1. The present suit has been filed by the plaintiff seeking recovery of Rs.6,19,93,117.80/- (Rupees Six Crores Ninteen Lakhs Ninety Three Thousand One Hundred and Seventeen and paise Eighty only) from the defendants together with interest at the rate of 15% per annum on the Principal amount of Rs.4,59,20,828/- (Rupees Four Crores Fifty Nine Lakhs Twenty Thousand Eight Hundred and Twenty Eight only) from the date of claim to the date of realization. The suit claim was made by the plaintiff based on its Marine Insurance Policy.

Plaint Averments:

2.1. The plaintiff is a reputed commodity trader and during the course of its business, the plaintiff had entered into two contracts for purchase of dried Raw Cashew Nuts in shell from M/s.SNK General Trading LLC Dubai and SNK General Trading Private Limited, Singapore. As per the contract, the seller agreed to send 3500 metric tonnes of cashew nuts from Port of Guinea Bissau to Port Tuticorin. As per the contract, the sellers of the cargo appointed M/s. St. John Logistics LLC, Dubai, as freight forwarders to undertake transportation of their cargo from port Guinea Bissau to Port Tuticorin by a chartered vessel. The said freight forwarder chartered the vessel M.V.Golden Endurance for trans-shipment of cargo as agreed. The documents showing the credentials of the vessel was made available to the plaintiff by the charterer at the instance of the sellers on 26.06.2014. The entire cargo meant for the plaintiff was packed in 41,472 seaworthy Jute bags and loaded on board the vessel MV Golden Endurance on 19.07.2014. After completion of loading, the Master of the ship issued 37 Nos of bills of lading on 20.07.2014, evidencing receipt of entire cargo into the vessel in sound condition.

2.2. The sale contracts were on C and F basis (Cost and Freight) and consequently, the plaintiff had to take insurance cover against transit risks. The plaintiff through its Insurance broker M/s.First Insurance World Broking Services Limited approached the second defendant and submitted proposal for taking “all risks” insurance policy to cover the plaintiff's cargo, which was to be loaded on board the vessel MV Golden Endurance for a voyage from Port Guinea Bissau to Tuticorin Port on warehouse-to-warehouse terms. The ship's certificates received from the charterers/sellers were made available to the defendants to enable them to decide upon the acceptance of the proposed transit risk. After acceptance of the proposal by the defendants, premium of Rs.2,22,474/- was paid by the plaintiff on 02.07.2014 and the defendants issued the insurance policy No.414600/21/2015/10 on 03.07.2014 covering the cargo against “all risks” on warehouse to warehouse terms subject to Institute Cargo Clauses (A) and Institute theft, Pilferage and non-delivery Clause. The policy was released by the second defendant only after copies of bills of lading was furnished to them. The second defendant released the policy duly incorporating the numbers of the bills of lading.

2.3. The entire cargo of the plaintiff covered by 37 bills of lading mentioned in the policy was insured for a sum of Rs.33,00,00,000/-. The loading of cargo into the ship had commenced on 29.06.2014. When the ship reached the draught limit prescribed for her berth, she was shifted to a deeper berth to receive balance cargo. The loading of balance cargo was completed on 19.07.2014. The movement of the ship from her first berth to a deeper berth on 08.07.2014 and 17.07.2014 respectively on her own power established, she was seaworthy.

2.4. After completion of loading of cargo on 19.07.2014, the photocopies of bills of lading numbering 37 were released by the Master of the ship. When the ship was about to sail on 20.07.2014, she encountered with problem in engine and all efforts to repair the same went in vain. Thereafter, the Master of the ship released the original 37 bills of lading between 12.09.2014 and 14.09.2014 with an endorsement that the cargo was loaded on the ship at Port Bissau during June/July 2014, however, subsequent to loading of the cargo, the vessel suffered damage to her crank shaft, consequently the voyage got abandoned and the cargo had to be discharged into warehouse/other vessel for onward shipment.

2.5. The plaintiff received a communication from the charterer conveying the information received from owner of the ship about the abandonment of the voyage. The same was notified to the second defendant on 11.08.2014, when plaintiff contacted the second defendant regarding the continuation of the cover. It was clarified by them that coverage under the policy is valid from consignor's warehouse to consignee's warehouse at Tuticorin. Thus the continuation of the coverage was confirmed by the second defendant. After abandonment of voyage the plaintiff engaged Lloyd's Surveyor at Bissau Port to carryout a comprehensive survey and supervision of the entire trans-shipment operations including offloading of cargo from the ship M.V.Golden Endurance and reloading of the cargo on board the on-carrying vessel and also for assessing physical loss suffered by the cargo on board M.V.Golden Endurance.

2.6. The unloading of the cargo started on 24.09.2014 and ended on 09.10.2014. For the first two days, the cargo was unloaded and temporarily stored in the shipper's warehouse located at Industrial area of Bolola, Bissau and awaiting berthing of the on-carrying vessel M.V.Grandway Star. The said vessel which was chartered by the plaintiff Charterer M/s.St.John Logistics on 26.09.2014 and thereafter the cargo was transshipped directly from M.V.Golden Endurance to M.V.Grandway Star. The Surveyor assessed the cargo loss in his final survey report on 07.11.2014. The Surveyor assessed 140.033 metric tonnes of cargo was totally lost and 62.311 metric tonnes of cargo was partially damaged due to wet condition. The plaintiff attribute the loss of weight observed by the surveyors in the holds of M.V.Golden Endurance to bad or rough handling of the bagged cargo during discharge operations resulting in bursting of bags and consequent loss of contents. The amount recoverable by the plaintiff under the Marine Insurance Policy in respect of the loss or damage sustained by the insured cargo was asserted as Rs.1,41,23,052/-.

