Per. Mr.K.B.Gawali, Hon’ble Member.

1.     This appeal is filed  by the original complainant  who is  the proprietor of Kapoor Herbal Products,  against the impugned judgment and order dtd.  30/09/2009 passed by the Dist.Consumer Forum, Aurangabad  in CC.No.829/2008. The respondent herein is the original opponent. For better understanding the appellant is hereinafter termed as the “Complainant” and the respondent which is insurance company is hereinafter termed as the “Opponent Insurance Company”.

2.     Brief facts leading to the present appeal are as under :-

        That, the complainant Shri.Santosh Kapoor  is the proprietor of the firm by name and style as “Kappor Herbal Products”. That, this firm is engaged in the activity of manufacturing and trading of various herbal products within an outside country, which is situated at MIDC Chikalthana Aurangabad. It was submitted that the complainant had received order from M/s. Julian Greaves Ltd, a United Kindom Based Company for herbal products worth Rs. 44,56,290/- on 06/06/2007. That, in the mean-time opponent insurance company’s agent had approached the complainant and offered him different type of insurance policies for covering the risk of goods during transportation within and outside country. Accordingly, the complainant obtained marine policy and paid the premium of Rs 8960/- on 11/06/2007. The opponent insurance company   on the receipt  of the premium and after verification etc.  issued the marine policy bearing No. OG-08-20076-1061-00000019 on 15/06/2007 in the name of the complainant’s firm. The said policy was effective from 11/06/2007 and the amount of insurance was Rs 21,40,007/- It was a special marine policy covering  the loss and damage to goods during transport and till the goods reaches from the  place of dispatch to the place of final destination.

3.     It was submitted by the complainant that he had dispatched the goods as per the orders of M/s. Julian Graves Ltd, West Midlands ( U.K.) on 27/06/2007 through the carrier M/s. Haytrans (India) Ltd via Sea route. That, the appellant/complainant had packed and the sealed the goods as per the norms of the custom and as suitable for carrying it abroad. It was submitted that the complainant   got the container and goods physically examined by the custom official  before they were dispatched and custom inspector had also drawn the examination report which was verified by the Superintended of Central Excise of Custom on 27/11/2007.

4.     It was further submitted that the complainant received a mail from  M/s Julian Graves Ltd on 20/09/2007 complaining that  some  of the goods worth of 26,655/- U.S.Dollars were received in unsuitable condition for sale and demanded to reimburse the same.  The complainant therefore intimated to the opponent insurance company on telephone about the said damage to the goods. The complainant was advised by the insurance company to approach to the consigner i.e. carrier for the said losses and also had assured to take necessary steps  in the meanwhile regarding the said damages. Accordingly, the complainant had claimed damages from the carriers i.e. Haytrans India Ltd but  it had rejected the request of the complainant by its letter dated 01/10/2007 saying that it was not responsible for any such damages. That, the complainant therefore  lodged his claim with the opponent insurance company on 20/10/2007 along with necessary documents for the amount of  26,655/- U.S.Dollar  i.e. Rs 11,52,944.77 in Indian currency . However, the opponent company neglected the claim inspite of continuous follow up. Therefore the complainant issued legal notice dated 24/12/2007 to the opponent    insurance company.  This notice was replied by the opponent insurance company on 21/01/2008 denying the  claim of the complainant on the basis of exclusion clause No. 4.3  of the said policy. It was contended by the complainant that goods under insurance coverage were sent to U.K.  by following due procedure of law and required packing but they were  damaged during transit for unknown reason and therefore the insurance company was bound to accept the insurance claim of the complainant. However, it has illegally rejected the same.  It was also contended that the opponent insurance company by way of false story regarding conducting of survey by the surveyor and on the basis of the surveyor’s report dated 19/08/2007 the insurance claim was rejected  on the ground that the Aloe Vera juice bottles had faulty seal and Aloe Vera plants were also not sent under temperature controlled container.  He also contended that the said survey report was not provided to the complainant prior to the  issuance of notice dated 24/12/2007. There was also no any representative of the complainant at the time of survey. The complainant therefore contended that  the opponent insurance company  without any basis has rejected the  insurance claim of the complainant and therefore contending the deficiency in service against the opponent insurance company filed the complaint before the Dist. Consumer Forum seeking direction to pay him an insurance amount of Rs 11,52,944.77  as compensation towards the damages of goods and further compensation of Rs 2,00,000/- towards mental harassment along with Rs 20,000/- as cost of the complaint. 

