- (1.) THIS appeal is directed against the judgment and decree dated 31-1-1997 passed by the Principal Civil Judge (Senior Division), mangalore, in O. S. No. 154 of 1990. The 1st defendant-Insurance company which has suffered the decree has preferred this regular first appeal.
(2.) FOR the sake of convenience, the parties will be referred to by their ranks obtained in the Court below. Few facts, which are essential for the purpose of disposal of this appeal may be set out as under: the plaintiff is a partnership firm and is the consignor of the goods. The 2nd defendant-M/s. Roshan Transport and Forwarding Agency is the carrier to whom the goods were entrusted. The 1st defendant-National Insurance Company Limited, Mangalore, is the insurer of the goods consigned.
(3.) THE case of the plaintiff is that it despatched through the 2nd defendant-Transport Agency vide Consignment Note No. 37775, dated 21-10-1988. 100 cartons of cashew kernels from Mangalore to Delhi comprising of 25 cartons "w 210" and 75 cartons "ssw" under Marks "wtc/delhi". As the consignee did not take delivery, under the instructions from the plaintiff, the 2nd defendant-Transport Agency rebooked the said consignment to Mangalore for delivery to the plaintiff. The goods so rebooked were covered under the 1st defendant's Insurance cover bearing Marine Declaration No. 19/89/25923, dated 9-3-1989. The said policy of the 1st defendant was an open policy bearing Nos. 602309/4400056, ENDT 41/202/1987 and 44/209/89 for Rs. 2,17,200/ -. It is the further case of the plaintiff that the Consignment Note bearing no. 37775 was surrendered on 6-3-1989 with a request for rebooking the consignment for the 2nd time. The receipt of the Consignment Note has been endorsed on the copy of the letter dated 6-3-1989. However, the plaintiff contends that the 2nd defendant delayed in rebooking the goods. By the letters dated 14-4-1989, 22-4-1989 and a Lawyer's notice dated 16-5-1989, the plaintiff called upon the 2nd defendant to transport and deliver the goods at Mangalore. The further case of the plaintiff is that immediately after receiving the intimation over phone from the 2nd defendant that the goods have arrived at Mangalore, the partner of the plaintiff along with Sri Ganapathy, Surveyor from M/s. J. B. Boda, surveyors Private Limited, Mangalore, who were the official surveyors of the 1st defendant, visited the office and the godown of the 2nd defendant at Mangalore to receive the goods and found the cartons damaged. It is the further case of the plaintiff that though the plaintiff wanted to take open delivery of the cartons containing the grade marks covered by the Consignment Note No. 37775, the 2nd defendant-Transport Agency insisted the plaintiff to take the delivery of cartons containing other grade marks also and refused to give delivery of the part agreeable. This necessitated issue of letter dated 22-6-1989 to the 2nd defendant-Transport Agency with a copy marked to the 1st defendant. The plaintiff contends that another attempt was made on 30-6-1989 for taking delivery which was also in vain as the 2nd defendant did not oblige to deliver the goods. A letter dated 30-6-1989 in this regard was again sent recording the events that happened when the 2nd defendant refused to deliver the goods. The plaintiff has further contended that the 1st defendant's surveyor who was present at the time when the plaintiff visited 2nd defendant to receive the goods also reported vide letter dated 4-7-1989 about the absence of grade marks in the consignment received back at Mangalore and the refusal of the 2nd defendant to hand over the graded consignments/goods. They have also mentioned the fact that the 2nd defendant-Transport Agency refused to deliver the goods keeping open the question of damage to the consignments on 'as is where is' basis.;