2.7. It was also averred by the plaintiff that the moment voyage was abandoned by the ship owners of the M.V.Golden Endurance, the plaintiff suffered total loss of cargo on account of its non-delivery at the intended destination and also on account of frustration of voyage. The non-delivery and frustration of voyage are risks covered under the cargo policy subject to ICC (A) and Institute TPND Clauses. Although, the plaintiff had the right to be indemnified by the defendants for a total loss of cargo, the defendant immediately initiated action as a prudent owner of the cargo to avert and minimize the loss payable under the policy. In order to avert the loss, the plaintiff with the help of their shippers and sellers swiftly obtained an order for arrest of the ship. The plaintiff also chartered another ship M.V.Grandway Star and reloaded the cargo into the new ship and consequently the total loss got minimized. The plaintiff also obtained a separate policy covering the carriage of cargo by M.V.Grandway Star. The plaintiff incurred huge expenses in his attempt to minimize the loss and the plaintiff is entitled to recover these expenses to the tune of Rs.3,17,97,776/- from the defendants. Therefore, the defendants are liable to pay a sum of Rs.4,59,20,828/- to the plaintiff which includes the partial damages to cargo and expenses incurred, in order to minimize the loss.

2.8. The plaintiff filed a formal claim with the defendants on 03.12.2014 for recovery of above said loss along with relevant documents. There was undue delay on the part of the defendants in conveying the decisions with regard to the settlement of the claim for more than two years. As a result, the plaintiff sent a legal notice on 04.10.2016 to the defendants and then a complaint to Insurance Regulatory Authority on 09.09.2016, seeking the intervention in this regard. Finally, the defendants repudiated the claim of the plaintiff through the letter dated 25.01.2017 on unsustainable grounds. In the repudiation letter, the defendants cited non disclosure of material facts, un-seaworthiness of the vessel, the failure of the plaintiff to give prompt notice to the defendants about termination of contract of carriage as the grounds for repudiation. The defendants in repudiation letter also contended that the plaintiff was not entitled to any claim under the head forwarding charges, sue and labour charges. The plaintiff claimed that the policy is subject to Institute Cargo Clauses “A” and Institute TPND clause forming part of the policy conditions. As per the terms of the policy, the plaintiff had acted with utmost good faith in informing the defendants all relevant particulars required by them under the terms and conditions of the policy. The plaintiff had also kept the defendants duly informed of the developments relating to voyage of the vessel M.V.Golden Endurance and therefore entitled to get indemnified for all the losses and expenses suffered by it. It was also averred that though policy was insured by the second defendant branch office, considering the quantum of loss, it was the first defendant which had the authority/jurisdiction to deal with the claim of the plaintiff. The plaintiff was called for discussions and meetings on several dates by the first defendant to discuss various aspects of the claim. The final decision was taken by the first defendant and communicated through the second defendant and therefore, the cause of action arose entirely within Chennai. The plaintiff also claimed interest on the principal claim amount at the rate of 15% per annum and consequently, valued the suit claim including the interest at Rs.6,19,93,117.80/- and laid the suit.

Averments found in the written statement:

3. The defendants contended that the plaint was verified by a person who had no competency to verify the same and therefore the suit is liable to be dismissed. The defendants also contended that the policy was issued by the second defendant outside the territorial limits of this Court and admittedly, the Port of discharge of cargo was Tuticorin, which is also outside the territorial limits of this Court and consequently, this Court has no territorial jurisdiction to entertain the suit. The defendants further contended that the allegations regarding damage or shortage as well as the liability for shortage for damage to cargo can be adjudicated only in the presence of sea carrier or owner of the ship. Therefore, the suit is liable to be dismissed for non-joinder of necessary party namely the owner of the ship.

3.1. The defendants also averred that the policy of Insurance issued by the defendants was strictly governed by the policy terms and conditions and the same were binding on the plaintiff. The plaintiff laid a claim on the ground that there was abandonment of voyage and consequently there was damage to the cargo. There was no proper notice of abandonment of voyage of the vessel of M.V.Golden Endurance.

3.2. It was also contended by the defendants that after abandonment of voyage by vessel M.V.Golden Endurance, the cargo was reshipped to a new vessel M.V.Grandway Star and the said new vessel delivered the cargo at Tuticorin Port. The plaintiff also had taken delivery of the cargo and thereafter, lodged a claim with the defendants for alleged damage to the cargo, while it was transshipped from earlier vessel to the new vessel. The claim made by the plaintiff was repudiated by the second defendant by letter dated 25.01.2017.

3.3. It was averred by the defendants that the loading of cargo was started on board the vessel M.V.Golden Endurance on 29.06.2014. The said fact was not disclosed by the plaintiff when they filed proposal for insurance cover with the defendants. The policy was issued by the defendants covering voyage from Port Guinea Bissau to Port Tuticorin. Subsequently, the plaintiff obtained an endorsement on 21.08.2014 for coverage effective from 03.07.2014 from consignor's warehouse at Guinea Bissau to consignee's warehouse at Tuticorin.

