JAGDISH PRASAD Vs. UNITED INDIA INSURANCE CO LTD

JUDGEMENT

(1.) BY this appeal filed under Section 96 of the Code of Civil Procedure, 1908, the appellant seeks to set aside the judgment and decree dated 30.10.2004, passed by the learned ADJ, Delhi, whereby the suit filed by the appellant against the respondent for recovery of Rs 5,30,000/- alongwith interest @ 18% and costs was dismissed.

(2.) THE brief facts as set out in the present appeal are that the appellant is a registered partnership firm carrying on the business of iron and steel merchants including the business of importing iron and steel products from various places like Europe, South Korea, Australia and other places. As per the appellant, the standard practice of the appellant in the past has been that an order would be placed, a contract entered into on C&F terms, the Letter of Credit opened and after that the documents i.e. Bill of Lading, Commercial Invoices etc would come for acceptance through a nationalized bank when non-negotiable set of documents would be received by the appellant through the indenting agent. Based on the information from the set of documents received, an insurance would be taken out and the goods would then be taken release of on their arrival at the port. As per the appellant, the officials of the insurance company advised the appellant to avoid taking insurance in advance and take only on receipt of documents as for adjustment of the premium or refund the insurance companies create trouble and accordingly, the appellant adopted the same as a practice. THE appellant entered into a contract dated 20.01.1982 with one M/s. Kukje Corporation of Seoul, South Korea, for the import of 200 metric tones of galvanized plain steel sheets coil of a value of US Dollar 1,05,300/- through their local agent M/s. Lakhotia International. Out of the said contracted quantity, 84.78 tonnes of galvanized plain steel sheets were shipped by the said M/s. Kukje Corporation to the appellant and were placed on board the ocean Vessel ?Ivory Dragon? at Pusan, Korea, destined for Bombay. THE Bill of Lading, Commercial Invoice, packing list, rate list and surveyor certificate etc were all sent by the said Kukje Corporation to the Indian Overseas Bank, Bombay and one set of non-negotiable documents was sent by them to the indenting agents for onward transmission of the same to the appellant and accordingly the agent sent the same to the appellant along with their covering letter dated 13.5.82 which was received by the appellant on 14.5.1982 late in the evening. In the morning of Monday, the 17th May, 1982(15th and 16 being Saturday and Sunday) the insurance was taken out for the said goods from the respondent company and Marine Cargo Cover Note No. 71643 was issued and then the respondent issued Policy No. 40400/81/0057/82, dated 18th May, 1982. THE appellant received a letter dated May 20,1982 stating that the vessel ?Ivory Dragon? carrying the cargo from Korea to Bombay sank off Phillipines. Accordingly, the appellant submitted its claim to the insurance company on 15.6.1982 and further submitted certain particulars sought by the insurance company. THE sinking of the ship was investigated by the surveyors who were both licensed by the Korean Government as well as agents for LLOYD?s. THE respondent company kept on assuring the appellant that its claim would be settled, but vide their letter dated 11.8.1983 the respondent company rejected the claim of the appellant. As per the appellant, the respondent company is liable under the contract to pay the money to the appellant as the insurance was taken out in good faith as per the past practice and therefore it was effective for the entire period of transportation from Pusan to Bombay. THE appellant also claims that the goods were not lost at the time the insurance was taken out and in any case the appellant could not have been aware of it and therefore the appellant is entitled to recover the amount along with interest.

(3.) WHETHER the plaintiff was entitled to interest? If so, at what rate?