The Complainant in this Original Petition is a registered partnership firm, in business as a grain merchant. The petition relates to a transaction of import of 188.613 tons of pigeon peas from a seller in Singapore, but this consignment was actually loaded in Myanmar and was being shipped to India. A significant part of the goods carried in this ship, “M V Jaipur” could reportedly not be unloaded due to certain problems relating to their condition. Eventually the vessel “M V Jaipur”, flying Singapore flag, had itself to be auctioned. The incident pertains to the year 1998. The Complainant M/s. Patel Shanabhai Darubhai & Company (herein after referred to as the Complainant) claims interest in this consignment through a transaction of HighSea sale between its original purchaser M/s. Ranchhodray Pulse Mills, Vasad (hereinafter referred to as RPMV) and the Complainant. 2. The case of the Complainant is that the consignment was purchased by his vendor M/s. RPMV on 11.04.1998 from his seller in Singapore. The Consignment was loaded from YangonPort in Myanmar for India. M/s. RPMV had insured this consignment with the Opposite Party for ` 24.5 lacs under a transit insurance policy of 13.02.1998. The Complainant claims his interest in this consignment under a transaction of HighSea sale executed by M/s. RPMV in favour of the Complainant, subsequently during the same month i.e. April, 1998. 3. As per the complaint petition, the concerned vessel, M V Jaipur, reached Mumbai around 27.04.1998. When the clearing agent of the Complainant went to take delivery of the consignment it was learnt that about 1043 metric tones of cargo in Hold No.2 was not allowed to be discharged by the Mumbai Port Trust and the ship was directed on 14.5.1998 to move out of Mumbai Port. The reason apparently was that foul smell was emanating from this cargo. The Complainant subsequently learnt that the owner of MV Singapore had declared General Average due to fire on board in Hold No.2 of this vessel. The Complainant also claims to have executed the Average Bond and forwarded the same to the Average Adjuster M/s. Richards Hogg Lindley India Ltd., as per the advice of the latter to M/s. RPMV. The requisite Average Guarantee was executed by Opposite Party, Oriental Insurance Company Ltd. The cargo in Hold No. 2, including the consignment claimed by the Complainant, could not be unloaded as it was declared unfit for human consumption by the Public Health Department of Municipal Corporation of Greater Mumbai on 21.05.1998. 4. According to the Complainant, despite execution of the Average Bond by him and several other consignees relating to the cargo in Hold No.2, the ship owner could not discharge the consignment due to the problem of stability of the vessel till 10.07.1998. In this background, M/s. RPMV filed a claim on 17.8.1998 with the OP-Insurance Company for the total value of the consignment under the policy, “for the benefit of the Complainant”. 5. As seen from the Complaint Petition, on 28.1.1999, M/s. Kalidas Narsinh and Co., the clearing and forwarding agent appointed by the Complainant, had requested the M/s. Subhash Chandra and Associates, Mumbai, who were appointed as Surveyor by the Opposite Party, to inspect Hold No.2 in the vessel and draw samples of the damaged/sound cargo. The Surveyor responded on 02.02.1999 stating that they had drawn the samples from Hold No.2 and sought instructions to forward the samples for testing. Subsequently, the Complainant wrote to the Opposite Party on 04.02.1999 seeking advice of the latter on the question of incurring expenditure on an operation to salvage stocks, mentioning that if no reply were received within seven days, the Complainant would presume that the Opposite Party was not interested in salvage operation. This letter was replied by the Opposite Party on 08.02.1999 informing that detailed report of the Surveyor was still awaited and advising the Complainant to stay in touch with Halol Branch of the Opposite Party/Oriental Insurance Co. Opposite Party also advised the Complainant to lodge a claim on the carrier in time to protect the recovery rights against them. The Complainant claims to have submitted all necessary documents on 26.03.1999 to enable the Oriental Insurance Co, Halol Branch, to settle the claim under the policy. 