1.      This  is the complaint regarding deficiency in service on the part of Opponent  as it did not settle the legitimate insurance claim of the Complainant as alleged by the Complainant.

2. The facts of this complaint as stated by the Complainant are that the Complainant  is  engaged in the business of transportation, having fleet of various vehicles. To safeguard the consignment entrusted, the Complainant has valid Marine Cargo Insurance Policies. The Complainant has obtained a Smart Marine Insurance Open Policy from the Opponent vide no. MCO/I0192222/25/02/M12511 valid from 10-02-2010 to 09-02-2011 for sum insured Rs.1,00,00,000/- (One Crore)  having limit of Rs. 10 lacs  per location.

3.The Complainant further submitted that it had furnished a list of containers to be dispatched through a particular vehicle with a date of commencement etc.

4.The Complainant has further stated that, M/s. MISC Agencies India Pvt., Ltd., had assigned one container bearing no. CRLU 1617600 to be transported from JNPT Nhava-sheva to Dadri by loading the same with a trailer no. HR 55 B-3417 on 17-07-10.

5.The Complainant has further stated that the declared sum insured for the said consignment- container was Rs. 9 lacs.....(Exh. C-2).

6.The trailer met with an accident enroute in the jurisdiction of Bhim Police Station, Rajasthan. The container loaded on the vehicle was damaged. Accident  was reported to the local police station. (Exh. C-4). The Opponent was informed of the said accident and about the damage the Complainant also filed its claim with the Opponent  alongwith all requisite papers. The claim form and other documents were received by the Opponent on 22-09-2010. The Opponent then appointed a surveyor. Thereafter Complainant received  a  letter dtd 25-8-2011 from the Opponent raising queries about the accident and insurable interest, cost of damage etc. The Complainant  clarified the queries raised by the Opponent.

7.The Complainant then obtained report of M/S APMT India service who gave the details of damage of Rs 9,35,520.03. Then there was exchange of huge correspondence between them.  Meeting was also held between them.

8.The Surveyor also submitted his report confirming the damage to the tune of Rs 9,35,520.03. However the Opponent has not settled claim till filling of this Complainant.

9.The Complainant has prayed for reimbursement of the amount of Rs. 9 lacs alongwith 12% interest, compensation for harassment and causing inconvenience to the Complainant and cost of this complaint.

10.The Complainant has attached the xerox copies of the following documents in support of this complaint.

a)   Marine insurance policy with letter.

b)   Statement showing details of containers covered under the policy.

c)   Container movement slip.

d)   Police report.

e)   Claim form dated 24.09.10.

f)    Letter dated 21.09.11 to Opponent.

g)   Letter dated 28.09.11 to Opponent.

h)   Letter dated 7.10.11 to Opponent.

i)     E-mail dated 25.07.11

j)     E-mail dated 18.09.11

k)   Letter dated 30.11.11 to Opponent.

11. The complaint was admitted and notice was duly served upon the Opponent. The Opponent filed its written version wherein it denied the allegation of deficiency and stated that the Complainant is not a consumer as the services are availed for commercial purpose. It also stated that the subject matter of the complaint is complicated and hence is to be dealt with Civil Court.

12.  The Opponent has specifically stated that the Complainant has taken Marine Insurance Policy for insuring empty refrigerated container with accessories for 5 lacs. However the container was loaded with PVC bags at the time of accident. Therefore the alleged loss is not covered by the insurance policy.

13.  The Opponent has further submitted that as per exclusion 4 i.e. “declaration”, the assured is bound to declare hereunder each and every shipment or sending or risk without exception hereunder falling within the terms of this policy whether arrived or not.  The underwriter insurer being bound to accept same upto, but not exceeding the limits specified herein. The Opponent failed to declare each and every shipment or sending to the Opponent. The Opponent  has stated that the Complainant has failed to declare 70 to 80 shipments/ dispatches before the alleged accident. The undeclared dispatches amounts to 7.20 crores and the sum insured till date  of alleged accident was only one crore. Hence at the time of loss, premium was inadequate to insure risk. The undeclared dispatches are confirmed by the number of transits undertaken by the Complainant from MISC Agencies Pvt., Ltd.,.

