Marine Insurance Company can cover the risk under a Marine Insurance Policy in respect of the goods.

R. BALASUBRAMANIAN, J.

( 1 ) THE defendant in O. S. No. 158 of 1983 on the file of the 9th Additional City Civil Judge, Madras and the plaintiff therein are the appellant and the respondent respectively in this appeal In this judgment the parties to the appeal would hereinafter be referred to as the plaintiff and the defendant. The plaintiff filed the above suit to recover a sum of Rs. 64,871. 25 made up of Rs. 60,345/- as damages suffered after salvation of the goods with subsequent interest on rs. 60,345/-@ 18% p. a The suit was decreed on merits. Hence the present appeal before this Court at the instance of the defendant heard Mr. D. Rajendran learned Counsel appearing for the defendant and Mr N balasubramanian learned Counsel appearing for the plaintiff.

( 2 ) THE plaint allegations are as follows"the insured of the plaintiff has its registered office at Madras. They booked for transport 360 bags weighing about 9,000 kgs. P. V. C. Resin 124 to M/s. Suryodhaya Industries Limited, Bangalore under Lorry Receipt No. 886 dated 6. 5. 1981. The consignor namely, m/s Chemical and Plastics India limited delivered the goods in good condition to the defendant The goods were insured with the plaintiff. At the time of delivery at the place of destination the goods were found to be in a damaged condition (wet) due to the defendant not taking proper, adequate and reasonable care, which the carrier is expected to take Under these circumstances the consignee rejected the consignment itself. The defendant did not even take back the original lorry receipt and the goods consignment note. However he had negligently and improperly left the consignment at the place of the consignee itself. As the consignment was insured with the plaintiff, the plaintiff as per the terms and conditions of the policy, settled the claim of their insured at Rs. 1,69,100. On account of the such settlement the plaintiff gets suborgated to the rights of the consignor, i. e. , the insured. The consignor lodged a claim on 8. 5. 1981 on the defendant and it was acknowledged by them on 11. 5 1981. The plaintiff after proper scrutiny as well as after proper and reasonable advertisement and publicity through an agency, sold the damaged goods and realised a sum of Rs. 1,10,000/- out of the sale of the salvage. After deducting the sale proceeds, adding the cost of the Survey report and publication charges, the defendant is bound to pay Rs. 60,345 with interest in lieu of damages from the date of settlement of the claim. Therefore, the plaintiff issued a Lawyers notice dated 5. 7. 1982 calling upon the defendant to settle the claim referred to above. The defendant neither replied nor settled the claim. Hence the suit. "

( 3 ) THE defendant filed a written statement inter alia contending as follows"the suit is not maintainable in law and bad for non-joinder of parties Therefore the suit is liable to be dismissed on that short ground alone The defendant denies the genuineness or the validity of the letter of subrogation stated to have been obtained from the insured The suit is bad for non-joinder of -the consignor the goods entrusted to the defendants were delivered to the consignee in the same good condition. The consignee received the goods without any protest as there was no occasion for protest" The fact remains that the goods were sent under freight "to pay" basis. The goods were thus delivered on receipt of the freight charges. The defendant states that they took proper, adequate and reasonable care in handling the goods and the goods were delivered in good condition If the goods at the time of delivery are get in good condition, then the consignee should have taken "open delivery" taking a certificate from the carrier about the condition of the consignment. No such "open delivery" was given to the consignee, as the goods were in good condition at the time of delivery. On enquiries made by the defendant it is learnt that the value of the consignment was only arou