Per Shri Shashikant A. Kulkarni, Hon’ble Presiding Judicial Member
1. This consumer complaint is within meaning of Consumer Protection Act, 1986 (‘the CP Act’ in short).
2. Complainant is a company duly incorporated, so also the opponent/Insurance Company is duly incorporated under the Companies Act, 1956 (‘Companies Act’ in short).
Complainant is a consumer within meaning of Section 2(1)(d) of the Act. Complainant is a manufacturer specialized in manufacturing Polymer, FDY, PTY and Dope dyed yarn. Complainant has purchased the insurance policy from the opponent for the purpose of insuring the goods against the risk of loss and/or damage while in transit. The Marine Insurance Policy bearing No.MO-0007265-000-00 was issued on 01/04/2010 subsisting during the period 01/04/2010 to 31/03/2011. Payment of premium was Rs.4,41,200.50. The said policy is a ‘Marine Cargo Open Policy’.
3. As per the policy, the insured is required to inform the Insurer to extend the insurance cover to a particular consignment of a specific value to cover the risk involved whilst the insured goods are in transit from one point to final destination. It was mandatory for the complainant to get the Consignment Note before exporting any product. On 30/08/2010 the opponent issued Consignment Note in respect of the goods to be sent to EI Dekhela, Egypt.
After verifying the papers, opponent issued consignment receipts for 736 Cartons of 100% Polyester Udyed Filament Yarn, 75/36 Semi Dull Raw While having gross weight of 28,587.76 kg. The insurance cover was to the extent of Rs.23,65,184.47. The goods were insured from Nhava Sheva, India to EI Dekhela, Egypt by Sea/Road/Rail/Air.
4. It is alleged that the consignment was loaded on 23/09/2010. EI Dekhela was a dry dock, therefore, the complainant unloaded the consignment at EI Sokhna. From EI Sokhna the said consignment was transported by road to EI Dekhela.
5. On 07/10/2010 during the transit the goods were stolen. On 12/10/2010 the complainant immediately informed the opponent and lodged the claim as per terms and conditions of the policy. The opponent appointed Surveyor. Survey Report was not made available to the complainant. The complainant persuaded the matter before the opponent for claim for damages. As per policy terms and conditions, complainant was entitled to claim Rs.26,02,000/-. Even after requisite documentation, by letters dated 10/05/2011 and 06/07/2011, opponent/Insurance Company repudiated the claim of the complainant. The complainant states that grounds for repudiation are not justifiable. The opponent was knowing that EI Dekhela is a dry port. The vessels are required to be unloaded at EI Sokhna. The consignment was required to be transported by road. Insurance cover was upto EI Dekhela Port. Therefore, opponent is liable to make the loss good under the terms of contract. The complainant, therefore, prayed that the opponent be held guilty of deficiency in service and unfair trade practice and prayed to direct the opponent to pay compensation with interest.
6. The opponent filed written version to deny the allegations generally contained in the complaint. Opponent denied that EI Dekhela is a dry port. Consignment was dispatched at another Port. The transit terminated on arrival of the vessel at EI Sokhna Port. The transit thereafter is not covered. The claim is beyond the terms of the policy, therefore, not payable.
7. The insurance cover under the relevant certificate did not cover the risk against the port of discharge being changed. In any event further transportation by road was not covered. The claim was rightly repudiated. The opponent is not guilty of deficiency in service.
8. It is relevant to note that the consignment was loaded on 21/09/2010 under the Bill of Lading issued by sea carrier/APL which reached safely at another port EI Sokhna and discharged on 06/10/2010. The transportation after arrival of the vessel under the Marine Insurance Policy is not covered. The transit/Voyage was terminated on the arrival of vessel of APL ‘Shenzhen’ at EI Sokhna Port.