3.4. It was specifically averred by the defendants that the endorsement was obtained after the voyage was abandoned by sea carriers and the stoppage in loading was not informed to the insurer by the plaintiff. The same would amount to suppression of material fact and breach of utmost good faith which is the foundation of contract of insurance. Therefore, the claim was repudiated on the ground of non-disclosure of material facts.

3.5. It was also averred by the defendants that the plaintiff was aware of the fact of inability of the vessel M.V.Golden Endurance to pursue her voyage. The vessel was not seaworthy even prior to commencement of voyage. Hence, the liability of the insurer to honour the plaintiff's claim would not arise.

3.6. The defendants also claimed that the plaintiff was aware that the contract of carriage came to an end on 20.07.2014 when the voyage was abandoned due to engine problem. The plaintiff failed to give prior notice of the same to the insurer/defendants and hence there was no cover under the policy. It was further averred that as per Meteorological Department Certificates there was rainfall between 20.07.2014 and 09.09.2014 at Port Guinea Bissau. Even, if the fresh water damage was caused subsequent to the engine problem, the insurer is not liable for any such water damage as there was no request for extension of cover by prompt notice and undertaking to pay additional premium.

3.7. It was also averred by the defendants that as per the condition 12 of ICC (A), if insured transit is terminated as a result of operation of a risk covered by insurance contract at a Port or place other than to which the subject matter is covered, the insurer shall reimburse the insured in respect of any extra charges properly and reasonably incurred in unloading, storing and forwarding the subject matter of insurance to the destination of the insured. In the case on hand, there was no operation of maritime peril and engine failure was prior to maritime adventure and consequently claim of the plaintiff under the head forwarding charges are not payable. Under the policy, coverage is available for any insured peril after the commencement of voyage. In the present case, voyage had not been commenced and no insured peril occurred. Hence, forwarding charges are not payable.

3.8. It was further averred by the defendants that the claim of insured under sue and labour clause was not tenable as per Section 78(3) of Marine Insurance Act. The expenses incurred for the purpose of averting or diminishing any loss are not recoverable under the sue and labour clause. The plaintiff failed to initiate appropriate action against the sea carrier which failed to fulfill their obligation in transportation of the suit cargo, as per the contract of affreightment in the bills of lading. No legal action was initiated against the sea Carrier for their failure to discharge their obligation under the bills of lading issued pertaining to the suit cargo. The failure to initiate legal action against the sea carrier is a clear breach of the policy condition and on these grounds also, the suit is liable to be dismissed. It was further contended that the preparation for ocean transportation (Packing) was not proper and the same led to the seepage of water and resultant damage to the consignment. The defendants specifically denied the averment of the plaintiff that it furnished all the particulars prior to commencement of loading.

3.9. It was further contended by the defendants that the policy covers only risk pertains to the transportation of cargo and the shifting of the cargo to the place of storage for commencement of transit and ends on uploading of cargo at the final destination. The policy does not cover any risk upon abandonment of voyage. It was further averred that it was for the plaintiff to prove as to how the cargo was damaged in the custody of the sea carrier M.V.Golden Endurance. It is for the plaintiff to prove the nature of packaging and storing of cargo on board the sea carrier M.V.Golden Endurance. The plaintiff and their men did not properly handle the cargo while discharging the cargo from the abandoned ship. Therefore, the suit is liable to be dismissed.

3.10. It is also stated that the contract of Insurance did not contemplate payment of interest and therefore, the suit claim for interest was not sustainable.

4. After considering the pleadings of the respective parties, this Court was pleased to frame the following issues on 20.01.2020:

(i) Whether this Court has territorial jurisdiction to try the suit when the policy issued by the defendant's office is situated outside the jurisdiction of this Court

(ii) Whether the person who has signed and verified the plaint is competent to represent the plaintiff, sign and verify the plaint;

(iii) Whether the suit is bad for non joinder of necessary parties;

(iv) Whether the plaintiff had provided all the relevant details of the voyage to the defendants prior to issuance of the policy;

(v) Whether or not the policy issued by the defendants is a warehouse to warehouse policy;

(vi) Whether the Insurance Policy covers the risk of damage including loss and shortage caused to the cargo during trans-shipment;

(vii) Whether or not the vessel M.V.Golden Endurance was seaworthy at the time of the commencement of loading of cargo on board the vessel on 29.06.2014;

(viii) Whether the insurance policy issued by the defendant was still in force till the cargo reached the destination;

(ix) Whether the plaintiff had been prudent and carried out loss minimization measures;

(x) Whether the plaintiff is entitled to the suit claim;

(xi) To what other reliefs.

5. On these pleadings, the parties went to the trial. On behalf of the plaintiff, its General Manager (Administration and Commercial) was examined as PW.1 and 53 documents were marked on their side as Exs.P1 to P53. On behalf of the defendants, the Deputy Manager of the second respondent's office was examined as DW.1 and one document was marked on their side as Ex.D1.

