JUSTICE A.P. SAHI, PRESIDENT 1. This is a complaint regarding an alleged deficiency in service on the part of the OP Insurance Co. that has repudiated the Marine Transit Claim which the Complainant had raised under a risk said to be covered under a Marine Open Cover (Cargo) Policy valid between 30.06.2008 to the midnight of 29.06.2009. The Complainant moved an application on 30.06.2008 for issuance of the said policy which is extracted herein under:- “To The Branch Manager National Insurance Company Ltd. Balasore Dear Sir, Sub: Overseas Marine Transit Insurance (Open Cover) This refers your mail vide which you have given the premium quotation for granting All Risks transit insurance with War and SRCC for our overseas transit policy. We are enclosing herewith Cheque no. 094709 dated 30.06.2008 amounting to Rs. 6,74,161/- drawn on HSBC Bank. Please issue the policy on following conditions: 1. From Any Port of the World to Any plant sites/Conversant sites / Tata Metaliks Plants in India. 2. Mode of Transit: Vessels/Road/Rail. 3. Packaging: Bulk. 4. Commodity: Coal, Coke and other Cargo. 5. Sum Insured: Rs. 200.00 Crores. 6. Single carrying limit: Rs. 50.00 Crores. 7. Excess: 1% of the consignment Value 8. Credit of this business may be given to the bearer of the Cheque-Mr. J.K.Shah, D.O. under Code 5001 On issuance of this policy, the earlier policy which is in force may be cancelled and the balance deposit premium may be refunded to us. Yours faithfully For Tata Metaliks Ltd (Subhasish Dey) Financial controller” 2. The policy which has been issued in response to the aforesaid request, namely, the Marine Open Cover Cargo Policy describes the mode of transit as vessel/road/rail and the journey indicated therein is from any port of the world to any warehouse/plant sites/ conversant sites of Tata Metaliks in India. The goods disclosed to be transhipped under the said policy are metallurgical coke, coal and other cargo. This Open Cover Marine Policy requires a declaration to be given in respect of any consignment or shipment with a notice that all conditions, clauses and warranties attached with the open cover would be applicable. Under the head of closing particulars, the policy requires a declaration to the company about the consignment immediately upon receipt of shipping documents. The premium payable thereon is to be against each marine certificate as stated or as per debit note. 3. In accordance with the said policy, a declaration was tendered by the Complainant Company on 26.07.2008 giving the details of the cargo for which the marine insurance was required, and is also subject matter of contest between the parties in the present complaint. The same recites the place of loading of coking coal weighing 50,000 MT @ USD 371 per MT to be loaded from Dalrymple Bay Coal Terminal, Australia to Paradip and Haldia Ports in India. These two ports and the details of the shipment and coverage are indicated to be transported on a vessel named M/V Royal Epic. It is against this marine insurance requirement that the premium was calculated and deposited and then a Bill of Lading for marine insurance was dispatched to the insurer dated 08.08.2008. The Marine Certificate indicates the ports of discharge of the consignment as Paradip and Halidia ports in India. Under the said Marine Open Cover Policy, the Marine Insurance Certificate was issued for the consignment in question in favour of the Complainant covering the risk which was effective from 26.07.2008. The same also notes the basis of valuation as CIF. The Certificate also specifies the journey from Dalrymple Bay Coal Terminal Queensland Australia to Paradip and Haldia ports in India. The description of the package was declared as 52653 MT of Moranbah Hard Coking Coal. The mode of transit in this Marine Insurance Certificate was again mentioned as vessel / road / rail. 4. A very important noting in this Marine Insurance Certificate is under the heading “Risk Covered” which mentions the applicability of Institute Cargo Clauses (A) including War and SRCC. 5. A copy of the ICC (A) Clauses has been appended alongwith the complaint where the duration Clause 8 has been mentioned and is extracted herein under:- “8.1 This insurance attaches from the time the goods leave the warehouse or place of storage at the place named herein for the commencement of the transit, continues during the ordinary course of transit and terminates either:- 8.1.1 on delivery to the Consignees' or other final warehouse or place of storage at the destination named herein, 8.1.2 on delivery to any other warehouse or place of storage, whether prior to or at the destination named herein, which the Assured elect to use either 8.1.2.1 for storage other than in the ordinary course of transit or 8.1.2.2 for allocation or distribution, or 8.1.3 on the expiry of 60 days after completion of discharge overside of the goods hereby insured from the oversea vessel at the final port of discharge, whichever shall first occur. 8.2 If, after discharge overside from the oversea vessel at the final port of discharge, but prior to termination of this insurance, the goods are to be forwarded to a destination other than that to which they are insured hereunder, this insurance, whilst remaining subject to termination as provided for above, shall not extend beyond the commencement of transit to such other destination. 8.3 This insurance shall remain in force (subject to termination as provided for above and to the provisions of Clause 9 below) during delay beyond the control of the Assured, any deviation, forced discharge, reshipment or transhipment and during any variation of the adventure arising from the exercise of a liberty granted to shipowners or charterers under the contract of affreightment.” 6. It is undisputed that part of the said consignment was discharged at Haldia and then the balance of the consignment proceeded which was discharged at Paradip Port that was stored on a plot of land near the jetty itself. The said consignment of coal was discharged and offloaded from the vessel between 21.08.2008 and 24.08.2008. According to the Complainant the quantity that landed at Paradip Port was 29705 MT. While stored there a cyclone occurred with heavy rains resulting in floods and inundation causing extensive loss to the cargo between 14.09.2008 to 18.09.2008. 