6. The Complaint Petition also mentions the letter of 30.03.1999 addressed by the Baroda Divisional Office of Oriental Insurance Co. to M/s. RPMV, requesting them to inform the date on which the sale of the consignment in question had taken place in favour of the Complainant, together with information whether M/s. RPMV had made any payment to the original Seller in Singapore. It is stated in para 15 of the Complaint Petition that: “The Complainant states that said M/s. Ranchhodray Pulse Mills accordingly immediately confirmed to the Opposite party’s said Divisional Office at Baroda about the sale of the said consignment in favour of the Complainant on High Seas Sales basis and also confirmed that the Bankers have released the payment of the Invoice in favour of the overseas suppliers of the said consignment.” 7. As per the Complaint Petition, M/s. PS Consultants, who were appointed by the Complainant to purse their claim with OP, informed OP that a Civil Suit had been filed against the owner of the vessel to protect the rights of the underwriter. They further pursued the matter relating to settlement of the claim, with the OP. In response, the Baroda Division Office of OP advised the Consultants to forward certain documents including the information relating to payments made to the supplier in Singapore, if any. The latter stated that this information had also been sought in their letter of 30.03.1999 address to M/s. RPMV. On 17.05.1999 Complainant’s consultant wrote to Halol Branch of OP reconfirming that a civil suit had been filed against the ship owners to protect the right of recovery of the underwriter and also sought reimbursement of the expenditure incurred in this regard. Again, on 07.06.1999 the Complainant wrote to OP informing that the vessel had been auctioned for ` 1.33 crores alongwith cargo on board and requested for early settlement of the Complainant’s claim under the policy. The OP, Oriental Insurance Co., asked for a certificate from Bank of Bardoa confirming that they have remitted the original purchase price to the seller in Singapore. This certificate too was obtained and sent by the Consultant on 8.11.1999. However, two months later, the OP wrote to the Consultant of the Complainant on 24.01.2000 that after considering the Surveyor’s report and all other relevant papers the competent authority has repudiated the claim on the ground that the loss to the cargo was due to ingress of water and due to delay and resultant spontaneous combustion. Therefore, as per exclusion clause no.4.5 loss or damage proximately caused by the delay was excluded from the scope of the policy. The matter was therefore treated as no claim. 8. According to the Complainant, the loss proximately caused due to fire/or non delivery are both insured perils, the delay and financial default of the vessel owners did not play a dominate role/factor in the loss and cannot be considered to be a proximate cause of loss and therefore the claim under the insurance cover has been wrongly and unjustifiable rejected. The case of the Complainant is that the OP has wrongly interpreted the exclusion clause 4.5 of the Marine Insurance policy. This clause should be read with clause 8.3 of the policy and provisions contained in Section 50 and 51 of the Marine Insurance Act, 1963. The loss, it is claimed, as seen from the records, is not due to any delay but due to external causes. Hence, it needs to be viewed as a case of constructive total loss due to external causes. The insurance policy continued to be enforced for the period of delay beyond the control of insured. The vessel could not discharge the Complainant’s consignment, as also the other cargo on board, on account of her stability problem and to ensure safety of the vessel. The vessel was thereafter sold in auction along with the cargo including the Complainant’s consignment on “as is where is” basis under the order of the Bombay High Court. The Complainant therefore, claims that the delay, if any, in discharge of the consignment was beyond the control of the insured. In any case delay in execution of voyage for the reasons of safety of the vessel is excused under Section 51 of the Marine Insurance Act, 1963. 9. The Complaint Petition further argues that the letter of repudiation itself shows that the proximate cause of damage/loss was not delay but external forces/causes i.e. ingress of water. The Complainant has accordingly claimed the following relief— a. towards insured value of the consignment — ` 24.5 lacs b. reimbursement of expenses of Admiralty suit— ` 1.35 lacs c. 18% interest on ` 24.5 lacs since the date of constructive total loss (28.5.99.) till the date of filing this complaint— ` 7.6 lacs d. punitive damages — ` 2.0 lacs e. costs— ` 1.0 lacs 10. In response to the above, following grounds have been raised in the written reply of the respondent, Oriental Insurance Co.