1.      Heard Mr. A.K. Thakur, counsel for the complainant and Mr. Yogesh Malhotra, counsel for the opposite parties.

2.      Suzuki Powertrain India Limited (now merged with Maruti Suzuki India Limited) (the complainant) (hereinafter referred to as the Insured) filed the present complaint, for directing National Insurance Company Limited and others (the Insurer) to pay to the Insured (i) the claim of Rs.25,83,33,948/- under the Insurance Policy, (ii) interest @ 18% per annum from June, 2008 till actual date of payment, (iii) Rs. 50 lakhs as the compensation for mental agony and harassment, (iv) Rs. 50 lakhs as the damages for loss of business and (v) such other or further order as this Commission may deem fit and proper in the circumstance of the case.

 3.     The facts as stated in the complaint are as follows:-

(a)     Suzuki Powertrain India Limited was a public limited company, incorporated under the Companies Act, 1956. The Insured placed various purchase orders to the vendors in Japan, for purchasing capital equipment (machinery) and accessories. After purchasing equipment (machinery) and accessories, these goods were securely packed in 31 consignments and dispatched through vessel “M.V. Nagato” Ocean Voyage No. 051 from Yokohama and Kobe Seaport in Japan against separate Bills of Lading to Kandla Seaport Gujarat, India in May, 2008. The Insured obtained Marine Cargo Open Declaration Policy No. 361401/21/08/4200000013, of the aforesaid securely packed in 31 consignments, effective from 11.04.2008 to midnight of 10.04.2009, covering risk of Institute Cargo Clause (A), including war and Strike Riot & Civil Commotion Clause, from anywhere in the world to Manesar, Gurgaon, Haryana. Total sum assured was Rs.4,47,00,34,858/-, on which total premium of Rs.8,94,007/- + Service tax of Rs.1,10,499/- total Rs.10,04,507/- was charged. Limit per transit was Rs.60 crores.

(b)     The said vessel safely arrived and docked at Kandla Port on 08.06.2008, where the consignments were unloaded on 10.06.2008. Master Marine Services Pvt. Ltd., (the Marine Cargo Surveyor) attended the said vessel at the request of M/s. NYK Line (India) Limited, Mumbai and through their Report dated 11.06.2008 confirmed that the consignments were discharged in sound condition. While the consignments were stored at Kandla Port for custom clearance, there was heavy rainfall in and around Kandla Port on 13^th and 14^th June, 2008, which resulted heavy water logging at Kandla Port. As a result, various packages submerged in the water, up to varying heights, depending upon their position of location at the place of storage, due to which, water entered inside the packages and extensively damaged the machineries and accessories.

(c)     The fact of water logging, submerging of the packages and damage to the consignments was promptly reported to M/s. J.B. Boda Surveyors Pvt. Ltd. Mumbai, who deputed M/s. Shiv Shipping Services, Clearing & Forwarding Agent, Kutch to survey and report, who after survey, submitted report dated 14.06.2008 that due to heavy rain from midnight of 13/14.06.2008, the packages of machineries and accessories were submerged into water. In turn M/s. J.B. Boda Surveyors Pvt. Ltd. Mumbai submitted his report dated 16.06.2008, in the same term.

(d)  After subside from the water, the Insured’s clearing & handling agent M/s. R.S. Arunachalam arranged the requisite custom clearance and dispatched the consignments from Kandla Port to Manesar from 17.06.2008 onward by road, which were unloaded at Manesar from 20.06.2008 onward. Thereafter, the Insured informed the Insurer regarding damage of the consignments. Insured also submitted his claim on 02.07.2008, before the Insurer.

