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TMI Blog2014 (9) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29-3-1983, acknowledging the entrustment of goods in good condition, undertaking to deliver the same at Madras Port Trust. The said consignment was insured with the second respondent/second defendant/Insurance Company, under a Policy, bearing No. 10307, dated 3-3-1983. The said Vessel arrived at the Port of Madras, on or about 2-5-1983, and commenced unloading operations. The clearing and forwarding agents of the plaintiff's filed their import Application No. 91/95, dated 18-5-1983, and took delivery of 3,99,240 kgs of the consignment originally entrusted with the carrier at the Port of loading as against the total weight of 4,16,810 kgs. The Madras Port Trust issued a certificate of weighment, dated 1-6-1983, confirming the weight of the goods delivered to the first respondent/plaintiff. (ii) Thus, the appellant/first defendant short delivered 17.570 metric ton of the suit consignment, and therefore, the first defendant has committed breach of contract of affreightment, as evidenced by the Bill of lading. As a result of short landing of goods, the plaintiff suffered pecuniary loss of Rs. 56,224/-. On 25-8-1983, the plaintiff filed a claim for a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not binding on the first defendant/appellant and the certificate issued by the Madras Port Trust on 1-6-1983, is not binding on the first defendant and hence, there was no negligence on the part of the first defendant/appellant in dealing with the cargo and considering the nature of the cargo, there was no possibility of any handlement of the cargo during the course of transit. Hence, the first defendant/appellant is not liable for the loss caused to the plaintiff and the interest claimed in also not maintainable. 6. The second respondent/second defendant filed a written statement, admitting the issuance of policy and stated that the Policy was issued subject to the terms and conditions mentioned therein. The liability of the second defendant was in accordance with the Marine Insurance Act. As per the terms and conditions of the Insurance Policy, it covers only theft, pilferage and non-delivery. Further, under Section 76 of the Marine Insurance Act, where the subject matter insured is warranted free from particular average, the assured cannot recover for the loss, or part, other than the loss incurred by a general average sacrifice, the contract contained in the policy is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciating Exs.A.2 and A8, erred in holding that the appellant is liable to pay the value of the goods, which were short delivered, as per the Bill of lading. The learned counsel submitted that as per Ex.A2-Bill of lading, the cargo is said to contain M.S. Re-Rollable Scrap, used structurals consisting of joists, channels, etc., said to weigh 4,16,810 metric ton. Therefore, the weight given in the Bill of lading was the weight given by the consignor and the cargo was not actually weighed by the appellant, and therefore, it cannot be stated that 4,16,810 metric ton of cargo was loaded in the appellant-Vessel. The learned counsel, therefore, submitted that in the absence of any proof that the first respondent proved that they entrusted 4,16,810 metric ton of goods, viz., M.S. Re-Rollable Scrap, with the appellant-Vessel, they cannot make any claim against the appellant. 11. The learned counsel for the appellant further submitted that the first respondent also admitted in their notice-Ex.A8, sent to the second respondent/Insurance Company, wherein, they have stated that after the Vessel reached the Madras Port Trust, the appellant's carrier delivered full cargo and the theft or pil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods with the appellant, and the weight mentioned in the Bill of lading, was the declaration given by the consignor and the cargo was not actually weighed by the appellant. Therefore, it cannot be contended that as per Ex.A2, the appellant admitted the entrustment of 4,16,810 metric ton of M.S. Re-Rollable Scraps, and the weight mentioned in Ex.A.2, was the confirmed declaration given by the consignor at the time of entrustment, and it was not the actual weight accepted by the appellant-Vessel. Therefore, in the absence of any proof that 416.810 metric ton of M.S. Re-Rollable Scraps were entrusted with the appellant, the appellant cannot be made liable for any payment. 18. Further, in Ex.A.8, as rightly pointed out by the learned counsel for the appellant, the first respondent has admitted the delivery of full cargo by the appellant. Ex. A.8, is the copy of the letter sent by the first respondent to the second respondent, demanding the second respondent to pay the amount caused due to the theft or pilferage. In that letter, it has been made clear that they cannot claim any amount from the appellant herein, as the appellant's carrier delivered the full cargo. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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