Arguments of the learned counsel for the plaintiff: 6

.1. The learned counsel for the plaintiff submitted under Ex.D1-Insurance Policy all marine risks are covered and in the case on hand, the damage had happened due to breakdown of earlier ship's engine, by influx of fresh water and due to handling of cargo during trans-shipment. All these factors can be termed as a maritime perils and consequently covered by the policy. The above said perils were clearly mentioned in survey report under Exs.P22 and P32, but the defendant's Insurance Company has not rejected the survey report and consequently, it should be taken that the proximate cause for the loss of cargo is the breakdown of main engine of the earlier ship, influx of fresh water and trans-shipment of cargo. The learned counsel by taking this Court to Ex.P36-E-mail communication by defendants, submitted that the defendants offered to settle the claim of the plaintiff to the tune of Rs.1,55,07,480/- and hence having admitted their liability, it is not open to them to turn around and repudiate the claim under Ex.P41.

6.2. The learned counsel further submitted that the defendants in their repudiation letter under Ex.P41 mentioned four grounds namely:

(i) the non disclosure of material facts,

(ii) un-seaworthiness of vessel,

(iii) no proper notice of termination of contract of carriage

(iv) untenability of claim with regard to forwarding charges, sue and labour clause.

However, in the written statement, the defendants tried to include new grounds for repudiation like alleged failure of the plaintiff to do proper packaging and non-joinder of carrier etc. The learned counsel by taking this Court to the e-mail communication between plaintiff and defendants marked as Ex.P23 submitted that the defendants themselves admitted their liability even in case of forced discharge of the cargo and reshipment.

6.3. The learned counsel further submitted that the seaworthiness of the ship is decided based on the Registration Certificate of the vessel in question. If the vessel is registered with anyone of the 12 members of the International Association of Classification Societies (IACS) it is presumed the ship is seaworthy. In this regard, the learned counsel relied on the Judgment of the Apex Court reported in Rajan Kumar and others Vs. Oriental Insurance Co.Ltd, in 2020 4 SCC 364. It is the submission of the learned counsel that in the case on hand, the ship was registered with Russian Maritime Register of shipping and hence it is presumed that it has got seaworthiness. The learned counsel also relied on Ex.P5-email communication in support of his contention that the ship was registered with Russian Maritime Register. The learned counsel by taking this Court to evidence of DW.1 submitted that the said witness clearly admitted that policy was approved by the first defendant at Chennai and hence, this Court has got territorial jurisdiction to try the suit. The learned counsel further submitted that at the time of repudiating contract, the defendants have not mentioned that they were repudiating the contract as plaintiff failed to take necessary action to protect the right of subrogation available to the defendants under Clause 16 of the Contract Act. Hence, the point relating to non-joinder of sea carrier cannot be raised now

7. In support of his contention, the learned counsel for the plaintiff relied on the following judgments:

S.No	Citations
1.	Wheels India Limited Vs. Khemchand Rajkumar And Anr 1970 2 MLJ 648
2.	Saurashtra Chemicals Limited Vs. National Insurance Company Limited 2019 19 SCC 70
3.	J & K Industries Private Ltd Vs. Oriental Insurance Company Ltd 2022 SCC ONLINE SC 1451
4.	British and Foreign Marine Insurance Co.Ltd Vs. Gaunt 1921 2 AC 41
5.	London and Provincial Leather Processes Limited Vs. Hudson 1938 L 2048
6.	National Insurance Co.Ltd Vs. Ishar Das Madsn Lal 2007 4 SCC 105
7.	New India Assurance Co. Ltd Vs. Hira Lal Ramesh Chand and Others 2008 10 SCC 626
8.	Peacock Plywood P Ltd Vs. Oriental Insurance Co.Ltd 2006 12 SCC 673
9.	Shivamchandra Jagarnath Cold Storage and others Vs. New India Insurance Co.Ltd 2022 CPJ 138
10.	Rajan Kumar and others Vs. Oriental Insurance Co.Ltd 2020 4 SCC 364
11.	Silversons Vs. Oriental Insurance Co.Ltd 2012 12 SCC 522
12.	Moreshar Yadaorao Mahajan Vs. Vyankatesh Sitaram Bhedi Lrs 2022 SCC ONLINE SC 1307
13.	Suzuki Parasrampuria Suitings Private Limited Vs. Official Liquidator of Mahendra Petro Chemicals Limited 2018 SCC 707

Arguments of the learned counsel for the defendants:

8.1. The learned counsel for the defendants vehemently contended that the Insurance policy was taken from the second defendant outside the territorial limits of this Court and when the value of the policy is above Rs.1.5 Crores, the Regional Office had no authority to approve the same and hence the contention of the plaintiff, as if the first defendant approved the policy within the territorial limits of this Court at Chennai cannot be accepted. It is the submission of the learned counsel when no part of the cause of action arose within the territorial limits of this Court, it has no territorial jurisdiction to entertain the suit. The learned counsel also submitted that the person, who verified the plaint is not a competent person to verify the plaint and the plaintiff failed to file any proof to show that Board Resolution Ex.P43 was signed by actual Director of the company. The learned counsel by relying on EID Parry India Limited Vs For Eastern Marine Transport Company Limited reported in 1988 (1) LW 320 submitted that if the insured by his default allowed the remedy against the carrier as time barred or abandoned, the insured is entitled to repudiate the contract on that ground. In the case on hand, the plaintiff failed to implead the carrier as a party to the suit and hence non-joinder of carrier is fatal to the suit. The learned counsel further submitted that even as per the admission of PW.1, the damage to cargo had occurred after abandonment of voyage and the liability of the insurer comes to an end on culmination of voyage. Therefore, the insurer is not liable. The learned counsel further submitted that the event had taken place prior to issuance of the policy. It is his contention that at the time of submission of proposal by the plaintiff, the loading of cargo into the ship had started and the same was not disclosed to the insurer and consequently, the insurer was entitled to repudiate the contract on the ground of failure to disclose the material facts. Therefore, the learned counsel for the defendants prayed for dismissal of the suit.

