Sh. Nikhil Sanan proprietor of the complainant firm M/s B R Diamonds has filed the present complaint against the titled opposite parties (the OP insurers and the OP couriers) alleging non-settlement of their insurance-claim by the OP insurers filed to recover the total-loss incurred to them on account of the insured gold-jewelry-parcel couriered for delivery at Canada (Vancouver) was lost-in-transit by the OP couriers. The complainant firm based at Batala have been engaged in the business of import-export of precious-metals jewelry and diamonds etc and had dispatched jewelry valuing Rs.21,97,646/- on 06.06.2018 to its client M/s Maruti Diamonds at Vancouver; invoiced at CAD 38200.00 including taxes, insurance and freight etc as duly packed in Tin Box weighing 2.2 Kg (Net weight 1068.96 gm) and as handed over to the representatives of the OP couriers, in India.

2.       As the booked consignment was not delivered at Canada, the complainant through his Custom Clearing Agent reported the matter to the OP couriers/carriers on 08.06.2018. It needs be clarified here that the OP couriers do carry/transport their consignments themselves through their own owned cargo-planes for the purpose and provide both the services to their clients/consumers. However, the consignment could not be traced and stayed missing/UN-traced as shared by the OP carrier's local counter-parts and who later had also declared the consignment as 'lost' (in transit) and thus the complainant through the customs clearing agents M/s BVC Logistics Ltd., lodged complaint on 04.07.2018 with the OP couriers and who, in turn, issued the 'Non Delivery Certificate' on 06.07.2018 to the effect that the Tin Box Parcel (2.27 Kg in weight) containing Gold-jewelry etc., invoiced @ CAD 38,001,41 booked by the complainant from India for delivery in Vancouver was lost in transit and continues to stay UN-traced.   

3.       Further, the complainant filed on 07.07.2018 his insurance-claim along with all the requisite papers with the OP insurers at India but got its acknowledgment on 23.07.2018 vide an electronic mail from an intermediary M/s Websters Overseas Limited, USA; who further mailed of their having initiated 'survey-n-investigation' of the 'lost-consignment' it being the one High-Loss Value-Claim and for the purpose had also appointed the surveyor who shall be liaising with the complainant. The Surveyor, in turn, had requisitioned certain documents-in-evidence to the 'lost-consignment' that were duly provided except the one  deposition confirming that 5% value of the parceled-goods were indeed declared to the airlines at the time of dispatch-delivery since the OP couriers were themselves the airline-carriers and to them 100% value of the dispatched-goods stood declared. But the OP in their endeavor to somehow wriggle out of their legal liability vide the insurance as well as the courier contract refused to listen the voice of logic hence the present complaint.

4.       The complainant besides his affidavit (Ex.CW1/A) has also filed the herein listed papers/documents in support of successful prosecution of his complaint: i) Ex.C1 to Ex.C2 – Copy Invoice + Inventory; ii) Ex.C3 to Ex.C6 – Copy Text Bills + Staple Documents; iii) Ex.C7 to Ex.C8 - Insurance Cover + Policy; iv) Ex.C9 to Ex.C11 – Shipping Bills; v) Ex.C12 – Letter dated 04.-07.2018; vi) Ex.C13 – Claim Form; vii) Ex.C14 – Non-delivery Certificate; viii) Ex.C15 – Letter dated 07.07.2018; ix) Ex.C16 to Ex.C17 – Copies Surveyor's Mails; x) Ex.C18 to Ex.C23 – Surveyor's e-mails; xi) Ex.C24 to Ex. C25 – Formal Claim 26.09.2018 with postal-receipt; xii) Ex.C26 to Ex.C29 – Correspondence with the OP insurers; xiii) Ex.C30  to Ex.C36 – Legal Notice (24.02.2020) cum postal-receipts; xiv) Ex.C37 to Ex.C41 – Correspondence with the OP couriers + postal-receipts; xv) Ex.C42 – GST Registration; xvi) Ex.C43 – Registration cum Membership of Gem & Jewelry Export Promotion Council; and, xvii) Ex.C44 – Copy Import-export License; in addition to filing of rejoinders to the written replies by both the OP insurers and the OP courier/carrier and written arguments.

