No. 7/10.08.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

This appeal is directed against the judgement and order dated 30.06.2010 passed in the complaint case filed by a foreign company alleging deficiency of service by the Insurer for not settling the claim relating to shipment of a consignment of leather wallets covered under Marine Cargo Insurance Policy.  The said foreign company is an importer.  The O.P. No. 3 is the Company located in the Salt Lake City of Kolkata.  The Complainant placed an order the to the said O.P. No. 3 for consignment of 12960 pieces of leather wallets.  The O.P. No. 3 accordingly entered into an agreement with the O.P. No. 2 for shipment of the aforesaid consignment of leather wallets.  It is not in dispute that the said O.P. No. 3 took a Marine Cargo Insurance Policy covering the risk of transportation of the said consignment to the Complainant by transshipment per vessel Achiever B174 at the port of Kolkata.  The said consignment landed at New York and upon inspection entire consignment of leather wallets was found damaged and affected with Mold at the time of survey.  The said surveyor observed that consignment became unworthy of sale and the Complainant could not sale any of the wallets to its clients and he thus assessed the loss as a total loss for the amount equivalent to US $ 50582 which was the invoice value.  Hence the aforesaid insurance claim by the aforesaid Complainant – importer which has been repudiated by the O.P. – Insurer.

Section 52 of the Marine Insurance Act, 1963 proveds as under :

“When and how policy is assignable – (1) A marine policy may be transferred by assignment unless it contains terms expressly prohibiting assignment.  It may be assigned either before or after loss.

(2)  Where a marine policy has been assigned so as to pass the beneficial interest in such policy, the assignee of the policy is entitled to sue thereon is how own name; as the defendant is entitled to make any defence arising out of the contract which he would have been entitled to make if the suit had been brought in the name of the person by or on behalf of whom the policy was effected.

(3)  A marine policy may be assigned by endorsement thereon or in other customary manner”.

Upon careful reading of the said Section it clearly appears that a Marine Insurance Policy is assignable and it does not stand as assigned impliedly in course of transshipment of a consignment by an exporter to the importer.  In the case in hand there is no document to show that the aforesaid Marine Insurance Policy was assigned by the O.P. No. 3 in favour of the Complainant either before the transshipment of the consignment or after the consignment landed at New York.  In the absence of such assignment in compliance of provision of Section 52 of the Marine Insurance Act, 1963 this complaint by the Complainant, a foreign company to whom the consignment was sent by the O.P. No. 3 is not maintainable as there was no privity of contract of insurance by and between the Complainant and the Insurer.

Secondly, it has been proved in evidence that the risk of transshipment of the consignment was covered by the aforesaid Insurance Policy for transshipment of the same by Vessel Achiever V-174 from the port of Kolkata.  It has further been established on material record that the consignment was not loaded per Vessel Achiever V 174 but was loaded for transshipment per Vessel Express under Voyage 38.  Section 48 the Marine Insurance Act, 1963 provides that any deviation from the voyage contemplated by the policy discharge Insurer from his liability under the contract.  In view of such change of transshipment of the consignment without any knowledge of the Insurer it cannot be said that the Insurer would be liable for the damage of the consignment in course of such transshipment.

Lastly, the survey report indicates that the damaged condition of the consignment was also not due to any act or any condition on the part of the carrier but because of inferior quality of goods consigned to the Complainant by the O.P. No. 3.

For all the reasons as aforesaid we do not find any reasonable cause and excuse to interfere with the impugned judgement passed by the Forum below dismissing the complaint.  The appeal is accordingly dismissed.