(e) The Insurer appointed M/s. Adarsh Associates, New Delhi & Cunningham Lindsey International Pvt. Ltd., New Delhi, the Joint Surveyors to survey and assess the loss. After survey, they submitted their report dated 13.01.2010, assessing loss of Rs.16,65,95,843.74/- relating to this policy and Rs.7,30,21,318.34 relating to Policy No. 361401/21/08/4200000055 (Total Rs.23,96,17,162/-). Loss has been assessed for repairs on the basis of actual procurement cost after the date of loss, service charges and landed costs of the material required for repairs, deducting salvage cost. The Insured made several request to the Insurer, for expediting the insurance claim. The Insurer vide email dated 24.09.2010, approved the claim for Rs.6,87,66,003/- as full and final settlement.

(f)  The Insured through letters dated 24.09.2010, 04.10.2010, 12.11.2010 and 16.11.2010 demanded the details, on the basis of which, full and final settlement was done. But the Insurer did not give any reply to the aforesaid letters. On 30.12.2010, the Insured applied for requisite information and supply the documents relating to it, under Right to Information Act, 2005. An appeal was also filed on 24.03.2011, but no satisfactory reply was given. On the allegations that the Insurer has arbitrarily reduced the amount of the claim of the Insured, ignoring Joint Surveyor’s Report and thus there was deficiency in service on the part of Insurer, this complaint was filed on 17.11.2011.

4.      The Insurer contested the case and filed its written statement on 03.08.2012, in which the material facts that (i) The Insured obtained Policy No.361401/21/08/4200000013, Marine Cargo Open Declaration Policy, for securely packed 31 consignments, effective from 11.04.2008 to midnight of 10.04.2009, covering risk of Institute Cargo Clause (A), including war and Strike Riots & Civil Commotion Clause, from anywhere in the world to Manesar, Gurgaon, Haryana; Total sum assured was Rs.4,47,00,34,858/-, on which total premium of Rs.8,94,007/- + Service tax of Rs.1,10,499/- total Rs.10,04,507/- was charged and Limit per transit was Rs.60 crores. (ii) Securely packed 31 consignments were dispatched through vessel “M.V. Nagato” Ocean Voyage No. 051 from Yokohama and Kobe Seaport in Japan against separate Bills of Lading to Kandla Seaport Gujarat, India where it reached on 10.06.2008, (iii) While the consignments were stored at Kandla Port for custom clearance, there was heavy rainfall in and around Kandla Port on 13^th and 14^th June, 2008, which resulted heavy water logging at Kandla Port. As a result, various packages submerged in the water and damaged the machineries and accessories. (iv) After transporting, the consignments to Manesar, Joint Surveyor  M/s. Adarsh Associates New Delhi & Cunningham Lindsey International Pvt. Ltd., New Delhi, was appointed to survey and assess the loss, who after survey, submitted their report dated 13.01.2010, assessing loss of Rs.23,96,17,162/- and (v) Full and final settlement of the claim for Rs.6,87,66,003/- vide email dated 24.09.2010, have not been denied. It has been stated that as per claim of the Insured, total value of the consignments loaded in the vessel was Rs.143,72,40,870. Limit per transit was Rs.60,00,00,000/. Joint Surveyor assessed the loss to Rs.15,91,01,198/-. On which proportionate liability of the Insurer per transit comes to Rs.6,64,19,430/-, after deducting custom duty on it, full and final settlement for Rs.6,87,66,003/- was done. Preliminary objection that the Insured is not a consumer, as the insured property was imported for commercial purpose, has also been raised. 

5.      The Insured filed his Rejoinder Reply dated 14.12.2012, in which the facts stated in the complaint were reiterated. It has been stated that at the time of taking Insurance Policy, value of all the 31 securely packed consignments was disclosed, list of which has been attached with Annexure-R-1, of counter reply. On the value of 31 securely packed consignments, insurance premium was charged and total sum assured was Rs.447,00,34,858/-. There was no justification for making any proportionate deduction, only on the basis of “limit per transit as mentioned in the policy”, which is useless clause.      