7. The loss according to the Complainant was immediately informed on the 19th to the Insurance Company. The Insurance Co. in its turn appointed M/s SNM Consultants Pvt. Ltd. to conduct a survey that was carried out. The Complainant also stated that the consignment which had been offloaded at the Paradip port was in transit and some of it was further dispatched by rail to Gokulpur. A railway receipt has been brought on record to demonstrate the same. 8. The Surveyor submitted a report indicating the cause of loss and in the summary of assessment and remarks, it has been mentioned that the loss covered was without the purview of the policy. However, this was corrected later on by the letter dated 30.07.2010 intimating the company that there was an inadvertent error under the heading of Cause of Loss, and it should be read as that the loss is covered within the purview of the policy. The said letter further indicates that the loss caused to the stock of coking coal was due to the perils that is covered in the policy as such the loss was admissible. 9. The Claim Form was submitted by the Complainant alleging that there was a stock of 30000 MT of coking coal that was affected and at Sl. No. 25 of the Form while mentioning the full particulars of loss the indication is of an approximate loss of 7000 MT. This is also indicated under the heading Claim Bill which is dated 25.09.2008. 10. M/s SNM Consultants submitted their report dated 12.04.2010 which is on record. In the remarks column at Clause 3 (h) the Xerox copy of the railway receipt has been appended which indicates the dispatch of 3596.300 MT of coking coal from Paradip Port to the plant of the insured on 23.10.2008. 11. The Invoice of the shipment dated 11.08.2008 also mentions the port of discharge as Paradip and Haldia port. The Bill of Lading also mentions the port of discharge as Paradip and Haldia port. The Certificate of Sampling & Analysis by the Quality Testing Services in Australia at the time of dispatch also mentions the port of loading at Dalrymple Bay and port of discharge Paradip and Haldia. The Certificate of Weight also gives the same description. The Certificate of origin of the consignment from the consignor also mentions Paradip and Haldia port as the port of discharge. There is a column of Final Destination (if on carriage) which is blank. The Complainant has relied on the report of discharge of the cargo which is said to have been countersigned by the officer of the vessel, the consultants of the Complainant and the Custom Authorities indicating that the discharged quantity of cargo was 29705 MT. The shipment was received by Tata Metaliks which is another document indicating the discharge at Paradip Port which document in on record. 12. The assessment made by the Surveyor was however followed by another Surveyor M/s Apex Surveyor Pvt. Ltd. who was appointed by the Insurance Co. to investigate. They conducted their own survey and came to the conclusion, on some presumption, that the coverage was on warehouse to warehouse basis and the supply was on FOB terms. This investigation report is dated 21.02.2011. 13. After having considered the claim, it was repudiated by the Insurance Co. vide letter dated 17.10.2011 which is extracted herein under:- “To M/S TATA METALIKS LIMITED 10th Floor TATA Centre 43 Jawaharlal Nehru Road Kolkata-700071 RE: Your Marine Transit Claim no-163005/21/08/4390000004 for loss of coal stock at Paradeep Port under Policy no-163005/21/08/4370000003 This has reference to your transit claim under the captioned policy. After careful examination of all the documents submitted by your office, your claim stands repudiated for the following reasons: 1. Your organization had taken plot ATBK-1 at Paradeep port on lease and it was generally being utilized as a place of storage after discharge of cargo from the overseas vessel. This fact was not disclosed to the insurance company at the time of taking insurance. The reasons as to why the indenting for Railways wagons for transportation of the insured cargo was made after more than months of arrival of cargo could not be provided. The cargo could have very well been transported after completion of provisional assessment by the customs authorities on 28/08/2008. Since, B/E was filed under Test Bond, there was no restriction on dispatching the cargo. The information regarding the exact quantity of cargo being unloaded at Paradeep port was available on 24/08/2008 to all parties including the Customs Authorities. Why the Bill of Entry on balance 7705 MTS of cargo was filed after a gap of one month from discharge has not been explained. The delay in filing the final Bill of Entry and dispatching the cargo by the insured is avoidable in nature which is beyond ordinary course of transit in terms of Clause 8 of ICC. Further, the insurance terminated in terms of Clause 8 of ICC when you elected to store the consignment at the plot no ATBK-1 Paradeep port 2. Also, as per your declaration, cover was sought for shipment of 50000 MTS of coking coal from Darlymple Bay Coal Terminal, Queensland, Australia to Paradeep and Haldia Port and the Insurance Certificate no.163005/21/08/4370000003 was issued accordingly. Thus the cover under the subject policy had been terminated on delivery of the consignment at Paradeep (and/or Haldia) Due to the above circumstances, the claim does not seen to fall within the purview of the consideration for settlement and hence we are regretfully repudiating your above preferred claim as NO CLAIM.” 14. The Complainant represented against the same through their letter dated 24.02.2012 but vide letter dated 06.02.2013 it was informed that on consideration of the same and after having obtained the opinion of the Surveyor there is no change in their stand and the repudiation is maintained. 