9. In support of his contention, the learned counsel for the defendants relied on the following judgments:

S.No	Citations
1.	New Moga Transport Company Vs. United India Insurance co. And others limited. AIR 2004 SUPREME COURT 2154
2.	State Bank of Travancore Vs. Kingston Computers India Pvt Ltd (2011) 11 SUPREME COURT CASES 524
3.	M/s Nibro Limited Vs. National Insurance Co.ltd AIR 1991 DELHI 25
4.	E.I.D.Parry Ltd Vs. Far Eastern Marine Transport Co.Ltd 1988 1 LAW WEEKLY 320
5.	Satwant Kaur Sandhu Vs. New India Assurance Company Ltd (2009) 8 SUPREME COURT CASES 316
6.	Sea Lark Fisheries Vs. United India Insurance Company and Another (2008) 4 SUPREME COURT CASES 131
7.	M/S Bihar Supply Syndicate Vs. Asiatic Navigation and others AIR 1993 SUPREME COURT 2054
8.	H.Siddiqui (Dead) by lrs Vs. A, Ramalingam (2011) 4 SUPREME COURT CASES 240
9.	Jagmail Singh and another Vs. Karamjit Singh and others (2020) 5 SUPREME COURT CASES 178
10.	Narasu’s Roller Flour Mills Vs. Narasu’s Coffee Company and Others MANU/TN/8588/2022=2022 5 LW 440
11.	Reliance Life Insurance Company Limited and another Vs. Rekhaben Nareshbhai Rathod (2019) 6 SUPREME COURT CASES 175
12.	Vikram Greentech India Limited and Another Vs. New India Assurance Company Limited (2009) 5 SUPREME COURT CASES 599
13.	Sree Maruthi Marine Industries Ltd Vs. Oriental Insurance Co. Ltd 2016 4 LW 319

10. Issue No.I:

The learned counsel for the defendants mainly contended that the suit Insurance Policy was insured by the second defendant outside the territorial limits of this Court at Tiruvallur and hence this Court has no jurisdiction to entertain the suit as no part of the cause of action arose within the territorial limits of this Court. On the other hand, the learned counsel for the plaintiff submitted that considering the value of the Insurance Policy, the second defendant branch office possess no authority to approve the policy and the policy was approved by the first defendant and therefore, part of the cause of action arose within the territorial limits of this Court. In this regard, it would be appropriate to refer to the evidence of DW.1. During, cross examination when it was questioned whether Ex.D1-Insurance policy was approved by the first defendant in its regional office at Chennai, she answered in affirmative. Therefore, there is a clear admission by 1 st defendant witness that the suit Insurance Policy was approved by the first defendant at Chennai. In such circumstances, part of the cause of action arose within the territorial limits of this Court and consequently this Court can entertain the suit. DW.1, further admitted that there are two names in Ex.D1, one is Varadharajan and second is Malathi Parthasarathy. Mr.Varadharajan, was employed in Regional Office at Chennai. She admitted that the second defendant has no power to Ex.D1 policy. She also specifically admitted in her answer to question No.69, Ex.D1 Policy could not be issued without approval of first defendant. In her answer to question No.365, she answered Ex.D1 Policy was prepared by second defendant and approved by first defendant. Therefore, the answer of DW.1 to Questions Nos.66, 67, 69, 365, 366 and 395 would make it abundantly clear that the policy was approved by the first defendant and issued by the second defendant. Therefore, the objection by the defendants, with regard to the territorial jurisdiction is liable to be rejected. Issue No.I, is answered in favour of the plaintiff as against the defendants.

Issue No.II:

11.1. The learned counsel for the defendants submitted that the person who verified the plaint is not competent to verify the plaintiff on behalf of the plaintiff company. The plaint is verified by one V.SriRaman, General Manager of plaintiff's company. Ex.P43 is the Board Resolution of the plaintiff's company authorizing viz., V.SriRaman, General Manager, to represent the company in the Civil Suit, he was authorized to sign plaint, affidavit, vakalat and tender evidence. When said V.SriRaman is authorized by the Board Resolution of the plaintiff company, he is a competent person, who verified the pleadings on behalf of the plaintiff.

11.2. The learned counsel for the defendants further submitted no proof has been filed before the Court to show that the person who put his signature in Ex.P43 is the Director of the company. It is pertinent to note Ex.P43 was marked by the plaintiff without any objection by the defendants. Therefore, it is not open to the defendants to contend at the time of arguments that there is no material on record to show that the person who signed Ex.P43 is the Director of the Company. Had the defendants entertained any doubt with regard to the designation of the person who signed Ex.P43, the defendants should have made an objection at the time of marking. In that case, the plaintiff would have got an opportunity to explain or lead further evidence with regard to the objection. Therefore, this Court concludes in view of Board Resolution Ex.P43, authorizing the said V.Sriraman to verify the pleadings, the plaintiff established that the plaint was verified by competent person. Issue No.2 is answered in favour of the plaintiff and against the defendants.