- a) There is no evidence that even M/s. RPMV, from whom the Complainant claims, had themselves acquired any title over the subject matter of the consignment. Therefore, there is no insurable interest. b) According to the Complainant himself, he had purchased the consignment on High Seas Sale basis. Since the fire had occurred in the loading port itself, the consignment was purchased after it was already on fire. Therefore, under Section 6 of the Marine Insurance Act, 1963 he did not have any interest at the time of the loss and cannot acquire interest after he became aware of the loss. c) The Complaint is bad for non-joinder of necessary party as the Ship owner, for whose neglect or fault the loss occurred, has not been made a party to the Complaint Petition. d) There is no privity of contract between the Complainant and the Respondent as the Complainant is a total stranger to the relevant contract of Insurance. e) The Complainant has no locus standi as he has produced no evidence of actual purchase of the consignment. f) Ingress of water, which caused the resultant damage to the cargo indicates that the vessel was not cargo worthy and her sea worthiness is seriously in doubt. g) Cargo was kept in the Hold of the vessel for over 12 months and has been damaged due to this extraordinary delay. Therefore in terms of clause 4.5 of the policy loss or damage proximately caused by this delay was excluded from the policy. h) The carrier i.e. the vessel MV Jaipur was clearly liable for damage to the cargo for which the Complainant should have lodged complaint against the carrier. There is no evidence that such a complaint has been lodged. For this default, no claim of the Complainant is admissible under the Insurance Policy. i) In the attendant circumstances of this case, it was not possible for assessors to ascertain the exact quantum of loss, which might be admissible and the fact that loss falls within several exclusions of the insurance policy. Hence, the entire loss becomes inadmissible. 11. We have seen the relevant records and heard counsel appearing on both sides on these issues. The insurance claim under the relevant policy filed on 17.8.1998, was eventually rejected through the letter of 24.01.2000 from OP/Oriental Insurance Co. Ltd. But, before examining this letter and acceptability of the grounds for rejection, it is necessary for us to take a look at the other issues raised by Respondent/ OP which are mentioned at points (a) to (e) in the previous paragraph, questioning the locus standi of the Complainant. 12. In the affidavit evidence of Sri N.K. Gupta of Oriental Insurance Co. it has been stated that the respondent company had not issued the insurance policy, in this case, to the Complainant and therefore he was a stranger to the contract of insurance. This is an argument unrelated to the facts of the case. The Complainant does not claim benefit under the policy as the insured but as the assignee of the insured, claiming through an agreement of High Sea Sale between the parties. This affidavit also seeks to reject the High Sea Sale document as the evidence of actual purchase of consignment, without giving any substantive ground for questioning the same. 13. Surprisingly, the affidavit of Mr. N.K. Gupta goes on to add: “That there is no evidence of even M/s. Ranchhodray Pulse Mills, from whom the complainant claims to have bought the consignment, having themselves acquired title over the subject consignment.” The records of this case have a letter written by the Respondent, Oriental Insurance on 22.04.1999 to M/s. P.S. Consultants (representative of the Complainant) in which the following query was categorically made:- “2. We had through our letter dated 30.03.99 addressed to Shri Ranchhodray Pulses Mill, asked for the information as to whether they have made any payments to supplier M/s. Andre & CIE (Singapore) Pte. Ltd.? Please furnish this information immediately.” Subsequently, on 5.11.1999 another letter was addressed by Oriental Insurance Co. to M/s. P.S. Consultants asking for a certificate from Bank of Baroda, Anand, main office, confirming that they have remitted US $ 53754.71 to Andre Group in payment of their invoice no.7220/98 dated 11.4.1998. The records further show that such a certificate from Bank of Baroda, was sent to M/s. Oriental Insurance Co. on 08.11.1999, by M/s. P.S. Consultants. In the background of such conclusive documentary evidence, we are completely unable to understand and appreciate the plea against the title of M/s. RPMV over the consignment. The Complainant claims interest in this consignment, under the agreement of High Sea Sale, mentioned above. 