15. The Complainant also filed an affidavit of expert opinion of Mr. Ashok Kumar Paul who is an MSc in Geology and an Associate Member of Insurance Institute of India. 16. Learned counsel for the Complainant has also cited the Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations 2000 to contend that the Insurance Co. has committed violation of the said Regulations by appointing a second Surveyor-cum-Investigator and placing reliance on his assessment is erroneous as there was no reason available for appointment of either an Investigator or a second Surveyor. 17. Mr. Kunal Chatterji has also invited the attention of the Bench to Section 3 and Section 4 of the Marine Insurance Act to urge that the entire document of insurance including the Open Cover Policy together with the Marine Insurance Certificate should be read as a whole. Consequently the loss and damage caused was a risk covered under the policy as the goods were still in transit and the risk coverage had not terminated. He submits that an error has been committed by the OP in mentioning the applicability of the Clauses 8.1.1 and 8.1.2 for the termination of the risk coverage after the coal had been discharged at Paradip. The contention is that the consignment had not been discharged and was rather in transit part of which had already been dispatched by rail and the balance consignment was awaiting dispatch which was well within the 60 days of storage that was permissible under the ICC (A) Clauses. He accordingly submits that this policy is a somewhat a mixed coverage policy which also covers the risk of inland transit that was not excluded. 18. He further submits that the quantum assessed by the Surveyor-cum-Investigator is contrary to the weight of evidence on record inasmuch as the loss assessed is much below the actual loss hence the quantum has been wrongly calculated. The volumetric analysis is also erroneous and the quantity of coal that was subjected to loss and damage and was converted into a slurry was lying in the depressed area of the plot that has been wrongly left out while calculating. He submits that the place where the coal was stored on discharge was not an elected destination of the Complainant, and neither the place where the coal was kept was the final destination. The consignment was only stocked temporarily during transit. Consequently the said stoppage was only incidental to the voyage. The intention under the policy was also to cover the risk of War and SRCC which is bound to be a contingency of inland transit, hence these indications in the marine insurance cover established that the risk of inland transit was also covered including the haltage of the consignment at the port for its onward transmission by rail. 19. Learned counsel for the Complainant also urged that the second Investigator-cum Surveyor committed an error by proceeding to value and assess the loss as if the supply was on FOB terms. This was an absolutely wrong premise as the supply was on the basis of CIF valuation as mentioned in the Marine Insurance Certificate. 20. Countering all the said submissions Mr. Malhotra learned counsel for the Insurance Co. has urged that all these contentions which have been raised are bereft of the facts on records, incorrectly assuming as if the risk covered under the policy extended beyond the discharge of the coal at Paradip. He contends that none of the documents including the Declaration, the Marine Insurance Certificate, the Bill of Lading, the Origin Certificate of Consignment, the Weightage and Quality Certificates and the receipt issued by the Complainant clearly established that the consignment was received and finally discharged at Paradip and the risk coverage did not extend any further. He submits that in the absence of any other destination in the documents, the question of reading into the terms of the policy or rewriting it on the mere allegation of the Complainant is impermissible in law. He submits that there is no evidence to demonstrate that the Insurance Co. ever intended to cover any form of storage or inland transit as risk under the policy after its discharge in terms of the ICC (A) Clauses and hence the claim is absolutely unfounded. He submits that the claims that it is a mixed policy, or the mention of the word road or rail also covers such intention, is absolutely incorrect inasmuch as no further destination has been assigned either in the offer/proposal of the Complainant while declaring the journey of the consignment nor any of the documents of insurance in anyway demonstrate any future destination of the consignment or its continued storage after discharge. He submits that Clause 8.1.1 and 8.1.2 categorically hold this and leaves no room for doubt that once the goods have been discharged and received, which has actually been done in the present case, then in that event the storage of the coal after discharge which was neither in the Custom House or in the warehouse of the transporter, the same will be presumed to have been elected to be stored on the voluntary choice of the Complainant. This storage or onward journey does not find cover in the insurance risk certification. 21. Learned counsel submits that even on the quantity part, it is evident that the Complainant in the complaint has varied his claim which is not inconformity with the disclosure in the Claim Form and an exorbitant claim has been made for which there is no valid explanation. He submits that the quantum also has been misrepresented and thus neither on the terms of the policy nor on the basis of the claim made any amount was admissible. Hence, the Complainant has violated the terms of the policy and his claim is clearly barred by the terms of Clause 8 of ICC according to which the contract of the risk coverage stood terminated on the delivery of the consignment at Paradip. 