14.  Further the Opponent has claimed that the Complainant does not have insurable interest for the alleged loss. As the consignment note No 13174 dtd. 19.07.10 was issued by MG Container Movers,  Dispatched from Dahej Gujrat to Greater Noida. Thus the Complainant  does not have insurable interest as the container was in possession of the M/s. M.G. Container mover and not in possession of the Complainant.

15.  The container movement ship dated 17.07.10 mentions the agent as MISC. Letter dated 16.07.10 issued by the MISC agency confirms that the Complainant does not have insurable interest. The bill of Loading issued by MISC mentions the Conatiner No. as CRLU 1617600. The letter issued by the Complainant dtd 22.02.11- letter 26.02.11 issued by MISC letter dtd 26.03.11 issued by ODC carriers shows that the Complainant is not having insurable interest.

16.  Further the Opponent has submitted that the policy was of Rs. 5 lacs covering per conveyance. The Opponent has repudiated the claim on the following grounds by its letter dtd 21.12.11.  (Ex. 5)

a)   As per the policy the insurance coverage is for “on empty refrigerated container with accessories”. However, the container was loaded with PVC bags at the time of accident.

b)   There was a breach of declaration clause. The insured has not declared all the dispatches container movement coming within scope of policy. “The assured needs to ensure adequate free balance of premium for each and every consignment as per sec 64(v) B of insurance Act 1938. It is the condition of the policy that the assured is bound to declare hereunder every consignment / shipment which comes within the scope of policy without exception, the insurer being bound to accept the same up to not exceeding the limits specified in the policy”.

c)   Insurable interest- As observed by the surveyor, the insured could not produce any formal contract between them and M/S MISC to establish their insurable interest/financial interest in the referred transit for the said container.

17.  The Opponent has attached the XEROX copies of the following documents in support of its written version

a)   Insurance policy No. MCO/ 10192222/25/02/M/12511.

b)   List of undeclared dispatches undertaken by the Complainant .

c)   Copies of consignment note dtd. 19.7.10 container movement slip, bill of loading and the letter.

d)   Survey report dtd 16.11.11.

e)   Letter of repudiation dtd 21.12.11.

18. The affidavit of the surveyor, Transocean was filed by the Opponent .  The Opponent also filed its affidavit of evidence and written argument wherein it reiterated the facts mentioned in its written version. The Complainant also filed its affidavit of evidence and written argument wherein it reiterated the facts in the complaint and denied the points raised by the Opponent in its written version.

19.  We have heard the Ld. Adv.for the Complainant  and the Opponent. We also perused all the papers submitted by both the parties and our findings are as follows.

The Complainant has taken a Smart Marine Insurance Open Policy bearing No MCO/I0192222/ 25/ 02/ M1251, from the Opponent. The sum insured is 1 crore.

Description of interest/ mark of number- On empty refrigerated container with accessories:-

Limits are        Rs.   5 lacs per conveyance.

                        Rs. 10 lacs per location (In the ordinary course of transit).

20.  As the Complainant has availed of the services of the Opponent  to idemnify the loss during the transit, the services were not for the earning profit but to place the complaint to its original position by reimbursing the loss sustained due to accident and thus the services are not meant for the commercial purpose.

21.  The Complainant specifically averred in para 3 of the complaint that it had furnished a list of containers to be dispatched with date of commencement etc. In this list at Sr. No. 4 the Complainant has mentioned the details of journey of damaged container CRLU 1617600- on vehicle HR 55 B 3417.We have carefully gone through the written version of the Opponent in respect of this averment .  The Opponent has replied to this para in its written version at para 13 that “Opponent deny that, at the time of transit or movement to JNPT the Complainant has no insurable interest in the said container and thus cannot claim any benefit under the policy”. Thus the Opponent has not denied that the Complainant has not dispatched the list of containers alongwith vehicles and other details to the Opponent. Even in the denial mode, Opponent has not thought as to what is denied by it. It has denied that Complainant has no insurable interest . Thus it is seen that this para is written without application of mind.

22.  It is established that the Complainant has obtained a policy to cover the empty refrigerated container with accessories anywhere in India and the amount insured per conveyance was Rs. 5 lacs and Rs.10 lacs per location. The container movement slip dtd.17.07.10 also confirms that container No. CRLU 1617600 was dispatched from seeking yard to Dadri on Truck No. HR 55 B 3417. The said truck alongwith the container met with an accident on 22.07.10. Copy of the police diary confirms the accident enroute from JNPT to Dadri in Rajasthan. The Complainant has informed the Opponent about the accident and the damage to the container.

