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2010 Supreme(Bom) 1132
High Court of Judicature at Bombay
ROSHAN DALVI
Hindustan Copper Ltd.
Versus
New India Assurance Co. Ltd.
Suit No. 2066 OF 1990
Decided on: 10-08-2010
For the Plaintiff:Anil Menon with Ashish Prasad & Sanjay Kumar, Advocates. For the Defendant:Rahul Narichania with Preeti Shah i/by Motiwala & Co., Advocates.
Headnote:Contract Act, 1872 - Sections 10 and 124 - Claim for loss in transit - Claim on basis of shortage noticed in goods - Shortage duly certified - Claim rejected on ground that notice of shortage and claim was not served to them - It was a term of contract - Defendant cannot be expected to claim shortage without notice to verify and get same surveyed by him - No evidence of author of report - No evidence of quantity of goods delivered from wagons - Proof of loss is not proved - Suit dismissed. - For example, his evidence has not shown as to how much allowance for moisture loss was made by Kushal Roy. Only Kushal Roy could have explained that aspect. The defendant would be entitled to cross-examine Kushal Roy on the extent of the allowance made. Similarly what quantity delivered by each wagon was calculated and what in fact has not been explained by either of the plaintiffs witnesses.
The document itself sought to be produced by the plaintiff would be the primary evidence and has to be proved by its author or by the person who knows and understands the contents of the report so that he submits himself to the cross-examination of the other party for determining the truth of its contents.
The witnesses on behalf of the plaintiff do not know how the survey was carried out and how the measurements were taken and the allowance for reduction of moisture contents was made. Kushal Roy, who signed the report, would be required to be cross-examined by the defendant for showing how the shortage precisely as claimed by him in the report upon the precise Metric Tonne of goods, which were delivered under the aforesaid two consignments were shown by him.
Mere proof of the handwriting of a document would not tantamount to proof of all the contents of the facts stated in the document. The truth of the contents had to be proved by the evidence of the persons who can vouchsafe for the truth of the facts in issue. In that case a letter and a cable were shown to be received. Upon being received the same, the documents would be admissible in evidence. However, the contents of these documents were not proved as the author of the documents was not examined. The contents of these documents were not the evidence of the facts stated therein. It was observed that fax that was sent itself would not prove the truth of the contents of the document.
The plaintiff has not proved the surveyors’ report and consequently, the shortage mentioned in the surveyors’ report and the consequent loss suffered by the alleged shortage in transit as the loss in transit claimed by the plaintiff. Hence, issue Nos. (iv), (vii) and (viii) are answered in the negative.
1. This suit is filed for recovery of Rs.11,35,053.82/- with interest on the principal sum of Rs.8,09,928.96/- thereon and further interest from the date of the suit until payment being the value of the material lost in transit by the Plaintiff which was insured by the Plaintiff with the Defendant. The Plaintiff claims the loss in transit under a written contract between the parties contained in the Plaintiff’s offer to take an insurance policy of the Defendant dated 20.10.1986, Exhibit-A to the Plaint and the Defendant’s acceptance under its letter dated 13.12.1986, Exhibit-B to the Plaint, as per the terms, conditions and warranties and also the exceptions in the insurance policy issued by the Defendant, Exhibit-C to the Plaint.
2. The policy of insurance, which is a marine policy (cargo), is the written contract between the parties and the rights and entitlement of the parties are governed thereby.
3. It is the Plaintiff’s case that the offer of the Plaintiff was accepted by the Defendant and the policy issued as per the specific requirement inter alia of rail movement set out in the Plaintiff’s letter of offer. The clause relating to rail movement specifically states that there can be no physical weightment and such weightment would be on the basis of stowage factor. It also shows that the material received by the Plaintiff through rail would be weighed at its plant and the difference in the weight at the time the goods were put on the railway and at the time of delivery of the goods at the plant of the Plaintiff will be the basis of the stowage claim supported by the certificate from the Store Officer of the Plaintiff. The Plaintiff’s offer, which was subject to the terms, conditions, warranties and exceptions in the insurance policy, was accepted by issue of the policy itself. The clause of survey and claims settlement in the policy shows the conditions to be performed in the event of loss or damage which may result in a claim under the insurance policy. The Defendant claims that the Plaintiff must notify the event immediately to the Defendant’s agents at the port of discharge in order that they may examine the goods and issue the certificate of their agent. In cases where there is no agent at the port of discharge, notice is to be given to Lloyd’s agents.
4. No such notice was given. The claim has been made by the Plaintiff.
5. The Defendant contends that it is not liable for any loss or damage to the Plaintiff since its agent has not examined the goods and issued its survey report. The Plaintiff contends that the specific term in the offer of the Plaintiff was that the Plaintiff would get the goods at its own plant and claim the stowage supported by its own Store Officer’s certificate which the Defendant accepted and hence, the Defendant is bound to make good the loss in transit suffered by the Plaintiff as shown by the Plaintiff in its Storekeeper’s certificate.
6. The Plaintiff has sought to prove the loss suffered by it as the value of the missing cargo through its own surveyor’s certificate proved by the officer who signed the certificate. The Defendant contends that the certificate of the Plaintiff’s surveyor is also not proved.
7. Based upon the respective claims of the parties, following issues came to be framed on 24.6.2008 by Justice A.P. Deshpande (as he then was) and are answered as follows:-
ISSUES
(i) Whether the Plaintiff proves that the suit is filed within limitation. - Yes.
(ii) Whether the Plaintiff proves that this Court has no jurisdiction to try and entertain the suit. - Need not be answered as not pressed.
(iii)Whether the Plaintiff proves that under the policy the Defendant is liable to make good the loss. – No
(iv)Whether the Plaintiff proves that the value of the missing cargo was Rs.8,37,649.66/- - No
(v) Whether the Defendant proves that the Plaintiff has committed breach of the terms of the policy and hence not entitled to make any claim. – Yes
(vi)Whether the Plaintiff proves