22. Having considered the submissions made the moot question is as to whether Clause 8 of the ICC (A) as applied would terminate the policy after the consignment was discharged and received by the Complainant at Paradip. Learned counsel for both the parties have raised their submissions but they have extensively read two judgements cited at the Bar as that favouring them, namely, New India Assurance Co. Ltd. Vs. Hira Lal Ramesh Chand & Ors. (2008) 10 SCC 626, paragraph 15 to 22 and the judgement in the case of Bajaj Allianz General Insurance Co. Ltd. & Anr. Vs. State of Madhya Pradesh (2020) 18 SCC 376 paragraph 16, 19, 21, 25, 27, 28 and 35. 23. As to the meaning of the word ordinary course of transit, the judgement in the case of Bajaj Allianz Insurance Co. deserves mentions. The said judgement takes into consideration as to how insurance policies have to be considered. Paragraph 16 is reproduced herein under for convenience:- “16. The provisions of an insurance contract must be imparted a reasonable business-like meaning bearing in mind the intention conveyed by the words used in the policy document. Insurance policies should be construed according to the principles of construction generally applicable to commercial and consumer contracts. The court must interpret the words in which the contract is expressed by the parties and not embark upon making a new contract for the parties. A reasonable construction must therefore be given to each clause in order to give effect to the plain and obvious intention of the parties as ascertainable from the whole instrument. The liability of the insurer cannot extend to more than what is covered by the insurance policy. In order to determine whether the claim falls within the limits specified by the policy, it is necessary to define exactly what the policy covered and to identify the occurrence of a stated event or the accident prior to the expiry of the policy. Hence, while considering the rival submissions, it is necessary to preface our analysis with the provisions of the policy.” 24. In paragraph 21 to 27, the Court has discussed several cases of India and abroad to explain the expression ‘ordinary course of transit’ and has also considered the ICC Clauses. In the said case, the transshipment of a helicopter from Langley, Canada to Bhopal, India was an issue under the Transit Marine Insurance Policy. The helicopter arrived at Delhi where it was shifted to a hangar and on inspection of the representative of the manufacturer, the window of the crew door was found to be damaged. A request to the Director General of Civil Aviation to fly the helicopter in the same condition was denied and therefore the said helicopter was stationed at the hangar of Indamer Co. located at Delhi for being assembled to enable it to fly from Delhi to Bhopal. 25. The claim of the said damage became subject matter of the insurance claim as there was some damage also reported with regard to the tail boom that had occurred at the IGI Airport Delhi. The Insurance company denied any liability of the damage on account of the fact that the same did not fall under the purview of the policy and consequently a complaint was filed before the SCDRC. The SCDRC held that the stationing at Delhi before delivery at the final station was a transit halt which did not change the nature of the cargo. Since there was a dispute with regard to compensation, both parties filed appeals before the NCDRC and the order of the State Commission was maintained upholding that there was deficiency in service on the part of the insurance company in repudiating the claim. The matter reached the Apex Court and it is in that context the Apex Court came to examine as to whether such break in transport/transit in cargo was incidental to such transport or was a matter of convenience. It is in the said context para 28 of the said judgement is extracted to construe the ratio of the said pronouncement: 28. In context of the policy, the words "in transit" do not require transportation of the consignment in a single trip from the commencement to the final destination but includes those interruptions in motion that are incidental to or in furtherance of the conveyance or transportation of the consignment. The words of the policy ought to be construed so as to conform to the usual and ordinary method of pursuing the venture or operation. The question of what does and does not constitute a deviation in furtherance of the conveyance of the goods is a question of fact that must be determined by both the intent of the policy and the actions of the parties. An action that is wholly unrelated to the usual or ordinary method of pursuing the transportation of goods would prevent the goods from being covered under the definition of the expression "in transit" under the policy. Words used in the policy must be construed in their commercial setting having regard to the purpose of the policy. 26. It was also held in para 35 as follows:- “The purpose of the marine transit insurance policy is to cover the consignment from risks associated with transportation of the consignment from one place to another. It is fundamental for those responsible for carrying e the cargo to ensure that all stages of the transportation are effected with reasonable promptness. "In transit", however, does not necessarily mean that the consignment needs to be in continuous motion at all times. A mere brief suspension must however be in furtherance of the ordinary course of transit. During the ordinary course of transit, the consignment might frequently come to rest or be temporarily stored in the dock awaiting loading or customs clearance. However, unduly protracted steps in the cargo's transportation are not within, and may terminate, the "ordinary course of transit". In the present case, the insured voluntarily decided to store the helicopter in the hangar at New Delhi out of commercial convenience and not in furtherance of the transit. In addition, the insured by assembling the knocked down helicopter for the purposes of flying it to Bhopal changed the nature of the consignment and exposed the appellant to operational risks beyond the scope of the policy.” 