New India Assurance Co Ltd vs CHAMAN LAL SETIA EXPORT LTD

THIS appeal is directed against the order dated 20. 5. 2002 of State Consumer Disputes Redressal Commission Punjab, Chandigarh whereby appellant was directed to pay a sum of Rs. 12,66,223 in addition to Rs. 24,712 towards survey fee paid by the respondent in advance together with interest @ 9% p. a. from 10. 8. 1998, being the date of repudiation of claim.

FACTS giving rise to this appeal lie in narrow compass. The respondent/complainant purchased an open transit policy bearing No. 21/0335 dated 22. 9. 1997 for Rs. 10 crores from the appellant/opposite party-Insurance Company. Amount of policy was enhanced to Rs. 20 crores w. e. f. 9. 2. 1998. It was stated that 5315 bags of Basmati rice of different qualities weighing 221. 050 MTs were despatched by the respondent from Karnal which reached Kandla between 3. 6. 1998 and 7. 6. 1998 and were kept there in godown No. NG-7 of Kandla Port Trust. Rice was meant for export to M/s. Laxmidas Tharia Ved and Co. , Oman and M/s. Haji Zainal and Mohd. Bagher, Dubai. On 9. 6. 1998, there was super cyclone which hit the Kandla Port and due to flood water/sea water entering into the said godown 625 bags weighing 26 MTs were totally damaged and were destroyed in the presence of the Surveyor. Another 4690 bags were partially damaged and were taken to Karnal for segregation. Respondent lodged claim of Rs. 12,66,223 which was made "no claim" and the respondent was intimated of this position by the appellant by the letter dated 10. 8. 1998. Alleging deficiency in service the respondent filed complaint which was contested by the appellant. Though issuance of policy and repudiation letter were not disputed but it was stated that appellant''s liability under the policy had ceased after the consignments were delivered to the authorized agent of respondent at Gandhidham, Kandla and appellant was not at risk when the damage took place. Submission advanced by Mr. Rajat Navet for petitioner was that after Hans Raj Prag J. and Son, consignee had received at Gandhidham the entire consignments of 5315 bags of rice by 7. 6. 1998 the Insurance Company was not liable under the policy for the damage in question caused by flood water/sea water due to cyclone on 9. 6. 1998. In support of the submission, attention was drawn to the ''duration clause'' appearing in Annexure P-2 at page 23 and Annexure P-3 at page 25 as also declaration statement submitted by the respondent with the appellant-Insurance Company at page 22 of the documents filed on 6. 10. 2003 by the respondent. Annexure P-2 is the extract of Institute Cargo Clause (A) while Annexure P-3 is the extract of Inland Transit (Rail or Road) Clause A. On the other hand, it was pointed out by Mr. S. M. Tripathi for respondent that Annexure P-2 does not relate to Inland Transit and copy thereof was not even supplied along with the policy to the respondent. According to him, Annexure P-3 was neither filed before the State Commission nor mention thereof is made in the written version filed by the appellant. It was urged by Mr. Tripathi that the policy issued by the appellant-Insurance Company was from Karnal to anywhere in India and as the damaged rice was meant for export to Oman and Dubai, said Hans Raj Prag J. and Sons could not be the consignee thereof. He drew our attention to the Declaration Statement wherein under the column ''description of goods'' ''rice for export'' is mentioned. Reliance was also placed on the decision in M/s. Modern Insulators Ltd. v. Oriental Insurance Co. Ltd. , I (2000) CPJ 1 (SC ). It was not seriously disputed by Mr. Rajat Navet that Annexure P-3 was not filed before the State Commission nor mention thereof is made in the written version and the appellant has not filed any application seeking permission to place on record Annexure P-3 by way of evidence. That being the position. Annexure P-3 has to be excluded from consideration while deciding this appeal. Further, not only the copy of another Annexure P-2 was not supplied to the respondent but it also does not relate to Inland Transit as rightly pointed out by Mr. Tripathi, Adv. That being so, Annexure P-2 cannot be taken note of in present appeal. We are fortified in this conclusion reached by us by the decision in Modern Insulators Ltd. (supra ). Admittedly, policy covers the risk from Karnal to anywhere in India. Since the rice was meant for export to Oman and Dubai as is also evident from the Declaration Statement at page 24, Hans Raj Prag J. and Sons could not be the consignee of the consignments. We are in total agreement with the view taken by the State Commission that the responsibility under the policy of the appellant was upto the loading of the consignment (s) on the ship (s ). Insurance Company is, therefore, liable to pay for the total damage caused to 625 bags and partial damage to 4690 bags. Order passed by the State Commission does not suffer from any legal infirmity warranting interference in appellate jurisdiction under Section 21 (a) (ii) of the Consumer Protection Act, 1986.

Accordingly, the appeal is dismissed with cost of Rs. 15,000 to the respondent. Appeal dismissed.