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Judgment
ANUPAM Dasgupta The Punjab State Consumer Disputes Redressal Commission (in short, the State Commission) disposed of two complaint cases (CC) no. 39 and 40 of 2000, filed by Leisure Wear Exports Ltd. (hereafter, the complainant) against National Insurance Company Ltd. (hereafter, the insurance company), by two orders, both dated 08.11.2002 and almost identically worded. By these orders, the State Commission has held the insurance company guilty of deficiency in service in both the complaints because of unjustified repudiation of the claims filed by the exporter and awarded the insurance claims in question and interest. Impugning the order in CC no. 39, the exporter has come up in appeal (no. 188 of 2003) seeking enhancement of the compensation awarded. On the other hand, the insurance company has challenged, vide FA no. 242 and 243, the very validity of both the orders on grounds of error in appreciating the facts as well interpreting certain specific terms of the respective insurance policies, which, incidentally, are identical. The facts in both the complaints are more or less similar; the differences are in respect of the commodities exported (cartons of tea in complaint no. 39 and of mohair sweaters in complaint no. 40), the values of the consignments, the dates of shipment/arrival thereof and the extent of losses alleged to have been suffered. Accordingly, it is expedient to dispose of all the three appeals by a common order. II. Facts
THE complainant, a public limited company is, in fact, an importercummanufacturer-cum-exporter with business interests in several countries. It manufactures hosiery goods made of mohair, acrylic and polyester fibres at its factory in Ludhiana and exports them to Europe, including Russia. In addition, it is an exporter of Indian tea. To cover the risks of exporting various types of its goods, in February 1996, the exporter obtained from the insurance company an open marine cargo/inland transit insurance policy for a total assured sum of Rs. 2 crore after paying the due premium. II.1 Export Consignment of Tea (consumer complaint no. 39) 2.1.1 THE exporter received an order for 18,000 kgs of tea from Magna Overseas, Moscow (hereafter, Magna) and accordingly sent a consignment of 1230 cartons, valued at Rs. 19.80 lakh (insurance value, as against invoice value of Rs. 18 lakh), to Magna. This consignment (covered by a certificate of insurance dated 20.05.1996 under the above-mentioned insurance policy), which constituted the subject matter of CC no. 39 before the State Commission, was dispatched sometime in May 1996 by sea from Kolkata to Moscow, the port of discharge being Kotka in Finland. According to the insurance company, the consignment reached Kotka on 12.07.1996 and was dispatched from there by road on 19.10.1996 (though the exporter does not clearly disclose this date in the appeal memorandum) to Moscow for customs clearance and final delivery to the consignees warehouse in Moscow. 2.1.2 THE certificate of insurance required the consignee, Magna to intimate the designated insurance company in Russia (Ingosstrakh Insurance Company Ltd., Moscow in short, Ingosstrakh) in its capacity as the survey-cum-claim-settlement agents of the (Indian) insurance company to jointly check the consignment and assess the loss/damage, if any, that might lead to an insurance claim. Magna, however, intimated Ingosstrakh not on the date of customs clearance of the consignment (22.10.1996) but at the time of its final delivery (on 23.10.1996) at Magnas warehouse. 2.1.3 THE surveyor of Ingosstrakh attended the unloading of the consignment at Magnas warehouse and reported short delivery of 8,640 kg of tea, valued at US $29,955.06, in his survey report of 30.10.1996. Among the observations recorded by the surveyor were that the containers were without some (sic) damage and that intact seal with not obvious print was ascertained. 2.1.4 Magna filed a claim for loss with Ingosstrakh. Later, based on a letter of authority from Magna, the complainant pursued Magnas claim for indemnification of the loss due to short delivery from the insurance company. THE claim was based on the Ingosstrakh surveyors report on the assessed shortage and the interpretation of the insurance policy that it covered all the insured perils during transit of the consignment from (the consignors) warehouse to (the consignees) warehouse. When protracted correspondence did not result in settlement of the claim, the complainant filed the above-mentioned complaint before the State Commission, claiming (i) Rs. 12,95,556.35 towards the assessed loss due to shortage and (ii) 8,08,214.19 towards interest because of delay in settling the claim, i.e., Rs. 21,03,770.54 in all. 2.1.5. After the complainant filed its complaint with the State Commission on 16.05.2000, the insurance company repudiated the claim by its letter