27. Finally, in para 42 it was observed as under:- “For the respondent to prove its case, a mere assertion that the loss incurred during the course of transit is not sufficient. The burden of proof lies on the respondent to show that the loss incurred was covered within the terms of the policy and that on a balance of probabilities there existed a proximate cause between the loss incurred and the helicopter being in transit. The respondent has adduced no evidence to supports its case.” 28. The appeal filed by the insurance company was allowed and the orders of the State Commission and National Commission were set aside holding that the character of the risk insured under the policy did not envisage the stay and reassembling of the helicopter which was not a cargo transit. It was also held that the said assembly and repairs was not in the ordinary course of transit rather the subject matter which had been insured was a helicopter in a packaged knocked down condition. Consequently the act of assembling the helicopter or transporting the packaged knocked down helicopter to Bhopal by road was not in the ordinary course of transit. 29. In order to apply the aforesaid principle on the facts of the present case, what would have to be seen is the nature of the risk covered under the policy. On a perusal of all the documents that have been referred to above, it is evident that the place and point of discharge of the consignment in all the documents is only for being discharged at Haldia and Paradip ports. There is no other destination or final destination mentioned or endorsed either in the Declaration of the Complainant or in the consequential Marine Certificate issued by the Insurance Co. There is no endorsement of any further inland transit or transit by rail after discharge at the Port. The Declaration is from the port in Australia to the ports of Haldia and Paradip in India. Neither in the Bill of Lading or any of the documents is there any indication that the coverage of the risk would be also for forward transit to any other place and thus the contention of the Complainant that it was a mixed policy and hence a holistic view should be taken, deserves rejection. For this one has to now discuss the judgement in the case of New India Assurance (supra) wherein paragraphs 15 to 25, the following observations have been made: 15. MacGillivray on Insurance Law elucidates the principles which govern the interpretation of insurance contracts: "11-007 It is an accepted canon of construction that a commercial document, such as an insurance policy, should be construed in accordance with sound commercial principles and good business sense, so that its provisions receive fair and sensible application. Several consequences flow from this principle… 11-008 It follows that in interpreting any clause of a policy, it is correct to bear in mind: (1) the commercial object or purpose of the contract; and (2) the purpose or function of the clause and its apparent relation to the contract as a whole...." 16. The provisions of an insurance contract must be imparted a reasonable business-like meaning bearing in mind the intention conveyed by the words used in the policy document. Insurance policies should be construed according to the principles of construction generally applicable to commercial and consumer contracts. The court must interpret the words in which the contract is expressed by the parties and not embark upon making a new contract for the parties. A reasonable construction must therefore be given to each clause in order to give effect to the plain and obvious intention of the parties as ascertainable from the whole instrument. The liability of the insurer cannot extend to more than what is covered by the insurance policy. In order to determine whether the claim falls within the limits specified by the policy, it is necessary to define exactly what the policy covered and to identify the occurrence of a stated event or the accident prior to the expiry of the policy. Hence, while considering the rival submissions, it is necessary to preface our analysis with the provisions of the policy. 17. Clause 5 of ICC provides thus: "5.1. This insurance attaches from the time the subject-matter insured leaves the warehouse, premises or place of storage at the place named herein for the commencement of the transit, continues during the ordinary course of transit and terminates either- 5.1.1. On delivery to the consignees' or other final warehouse, premises or place of storage at the destination named herein. 5.1.2. On delivery to any other warehouse, premises or place of storage, whether prior to or at the destination named herein, which the assured elect to use either- 5.1.2.1. for storage other than in the ordinary course of transit or 5.1.2.2. for allocation or distribution or 5.1.3. On the expiry of 30 days after unloading the subject-matter insured from the aircraft at the final place of discharge, whichever shall first occur." 18. The insurance cover in the present case is expressed in terms of the voyage itself. The above clause provides that the duration of the policy attached and commenced from the time the insured cargo left the warehouse, premises or place of storage at the place named in the policy and continued during the "ordinary course of transit". So far as the termination of the transit is concerned three alternate events are put forward in Clause 5: (i) Under Clause 5.1.1, insurance terminates "on delivery" of the cargo "to the consignees or other final warehouse or place of storage at the destination named" in the policy; (ii) Under Clause 5.1.2, the alternative place of delivery is to "any other warehouse, premises or place of storage whether prior to or at the destination named herein" which the assured chooses to use for one of two purposes, namely (a) either for storage other than in the ordinary course of transit or (b) for allocation or distribution of the cargo; and (iii) Clause 5.1.3 prescribes a period of thirty days after unloading of the insured cargo from the aircraft at the final place of discharge. If that event first occurs, the question of delivery to any warehouse or place of storage becomes redundant. Even though in Clause 5.1.1 the choice of final warehouse is restricted to the destination named therein, by virtue of Clause 5.1.2, it is possible that the policy terminates upon delivery to some other final warehouse or place of storage as chosen by the assured. Under Clause 5.1.1. the delivery of the subject-matter at the warehouse, premises or place of storage at the named destination also constitutes the termination of the insurance. Clause 5.1.2 provides for situations where the policy terminates upon delivery of the goods at any other warehouse, premises or place of storage prior to or at the destination named in the policy which is elected by the insurer for the purpose indicated in Clause 5.1.2.1 or Clause 5.1.2.2. 