1.       This Revision Petition has been filed under Section 21 of the Consumer Protection Act, 1986 by the National Insurance Company Ltd. (hereinafter referred to as ‘Petitioner / Insurance Company’) against the Order dated 30.11.2017 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the ‘State Commission’) in First Appeal No. 556/2014, whereby the Appeal filed by the Respondent – Tanveer Alam (hereinafter referred to as the ‘Complainant’) was allowed directing the Opposite Parties to pay the equivalent sum of US$ 14,391.02 in Indian currency with simple interest @ 9% per annum to the Complainant and setting aside the Order passed by the District Consumer Disputes Redressal Forum, Kolkata dated 11.03.2014 (hereinafter referred to as the “District Forum”).

2.       The brief facts of the case are that the Complainant is a Proprietor of of ‘Swiss International’, under the name and style of which, he carries on business of exporting leather goods from India to all around the world. The Complainant took a Marine Insurance Policy for the period from 11.02.2011 to 10.02.2012 to cover any risk of loss and damages to Cargo to be exported during transit. Under bill of lading dated 22.08.2011, the Complainant dispatched a Cargo of 119 cartons containing ladies leather bags and wallets from Mumbai to the Consignee, M/s. Leather Impression Inc. Orlando by vessel ‘Saigon Express’. It was alleged that on 10.09.2011, when the Cargo arrived at the port of discharge, the Consignee noticed damages to the Cargo and vide its letter dated 10.10.2011, lodged a claim upon the Claim Adjustor of the Opposite Party via agent – EWIG-III. Thereafter, a Surveyor was appointed by the Claim Adjustor, who investigated the matter and confirmed intrusion of water inside the Cargo and assessed the loss at Rs. 8,64,000/- in Indian Currency. It was alleged that the Surveyor observed on presumption that the damage was the result of Cargo sweat and not external water intrusion and finding the same not covered under the Policy, repudiated the claim and communicated about the same to the Complainant vide letter dated 05.06.2012. Being aggrieved by the repudiation of the claim on illegal and unlawful grounds, the Complainant filed a Consumer Complaint before the District Forum, seeking an amount of Rs. 9,14,000/- in total for cost of damages, mental agony, cost of litigation etc. with interest @ 18% per annum till payment.

3.       The Opposite Party, in its reply, denied the allegations leveled against it.  The Opposite Party stated that the claim of the Complainant was repudiated, vide its letter dated 11.05.2012, on the basis of the Surveyor’s report and further on submission of the Complainant, the same was reviewed by the Regional Office of the Opposite Party, which found the repudiation to be in order and, thereafter, the same was communicated to the Complainant. It was further stated that the Surveyor clearly attributed the causes of loss to condensation inside the internal packing, cargo sweat but no external water entry and the packaging defects, which ‘causes’ do not come under cover the policy exclusions and hence the claim was rightly repudiated. It was submitted that there was no deficiency in service for repudiation of the claim on the part of the Opposite Party and that the Complaint being not maintainable both in facts and law, is liable to be rejected in limine.

4.       The District Forum, vide its Order dated 11.03.2014, dismissed the Complaint with cost of Rs. 10,000/- to be paid to the Opposite Party.

5.       Aggrieved by the Order of the District Forum, the Complainant filed First Appeal before the State Commission.

6.       The State Commission, vide its Order dated 30.11.2017, allowed the Appeal and set aside the Order passed by the District Forum.

7.       Being aggrieved, the Opposite Party filed the instant Revision Petition.

8.       Heard the learned counsel for both the sides. 

9.       The learned counsel for the Petitioner submitted that the marine Insurance Policy for export of leather bags was obtained by the Respondent for transit from Mumbai to Orlando by sea. On reaching the destination port, wet damages to the leather bag being exported alongwith discoloration of hardware was noticed. The Surveyor gave its report on 31.10.2011, wherein it attributed the loss “due to condensation on the internal packing”. It stated that the defects are designated ‘hardware corroded due to water damage” and is “result of cargo sweat and not external water intrusion”. There are no indications that this loss is related to any transit fortuity. He concluded that the loss was not covered by the terms and conditions of the marine transit policy since the cause of loss falls under the Exclusion ICC ‘A’. Based on this report, the Insurance Company repudiated the claim. The State Commission has wrongly held liable as the damage to the bags are not on account of any transit.

10.     The learned Counsel for the Respondent, on the other hand, claimed that there has been a water intrusion and the State Commission has rightly allowed his Appeal holding that the Appellant deserves benefit of doubt. It further observed in its Order that the Surveyor itself admitted that some wrappers got ripped due to rough handling and there was visible damage impacted to 23 cardboards and there were mold / mildew found on items in the cartons that shows evidence of water intrusion. Therefore, his claim is not excluded under the marine policy. He cited the Order of the Hon’ble Supreme Court in Gurmel Singh vs. National Insurance Co. Ltd., 2022 SCC Online SC 666, wherein it was observed that the Insurance Company has become too technical while accepting the claim and acted arbitrarily.

11.     Heard the arguments. Perused the record.

12.     It is a fact that on arrival on the destination port, certain damages to the leather bags were observed on account of moisture. The Institute Cargo Clauses (A) specifically excludes under Clause 4.3:

          “Any loss, damage or expense caused by insufficiency or unsuitability of packing or preparation of the subject matter insured (for the purpose of this clause 4.3 “packing” shall be deemed to include stowage in a container or lift van but only when such stowage is carried out prior to attachment of this insurance or by the assured or their servants). 4.4: loss damage or expense caused by inherent vice or nature of the subject matter insured”.

13.     The question is whether the inherent vice exclusion applies to this case. The Surveyor himself notes that there was condensation, however, whether such condensation or to be more precise, moisture found in some form on the surface of the bags and which corroded and caused some discolouration to the bags can be proved to be on account of internal vaporization or some ingress in the container from outside. In the Revision Petition, the jurisdiction of this Commission is limited. The State Commission has looked into the matter in detail and found there would be a likelihood of ingress of water from outside. In my opinion, to conclusively prove that it is an issue of inherent vice and internal condensation or not on account of lack of any other evidence produced by either the Surveyor or the Insurance Company, it would not be proper to go against the Order of the State Commission.

14.     In view of the aforesaid discussion, the Revision Petition is dismissed and the Order of the State Commission is partly upheld by modifying it only to the extent that the rate of interest shall be reduced from 9% p.a. to 6% p.a. simple interest and the period of payment increased from 45 days to 60 days. Further, since the Complaint is a claim for a total sum of Rs. 9,14,000/-, this amount shall be paid by the Insurance Company alongwith rate of interest @ 6% p.a. from one month after the Surveyors report till realization.