 Page 6 of 13 inception). It is further submitted that a claim was reported by plaintiff No.2 to the divisional office of the defendants on 02.09.2016 alleging damage to consignment declared under Certificate No. 271900/21/2016/1234/0023.
13. It is further submitted that an independent surveyor report of Mr. Utpal Sharma, Surveyor was also sent along with some documents viz Declaration of Insurance dated 30.06.2016, claim form etc to defendant No.2 wherein the loss assessment was made by surveyor for an amount of Rs.2,31,676/-. It is further submitted that after receipt of report and other papers from the plaintiff, defendants divisional office, New Delhi processed the claim and came to know that there was no undeclared balance or "SUFFICIENT CASH IN CD ACCOUNT" under the policy as the cheque bearing No.402727 dated 02.02.2015 drawn on ICICI was dishonoured by the Bankers of plaintiff No.1. It is further submitted that defendants accordingly intimated the plaintiff and the claim of plaintiff was closed as NO CLAIM by the defendant company.
14. It is further submitted that defendants office closed the claim of plaintiff as NO CLAIM on account of the no sufficient balance in CD ACCOUNT in the marine open policy taken by the plaintiff and dishonour of premium cheque to substantiate the undeclared balance to cover the consignment in question as per terms and conditions of the insurance contract. It is further submitted that as per policy the plaintiff No.1 was authorised to issue declarations from time to time for the consignments declared for insurance subject to availability of cash deposit account/undeclared balance and payment of premium in advance to the defendant company.
CS SCJ No.2110/2018 Page 7 of 1315. Replication was not filed on behalf of plaintiff to the written statement of defendants.
ISSUES:-
16. Issues in the present matter were framed by Ld. Predecessor of this Court vide order dated 16.01.2019:-
1. Whether the plaintiff is entitled to the recovery of Rs.
2,52,976/- along with pendentelite and future interest, as prayed for?OPP
2. Relief.
Thereafter matter was fixed for recording of evidence of plaintiff.
EVIDENCE:-
17. In plaintiff's evidence, Sh. Parmod Bisht as PW-1. PW-1 tendered his evidence by way of affidavit Ex.PW1/A. PW-1 relied upon the following documents:-
Ex.PW1/1 : Certificate No.0023 dated 30.06.2016.(OSR) Ex.PW1/3 : High Seas Sale Agreement dated 08.07.2016. (OSR) Ex.PW1/4 : Copy of invoice No.069497 dated 10.06.2016.
Ex.PW1/5 : Bill of entry NO.6118954 dated 25.07.2016(OSR) Ex.PW1/6(colly) : Photographs (24)
18. PW-1 was duly cross examined. Thereafter plaintiff's evidence was closed and the matter was listed for recording of defendant's evidence.
19. In defendant's evidence, Ms. Renuka Chaudhary, Dy Manager, CS SCJ No.2110/2018 Page 8 of 13 Oriental Insurance Company has been examined as DW-1. DW-1 tendered his evidence by way of affidavit Ex.DW1/A and relied on document:-
Mark DW1/1 : Certified copy of policy along with terms and conditions.
Ex.PW1/6 : Copy of report with documents.
Mark DW1/2 : Copy of letter along with WS on pages
17,19,20.
Mark DW1/3 : Copy of letter dated 28.12.2016 on page 18 of
WS.
DW-1 was duly cross examined and discharged.
20. Thereafter Defendant's evidence was closed and the matter was fixed for hearing final arguments.
21. Final Arguments have been heard and the record is carefully perused by this court.
ISSUE WISE FINDINGS:-
Issue No.1:- Whether the plaintiff is entitled to recovery of Rs. 2,52,976/- along with pendente lite and future interest, as prayed for?OPP
22. Onus to prove this issue was on the plaintiff. Shorn to unnecessary details, the brief case of the plaintiff is that the plaintiff is having marine cargo policy for last more than 5 years from the defendants and the plaintiffs have been maintaining the running account regarding the premium to be paid to the defendant. It is further stated by the plaintiff that as per the running open marine insurance policy, an CS SCJ No.2110/2018 Page 9 of 13 amount of premium deposited by the plaintiff from time to time and thereafter the consignment is called as per requirement. It is further stated that the defendants maintained cash/cheque deposit/premium account and as per the statement of account released by the defendants, the opening balance on 01.04.2016 is Rs. 33,748/- and closing balance as on 30.09.2016 is Rs. 15,070/-. The plaintiff has placed on record the certificate for Rs. 6510/- of premium of marine cargo insurance along with the statement of account issued by the Officer Incharge of defendant.
