1.      Heard Mr. Govind Jee, Advocate, for the complainant and Mr. S.M. Tripathi, Advocate, for the opposite party.

2.      Renaissance RTW (Asia) (P) Ltd. has filed above complaint for directing the opposite party to pay (i) US$ 166620.19/- along with interest @18% per annum from the date of the claim till the date of actual payment, as insurance claim (ii) Rs.one crore, as compensation for business loss, (iii) cost of litigation and (iv) any other relief, which is deemed fit and proper in the circumstances of the case.

3.      The facts as stated in the complaint and emerged from the documents attached with it are as follows:- 

(a)     The complainant was a private limited company, registered under Indian Companies Act, 1956 and engaged in business of manufacture and export of the garments. The complainant entered into a contract with M/s. Fitzroy Sales Inc. USA, acting on behalf of M/s. Army and Air Force Exchange Services, USA, for export of the garments, including T. Shirts, Polo for women, men and children. As per terms and contracts, the US Company had to place purchase orders periodically in accordance with which the complainant had to effect delivery as and when required. The contract envisaged that the complainant would be responsible for international freight, domestic freight in USA and import duty.

(b)     The complainant took Marine Cargo Open Policy-All i.e. Policy No. MO-0007359-000-02 from M/s. Cholamandalam MS General Insurance Company Ltd. (the opposite party) for the period of 07.04.2012 to 06.04.2013, with additional 30 days coverage, for insurance coverage of Rs.150/- crores. The policy inculcates the Institute Cargo Clauses (A), being applicable. The terms of the insurance policy was that the coverage would extend till the vendor takes physical possession of goods at the point of delivery, being warehouse in New Jersey.

(c)     In pursuance of the purchase orders from M/s. Fitzroy Sales Inc. USA, the complainant exported 50526 garments vide Invoice Nos. RTW/077/12-13 dated 01.06.2012, RTW/163/12-13 dated 01.08.2012 and RTW/189/12-13 dated 20.09.2012. The consignments were sent through vessel from Colombo to New York NY, where it was safely unloaded and stored in a bonded warehouse of M/s. Empire Warehousing and Distribution Inc., 5 Empire Boulevard in Carlstadt, New Jersey, with whom the complainant had a contract of storage.

(d)     On 29/30.10.2012, a severe storm, named as “Hurricane Sandy” hit the shores of North America, in particular New Jersey and wrecked considerable damage. The garments worth US$ 166620.19 were severely damaged due to wetting in water at the warehouse. The complainant informed the Insurer about the loss and submitted insurance claim. The Insurer referred the claim to W.K. Webster (Overseas) Ltd. an International Claim Settler, who appointed International Surveyors & Adjusters (USA), for survey and assessment of loss. The surveyor inspected the warehouse on 02.01.2013 and 25.03.2013 and submitted his preliminary report dated 15.04.2013, in which, he confirmed damage of approximately 20000 garments, due to water.

(e) As the complainant did not receive any information, regarding settlement of the claim, it approached his insurance agent, who made query from the Insurer. The Insurer forwarded an email dated 27.03.2013 to insurance agent, stating that the complainant would be liable to bear the loss, citing “Free on Board” terms. In addition, this was damage whilst being storage hence liability of the Insurer would not engage. They were awaiting comprehensive survey report.

(f)      After email dated 27.03.2013, the complainant did not receive any message for unreasonable long period, from the Insurer, he gave a legal notice dated 09.01.2014 to the Insurer. In spite of service of legal notice, the Insurer did not give any reply, then another legal notice dated 05.07.2014 was sent to the Insurer. Apart from it, a representation dated 07.07.2014 was sent for settlement of the claim. In spite of service of all these letters, no reply was given by the Insurer. The complainant then sent an application dated 02.09.2014, for speedy disposal of his representation. Then the Insurer, vide letter dated 15.09.2014, informed that as per Invoice, the terms of delivery was “Free on Board” basis. Hence the interest or ownership of consignment would be transferred to the buyers once the consignment is placed on Board of the Ocean Going Vessel. Additional Intermediate storage extension was given under the Marine Open Policy, is in respect of any loss/damage that occurs during the storage period at Tuticorin Seaport, India and not in U.S.A. The claim was not admissible as per terms of the policy. Then this complaint was filed on 28.01.2016, claiming deficiency in service.