23.  The Opponent has appointed a surveyor Trans Ocean Marine General Agencies. The surveyor has submitted his report  dtd.16.11.11.  In this report the surveyor has not come to the conclusion as to what is the value of the loss to the container.  He has only mentioned the list of the expense submitted by the M/S. APM Terminal in land services worth Rs 9,35,520.02 and on this amount he has also opined that it is only an estimate which is 25% towards higher side of actual damage. As per the Complainant the value of the S.I declared by him is Rs. 9 Lacs and the M/S. APM Terminal inland service has given the expenses worth Rs. 9,35,520.03. The surveyer  must have accessed  the actual loss sustained by the container. But it also remained silent on the assessment of loss. The basic obligation of the surveyor is to assess the loss. The surveyor has failed to assess the actual loss in his survey report.

24.  The limit of insurance per conveyance is 5 lac. The limit of  insurance per location is 10 lacs.

25.  In the claim form, exh. C-5 submitted by the Complainant. The details of loss mentioned is Rs 3,50,000. This certainly indicates that the loss claimed by the Complainant was Rs 3,50,000. But  the Complainant is claiming Rs. 9 lacs in the complaint.

26.  Though the Complainant has averred in its complaint that the Opponent has neither settled the claim nor repudiated the claim, it is not true. The Opponent vide its letter dtd.21.12.11 has repudiated the Complainants insurance claim on the following ground.

a)   As per the policy the insurance coverage is for “On empty refrigerated container with accessories. But the container was loaded with PVC bags at the time of accident. In this respect we have perused the policy in detail. Only the empty container is covered. However, the policy further stipulates other conditions, warranties, extensions and exclusions.” Warranted  that  the vehicle will not carry any load in excess of that which it is constructed to carry and in no case more than the legal requirement. This implies that the vehicle can carry the weight upto its limit for which it is constructed including the container plus other goods upto its capacity to propel as per legal limits. Therefore what is contemplated in the policy that only empty refrigerated container is insured under the Smart Marine Insurance Open Policy and not the goods contained in it and the Complainant has not claimed the loss of goods in the container. Therefore this ground of repudiation cited by the Opponent does not hold water.

b)   The other ground for repudiating the claim by the Opponent is “Breach of declaration clause, Insured has not declared all dispatches. The opponent has reproduced the declaration clause as follows:-

“the assured needs to ensure adequate free balance of premium for each and every consignment as per sec 64 V B of Insurance Act 1938. It is the condition of the policy that the assured / insured is bound to declare hereunder every consignment /  shipment which comes within scope of this policy without exception, the insurer underwriter being bound to accept the same upto, not exceeding the limits specified in the policy”.

In this respect we have seen carefully the policy document filed by the Opponent itself.  However we do not  see the above provision in respect of declaration clause anywhere in this document. Therefore without giving all the terms and conditions to the insured and then coming with those conditions at the time of settlement of the claim / actually at the time of repudiating the claim, amounts to unfair  trade practice. Therefore the above said ground given by the Opponent for repudiating the Complainants  claim is not a proper and just ground rejecting the claim of the Complainant.

c)   The Third ground advanced by the Opponent is insurable interest. It is the contention of the Opponent that the Complainant could not produce any  contract between the Complainant and the MICS to establish their insurable interest in the referred transit for the said container.

                          In this respect, as stated earlier, the Complainant has obtained the Smart Marine Insurance Open Policy from the Opponent to cover the loss during the transit. The Complainant is a transporter dealing in transporting various goods within India and has already stated, the conveyance was covered under the policy, as per terms and conditions provided by the Opponent  itself. The Complainant has declared the transit of the container  CRLU 1617600. The said container was damaged enroute in Rajasthan and the Complainant sustained loss. Therefore it is the obligation of the insurer to indemnify the loss sustained by the insured as the Complainant is the insured in the above said policy. Therefore the Complainant has insurable interest in the said container.