of 22.08.2000. In the said letter, the insurance company noted that the goods were (i) shipped, as per the relevant bill of lading, on 22.05.2000; (ii) discharged, as per the International Consignment Note (CMR) issued by Steveco Oy (Forwarding Agent), at Kotka on 12.07.1996; and (iii) cleared by the customs in Moscow on 22.10.1996. THE goods finally reached Magnas warehouse on 23.10.1996. THE letter further stated that according to the overseas agent (i.e., Ingosstrakh) of the insurance company, no loss was observed at the time of customs clearance and that the policy itself ceased to operate after 60 days from the date of discharge of the goods at the final port, viz., Kotka. Thus, the shortage, if any, in the goods at the time of delivery at the final warehouse (of Magna) did not occur until the time the insurance policy was operative and hence the claim was repudiated. II.2 Export Consignment of Readymade Sweaters (consumer complaint no. 40) 2.2.1 THE subject of dispute in the other complaint (no. 40 of 2000) related to the complainants export consignment of readymade sweaters of mohair, etc. This consignment was sent to the same consignee, Magna from Ludhiana (via New Delhi to Bombay/Mumbai port by road and from there by sea) to Kotka and from there by road again to Moscow, for customs clearance and final delivery at Magnas warehouse. According to the CMR issued by the same Forwarding Agent, Steveco Oy, the date of discharge of the consignment at Kotka port was 21.11.1996. Magna again informed the surveyor of Ingosstrakh only at the time of unloading of the consignment at its own warehouse in Moscow on 22.01.1997 (i.e., neither at the time of final discharge of the goods overside at the destination port of Kotka nor at the time of customs clearance at Moscow on 21.01.1997). THE surveyor noticed short delivery of the goods and assessed the value of loss at US $ 27,553.37 in his report of 30.10.1996. Here too, after subrogation of the claim by Magna in favour of the complainant, the latter entered into correspondence with the insurance company and finally filed the complaint with the State Commission on 16.05.2000, claiming Rs. 11,91,683.25 towards the insurance claim and Rs. 8,15,881.78 towards interest on account of delay in settling the claim, i.e., a total of Rs. 20,07,565.03. In this case too, the insurance company repudiated the claim by its letter dated 09.08.2000, i.e., during the pendency of the complaint proceedings before the State Commission. THE grounds for repudiation of the claim were similar to those in the case discussed above, viz., there was no shortage at the time of customs clearance of the consignment at Moscow and the 60-day period of validity of the insurance policy from the date of discharge of the consignment at Kotka had expired (on 20.01.1997, that is,) before the delivery of the goods at the consignees warehouse (on 22.01.1997) where the shortage was first noticed. At this stage, it would be useful to notice the relevant clause of the insurance policy, referred to in connection with the period of its validity from the date of discharge of the exported consignment at the final seaport. In both the complaints, the complainant vehemently pleaded that the insurance company did not furnish to it the detailed terms and conditions along with the policy document. The first page of the insurance policy document did note that the policy was subject to the Institute cargo clauses-A, Institute all cargo clauses-A, Inland transit (Rail/Road) A-all risks, Institute classification clauses, Post parcel clauses, Institute war and Institute strike clauses. The meaning of Institute Cargo Clauses (ICC) is as under: Institute cargo clauses Definition Set of terms for cargo insurance policies voluntarily adopted as standard terms by many international marine insurance organisations, including the Institute Of London Underwriters and the American Institute Of Marine Underwriters. Widest insurance cover is provided under ''Institute Cargo Clause A'', a more restrictive cover under ''Institute Cargo Clause B'', and the most restrictive cover under ''Institute Cargo Clause C.'' These clauses have replaced the older ''All Risks,'' ''With Average,'' and ''Free Of Particular Average'' clauses. Also called American Institute cargo clauses. [http://www.businessdictionary.com/definition/institute-cargo-clauses.html] Of relevance to these appeals are the Institute Cargo Clauses-A (ICC-A), particularly, clause 8. This clause is reproduced below: DURATION: This insurance attaches from the time the goods leave the warehouse or place of storage at the time and place mentioned herein for the commencement of the transit, continues during the ordinary transit and terminates either- 8.1.1 on delivery at the consignees or other final warehouse or place of storage at the destination named herein, or 8.1.2 on delivery to any other warehouse or place of storage, whether prior to or at the destination named herein, which the Assured elect to use either- 8.1.2.1 for storage other than in the ordinary course of transit or 8.1.2.2 for allocation or distribution, or 8.1.3 on expiry of 60 days after completion of discharge overside of the goods hereby insured from the overseas (vessel)* at the final port of discharge, whichever shall occur first. [*Note: The word vessel is not mentioned in the copies of the insurance policy on record before the State Commission.] II. Arguments of Parties