5.     The opponent insurance company appeared before the Dist. Consumer Forum and by way of  written version has contested the claim of the complainant. It was submitted that the complainant’s firm being engaged in commercial activity was not coming under the definition of term as “Consumer” and hence the complaint was not maintainable. It was also contended that the said complaint involved complicated issues of law  requiring recording of thorough evidence and hence can not be dealt  with in a summery procedure before the Dist. Consumer Forum. It was further contended that some of the  goods were rejected by the consignee on the ground that they  were damaged and therefore not fit for human consumption. It was further averred that the complainant could not make out any reason of the damaged, suffered to the consignment which was sealed and packed with his factory and delivered in the same condition to the consignee. It was therefore contended that the consignment had not sustained any damage during the transit  and therefore the goods were found damaged due to unsuitable packaging which can not be reimbursed as per the exclusion clause No. 4.3 of the terms and condition of the policy.  It was contended that the complainant was very well informed by way of reply to notice dated 21/01/2008 to the legal  notice issued by the complainant. It was thus contended that the complainant being not entitled to receive any compensation his claim was rightly rejected and there was no deficiency in service on the part of the insurance company. Hence,  it was averred that the complaint being baseless be dismissed.

6.     The Dist. Consumer Forum after going through the evidence on record as filed by both the parties and after hearing them has dismissed the complaint. It is held by the Dist. Consumer Forum that as per the exclusion clause No. 4.3 of the terms and condition of the policy. The juice bottles and plants which were damaged, were not packed properly  and hence the insurance company can not be held  liable  to pay the compensation under the said policy as claimed by the complainant. Thus in keeping with this observation the complaint came to be dismissed.

7.     Feeling aggrieved by the said judgment and order the present appeal is filed in this Commission by the original complainant, which  came to be finally heard on 17/01/2014. Adv.Shri.S.C.Arora for the appellant was present whereas Adv.S.G.Chapalgaonkar for the respondent was present. Both the counsel have already submitted their written notes of arguments. We also heard Ld. Counsel for both side finally and  the appeal was adjourned for judgment and order . That, during the pendency of judgment certain quarries were raised by this Commission and both the counsel for the opponent insurance company and the appellant in person  were heard on those quarries on 28/02/2014 and appeal was further adjourned for judgment and order till today i.e. 13/03/2014.

8.     The Ld. Counsel Shri.S.C.Arora appearing for the appellant/complainant submitted that the complainant had obtained marine insurance policy from the opponent insurance company, covering the risk of goods to be transported to United Kingdom. He further submitted that the said goods were transported from Aurangabad under the Excise and Custom’s verification and examination. That the report regarding said verification   was also issued by the said department before the discharge of goods on 27/06/2007. However, during the transit sum of the goods of worth Rs 11,52,944/- were found damaged and therefore were not accepted by the consignee i.e. M/s. Julian Graves Ltd . He submitted that as per the said policy if the goods are damaged during transportation the insurance company is liable to pay  for  the said damages. However, it has denied the claim of the complainant by applying exclusion clause No. 4.3 of the terms of the policy through it’s reply to  the legal notice as issued by the complainant. He also contended that the survey report as referred by the opponent insurance company in its legal notice was not received by the complainant. He also submitted that the said survey was conducted without giving any intimation to the complainant and therefore the same is not binding on him. The Ld. Counsel Shri. Arora thus contended that the opponent insurance company has denied the claim of the complainant without any basis. However, the Dist. Consumer Forum has failed to appreciate the evidence  as submitted by the complainant and wrongly dismissed the complaint. He therefore requested to allow the appeal by setting aside the impugned judgment and order. In support of his aforesaid contention he referred to the decision dated 21/08/1996 passed by the Hon’ble Apex Court in case of United India   Insurance Company Ltd  -V/s- M.K.J. Corporation – 1996  DGLS (Soft) 1253.

9.     On the other hand Ld. Counsel Shri. Chapalgaonkar for the opponent insurance company by way of his written notes of arguments submitted that the  policy in question was issued to the complainant subject to certain terms and condition. He submitted that as per the Marine policy if there is any loss or damage to the goods, the person who is in his possession of those goods is entitled to raise the claim. In the present case the goods in question were delivered to the consignee namely M/s.Julian graves Ltd (U.K.)  and the loss of goods was notified on 08/-8/2007 when goods were already delivered to consignee. Accordingly the consignee has called for the survey to the settlement agent namely Wendt and Company of London. The survey was carried out by the said company and submitted its report. He therefore contended that on the basis of the said report his claim was repudiated and the complainant had no insurable interest in view of delivery of goods at final destination.  He further submitted that the complainant has failed to make out any reason for  the damages suffered to the consignment which were sealed and packed at his factory  and delivered in the same condition to the consignee. He also pointed out that the consignment has not sustained any damage during the transit but  the contents of the consignment were damaged and found unfit for human consumption and therefore  he contended that the damage was due to unsuitable packaging . The Ld. Counsel Shri. Chapalgaonkar further submitted that as mentioned in the survey report, out of the two consignments sent to the consignee, the consignment No. 1  was delivered at final destination on 03/08/2007, whereas the consignment No. 2 was delivered on 06/08/2007. The loss was notified on 08/08/2007 and survey was carried out  by the surveyor on 09/08/2007 at the consignee’s premises i.e. Kingswinford , when  the representative of consignee Ms. Natalie  Williams was present at the time of survey . It was specifically mentioned in the survey report that foil seals of Aloe Vera Juice bottle were found torn, punctured and not properly attached whereas the Aloe Vera Plants were found obviously dead as they were not transported in a container having controlled temperature. He therefore contended that as per exclusion clause No. 4.3 of the terms of the policy the damages to the goods were found caused by insufficient and unsuitable packing and therefore the opponent insurance company was not liable to pay the compensation as claimed by the complainant. Hence, it has rightly denied the same. He also submitted that Dist. Consumer Forum considering the said exclusion clause has also rightly dismissed the complaint. Hence, he requested to dismiss the appeal by confirming the impugned judgment and order passed by the Dist. Consumer Forum. In support of his above said contention he relied on the following citation:

