RAKESH KUMAR GARG, J. - (1.) THIS is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court upholding the judgment and decree of the trial Court whereby suit of the plaintiff -respondent for recovery has been decreed.
(2.) THE plaintiff -respondent filed the instant suit for recovery on the averments that it was insured with the appellant -Company vide Cover Note No.087763 dated 10.2.2000 and Machinery Insurance Policy No.110404/44/05/290/2000 dated 27.3.2000 for a sum of Rs.6,70,38,000/ - for the period w.e.f. 10.2.2000 to 9.2.2001 against an annual premium of Rs.3,89,114/ - which was received by the appellant vide receipt No.688298 at the time of issuance of the Cover Note dated 10.2.2000. The above said machinery sustained breakdown loss on 8.11.2000 which was reported to appellant No.2 immediately and thereafter, the appellant appointed Surveyor and Loss Assessors to verify and assess the loss. Surveyor visited the premises of the plaintiff -respondent and identified the damaged pump and asked the plaintiff -respondent to dismantle the same and call for the surveyor for further looking into the damage. Thereafter, the plaintiff -respondent submitted the claim form and other documents required by the appellants but the claim was not settled. After persuasion the appellants paid an amount of Rs.15 lacs only against a claim amount of Rs.49,60,874/ - on 23.10.2001 as part payment. Thereafter, the appellants paid a sum of Rs.17,78,238/ - vide cheque dated 15.4.2002 despite the fact that their Surveyor had recommended a sum of Rs.38,10,000/ - in its favour. The appellants were requested to admit the genuine claim of the plaintiff - respondent and to make the payment but the appellants did not pay any heed to the request of the plaintiff -respondent. Hence, necessity arose to file the present suit. Upon notice, the appellants contested the suit by filing written statement raising various preliminary objections. On merits, it was submitted that the plaintiff -respondent was not entitled to the relevant claim as per instructions of Tariff Advisory Committee. However, it was stated that the claim was processed and settled at a sum of Rs.32,78,238/ - which was duly received by the plaintiff -respondent in full and final settlement of their claim and nothing remains to be paid. It was further contended that the plaintiff had claimed a sum of Rs.5,92,818/ - towards charges paid by the supplier engineers. This amount was paid to the foreign supplier for erection work to the dismantling and to find out the actual damage work.
(3.) THESE charges were incurred on foreign supplier engineers for expert advice and were not payable. As per terms and conditions of the insurance policy for covering of expenses of foreign personnel then additional cover has to be taken for an extra premium @ 5%. The expenses of foreign personnel also includes professional expertise charges. The Tariff Advisory Committee has introduced an endorsement in the month of August, 1988 for all types of imported machinery under policies for coverage of expenses of foreign personnel who visits India for repair and replacement in case of any claim under the Policies. It is further contended that in this particular case the foreign experts expenses are not covered as no additional premium was taken from the plaintiff for covering such expenses and thus, the claim of the plaintiff -respondent was not payable and suit was liable to be dismissed.;