Delhi District Court
M/S. Gsc Toughened Glass Pvt. Ltd vs National Insurance Company Ltd on 10 March, 2010
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IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL DISTRICT JUDGE -01 (WEST); DELHI
RCA No.4/10
Date of Institution: 12.01.2010
Arguments concluded on : 09.03.2010
Date of Decision:10.03.2010
M/s. GSC Toughened Glass Pvt. Ltd.,
Through Authorized Person
Sh. Pankaj Kr. Sharma,
Office at:-
802, Arjun Nagar,
Kotla Mubarakpur,
Delhi. .....Appellant
Versus
1. National Insurance Company Ltd.,
Preet vihar Branch,
E-24, Jawahar Park,
Laxmi Nagar,
Delhi-92.
2. Air India Ltd.,
Cargo terminal,
Indira Gandhi Airport,
New Delhi-37. ......Respondents
JUDGMENT
Present appeal has been preferred against Judgment and decree dt.9.12.2009 passed by trial Court. Appellant was plaintiff before the Trial Court. Vide impugned judgment and decree, his suit no.189/2002(Old no.663/2001), instituted on 2 12.9.2001 for recovery of Rs.2,19,906/- came to be dismissed.
Respondents herein were arrayed as defendants in the suit.
In brief, case of the plaintiff/appellant as put forth in the plaint, is that the plaintiff Company imported goods from Frankfurt. Goods were to be transported on flight No.A1 148 of defendant no.2 Air India Limited Cargo Terminal. These goods were got insured by the plaintiff Company with defendant no.1 vide marine Policy.
However, goods are alleged to have short landed at the destination, one of the box having lost in transit.
On 10.7.1997, Schenker International advised defendant no.2 Air India Limited to issue short land certificate. Accordingly, certificate dt.22.7.97 came to be issued. The plaintiff Company informed defendant No.1 vide letter dt.29.7.97 and accordingly requested for issuance of claim- form so that claim should be lodged. Ultimately, plaintiff Company lodged claim no.43/97-97/02 with defendant no.1.
Vide letter dt.4.9.97 defendant no.1-Insurance Company advised plaintiff Company to lodge claim with defendant 3 no.1- Air India Limited; and accordingly plaintiff Company lodged claim with defendant No.2 vide letter dt.11.9.97.
Case of the plaintiff company is that defendant No.1 has been harassing by taking irrelevant and vague pleas. Ultimately, vide letter dt.26.10.98 defendant no.1 settled the claim on sub- standard- basis and paid a sum of Rs.2,08,113/- to the plaintiff Company However, it advised the plaintiff Company to claim the balance amount from defendant no.2.
Grievance of the plaintiff Company is that defendant no.1 has illegally, wrongly and without basis settled the claim on sub- standard basis.
Protest was lodged with defendant No.1 vide letter dt.4.11.98 but in vain. Then, legal notice dt.1.12.98 was issued by the plaintiff Company to defendant No.1 calling upon it for settlement of the entire claim, but the defendant No.1-Insurance Company did not pay the balance amount. Hence, the plaintiff company sued the defendants for recovery of Rs.2,19,906/- with pendentilite and future interest @ 18% p.a.
2. Version of Insurance Company Defendant no.1 filed written statement contesting the 4 claim of the plaintiff.
Defendant no.1 did not specifically deny the factum of importing of goods by the plaintiff Company and that those goods were insured with it(defendant no.1 company) vide marine policy and that the goods short landed at the destination and the same was lost in transit.
Defendant no.1 admitted that on 10.7.1997 Schenker International vide letter dt.10.7.97 advised for issuance of short land certificate and, accordingly, defendant No.2 issued certificate dt .22.7.1997.
Answering defendant Company admitted that plaintiff had informed it about the loss of the goods in transit vide letter dt.29.7.97 and that the plaintiff Company lodged registered claim No.43/97-97/02.
However, defendant -respondent company denied that plaintiff had submitted all the documents . Plea of the defendant
-respondent Insurance Company is that lodging of claim with defendant No.2 is pre-requirement for settling the claim. The company further admitted settlement of claim with the plaintiff for recovery of Rs.2,08,113/-. However, it is the plea of the defendant 5 company that plaintiff having failed to safeguard its recovery rights, the plaintiff company was asked to approach defendant No.2 for recovery of the balance amount.