i.      Swapna Real Estate  -V/s- Lata Kishor Kharandate – III (2006) CPJ 289 (NC).

ii.     Whirl Pool of India Ltd and another –V/s- New India Insurance Company Ltd and another 2010 HTPL (CL) 2081 (NC).

iii.    Naina Emporium Pvt.Ltd –V/s- Oriental  Insurance Company Ltd -2010  HTPL (CL) 956 (NC).

10.   We have carefully gone through the papers containing copies of complaint filed by the complainant, written version submitted by opponent insurance company, copy of the survey report dated 19/08/2007, the photograph of the damaged Aloe Vera bottles, copy of the insurance policy along with terms and conditions, the insurance claim filed by the complainant, appeal memo, written notes of arguments and other documents etc.         On perusal of the available record and after considering the rival submission of the parties to the dispute, we find that there are two major points which arise for our consideration:

i.      Whether the deficiency in service  is proved against the opponent insurance company as alleged by the complainant and.

ii.     Whether the impugned judgment and order calls for our intervention.

11.   As for as point No. 1 is concerned the only ground  for alleged deficiency in service against the opponent insurance company is the repudiation of the claim of the complainant.  The question is therefore whether the action of repudiating the claim is just and proper. The opponent insurance company has repudiated the claim on two grounds. (a) The complainant has no insurable interest (b) It attracts the exclusion clause No. 4.3 of the terms of the policy. This clause reads as  “Loss, damage or expense caused by insufficiency or unsuitability of packing or preparation of the subject matter insured (  For the purpose of this clause No. 4.3  “Packing” shall be deemed  to include stowage in a container  or liftvan but only when such stowage is carried out prior to attachment of this insurance or by the assured or their servant”.)

12.   The contention of the opponent insurance company as mentioned at (a) above i.e. the complainant has no insurable interest can not be  sustained and hence not accepted. The fact is after receiving  the delivery of  goods by the consignee, it has found some of the goods, such as Aloe Vera Juice and the Plants,  in a damaged condition and hence they were not accepted by it.  Accordingly, by its letter dated 20/09/2007 it has intimated to the complainant and asked the reimbursement of full value of those damage goods i.e  26,655 U.S.Dollars. Therefore, the  ownership of the damaged goods being with the complainant he  has  insurable interest and he is  entitled for claiming the said damages.

13.   As regards the ground (b) for repudiating the claim the same pertain to exclusion clause No. 4.3  of the policy which provides that if the damages to the goods under insurance are caused due to insufficient/unsuitable packing, the insured is  not  entitled for any insurance claim against these damages.  We have therefore to verify whether the decision of the opponent insurance company of repudiating the complainant’s claim is justified or not.

14.   The undisputed facts of the case are that the complainant had obtained marine policy covering the loss of  Rs 21,40,007/-,  effective from 11/06/2007. As the said policy covered the probable loss and damages to the goods during transport from the complainant’s place of dispatch to  it’s final destination of the consignee namely M/s.  Jullian Graves Ltd, West Midlands (U.K.).  That, the policy was subject to certain terms and conditions including the exclusion clause 4.3. That, the goods consisting of Aloe Vera Juice, shampoo, jail and Aloe Vera Plants etc. were dispatched to the said consignee as per it’s orders on 27/06/2007 through carrier M/s. Haytrans (India) Ltd via sea route.  That, the said consignee vide its letter dated 20/09/2007 informed to the complainant that after the said goods were delivered to it on 07/08/2007,   some of the goods consisting of Aloe Vera Juice and Aloe Vera Plants of the value of 26,650 U.S.Dollar were found in suitable condition for sale and hence we rejected the reimbursement of the full value. The complainant had therefore submitted the insurance claim with the opponent insurance company by way of claim form on  19/10/2007 for the amount of Rs 11,52,944.70 which came to be rejected by way of email dated 05/11/2007 on the basis of exclusion clause 4.3 of the said policy.

