JUDGMENT 1. The legality and correctness of the order passed by the learned Single Judge in W.P.No.30783/2003 dt.3rd August 2009 is called in question in this appeal. 2. Heard Sri.A.N.Krishna Swamy, the learned counsel appearing for the appellant and Sri.G.L. Vishwanath, learned counsel appearing for the respondent. 3. The facts leading to this appeal are as hereunder:- The Writ Petition was filed by the respondent. It is engaged in manufacturing farm equipments including Tractors and Trailors. In connection with its business, certain parts were required to be imported and an order was placed to import 100 sets of Tractor “E” Mark items from M/s Mercura Trade and Services, B.V.Holland, Netherlands. An invoice was issued on 12.5.1999 by the supplier. Based on the same, the respondent remitted a sum of Dfl 16980 (Dutch Gilders) towards the cost of the material. The consignment was booked and shipped under a Bill of Lading issued by M/s Cleve and Zonen. The consignment was to be loaded on board at Rotterdam and the Port of discharge was Chennai in India. M/s Freight System (India) were the agents for the carriers. 4. The respondent obtained a Marine Insurance Policy from the appellant in order to cover the risk of the consignment from the ware-house of Rotterdam to the warehouse at Bangalore by undertaking the value at Rs.4,20,000/-. Accordingly, a policy was issued on 18.8.1999 at Bangalore by the appellant – Company. The consignment is said to have been loaded on a vessal “Hanjin Malta”. When the vessel reached Chennai, the goods were not on board. The agents of the carriers, on confirmation received from its principals, informed that the cargo was lost at the warehouse in Rotterdam and that the goods were not loaded on the ship at all, based on the same, the respondent raised a claim with the appellant. Then on the instructions of the appellant, the respondent contacted the agents of the appellant M/s W.K.Websters and Company at Rotterdam, who were said to have been appointed to investigate the loss and it was advised by them to the appellant that the terms of contract between the petitioner and its suppliers was FOB Rotterdam that the appellant – company is not liable to indemnify the loss since the consignment was not lost after it was boarded. Accordingly, the claim of the Writ Petitioner came to be disallowed. Accordingly, the claim of the Writ Petitioner came to be disallowed. It is also the case of the Writ Petitioner that thereafter the Writ Petitioner approached the supplier. The supplier contended that the responsibility of the supplier has come to an end the moment the goods were delivered at the ware-house at Rotterdam. Subsequently, the Writ Petitioner approached the Insurance Ombudsman at Hyderabad, which did not consider the case of the Writ Petitioner on the ground that it has no jurisdiction to entertain the complaints from a Limited Company. In the circumstances, the Writ Petition came to be filed to issue a mandamus directing the appellant – Insurance Company to honour the claim as per the Marine Insurance Policy dt.18.8.1999 together with interest. 5. The Writ Petition was contested by the appellant – Insurance Company on several grounds. The defence of the appellant before the Learned Single Judge was that the Writ Petition was not maintainable since disputed questions of facts are involved and such facts cannot be adjudicated in a writ proceedings. It was also contended by the appellant that the goods were not lost and on the contrary goods were not shipped on the board by Shipping agent at Rotterdam. Therefore, looking into the terms and conditions of the Contract, the claim has been refuted. In the circumstances, it was requested to dismiss the Writ Petition. 6. The Learned Single Judge having heard the counsel for both the parties considering the several Judgments relied upon by the respondent, came to the conclusion that the appellant – Insurance Company has to honour the claim of the respondent – writ petitioner because the goods were lost in the warehouse at Rotterdam and that no disputed question of facts are to be considered and he also ruled that the risk of the appellant commences from the time the consignment was delivered by the supplier of the Writ Petitioner to the warehouse at Rotterdam and the moment consignment was delivered to the warehouse of Rotterdam, the risk of the appellant – Insurance Company has commenced till consignment safely reaches at Bangalore. Therefore, the Writ Petition came to be allowed directing the appellant – Insurance Company to honour the claim with interest at 6% p.a till the date of payment. This order is called in question in this appeal. 7. Therefore, the Writ Petition came to be allowed directing the appellant – Insurance Company to honour the claim with interest at 6% p.a till the date of payment. This order is called in question in this appeal. 