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2018 Supreme(Del) 674
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
M/S Jain Exports Pvt. Ltd. – Plaintiff
Versus
The New India Assurance Co. Ltd. & Anr. – Defendants
CS (OS) No. 1417 of 1979
Decided On : 06-02-2018
For the Plaintiff :Mr. Kuljeet Rawal, Advocate
For the Defendants :Ms. Sunita Dutt, Advocate for D-1
The detailed insurance policy containing contractual terms is essential to determine the coverage of the loss under the contract of insurance.
Headnote:
Insurance Policy - Recovery of Goods - Cover note Ex.PW1/11 - Open Policy - Loss Coverage
Fact of the Case:
Plaintiff seeks recovery of a sum of Rs.63,95,102.72/- along with interest for the lost Brass Scrap (Honey quality) shipped under M/s Bentrex & Company, Singapore by the vessel SS AVERILLA. Defendant no. 1 contests the suit alleging fraud in obtaining the cover note and denial of goods shipment.
Finding of the Court:
The court dismisses the suit due to the absence of the detailed insurance policy containing contractual terms, which is necessary to determine the coverage of the loss under the contract of insurance.
Issues: Ownership of the goods, coverage under the insurance policy, fraud or mistake in obtaining the cover note.
Ratio Decidendi: The absence of the detailed insurance policy prevents the court from determining the coverage of the loss and addressing the issues raised by the parties.
Final Decision: The suit is dismissed, and parties bear their own costs.
VALMIKI J. MEHTA, J.
1. This is an old suit of the year 1979. Plaintiff in the suit is M/s Jain Exports Private Limited. The contesting defendant in the suit is defendant no. 1/The New Indian Assurance Company Limited. The second defendant in the suit is a proforma defendant/The Punjab and Sind Bank.
2. By the subject suit plaintiff seeks recovery of a sum of Rs.63,95,102.72/- along with interest. Amount which is claimed by the plaintiff is on account of the goods being Brass Scrap (Honey quality) which were shipped under M/s Bentrex & Company, Singapore by the vessel SS AVERILLA having been lost on account of sinking of the ship. As per the plaintiff the goods were insured in terms of the cover note Ex.PW1/11. In terms of the cover note plaintiff claims an amount of Rs.63,23,380/- as principal amount due under the cover note.
3. The contesting defendant no. 1/New Indian Assurance Company Limited has contested the suit and pleaded various grounds for dismissal of the suit. In essence, the contention of the defendant no. 1/insurance company is that the cover note was got issued by the plaintiff by fraud from the defendant no. 1 and that really no goods were ever shipped on SS AVERILLA, which belonged to the plaintiff M/s Bentrex & Company, Singapore to the ultimate destination at Ghaziabad in the state of Uttar Pradesh.
4. As many as 28 issues were framed in the suit vide order dated 11.3.1981, and these issues read as under:-
"1. Has defendant no.2 been joined as a defendant within time, if not, to what effect?
2. Whether the plaintiff agreed to purchase and the said Bentrex & Co. agreed to sell to the plaintiff 410 Metric Tons of Brass Scrap (Honey Quality) as alleged in paragraph 3 of the plaint?
3. Whether the plaintiff opened an irrevocable letter of credit in favour of the sellers through the Punjab & Sind Bank, the predecessor in interest of the 2nd Defendant for US$5,10,000/- on 24th July 1979 as alleged in paragraph 4 of the plaint?
4. Whether any goods were unconditionally appropriated to the contract in favour of the plaintiff by the sellers as alleged in paragraph 5 of the plaint?
5. Whether 407,960 metric tons brass scrap packed in 1315 drums were duly loaded and shipped on board the SS ‘Averilla’ on 6th August 1979 at Singapore as alleged in paragraphs 6 and 7 of the plaint?
6. Whether there was a contract of affreightment contained in a bill of lading bearing No.AB-17 dated 6th August 1979 as alleged in paragraph 7 of the plaint?
7. Whether the plaintiff was the buyer of any goods or was the owner of 407.960 metric tons of brass scrap of the value of Rs.99,14,000/- or any other value as alleged in paragraph 8 of the plaint?
8. Are the pleas embodied in the Issues No.3 to 9 available and open to the defendant?
9. Whether the Insurance Policy is valid ab initio and unforceable for the reasons alleged in Preliminary Objection 4 of the written statement of defendant No.1.
10. Whether the plaintiff was a privy or a party to a fraud intended and calculated to fraudulently obtain an insurance policy and/or to obtain fraudulently a claim there under as alleged in Preliminary Objection 4(a) of the written statement of defendant No.1?
11. Whether the policy of insurance is liable to be avoided by the first defendant as alleged in Preliminary Objection 4(b) and (c) of the written statement of defendant No.1?
12. Whether the transactions in suit were calculated to cause injury to the 1st Defendant and/or make unlawful gains for the plaintiff and are therefore unenforceable null and void as alleged in preliminary objection 4(d) of the written statement of defendant No.1?
13. Whether the policy of Insurance is void on the ground of mistake as alleged in preliminary objection 4(e) of the written statement of defendant No.1?
14. Whether the suit transactions are a result of a conspiracy between the plaintiff and one Mr. B.S. Ahuja or are founded in the illegalities as alleged in paragraph s 7 and 11 of the written statement of defendant