14. It is further submitted in the affidavit of Shri N.K.Gupta that the Complainant does not acquire any interest in the consignment in terms of the provisions Section 6 of Marine Insurance Act, 1963 as the consignment was purchased on the HighSea when it was already damaged/destroyed in the fire, which occurred at the loading point itself. The relevant provision is contained in Section 8, (not Section 6 as mentioned in the affidavit) and reads as follows:- When interest must attach:- (1) The assured must be interested in the subject-matter insured at the time of the loss, though he need not be interested when the insurance is effected: Provided that, where the subject-matter is insured “lost or not lost”, the assured may recover although he may not have acquired his interest until after the loss, unless at the time of effecting the contract of insurance the assured was aware of the loss, and the insurer was not. (2)Where the assured has no interest at the time of the loss, he cannot acquire interest by any act or election after he is aware of the loss.” In point of time, there can be no dispute that the High Sea Sale would be subsequent to the date of loading of the cargo. This situation is therefore covered by clause 2 of the provision, which would prevent the Complainant from acquiring any interest in the goods insured provided he was aware of the loss i.e. damage due to fire at the point of loading, when he entered into the agreement of High Sea sale. The Complainant has denied such knowledge. In so far as the Respondent is concerned, mere averment that the fire had preceded the High Sea Sale, will not suffice. No evidence is produced to show that the fact of damage due to this fire was within the knowledge of the purchaser of goods i.e. the Complainant, at the time he entered into the High Sea Sale agreement. Therefore, this plea cannot travel any further. 15. In the written response filed on behalf of the OP, Oriental Insurance Co., it is argued that the complaint is bad for non-joinder of the ship owner, due to whose neglect/fault the loss took place, as a necessary party to the present proceedings. We do not understand why this plea is raised, but not pursed by the Respondent. During the course of the proceedings in this case, the Respondent could have made an application to implead the ship owner as one of the Respondents but he chose not to do so. It is also relevant to note here, that the Respondent had taken up this issue with the representative of the Complainant in their letter of 08.02.1999. The Complainant was advised to lodge a monetary claim against the carrier in time and protect the recovery rights against them. In the affidavit evidence of Shri Devendra Patel, on behalf of the Complaint, it is categorically stated that on this advice of the OP and in order to preserve its recovery rights, such a suit was filed (Admiralty Suit No.41 of 1999) in the High Court of Judicature at Bombay. Even the cost of institution of the Admiralty suit, ` 1,35,395 had been claimed from the Respondent through a supplementary claim bill. Therefore, the plea of non-joinder of the carrier as a Respondent, cannot succeed. 16. During the course of the arguments, Mr Vishnu Mehra, learned counsel for the Respondent, stressed that the High Sea Sale agreement was not established from the records of the case. The vessel arrived in Mumbai on 27.04.1998, which means that the High Sea Sale should have been entered prior to this date. He argued that the Complainant has merely stated that the agreement was signed “sometime in April 1998”, without mentioning any specific date. Moreover, even after April 1998, the original purchaser of the goods i.e. M/s. RPMV, has -- (a)filed the claim under the policy in its own name, (b)paid the processing fee to the respondent, (c)retired the documents in favour of the supplier in Singapore. These acts, argued Shri Vishnu Mehra, make the High Sea Sale agreement document questionable and non-acceptable. 17. In furtherance of the above line of argument, the learned counsel has also argued that there is no specific assignment of the interest in the insurance policy by the insured in favour of the Complainant. Shri Mehra also drew our attention to the observation of Hon’ble Supreme Court of India in Economic Transport Organisation Vs. Charan Spg. Mills (P) Ltd., (2010) 4 SCC 114, 134, where it is observed that an assignment is transfer of a right by an instrument for consideration. When there is an absolute assignment, the assigner is left with no title or interest in the property or right, which is the subject matter of assignment. It is therefore argued by Shri Mehra that there is no assignment of interest in this case. 18. Shri Arun Khosla, learned counsel for the Complainant has countered these arguments. To start with, he objected to the insurance company trying to go beyond the grounds on which the claim had been repudiated. Thus, raising of the plea of absence of privity of contract, is opposed as that is not a ground for rejection of the claim. Shri Khosla argued that in terms of Section 52 (3) of the Marine Insurance Act, 1963, assignment of interest in a marine insurance policy can be done by endorsement or “in any other customary manner”. Therefore, it was not necessary to do it by endorsement. 