Issue No.III:

12.1. The learned counsel for the defendants vehemently contended that non-joinder of sea carrier is fatal to the suit. The learned counsel by relying on Ex.P36-E-mail communication between the plaintiff and the defendants submitted that when offer was made to the plaintiff by the defendants to pay 50% of the claim under items 2 and 3 to the tune of Rs.1,55,07,480/-, the plaintiff expressed their willingness to accept that offer without providing right of subrogation to the insurer. Further, the learned counsel relied on decision of this Court reported in EID Parry India Limited Vs For Eastern Marine Transport Company Limited reported in 1988 (1) LW 320, in this regard. A perusal of Ex.P41-repudiation letter addressed by the defendants to the plaintiff would indicate the defendants have not repudiated the contract of Insurance, on the ground that the plaintiff violated Clause-16 of the Contract which imposed an obligation on the plaintiff to take necessary action to protect the right of subrogation available to the defendants.

12.2. In Saurashtra Chemicals Kimited Vs. National Insurance Company Limited reported in (2019) 19 SCC 70, while considering the question, whether the ground which was not relied on in the repudiation letter can be raised subsequently, the Hon'ble Apex Court held as follows:

“23. Hence, we are of the considered opinion that the law, as laid down in Galada on Issue (2) still holds the field. It is a settled position that an Insurance Company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC.”

12.3. In view of the law laid down in the above mentioned case law, it is clear that the ground for repudiation which has not been raised at the earliest opportunity in the letter of repudiation cannot be raised later on as a defence when insurer makes a claim before the Court of law. In the case on hand, in Ex.P41 repudiation letter, the defendants have not raised any grounds regarding violation of plaintiff's obligation under Clause 16(2) of the contract.

12.4. Clause 16(2) of Contract of Insurance reads as follows:

“16.2. To ensure that all rights against carriers, bailees or other third parties are properly preserved and exercised and the Underwriters will, in addition to any loss recoverable hereunder, reimburse the assured for any charges properly and reasonably incurred in pursuance of these duties.”

12.5. Therefore, it is the duty of the plaintiff to ensure all rights against a carrier are preserved. However, at the time of repudiating the claim, the defendants have not raised a ground that the plaintiff violated this obligation under Clause 16(2) of the Contract by his failure to preserve all rights against the carrier. Therefore, as held in Saurashtra Chemicals Limited Vs. National Insurance Company Limited case, cited supra, the defendants are not entitled to take a new ground, which were not mentioned in the letter of repudiation and contend that the plaintiff violated its obligation under Clause 16(2) of Contract of Insurance Act. Therefore, the issue No.3 is answered in favour of the plaintiff and against the defendants.

Issue No.4:

13. It is the contention of the learned counsel for the defendants that the damage to the cargo had taken place even prior to the issue of the policy and the same was not informed to the defendants at the time of submission of proposal by the plaintiff. A perusal of Exs.P11 and D1 would indicate that the Insurance Policy was issued on 03.07.2014. The endorsement dated 21.08.2014 would indicate that the defendants undertook to cover the risk from consignors warehouse at Guinea Bissau to consignee's warehouse at Tuticorin. In Ex.D1-policy, numbers of the bills of lading issued by Master of the ship was noted by hand on 20.07.2014. Ex.P14 is the bill of lading issued by the captain of the ship M.V.Golden Endurance. A perusal of the same would suggest the loading of cargo was completed as on 20.07.2014. The said fact was duly intimated to the defendants and therefore numbers of the bills of lading issued by the captain of the ship was also endorsed in Ex.D1 policy. Ex.P-17 is a email received by the plaintiff from its charterers that the voyage got frustrated due to engine repair and the cargo has to be offloaded to seek alternate vessel. The same was informed to the defendants under Ex.P18- email. A perusal of Ex.P18 would indicate that the plaintiff informed the defendant on 11.08.2014 regarding frustration of voyage and his endeavour to engage another vessel for movement of cargo. Therefore, it is clear that the policy was issued on 03.07.2014 well prior to frustration of voyage. The plaintiff received information regarding frustration of voyage only on 08.08.2014 under Ex.P17 and the same was intimated to the defendants under Ex.P18 on 11.08.2014. It is the specific stand of the defendants in their pleadings that in case of any damage to the cargo after abandonment of voyage, the defendants are not liable. From Exs.P17 and P18, it is clear that voyage got frustrated or abandoned on 08.08.2014, in that case, the damage to the cargo should have been taken, subsequently, even as per the pleadings of the defendants. However, the policy was issued on 03.07.2014 itself as seen from Ex.D1. Therefore the contention of the learned counsel for the defendants that damage to the cargo had taken place even prior to submission of proposal for contract of Insurance by the plaintiff cannot be accepted. Accordingly, issue No.4 is answered in favour of the plaintiff and against the defendants.

14. Issue No.V:

When Ex.D1-Insurance Policy was shown to the defendants witness, DW.1 and questioned whether the policy was a warehouse to warehouse policy, in question No.17, she answered in affirmative. Further as discussed, perusal of endorsement dated 21.08.2014 to Ex.D1-Insurance Policy would make clear that it is a warehouse to warehouse policy and consequently, issue No.5 is answered in favour of the plaintiff and against the defendants.

