This revision petition has been filed by the petitioner Parthbhai Pravinbhai Ganatra, against the order dated 13.07.2011 of the State Consumer Disputes Redressal Commission, Gujarat, (in short ‘the State Commission’) passed in Appeal No.1677 of 2010. 2. The brief facts of the case are that the complainant had obtained Marine Open Insurance Policy from opponent. The policy number is 0830004153 valid from 19.04.2008 to 18.04.2009. Under this policy the transit risk was covered. The complainant sent export consignment vide invoice No.JE/EX/04 dated 10.06.2008 to Jabel Ali port of U.A.E. through Mundra Port in India. The consignment reached destination in damaged condition and therefore, the complainant immediately informed opponent, the Insurance Company. The opponent appointed surveyor for assessment of loss sustained by the complainant. The complainant has alleged that the opponent did not pay complainant’s claim despite he replied all the questions raised by the surveyor and surveyor in turn submitted his report on 22.11.2008. The surveyor did not find the claim payable. Therefore, complainant filed complaint before Consumer Disputes Redressal Forum, Rajkot, (in short ‘the District Forum’). Upon service of the summons on opponent by complainant the opponent appeared before the District Forum and submitted their written statement wherein the main defence of opponent was that as per exclusion clause of the policy, the loss due to rusting, oxidation and discoloration is excluded unless caused by ICC (B) perils. Hence according to the opponent, as the opponent has repudiated the claim of the complainant considering the exclusion clause of the policy, therefore, there was no deficiency in service on the part of the opponent. 3. The District Forum vide its order dated 26.10.2010 allowed the complaint as under:- “23. In view of aforesaid discussion, as the repudiation is not justified and considering the survey report, we arrive at the conclusion that the complainant is entitled for the amount as per the survey report and the opponent is liable for the same. Hence, we pass the following final order: ORDER The present complaint of the complainant is hereby allowed. The opponent is hereby ordered and directed to pay to the complainant Rs.353480/- (Three Lacs fifty three thousand four hundred eighty) with interest at the rate of 9% per annum from the date of filing of the complaint till its realization within 30 days from the date of order and on failure to pay within 30 days, the interest will be charged at 10% per annum. The opponent is hereby further ordered and directed to pay to the complainant Rs.5000/- towards mental harassment and Rs.3000/- towards the cost of the complaint within 30 days from the date of order.”
4. Aggrieved with the order of the District Forum, opposite party/respondent preferred an appeal bearing No.1677 of 2010 before the State Commission and the State Commission vide its order dated 13.7.2011 allowed the appeal and set aside the order of the District Forum and the consumer complaint was also dismissed. 5. Hence the present revision petition. 6. Heard the learned counsel for the parties and perused the record. 7. Learned counsel for the petitioner states that the petitioner is an exporter and Marine open Insurance Policy from the opposite party/respondent for consignment, which was being exported from Rajkot to Dubai. When the consignment reached at the destination the material reached in a damaged condition. The Insurance Company appointed a surveyor. The surveyor vide its report dated 23.11.2008 has not found damage due to any peril operating in the policy. The surveyor has found that the consignments of the machinery parts were found in wet and pressed condition. The District Forum has allowed the complaint after considering all the aspects in the matter. However, the State Commission has accepted the report of the surveyor and based on that report the appeal of the opposite party has been allowed and the consumer complaint has been dismissed. The learned counsel stated that the policy in question covers all types of risks and when the material was booked it was in a good condition and when it reached the buyer, it was found in wet and pressed condition as reported by the surveyor and some of the machinery parts were damaged. Obviously, the wetting of the consignment has happened during the sea voyage. If the water enters due to any reason the claim is covered under the policy. Learned counsel further argued that the surveyor has negated the entry of the sea water on the basis of the Silver Nitrate test. It was argued that this test was not conducted before the petitioner/complainant and therefore, the same cannot be relied upon. Learned counsel further stated that in the affidavit the complainant has already stated that no list of ICC(B) perils was supplied to the complainant as mentioned below:- “10. That opponent has not paid our legitimate claim, even after almost 8 months of submission of survey report despite compliance of the entire requirement raised by the opponent. The opponent has not paid the claim for doing unjust enrichment to their company and whereby depriving me to get our legitimate right of recovery of our damage under the said policies and whereby committed deficiency in the services. That after filing the complaint, we have received a copy of opponent’s letter dated 31.07.2009 which is originally addressed to our consignee. The reasons assigned in the letter are all flimsy, whimsical, unwarranted, illogical, unjust and irrational and are not supported by the policy wordings supplied to us from page 1 to 3 of the policy, the opponent has not supplied us detail text of the clauses as mentioned in the policy