FINAL ORDER/JUDGEMENT
SHRI REYAZUDDIN KHAN , MEMBER
This is a complaint case u/s 35 of the CP Act, 2019.The fact of the case in brief is that the complainant being a firm and carrying on business of import of raw dry fruits like Cashew Nut and other allied products. The complainant has taken an Insurance Cargo Policy from the OPs under All Risks Insurance.The complainant placed an order before Bharsanth International(FZE) of Q1-06-087A Saif-Zone,P.O Box-124801,Sharjah,UAE for supply of Raw Cashew Nut weighing net 140.740MT,packed in 1550 bags and upon received of payment, the shipper arranged shipment of the said goods under Invoice No.004/04/2021 dated 22.04.2021 for USD 158332.50 by sea from ABIDJAN to Kolkata Port per vassal MSC PANAYA V.WO112R Bill of Lading No.MEDUAB147372 dated 06.04.2021.The complainant stated that the consignment was insured with the OPs under Marine Cargo Policy(Import) No.2002/I/198834611/00/002 dated 23.04.2020 and related Certificate No.CERT/2002/I/198834611/00/000/4 dated 06.05.2021 for sum insured on the basis CIF+10%+duty under “All Risks” i.e,Institute Cargo Clause (A) from Warehouse to Warehouse. The complainant further stated that when the consignment by sea was received at Kolkata port by the complainant, he found certain loss.The OPs immediately appointed surveyor for assessment and held that out of 4 containers 2 containers being No.CAIU4747017 and MEDU8443332 contents inside found in damaged conditions. After joint survey report found out of the invoice quantity that
- Container No.CAIU4747017
Quantity as per invoice (004/04/2021________27920 KG
Quantity of wet damage___________________14123.62 KG
Quantity of Fungus effected________________6942.42 KG
2. Container No.MEDU8443332
Quantity as per invoice (004/04/2021________27560 KG
Quantity of wet damage___________________6981.12 KG
Quantity of Fungus effected_______________11855.06 KG
On repeated request to the OPs to provide related survey report as assessed by the surveyor but no copy of the report was served upon the complainant till date.The complainant submitted the claim to the OPs towards insured value of the loss for Rs.16,79,210.58/.The OPs acknowledge the receipt of the claim with all relevant documents but at the same time repudiated the claim on flimsy ground through letter dated 09.08.2021 and dated 31.08.2021 that the policy is out of “Policy Coverage-Marine”.The complainant also served advocate notice to the OPs on 08.09.2021 for compensation as also the payment dues for the loss suffered during the transit period within the currency period of the policy.The OPs are responsible and liable to compensate the loss in respect of the damaged quantity of the materials. The complainant accordingly prayed for an order directing the OPs to make payment of the claim amount of Rs,16,79,210.58 along with interest, compensation and litigation cost.
The OPs have contested the case by filing their WV contending inter alia that the claim is bad by the principles of estoppels, waiver and acquiescence. It is admitted that the complainant had purchased one Marine Cargo Insurance Policy(Import) from the OPs vide certificate No.CERT/2002/I/198834611/00/000/4 said policy was issued on 23.04.2020 and policy ended on 22.04.2021.OPs appointed surveyor namely,T-Three Insurance Surveyor and loss Assessor Pvt.Ltd to inspect the claim of the consignment containing 1550 bags/ 140740 KG of raw cashew nuts imported from shipper YAN Import Export Logistique Ivory Coast,A/C Bharsanth International FZE Sharjah,UAE,vide invoice no.004/04/2021 dated 22.04.2021.The containers arrived to Kolkata port on 14.06.2021 shipped by vessel MSC Panaya.After customs clearance formalities,the containers were dispatched to the consignee/insured.During unloading the containers Container No.CAIU4747017 and Container No.MEDU8443332,some wet damages to the consignment was noticed and the same was reported to the insurer. The appointed surveyor visited the spot and verified the consignment and observed that the container no. CAIU4747017 have two holes which caused ingress of fresh/rain water into the container.The surveyor noticed the bags were water affected and materials inside found in Fungus affected. Few materials were developed Germination. White fungus also observed in many bags.Surveyor have collected few samples from the damaged affected cargo and tested the same in lab,the test report result that there was no presence of sea water in the cargo and the cause of loss is due to ingress of fresh/rain water inside the containers during ordinary course of transit,which warranted under subject policy and therefore,the liability of the insurer does not attach.And on perusal of policy copy No.2002/I/198834611/00/000/4 it was observed that the mentioned warranty excluding the damages due to fresh/rain water.