3. Version of defendant no.2-Air India Limited:-
The answering defendant-respondent Company admitted that the goods of the plaintiff Company short landed at the destination and accordingly short landed certificate was issued.
Plea of the answering defendant-respondent Company is that since the plaintiff Company settled the claim with defendant no.1, it subrogated all its right in respect of the said claim in favour of the defendant no.1 and as such answering defendant- respondent Company is not liable to pay any amount to the plaintiff.
4. Points for determination From the pleadings of the parties, following issues were framed on 12.8.2002:-
1. Whether plaintiff is entitled to recovery of suit amount as against both the defendants? OPP
2. Whether plaintiff is entitled to any interest, on account of delay caused by defendant No.1 from 6 defendant no.2? OPP
3. Whether plaintiff is entitled to any interest as against defendant No.1? OPP
4. Relief.
Under issue no.1 trial court has held that the plaintiff having already settled the matter with defendant no.1 Company and issued subrogation letter in favour of the defendant No.1 company, it could not claim the same from the defendants . Accordingly, this issue came to be decided against the plaintiff and in favour of the defendants.
Under issue no.2, no interest has been granted to the plaintiff and as such this has been decided against the plaintiff and in favour of the defendants. Consequently, issue no.3 has also been decided against the plaintiff. As a result, suit of the plaintiff stands dismissed.
Arguments heard. File perused.
Issue no.1 Learned counsel for plaintiff-appellant has contended that defendants have admitted case of plaintiff that goods got insured with defendant no.1 and imported through defendant no.2 were certified to be short landed, and as such the plaintiff was 7 entitled to the entire sum of Rs.3,05,232.31. It is also contention of learned counsel for plaintiff-appellant that the defendants no.1- respondent no.2 company failed to lead any evidence during trial as to on what basis it deducted 25% of the amount from the due amount, defendant no.1 should have been held liable to pay the balance amount with interest and that too from the due date. Other contention of the Learned counsel for plaintiff-appellant is that defendant no.2 being equally liable for payment of the damages, should have been held liable to pay the amount of Rs.3,05,232.31 with interest.
On the other hand, learned counsel for defendant- respondent no.1-Insurance Company has contended that the Trial Court rightly concluded that once the plaintiff accepted the amount of Rs.2,08,113/- and issued letter of subrogation, plaintiff-appellant had no right to recover any further amount from defendant no.1, and that the suit has been rightly dismissed.
Learned counsel for defendant-respondent no.2 has contended that in view of the acceptance of the amount of Rs.2,08,113/- and issuance of letter of subrogation by the plaintiff in favour of defendant-respondent no.1, plaintiff having settled all 8 his rights and remedies, Trial Court has rightly held that plaintiff is not entitled to claim any amount from defendant-respondent no.1 company, and as such the appeal is liable to be dismissed.
5. Discussion Admitted Facts:
Admittedly, the plaintiff imported goods, which were to be transported from Frankfurt to New Delhi on flight No.AI-148 on 18.06.97. It is also not in dispute that goods in transit were got insured by the plaintiff with defendant no.1 vide Marine Policy no.43051097. Air India-respondent no.2 has admitted the case of the plaintiff-appellant that the goods short landed at the destination and accordingly short landed certificate was issued.
Value of the short landed goods A perusal of the insurance policy dt.16.05.97 would reveal that the plaintiff company had got insured the goods for a sum of Rs.6,50,000/-. Goods lost in transit were contained in one box of 112 Kgs. Consisting of sinumerik-81 OD CNC system simodrive 611D static Convertor system. As noticed above, respondent no.2 company issued short landing certificate in favour of plaintiff company. The certificate is Ex.PW1/6. Vide letter 9 Ex.PW1/7 the plaintiff-appellant company took up the matter with respondent no.1-insurance company for issuance of claim Form. Claim form is Ex.PW1/8. In this form, plaintiff-appellant company has mentioned the invoice value of the short landed goods at Rs.3,05,232.31. All this is also not in dispute. Steps taken by plaintiff company to protect rights of Insurance Company Vide letter Ex.PW1/9, respondent no.1 company asked the plaintiff-appellant company to lodge claim with Air India - respondent no.2 company, if already not lodged, as it was in its financial interest. Complying with this requirement of respondent no.1 company, appellant company took up matter with respondent no.2 company vide letter Ex.PW1/10 and registered its claim for Rs.3,05,232.31. Vide letter Ex.PW1/11 appellant company took up the matter once again with respondent no.1 company submitting therewith the documents which were required by it (respondent no.1 company). Thereafter, the appellant company repeatedly requested respondent no.1 company to do the needful for settlement of its claim.
