1.      Heard Mr. Sandeep Singh Hora, Advocate, for the complainant and Mr. Soli Cooper, Sr. Advocate, assisted by Ms. Ethel Periera, Advocate, for the opposite party.  

2.      M/s. Bhuvee Profiles & Stainless Private Limited has filed above complaint for directing the opposite party to pay (i) Rs.166239150/- with interest @18% per annum, from 24.09.2009 till the date of payment, as the insurance claim; (ii) litigation costs; and (iii) any other relief, which is deemed fit and proper in the facts and circumstances of the case.

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

(a)     M/s. Salasar Trading Company, A-63, Ground Floor, Shankar Garden, Vikas Puri, New Delhi was importing one complete set of Plant and Machinery of used Hot Rolling Steckel Mill Train with essential accessories in dismantled condition in total 190 break-bulk pieces/ packages and 75 containers from Canada through World Wide International, Kolkata West Bengal on the vessel MV Rickmers Seoul, Voyage No.258 under Bill of Lading No.RCKI258SORPRT04 dated 28.07.2009 and Commercial Invoice No.WAHL/736 dated 30.07.2009. Port of Loading was Sorel, Canada and Port of Discharge was Paradip Odisha. The ICICI Lombard General Insurance Company Limited (the OP) was an insurance company. M/s. Salasar Trading Company obtained Marine Transit Import Insurance Policy No.2006/I/57343703/00 dated 30.07.2009 of above consignments from the OP for a sum of Rs.1869235800/-, covering “Institute Cargo Clauses (A)” and “All Risk Inland Transit Clause (A)”. Antares Marine Consultants Inc. conducted Pre-dispatch Inspection of the cargos on 24^th, 25^th, 26^th & 27^th July, 2009. Thereafter, packaging and loading were done. 

(b)  M/s. Bhuvee Profiles & Stainless Private Limited (the complainant) was a company, registered under the Companies Act, 1956 and engaged in manufacturing hot rolled stainless steel and steel plates, sheets, coils etc. The complainant intended to set up a Hot Rolling Mill at Meramundai, Dhenkanal, Odisha. The complainant purchased above consignments from M/s. Salasar Trading Company through High Seas Sale Agreement No.STC/Bhuvee/HS054?09-10 dated 03.09.2009, for Rs.1716298310/-. The complainant informed the OP about High Seas Sale vide letter dated 04.09.2009, which was acknowledged by the OP.

(c)     The vessel arrived at Paradip port on 08.09.2009, where Bill of Entry was made on 07.09.2009. While unloading the consignments from the vessel, three packages i.e. Package No.40041 (2400 Kg., discharge date 23.09.2009), Package No.40081 (4460 Kg., discharge date 22.09.2009) and Package No.40182 (6820 Kg., discharge date 24.09.2009), were damaged as certified by MN Marine Cargo Surveyor Paradip. J.M. Baxi & Company, Paradip, the Handling Agent, informed the complainant about the damages on 24.09.2009. The complainant informed the OP, vide email dated 24.09.2009 about the damages of the consignments. The OP appointed Cunningham Lindsey International Private Limited, Bhubaneswar as the surveyor for survey and assessment of the loss and informed the complainant vide email dated 24.09.2009. The surveyor visited Paradip Port on 25.09.2009 and inspected and verified the damaged consignments.

(d)     The surveyor, demanded papers from ‘World Wide International, Kolkata’ (the original importer), vide letters dated 29.09.2009, 12.10.2009, 06.11.2009 and 02.01.2010 for assessment of the loss. The complainant, vide letter dated 25.01.2010, informed the surveyor that they were arranging for the required papers. The complainant supplied all the required papers to the surveyor, along with replacement quotations of the damaged machinery and notice of the claim as given to M/s. Reckmers Line (America) Inc. dated 16.04.2010 and the Claim Form for Rs.166239150/-, vide letter dated 17.05.2010. The OP issued a letter dated 25.06.2010, stating that the machinery of package Nos.40081 & 40011, were old and used and they felt that it would be repairable and a joint inspection was required for that purpose and demanded some more documents.

(e)     The complainant, vide letter dated 15.07.2010, replied that they had purchased second hand used machinery as High Seas Sale basis from M/s. Salasar Trading Company, who had informed that OEM would not be interested in repair and M/s. Grey, their consulting engineer, inspected it and advised that its repair was not possible; Replacement quotations were not of improved version but of the machinery of similar capability. As desired by the OP, the surveyor conducted joint inspection of the damaged machinery on 28.07.2010. But inadvertently, joint inspection of Package No.40063 was done, which also contained grinder of “Farrel” make in place of Package No.40081, which contained grinder of “Churchill” make. The surveyor submitted joint inspection report dated 03.08.2010, which was supplied to the complainant on 06.08.2010. Then the complainant came to know about this mistake. The Insurance agent of the complainant informed the surveyor in this respect and requested for re-inspection, vide email dated 26.08.2010. The surveyor agreed for re-inspection on the site, vide email dated 31.08.2010. M/s. Grey, the consultant engineer of the complainant re-inspected of Package No.40081, on 31.08.2010 and submitted his report dated 07.09.2010 along with photos of the machinery. The complainant supplied this report to the surveyor through email dated 09.09.2010.  