Issue No.VII:

15.1. It is the specific contention of the learned counsel for the defendants that the seaworthiness of vessel of M.V.Golden Endurance was not proved by the plaintiff at the time of commencement of loading of cargo and hence the defendants are entitled to repudiate the contract of the Insurance. The said point was specifically mentioned in the letter of repudiation by the defendants. In response to that arguments, the learned counsel for the plaintiff submitted that the ships are being arranged by the seller and it was their responsibility. Therefore, it is the contention of the learned counsel for the plaintiff that the plaintiff got satisfied with the seaworthiness of the ship arranged by the charterer based on the certificates of the ship. The certificates of the ship was duly forwarded to the defendants at the time of submission of proposal for contract of Insurance.

15.2. In Rajankumar and Brothers (Impex) Vs. Oriental Insurance Company Limited reported in 2020 (4) SCC 364. while considering the question seaworthiness of a vessel, the Hon'ble Supreme Court of India observed as follows:

“7. As is evident from the above, the ICC 01/01/2001 imposes two requirements to ensure that the vessel complies with a certain minimum standard of seaworthiness. The first is a classification requirement which requires that the vessel should be classed with a Classification Society which is a Member/Associate Member of the International Association of Classification Societies (‘IACS’) or, in the case of vessels engaged exclusively in coastal trading, a National Flag Society. The second is an age limitation in respect of the insured vessel. The IACS consists of 12 member societies, as listed below:

(i) American Bureau of Shipping (A.B.S.)

(ii) Bureau Veritas

(iii) China Classification Society (C.C.S.)

(iv) Croatian Register of Shipping (C.R.S.)

(v) Det Norske VeritasGermanischer Lloyd (D.N.V.G.L.)

(vi) Indian Register of Shipping (I.R.S.)

(vii) Korean Register of Shipping (K.R.)

(viii) Lloyd’s Register (L.R.)

(ix) Nippon Kaiji Kyokai (ClassNK)

(x) Polish Register of Shipping (P.R.S.)

(xi) Registro Italiano Navale (R.I.N.A.)

(xii) Russian Maritime Register of Shipping

15.3. A reading of the above judgment would make it clear that if the ship is registered with anyone of the twelve societies which are members of International Association of Classification Society (IACS), the vessel is deemed to be possessing minimum seaworthiness. In the case on hand, a perusal of Ex.P7 which contains the details of the vessel makes it clear that the vessel M.V.Golden Endurance was registered with Russian Maritime Register of Shipping (RS). When DW.1 was cross examined, she was questioned how Insurance Company assesses the seaworthiness of the ship (Question No.84). She answered seaworthiness of the ship would be assessed based on ship certificate. When Ex.P7 was shown to the witness and questioned about the age of the ship and classification of its registration, DW.1 answered that the ship was built in the year 1997 and the classification was mentioned as Russian Registry. Therefore, this Court concludes that as per the certificate, the seaworthiness of the vessel is proved.

15.4. Ex.P12 is a statement of facts relating to the vessel M.V.Golden Endurance signed by the Master of the ship. It contains the details about the movement of the ship from 28.06.2014 to 19.07.2014. The notings in Ex.P12 would make it clear that after partial loading of cargo, on 17.07.2014, the vessel was moved and re-berthed as per the advice of the pilot. When it is shown that on 17.07.2014, the shipment was moved for reberthing, it clearly established that the ship was seaworthy on 17.07.2014. As per the Insurance Policy Ex.D1, it was issued on 03.07.2014. Therefore, at the time the proposal was submitted and at the time commencement of loading of cargo, the ship was seaworthy. Therefore, based on Ex.P12 notings of the captain of the ship and the ship Certificates and admissions of DW.1, this Court comes to a definite conclusion, the ship was seaworthy when loading of cargo was commenced on 29.06.2014. The issue No.7 is answered in favour of the plaintiff and against the defendants.

16. Issue Nos.6 and 8:

It is seen from Ex.P41, it is a policy governed by Institute cargo clause “A”, Clause 8(3), which governs the suit Marine Insurance Policy, reads as follows:

8.3. This Insurance shall remain in force (Subject to termination as provided for above and to the provisions of Clause 9 below) during delay beyond the control of the Assured, any deviation, forced discharge, reshipment or trans-shipment and during any variation of the adventure arising from the exercise of a liberty granted to shipowners or charterers under the contract of affreightment.

17. A perusal of above clause would make it clear that the policy covered any damages due to forced discharge, reshipment or transshipment. In the case on hand, due to repair in the engine, the voyage of the earlier ship was abandoned and consequently, the plaintiff was forced to discharge the cargo. During trans-shipment to another vehicle, damage was caused to the cargo and the same is covered by Institute Cargo Clause (A), Clause 8(3).

18. The endorsement in the Insurance policy Ex.D1, reads as follows:

Notwithstanding anything herein to the contrary in the within mentioned policy it is hereby agreed and declared that at the request of the insured the following changes has been made in the policy with effect from the inception of the policy;

packing-Break bulk;

voyage No.Chartered vessel;

Voyage from: Guinea Bissau – Consignors warehouse till interior places at Tuticorin and terminates at Consignees warehouse only and not at the carrier's warehouse at the destination mentioned above.