19. Learned counsel for the Complainant, Sri Arun Khosla has further argued that the Respondent cannot take the plea of absence of insurable interest. The following material on record clearly establish that the Respondent acknowledged the interest of the Complainant in the consignment and the insurance claim— i. The letter of 2.2.1999 from the Surveyor appointed by the Respondent, Oriental Insurance Co. addressed to M/s Kalidas Narsinh & Co., the clearing agent representing the Complainant, seeking instructions to send the samples drawn from the affected cargo for testing and asking for all documents relating to the shipment and claim, including the Bill of Lading and the Bill of Entry. ii. Letter of 8.2.1999 was from the Respondent addressed to the Complainant, with reference to the claim under the policy. The letter says “We understand from the copy of the policy issued by our Branch office at Halal that the policy was issued in favour of Shree Ranchhodray Pulses, Vasad. Subsequently, the above consignment was consigned in your favour as per Surveyor’s letter dated 2.2.99 addressed to Clearing Agents. We therefore request you to keep in touch with our policy issuing office at following address for further details:” iii. In the letter of 22.4.99 the Respondent has written to M/s P S Consultants, the representative of the Complainant asking for counter guarantee and extra premium of ` 12,220. iv. Again, in the letter of 5.11.99 written to M/s P S Consultants, the Respondent has asked for a certificate from the Bank of Baroda confirming the payment to the original vendor in Singapore. This certificate was duly obtained and sent by the Complainant to the Respondent. 20. The records and arguments detailed above, clearly establish that the objections relating to the locus standi of the Complainant and relating to his interest in this claim of insurance, have no merit and must be rejected. We would also like to note that the claim of the Complainant, under this insurance policy, has not been questioned or challenged by his vendor, M/s Ranchhodray Pulse Mills, Vasad. 21. We now proceed to examine the contents of the letter of 24.01.2000 addressed to M/s. P.S. Consultants, by which Respondent/Oriental Insurance Co. has repudiated the claim. It reads— “We refer to the above claim and would inform you that after considering Survey Report and all other relevant papers, the competent authority has repudiated the claim on the following ground:- The cargo covered under the above policy was loaded into Hold No.2 of the vessel and it is observed that the alleged loss to this cargo was due to ingress of water and due to delay and the resultant spontaneous combustion. As per Exclusion No.4.5 of Institute Cargo Clause (A), loss or damage proximately caused by delay, even though the delay is caused by a peril insured against, is excluded from the scope of policy. We, therefore, regret our inability to entertain the claim and are accordingly closing our file treating ‘No Claim’ which please note.” 22. Learned counsel for the Complainant, has argued that the above letter of repudiation of the claim under the policy, claims to be based on the report of the Surveyor but there could be no such report, because— a. The letter of 8.2.1999, written by the Respondent, directly to the Complainant, admits that the Surveyor had not submitted his report until then. b. Even in the affidavit of 28.11.2003, filed by Sri Dilbagh Singh of Oriental Insurance Co., it is stated that the Surveyor M/s Subhash Chandra & Associates had drawn the sample but were not able to identify the consignee’s cargo as the marks and numbers on the burnt bags could not be read. Therefore, the Surveyor did not send the sample for analysis and that no further report was submitted by the said Surveyor to the Respondents. c. In the mean while, the Respondent had already repudiated the claim through their letter of 24.1.2000. It is therefore, clear that repudiation could not have been based on any report of the Surveyor, M/s Subhash Chandra & Associates. 