1.       The present Appeal is filed against the order dated 05.08.2015 in Consumer Complaint No. CC/07/31 passed by State Consumer Disputes Redressal Commission, Maharashtra.

2.       The Complainant/Appellant is a Company dealing with Import-Export, manufacturing of Transformer Core Lines/Lamination steel coils since 1991. It has a factory unit at Silvassa and Palghar. The case of the Complainant/Appellant is that they took a Marine Cargo Import Specific Policy No.-MCG-0000810600000 from the Opposite Party/Respondent on 23.05.2006 for the cargo C.R.G.O. Electrical Steel Coils HIB Grade Weighing 44.00 Metric Ton (hereinafter referred as ‘Cargo’) for Voyage from “Any United States Port to Nhava Sheva (Jawahar Lal Nehru Port, Mumbai) and thence to final destination” for the assured sum of Rs.94,38,500/- by paying a premium of Rs.6,886.50/-. The consignment of C.R.G.O Electrical 9 Steel Coils HIB GRADE Weighing 37.017 Metric Ton was loaded on board vessel M.V. Indamex Godavari, which left the Port of Norfolk United States and arrived at Nhava Sheva Port, Mumbai on 23.05.2006. Thereafter the consignment was unloaded and the same was entrusted to Shri Maateshwari Transport, the inland transport/road carrier for carriage by truck from Nhave Sheva Port (Mumbai) to Silvassa (Dadar and Nagar Haveli). On 28.07.2006 the said truck/trailer met with an accident at Modgaon Udhava (Talasari). A Police report was lodged at Kasa Police Station on 28.07.2006. The incident was reported to the Opposite Party on 28.07.2006 itself. Opposite Party appointed Surveyor M/s Trans Ocean Marine and General Survey Agencies on 28.07.2006, who submitted the survey report on 04.09.2006. The Opposite Party repudiated the claim, vide letter dated 23.11.2006 on the ground that the cause of loss was directly attributable to “overloading” of the trailer and inadequate packing of the items, in violation of the terms & conditions of the Insurance Policy. The Complainant was not supplied copy of the Survey Report. Aggrieved by repudiation of claim, the Complainant filed Consumer Complaint No.31 of 2007 with the State Commission, Maharashtra, Mumbai.

“A. To hold and declare the opposite party guilty of deficiency in service and negligence and unfair trade practice as per the provisions of the consumer protection act.

B. To direct the opposite party to pay the genuine claim of the complainant as per particulars of claim, EX ‘G’ the Complainant refer to and rely upon the same for the sum equivalent of Rs.78,75,701/-,towards amount of claim plus interest at 18% per annum from the date of the claim till realization and payment plus compensation towards loss of business of Rs.5,00,000/- plus interest thereon plus expenses of Rs.1,00,000/- plus costs of this complaint.

C. For such other reliefs as this Hon’ble Commission may deem fit.”

3.       The Complaint was contested by the Opposite Party by filing written statement that the weight of the cargo/consignment was 36.75 M.T., which was unloaded at Nhava Sheva, and entrusted to Shri Maateshwari Transport for carriage from Nhava Sheva to Silvasa, Dadra and Nagar Haveli. The abovementioned Cargo was contained in two Containers. The said container was destuffed and the Cargo containing 9 steel coils were loosely loaded to the trailer/truck bearing Registration No.MH-06/A-2732 secured with ropes. According to the relevant Marine Insurance Policy, the loss or damage due to insufficiency or unsuitability of packing which also includes ‘stowage’ in the container or truck is expressly excluded. The original packing in the container was disturbed due to destuffing in the 2^nd stand of transit. Hence, the sea voyage risk was terminated at the port of discharge when the Cargo was decontainerized and loosely loaded in the trailer, and not in the original containers before commencement of ‘Road Transit’ risk or Inland Transit. The weighing capacity of the trailer was 35.2 MT (35,200 Kgs) and unladen weight of 11.6 M.T. (11,600 kgs.) thus, having carrying capacity of 23.6 M.T. (23,600 Kgs.). The trailer was carrying cargo of 36.75 M.T. and hence, loss due to such risk is excluded under the Insurance policy. There is, therefore, no question of any benefit accruing under the Marine Policy. The statement of the driver Mr. Vijaykumar Yadav given to the Police at the time of accident clearly shows that the trailer went to its extreme left side of the road, when the soil got pressed under the weight of the overloaded Truck and tilted, whereupon the said loosely stowed fell down and sustained damage. The Survey Report reveals that the nature of packing found at the accident was that the said steel coils were covered with polythene sheets and further covered in corrugated type polyethylene sheet pasted at the top side cardboard disc bottom side wooden pallet and the cause of damage was tilting of the trailer to the left side, which was because of overloading and unsuitability stowage/ packing. Therefore, the Opposite party states that there is no question of any benefit which accrues out of the Marine Insurance Policy.

4.       The State Commission after hearing both sides and going through the record dismissed the Complaint and observed that admittedly the cause of the accident was overloading of the carriage. It was also observed that after stowage, the consignment was not packed at the time of loading at Nhava Sheva. Therefore, repudiation of the claim of the Complainant could not be faulted with and there was no deficiency in service on the part of the Opposite Party. Aggrieved by the impugned order of the State Commission dated 05.08.2015, the instant First Appeal has been filed by Complainant.

5.       Heard the Learned Counsel the Parties and carefully perused the record. The Learned Counsel for the Appellant submitted that State Commission failed to appreciate the fact that the case of the Complainant did not fall under exclusion clause 4.3 of Insurance Policy based on which the Respondent repudiated the Insurance Claim. It was further submitted that in para 8 of the impugned order State Commission wrongly mentioned that “incident of accident due to overloading is not denied by the claimant” whereas in para 14 of the rejoinder affidavit filed before the State Commission, the Complainant had clearly denied the fact of overloading. It was further submitted that State Commission failed to appreciate that the Surveyor opined that loss was caused due to deemed insufficiency of packaging and advised the Opposite Party to pursue recovery from carriers if deemed fit, which follows that the claim was payable to the Appellant.

6.       The Learned Counsel for the Respondent/Opposite Party submitted that the State Commission rightly dismissed the Complaint by appreciating the material fact that the vehicle was overloaded and the Appellant/Complainant failed to provide any evidence to the contrary. The onus was upon the Appellant to prove that the vehicle was not overloaded. On the other hand, the Respondent/Opposite Party has duly proved that the trailer/truck bearing registration No. MH-06-A-2732, had a carrying capacity of 23.6 MT, but the vehicle was loaded with 36.76 MT at the time of accident which was almost 50% more than maximum load it could carry. This fact also finds mention in para 6 of the impugned order. It was further submitted by the Learned Counsel that clause 4.3 of the Insurance Policy provided that the Insurance Company shall not be liable to pay the claim amount in case there is loss or damage due to insufficiency or unsuitability in packing. The Survey Report mentions that the truck/trailer was overloaded in violation of the terms & conditions of the Policy. Further, it is not the case of the Complainant that terms and condition along with exclusion clause were not provided to the Appellant. Though the Appellant has denied the fact of overloading but failed to file and place any evidence either before the State Commission or this Commission that trailer was not overloaded.

7.       From the aforesaid discussion it can be concluded that Appellant violated the terms and conditions of Policy and the Respondent cannot be held liable for the negligent act of the Appellant. I concur with the finding of the State Commission that repudiation of the claim cannot be faulted. Accordingly, the Appeal is dismissed with no order as to the cost.