page 1 to 3. Moreover, the opponent has never supplied us the perils covered under ICC-B as stated in this letter. That the cover available under ICC-A is a wider most and all risk cover which does not exclude any peril as defended by the opponent. Second things, the so called Silver Nitrate test is not conducted in presence of consignee or his representative and therefore, the result of the rest whatsoever is not binding on us.” 8. On the other hand learned counsel for the Insurance Company stated that the complainant is not entitled to file the claim of Insurance as he has no locus standi to file the claim in the present matter. Inspite of the reminders from the surveyor, the consignee did not file the claim till the date of filing of the report by the surveyor on 23.11.2008. In fact the consignee has later filed claim on 07.05.2009. The complainant has already received the payment and therefore, he cannot file insurance claim as no insurance claim can be given to the complainant as this will become a double payment to the complainant. Perils of ICC (B) are not covered in the policy as the premium of those perils has not been additionally paid, therefore, the exclusion clause is fully applicable in the present case. Learned counsel stated that in the policy schedule the following warranties and exclusion have been mentioned:- “Warranties/Exclusions: Warranted that the trucks will be properly covered with tarpaulin. Excluding losses due to rusting, oxidation and discoloration & Excluding electrical, electronic & mechanical derangement unless caused by ICC (B) perils. Important Notice Clause.” 9. It was further stated by the learned counsel for the respondent that the surveyor in its report has examined all possibilities of getting water inside the packages and has reached to the conclusion that the only possibility was that the items were loaded in a damaged conditions or they were wet from the very beginning, which caused rusting on the way. The surveyor has ruled out any seepage or leakage of sea water as the Silver Nitrate test has failed. The surveyor has given the following as attributed cause of damage:- “Attributed Cause of Damage: The container were already dispatched before our survey, however the packing and covers of the parts in the consignment was seen as wet and affected by water. As the Bill of Lading with “Shippers Load Stow and Count”. It is presumed that the cargo could be affected prior to loading it into the container. Silver Nitrate Test: Silver Nitrate (Sea Water) Test showed Negative Results, Therefore, the consignment was not affected by sea water.” 10. The above observation of the surveyor clearly shows that the sea water did not enter the packages and the items were not checked by the shippers at the time of loading and they were loaded as it is, hence, the only possibility is that the items were damaged prior to loading itself. 11. The learned counsel for the respondent further stated that it was not correct to say that the terms and conditions and other details of the policy were not supplied to the complainant because the complainant, being a regular exporter was permitted to take out the copy of the policy from the website using a password. He was provided with a password. Moreover, the complainant has not stated anything in this regard in the complaint. Hence, this is an afterthought and cannot be accepted. 12. Learned counsel drew attention to the liability clause mentioned in the certificate of insurance, which inter alia reads as follows:- “LIABILITY OF CARRIERS BAILEES OR OTHER THIRD PATIES: 3. When delivery is made by Container to ensure that the Container and its seals are examined immediately by their responsible official. If the container is delivered damaged or with seals broken or missing or with seals other that as stated in the shipping documents, to close the delivery receipt accordingly and retain all defective or irregular seals for subsequent identification. 4. To apply immediately for survey by ‘Carriers or other Bailees’ Representatives if any loss or damage be apparent and claim on the carriers or other Bailees for any actual loss or damage found at such survey.” 13. Learned counsel argued that the claim should have been filed by the insured immediately. However, the surveyor reminded vide their letters dated 07.07.2008, 26.07.2008, 06.08.2008 and 10.09.2008 to the consignee, however, the claim was not submitted till finalization of the report by the surveyor and the same was submitted on 07.05.2009. Thus, prima facie the claim itself is against the liability clause mentioned in the certificate of insurance. In this regard, learned counsel for the respondent cited the decision of this Commission in FA No.182 of 2011, M/s. Glass Palace & Ors. Vs. M/s. TATA AIG General Insurance Co. Ltd., decided on 21.08.2012 (NC) wherein the following has been observed:- 14. With regard to the payment already received by appellants, State Commission observed; it is also not disputed that the consignee M/s. Beverley Howard Inc. has already made the payment for the consignment to the complainant. State Commission further observed; then the complainant served a notice (Annexure C-42), it was admitted through para 6 of the same that the payment has been made from Canadian Bank to Indian Bank as per the contract of payment. The ld. Counsel for the complainant argued that the amount has been debited to their account vide Annexure C-43 and, therefore, the total amount has fallen due. In fact Annexure C-43 is purported to be a debit note and not the payment of the amount by the complainant to M/s Beverley Howard Inc. The ld. Counsel for the OP has argued that even the authenticity of Annexure C-43 is doubtful and it appears to have been created by the complainant because the affidavit of none from M/s Beverley Howard Inc. has been produced to prove it nor any evidence is produced to prove that the amount was sent back by the complainant to the said company. Otherwise also, it is not the case of the complainant if they returned the amount to the said bank or the consignee on receipt of the debit note. Admittedly, no legal proceedings have been initiated against the complainant to recover the said amount. In view of these facts, when the complainant has already received the value of the invoice, they cannot now file this complaint to get further enrichment by claiming the amount from the insurance company.” 