9. Under the Marine Insurance Policy, it is obligatory on the part of the insured to immediately contact the Surveyor of the underwriter. The complainant took six months to intimate the claim. The complainant is therefore guilty of gross latches on its part. In all fairness opponent requested the complainant to furnish documents since liability of the opponent ceased at the arrival of the vessel at EI Sokhna. The loss might have occurred, but would not be recoverable was conveyed to the complainant’s foreign buyer who in tern intimated to the complainant by email. Said foreign buyer requested the complainant to recover the insurance claim, therefore, complaint is hit by the principle of Champerty/maintenance. It is also clear that right, title and interest in the goods has passed to the foreign buyer and complainant had received the consideration, as such he did not suffer any loss. It is totally false to allege that opponent was informed on 12/10/2010 itself about the loss. The complaint is therefore liable to be dismissed.
10. The complainant relied on the relevant document such as Board Resolution, Power of Attorney, Receipt of premium, Policy document, Consignment Receipt, Bill of Lading, etc. and the supportive affidavit in lieu of evidence of the complainant-Mr.Jugal Madan, complainant’s authorized person.
Opponent has relied mostly on same set of papers and undisputed papers and has also submitted affidavit in lieu of evidence of Pallavi Sunil Rathod, Deputy Manager of opponent/Insurance Company. We have perused the record and proceeding. We heard Learned Advocate Mr.S.B. Prabhawalkar for the complainant and Learned Advocate Mr.S.R. singh for the opponent at length. We also perused the brief notes of arguments filed by Advocates for both parties.
11. A core question is whether in the circumstances deficiency in service as alleged is proved to award compensation?
12. Attracting to the Cover Note of the Insurance Company, Learned Advocate Mr.Prabhawalkar argued and submitted that, mode of transit is mentioned as ‘Sea/Road/Rail/Air’ whereas voyage transit from Nhava Sheva, India to EI Dekhela, Egypt makes it position clear that consignment was insured till reach final destination by whatever mode of transport because voyage was terminated at EI Sokhna Port, since EI Dekhela Port is reported to be dry port, the complainant was constrained to transport the consignment by road through trucks.
13. The arguments seem to be attractive, but not convincing as the same did not affirm the standard of practice, precedents and rules relating to the marine insurances. It would be easy for any consignor to report loss after consignment reached the destination point. The alleged loss or damage post termination of the contract of indemnity ends at the destination.
There is absolutely no convincing evidence that, the complainant was required to unload the goods/consignment at EI Sokhna Port because EI Dekhela Port was reported to be dry port.
14. An initial burden to prove actual loss by theft and complainant’s compulsion to unload the consignment at EI Sokhna Port because of dry port-EI Dekhela lies on the complainant. Except oral statement on affidavit, there is absolutely no evidence that EI Dekhela Port was dry port and theft occurred during transit by road.
Even the theft occurred when consignment was carried by road through truck, the consignee has undertaken responsibility of covering risk under Invoice No.1067/2010-2011 CIF (Cost, Insurance & Freight) coverage by the consignee. Since Invoice was obtained on behalf of the consignee for US $46,180.64 insurance coverage, complainant is non-suited for insurance cover.
In any event, it is difficult to believe oral statement of the complainant that loss occurred during the transit of entire consignment and also that complainant informed after five days i.e. within reasonable period to the opponent/Insurance Company and that the cover was extended beyond the port destination. In fact the consignment did not reach port destination through marine route. Marine route terminated as soon as consignment was unloaded at EI Sokhna Port. The risk ended there only. Even if it is assumed that after five days on 12/10/2010 opponent was informed about loss, it is too late as far as loss by theft is concerned.
15. The complainant relied on the judgment of the Apex Court in the case of Silversons V/s. Oriental Insurance Co. Ltd. , (2012) 12 SCC-522 in respect of claim having not been presented within reasonable period. Reasonable period is to be decided or counted in terms of 24 hrs. or 48 hrs. or 72 hrs. in such marine insurances claims. Otherwise, activities of marine insurances will be standstill if such period is extended for weeks or months. In so far as present case is concerned, complainant needed to give information promptly about the loss within five hours and not after five days, if not five months.
16. For the reasons stated above, we are of the view that complainant is not entitled for any claim in respect of deficiency of service. Hence, we pass the following :-
-: ORDER :-
1. The complaint stands dismissed.
2. In the circumstances, parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 10th February 2015.
