IN THE HIGH COURT AT CALCUTTA

Commercial Appellate Division

ORIGINAL SIDE

Present:

The Hon’ble Justice Arijit Banerjee

AND

The Hon’ble Justice Rai Chattopadhyay

APD/1/2020

IA NO. GA/2/2020 (Old No: GA/262/2020)

National Insurance Company Limited

Vs.

Sethia Oil Industries Limited and Anr.

For the Appellant : Mr. Malay Kumar Ghosh, Ld. Senior Adv.

: Mr. Saumyen Dutta, Adv.

: Ms. Dolon Das Gupta, Adv.

:

For the respondent No. 1 Mr. Sakya Sen, Ld. Senior Adv.

: Mr. Rudrajit Sarkar, Adv.

: Mr. Jai Kumar Surana, Adv.

: Mr. Abhimanyu Roy, Adv. : Ms. Vanshika Newar, Adv.

Heard on : 18.07.2025 Judgment on : 20.08.2025

Rai Chattopadhyay, J. :-

(1) A judgment of the Hon‟ble Single Judge dated October 1, 2019 in

CS No. 99 of 2008 is under challenge in this appeal that is, APD No. 1 of 2020. The suit involved the question of legality, propriety and justifiability of repudiation of claim for the loss and damage of the present

respondent/plaintiff insured under a policy, with the appellant/insurance company; that whether the respondent/plaintiff was entitled to redemption of damages for the loss said to have suffered by the same.

(2) The respondent/plaintiff has claimed in the said suit a decree for recovery of Rs. 73,28,754.54/- against the appellants/defendants and interest at the rate of 24% per annum.

(3) The plaintiff‟s case before the Hon‟ble Single Judge was inter alia that the plaintiff company produces and supplies rice bran oil to various parts of the country by tankers. For the purpose of transportation of such oil, the plaintiff company engages various transportation companies, to provide for oil tankers. For the purpose of indemnifying itself from any loss which may arise during transportation, the plaintiff obtained insurance policy from the appellant/defendant insurance company known as “Marine Cargo Open Policy”. Under such policy, the plaintiff was insured from loss arising from transit risk including accident etc. The insurance policy of the plaintiff was valid from the period April 04, 2003 to April 03, 2004.

(4) The consignments were dispatched on September 28, 2003 and October 10, 2003 respectively in the vehicles bearing No. WB 03A/3149 and WB 23A/4816. The plaintiff has stated in the plaint that the consignments as above were of the value of Rs. 13,20,500/- Rs. 13,70,040/- respectively. The plaintiff states and asserts that both the vehicles as above along with the entire consignment were untraceable and lost.

(5) The third consignment was carried in the vehicle No. WB

19A/3925, which was dispatched on October 12, 2003. It is stated that the same has met with an accident and the entire oil contained therein were soiled. According to the plaintiff, the value of the consignment in the vehicle which met with an accident was Rs. 13, 23, 000/-

(6) Hence, such loss and damage suffered by the plaintiff company due to the loss and accident of the vehicles respectively, the claim under the insurance policy, was raised by it, before the appellant/defendant insurance company but to no avail since the insurance company had repudiated the claim of the insured. Hence, the instant suit was filed before this Court to seek relief as described above. The claim of the plaintiff as described in the plaint itself may be produced herein below in a tabular form:-

(7) The transporter did not contest the suit. However, the appellant/defendant No.1 had contested and contended that the plaintiff violated terms of the insurance policy, including overloading tankers and delayed reporting of incidents; that the plaintiff failed to prove the loss and that there was a breach of insurance policy terms, which disentitles the plaintiff/respondent No.1 from any benefit under the policy. The appellant/defendant No.1 raised issues of misjoinder, limitation, and the plaintiff's responsibility for overloading. The defendant argued that the plaintiff having failed to prove any loss suffered; hence, is not entitled to any benefit under the policy and that there was a breach of insurance po