1.      Heard Mr. Achin Goel, Advocate, for the complainant and Mr. Joy Basu, Senior Advocate assisted by Mr. Anoop George, Advocate, for the opposite party.

2.      M/s Apex Buildsys Ltd. has filed above complaint for directing the opposite party to pay (i) Rs.15982988/-, as compensation, including the cost of machinery and 10% of the invoice amount, the demurrage charges paid by the complainant and compensation for loss of business and harassment as well as mental agony; and (ii) any other order which this Commission deems fit in the facts and circumstances of the case.

3.      The complainant stated that it is a company, incorporated under the Companies Act, 1956, having its registered office at 1^st Floor, HDFC House, Backbay Reclamation, H.T. Parekh Marg, Church Gate, Mumbai-400020. Opposite party is a joint venture of HDFC Limited and ERGO International AG. The ERGO International AG is the primary insurance company of Munich Re Group. The complainant is engaged in the business of construction and development of infrastructure. The opposite party approached the complainant for offering Marine Transit Insurance for Hydraulic Variable Rake Shear VS Series Model 6013 (for short, “the Hydraulic Machine”). On the basis of the representation made by the opposite party, the complainant asked for quotations for transit insurance from Turkey to India on “warehouse to warehouse” basis covering ICC-All Risk, War and SRCC risk cover. The opposite party, vide email dated 27.01.2009, sent the revised quotation wherein inter alia it was stated that the policy covers ITC “A”+ War+ SRCC. On receipt of the quotation, the complainant paid the premium amount of Rs.117978/- which was received and acknowledged by the opposite party vide communication dated 28.01.2009. The opposite party issued the “Marine Open (Import)” policy to the complainant on 28.01.2009. The opposite party, vide letter dated 06.02.2009 sent additional terms & conditions of the policy, which were unilateral and contrary to the policy details dated 28.01.2009 and never discussed earlier with the complainant. Under clause-14 of the terms & conditions “Over Dimensional Cargo” was excluded from compensation claim whereas in the original insurance policy dated 28.01.2009 it was not excluded. The complainant, vide letter dated 18.02.2009 sent its objection to the opposite party and requested to rectify the same. The opposite party did not send any reply to the letter of the complainant despite various follow ups. However, the office of the opposite party at Delhi assured the complainant that the additional terms of the policy would be withdrawn and would not be implemented. The complainant trusted the assurance given by the opposite party. When the machine was in transit from Turkey to India it got damaged which came to the notice of the complainant around 13.03.2009. On same day, the complainant intimated the opposite party about the loss. The surveyor inspected the Hydraulic Machine and submitted its report dated 19.03.2009. The complainant lodged the claim under the policy on 31.03.2009. The complainant lodged damage claim against GAC Shipping (India) Pvt. Ltd. on 31.03.2009. The opposite party, vide letter dated 03.06.2009 (received on 30.06.2009) repudiated the claim stating that under clause 14 of the insurance policy, “Over Dimensional Cargo” was excluded from claim compensation. The complainant, vide letter dated 30.06.2009, protested repudiation letter and stated that that there was no exclusion clause in the insurance policy. The surveyor has approved the damage and the loss. Clause-14 was never discussed with the complainant nor was it accepted by the complainant. The opposite party is evading its liability by taking shelter of clause 14 of the terms & conditions of the policy. When the complainant had sent the objection to clause 14, the opposite party ought to have responded to the complainant. In case, the opposite party was not satisfied, then it should have refunded the premium amount to the complainant. The terms “Overdue Dimensional Cargo” are nowhere specified either in the policy or in the terms and conditions of the policy and it is vaguely used by the opposite party. The size, weight, length, etc. of the machine is nowhere indicated by the opposite party. The complainant had disclosed to the opposite party about the weight size and other dimensions of the Hydraulic Machine and after full satisfaction, the opposite party issued the insurance policy. Therefore, clause-14 is vague and arbitrary and the opposite party cannot apply the same while repudiating the claim. Due to non-payment of compensation by the opposite party, the complainant could not place order for another hydraulic machine and suffered huge loss. The complainant sent legal notice dated 28.08.2009 seeking payment of Euro 147000 + 10% of the invoice value as agreed between the parties. The legal notice was replied by the opposite party vide letter dated 01.10.2009 confirming repudiation of the claim. Hence, the complainant filed the instant consumer complaint on 15.06.2010.