Ex.PW1/22 is letter dt.31.01.98 is from the appellant company to respondent no.1 company in reply to its letter 10 dt.29.01.98. Vide letter Ex.PW11/24, appellant company confirmed to respondent no.2 company-Air India that the appellant company had no objection if payment against the subject claim was directly made to the insurance company.
It is in the affidavit of DW2 Madhu Sabharwal, Sr. Manager of defendant no.2 that the plaintiff company imported goods on 18.06.97 but the same short landed by its destination; that the goods were insured and accordingly, the plaintiff lodged claim with insurance company-defendant no.1. As further testified by witness, plaintiff company received a sum of Rs.2,08,113/- from defendant no.1 towards settlement of its claim and subrogated all its rights in respect the claim in favour of defendant no.1-insurance company. It is also in her affidavit that plaintiff is entitled to compensation by either of the agencies but it cannot claim the benefit of damage twice and that since the plaintiff company subrogated its rights, it could lodge claim for the balance amount, only with defendant no.2 company. She has further testified that in the given situation defendant-respondent no.2 is not liable to pay any amount to the plaintiff.
In her cross examination DW1 admitted that insurance 11 company - defendant- respondent no.1 had a right to claim loss from their company i.e. defendant -respondent no.2 and that its rights i.e. Of defendant-respondent No.1 were protected. DW1 further admitted that defendant - respondent no.1 has not filed any claim against defendant - respondent no.2.
In view of the above material available on record, it can safely be said that the appellant company complied with all the requirements as desired by respondent no.1 company. Learned counsel for respondent no.1 has not been able to point out from the record as to how appellant company did not protect the right of insurance company against the respondent no.2 company. What is the effect of issuance of subrogation letter by the plaintiff in favour of the Insurance Company?
A perusal of record would reveal that it contains two subrogation letters by the plaintiff in favour of the Insurance Company.
As regards first subrogation letter dated 21.3.1998, Ex.PW1/25 its perusal would reveal that the appellant company specifically mentioned in it that the same was being furnished as per the specimen and that the same be treated as pre receipt of the claim amount.
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Copy of subrogation letter dt.21.03.98 annexed to this letter Ex.PW1/25 would reveal that the appellant company through its Director Sh. Charanjit Singh mentioned in it that it was a receipt of Rs.3,05,232/- in full and final settlement of the short landed consignment. It does not reveal that the any settlement was arrived at between the plaintiff and the Insurance Company for a sum of Rs.2,08,113/-.
Vide its Letter dt.24.08.98 respondent no.1 company sought some clarification from the plaintiff regarding flight details.
Vide Letter Ex.PW1/35 dt.26.10.98 respondent no.1 company informed plaintiff company about clearing of its claim only for Rs.2,08,113/-, annexed a letter of subrogation and at the same time advised the appellant company to claim the balance amount from respondent no.2 - Air India. The reason for clearing of a claim of Rs.2,08,113/-, as finds mention in this letter, is that the recovery rights of the respondent no.1 company had not been protected.
In letter Ex.PW1/35 it finds mentioned that the claim was settled at Rs.2,08,113/-on sub-standard basis. However, it was for the respondent no.1 company to explain as to why the 13 lesser amount of Rs.2,08,113/- was being paid on sub-standard basis. It was for respondent no.1 company to lead cogent and convincing evidence in this regard.
Insurance company has not led any evidence to prove its case about sub-standard settlement of the claim. For want of any evidence from respondent no.1 company in this regard it can safely be said that respondent no.1 company arbitrarily and without any justification cleared the actual claim of Rs.3,05,232/- only for a sum of Rs.2,08,113/-.