27.  In this written version of the Opponent in para 9, it has been alleged that the Complainant failed to declare 70 to 80 shipments dispatches. The undeclared dispatches amounts to 7.20 crores. The sum insured was only one crore. Hence the premium was inadequate. In support of this contention, the Opponent has attached Exhibit 2 i.e the message from Philip @ miscindia.com to yadneshwar pathak. This document is not supported by any affidavit or other cogent evidence. The Opponent has failed to explain from this document how the Complainant has failed to declare 70 to 80 dispatches. Again there is no specific  term or condition in the policy as claimed by the Opponent in para 25 (b) above. Therefore the contention of the Opponent in this regard does not hold water.

28.  The Opponent has also revised the point in its written version that the following documents show that the Complainant does not have insurable interest  in the alleged loss. The documents mentioned by the Opponent are    (i) Consignment No. 13174 dtd 19-7-10 issued by MG container Movers. But the Opponent has suppressed that  before 19-07-10, the Complainant had issued container movement slip dtd 17.07.10 showing the movement from seaking yard to Dadri.  At this point of time the container CRLU 1617600 was empty and thereafter on 19.7.10  M.G container movers issued consignment for transporting goods (175 bags of pvc) mentioning  consigner as BASF and M/s. Mose Baer Noida UP as consignee. Thus, the Complainant is the original entity which sent the container to MG container movers. The Agent MISC Agencies has informed the Complainant  vide its correspondence dtd 26.02.11 the loss to the tune of  Rs. 12,47,066 and further pointed out that the loss would be recovered  from the Complainant. Therefore this document certainly shows that the Complainant is the entity sustaining the ultimate loss.

29.  The letter filed by the Opponent itself, dtd 26.3.11 and written by ODC carrier to the Complainant stating specifically  “That your 1x40’ Refer container CRLU 1617600 was dispatched from Mumbai to Dadri on 18.07.10 through our lorry HR 55 B 3417 and the lorry owner has not taken any claim against accident.  It clearly shows that the loss was sustained by the Complainant it was the responsibility of the Complainant to bear the loss and Complainant is the insured in this complaint. It has taken policy to indemnify the said loss so these documents does not show that the Complainant is not having insurable interest in the loss. The Opponent has wrongly interpreted the documents to safeguard its interest. Therefore, the contention of the Opponent that the Complainant does not have the insurable interest does not hold water.

30.  So far as the quantum of the loss to the container CRLU 1617600, the surveyor has seen the container at premises of M/S seaking container terminal kunde wahal panvel on 29.10.10. The surveyor Trans Ocean Marine and General Survey Agencies received the repairing expenses submitted by M/S APM Terminal Inland services, equipment Maintenance and repair division Sangurli phata. The amount of these expenses were stated to be Rs. 9,35,520.02. However the surveyor has opined that these ratess are approximately 25% towards higher side. Therefore repair charges could have been 9,35,520 – 25% of 9,35,520. This amount can indemnify the loss sustained by the Complainant. The Complainant prayed for 9 lacs alongwith  12% interest. However an amount of Rs. 701640.00  as calculated  above (935520 – 25% of 935520) would be the proper and just amount which can indemnify the loss sustained by the Complainant.  An interest @ 9 % per annum on this amount from 22.10.10  i.e one month after submission of the claim by the Complainant to Opponent would be just and proper.

31.  The Complainant has also claimed compensation of Rs 1 lacs towards inconvenience Harassment etc. However, the Complainant being a firm i.e M/S Radha Roadway; Compensation towards this end would not be proper as the Complainant is not an individual.

32.  The Complainant is also entitled for the cost of Rs. 5,000 towards the legal expenses.

33.  In view of the above observation and findings, we pass the order as follows:-

                               ORDER

a)   Opponent is directed to reimburse an amount of Rs. 7,01,640.00 (Rs. Seven Lakhs One Thousand Six Hundred Fourty Only)  to the Complainant alongwith interest @ 9% p.a from 22.10.2010.

b)   Opponent is also directed to pay Rs. 5,000/- (Five Thousand Only) to the Complainant towards the cost of this complaint.

c)   Opponent is directed to comply with the above order within 30 days from the receipt of this order.

d)   Copies of this order be sent to the parties free of cost by registered post.

Place – Kokan Bhavan, Navi Mumbai.

Date – 03/09/2013.