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IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. – APPELLANT
Versus
SURESH MEHTA & ANR. – RESPONDENTS
RFA No. 669 OF 2017
Decided On : 31-07-2017
Insurance - Cargo Transportation - Code of Civil Procedure, 1908 - Section 96 - [CARGO TRANSPORTATION] - [Code of Civil Procedure, 1908 - Section 96] - The court discussed the applicability of Warranty No. 1 of the insurance policy, which specified that if the weight of the cargo exceeds the registration laden weight of the carrying vehicle, then any loss or damage arising out of such transit is not covered under the policy. The court referred to the recent judgment of the Supreme Court in Lakhmi Chand Vs. Reliance General Insurance 2016 (3) SCC 100, which held that compensation under an insurance should not be denied unless the breach of the clause is a reason for happening of the accident. The court found that the accident did not occur due to the breach of Warranty No. 1, but because the driver was trying to avoid animals crossing the road.
Fact of the Case:
The respondent filed a suit for recovery of Rs.10,53,177/- along with interest from the appellant insurance company, claiming that the consignment of fruit juice it had insured was damaged during transportation due to an accident. The appellant rejected the claim based on the breach of Warranty No. 1 of the insurance policy, which specified the weight limit of the carrying vehicle.
Finding of the Court:
The court found that the accident did not occur due to the breach of Warranty No. 1, but because the driver was trying to avoid animals crossing the road. The court relied on the recent judgment of the Supreme Court and held that the insurer cannot avoid its liability unless the breach of the condition is so fundamental and has contributed to the cause of the accident.
Issues: The issues revolved around the applicability of Warranty No. 1 of the insurance policy, the breach of the weight limit of the carrying vehicle, and the liability of the insurer in case of an accident.
Ratio Decidendi: The court's decision was based on the finding that the accident did not occur due to the breach of Warranty No. 1, but because the driver was trying to avoid animals crossing the road. The court emphasized that the insurer cannot avoid its liability unless the breach of the condition is fundamental and has contributed to the cause of the accident.
Final Decision: The court dismissed the appeal, affirming the trial court's decision that the appellant cannot avoid its liability under the policy because the accident did not happen due to the breach of Warranty No. 1, but because the driver was trying to avoid animals crossing the road.
VALMIKI J. MEHTA, J.
1. This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the appellant insurance company challenging the impugned judgment dated 23.02.2017 whereby the suit filed by the respondent/plaintiff for recovery of Rs.10,53,177/- along with interest has been decreed.
2. The subject suit was filed by the respondent/plaintiff pleading that it had insured with the appellant consignment of 1488 cartons of fruit juice weighing 19497 kgs of the value of Rs.9,15,619.63/- and which consignment was covered under the invoice numbers 73 to 75 dated 22.03.2010. The cartons in question of fruit juice were loaded from Bhiwandi to be delivered to M/s Sidhivinayak Marketing at Guwahati as per Lorry Receipt No.45302029 dated 22.02.2010. The services of the defendant no. 1 in the suit, respondent no. 2 herein, were taken with respect to transportation of the goods and the transportation was covered under the Marine Open Inland Policy No. 2001/57088864/00/000. Consignment was carried on vehicle bearing registration No.MP 09 HF 1329. This vehicle met with an accident between Indoor and Bhiwandi resulting in the consignment being delivered with 1082 cartons leaking and short supply of 137 cartons. With respect to the loss, a short/damage, certificate was issued by the transporter/respondent no. 2 on 05.05.2010. The surveyor of the appellant also reported loss of Rs.7,46,747.45/- but appellant had rejected the claim inasmuch as the weight of the consignment was 19497 kgs but the permissible limit for carrying capacity of the vehicle in terms of the registration certificate of the vehicle was only 18367 kgs.
3. On behalf of the appellant reliance was placed on Warranty No. 1 of Schedule-I of the policy containing the terms and conditions which specifies that if the weight of the Cargo exceeds the registration laden weight of the carrying vehicle then loss/damage arising out of such transportation would not be covered under the insurance policy.
4. This issue of applicability of Warrant No. 1 was subject matter of issue no. 3 framed by the trial Court and has been dealt with in paras 14 to 23 of the impugned judgment. In these paras 14 to 23 the trial court has referred to recent judgment of Supreme Court in Lakhmi Chand Vs. Reliance General Insurance 2016 (3) SCC 100 and which held that compensation under an insurance should not be denied unless and until the clause which is pleaded to be in breach is a reason for happening of the accident. It has been held by the trial court in the facts of the present case that accident in this case had not happened on account of the breach of the clause Warranty No. 1 with respect to higher carrying weight of the vehicle but the accident had occurred on account of driver trying to save few animals crossing the road. These relevant paras 14 to 23 of the judgment reads as under:-
“14. Onus of proving this issue is upon the plaintiff who has examined himself as PW1 and has placed his reliance upon the policy bearing No. 2001/57088864/00/000 vid Ex.PW-1/6. He has also placed reliance upon the copies of the invoices dated 22.03.2010 which are Ex.PW-1/2 to Ex.PW-1/4, copy of the consignment/lorry receipt dated 22.03.2010 vide Ex.PW-1/5, copy of short/damage/breakage certificate dated 05.05.2010 vide Ex.PW-1/7 and copy of surveyor report vide Ex.PW-1/9. It is argued by Ld. counsel for the defendant that the plaintiff (PW1) has failed to prove that he is proprietor of the insured firm M/s Marex International Delhi, and also not filed any certificate from the office of Registrar of Firms to show that he has competent person to file the present suit and therefore, the present suit is not maintainable.
15. On merits, it is submitted that as per registration certificate exhibited as PW-1/D2-1 the gross vehicle weight (which includes the weight of the vehicle) as allowed by the transport department was 25000 Kg. and after deducting the weight of the vehicle the vehi
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