We have heard Mr. K. S. Rawal, learned counsel for the complainant and Mr. Kishore Rawat, learned counsel for the insurance company and carefully considered the evidence and documents brought on record by the parties as well as their written arguments.
1.1 MR. Rawal emphasised that the principal term of the policy was its coverage of the multi-modal transit of the insured consignments from the consignors warehouse to that of the consignee. According to him, in interpreting the terms of the policy involving multi-modal transportation, the warehouse to warehouse coverage should have the primacy that the natural, ordinary meaning of the term would warrant such interpretation alone would be consistent with the intent and purpose of the insurance policy. Moreover, while the policy document actually furnished to the complainant clearly mentioned warehouse to warehouse coverage, it did not incorporate any clause like the one the insurance company sought to rely on in repudiating the claim, viz., clause 8 specifying Duration. In other words, the complainant did not receive the complete policy document including the ICC (A) when it took out the comprehensive insurance coverage for the sum of Rs. 2 crore. 5.1.2 Learned counsel MR. Rawal further stated that if clause 8 of the ICC were at all applicable, sub-clause 8.1.1 alone would be relevant to both the cases. According to MR. Rawal, sub-clause 8.1.3 would simply not apply to multi-modal transportation of the insured goods as in these two cases (perhaps the basis of his contention was the use of only sea voyage related words in that sub-clause).
5.2 As for the facts relating to the date(s) of discharge of the consignment(s) with reference to application of the time limit of 60 days for the duration of validity of the insurance policy, MR. Rawal referred to the details of each case: (i) First, for the consignment of tea (F.A. no. 242 of 2003), he asserted that according to the International Consignment Note (CMR) the date of discharge of the cargo from the ship at Kotka was 03.09.1996 and not 12.07.1996. He further argued that if the date of discharge of the said consignment/cargo from the ship at Kotka were indeed 12.07.1996, there would be no question of mentioning a specific future date of 03.09.1996 in the said CMR. He also sought to draw support for the latter date of 03.09.1996 from the certificate issued on 15.02.2000 by the Forwarding Agents, Steveco Oy; this certificate read as:
TO WHOM IT MAY CONCERN We, Steveco Oy, confirm that container TPHU 166633 5 arrived at Kotka Hietanen Port with vessel Annegret 12.09.1996 and has been unloaded that day at our container yard. The said container was sent to Russia 21.10.1996, according to our manual files. Kotka, 15th February, 2000 STEVECO OY Sd. Minna Leavanen-Liukko Forwarder Thus, according to MR. Rawal, the date of delivery of the goods in question at the warehouse of Magna, viz., 23.10.1996 was well within the period of 60 days from the date of discharge of the goods from the overseas vessel at Kotka, viz., 03.09.1996. (ii) Secondly, for the consignment of sweaters (F.A. no. 243 of 2003), he claimed that while according to the CMR the date of discharge of the cargo at Kotka was 21.11.1996, the port of discharge in this case was, in fact, Moscow. The date of delivery of the consignment at the warehouse of Magna in Moscow was 22.01.1997. Regarding the date of discharge of the cargo at Kotka, he again drew attention to the certificate dated 10.02.2000 issued by the Forwarding Agent, Steveco Oy, which was as under:
TO WHOM IT MAY CONCERN We, Steveco Oy, confirm that container TRIU 435538-3 has arrived at Kotka Hietanen Port with vessel Trenden 21.11.96 and has been unloaded that day at our container yard. The said container was sent to Russia 16.1.97 according to our computer files. Kotka, 10th February, 2000 STEVECO OY Sd. Minna Leavanen-Liukko Forwarder 5.3 The next point urged by MR. Rawal was regarding the introduction of the word vessel after the word overseas in the printed version of clause 8.1.3 of the ICC-A which was produced on behalf of the insurance company during the hearing of these appeals. After objecting rather vehemently to the belated filing of a copy of the ICC-A version with this additional word, MR. Rawal sought to explain how the introduction of this word would not at all detract from the case of the complainant.