23. The Respondent has produced two reports from another surveyor, M/s Murray Fenton (Middle East) Ltd., mentioned in the affidavit filed by Sri N K Gupta. These are dated 17.3.1999 and 22.3.1999. In the course of arguments, Sri Khosla, counsel for the Complainant has questioned the relevance of this report which is based on a visit to the vessel, nearly one year after the incident. According to him, even the appointment of a second surveyor, without notice to the Complainant is a violation of the IRA regulation No. 9(3). This Murray Fenton report has sought to raise questions about cargo-worthiness of the vessel. This was mentioned by Sri Vishnu Mehra, learned counsel for the Respondent, who argued that it attracts Exclusion Clause 5.1 of Institute Cargo Clauses (A) of the Policy under which loss/damage caused by un- seaworthiness of the vessel is excluded. But, from a perusal of the letter of repudiation it is seen that the decision of the Respondent is based on the ground in Exclusion Clause 4.5 and not 5.1. Therefore, we find no reason to go any further into the relevance of Clause 5.1. 24. The respondent has repudiated the claim as the “alleged loss to this cargo was due to ingress of water and due to delay and resultant spontaneous combustion”. The cited Clause 4.5 reads “ In no case shall this insurance cover loss, damage or expense proximately caused by delay, even though the delay be caused by a risk insured against (except expenses payable under clause 2 above)”. The delay, referred to here is explained in the Additional Written Submission of 6.8.2004, on behalf of the Respondent, in the following terms— “The insured goods, in this case, were not a total loss when the ship had arrived at Indian port in May 98. A certain quantity had, in fact, been discharged from it on 14.5.98 (page 5 para 8 of the complaint) and again as late as 15.3.99 (para 11 page 113 of complaint). Later, due to the fire in holds, the ship was anchored away from the port. There was thus delay in discharge due to fire even if by action/order of the port authorities. The goods continued to burn for over 12 months and were eventually a total loss in May 1999. Had the goods been discharged within a reasonable time after arrival in May1998, the loss would not have been there. In any case there may have been a mere partial loss. The loss was thus due to delay and the delay was proximately caused by the fire, an insured peril. The insurance policy excludes loss by delay, even if the delay is caused by a peril insured against (clause 4.5 at pg. 15 of ws).” In the very next paragraph of this Written Statement, it is mentioned that “In July 1998 the ship was arrested by order of the Hon’ble Bombay High Court. This again caused delay and the ultimate total loss of the cargo in May 1999”. 25. This conclusion of the Respondent regarding delay, after arrival in Mumbai, being the proximate cause, becomes questionable when we look at the Murray – Fenton Report filed by the Respondents themselves. Explaining the events in the port of loading, the Report says— “Disregarding the cause of the original fire (smouldering) in No.2 at the top of the stow, it is considered fair and reasonable to attribute the cause of the damage/loss to the ingress of both sea water (from water shipped, as well as wash down and water incorrectly used in Rangoon to extinguish the smouldering) and rain water. The cargo itself is of such a nature that any degree of dampening results on conditions needed to create spontaneous combustion. Hence, in addition to any abnormally high moisture content within the material at the time of loading, together with high ambient temperatures at the load port, the introduction of further water leakage on to the cargo created the ideal conditions for the physical and biological process to commence. The time span (i.e. ten months+) involved and the associated monsoon and cyclonic deluges which the vessel had experienced during the period, also provided the ingredients to keep the process going.” Clearly, damage to the consignment had substantially taken place, well before the ship reached Mumbai. 