19. The expression "in the ordinary course of transit" mentioned in Clause 5 of ICC cannot be divorced from the context and must be read along with the other conditions which appear in the policy document. The meaning of the expression "in the ordinary course of transit" depends on the context, object and the wording of the particular policy. P. Ramanatha Aiyar's Law Lexicon defines the expression "ordinary": "Regular; usual: normal; common; often recurring: according to established order; settled; customary: reasonable; not characterised by peculiar or unusual circumstances: belonging to, exercised by, or characteristic of, the normal or average individual." The same Law Lexicon, relying on an 1888 decision of the Queen's Bench Division in Bethell & Co. v. Clark & Co., defines the expression "transit" as: "The term "transit" does not mean that the goods must be actually moving at the relevant time: they must, however, be still in possession of the carrier." Black's Law Dictionary12 defines the expression "transit" as: "1. The transportation of goods or persons from one place to another. 2. Passage; the act of passing." 20. Precedents across various jurisdictions have dealt with the meaning of the expression "in transit" and "in the ordinary course of transit", In SCA (Freight) Ltd. v. Gibson 13 ("Gibson"), the plaintiff who agreed to carry a consignment of books from Rome to Manchester purchased from the defendant a policy against liability for damage to goods in transit. Instead of proceeding to England, the plaintiff decided to take the loaded lorry on a trip to the centre of Rome. On the way, the lorry overturned, and the consignment of books suffered damage. The plaintiffs claimed indemnity under the policy on the ground that when the accident occurred, the books were still in transit. While interpreting the meaning of the expression goods "in transit", Ackner, J., speaking for the Queen's Bench Division (Commercial Court) held thus: "Goods cease to be in transit when they are on a journey which is not in furtherance of their carriage to their ultimate destination. Obviously a detour which is reasonably necessary to enable a driver to obtain food or rest would be in furtherance of the safe and expeditious carriage of the goods to their final destination. It would be an ordinary incident in the transit of goods by the plaintiff's vehicles. It is a question of degree, as to what is or not in reasonable furtherance of the carriage of the goods. A deviation which is wholly unrelated to the usual and ordinary method of pursuing the adventure would prevent the goods being "in transit" within the meaning of the policy." (emphasis supplied) 21. In Wiggins Teape Australia Pty. Ltd. v. Baltica Insurance Co. Ltd. ("Wiggins Teape"), the plaintiff shipped a quantity of wood pulp from Sweden to Port Kembla. The destination of the wood pulp, as specified in the policy of marine insurance, was the plaintiff's place of business at Bomaderry in New South Wales. After the wood pulp was unloaded at the Port, the plaintiff had stored the consignment in three other stores because of insufficient storage space at Bomaderry. About thirty-eight days after the wood pulp had been unloaded, the wood pulp in one of the stores was destroyed by fire. The plaintiff claimed under the policy on the ground that the risk of fire at the store where the fire took place was still covered by the policy, as the wood pulp had not reached its final destination but was still in transit. Macfarlan, J., speaking for the New South Wales Supreme Court held thus: “…the purpose of a warehouse-to-warehouse clause is to insure during a limited land movement, but, as far as I am aware, it has never been suggested it is intended to cover indefinite storage at some place not brought about by the requirements of transport, but determined by the voluntary decision of the consignee. In my opinion the facts of this case prove that the Unanderra store was something more than a mere transit store and that when goods entered it, it was for an indefinite duration. I am also of the opinion that in the present case transit had ceased and that unless there were an express provision in the policy, the cover ceases. For this purpose, it does not matter whether the store at Unanderra was a final warehouse or a transit store..." (emphasis supplied) 22. In First American Artificial Flowers Inc. v. AFIA Worldwide Insurance15 ("First American Artificial Flowers"), the New York Supreme Court was called upon to determine whether coverage existed, in a warehouse-to-warehouse clause, during the ordinary course of transit until delivery to the consignee's or other final warehouse or place of storage at the destination named in the policy. A consignment of artificial plastic flowers had been a shipped from Hong Kong to New York. Upon the arrival of the shipment in New York, the container loaded with flower was trucked to the consignee's warehouse and the activity of unloading the trailer commenced. The container was not unloaded completely by the end of the day and when the workers arrived the next morning, the goods were found to be stolen. The shipper of the flowers sued its underwriters on the ground that the transit policy of insurance required delivery into the warehouse of the consignee and since that event had not occurred, the loss was covered under the insurance policy. The Court held thus: "[T]he Court is of the opinion that by opening the sealed container and removing some of the