JUDGMENT - Vazifdar S.J., J.:-The suit is filed to recover a sum of Rs. 3,84,019=08 ps. with interest under two insurance certificates issued by the defendant under an open cover policy. The plaintiff claim that the loss suffered by it arose as a result of the damage and short delivery of the cargo insured by it with the defendant under the two insurance certificate.

2.The plaintiff's case is that in July, 1978, it entered into two contracts with Doolan Steel Export Company, a company incorporated in U.S.A. for the purchase of defective C.R.C. sheets (hereinafter referred to as the "said goods"). In respect of both the contracts, the plaintiff informed the defendant that it had booked the said orders with Doolan Steel Export Company for the purchase of the said goods for the sum US$ 30,252.60 (equivalent to Rs. 2,42,757=28) and US$ 1,63,954/- (equivalent to Rs. 13,26,488=67). By its applications both dated 25th July, 1978, the plaintiff requested the defendant to issue an insurance policy covering the C. F. value, 50% profit and custom duty. The defendant pursuant to this request, issued an open cover policy bearing No. 256050177 in respect of the said consignments to be shipped from New Jersey to Ghaziabad. I will refer to the relevant clause of the open cover policy later at the appropriate stage as the construction thereof is a question of considerable importance.

Doolan Steel Export Company shipped the said goods under two orders on board the vessel s.s. S.P. Kommuny under separate bills of lading. The plaintiff informed the defendant of the same. The defendant in turn issued two insurance certificates in respect of the consignments. The vessel arrived in Bombay on 30th March, 1979. The plaintiff filed bills of entry for home consumption for clearing the goods.

The goods were shipped under two bills of the lading dated 30th October, 1978 and 15th November, 1978. The net weight of the goods covered by the bill of lading dated 30th October, 1978 was 125.783 metric tonnes (hereinafter referred to as the "larger consignment") and the goods weight of the goods shipped under the bill of lading dated 15th November, 1978 was 693.383 metric tonnes (hereinafter referred to as the "smaller consignment"). In respect of the larger consignment, the Defendant issued an insurance certificate bearing No. 3560520486. Prior to this, the defendant had in respect of the larger consignment issued a temporary cover note No. 89071. In respect of smaller consignment, the defendant issued an insurance certificate bearing No. 3560520487. Both insurance certificate were dated 28th February, 1979.

3.After the consignments landed in Bombay, the plaintiff noticed that the consignments had been discharged in a damaged condition and that there was shortage in their content.

4.The plaintiff accordingly by a letter dated 17th April, 1979 informed the defendant of the same and requested the defendant to depute its representative to carry out the survey. The plaintiff asked the defendant to treat the letter as a formal claim stating that the final claim would be submitted after the survey by the defendant's representative. By a letter dated 24th April, 1979 M/s. Transocean Shipping Agency Pvt. Ltd. requested M/s. Eriscon and Richards to hold a survey of the consignments. The endorsement on this letter by M/s. Eriscon and Richards reads as under:-

"Survey granted as a special case and without prejudice to question of liability, survey having been applied for after the prescribed time limit."

The endorsement by Transocean Shipping Agency Pvt. Ltd. at the foot of the letter states that it was with reference to the plaintiff's letter dated 23 April, 1979. It will come to the significance of this endorsement while dealing with one of Mr. Makhija's submission. It appears, however, that M/s Ericson and Richards ultimately did not conduct the survey.

Ultimately, M/s. Metcalfe Hodgkinsons (Pvt.) Ltd. (hereinafter referred to as the surveyors") carried out the surve

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