(f)      The OP repudiated the claim through the letter dated 20.09.2010 on the grounds that (i) the surveyor, vide letter dated 29.09.2009, demanded the papers for assessment of the loss and issued reminders dated 12.10.2009, 06.11.2009 and 02.01.2010 but the required documents were not supplied on time; (ii) The claim included damage of a grinder of “Churchill” make, while in joint inspection, the grinder of “Farrel” make was shown, which amounts to misleading; (iii) The Insurer has right to inspect the damaged machinery but inspection was denied.

(g)     The complainant made a representation dated 06.10.2010 against the repudiation letter dated 20.09.2010 and stated that the surveyor had inspected the damaged consignments on 25.09.2009, which is proved from the letter of the surveyor dated 29.09.2009 and letter of the OP dated 25.06.2010, in which, it had been stated that the machinery of package Nos.40081 & 40011, were old and used and would be repairable as such there was no violation of right to inspect. Package No.40081, which contained the grinder of “Churchill” make, was damaged, however, due to some mistake other grinder “Farrel” make, which was in Package No.40063, was inspected on 28.07.2010, therefore request was made for re-inspection, vide emails dated 26.08.2010 and 09.09.2010. The claim was not fraudulent. Instead of re-inspection, the claim was wrongly repudiated.

(h)     The OP, vide letter dated 16.11.2010, informed that they had instructed the surveyor to conduct inspection of the grinder of “Churchill” make on 27.11.2010. The surveyor came to the factory site of the complainant on 27.11.2010 and inspected the damaged grinder of “Churchill” make with the help of D.K. Sinha, from the office of the complainant. D.K. Sinha made a complaint to the OP that during inspection, the surveyor did not care upon the damages pointed out to him. The surveyor wrote a letter dated 29.12.2010 to the complainant that the grinder of “Churchill” make was not found damaged during inspection. The complainant waited for the response of the OP but the OP did not reply. Thereafter, the complaint was filed on 29.09.2011, alleging deficiency in service on the part of the surveyor and the OP.

4.      ICICI Lombard General Insurance Company Limited (the OP) filed its written reply on 12.07.2012, in which, issue of the insurance policy of the consignments is not disputed. The OP stated that the insurance broker namely M/s. Ideal Insurance Broker Pvt. Ltd. informed the OP about the damage, vide email dated 24.09.2009. The OP appointed Cunningham Lindsey International Private Limited, Bhubaneswar as the surveyor for survey and assessment of the loss and informed the complainant vide email dated 24.09.2009. Mr. B.P. Das, from Cunningham Lindsey International Private Limited visited Paradip Port on 25.09.2009 and inspected the damaged consignments and submitted Immediate Loss Advice dated 29.09.2009 to the OP. The surveyor, vide letter dated 29.09.2009, demanded papers from the complainant for assessment of the loss. The complainant did not supply the required papers. The surveyor gave reminders dated 12.10.2009, 06.11.2009 and 02.01.2010. Then the complainant wrote a letter dated 25.01.2010, requesting for some more time to supply the papers. The complainant could not supply the required documents for a long time. The surveyor then submitted report dated 11.05.2010 to close the matter as “No Claim”. The complainant supplied the papers vide letter dated 17.05.2010 along with Claim Form for Rs.166239150/- and vide letter dated 16.06.2010, requested to reopen the file. On examination of these papers, the surveyor submitted status report to the OP. On examination of status report, the OP found that the machinery in Package Nos.40011 & 40081 were old and used which may be repairable. The OP then issued a letter dated 25.06.2010 to the complainant to arrange for joint inspection of these machinery in order examine the possibility of repair of the machinery and also demanded some more papers. The surveyor conducted joint inspection of the machinery on 28.07.2010 in presence of Mr. Ashok Kumar Agarwala, CEO and submitted inspection report dated 03.08.2010 to the OP, stating that during joint inspection Package No. 40081 was of the grinder “Farel” make and it was repairable. The complainant has claimed Rs.128625000/- for the grinder of “Churchill” make in the Claim Form, while in joint inspection, the complainant showed the grinder of “Farrel” make, which amounts to fraudulent claim and also ‘not permitting the surveyor to inspect the damaged machinery’. Therefore, the OP, vide letter dated 20.09.2010, repudiated the claim. The complainant, requested for re-inspection vide letter dated 06.10.2010, stating that under some confusion, the grinder of “Farel” make was inspected in place of the grinder of “Churchill” make.  The OP, vide letter dated 16.11.2010, asked the surveyor to inspect the grinder of “Churchill” make on 27.11.2010. The surveyor inspected the grinder of “Churchill” make on 27.11.2010 with the help of D.K. Sinha, from the office of the complainant and submitted report dated 13.12.2010, stating that no visible damage was found in the grinder of “Churchill” make. As such there was no ground to review the repudiation letter dated 20.09.2010. There is no deficiency in service on the part of the Insurer. The complainant availed the service of the OP for commercial purpose and the complaint is not maintainable.

