specific Exclusion under ICC (a) under clause<br /> No.4(b) which also as under "Unless the <br /> policy otherwise provides the Insurer of goods is<br /> not liable for any loss proximately caused in delay<br /> Although the delay is caused byPeril insured against."<br /> Before repudiation of the claim, the Insurance Company sought clarification of the discrepancies vide its letter dated 25/4/06 Ex.C6 and the same was duly replied by the complainant firm vide letter dated 26/4/06 Ex.C5 which pertained to the delay and for want of safe storage of goods at CSF Daronagiri. Complainant firm submitted reply that vessal had already sailed out prior to shifting of container at Bombay port which was beyond the control of complainant firm and that claim intimation was lodged after two months because damaged consignment reached complainant firm late at Phagwara from Bombay and that Dry port at Bombay kept the material at open but later they shifted in a shed. It was further explained that there was no matter to take storage policy as the consignment was on its route to destination , so no matter to get an extra cover. It was ordinary course of transit and delay was on account of the circumstances beyond the control of complainant firm.. Complainant further reiterated insurance claim vide its letter dated 21/7/06 Ex.C3 and another letter dated 36/7/06 Ex.C4. Complainant firm filed affidavit through its Managing Partner Paramjit Singh Ex.C1 wherein he has stated that insurance claim was rejected illegally on the ground that there was delay in adventure which is covered under the Exclusion clause of the policy. He however stated that exclusion operates only where consignment is of some perishable nature which could be damaged in delivery of consignment but same was not in this case because the consignment would not have been damaged otherwise but on account of heavy rains. Even if the goods would have been remained stored at the port for a long time and as such the damage to the consignment was definitely covered under the insurance policy taken by the complainant firm. He further submitted vide affidavit Ex.C15 that both opposite parties No.1 and 2 are jointly liable for the damages caused to the goods. It was duty of the opposite party No.1 to ensure that goods despatched are boarded on the vessal in perfect safe condition for which it charged handsome amount by way of insurance. Moreover at the time of loading of the goods at the port, it was the duty of the opposite parties No.1 and 2 to ensure that till the said consignment is loaded, it remain in perfect condition as the goods were at the time of their despatch but inspite of the fact that goods were constructed at the said port, still goods were allowed to remain stranded in open and thereby exposed to heavy rain resulting into damage . The goods were not perishable as it was claimed by opposite party No.1 but the goods had perished on account of in action on the part of opposite parties NO.1 and 2 in storing the goods.<br /> 9. The counter affidavit of B.S.Arora Divisional Manager of opposite party No.1 Ex.R1 that since opposite party No.2 was engaged by the complainant for the purpose of transportation and completion of the process to ensure shipment of goods to the foreign consignee but before the goods could reach to the port in time, the vessal had left the harbour and sailed away on 9/5/05 and secondly the goods were abandoned by opposite party NO.2 in open without any shed over the goods nor the same was stored in a safe place and on account of heavy rains the goods were damaged to such an extent that they did not remain export worthy. Even a spot survey was got done at Bombay from Trans Ocean Marine and General Survey Agencies who submitted his report on 18/7/2006 which clearly shows that damage was due to rains. as the storage was said to be in open plot. It is further stated that claim of the complainant was rightly repudiated under Exclusion clause as it was also within the knowledge of the complainant that the loss was due to negligence of opposite party no.2. Though the goods were not perishable but these became perishable when these were exposed to the circumstances which do not match to its basic nature. Hence the goods lost their value on account of heavy rains and not protected by opposite party No.2.<br /> 10. The controversy lie in narrow compass as to whether the Insurance Company can claim exemption from its liability under the exclusion clause as referred to in the repudiation letter Ex.C2 dated 26/6/06 in the light of peculiar circumstances of the case and even if delay was occasioned in the transportation of the goods at the port and subsequent want of safe measures to protect the consignment from vagaries of nature like rain or storm. It is really matter of regret that Insurance Company failed to produce insurance policy containing full terms and conditions but only reproduced the exclusion clause under ICC (a) which provides that unless the policy otherwise provides the insurer of goods is not liable for any loss proximately caused by delay although delay caused by Parrnell insured. However perusal of the insurance policy Ex.C11 indicates that goods worth US Dollars 20811.75 as per invoice dated 8/4/05 were insured on payment of premium of Rs.607/- insuring transit of the goods from Phagwara to Bombay (India) and Chicago through rail road vessal and special condition is about warahouse to warahouse validity of risk of each consignment of goods upto sixty days after the goods arrived at <br /> overseas port. It is therefore, evident that insurance attaches from the time the goods leave the warehouse or place of storage at the place named therein for the commencement of the transit, continues during the ordinary course of transit and terminates either on delivery to the consignees or other final warehouse or place of storage at the destination named therein .The insurance shall remain in force ( subject to termination