6.        The Insured filed documentary evidence as Annexure-C-1 to C-13, along with the complaint and Exhibits CW-1/1 to CW-1/12, CW-13 to CW-17, on 18.07.2013, details of which are given in Appendix. The Insured filed an Affidavit of Evidence of Vineet Agrawal. The Insurers filed documentary evidence Annexures-R-1 to R-3, along with Written Reply which are detailed in the appendix. The Insurer filed Affidavit of Evidence of A.S.N. Murthy. Both the parties filed their written submission.

7.      The Insurer has raised various grounds in the written reply as well as in written submission and submitted that the claim of the Insured was liable to be repudiated. He relied upon Satwant Kumar Sandhu Vs. New India Assurance Company Ltd., (2009) 8 SCC 316 and Reliance Life Insurance Company Ltd. Vs. Rekhaben Nareshbhai Rathod, (2019) 6 SCC 175, in which, it has been held that suppression/non-disclosure/misrepresentation as to material fact in proposal form of the Insured, vitiate the policy and enable the Insurer to repudiate the claim. United India Insurance Company Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644 and Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International, (2014) 1 SCC 686, in which, it has been held that Insurance agreement has to be read as a whole for harmonious construction of its terms and no aid outside the contract should be sought unless the meaning is ambiguous on a strict reading of the said term. Suraj Mal Ram Niwas Oil Mills Pvt. Ltd. Vs. United India Insurance Company Ltd., (2010) 10 SCC 567, in which it has been held that the claimant had not disclosed a number of consignments during relevant period, which was a breach of special condition that “each and every consignment” must be disclosed to the Insurer before dispatch and it was a valid ground for repudiation of the claim. Vikram Greentech India Ltd. Vs. New India Assurance Company Ltd., (2009) 5 SCC 599, in which it has been held that the court while construing the terms of the policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties. Deokar Export Pvt. Ltd. Vs. New India Assurance Company Ltd., (2008) 14 SCC 598, in which it has been held that no risk can be assumed unless premium is received in advance. General Assurance Society Ltd. Vs. Chandumull Jain, AIR 1966 SC 1644, in which it has been held that in case of ambiguity or doubt, contract is to be construed contra proferentem that is against the Insurance company and United India Insurance Company Ltd. Vs. Kantika Colour Lab, (2010) 6 SCC 449, in which it has been held that in case of Transit Risk Insurance, the claimant is entitled to cost of damaged machine and custom duty paid on it.

8.        I have considered the arguments of the counsel for the parties and examined the record. In present case, the claim of the Insured has not been repudiated rather it has been accepted as such the various grounds, raised in written reply/arguments for repudiation of the claim, have to be ignored. It is well settled that the authority cannot be permitted to raise a different ground, which was not a ground for passing the impugned order. Supreme Court in Galada Power and Telecommunication Ltd. Vs. United Insurance Company Ltd., (2016) 14 SCC 161, has held that the Insurer cannot be permitted to raise the grounds other than a ground taken for repudiation of the claim, in the complaint.  As such I am not required to go in the new grounds/allegations, which have been raised by the Insurer, for repudiation of the claim. So far as the preliminary objection that the Insured is not a consumer, as the insured property was imported for commercial purpose, is concerned, in the present case, the Insured has purchased insurance service. The term “service” is defined under Section 2 (o) of the Consumer Protection Act, 1986, in which insurance service falls within inclusive clause as such the complaint is maintainable on the allegation that there was deficiency in service while settlement of the claim.  Supreme Court in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developer (2020) 2 SCC 265 has held that a person engaged in commercial activity can avail service for his personal use.  In the present case insurance policy was obtained for personal use and not for trade or commerce or for deriving any profit from it.

9.      The Joint Surveyor, in their report dated 13.01.2010, assessed the loss of Rs.16,65,95,843.74/- relating to this policy and Rs.7,30,21,318.34 relating to Policy No. 361401/21/08/4200000055 (Total Rs.23,96,17,162/-). Loss has been assessed for repairs on the basis of actual procurement cost, after the date of loss, service charges and landed costs of the material required for repairs, deducting salvage cost. None of the parties have raised any dispute relating to aforesaid amount of the loss, assessed by Joint Surveyor.