5.       The titled opposite party insurers (the OP1 to the OP4) appeared in compliance to the commission’s summons/notice through their common counsel who filed the written reply stating therein preliminary as well as other objections (on merits) as:

6.       The OP insurers have admitted having issued the Marine Cargo - Single Voyage – AIR -Insurance Policy # 271900/21/2019/176 bearing cover note 348795 (06.06.2018) covering the By Air voyage from New Delhi to Vancouver of one Tin-box containing studded gold n silver jewelry; cut and polished loose diamonds invoiced vide Exp/002/18-19 (06.06.2018) for a Sum Insured of Rs.21,97,646/- at a collected premium @ Rs.2,595/-. The consignment was delivered to the OP couriers at New Delhi for transportation/delivery to the addressee at Vancouver. Further, the OP insurers have produced its tracking fields with time/date etc i.e., from New Delhi to Dubai to France and then to Memphis USA from where it could not be traced further and was 'lost/misplaced' as an untraceable consignment since no further movement was available on the FedEx tracking systems/records. Perusing the Investigating Agnecy M/s Webster & Co.'s Report (who had further engaged one local detective to trace the missing box) and thus the OP couriers M/s FedEx Services had issued the 'Non-delivery' letter certifying that consignment could not be located despite extensive search/efforts beyond Memphsis, Tennesee, USA. The OP insurers have finally concluded from the all above that 'non-traceability' of the missing-box falls under category of 'mysterious-loss' in insurance-parlance and thus not entitled to insurance-cover under the terms of the policy. Moreover, another policy condition was not complied with by the complainant vide which 5% value of the booked goods were to be mandatorily declared to the cargo-airlines at the time of booking. Thus, the insurance-claim was rightly repudiated and conveyed vide letter dated 06.08.2020. Further, the sale-contract had been on FOB (Free on Board) basis and as such the liability of the seller ceases with the boarding of goods at the dispatch station and the liability gets shifted upon the buyer unless there's Seller's Contingent Liability clause in the related policy; And, as the invoice was drawn on CIF (cost including freight) basis their liability ends with the consignment getting uploaded on the cargo-airlines at the starting airport. Lastly, as the presence of seller's contingent liability clause in the policy as well as the 5% value declaration of the booked goods (to the cargo-airlines) are not evidenced in the complaint, on records, the related claim stood rightly repudiated. Lastly, as the claim was itself not maintainable its petition I.e. the present complaint deserves dismissal, too. On merits, the OP insurers have pleaded on the same/similar lines and have denied all other contents/allegations as put forth in the complaint for one reason or the other and have finally prayed for dismissal of the complaint with exemplary costs. The written reply has been duly supported by the affidavit Ex.OP1 to 4/A of Sh Harbans Lal  Sr. Div. Manager and also the copy of policy (Ex.OP1 to 4/1); copy of Repudiation Ex.OP1 to 4/2); copy of the Surveyor Report (Ex.OP1 to 4/3) and copy of the Policy terms & conditions (Ex.OP1 to 4/4) alongwith written arguments.

7.       Similarly, the OP (5 to 7) couriers/cargo-airlines appeared on notice through their counsel who filed joint written reply comprised of preliminary as well as other (on merit) objections along with documentary evidence as listed hereunder and prayed for dismissal of the complaint with exemplary costs or orders as deemed fit, in the interest of justice.                                                

8.       That the present complainant do not fall under the statutory 'consumer' definition of 'consumer' as they have been admittedly engaged in the export-import 'commercial-purpose' business for earning of profits. Further, the complaint is bad for non-joining of the necessary parties. The consignment was booked by the custom house clearing agent M/s BVC Logistics Pvt Ltd. and there has been no privity of contract with the complainant. Similarly, the surveyors M/s WK Webster Overseas Ltd., had acknowledged the loss but both of these otherwise necessary parties are not en-joined here, as the respondent OP. And, there's been no cause of action favoring complainant and/or against the OP couriers and the present complaint has been filed only to cause wrongful loss to them. Also, the impugned claim was forwarded through them to the OP insurers and presently they have been unceremoniously enjoined as respondent party in the complaint. There's have been neither any deficiency in service alleged against them nor any relief stood sought against them in the present complaint. Lastly, the OP couriers have produced the chart vide which the maximum liability for loss of consignment stood fixed @ USD 100.00 only and they will not be liable beyond the same and have also sought dismissal of the complaint with costs. On merits, the pleadings/replies/objections have been raised on similar-lined pattern with denial for variegated reasons being their prime defense. The answering OP have also filed the affidavit (Ex.OP5-7/A) of their Manager Operations Shaminder Sood besides copy of his (Ex.OP5/1) letter of authority along with Annexure A for managing area field operations alongwith written arguments.   

9.       We observe that the litigants here have filed their respective written arguments as mandatorily desired Under Regulation 13(2) of the Consumer Protection Act (Consumer Consumer Procedure) Regulations, 2020; and the complainant has also filed rejoinders to both the written replies by the two category-groups of the opposite parties. 