as provided for above and to the provisions of clause 9 below ) during delay beyond the control of the Assured, any deviation, forced discharge, reshipment or transshipment and during any variation of the adventure arising from the exercise of a liberty granted to shipwarers or charterers under the contract of airfreightment . We therefore find force in the contention of learned counsel for the complainant that since the damage to the consignment had taken place during the journey from Phagwara to Bombay in India through railway and also from Bombay to Chicago through vessal from its start at Phagwara till it reaches at Chicago. The insurance policy comes to end when the consignment reaches to its destination.We further find merit in the contention that exclusion clause does not apply to the present case of the complainant as the goods of consignment were not of perishable nature requiring damage on account of delay. Complainant firm has given justifiable explanation to the question airs through its letters Ex.R7. Therefore, the insurance company cannot absolve of its liability to compensate for the damages of insured consignment of goods during the transit upto place of destination.<br /> 11. Apropos the extent of liability of the Insurance Company to the quantum of compensation of losses incurred by the complainant firm, no doubt complainant firm has attempted to project the total loss of consigned goods worth US Dollars 20811.75 equivalent to Rs. 9,36,528/- and freight charges from Phagwara to Bombay Rs.4307/- and overhead charges of Rs.55814/- total amounting to Rs.9,96,509/-. Opposite party No.1 has placed on the record Marine survey report Ex.R4 dated 20/3/06 of Arun Kumar & Co. Surveyor alongwith his affidavit Ex.R2. He carried out the survey and submitted detailed report dated 20/3/06 Ex.R4. The perusal of the survey and loss assessment report indicated that loss was caused to the goods due to heavy rains in Bombay City. It was also conspicuously mentioned that consignment was duly packed in Poly Woven Sheet and further packed in Corrugated Boxes and finally covered in Wooden Crates and Tightened with three Iron strips. He also prepared physical inventary of damage attached therewith and segregated the repairable goods from the total damaged goods and assessed loss to the extent of Rs.1,66,554/- minus salvage value. He also opined that assessed loss to the underwriter for consideration subject to terms and conditions of the insurance policy. The survey report was adversely commented by learned counsel for complainant on the ground that valuation of the loss was shown less because the major portion of the consignment was repairable. No expert opinion has been taken as to how the said part of the consignment could be repaired to attain the final value and as such deductions made by the surveyor does not affect right of the c9omplainant to claim the entire consignment as total loss . We cannot be oblivous of this fact that loss assessor are expert in making the estimate of total loss accrued and also about repairable goods and extent of loss thereon. We do not find any contradiction in the report dated 18/7/05 Ex.R5 because it referred to the damaged goods and cause of considerable delay/storage in CFS but it has not mentioned extent of damage to the consignment and extent of liability. Therefore, we do not find any contradiction in both the reports of the surveyors in so far as the assessment of loss is concerned, .<br /> Unfortunately complainant firm has not brought even an iota of evidence to discredit the surveyor report Ex.R4 nor do we find any reason to disagree with the criteria adopted in the assessment of loss made by the surveyor after due physical verification of the damaged goods. Reference may also be made to pertinent observations of Hon'ble State Commission in case reported as M/s National Insurance Co. vs. Sri Laxmi Textile Ltd.2001 Judicial Reports Consumer 464wherein it was held that " failure to take into consideration surveyor report which is very vital and important piece of evidence amounts to miscarriage of justice and if report of the surveyor is not accepted, the State Commision should have been recorded some cogent reasons for disagreeing with the report of surveyor." Reference is also made to another case reported as 1 (2007) CPJ 107 (NC) Universal Papper Mills Ltd. vs. Oriental Insurance Co. Ltd. & Ors. wherein it was held that :<br /> " Claim was not settled as per survey report-No<br /> reason to doubt findings of Surveyors--They<br /> assessed loss regarding each and every item<br /> after deducting value of salvage and undamaged <br /> goods-In consideration of exhaustive survey report <br /> no reasons to accept the same for assessing loss -<br /> Findings of Surveyors just and reasonable- Accepted-<br /> Loss as assessed in final survey report payable with <br /> interest @ 9% p.a. "<br /> In the ultimate analysis of aforesaid discussion, we are of the considered opinion that repudiation letter Ex.C2 is liable to be quashed and partly accept the complaint to the extent of Rs.1,66,554/- alongwith interest @ 12% p.a. w.e.f. after two months of lodgingg of complaint till realisation on deposit of salvage. Opposite party No.1 is burdene with monetary compensation of Rs.20,000/- for mental agony and physical harassment on account of deficiency in service besides cost of litigation of Rs.1000/- which would be paid by the opposite party within a period of one month from the receipt of copy of this order. Opposite party No.2 is also liable for freight charges of Rs.4107/- and overhead expenses of Rs.55,874/- alongwith interest @ 12% p.a. from date of deposit till realisation which would be paid by opposite party No.2 to the complainant within a period of one month from the receipt of copy of this order.<br /> Let certified copie of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced : ( Sudha Sharma ) ( A.K. Sharma )<br /> 4.12.2007 Member President.<br />