14. Learned counsel for the respondent further stated that no proof has been filed that complainant has received any notice for refund of the payment from the consignee and therefore, this is only a tactics deployed by the complainant to get the insurance money. It was further stated by the learned counsel for the respondent that the complainant in its affidavit dated 27.05.2010 has stated the following:- “9. That as FEMA regulations if the payment of invoice is received by the consignor from consignee through authorised foreign exchange dealer, the consignor can recover the claim for damages from Indian Insurer and can repatriate the same to the foreign buyer under intimation to RBI. The consignor is prepared to fulfil his duty as laid down in the law applicable for such type of claims and transactions.” 15. From the above, it is crystal clear that the consignor has received the full payment from consignee. It is his fear that if the consignee wants refund of his amount, he may have to refund the same. That is why the complainant is pursuing the complaint, however, no proof has been filed whether he has received any letter from the consignee in this regard. 16. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. There are two aspects involved in this revision petition. First is in respect of the complainant, whether he can file complaint for insurance claim and secondly, whether any claim is justified on merit. 17. Coming to the first question, it is seen that the complainant has already received the payment from the consignee as is implied from the affidavit dated 27.05.2010 of the complainant referred to by the learned counsel for the respondent above. The argument of the complainant is that the consignee can ask to refund the amount. However, no such document has been filed to prove that the consignee has asked refund of the paid amount and therefore, complaint cannot be decided on presumptions. Moreover, the consignee was reminded many times by the surveyor through letters dated 07.07.2008, 26.07.2008, 06.08.2008 and 10.09.2008. As mentioned in the surveyor’s report, however, the consignee did not submit claim before the submission of the report by the surveyor. In fact the consignee has submitted his claim on 07.05.2009. In such situation relying on the judgment of M/s. Glass Palace & Ors. Vs. M/s. TATA AIG General Insurance Co. Ltd. (supra), I am of the view that the complainant’s claim under the policy is not maintainable. 18. Even coming to the merits of the claim, it is seen that the surveyor has considered all possibilities of rusting of machinery components and has established by process of elimination that the goods might have been damaged even before the shipment. As the Silver Nitrate test has failed, the possibility of sea water entering into the packages is ruled out. I agree with the State Commission when the State Commission has not accepted the argument of the complainant that the Silver Nitrate test is not reliable as it was not conducted before the complainant. The State Commission has observed that the Silver Nitrate test was done in Dubai and therefore, there was no question of the complainant being present there. The possibility of goods having been damaged prior to shipment has been supported by the bill of lading with “shippers load stow and count”. On this basis, the surveyor has concluded that the cargo could be affected prior to loading it into the container. 19. Though the complainant has alleged that list of ICC(B) perils were not supplied to the complainant, but the Insurance Company has stated that the policy was printed by the complainant himself by using the password given by the Insurance Company. Thus, there was no question of supplying any copy of the policy and terms and conditions to the complainant. If there is anything lacking, the complainant may have got clarification from insurer by writing them a letter or e-mail. After the incident, this plea cannot be accepted. 20. Under the Warranty and Exclusions mentioned in the policy schedule, it is clearly stated that rusting, oxidation and discoloration are excluded unless covered by ICC(B) perils. The Insurance Company has stated that the insured has not paid any extra premium for ICC (B) perils and therefore, ICC (B) perils are not attracted for the present loss. Hence, the exclusion shall operate. The complainant has not clarified if the damage was not relating to the items mentioned in the Exclusion clause like rusting, oxidation and discoloration. Hence, I am of the view that the Exclusion clause will operate in the present case. 21. Based on the above examination, I find that first of all petitioner’s insurance claim is not maintainable and secondly even on merits the claim does not seem to be payable because of the exclusion clause. 22. On the basis of the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 13.07.2011 passed by the State Commission, which calls for any interference from this Commission. Accordingly, the revision petition No.3599 of 2011 is dismissed. | 