contents thereof, the insured accepted delivery outside of the warehouse and terminated the coverage. Once plaintiff accepted the goods, it was free to commence unloading and continue with that work until the job was completed. It was also free to leave some of the goods on the truck until it was more convenient to unload- but at its own risk. The plaintiff could not 'extend indefinitely the duration of defendant's policy risk after the goods were at the destination." (emphasis supplied) 23. In Lumber & Wood Products Inc. v. New Hampshire Insurance Co., the United the to the decision in First American Artificial Flowers and observed thus: "The Court in First American's relied upon, among other cases. Boonton Handbag Co. v. Home Insurance Co.17, a similar case which also held that the arrival of the truck at the consignee's warehouse was sufficient to terminate transit coverage under the policy. The guiding precept behind both of these cases is that a transit policy of insurance should not be stretched or tortured to provide coverage for losses which take place after delivery at the consignee's facility. In those circumstances where it is simply more convenient for the consignee to allow the cargo to be stored outside its warehouse, the shipper cannot indefinitely avail himself of the coverage because the cargo is allegedly "in transit". Once the final destination has been reached, transit has ceased. Consequently, the coverage must also cease." (emphasis supplied) 24. In Verna Trading Pty. Ltd. v. New India Assurance Co. Ltd. ("Verna") the Supreme Court of Victoria (Appeal Division) dealt with whether the storage of goods by the consignees at a warehouse for the purpose of commercial convenience was storage other than in the ordinary course of transit. The plaintiff had purchased a policy of marine insurance for covering the transportation of goods from Hong Kong to Australia. After the shipment arrived in Melbourne, the goods were transferred to a storage area, awaiting customs clearance. After clearing all dues, the plaintiff made a deliberate decision to retain the goods in the storage area until they were able to accept delivery of the goods from their customers and transfer the goods to another warehouse. After the container was transferred, the goods were found to be missing. The plaintiff lodged a claim alleging that the goods while in the storage area were in transit and the alleged theft would be covered by the policy. Beach, J. referred to the decision in Wiggins Teape and held thus: "... once the decision was made by Verna to leave the cassettes in Strang's Triangle until such time as they were able to accept delivery of them into the Multi-Group warehouse, the cassettes ceased to be in transit. The storage of the cassettes in the triangle had nothing to do with the requirements of transportation. They were left there as a matter of convenience until such time as they could be taken to their final destination. In that situation, once the decision was made to leave them in the triangle, the insurance terminated. It must also follow from Verna's actions in that regard that it did not act with reasonable dispatch insofar as delivery of the cassettes to their final destination was concerned." (emphasis supplied) 25. Kaye, J. in his concurring opinion discussed the meaning of the expression "in transit" and held thus: "... While the expression "in transit" is not a term of art, its intended meaning may become apparent from the context in which it is used: cf. Peter Jackson Pty. Ltd. v. Consolidated Insurance of Australia Ltd. VR p. 799. In the present case the meaning of the phrase "during the ordinary course of transit" is indicated by the purpose of the warehouse-to-warehouse clauses forming part of the marine policy. The voyage policy component of the policy covered the risk of loss and damage while the goods were in the course of carriage from Hong Kong to Melbourne. Upon the discharge of the goods from the ship, the voyage cover ceased. The purpose of the warehouse to warehouse CL81, insofar as it related to the goods after discharge from the ship, was to provide for the continuation of insurance whilst the goods were being carried by land to the final destination. This was during transit. But that period was limited to the time during which the goods were in the ordinary course of transit. The period of the ordinary course of transit continued during periods or intervals which were in reasonable furtherance of the carriage of the goods to the final destination: cf. SCA (Freight) Ltd. v. Gibson 13, Lloyd's Rep at p. 535 per Ackner, J. (as his Lordship then was). Implicit in the phrase "during the ordinary course of transit" was recognition and acceptance that the movement of the insured goods by land might be interrupted by circumstances associated with the requirements of their transportation." (emphasis supplied)” 30. The said paragraphs clearly hold that firstly the terms of the policy have to be understood in the light of the Declaration made and the policy issued. In order to gather the true construction of the intention of the policy, the form of Declaration is also an essential part of the entire transaction. The wording of the policy and the interpretation of Clause 8 of ICC (A) have been dealt with in the said judgement and it has been held that the ICC Clauses would govern the policy subject to its terms. On a reading of the same, it is evident on the facts of the present case that the documents categorically indicate a transit from the Dalrymple port in Australia to the ports of Haldia and Paradip in India. It is port to port. In the absence of any other recital of any other destination or final destination or inland warhouse, the contention of the learned counsel for the Complainant that inland transit and railway transit should also be inferred cannot be accepted. The mentioning of the words rail or road is only with regard to the mode of transport in the Open Cover Policy for which options are given but in the present case, no option of transport either by rail or road has either been indicated in the Declaration or in the Marine Insurance Certificate to any place onward Paradip. If the goods were dispatched by rail to Gokulpur as urged by the learned counsel for the Complainant then the said transit does not find coverage of any risk under the policy, read with the declaration of the Complainant and the Marine Insurance Certificate. 