26. Secondly, there is nothing in the material above which can be construed as delay due to some acts or omission or commission on the part of the Complainant. In paragraphs 3 to 5 of this order we have given a brief account of the developments, as seen by the complainant, between 27.4.1998 when the vessel arrived in Mumbai and 17.8.1998 when the claim was first made under the policy. A large part of the cargo in Hold No.2 was not allowed by the authorities to be unloaded, first on account of declared unfitness for human consumption and then due to problems of stability of the vessel. Both were, according to the Complainant, factors beyond his control. The Written Statement of the Respondent, cited in paragraph 24, apparently agrees when it says “even if by action/order of the Port Authorities”. Also, in the Reply to the Complaint Petition filed on 1.3.2002 on behalf of the Respondent, it is clearly noted that “That the vessel was obliged to leave her berth on 15.5.1998 because the port authority would not permit damaged cargo in Hold No.2 to be landed and the master of the ship would not accept further discharge from number 1 and 3 alone because of stresses imposed on the vessel”. 27. The Respondent accepts the claim of the Complainant that the ship secured berth on 11.5.1998 and on 15.5.1998 it was asked to leave the Port. By then, only 1043MT out of total 9070 MT of cargo had been unloaded. Later, on 21.5.1998 the cargo in hold No.2 was declared unfit for human consumption. (The Respondent inexplicably, does not accept that the cargo claimed by the Complainant was in Hold No.2. But, he has also not established that it was in No. 1 or 3.) In this background, we are unable to hold the Complainant responsible for the delay. It is this delay which is made the basis for repudiation of the claim by the Respondent. 28. A similar matter came before Hon’ble Supreme Court of India in National Insurance Co. Ltd. Vs. Maharishi Heaven Earth development Corpn. Ltd. Certain goods were imported by the complainant from Brazil. The goods reached India but were delivered by the Port Authorities to another party. Some other consignment was offered to him, but was not accepted by the complainant. He informed the insurance and made a claim under the policy. Insurance Co. repudiated the claim, inter alia, on the grounds that the cross delivery was apparently caused by insufficient packing and the delay in clearance for want of original Bills of Lading. The claim was therefore repudiated under Clauses 4.3 (loss/damage/expense caused by insufficiency or unsuitability of packing) and 4.5 (loss/damage/expense caused by delay, even though the delay be caused by the risk insured against) of the Policy. National Commission held that the Insurance Co. had not been able to prove that the cross delivery was due to insufficient packing or marking or preparation of the subject matter. It was also held that, under the circumstances of the case, the complainant cannot be held liable or responsible for delay in delivery since the delay was on account of the condition in which the goods had arrived and the procedure of customs, which was required to be followed. The National Commission therefore allowed the complaint. Appeal by National Insurance Co., against this order, was dismissed by the Supreme Court. 29. Similarly, Civil Appeal No. 8186 of 2009 (United India Insurance Co. Ltd. Vs. Lords Chlora Alkali Ltd.) decided by Hon’ble Supreme Court of India on 15.3.2010, was against the order of the National Commission in OP No.246 of 1998. The facts were similar to those of the present consumer complaint. The cargo of calcium carbide imported from Romania, was on a ship that got diverted to East China for discharging the cargo. Insurance advised the complainant to minimize the loss. The complainant therefore, got a survey done which showed that the cargo was affected by moisture and had lost all commercial value. There was no way to minimize the loss, as the cost of recovery would have exceeded the cost of the damaged cargo. National Commission therefore held that the complainant was fully justified in not retrieving the cargo. It being a case of total loss, the OP/Insurance Co. was grossly deficient in service in not settling the claim. Hon’ble Supreme Court upheld this decision of the National Commission. 30. For the reasons detailed above, we hold that the Respondent has not been able to establish with evidence the ground for repudiation of the claim and the claim has been repudiated unjustly. Accordingly, the complaint is allowed. The OP/Oriental Insurance Co. is directed to pay the Complainant the value of the lost consignment. However, this payment shall be limited to the amount paid by the complainant as consideration under the High Sea Sale agreement i.e. “CIF + 2%” or the insured value of the consignment, whichever is less. The same shall be paid by the respondent within a period of three months and shall carry an interest of 6% from the date of repudiation. In addition, the respondent shall also pay to the complainant ` 1 lakh towards legal costs. | 