7. Though several grounds are urged by the appellant – Insurance Company, the main contention urged by Mr.Krishna Swamy is that the Learned Judge did not notice that it was specific case of the appellant that from ware-house of Rotterdam by mistake consignment was not boarded, as per the letter of M/s Cleve and Zonen dt.27th October 1999 as per Annexure-F. The respondent – Writ petitioner cannot be permitted to contend that there is a loss of consignment at the warehouse at Rotterdam. Therefore, he contends that the Learned Judge without considering whether the consignment was not shipped or lost which can be adjudicated only by a competent civil court has erroneously ruled that the Writ Petition filed by the writ petitioner was maintainable. He further contends that as per the terms and conditions of the policy issued by the appellant, the risk would cover from warehouse to warehouse in respect of loss or damage except all sorts of loss and damage over through a Voyage/Transit/Period of Insurance. Taking us through the terms and conditions enumerated in Annexure- D, he contends that risk would cover only from the time of shipment till it reaches the warehouse at Bangalore. According to him, it is not the case of the writ petitioner that the goods were lost during transit. According to Annexure-F dt.27th October 1999 the warehouse personnel at Rotterdam omitted to stuff the 1 pallet with the markings VST Tillers Tractors into container. Therefore he contends that there is no loss of consignment. According to him even if the case of the writ petitioner is accepted for the sake of argument, no material is produced before the Insurance Company that actually there was a loss of consignment at warehouse at Rotterdam. According to him, the writ petitioner has improved his version by relying upon the subsequent letters saying that consignment is lost in the warehouse at Rotterdam, without placing any material to show that it is a case of loss and not a case of non-shipment. In the circumstances, he requests to allow the appeal and set aside the order of the Learned Single Judge. 8. In the circumstances, he requests to allow the appeal and set aside the order of the Learned Single Judge. 8. Per contra, Mr.Vishwanath, the learned counsel for the respondent/writ petitioner submits that as per the terms and conditions of the policy, the risk covers from the time the consignment is delivered by the supplier to the warehouse at Rotterdam and would be in force till the consignment is delivered to the writ petitioner at Bangalore. He further submits that it is not the concern of the Writ Petitioner whether the carrier has lost the consignment of the writ petitioner either in the warehouse or in the transit. According to him, whether the consignment was lost in the warehouse at Rotterdam or in the transit it makes no difference so far as the rights of the writ petitioner is concerned, since it has obtained a policy to cover the risk from warehouse to warehouse. Therefore, he requests the court to dismiss the appeal. 9. In support of his argument, he has relied upon the Judgment of the Hon. Supreme Court reported in (2010) 10 SCC 567 in SURAJ MAL RAM NIWAS OIL MILLS PRIVATE LIMITED VS. UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER. Relying upon this Judgment, he contends that in a contract of insurance, the rights and obligations are governed by the terms of the contract since the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer and no exception can be made on the ground of equity. He further contends that the word used in the insurance contract must be given paramount importance and relying upon para-26 of the Judgment he contends that since the policy covers risk from warehouse to warehouse whether the consignment is lost in warehouse at Rotterdam or in transit, it is the duty of the insurer to honour the claim of the writ petitioner. Therefore, he requests the court to dismiss the appeal. He further contends that when there is no disputed question of fact in regard to the loss of consignment, the party is always at liberty to invoke the writ jurisdiction and instead of driving the parties to approach the Civil court, the court can always grant relief to the parties. 10. Therefore, he requests the court to dismiss the appeal. He further contends that when there is no disputed question of fact in regard to the loss of consignment, the party is always at liberty to invoke the writ jurisdiction and instead of driving the parties to approach the Civil court, the court can always grant relief to the parties. 10. He also relied upon the Judgment of the Hon. Supreme Court reported in (2004) 3 SCC 553 in the case ABL INTERNATIONAL LTD. AND ANOTHER VS. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD. AND OTHERS. 11. The learned counsel for the appellant in support of his arguments has relied upon the Judgment of the Hon. Supreme Court reported in AIR 2008 SC 2620 in the case of NEW INDIA ASSURANCE CO.LTD. V. M/S. HIRA LAL RAMESH CHAND & ORS. 12. Having heard the counsel for the parties, it is not in dispute that the appellant – Insurance Company is not disputing the issuance of the policy in favour of the Writ petitioner. It is also not disputed that the supplier had delivered the material for shipment to the warehouse at Rotterdam. The only question is whether the material of the writ petitioner is lost in the warehouse or during transit and whether there was no loss on account of non-shipment. 13. Even if we concede the arguments of Mr. Vishwanath that the policy cover the risk from warehouse to warehouse is accepted, the vital question to be considered by us in this appeal if for any reason there is non-shipment from Rotterdam to Chennai by the clearing agent at Rotterdam, whether the appellant – Insurance company can be directed to reimburse the alleged loss on account of non-shipment when the goods are not lost or damaged either at warehouse or during transit. 14. Considering the actual dispute in the present case, we are of the view that there is no necessity for us to refer to the decisions relied upon by the learned counsel appearing for both the parties, if this court comes to the conclusion that there is a disputed question of fact whether the Writ Petition is maintainable. 