Impex Services & Anr v. Oriental Fire & General Insurance Co Ltd

order as to costs.

S. RAVINDRA BHAT

(JUDGE)

NAJMI WAZIRI (JUDGE)

AUGUST 8, 2013

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 05.08.2013 Pronounced on: 08.08.2013 + RFA (OS) 39/2012 M/S. IMPEX SERVICES & ANR. ..... Appellants Through : Sh. Vijay Gupta, Ms. Geeta Goel and Sh. Chetan Swarup, Advocates. versus THE ORIENTAL FIRE & GENERAL INSURANCE CO. LTD. ..... Respondent Through : Ms. Sunita Dutt, Advocate. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S.RAVINDRA BHAT % 1. This is an unsuccessful plaintiff's appeal against the judgment and order of a learned Single Judge, dated 2nd May, 2011 dismissing its claim based on a marine insurance policy, in CS (OS) No. 653/1980. 2. The suit claimed `23 lakhs (i.e. insured amount plus interest) towards marine insurance policy claim. The plaintiff had insured a consignment of goods (PVC Resin) shipped by the second and third Page 2 defendants ("the shippers") from Singapore to it in India. The first defendant ("insurer") had issued two Insurance Cover Notes of 19th June and 10th August, 1979. The first policy was in respect of cost, insurance and freight and the second policy was for the profits. The plaintiff had contended that pursuant to a Contract dated 11th June, 1979 between it and the shippers, the consignment valued at `13,22,912/- was loaded on the vessel "SS.OH DAI" at Singapore. They were deliverable at Bombay under the freight contract contained in the Bill of lading of 1st September, 1979 issued by Union Shipping Ltd. i.e. the sixth defendant (hereafter "the carrier"). The consignment was insured with the insurer who had issued provisional cover notes for `14,55,200/- and `5,29,200/- after the premium amount of `10,774/- was deposited. Insurance policies were also issued by insurer; however the same were not received by the plaintiffs when the suit was filed. 3. The plaintiff had contended that the insurer was informed by the shippers about the shipment of the plaintiffs' goods by cable dated 3rd September, 1979. The plaintiff stated that the consignment in question was lost in the high seas and as the entire cost of consignment had been paid and further there being a completed contract of insurance, it had by Notice registered its claim dated 9th October, 1979 and demanded `19,84,000/- from the insurer with a further request to have the loss surveyed. The insurer, by its reply of 15th February, 1980 denied liability, after the ship sank, on the plea that the vessel "OH DAI" was not approved. The Plaintiff alleged that the insurer had Page 3 certified eligibility of vessel "OH DAI" by its act of accepting additional premium from the other parties whose goods were also shipped in the vessel "OH DAI". No additional premium was demanded from the plaintiff; however, it would have willingly paid it. Interest @ 18% p.a. on the insured amount was claimed by the plaintiff. 4. The insurer disputed the plaintiff's claim, by asserting that since the consignment was not sent by approved vessel, as required by the cover note of insurance, it was not liable to pay any amount. The fourth Defendant, i.e. the plaintiff's banker in its written statement admitted that the plaintiff had opened a letter of credit and stated that no relief was claimed against it, i.e. the fourth defendant. The remaining defendants were set ex-parte. 5. The following issues were framed for trial: "i) Whether the plaint is signed, verified and instituted by a duly authorized and competent person? ii) Whether the plaintiff entered into contract with defendants No.2 and 3 for purchase of P.V.C. Resin of the value of Rs.13,22,912/-. If so, on what terms? iii) Whether the contract of insurance between the plaintiff and defendant is not enforceable? iv) Whether the suit is bad for misjoinder of parties or causes of action? v) Whether the policy of insurance is void ab initio on account of suppression of material facts as alleged in paras 1 and 2 of the written statement of defendant No.1? Page 4 vi) Whether the policy of insurance is liabl