31. Learned Counsel for the Complainant has submitted also brief written notes of arguments where two questions which deserve mention have been framed as follows:- “a. Whether the risks were covered under the policy are as per ICC (A) till it reaches it Wearhouse in Gokulpur after its discharge from vessel in Paradip b. Warehouse to Warehouse / Marine Extra Insurance Policy extends beyond the discharge of consignment at the Port.” The aforesaid two questions presume that the policy is from warehouse to warehouse. Learned Counsel for the Insurance Co. Mr. Malhotra contends that there is no such recital in any of the documents of covering the risk from warehouse to warehouse. He, however, submits that such a coverage can be obtained but on the facts of the present case no such declaration was made nor any such coverage was sought. An intent for covering risks beyond the delivery at the port is nowhere envisaged in the present case. 32. The written arguments of the Complainant further emphasizes that the storage other than in the ordinary course of transit or for allocation or distribution is also covered. This argument cannot be accepted as the coverage terminated the moment the consignment was delivered to the Complainant. The delivery is at the destination mentioned in the declaration as well as the policy. There is a delivery receipts evidencing the same. Thus the arguments advanced by the Counsel for the Complainant cannot be accepted. 33. Learned Counsel has also relied on certain paras of Halsbury’s Laws of England to urge that the transit clause is to be read alongwith the Open Maine Cargo Coverage Policy. He has submitted that all risks stood covered and therefore applying the principles as indicated in respect of voyage policies, the present offloading of the coal at Paradip should be construed as part of the journey in terms of the policy. This cannot be accepted as the very same authority in paragraph 299 indicates that the port of discharge, which is a particular port named in the policy is recited and which calls for no ambiguity. The said principles, therefore, do not come to the aid of the Complainant. A journey is a passage or a travel from place to another, and is between two points. It is a distance which can be defined, and in this case it was a voyage from Dalrymple port Australia to Paradip and Haldia ports in India only and not beyond, certainly not from warehouse to any warehouse in India. 33. Another authority relied on by the Learned Counsel for the Complainant is Law of Marine Insurance and Coverage by Arnould. Learned Counsel has relied on the said authority in order to support his submissions to urge that the termination is not complete only on offloading and the policy clearly intended to cover the risk upto the final destination of the consignment. The said authority also mentions that a transit beyond the destination to which the goods are insured can at times be judged in the context of the entire transit. It is not the case of the Insurance Co. that such a policy cannot be extended. To the contrary, the case is that the declaration opts for a port destination, there is no occasion to rewrite the said clause intending the final destination to be somewhere else or any other warehouse. The argument of the Learned Counsel for the Insurance Co. appears to be correct as the documents which have been analyzed cannot be interpreted to extend the coverage of the policy as urged by the Learned Counsel for the Complainant. 34. The contention of the Learned Counsel is that as per the provisions of Section 3 & Section 4 of the Marine Insurance Act, a holistic view has to be taken to construe the Marine Open Cargo Policy governing the Marine Insurance Certificate which encompasses the inland transit risk coverage as well. Such a policy, admittedly is permissible and the authority to issue such a policy is admitted by Mr. Malhotra by he rightly contends that the declaration by the Complainant and the consequential Marine Insurance Certificate nowhere intend or depict the same. Consequently, this argument is accordingly rejected. 35. Now coming to Clause 8 of the ICC Clauses referred to above the contention raised on behalf of the Insurance Co. has to be accepted inasmuch as according to the said Clause if the consignment has been discharged at the port mentioned in the documents then the risk coverage clearly terminates. The contention of the learned counsel for the Complainant that they had not elected to store it at Paradip is also a fallacious argument inasmuch as even if they had not elected to store it they have certainly received the consignment at Paradip and on receipt thereof, the same is the destination which was clearly understood under the documents of risk coverage read with the ICC (A) Clause 8. Once the coal was discharged and received then thereafter any storage or its transit further was not covered under the risk. It was clearly understood under the ICC Clause (A), which was applicable in the present controversy, that once the goods have been received and the vessel has discharged the goods any risk coverage ceases to exist. It is not the case of the Complainant that the loss was suffered during transit on vessel or during its discharge at the port. The loss has occurred almost several days after the goods were offloaded and were lying on a plot of land which was being used by the Complainant for storing its coal. The said place does not belong either to the Custom department or to the shipping agency. Consequently the question of its storage of 60 days or less than that is also not in issue. 36. In the above circumstances and applying the law as referred to hereinabove, the complaint has no merits and is accordingly rejected. | 