15. The writ petitioner has produced Annexure-F issued at an undisputed fact of time. 15. The writ petitioner has produced Annexure-F issued at an undisputed fact of time. This letter is addressed by M/s Cleve and Zonen on 27th October 1999 from Rotterdam, which reads as hereunder:- “TO WHOM IT MAY CONCERN Rotterdam, 27th October 1999 Re. Shortshipment of 1 pallet Tractor Parts M/V. Hanjin Malta 0055 Eagle Prosperity V005 Arr 16.9.1999 S/Cleve & Zonen by. C/Freight Systems India Pvt. Ltd., M/BL rtm 9813002 11/BL 161.9039.09 Container HJCU 761 7176 – 40 ft. We confirm we booked a consignment of 1 pallet tractor parts for shipment from Rotterdam to Chennai on the 18th of August, 1999 per M/V.Hankin Malta. Unfortunately our warehouse personnel at Rotterdam omitted to stuff the 1 pallet with the markings VST Tillers Tractors into container HJCU 761 7276. On behalf of Cleve & Zonen b.v.” (Emphasis is supplied by us) 16. From the above letter it is clear that M/s Cleave and Zonen who received the consignment from the supplier has clearly stated that the warehouse personnel at Rotterdam had omitted to stuff 1 pallet with the markings VST tillers tractors into container. The subject matter of the letter reads as short shipment of 1 pallet Tractor Parts. From this is clear that by over sight, the warehouse personnel have omitted to ship the consignment. Therefore, by looking into Annexure-F, no court can hold that there is a loss of consignment in the warehouse at Rotterdam. 17. If there is no loss of consignment in the warehouse, the question would be whether the Insurance Company can be made to honour the claim of the writ petitioner on account of negligence of the agent for non-shipment. So far as this point is concerned, we are of the view that if for any reason the concerned agent has not sent the cargo, we cannot compel the Insurance Company to honour the claim because the risk is covered only in the case of loss or damage caused to the material insured. 18. The writ petitioner has also produced a letter dt.3.12.1999 as per Annexure-E. It is not addressed by M/s Cleve and Zonen of Rotterdam but it is addressed by Freight Systems (India) Private Limited, which reads as hereunder:- “Freight Systems (India) Prt. Ltd., 125/2, Angappa Naicken Street, III Floor, Chennai 600 001. Tel:5331051/1054, 5341408/5351398/0146/8428/Fax.044.5331052 E: mailinternet: Freight. 18. The writ petitioner has also produced a letter dt.3.12.1999 as per Annexure-E. It is not addressed by M/s Cleve and Zonen of Rotterdam but it is addressed by Freight Systems (India) Private Limited, which reads as hereunder:- “Freight Systems (India) Prt. Ltd., 125/2, Angappa Naicken Street, III Floor, Chennai 600 001. Tel:5331051/1054, 5341408/5351398/0146/8428/Fax.044.5331052 E: mailinternet: Freight. System@gems.vsni.net.in 3RD DECEMBER, 1999 TO WHOMSOEVER IT MAY CONCERN VS: HJ-MALTA-EAGLE PROSPERITY V. OOG:B/L.NO:161 9036 09 C/- VST TILLER – 1 PALLET. WE HEREBY CONFIRM THAT SUBJECT IMPORT CARGO WAS LOST WHILE THE SAME WAS IN THE WAREHOUSE OF OUR PRINCIPALS M/S.CLEVE & ZONEN G.V., ROTTERDAM AS MENTIONED IN THEIR LETTER SHORT SHIPMENT CERTIFICATE DT.17th NOV.1999. THIS IS ISSUED WITHOUT ANY PREJUDICE ON OUR PART. 19. By looking into Annexure-E, we cannot hold that the consignment is lost in the warehouse because no material is placed before the court to show that M/s Cleve & Zonen of Rotterdam have stated that they have lost the material in their warehouse at Rotterdam. Therefore, there is contradiction between Annexures-E and F. Annexure-F is a letter addressed by M/s Cleve and Zonen of Rotterdam dt.27th October 1999, which has to be believed by any court because they are competent person to say whether there is a shipment or not and whether consignment is lost in the warehouse or not. But Annexure-E is a letter addressed by M/s Freight Systems (India) Pvt. Ltd., of Chennai who is only an agent of M/s Cleve and Zonen. 20. Annexure-H is the letter addressed by M/s Cleve and Zonen dt.17th November 1999 addressed to M/V Hanjin Malta, vessel which was supposed to deliver the consignment at Chennai. In the said letter it is not mentioned when the consignment has been lost at the warehouse at Rotterdam. But this letter was dt.17.11.1999. The court can only presume that it is an after thought because at an undisputed time as per Annexure-F dt.27th October 1999 the very same warehouse has stated that warehouse personnel have omitted to send the consignment. 21. In view of the aforesaid discussions, we are of the opinion that there is a disputed question of fact in regard to whether the consignment has been lost in the warehouse or has not been shipped on account of the negligence of the personnel of the warehouse. 22. 21. In view of the aforesaid discussions, we are of the opinion that there is a disputed question of fact in regard to whether the consignment has been lost in the warehouse or has not been shipped on account of the negligence of the personnel of the warehouse. 22. The Learned Single Judge without considering this crucial point has allowed the Writ Petition as if there is no dispute in regard to the facts of the case and that it is the duty of the Insurance Company to honour the claim. 23. In the light of the aforesaid discussions, we are of the view that an error is committed by the Learned Single Judge in allowing the Writ Petition. 24. In the result, the appeal is allowed. The order passed by the Learned Single judge in W.P.NO.30783/03 dt.3.8.2009 is hereby set aside and the Writ Petition filed by the respondent is hereby dismissed. It is needless to state that the order of dismissal of the Writ Petition will not come in the way of the respondent to avail other remedies open to it in accordance with law.