Rajinder Kumar Khanna vs The Oriental Insurance Co. And ...
1990 Latest Caselaw 59 Del

ORDER

1. A suit under Order xxxvII of the Code of Civil Procedure has been brought by the petitioner, basing itself upon a report' of an assessor regarding damages suffered to cargo of dry dates, which had been insured by the petitioner. Marine insurance claim having been lodged by the petitioner against the respondent company.

2. It was asserted by the plaintiff in the suit and the Petitioner before me, that the claim in the suit was a "liquidated demand". The petitioner seeks to take advantage of the amendments made to the Code of Civil Procedure, by which liquidated demand" became subject-matter of summary suits for the first time.

3. The industry of counsel had not been able to produce a single precedent of courts in India, which explained what is liquidated demand". However, reference has been made to Words & Phrases Permanent Edition, n which reference is made to Rifkin v. Safenovitz, 40 A 2d 188. It is stated that "amount claimed to be due is a "liquidated demand" within statute authorizing summary judgments if it is susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in possession or knowledge of party to be charged".

4. The party to be charged in the instant case is Oriental Insurance Company, which had issued Marine Insurance Policy. The insurable interest in this case was a cargo of dry dates, which was being carried within Safina Al Sulemani, a country craft bearing registration No. BD1-407.

5. It is the case of the plaintiff that the damage which was caused to the cargo of dates, was because of the fact that the sly ship got "stranded" on account of cyclonic storms, had diverted from its route between Karachi and Bombay, to the port of Naya Bandar, Jamnagar, and anchored at Bedi Bunder, and the cargo of dry dates removed there from.

6. As a result of the claim, made by the petitioner, a surveyor was appointed by the Insurance Company, who gave a report of damage in terms of percentage, to the cargo of dry dates. It is the plaintiff's case that this damage in percentage is capable, by arithmetical calculation of being quantified into the amount of damage actually sustained o the cargo, vis-a-vis the amount for which they were insured, and, therefore, the damage In percentage is a "liquidated demand" with in the meaning of Order xxxvII of the Code of Civil Procedure.

7. Mr. V. P. Chaudhary, Advocate, who appears for the Insurance Company, to show that the surveyors were independent of the Insurance Company, has invited my attention to the provisions of S. 64-UM of the Insurance Act. That section deals with licensing of surveyors and loss assessors by the Controller of Insurance. It also deals with the qualifications which such surveyors and assessors ought to have. Section 64-UM(2) requires that claims or losses which have occurred in India, and are required to be settled in India, which exceed Rs.20,000/-, shall not be admitted for payment or settled by the insurer unless the insurer has obtained a report on the loss that has occurred, from a person who holds a license issued under this section to act as a surveyor or loss assessor. The proviso to sub-section (2) enables the insurance company to settle or pay an amount different from the amount assessed by the surveyor or loss assessor.

8. The insurance policy deals with stranded vessel, and claims arising there from. The relevant provision in the insurance policy reads as under:-

"5. Warranted free from Particular Average unless the vessel or craft be stranded, sunk or burnt, but notwithstanding this warranty the Underwriters are to pay the insured value of any package or packages which may be totally lost in landing, transhipment or discharge, also for any loss of or damage to the interest insured which may reasonably be attributed to fire, explosion, collision or contact of the vessel and/or craft and/or conveyance with any external substance (ice included) other than water, or to discharge of cargo at a port of distress, also to pay special charges for landing warehousing and forwarding if incurred at an intermediate port of call or refuge, for which Underwriters would be liable under the standard form of English Marine Policy with the Institute Cargo Clause (W.A.) attached."

9. As observed above, the vessel was stranded from its course between Karachi and Bombay and had to anchor at Bedi Bandar, where it removed dry dates cargo, covered by the insurance.

10. In the schedule to the Marine Insurance Act, Rules for Construction of Policy, item 14 reads as under:-

"14. Stranded: Where the ship has stranded, the insurer is liable for the expected losses although the loss is not attributable to the stranding , provided that when the stranding takes place the risk has attached and, if the policy be on goods, that the damaged goods are on board."

11. The loss in the instant case, according to the plaintiff, appears to have occurred in the cyclonic storms and removal of cargo. This is so stated in the surveyor's report, which has assessed a percentage loss that the damage was caused owing to cyclonic storm, on account of which the ship had to take shelter at Bedi Bandar.

12. In view of the provisions of the insurance policy, the provisions of item 14 of the Schedule to the Insurance Act, the provisions of Sec. 64UM of the Insurance Act, the percentage loss suffered to the dry dates as evidenced by the report of the surveyor, in my view, is capable, by an arithmetical calculation, of arriving at a determinable sum, which sum would constitute a "liquidated demand'' within the meaning dicta in Rifkin v. Safenovitz (supra), and the provisions of Order xxxvII of the Code of Civil Procedure.

13. It is contended by Mr. V. P. Chaudhary that the surveyor's report is not binding on the Insurance Company. This matter will be considered by Court at the time of adjudicating upon the leave to defend application.

14. In the instant case, the loss occasioned by cyclonic storm, the claim with respect to the goods is more than Rs.20,000/-, a surveyor had to be appointed, and he has been appointed, who has given his report. In view of a view referred to above, the rejection of the surveyor's report by the Insurance Company appears to be based upon misapprehension regarding the words used in item 14 relating to Rules for Construction of Policy of Marine Insurance, the clause in the Insurance Policy with regard to exception of percentage loss of particular average. The report of the surveyor would, when the particular average loss is determined according to the formula mentioned in S. 71(3) of the Marine Insurance Act, result in a determinable sum.

15. In this, view of the matter, the impugned order is set aside. I allow the revision petitions, and remit the matter back to the Commercial Sub Judge to determine the suit in accordance with the observations made herein.

16. The records be sent back, and parties to appear before the Commercial Sub Judge on 14 -3-1990, for taking further steps in the matter.

17. No order as to costs.

18. Petition allowed.