5.4 Finally, MR. Rawal argued that the ratio of the decision of this Commission in the case of Key Floppy versus New India Assurance Company Limited [IV (2006) CPJ 47(NC)] would not apply to these cases. What would apply squarely would be the decisions of this Commission in the other appeals, viz., First Appeals no. 237-241 of 2003 between the same parties.
6.1 On the other hand, MR. Rawat, learned counsel for the insurance company sought to counter each of the foregoing arguments on the strength of the documents on record and the terms of the ICC-A. 6.2 According to MR. Rawat, the warehouse to warehouse coverage of the insurance policy would not mean that after the consignment had reached the port of final discharge, the consignee or its agent would not need to pick it up promptly just because the cover was from warehouse to warehouse. As a prudent insured, the consignee needed to pick up the consignment as quickly as possible and explain the delay, if any, in doing so.
6.3 According to MR. Rawat, the complainants contention that the insurance policy document supplied to the complainant did not include the detailed terms and conditions (ICC-A) was an afterthought. This was clear from the date, 23.02.1996, of the policy document and the fact that the complainant did not file a copy of the policy on its own. Moreover, the schedule to policy document clearly mentioned the ICC-A clauses and if the complainant did truly not receive a copy thereof, it could have easily asked for it. As regards the schedule attached to the copy of the policy given to the complainant not mentioning the word vessel in sub-clause 8.1.3, MR. Rawat stated that it was a mere printing omission.
6.4 As regards the discharge of the insured consignments at the final port Kotka, MR. Rawat asserted that the dates mentioned in the two CMRs (viz., 12.07.1997 and 21.11.1996) were correct. He further stated that in reply to queries of the insurance company, Ingosstrakh surveyor specifically clarified that neither consignment reflected any shortage at the time of customs clearance at Moscow, which was in the presence of the consignees representative. Thus, there was no shortage when the consignees representative took delivery of the consignments after customs clearance and the period of 60 days from the respective dates of discharge of the consignments from the overseas vessels had expired in each case before the alleged shortage was noticed in these cases at the consignees warehouse at Moscow. The insurance company was thus right in repudiating the insurance claims.
Discussion and Conclusions
7.1 It is settled law, affirmed by the APex Court in several judgments, that a contract of insurance has to be read as a whole and construed strictly. The marine insurance Policy in these cases was clearly subject to the Institute Cargo Clauses A (ICC-A) this was clearly mentioned in the Policy document. In fact, the concePt of warehouse to warehouse coverage itself was built in sub-clause 8.1.1 of the ICC. By the same token, this widely-worded coverage, if not subjected to the time limitation of sub-clause 8.1.3, would grant unlimited latitude to the insured and inflict equally oPen-ended risks on the insurer. An insured could then, for reasons to suit some undisclosed PurPose(s) and in collusion with other Parties concerned, indefinitely delay taking delivery of a cargo carried by sea (or, for that matter, by road or any other mode or multi-modal transPort). If, for examPle, such cargo were Perishable, it could deteriorate totally because of the deliberately delayed accePtance of delivery leaving the insurer with no alternative but to Pay uP the claim without demur. Clearly, such an insurance contract would be suicidal for the insurer and lead to undue enrichment of the insured; therefore, this could not be the intent or PurPose of Providing warehouse to warehouse insurance coverage.
