Case: Venus Traders Vs. South Assam Carriers (P.) Limited

The facts as appear from the record are that thehas obtained a Open Policy covering `all risks from the said Insurance Company. Theentrusted at Erode one consignment of 135 bags of turmeric to the Carriers vide latters lorry receipt No. 9990 dated 15th April, 1989 for transport to and delivery at Calcutta. The consignee named in the lorry receipt was Canara Bank, Calcutta. As required under the policy a due declaration about that consignment was sent to the Insurance Company named above. The lorry receipt and the connected documents were forwarded to Canara Bank, Calcutta. The ultimate buyer was M/s. Madhup Trading Company, Calcutta. It was to make payment of the value of the goods to the Bank, get endorsement on the lorry receipt in its favour and take delivery of the goods. It appears that the buyer did not make payment to the Bank and thus did not take delivery of the goods. The goods remained lying in the warehouse of the Carriers at Calcutta. The Canara Bank instructed the Carriers torebook the consignmentto Erode. Thealso asked the Carriers torebook the consignmentto Erode. TheCarriers were also told that rebooking and handling charges would be paid. Thereafter, there was some correspondence between the Bank, Carriers and the consignor about the consignment. The Carriers informed the Complainant that they have rebooked the goods to their branch office at Erode. However, when the consignor contacted the Erode Office of the Carriers, the goods were not available. According to the Complainant the goods were never rebooked. Thereupon the consignor, i. e. , the appellant filed a complaint before the State Commission claiming Rs. 83,780/as the price of the consignment with interest thereon at 24%.( 2 ) THE first respondent i. e. , the Carriers in their counter took objection about the territorial jurisdiction of the State Commission but we are not concerned with it now. On merits, it was pleaded that the goods had reached the destination in time but the buyer did not retire the documents from the bank and failed to take delivery of the goods and thus the goods are still lying in their premises at Calcutta. It was admitted that the complainant through its Bank wanted them toto Erode but they called upon the bank to indemnify them for freight charges, demurrage charges and loading and unloading charges and as there was no response the goods could not be rebooked. According to the Carriers there was no deficiency or negligence in the rendering of service on their3 ) THE second Opposite Party, i. e, the Insurance Company took the plea that the goods had reached Calcutta safely and therefore, their liability as insurer of the consignment came to an4 ) THE State Commission referred to the correspondence between the parties and held that the goods have not reached back Erode till now and it is not known what is the fate of the goods and in such circumstances, the Carrier was guilty of deficiency and negligence in the rendering of service and was bound to make good the loss. About the Insurance Company it was held that the insurance was only for the safe transport of goods from Erode to Calcutta and since the goods had reached Calcutta safely and as there was no policy of insurance for the rebooking of goods to Erode, the Insurance Company was not liable under the policy. (It may be mentioned here that according to the suryeyor appointed by the Insurance Company the goods were still lying at Calcutta. The Insurance Company has repudiated the claim on the ground that as per terms of the policy its liability came to an end on the expiry of 7 days after the arrival of the consignment at the destination town. i. e. , on 26th April, 1989 ). In conclusion, as noticed earlier the relief was granted by the State Commission against the Carriers while as against the Insurance Company the complaint was5 ) FEELING aggrieved of that order, the consignor has come in appeal against that part of the order by which its complaint was dismissed against the Insurance Company. The appellants case is that now it has been ascertained that the goods had been delivered by the Carriers to Madhup Trading Company at Shalimar itself and the consignment never reached Calcutta at all. Under the West Bengal Sales Tax Act, 1954 without the permit of Commercial Tax Officer of Sales Tax Department no consignment can be moved from Shalimar to Calcutta. (Shalimar appears to be the Railway Terminus for goods.)

Reasoning: ( 6 ) WE have heard the learned Counsel appearing for both the parties and carefully gone through the records of the case. We are of the opinion that the findings arrived at by the State Commission are unassailable. No evidence was produced by the Appellant before the State Commission to show that the consignment has been delivered by the Carriers to the ultimate buyer without due endorsement on the documents by the Bank who was the consignee. According to the documents produced on the records, the goods reached safely at the destination. There was also correspondence between the parties about rebooking of the goods. In such circumstances the only conclusion that can be drawn is that the goods were not delivered to the ultimate buyer. It is not disputed that the consignment was insured only for safe transport from Erode to Calcutta and when the consignment reached the destination safely the transit risk covered under the policy got terminated after 7 days from the date of the arrival for the consignment at the destination. As noticed above, the surveyor appointed by the Insurance Company has reported that the consignment was still lying at the destination. Hence the Insurance Company is not liable under the policy.