4.      The opposite party filed its written reply on 16.08.2016 in which, the material facts have not been denied. It has been stated that the complainant had supplied the consignments of garment to overseas buyer on “Free On Board” basis. All the consignment were safely delivered at Seaport New York, U.S.A., from where it were transported and stored in a bonded warehouse of M/s. Empire Warehousing and Distribution Inc., 5 Empire Boulevard in Carlstadt, New Jersey, where it was damaged due to storm “Hurricane Sandy”. The ownership of the consignments of garment passed to the buyer long back to the date of damage. The complainant ceased to have insurable interest on the date of damage. Section 8(2) of Marine Insurance Act, 1963 provides that where the assured has no interest at the time of the loss, he cannot acquire interest by any act or election after he is aware of the loss. The Insurer was not liable to reimburse the loss. Additional 30 days coverage applies only when the goods are awaiting shipment at the port of loading in exporter’s country. Institute Cargo Clauses apply to the insurance subject to the terms of sale, which in this case are “Free on Board” basis, which is clear from the copies of purchase order Nos.0060713589, 0060713591, 0060713592, 0061034980, 0061034982, 0061034984 and 0061479347. The complainant exported all the consignments on “Free on Board” basis. M/s. W.K. Webster (Overseas) Ltd., the claim settling agent of the Insurer, in their communications dated 20.03.2013, 04.04.2013, 07.05.2013 and 07.05.2013, opined that the Insurer was not liable for the loss occurred to the complainant. The surveyor M/s. International Surveyors & Adjuster (USA) in his report dated 03.07.2013, informed that the complainant did not give reply of the inventory as given by the surveyor to him. Neither the complainant nor M/s. Empire Warehousing and Distribution Inc. cooperated with the surveyor. There was no deficiency in service, in repudiating the claim vide email dated 27.03.2013.

5.      The complainant filed Rejoinder Reply on 03.11.2016, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence of C. Anandhakumar and various documentary evidence. The opposite party filed Affidavit of Evidence of Anirudh Devraj, Manager Legal and various documents. Both the parties filed their short synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. The Insurer vide email dated 27.03.2013 repudiated the claim on the ground that the complainant would be liable to bear the loss, citing “Free on Board” terms and this was a damage whilst being storage hence liability of the Insurer would not engage.

7.      The complainant obtained Marine Cargo Open Policy-All i.e. Policy No. MO-0007359-000-02 from the opposite party for the period of 07.04.2012 to 06.04.2013, with additional 30 days coverage, for insurance coverage of Rs.150/- crores. Insuring Conditions and Warrantees included Institute Cargo Clauses (A)-All risk 1.1.82 and Inland transit (Rail/road)-All risk. There is no dispute in respect of inland transit.

8.      Clause-14 of the policy- Loading and unloading clause:- provides that the cover under Transit clause 8 of Institute Cargo Clauses (A)-1.1.82, in case of transit by sea/: Transit Clause 5 of Institute Cargo Clauses (Air) (excluding sending by post) 1.1.82, in case of transit by Air/ Transit Clause 5 of Inland Transit (Rail or Road) (A) Clause in case of transit by rail/road, shall commence whilst consignment is loaded on the local conveyance for the commencement of transit. Further the word delivery of the transit clause shall extend to include unloading. The policy shall only cover mishandling whilst such loading and unloading.

9.      General Terms of Institute Cargo Clauses (A) Clause-8- Duration- provides that the 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 of the consignment 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.

10.       From the aforesaid clauses it is clear that transit terminates on delivery of the consignment at final warehouse or the place of storage. In the present case, the consignments were safely delivered and stored in a bonded warehouse of M/s. Empire Warehousing and Distribution Inc., 5 Empire Boulevard in Carlstadt, New Jersey, where it was damaged due to “Hurricane Sandy” storm on 29/30.10.2012. At that time duration of insurance has already came to an end. As such the Insurer is not liable to indemnify the loss under the policy. No other terms of insurance policy has been pointed out to say that the policy would continue till the consignment was delivered to the buyer. Additional Intermediate storage extension was given under the Marine Open Policy, is in respect of any loss/damage that occurs during the storage period at seaport in India and not in U.S.A. The repudiation letter does not suffer from any illegality.

                                                  O R D E R

In view of the aforesaid discussion, the complaint is dismissed.