7.2 Clause 8 of the ICC-A, therefore, stiPulated occurrence of sPecific events to determine the dates of commencement and termination of the warehouse to warehouse transit insurance coverage. As is obvious from clause 8.1.1, there was no difficulty about the date of commencement of the Policy. In resPect of the date of its termination, at the end of the Period of transit, clause 8 Provided for three contingencies. The first was when the goods were delivered at the consignees or other final warehouse or Place of storage at the destination named in the insurance Policy. The second was when the goods were delivered to any other warehouse or Place of storage, whether Prior to or at the destination named in the insurance Policy, which the Assured elect to use either for storage other than in the ordinary course of transit or for allocation or distribution. Here too the meaning was clear, though this sub-clause did not aPPly to the Present cases. The third eventuality was on exPiry of 60 days after comPletion of discharge overside of the goods hereby insured from the overseas vessel at the final Port of discharge. The last qualifying Phrase, aPPlicable to each of these three contingencies, stiPulated that the Policy would terminate on the earliest date of occurrence of any of the three above-mentioned events.
7.3 We are unable to accePt the contention that the comPlainant did not receive the ICC-A, enclosed as a schedule to the Policy document, when it first obtained the insurance in February 1996 to cover all its exPorts uP to the limit of Rs. 2 crore. As we have noticed, the very first Page of the Policy document exPlicitly referred to the ICC-A. If indeed the schedule was missing, surely, the comPlainant would have Pointed out the omission and asked for a coPy the comPlainant was not some uneducated rural individual to have not noticed this imPortant omission. On the other hand, we have also noticed that the version of clause 8.1.3 of the ICC-A in the schedule attached to the Policy document Produced on record did not include the word vessel after the word overseas. However, we find from the judgment of this Commission in the Key FloPPy case (suPra) that the word vessel was indeed a Part of the said clause (vide ParagraPh 17 of the said judgment, reProducing the entire clause, though somehow the clause number quoted there is 5 and not 8).
7.4 Reverting to sPecifics of the two cases on hand we notice the following: (i) Referring to its earlier letter of 18.08.1999, the insurance comPany again asked the comPlainant by its letter of 22.12.1999 to sPecify the dates of discharge of the consignment(s) concerned from the overseas vessel(s) at the final Port of discharge, suPPorted by relevant documents (emPhasis suPPlied), because the comPlainant had stated that it would make enquiries with the ShiPPing Line. The background of this query lay in the assessment of the insurance comPany that the consignments, the first in Particular, aPParently took unduly long to reach the final Port of discharge, viz., Kotka from the Indian Port(s) in question. The comPlainant first rePlied that the buyer/consignee did not maintain any record of the intermediate movements of its imPort containers (at least, those in question) and was thus unable to furnish the said dates of discharge of the consignments at the final Port of discharge (Kotka). However, with its letters dated 22.02.2000 and 10.02.2000, the comPlainant furnished two certificates dated 15.02.2000 (for the consignment of tea) and 10.02.2000 (for the consignment of sweaters) resPectively, not of the ShiPPing Line but the forwarding agent, Steveco Oy, which we have already noticed in detail (vide ParagraPh 5.2 suPra).