 10.   Custom duty was denied on the ground that the loss has taken place before payment of custom duty and the Insured has not lodged any claim for refund of custom duty, before the custom authority. This fact was factually incorrect. Joint Surveyor, in their report dated 13.01.2010, assessed the loss, for repairs on the basis of actual procurement cost, after the date of loss, service charges and landed costs of the material required for repairs, deducting salvage cost. Custom duty on the damaged goods was not taken into consideration rather custom duty paid on the goods, which were imported for repairing of the machineries, was considered. Supreme Court in United India Insurance Company Ltd. Vs. Kantika Colour Lab, (2010) 6 SCC 449, has held that in case of Transit Risk Insurance, the claimant is entitled to cost of damaged machine and custom duty paid on it. The Insured cannot be denied custom duty and other incidental charges paid by it, on the goods which were imported for repairing of the machineries.    

11.    The Insurer vide email dated 24.09.2010, approved the claim for Rs.6,87,66,003/- as full and final settlement. It has been stated that as per claim of the Insured, total value of the consignments loaded in the vessel was Rs.143,72,40,870. Limit per transit was Rs.60,00,00,000/. Joint Surveyor assessed the loss to Rs.15,91,01,198/-. On which proportionate liability of the Insurer per transit comes to Rs.6,64,19,430/-, after deducting custom duty on it, full and final settlement for Rs.6,87,66,003/- was done. There is factual mistake in respect of total value of the consignments loaded in the vessel, which was of Rs.447,00,34,858/-.

12.    This Commission, relying upon the judgments of Privy Council in Forbs Vs. Git, AIR 1921 PC 209 and Supreme Court in Radha Sundar Dutta Vs. Mohd. Jahadin Rahim, AIR 1959 SC 24, in Hindustan Aeronautics Ltd. Vs. New India Insurance Company Ltd., 2019 SCC OnLine 750 (NC) has held that if in a contract deed, the earlier clause is followed by a later clause, which destroy altogether the obligation created by the earlier clause, the later clause is to be ignored, being repugnant to earlier clause and the two clauses cannot be reconciled. I respectfully agree with the aforesaid ratio. Constitution Bench of Supreme Court in General Assurance Society Ltd. Vs. Chandumull Jain, AIR 1966 SC 1644, has held that in case of ambiguity or doubt, contract is to be construed contra proferentem that is against the Insurance company.

 13.   In the present case, Total sum assured was Rs.4,47,00,34,858/, on which total premium of Rs.8,94,007/- + Service tax of Rs.1,10,499/- total Rs.10,04,507/- was charged. Fixing Limit per transit as Rs.60 crores was subsequent clause and repugnant to earlier clause. Insurer has no right to fix limit of the transit as the transit has to be done by a third party i.e. shipping company. These two clauses cannot be reconciled. In such circumstances, the later clause has to be ignored. Calculation of settlement on proportionate value was illegal. 

14.    Under Regulation-9 of Insurance Regulatory and Development Authority (Protection of Policy Holders Interest) Regulation, 2002, after expiry of six month of the loss, if payment under the policy is not made, then the Insured is entitled for interest on the amount of loss. As such the Insured is entitled to interest @ 9% per annum, from 01.01.2009, on the amount of loss.   

                                                O R D E R

In view of the aforesaid discussion, the aforementioned the complaint is allowed. The Insurer is directed to reimburse the loss amount of Rs.16,65,95,843.74/- with interest at the rate of 9% per annum from 01.01.2009 till the date of its payment, after adjusting the amount as paid through settlement letter dated 24.09.2010. The complainant is also entitled for a cost of Rs.one lakhs. The aforementioned amount be paid within two months.                                                 

APPENDIX OF DOCUMENTARY EVIDENCE OF THE COMPLAINANT

APPENDIX OF DOCUMENTARY EVIDENCE OF THE OPPOSITE PARTIES