ELECON ENGINEERING COMPANY LIMITED Vs. RICKMERS DUBAI

JUDGEMENT

(1.) Plaintiff carries on business, interalia, as manufacturers, importers and suppliers of Bulk Material Handling Equipments and Transmission Equipments. Plaintiff settled the suit with defendant nos.1 to 7 and pursuant to an order dated 30-1-2013, has withdrawn the suit against defendant nos.1 to 7. There is nothing on record against defendant no.8 and I do not see they having even entered appearance. Anyway plaintiff, after 30-1-2013, has and is pursuing the suit only against defendant no.9, who henceforth is referred to as defendant. Defendant, who was original defendant no.9, is an Insurance Company, who had covered a consignment which plaintiff was importing. Defendants originally were:

(2.) Plaintiff had, on or about 30-04-2004, placed a purchase order on Turbowinds NV, who was original defendant no.8, for purchase of four sets (1 set = 3 nos.) of blade type 23.3 P for Model T-600-48DS Wind Operated Electricity Generator. These are more commonly known as Wind Mill Blades. The payment term was C and F Nhava Sheva or Chennai or any other port as may be advised. The total purchase price was Euro 2,80,000. The shipment, which is the subject matter of insurance claim in this suit is one set, i.e., 3 nos. windmill blades (the said consignment). The equipment was to be packed by shipper, i.e., Turbowinds original defendant no.8, in suitable wooden / water proof / seaworthy strong packing, for protection and to prevent damage to or deterioration of the cargo under the normal transport condition including sea and rain water. The insurance cover in respect of the transit of the said consignment was from warehouse of Turbowinds to plaintiff's factory at V V Nagar, Gujarat. To cover the risk associated with transit of the said consignment, and plaintiff had been importing many other consignments, plaintiff had taken from defendant an open cover policy bearing 180100400008 dated 17-06-2004 (Exhibit P-6). The period covered was from 12.36 Hrs. on 17-6-2004 to midnight on 16-6- 2005.

(3.) Plaintiff by letter / declaration dated 6-10-2004 (Exhibit P-8) to defendant, informed defendant that the said consignment would be shipped on board, "the vessel Rickmers Dubai", which was original defendant no.1, from Antwerp to port of Mumbai/Nhava Sheva Seaport. In the declaration, plaintiff had also made it clear to defendant, that the bill of lading number and date will be intimated later on. The cargo value declared (CIF + 10%) was Rs.64,56,157/-. Based on the declaration made, defendant issued a Marine Insurance Certificate (Exhibit P-9), under which the sum insured was Rs.64,56,157/-. Basis of valuation was "CIF + 10% extra" and the period of risk covered was from "journey anywhere from the world/Antwerpen Seaport" to "journey upto V. V. Nagar via Mumbai/Nhava Sheva Seaport" and the mode of transit was "vessel/road/rail". The risk covered included (ICC) (A) including war and SRCC (Strike Riots and Civil Commotion). ICC (A) means Institute Cargo Clauses (A). What is relevant for the matter at hand, is only "ICC (A)" cover. It is an all risk cover except for certain exceptions provided in clause 4 to 7 given of ICC(A). As per Marine Open Cover (Exhibit P-6) issued, it provided - "Special condition : open cover shipping particulars : To be declared to the company immediately upon receipt of shipping documents". Company is defendant.