19. A reading of endorsement in Ex.D1-policy itself makes it clear, the policy covers the risk from consignor's warehouse at Guinea Bissau to consignee's warehouse at Tuticorin. In view of the discussions made earlier, this Court comes to a conclusion that the suit Insurance Policy covers the risk of damage during trans-shipment and the policy cover continues till cargo reaches its destination namely the consignee's warehouse at Tuticorin. Accordingly, Issue Nos.6 and 8 are answered in favour of the plaintiff and against the defendants.

20. Issue No.9:

The plaintiff in his pleadings as well as evidence clearly mentioned that it had been prudent and carried out all loss minimizing measures as per its obligation under the contract of Insurance. The defendants have not mentioned how the plaintiff was not prudent enough or failed in its obligations to minimize the loss. Further, under Ex.P41-repudiation letter, the defendants have not mentioned any omission on the part of the plaintiff in taking prudent steps to minimize the loss. As discussed earlier, the defendants are not entitled to raise new grounds other than the one raised under the letter of repudiation. In such circumstances, in the absence of any acceptable evidence to show that the plaintiff was guilty of omission in taking necessary steps to minimize the loss, I hold that the plaintiff succeeded in proving that he had taken all necessary steps to minimize the loss as a prudent person. Issue No.9 is answered accordingly in favour of the plaintiff and against the defendants.

21. Issue Nos.10 and 11:

The plaintiff's claimed Rs.1,41,23,052 under the head damage to the insured cargo. They also claimed Rs.3,17,97,776/- under the head loss due to minimization expenses. In all plaintiff claimed Rs.4,59,20,828/- as a principal sum due from the defendants. The plaintiff claimed 15% interest per annum on the principal sum and accordingly claimed Rs.1,60,72,289.80 towards interest. Therefore, in all, the total suit claim is Rs.6,19,93,117.80/-. As far as the loss towards cargo is concerned, the same is based on surveyors report which noted damage to the portion of the cargo.

22. The plaintiff claimed loss under the head minimization expenses under following six sub-heads:

SL. NO.	DESCRIPTION OF EXPENSES	Amount Spent for the whole Shipment of 5262.160 Mts.	Prop.Amount Spent for Plaintiff’s cargo of 3350.069 MTs
1.	Legal Expenses (Proportionate)	4257360	Rs.27,10,235
2.	Cost of Uploading from MV Golden Endurance- Warehousing and loading on to new vesse; MV Grandway Star (Proportionate) (Ex: P)	9757740	Rs.62,11,535
3.	Cost of Additional Freight Paid for New Vessel MV Grandway Star (Proportionate) (Ex: P)	34792500	Rs.2,21,48,906
4.	Survey Fees For Unloading/Loading and Quality Report (Proportionate) (Ex: P)	824460	Rs.5,24,851
5.	Cargo Insurance Premium Piad for the onward voyage of the saved cargo (Ex: P)		Rs.2,02,249
	TOTAL		3,17,97,776/-

Under Ex.P36-E-mail communication, the defendants admitted item Nos.2 and 3 namely expenses under the sub heading loading and unloading and forwarding charges. However, the defendants refused to accept the legal expenses and survey fees. In the said email communication, the defendants admitted its liability to the tune of Rs.3,10,14,960/- and offered to pay 50% of the said amount. In view of the clear admission by defendants under Ex.P36, the plaintiff is entitled to loading and unloading expenses plus cost of additional freight paid to the new vessel (forwarding charges). The plaintiff has not substantiated the claim under the sub head legal expenses. As far as the claim under the head cargo Insurance premium paid for onward voyage is concerned, even according to the plaintiff's case, the suit insurance policy is warehouse to warehouse policy and consequently, the risk coverage continues till the cargo reaches its destination at Tuticorin. In such circumstances, the new Insurance policy obtained by the plaintiff is only by way of abundant caution to supplement the suit Insurance Policy. Therefore, the plaintiff is not entitled to claim the expenses incurred for payment of premium to new insurance policy. The damage caused to cargo is substantiated based on the surveyors report and hence the plaintiff is entitled to recover the fees paid by it for the surveyor. Hence, this Court holds the plaintiff is entitled to claim under loading/unloading expenses, additional freight paid to new vessel and survey fees (Rs.62,11,535+2,21,48,906+5,24,851=Rs.2,88,85,292/-). Therefore, the plaintiff is entitled to Rs.2,88,85,292/- under the head of minimization expenses instead of the amount claimed at Rs.3,17,97,776/-.

23. In all, the plaintiff is entitled to Rs.4,30,08,344/- with proportionate interest on the said sum.

24. The plaintiff claimed interest at the rate of 15% per annum on the ground it is a Commercial transaction. Taking into consideration, the present regime of low interest, this Court, deems it appropriate to grant 9% interest on the above said sum from the date of claim to the date of realization of the amount (03.07.2014 to the date of realization).

25. In Nutshell:

(a) The suit is decreed in part by directing the defendants to pay a sum of Rs.4,30,08,344/- to the plaintiff;

(b) The plaintiff is entitled to 9% interest on the said sum from the date of claim (03.07.2014) to the date of realization;

(c) The defendants are directed to pay the cost of the suit to the plaintiff.