10.     We have examined the available evidence on records so as to statutorily interpret the meaning and scope of each and also the gravity of adverse inference on account of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsels for their respective litigants.

11.     We observe that the present dispute has arisen on account of the impugned ‘repudiation' of the complainant's 'Total-loss Insurance-claim' by the OP insurers on two counts: i) Addressing the claim-reported loss as 'mysterious-loss' that is not covered under the policy; and ii) Absence of the mandatory declaration disclosing 5% value of the booked goods to the cargo-airlines.

          Quote: “Mysterious Disappearance Clause! What Does Mysterious Disappearance Clause Mean? A mysterious disappearance clause is a provision in a property, renter's, and homeowner's insurance policy that excludes coverage for a lost item of considerable value if the cause of the loss cannot be sufficiently explained by the insured.

             Mysterious Loss: … the loss of property  under unknown or puzzling     circumstances which are difficult to explain or understand … Insurance-o-pedia Explains Mysterious Disappearance Clause: It can    be a diamond ring, a newly purchased laptop, or an expensive handbag—it's gone but there is no sign of forced entry and the area      is exactly as it looked the last time the owner or tenant saw it. The    policyholder makes a claim for the lost item but is at a loss for words when it comes to explaining how that item could have possibly    disappeared. That, in essence, is what the insurance industry    considers a mysterious disappearance. If this clause is in the policy,      the loss will not be covered and the policyholder will not get any       money from the insurance company to replace the missing item.”

12.     We observe that the OP insurers in their endeavor to wriggle out of their insurance liability have categorized the loss into mysterious-loss by merely addressing it “mysterious disappearance” of the insured box at the U.S. Airport. However, that has not been the true evaluation as the loss of the insured-box has been well understood and well explained and very-well pointed as having occurred during transit at the U.S. Airport by the OP couriers by way of engaging an independent investigator/private detective but have not shared the resulting reports for collateral reasons however on the basis/strength of the same they had issued the Non-delivery Certificate for filing the impugned claim. We find that the OP insurers have not  carried out any investigations, at their own, having relied in stead simply upon the OP courier investigations and addressing the loss as 'mysterious-loss' so as to evade/escape their liability to pay the insurance-claim. We observe that the OP insurers have always been at liberty to get satisfactory explanations and understand the loss better in their own way through investigations cum means of own choice/discretion by engaging private detectives or through filing of complaint with the U.S. Federal Police.

13.     Regarding 5% value declaration of booked goods to the cargo-airlines, we observe that the insured-box was delivered to the OP courier/carrier by 100% value declaration by the complainant and it has been up to them to transport the consignment through their own cargo-plane(s) and/or through other cargo-airlines in compliance to the established rules and regulations. Moreover, the OP insurers have failed to prove vide some cogent evidence that the 5% value declaration term was not adhered to – as the o n p (onus of proof) of the same lied heavily upon them since they had raised the relating objection. The OP insurers have reached all their deductions/determinations etc in an apparent secretive confidence with no respects to transparency the cardinal aspect to the modified consumer laws. Further, the OP insurers have kept its findings restricted to repudiation of the claim only and did not award the necessary furtherance to the criminal offense committed at the U. S. Airport unmindful of unlawful losses to the complainant and that again confines the OP into the periphery of malafide, deficiency in service, employ of unfair means/tactics and unscrupulous exploitation of the consumer and that ranks them up against an adverse statutory award. The OP plea of 'commercial-purpose' does not help them either as by the time through a train of senior court judgments availing of one-time courier, insurance and cargo-carrier (banking also) does not fall under the purview of 'commercial-purpose'.                 

14.     We further find that the OP insurers have admitted the factum of insurance, sum-assured and the claim reporting total-loss etc and so the settlement of the insurance claim @ total-loss has been judiciously justified and thus in the light of the all above, we partly allow the present complaint and ORDER the OP insurers to pay the total-loss claim at the full sum-assured in terms of the related policy with interest @ 9% PA from the date of issuance of Non Delivery Certificate i.e. 6.7.2018 besides Rs.25,000/- in lump sum as cost cum compensation within 45 days of receipt of the certified copy of these orders otherwise the aggregated awarded amount shall attract an additional interest @ 3% PA from the date of the orders till paid in full.                                   

15.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

16.      Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.  

                                                           (Naveen Puri)

                                                                 President.

ANNOUNCED:                                (B.S.Matharu)

SEP. 15, 2022.                                            Member.

YP.