NAMASTE EXPORTS LTD. vs NEW INDIA ASSURANCE CO. LTD.

IN this complaint, the complainant has sought the recovery of the assured amount in the Marine INsurance Policy issued by the opposite party for the loss of two cartons, that is, two lock-switch sewing machines valued at Rs. 1,37,288/- together with interest and costs. The facts, briefly stated, are as follows : 1. The complainant had placed orders with a Company in Germany for the supply of 20 locks-witch sewing machines with its accessories. The said twenty lock-switch sewing machines were des- patched in forty cartons from Frankfurt Air Port to Madras and then to Bangalore by Air/Road. The complainant obtained Marine INsurance Policy from the opposite party in respect of the said consign- ment, while in transit by Air from Frankfurt to Madras and then to Bangalore by Air/Road. The policy was issued on 19-4-1990. The consignment arrived at Madras Airport on 5-5-1990. The complainant took delivery of the said consignment on 5-6-1990 at Madras Airport and despatched the same by Road which came to be received at Bangalore on 8-6-1990. The complainant took open delivery of the said consignment and found two lock-switch sewing machines missing and so he made a claim with the opposite party-INsurance Company for the recovery of the value of those two lock-switch sewing machines. The opposite party refused to settle the claim made by the complainant and so the complainant fied the complaint claiming the relief as narrated above.

THE opposite party filed its statement of objections. It admitted the fact of Marine Insurance policy issued by it in respect of the consignment of the complainant which were despatched at Frankfurt to Madras and then to Bangalore. It also admitted the fact that the said consignment arrived at Madras by Air on 5-5-1990, the complainant took the delivery of the said consignment at Madras on 5-6-1990 and despatched the same by road to Bangalore, through Road Carriers, M/s. Umashankar Cargo Supplies. THE said consignment was received at Bangalore, on 8-6-1990. The opposite party further averred that the insurance coverage in respect of the said consignment in transit ceased after 30 days after un-loading from the Air-craft at Madras and so it denied its liability to re-imburse any loss sustained by the non-delivery of the machines to the complainant, as the loss had occurred after the expiry of 30 days from the date of arrival and unloading the consignment at Madras. The liability of the opposite party had ceased under Clause 5.1.3 - the duration clause under the "Institute Cargo Clauses (AIR)" -Insurance Policy. The opposite party having regard to these facts and on the basis of these averments, denied its liability and averred that there was no deficiency in service.

During enquiry, the complainant filed the affidavit of the complainant. The documents filed by the complaint came to be marked as Ex. C-1 to C-18 with the consent of the learned Counsel for the opposite party. The documents filed by the opposite party came to be marked with the consent of the learned Counsel for the complainant as Ex. R-1 and R-2.

WE have perused the pleadings of the parties and also heard the learned Counsel for the parties. The only point that arises for our consideration is, "whether there was any deficiency in service on the part of the opposite party?" It is not disputed that the complainant obtained a Marine Insurance Policy (Cargo) from the opposite party in respect of consignment said to have contained 20 numbers of lock switch sewing machines while in transit by Air from Frankfurt to Madras and then to Bangalore by Air/Road.

IT is also not disputed that the said consignment arrived and was un-loaded at Madras Airport on 5-5-1990. The complainant took the delivery of the said consignment at Madras on 5-6-1990 and despatched the said consignment by Road to Bangalore through Road Carriers, M/s. Umashankar Cargo Supplies. The complainant received the delivery of the said consignment at Bangalore on 8-6-1990 and found 2 lock-switch sewing machines missing. Ex. R-l is the Marine Policy (Cargo) issued by the opposite party regarding the said consignment of 20 number of lock switch sewing machines. Ex. R-2 is the notice of the attached Clauses (AIR) and endorsement attached to the said policy. In Ex. R-1, it has been specifically stated as under : "Special Conditions and Warrenties : Warranted that AWB No. and date to be furnished as and when available. Insured against all risks of physical loss and/or damage including WAR & SRCC ICC (Air) IWC (Air Cargo) ISC (Air Cargo) Subject to important notice attached hereto the attached clauses and endorsements form part of this policy."

In Ex. R-2, the duration clause No. 5 reads as under : "Duration 5.5.1. This insurance attaches from the time the subject-matter insured leaves the warehouse, premises or place of storage at the place named herein for the commencement of the transit, continues during the ordinary course of transit and terminates either 5.1.1.on delivery to the Consignees'' or other final warehouse, premises or place of storage at the destination named herein, 5.1.2.on delivery to any other warehouse, premises or place of storate, whether prior to or at the destination named herein, which the Assured elect to use either 5-1-2-1. for storage other than in the ordinary course of transit or 5.1.2.2. for allocation or distribution or 5.1.3ontheexpiryof 30 days after unloading the subject-matter insured from the aircraft at the final place of discharge, whichever shall first occur. 5.2If, after unloading from the aircraft at the final place of discharge, but prior to termination of this insurance, the subject matter insured is forwarded to a destination other than that to which it is insured hereunder, this insurance, whilst remaining subject to termination as provided for above, shall not extend beyond the commencement of transit to such other destination. 5.3This insurance shall remain in force (subject to termination as provided for above and to the provisions of Clause 6 below) during delay beyond the control of the Assured, any deviation, forced discharge, reshipment or transhipment and during any variation of the adventure arising from the exercise of a liberty granted to the air carriers under the contract of carriage."

UNDER Clause 5.1.3 it has been specifically stated that the insurance continues during the ordinary course of transit and terminates either on delivery to the consignee or on the expiry of 30 days after unloading the subject-matter insured from the Aircraft at the final place of discharge, whichever shall first occur.

IN the present case, it is an admitted fact that the consignment was unloaded from the Aircraft on 5-5-1990 and in terms of the aforesaid 30 day''s clause, the last date of validity of the insurance was 4-6-1990, the consignee the complainant, took delivery of the consignment only on 5-6-1990 and despatched the same to Bangalore on that day. The loss of the said two machines was found only at Bangalore on 8-6-1990. Therefore, the liability of the opposite party ceased on 4-6-1990 under Clause 5.1.3 that is the duration clause as per Ex. R-2. The risk undertaken by the opposite party under the policy ceased on the expiry of 30 days after unloading it from the air-craft, that is, it ceased on 4-6-1990. that is, from the date of its unloading on 5-5-1990. Having regard to these facts and under the circumstances, we are constrained to hold that the complainant did not make out any case of deficiency in service on the part of the opposite party. In the result, therefore, this complaint fails and it is dismissed. The parties are directed to bear and pay their own costs. Complaint dismissed.