5.      The Complainant filed Rejoinder Reply, Affidavit of Evidence of Anil Mohata and documentary evidence. The opposite party filed Affidavit of Evidence of Atul Jain (the Area Manager) and Affidavit of Evidence of Govinder Kapoor, (A.R. of the surveyor) and documentary evidence. Both the parties have filed written arguments.   

6.      We have considered the arguments of the counsel for the parties and examined the record. Preliminary issue raised by the Insurer has no merit. Supreme Court in National Insurance Company Limited Vs. Harsolia Motors, 2023 SCC OnLine SC 409, held that contract of insurance is a contract of indemnity and has no profit motive. Even a commercial entity can obtain insurance policy for self-use and as no profit is earned from the insurance policy as such it is a consumer.   

7.      The Complainant submitted the Claim Form for Rs.166239150/-, vide letter dated 17.05.2010, i.e. Rs.28520100/- for ACME Strapping Device, Rs.128625000/-, for the grinder of “Churchill” make and Rs.9094050/- for Work Roll Quarto. There is dispute in respect of the claim of Rs.128625000/-, for the grinder of “Churchill” make, between the parties. According to the complainant, Package No.40081 contained the grinder of “Churchill” make. MN Marine Cargo Surveyor, it its Damage Report mentioned that “Package No.40081 unloaded on trailer. Accidentally toppled falling on ground, caused damage.” At the time of inspection on 25.09.2009, he was informed that the grinder of “Churchill” make was broken in two pieces. Although the complainant submitted claim for the grinder of “Churchill” make but along with the papers, the complainant submitted the damage report of Grey Engineering Consultants dated 20.04.2010, in respect of the grinder “Farrel” make.  

8.      The report of Grey Engineering Consultants dated 20.04.2010, in respect of the grinder “Farrel” make, is as follows:-

“The condition of the roll grinder for the Hot Strip Mill Work Rolls was not appreciable. Visible signs of damage due to improper handling could be seen clearly as is evident from the photographs.

Particular areas of damage were the grinding wheel head assembly and the bed plate. Roll Grinders of this size are not made in the country. Therefore, the necessary skill to repair them is also absent. Minor refurbishing is very well carried out but major rectification is not possible. Any attempt to carryout rectification work will not yield results which give us the required grinding tolerances. A poorly ground roll is the worst possible injury one can inflict on the mill. It leads to multiple failures and in the unlikely event of a roll failure like ‘splatting’ can cause loss of human life”

9.      Joint inspection of the damaged machinery was done on 28.07.2010 in presence of Mr. Ashok Kumar Agarwala, CEO. The surveyor submitted inspection report dated 03.08.2010, stating that during joint inspection the grinder “Farrel” make was shown and it was repairable. The complainant, then requested for re-inspection vide letter dated 06.10.2010, stating that under some confusion, the grinder of “Farrel” make was inspected in place of the grinder of “Churchill” make. The OP, vide letter dated 16.11.2010, asked the surveyor to inspect the grinder of “Churchill” make on 27.11.2010. The surveyor inspected the grinder of “Churchill” make on 27.11.2010 with the help of D.K. Sinha, of the complainant and submitted report dated 13.12.2010, stating that no visible damage was found in the grinder of “Churchill” make.

10.    Now the complainant is relying upon the report of Grey Engineering Consultants dated 07.09.2010 (EX-Z), which mentioned as:-

“The condition of the Churchill roll grinder was not found to be very appreciable. Visible signs of damage due to improper handling could be seen clearly as is evident from the photographs.

Particular areas of damage were the grinding wheel head assembly and the bed plate. Improper use of lifting tools & tackles has resulted in major gashes on some critical surfaces. Any attempt to revive gashed portion will not be able to restore it to its past condition as also excessive scrapping, rubbing and lapping will weaken the affected area.”

11.    In both the reports Grey Engineering Consultants mentioned “particular areas of damage were the grinding wheel head assembly and the bed plate”. D.K. Sinha, in his letter dated 27.11.2010 (Exhibit-AD) mentioned “I have specifically shown to the surveyor all the area of damage where deep gashes could be seen, the bent plates of the frames, the portion of head stock carriage slide arrangement, which has been broken off the carriage bed.”

12.    The complainant submitted damage report in respect of the grinder of “Farrel” make and it was jointly inspected on 28.07.2010 in presence of Mr. Ashok Kumar Agarwala, CEO. Later, the complainant started saying that under some confusion, the grinder of “Farrel” make was inspected in place of the grinder of “Churchill” make and the damage report dated 20.04.2010 was inadvertently noted the grinder of “Farrel” make. D.K. Sinha, in his letter dated 27.11.2010 added some broken parts also, which was not in the reports dated 20.04.2010 and 07.09.2010. The surveyor did not find any visible damage in the grinder of “Churchill” make. As the reports of Grey Engineers and letter of D.K. Sinha differ, it cannot be taken as conclusive proof to rebut the report of the surveyor. The complainant took unusual time in supplying the documents, due to which inspection of the damaged machinery was delayed for more than one year. The repudiation letter cannot be set aside. The complaint has no merit and is liable to be dismissed.

O R D E R

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