So far as second letter of subrogation Ex.PW1/D-1 is concerned, it is for a sum of Rs.2,08,113/- and. bears the date of its execution as 5/7.06.99 and purports to have been attested from Notary Public on 07.06.99. But a perusal of the stamp paper on which this letter has been executed, would reveal that it was purchased on 10.11.98. As noticed above, the first subrogation letter was a sum of Rs. Rs.3,05,232.31. Vide the second letter of subrogation plaintiff received a sum of Rs.2,08.113/- from the insurance company. But it was for the insurance company to establish while leading cogent and convincing evidence as to how this figure of Rs.2,08,113/- was arrived at. There is no explanation 14 from the side Insurance Company as to why this first subrogation letter was for Rs.3,05,232.31 paisa and as to why the amount was reduced before calling upon the plaintiff to send the second letter of subrogation. Onus to prove sub-standard settlement of claim was on the Insurance Company. It having failed to discharge the onus, Trial Court could not hold that the plaintiff company had discharged all its rights in respect of the claim of goods lost in transit as against Rs. 2,08,113/- .
As noticed above, defendant-respondent no.1 company
- insurance company has failed to prove as to on what basis it considered this claim to be a claim of sub-standard settlement. In absence thereof, the insurance company could not call upon the plaintiff company to accept only a sum of Rs.2,08,113/- as against its total liability for the loss to the tune of Rs.3,05,232/-.
Material available on record would reveal that plaintiff company had not settled the claim for a lesser sum. As per record, immediately after it was informed by the insurance company vide letter dt.26.10.98 that the higher authorities had passed the claim only for Rs.2,08,113/-the plaintiff-appellant company lodged a protest with defendant - respondent no.1 - insurance company 15 over the amount sanctioned . The plaintiff - appellant company expressed surprise vide letter dt.04.11.98 as to how the respondent company could offer only a sum of Rs.2,08,113/-. This protest was followed by its letter dt.30.01.99 as the plaintiff- appellant company even returned the original subrogation letter to the defendant - respondent no.1 company. However, the insurance company vide letter dt.07.05.99 again returned letter of subrogation to the plaintiff - appellant company. Thereafter, vide letter dt.07.06.99 Ex.PW1/46, the plaintiff company sent the letter of subrogation to the insurance company but at the same time requested for payment of the balance claim amount as well. Letter Ex.PW1/37 would reveal that plaintiff-appellant company again requested the insurance company to expedite the payment of the balance claim amount. All this followed letters Ex.PW1/48, Ex.PW1/49, Ex.PW1/50 and Ex.PW1/53 from the plaintiff company to the insurance company calling upon the insurance company for payment of the balance amount. Therefore, it cannot be said that the plaintiff company was satisfied with lesser claim. Rather, it stands established that the plaintiff company regularly lodged protest with respondent No.1 company over the lesser claim. 16
When there is no material available on record to justify deduction @ 25% from the total claim of the plaintiff company by the insurance company, and the insurance company was liable to pay the total claim amount to the plaintiff company for the actual loss suffered by it, findings recorded by the Trial Court against the plaintiff company under issues no.1 to 3 are liable to be set aside. It is ordered accordingly.
As regards liability of defendant-respondent No.2, once the plaintiff company resorted to lawful remedy of claiming the amount from the Insurance Company, and also protected the rights of the Insurance Company qua defendant-respondent No.2, plaintiff-appellant is not entitled to recover any amount from defendant-respondent No.2.
As a result, appeal is partly allowed, the impugned judgment and decree is set aside and while decreeing the suit of the Plaintiff-appellant company with costs, it is held entitled to recover a sum of Rs.3,05,232.31 from defendant no.1 - insurance company and accordingly, suit of the plaintiff is decreed in its favour and against defendant-respondent no.1-insurance company for recovery of amount of Rs.97,119/- with interest @ Rs. 8% per 17 annum from 08.06.97 till its realization. Suit is also decreed for interest @ 8% p.a. on the sum of Rs.2,08.113/- from 08.06.97 to 26.10.98 i.e. when the amount was actually paid by defendant - respondent no.1 to the company.
On execution of letter of subrogation by the plaintiff- appellant, defendant-respondent No.1 company shall have all rights to recover the claim amount from defendant-respondent No.2 and that too in accordance with law.
Qua defendant - respondent no.2, this appeal is hereby dismissed.
Decree sheet be prepared and file be consigned to record room. Appeal file be sent to Learned Trial Court.
Announced in the open court (Narinder Kumar)
on 10.03.2010 Addl. District Judge-01(West)
Delhi