KRISHNA AUTOMOBILES vs OM PARKASH NAGPAL

APPELLANT was the complainant before the State Commission, where they had filed a complaint alleging deficiency in service on the part of the respondent/opposite party United India Insurance Company.

UNDISPUTED facts of the case are that the appellant had a valid Marine Insurance Policy which was valid during the period in question. The appellant despatched a consignment of shoes packed in 140 cartons from Delhi to Bombay Port by road. When the consignment was received by the appellant''s clearing agent at Mumbai they were found to be partially damaged. The matter was reported to the Insurance Company, who appointed a Surveyor. According to the Surveyor, the cartons and the packing material was wet in respect of 50 cartons and there was no damage to other 90 cartons. As far as damaged cartons were concerned, the contents/shoes could be repacked in new cartons/packing material and sent. This is what seems to have happened and the consignment was exported to Canada, where, upon arrival in Canada the consignment was found to be in a damaged condition. They appointed a Local Surveyor whose report is on record. The case of the appellant was that the Surveyor appointed by the respondent did not carry out a proper survey and confined their report only to 50 cartons. At the importer''s end 390 pairs were rejected and remaining goods had to be sold at a discount to a foreign buyer resulting in loss of Rs. 3,77,017 to the appellant. A claim was lodged with the Insurance Company. When the issue was not getting settled, a complaint was filed before the State Commission, who after hearing the parties dismissed the complaint, hence this appeal.

We heard the learned Counsel for the parties at length and perused the material on record. We have seen the Surveyor''s report and there is no disputing the fact that only 50 cartons were found damaged with regard to packing only. No damage was caused to the contents, i. e. , the shoes. It is on this basis that Surveyor had suggested "the shoes can be made export worthy with the packing of new cartons and printing box which were all damaged. . . . . Other than damaged to 50 cartons and printing box, we found the footwears/cartons in sound condition. . . . . . ".

THE report of the Dixons Cargo Consolidators reads as follows : "only packing damaged V/personally in Bombay to supervise Re-packing. Re-packaging to be done tomorrow. . . . Damage occurred during transport before delivery to us. " This clearly goes to show that it was only the packing material and cartons which were damaged, which were re-packed and then exported to Canada. If any damage to the cartons or to the material occur during the voyage from Bombay to the importing country, which was noticed by the Surveyor appointed by the importer, then the liability should have been of the carrier, who is not a party before us. In any case, this was an ''fob'' contract. For any loss beyond the shores of India, the Insurance Company cannot be held responsible. If we see the Marine Policy it was only limited to ''inland transit'', rail or road and subject to FOB clauses. In such circumstances, the liability, after the goods were loaded in the ship, could not be fastened on the respondent. However, if there was loss during transit from Delhi to Bombay for which repacking, change of cartons were required, for this amount, the appellant shall be entitled for that amount.

WITH regard to above, there is no other material on record except a letter dated 9. 11. 1994 addressed by the appellant to the respondent, in which there is a figure beside others related to the point at issue, which reads as follows : " (7) Our own expenses for going to Bombay with Ctns. /packing Mats. including Rly. fare/transport charges and labour charges, etc. Rs. 12,075"

For the above purpose admittedly, Rs. 12,075 were spent which, in our view, has to be paid by the respondent to the appellant under the terms of policy and is ordered accordingly. In the aforementioned circumstances, the respondent Insurance Company is directed to pay an amount of Rs. 12,075 along with interest @ 9% p. a. from 2 months after the report of the Surveyor, i. e. , from 1. 12. 1994 till the date of payment along with cost of Rs. 2,500.

ALL the above payments shall be made within 6 weeks from the date of receipt of this order, failing which the appellant shall be at liberty to proceed against the respondent under Sections 25/27 of the CPA, 1986.

THE appeal stands disposed of in above terms. Appeal disposed of.