Clause:13 Warranted that fresh/rain water damages are not cover in this policy
Hence,as per policy details the complainant is not entitled for any claim whatsoever in nature from this insurance company and there has been no deficiency in service on the part of the OPs and the complainant is not entitled for any compensation or litigation cost too.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3:-
All the points are taken up together for sake of convenience and brevity in discussion.
The fact of the case in brief is that the complainant have taken an Insurance Cargo Policy from the OPs and placed an order before Bharsanth International(FZE) of Q1-06-087A Saif-Zone.Sharjah,UAE for supply of Raw Cashew Nut weighing net 140.740 MT.packed in 1550 bags.The said goods transported under Invoice No.004/04/2021 dated 22.04.2021 by sea from Abidjan to Kolkata Port.The said consignment was insured with the OPs under Marine Cargo Policy(Import).During taking delivery by the complainant a loss was detected and accordingly a surveyor was appointed to assess the loss in two containers and contents inside in variously damaged condition.The complainant submitted the claim to the OPs.The claim amount against the OPs towards insured value of the loss for Rs,16,79,210.58.The OPs repudiated the claim on the ground that the consignments were damaged due to rain.As per policy terms and conditions fresh/rain water damages are not cover in this policy.
It is admitted fact that the complainant had a valid Marine Cargo Insurance Policy(import) vide certificate No. CERT/2002/I/198834611/00/000/4.
There is no dispute on the appointment of surveyor namely,T-Three Insurance Surveyor and loss Assessor Pvt Ltd.
The observation of the surveyor that
“It is noticed that 2 Nos.of holes on the top roof panel of the container No.CAIU4747017,which might have caused during handling of the container by the carrier/shipping line.Through these holes the Fresh/Rain water had entered into the container. The doors and rubber beadings of the container was found in sound condition”
“It is also noticed in Container No.MEDU8443332 which was also in very poor condition,water leakage observed from multiple places, container was bulged/right and left side was pushed out.The container also found rusted on multiple places,which has caused ingress of fresh/rain water into the container. In our opinion the container was not worthy for storage and carriage purpose”.
“Prior to their visit around 75% of the bags from the container were already unloaded and after their inspection all the cargo was unloaded and kept separately”.
The surveyor collected samples from the damaged affected cargo and tested the same in the Lab.
The test report indicates that “NaCl content present on upper layer portion is from 0.04% to 0.08% which refers to normal fresh water as the average salinity of fresh water sources is less than 0.5% and that of sea water has a salinity of about 3.5%.
Therefore,it was understood that there was no presence of sea water in the cargo.
As per the complainant’s contention that the insurance policy covers goods under “All Risks” insurance which defines all water either fresh/rain or sea but if we go through the details of insurance terms and condition of the policy we found Clause 13 under MARINE OPEN IMPORT DECLARATION POLICY that “Warranted that Fresh/Rain water damages are not covered in this policy”
Based on the findings of the surveyor and the terms and conditions of the Insurance policy,we are opined that the damages caused due to fresh/rain water which is not covered under the said policy.
In that respect, the judgment in AIR 1999 Supreme Court 3252 under Civil Appeal No. 4913 of 1997 decided on 19.08.1999 is relevant wherein the Hon’ble Court has observed that “the insurance policy between the insurer and insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risk covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with statutory limitations or terms of the policy expressly set out therein.
Considering the facts and circumstances of the case and the documents placed on record we are of the considered view that the complainant has not been able to establish his case against the OPs.
Thus all the points are answered accordingly.
In the result, the Complaint fails.
Hence,
Ordered
That the Complaint case be and the same is dismissed on contest against the OPs without any cost.