23. It is the case of plaintiff that High Seas Sale Agreement was executed on 08.07.2016 with the defendants towards insurance of food products, however, the plaintiffs suffered losses of food articles in transit on 25.01.2016 and a plaint to this effect was lodged on marine policy no. 271900/21/2016/1234 issued by defendant No.2 in the name of plaintiff No.1 and thereafter defendant No.2 appointed Sh. Utpal Sharma as Surveyor and Loss Assessor on 05.08.2016 to conduct the survey and assess the loss of food articles. Thereafter the surveyor assessed the loss to be Rs.2,21,676/-. Copy of survey report along with photograph is also annexed with the plaint. Thereafter the plaintiff made several correspondence in writing and in email to the defendant but to no avail. It is further stated that defendants in response to plaintiff's letter dated 24.12.2016 sent reply dated 28.12.2016 stating that the cheque issued by the plaintiff was dishonoured and after deducting Rs.30,000/- there was a negative balance of Rs.9,000/- and therefore the claim of the plaintiff was not entertained. It is the case of plaintiff that the cheque was dishonoured due to the reason "outdated/stale" and the same was due to inefficiency of the defendants as the cheque of plaintiff was not CS SCJ No.2110/2018 Page 10 of 13 presented in time by the defendants and there was no fault of the plaintiff.
24. It is the case of defendants that there was no sufficient cash in CD account under the policy and the cheque of plaintiff bearing No.402727 dated 02.02.2015 was dishonoured due to the reason "outdated/stale"
and therefore the claim of the plaintiff was closed as NO CLAIM by the defendants.
25. The factum of High Seas Sales Agreement between the parties I not in dispute and the factum of loss of consignment of goods of Rs. 2,31,676/- of the plaintiff assessed by Surveyor Utpal Sharma is also not in dispute. The bone of contention in the present case is that the plaintiff did not have sufficient cash in CD account under the marine insurance policy and cheque of plaintiff was dishonoured due to the reason "outdated/stale" and therefore the claim of the plaintiff was closed as NO CLAIM by the defendants. The defendants have themselves admitted that independent survey was done by the surveyor Utpal Sharma wherein the loss assessment of the goods of plaintiff was calculated to Rs. 2,31,676/-. The defendants have cross examined PW-1 in which PW-1 deposed that the cheque bearing No.402727 dated 02.02.2015 drawn on ICICI Bank was dishonoured as the same was deposited late by the defendants and not due to other reasons. The plaintiff further deposed that he had sufficient bank balance in his bank account to honour the cheque and he can place on record the bank account statement if required. However, the same was never summoned from the plaintiff by the defendants. Hence, sufficiency of funds in bank account of plaintiff is uncontroverted by defendants.CS SCJ No.2110/2018 Page 11 of 13
26. DW-1 Ms. Renuka Chaudhary, Dy Manager of defendants was cross examined by the plaintiff wherein she admitted that the premiums are paid in advance and proper receipts are issued. She further deposed that she cannot say as to why the dealing office has deposited the cheque at later date. She further admitted that the reason of dishonour is not lack of funds. She further deposed that intimation of the dishonour of the cheque was given to the plaintiff vide letter dated 28.12.2016.
27. It is pertinent to mention that defendants have stated in their written statement that the claim of plaintiff was reported to the divisional office of defendants on 02.09.2016 alleging damage to consignment declared under Certificate No. 271900/21/2016/1234. Thus, it is apparent that the defendants gave the intimation of dishonour of the cheque to the plaintiff three months after the plaintiff reported loss of the consignment. It was the duty of the defendants to inform the plaintiff regarding dishonour of the cheque well in time so that the plaintiff could maintain sufficient balance in his CD account. As already discussed, there was no fault of the plaintiff in dishonour of the cheque as the cheque was not presented by the defendants timely and thus it got dishonoured due to the reason "outdated/stale". Had the defendants informed the plaintiff timely about the dishonour of the cheque, the plaintiff could have maintained sufficient balance in his CD account and huge loss of consignment of Rs. 2,31,676/- of the plaintiff would not have been disclaimed by the defendants.
28. In view of the above discussion, the present issue is decided in favour of plaintiffs and against the defendants and plaintiffs are entitled to recover the value of loss of goods of Rs.2,31,676/- along with survey fees of Rs.8200/- for which the plaintiff has placed on record bill of Sh.CS SCJ No.2110/2018 Page 12 of 13
Utpal Sharma, surveyor and loss assessor, from the defendants. Plaintiff has also claimed 10% Incidental Charges but no details and no evidence has been lead to prove the same. Accordingly, the prayer to grant 10% incidental charges is declined.
Relief:-
29. In view of foregoing discussion and findings on the above issues, the present suit filed by plaintiff is decreed in favour of plaintiffs and against the defendants and the plaintiffs are held entitled to recover a sum of Rs.2,31,676/- along with survey fees of Rs.8200/- . The plaintiffs have claimed pendentelite and future interest @ 18% per annum, however, the same appears to be exorbitant and unreasonable. Accordingly, plaintiffs are entitled to recover interest @ 9% per annum on Rs.2,31,676/- from the date of filing of the present suit till realization of the same from the defendants.
30. No order as to cost.
31. Decree sheet be prepared accordingly.
32. File be consigned to the record room after due compliance.
Announced in the open (SAHIL KHURMI)
court on 01.11.2023 Civil Judge-1, Central District
Tis Hazari Courts, Delhi.
CS SCJ No.2110/2018 Page 13 of 13