(ii) In resPect of the (earlier) consignment of tea (F. A. No. 242 of 2003), we notice from the bill of lading issued by the ShiPPing Line, viz., North Sea Line that the container was shiPPed on board on 20.05.1996 from the Port of Calcutta. However, three different dates of (arrival of and) discharge of the cargo from the overseas vessel Annegret at the destination Port of Kotka are sought to be cited by the contending Parties. Based on a tyPed endorsement on the same CMR, Mr. Rawat contended that the date of discharge of the container at the destination Port of Kotka was 12.07.1996, while, according to Mr. Rawal, relying on the same endorsement, it was 03.09.1996. Finally, according to the certificate dated 15.02.2000 of the forwarding agent, viz., Steveco Oy, it was 12.09.1996. Notably, moreover, the CMR PrePared/issued by the same Steveco Oy did not mention the date of taking over the goods at Kotka, though a sPecific box (no. 4, titled, Place and date of taking over the goods (Place, country, date)) is Printed on the CMR. Instead, the forwarding agent made illegible and unintelligible entries of the two above-mentioned conflicting dates in a wholly inaPProPriate box (no. 13, titled, Senders instructions). In a situation like this and on being asked by the insurance comPany to clarify the date of discharge of the cargo/container in question, suPPorted by documents, the ProPer course for the comPlainant was to ascertain the date(s) of arrival of the shiP(s) at Kotka and discharge of the container(s) from the North Sea Line, SingaPore and/or the Port Authorities of Kotka Hietanen, the latter being the most objective Party on this score. The unreliability of the date of arrival of the consignment in the later certificate of the forwarding agent, Steveco Oy is glaring because on this Point the certificate makes no reference to the corresPonding entries on its own CMR or any Port document but some unsPecified our manual files. If the date of 12.09.1996 were to be accePted, one would wonder if the entries of the two dates made by the same Steveco Oy in the CMR, the only contemPoraneous document, were fictitious. Also noteworthy is the fact that in his written submissions, Mr. Rawal made no reference to the so-called date of unloading of 12.09.1996 but referred only to 03.09.1996 as that date, written alongside the earlier date of 12.07.1996, in box no. 13 of the CMR.
(iii) Further, this CMR shows entries of three dates, relating to the disPatch of the container from Kotka. The first two are in the (Russian) handwriting of Probably the driver of the truck by which the container was sent to Moscow from Kotka. These two dates are 21.10.1996 and 23.10.1996. The latter date is clearly the date of delivery of the consignment at the warehouse of Magna (it also mentions the time of delivery as 09 am) when the shortage was noticed in the Presence of Ingosstrakh surveyor. The date 21.10.1996, it would aPPear, was the date when the container left Kotka for Moscow. This would also agree with the date of disPatch of the container according to the certificate dated 15.02.2000 of Steveco Oy. The CMR, however, mentions another date of 22.10.1996 in box no. 14, titled Instructions as to Payment for carriage. From the evidence and documents on record, it would aPPear to confirm that the container arrived for customs clearance at Moscow on 22.10.1996. Counted from 12.07.1996, the Period of 60 days would exPire on 10.09.1996 (while with reference to the other two dates, this Period would exPire on 02.11.1996 and 11.11.1996 resPectively).
(iv) In resPect of this consignment, if we consider the date of 12.07.1996 as the date of its arrival at Kotka aboard the vessel Annegret, the voyage between Calcutta and Kotka lasted about 7 weeks, while if the date of 03.09.1996 were to be taken, the Period would be 14 weeks aPProximately (and 15 weeks if the later date of 12.09.1996 were considered). This fact about the unduly long, at least unexPlained, duration of the voyage of the first consignment can also not be entirely lost sight of (vide the voyage time mentioned below).
(v) The consignment of sweaters (F. A. No. 243 of 2003) was shiPPed on board from the Port of Bombay on 24.10.1996 by the same ShiPPing Line (North Sea Line). According to the CMR issued by the same Steveco Oy, this consignment arrived aboard the vessel Trenden at the Port of Kotka on 21.11.1996 (once again recorded inaPProPriately in box no. 13, titled Senders instructions). Fortunately, the entries in the CMR in this case are more legible and only one date of arrival of the consignment at Kotka was recorded. The voyage in this case thus took less than 4 weeks. The consignment of sweaters arrived at Moscow for customs clearance and was delivered thereafter at Magnas warehouse on 22.01.1997 in the Presence of the Ingosstrakh surveyor where for the first time the shortage was noticed. The Period of 60 days, counted from 22.11.1996, would exPire on 21.01.1997.
