LexUNITED SALT WORKS AND INDUSTRIES LTD. versus NATIONAL INSURANCE CO. LTD AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
BIHAR SUPPLY SYNDICATE
A
v.
ASIATIC NAVIGATION AND OTHERS
AND
UNITED SALT WORKS AND INDUSTRIES LTD.
B
v.
NATIONAL INSURANCE CO. LTD AND ORS.
MARCH 17, 1993
[N.M. KASLIWAL AND YOGESHWAR DAYAL, JJ.]
c
Marine Insurance Ac~ 1963: Ss. 2, 2(a), 2(e), 3.
Marine Insurance Policy with Institute Cargo Clauses (FPA}-Suit for
recovery of cost of goods lost due to perils of the Setr-Burden of Proof on D
Plaintiff.
Code of Civil Procedure, 1908: 0.41 Rule 33.
Scope and applicability of-Ingredients of R. 33-Powers of Court of
Appeal-What are.
E
The plaintiff had purchased crushed and uncrushed salt from
Defendent No. 3 on payment. By a charter party agreement Defendent No.
2, chartered a vessel to Defendent No. 3 for loading salt at Kandla Port in
Gujarat and for carrying the same to Calcutta Port. The Plaintiff had
directly paid to Defendent No. 2 the freight amount for transport of cargo F
from Kandla to Calcutta. Defendent No. 2 had inform Defendent No. 3
th11t the Plaintiff is accepted as Sub-Cbarteres. The Plaintiff had itself
insured the cargo through the Insurance Company for Rs. 9,50,000. The
policy was for the voyage from Kandla to Calcutta with Institute Cargo
Clauses (FPA) cover attached including warehouse to warehouse risks, G
and sling loss but excluding war and SRCC risks.
The plaintiff loaded the salt on the said Vessel at Kamila for ship-
ment to Calcutta. The vessel left Kandla and the plaintiff received a telex
message form de{endent No. 2 informing that the vessel was at an
anchorage at Sand-heads near Calcutta and was experiencing engine H
425
421i
SUPREME COURT REPORTS
[1993] 2 S.C.R.
A
trouble. The vessel was required to be towed from sand-heads to Vishak-
hapatnam as repairs could not be undertaken at sand-heads. The plaintiff
was informed and it in turn informed the Insurance Company about the
said development. The vessel conld not be repaired as the Hindustan
Shipyard who was to carry out the repairs were not paid the requisite
B charges by the Owner, Defendent No. 1.
The crew members were not paid their wages and they instituted an
Admirality Suit in the High Court, which passed an order arresting the
vessel including cargo etc. and appointed a Receiver for the vessel and the
cargo. Consent was given by the plaintiff for the sale of the vessel and the
C cargo. The High Court directed the receiver to sell the vessel along with
the cargo. An amonnt of approximately Rs. 12.5 Lacs was received as sale
proceeds of the vessel and the cargo. The plaintiff approached the High
. Court requesting to direct the receiver to withhold an amount of Rs.
9,50,000 for the benefit of the plaintiff against loss of its goods. High Court
declined to grant the request and the appeal preferred by the plaintiff also
D ended in dismissal.
E
Plaintiff filed a suit claiming recovery of the loss suffered by h.im,
viz. Rs. 9,50,000. The claim was made against the owner of the vessel, the
charterer and the Insurance Company.
The Trial Court passed a decree against all the defendents in the .
sum of Rs. 10,49,750 i.e. 9,50,000 with interest.
On an appeal by the Insurance Company, the Division Bench of the
High Court dismissed the suit decreed by the Single Judge against the
F
Insurance Company and other defendents.
-. II
Being aggrieved by the High Court's judgment, the plaintiff and
defendent No. 3 in the suit preferred the present appeals before this
,.,,,/,_
Court.
G
Dismissing the appeal of the plaintiff, and allowing the appeal of
defendent No. 3, this Court,
HELD 1.1. It is axiomatic that the burden was on the plaintiff to
prove the loss due to perils of the sea and on the facts of the case, at no
stage, such a burden was shifted on Insurance Company to prove other-
H wise. { 437E)
)
BIHAR SUPPLY v. ASIATIC NEVIGATION
427
1.2. The cables sent by the Master of the ship do not show that sea A
water had entered the engine room and it was not a case of loss of goods
due to perils of the sea. The expression "warehouse to warehouse" merely
indicates the period during which the policy would remain in force and
has nothing to do >1ith the type of the risk policy covered. It was not a case
of abandonment of the goods because of the perils of the sea. In fact the B
plaintiff gave the consent for permitting the sale of cargo and to recover
the value thereof. [437B-D]
1.3. Since the finding of the High Court is that no sea water entered
in the engine room Excerpt shown. Read the full judgment & AI analysis in Lexace.