15.   That, after having received  the insurance claim as filed by the complainant,  the opponent insurance company had appointed surveyor namely Wendt and company having its head office at London for survey and assessment of damages, which is a settlement agent as per policy in question.  The survey was conducted in the presence of the representative of the consignee namely Ms. Natalie Williams. The report was finalized on 11/09/2007 and submitted to the  opponent insurance company by letter dated 21/09/2007.

16.   That, as per the surveyors report it is revealed that all bottles of juice have been rejected due to faulty seal.  The foil seals of juice  bottles were found torn, punctured or not properly attached and hence large numbers of bottles were leaking. The surveyor also taken the photograph of this bottle along with the torn sealed etc.  It is made clear in the report that they have inspected 144 bottles out of which only two were properly sealed. That, the Aloe Vera Plants were found dead and having no retained value as these plants were packed  loose in card board  boxes with a single polythence sheet at the bottom and another one at the top and were shipped in a container having no temperature control. It is on the basis of surveyor report the opponent insurance company informed the complainant by it’s email dated 05/11/2007 and also by way of reply dated 21/01/2008  to the notice dated 21/12/2007 of the complainant.

17.   It is the contention of the complainant that he had packed and  sealed  the goods consignments as per the norms of the custom and as suitable for carrying it abroad. It is also contended that  the container and the goods were physically examined by the Custom official at the time of dispatch and on this basis, an examination report as drawn by the custom inspector which was also verified by the Superintendent of Central Excise and Custom on 27/06/2007 by putting their seal and signature etc. 

18.   However, the aforesaid contention of the complainant   that he had done adequate and sufficient sealing and packing, especially to the Aloe Vera Juice bottles can not be sustained and hence accepted. As per the contention of the complainant he had got the container and goods physically examined but not the individual sealing of the bottles of juice.  It is pertinent  to note that as per the survey report the cardboard  packing of the juice bottle and Aloe Vera Plants were not damaged but seal of the bottles of the juice were damaged causing the leakage of juice bottles in question. If the  packing was done properly then  what was the reason for the said damages. The complainant in his claim form has given the reason of damages as “Unknown” which can not be accepted.  In fact as per the clause- 1 of  “institute cargo clauses ( B)”  of the policy, there are various reasons  of loss of damages. But the complainant has given the reasons as unknown. Therefore, it can be said that the leakage of juice bottle was caused due to faulty and/or inadequate as well as unsuitable sealing and packing. As per the survey report  the Aloe Vera Plants were expected  to be individually packed and shipped in a container having a temperature control. In fact the said transportation  of the goods involved the period of almost one month and hence considering this long transport duration and handling of packing during transport etc. the sealing and packing was required to be done accordingly.  However, it is revealed that the sealing and packing of the juice bottle and packing of the Aloe Vera Plants was not done  up to the standards and hence we find that the repudiation of claim  by the opponent insurance company is justified.

19.   The case law referred by the Ld. Counsel for the opponent insurance company are also quite applicable to the present case. In the first case law i.e Swana Real Estate V/s- Lata Kishor Kharangate (Supra) it is held by the Hon’ble Nation Commission that the complainant failed to explain as to how the water entered piercing through polythence wraps and caused damage to the goods in the container . In the present case also the complainant has failed to give the reason of the said leakages of the juice bottle and damages sustained by the Aloe Vera Plants . The second case law pertaining to the case of Whirl Pool of India Ltd –V/s New India Assurance Company Ltd ( Supra ), the loss to the goods was due to insufficiency or unsuitability  of packing as the same was not adequate to endure the ordinary contemplated handlings and carriage. In the present case also it is revealed that the packing was not adequate to endure or to resist the handling of goods during transportation.  In the case under third case law i.e. Nayana Emporium Pvt. Ltd –V/s- Oriental  Insurance Company Ltd  (Supra),  the goods were suffered rusting, oxidation and discoloration  due to defective packing which is also the case of defective packing of the Aloe Vera Juice bottles and Plants. On the other hand the case law in respect of case United India   Insurance Company Ltd  -V/s- MKJ Corporation 1996 DGLS (Soft) 1253 as referred by the Ld. Counsel Shri.S.C.Arora for the complainant is not at all applicable to the present case as the facts and circumstance of the said case are totally different from those which exist in the present case.

20.   In view of the aforesaid facts and observations we find that the Dist. Consumer Forum has rightly considered all the above said aspects including the exclusive clause 4.3 and has rightly passed the impugned judgment and order. Hence, the appeal being devoid of any merit deserves to be dismissed. Hence, we pass the following order.                        

O R D E R

1.     The appeal is dismissed.

2.     Nor order as to cost. 

3.     Copies of the judgment and order be sent to both the parties.