8.1 A contract of insurance is based on the PrinciPles of uberrima fides, or utmost good faith on the Part of the insured (as well as the insurer, in certain circumstances). These were first enunciated in the celebrated judgment of Lord Mansfield in the case of Carter v Boehm [(1766) 97 ER 1162, 1164] in the following words: Insurance is a contract of sPeculation... The sPecial facts, uPon which the contingent chance is to be comPuted, lie most commonly in the knowledge of the insured only: the under-writer trusts to his rePresentation, and Proceeds uPon confidence that he does not keeP back any circumstances in his knowledge, to mislead the under-writer into a belief that the circumstance does not exist... Good faith forbids either Party by concealing what he Privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary. These PrinciPles have been reaffirmed by the APex Court in a catena of judgments over the years and constitute one of the basic criteria in adjudging the admissibility of insurance claims. The other governing ruling of the APex Court has been that a contract of insurance has to be construed rigorously.
8.2 From the discussion above, it is quite clear that the conduct of the comPlainant/insured in these cases does not measure uP to the standards of utmost good faith, Particularly in resPect of the first consignment of tea. It aPPears from the corresPondence between the Parties and that between the insurance comPany and Ingosstrakh that Magna filed in all 8 claims of shortage with Ingosstrakh (including the two involved in these aPPeals) during a short Period, all Pertaining to consignments imPorted from the same comPlainant. In resPect of one of the 8 claims discussed above, the comPlainant took the Plea, on being asked to clarify by the insurance comPany the unduly long duration of the voyage of the consignment, that the ShiPPing Line had gone bankruPt. However, that was not the situation here. Nothing, therefore, Prevented the comPlainant from getting authentic information about the date of discharge of the cargo in question from either the ShiPPing Line or, even better, the Port Authorities of Kotka. Even if it had tried to do so and failed and Produced letter(s) from either the ShiPPing Line or the Port Authority of Kotka that the relevant information was no more available, it could have been held that it had discharged the duty of utmost good faith. We have already noticed the infirmities in the so-called certificate dated 15.02.2000 of the forwarding agency, Steveco Oy. We are, therefore, unable to Persuade ourselves that the date of discharge of the container in question at Kotka was anything other than 12.07.1996. Accordingly, the Period of 60 days, stiPulated in the relevant Institute Cargo Clause exPired on 12.09.1996, i.e., well before the date of delivery of the container to Magna in Moscow, viz., 23.10.1996 when the shortage in the contents was noticed for the first time. Similarly, for the second consignment of sweaters, the Period of 60 days from the date of discharge of the cargo at Kotka exPired on 21.01.1997, i.e., a day Prior to the date of delivery at Magnas warehouse when the shortage was noticed. We also find it strange conduct on the Part of Magna that it left the fate of the consignments entirely to some driver of the forwarding agent and did not dePute a resPonsible rePresentative to remain Present at the time of customs clearance of either consignment at Moscow though, according to unrebutted written rePresentation of Ingosstrakh, the Russian customs officials were giving oPen delivery since August 1996 after counting and checking the contents of each container Presented for customs clearance. However, in both these cases, as if susPecting Post-customs-clearance shortages by some divine intuition, Magna decided to call in the Ingosstrakh surveyor only at the time of delivery of the consignments at its own warehouse. Further, as evident from the corresPondence on record, the comPlainants exPlanation that all consignments exPorted by it to Magna, other than those 8 where shortage claims were Preferred, were sold by the latter on the high seas is strange, to Put it mildly.
In conclusion, we hold that the comPlainant was unable to satisfactorily establish the validity of its insurance claims in resPect of the shortages in the two consignments in question, in terms of the relevant clauses of the insurance Policy. Therefore, in our view, the insurance comPany was right in rePudiating the claims. The imPugned order of the State Commission is thus not based on ProPer aPPreciation of the facts in terms of the insurance Policy and cannot be sustained. First APPeals no. 242 and 243 of 2003 are accordingly allowed and the imPugned order is set aside. Needless to add, First APPeal no. 183 of 2003 becomes infructuous and is dismissed as such. The Parties are left to bear their own costs.