IMPORTANT POINT
The burden of proof lies with the insurer to establish a fundamental breach of the policy in order to avoid liability for an insurance claim.

JUDGMENT :

Sugato Majumdar, J.

1. The present suit is filed by the Plaintiff in respect of insurance claim against the Defendant no. 1.

2. The plaint case, in nutshell, is that the Plaintiff is engaged in the business of manufacture and sale of refined rice bran oil. Oil is manufactured at the Plaintiff’s facilities on GT Road, Pemra, P.O.- Jothrang, District-Burdwan. Oil is transported to different states of the country. The Plaintiff use to engage various transporters having oil tankers for transportation of oil. In order to indemnify from any loss which may arise during transportation, the Plaintiff obtained a policy of insurance from the Defendant no. 1. The said policy is one known as Marin Cargo Open Policy. Under the policy the Plaintiff was insured from loss, arising from transit risk, including accident. The policy was applied for and issued at Defendant no. 1’s office at B-2/1, Gillander House, 8, Netaji Subhas Road, (2nd Floor), Kolkata – 700001 within jurisdiction of this Court. Total sum insured was Rs.10,00,00,000/-. Defendant No.1 is a statutory body running insurance and allied business and the Defendant No.2 is a transporter.

3. The Plaintiff entered into a contract for carriage of oil with Defendant no. 2, the transporter, for transportation of 26.640 M.T oil, the value of which was Rs.11,58,840/-. The agreement of transportation between the Plaintiff and the Defendant no. 2 was entered into at the Plaintiff’s office at 143, Cotton Street within jurisdiction of this Court. Thereafter, Plaintiff handed over oil to Defendant no. 2 for loading into tanker and transportation which were obligations of the Defendant no. 2.

4. The consignment in question was loaded in a tanker bearing no. WB-41B/4547. The tanker met with an accident at Jharpoakaria Thana, Mayurbhanj, Orissa on 19/01/2005. As a consequence of the accident major portion of oil was lost and the Plaintiff suffered loss and damage of 24.840 MT of oil value of which was Rs.10,80,540/-. This loss was confirmed by the Defendant no. 2 and Defendant no. 1’s surveyor. By a letter dated 25th January, 2005, Plaintiff gave a notice of its claim of loss to the Defendant no. 2. Thereafter, in terms of a letter dated 7th March, 2005, the Plaintiff submitted the claim for loss of 24.840 M.T. of oil valued at Rs.10,80,540/- along with necessary documents to the Defendant No.1. The Defendant no. 1 in terms of its letter dated 22/08/2005 denied liability in view of the fact that the tanker was overloaded. The Plaintiff pursued the matter under the Consumer Protection Act from August 2006 to March 2008. Ultimately, by an order dated 31st March, 2008 the National Consumer Disputes Redressal Commission held that the Plaintiff would be entitled to obtain benefit under Limitation Act.

5. In view of denial of the Defendant no. 1 to pay the Plaintiff’s insurance claim, the Plaintiff was constrained to institute the present suit praying for a decree of Rs.17,19,450/-, interest along with other remedies. The particulars of the claim of the Plaintiffs is that,

PARTICULARS

(a) Principal Sum Rs.10,80,540/-

(b) Interest at the rate of 18% per annum

Since 25th January, 2005 to 7th May, 2008 (1199 days)

Rs.6,38,910/-(rounded off)

Total Rs.17,19,450/-

6. Defendant no. 1, namely, the National Insurance Company Limited contested the suit by filing written statement, denying all materials allegations. It is admitted that Plaintiff took one Marine Cargo Open Policy from the Defendant no. 1. It is stated in the written statement that the Defendant no. 1 had no knowledge that the Plaintiff entered into any contract for carriage with the Defendant no. 2 for transportation of 26.640 M.T rice bran oil of the value of Rs.11,58,840/-. It is also denied that loading of the oil into tanker, transportation and all further acts were the obligations of the Defendant no. 2. It is further averred in the written statement that Plaintiff approached the State Consumer Disputes Redressal Commission when the Defendant N