4.      The opposite party contested the complaint and filed the written statement. The opposite party stated that when the complainant had requested for quotation vide email dated 23.01.2009, the opposite party asked it whether any over-dimensional cargo was involved and what was the value of the cargo. Email dated 27.01.2009 was a rough working sheet and not the final quotation as alleged by the complainant. The opposite party issued a final quotation vide email dated 28.01.2009 in the PDF format wherein it was also mentioned that the quotation was valid for 15 days and was subject to the claim details submitted by the complainant. The complainant supressed the material fact and replied that no over-dimensional cargo is involved. The opposite party issued “Marine Open (Import)” policy on 28.01.2009, covering ITC-A with SRCC + War policy on the basis of the information provided by the complainant, which contained Exclusion clause-14. The complainant sent letter dated 18.02.2009 stating that there was discrepancy in the policy. As there was no discrepancy in the policy issued to the complainant, the opposite party did not issue any revised policy. If there was any discrepancy in the policy as alleged by the complainant, the complainant was expected to follow up its letter dated 18.02.2009 and ensure that the revised policy is issued but the complainant never followed up its letter. In the policy it was clearly mentioned that it was conclusive, subject to correctness of the facts mentioned therein. The opposite party denied the allegation that it made any representation that the complainant that the terms & conditions of the policy would not be given effect. The opposite party, vide emails dated 03.06.2009 and 27.07.2009 explained the meaning of Over Dimensional Cargo (ODC). The opposite party rightly repudiated the claim as per terms & conditions of the policy. There is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

5.      The complainants filed Rejoinder Reply, Affidavit of Evidence of Munish Kumar and documentary evidence. The Opposite party filed Affidavit of Evidence of Neeraj Kumar, Affidavit of Evidence of Govinder Kapoor (the surveyor) and documentary evidence. The opposite party also filed Additional Affidavit of Evidence of P. Shishidharan Nair 24.02.2016, bringing on record additional documents. Both the parties have filed its written arguments.

6.      We have considered the arguments of the counsel for the parties and examined the record. “Marine Open (Import)” Policy issued to the complainant on 28.01.2009, contained Exclusion clause-14, under which Over dimensional Cargo and Over dimensional Cargo and Heavy Lift cargo are excluded. Two Hydraulic Variable Rake Shear Type: VS 6013 were damaged and in joint inspection report dated 19.03.2009, its dimensions are noted as 7100 mm x 3700 mm x 3300mm and its weight are noted as 33800 kg. each. There is no dispute between the parties that it were over dimensional and heavy weight cargos. The complainant raised a dispute that at the time of giving quotation, the opposite party did not inform that the policy will not cover over dimensional and heavy weight cargo. The opposite party stated that the complainant had approached the opposite party for issue of marine import policy on 23.01.2009, then they had given a questionnaire, in which, specific query was made vide question no.8 in the head of “Transit Insurance (Imports) in respect of “over dimensional cargo”, which was replied in negative. On the basis of this information, premium was quoted and policy was issued. Copy of the questionnaire as answered by the complainant has been filed along with Additional Affidavit of Evidence of P. Shishidharan Nair. Therefore the arguments of the complainant that Exclusion clause-14 was never in their knowledge at the stage of negotiation for premium prior to issue of the policy, has been proved to be incorrect. Even if the opposite party did not reply to the letter of the complainant dated 18.02.2009, it cannot be said that Exclusion clause-14 was contrary to the negotiation and was not in the knowledge of the complainant. As the claim was under exclusion clause, it was rightly repudiated.

O R D E R

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