UNITED INDIA INSURANCE CO. LTD. vs Sushila Devi And Ors.

HEARD the learned Counsel for the parties.

IN this case insured woollen carpets were sent by the complainant to Hamburg (Germany) in October 1990, reached on 6.12.1990. The goods were insured for Rs. 2.00 lakh. As the consignee did not take the delivery alleging that instead of woollen carpets, cotton durries were sent. It is the case of the complainant that Mr. Rizwan, an alternate buyer informed him about this on 12.10.1992, and he filed a complaint in October 1993. A fax message was sent on 12.10.1992 was received as late as in May 1993. Complainant alleged that OP No. 2 - Tara Shipping Agencies in connivance with Shri A.K. Agarwal, Regional Manager of the Insurance Company, dishonestly with the intention to commit theft, took OP No. 3 under its influence, changed the goods sent by him and, therefore, the complainants'' carpet worth Rs. 1,91,119 were lying in the storage of the port. As the carpet remained unsold, the complainant claimed total damages suffered by him upto 28.8.1993, i.e. Rs. 4,43,058; for which he made Tara Shipping Agencies and the Insurance Company liable.

THE District Forum after analysing the evidence before it and going through the records of the case, accepted the complaint and held that respondent Nos. 1 to 4, Tara Shipping Agencies, Insurance Company and others were liable to pay the entire amount of Rs. 4,43,058 within three months. Aggrieved by the order of the District Forum, three appeals have been filed by the M/s. Majaria Shipping Agency Pvt. Ltd., United India Insurance Co. Ltd., and Tara Shipping Services. The State Commission after perusing the records afresh and re -appraisal of the evidence allowed the appeal of M/s. Majaria Shipping Agency and partly allowed the appeals filed by the Insurance Company and M/s. Tara Shipping Services and further held that Insurance Company was liable to pay the amount of Rs. 2.00 lakh. The State Commission directed that this amount shall be paid with interest @ 6% w.e.f. 18.10.1990, till the date of payment which shall be paid within two months of the receipt of this order.

DISSATISFI ED by the order of the State Commission, the Insurance Company (for short company'') has filed this petition before us. Learned Counsel for the Insurance Company took pains to lead us through the complaint especially, para 10, wherein he has alleged that M/s. Tara Shipping Agency dishonestly with the intention to commit theft took OP No. 3 under its influence, changed the goods sent by him and, therefore, the carpets worth Rs. 1,91,119 were lying in the storage. He reiterated the relevant dates of the dispatch of the goods from Mumbai and arrival of the goods at Hamburg. The complaint was filed two years later, after the goods had reached Hamburg and, therefore, according to the company this is a belated complaint. Hence, it should have been dismissed on the grounds of limitation alone. He further submitted that this case is squarely covered by the judgment of the Hon''ble Supreme Court in New India Assurance Co. Ltd. v. B.N. Sainani, III (1997) CPJ 1 (SC)=(1997) 6 SCC 383.

THE learned Counsel for the respondent submitted that the alternate buyer Mr Rizwan informed the complainant only on 12.10.1992 and the complaint was filed within two years of the knowledge and so it was within limitation period.

A look at the Insurance Policy shows that the goods were insured for Rs. 2.00 lakh. The relevant clause of the policy reads as under: "The insurance attached from the time the goods leave the warehouse or place of storage at the place named herein for the commencement of the transit, continues during the ordinary cause of transit and terminate either; On delivery to the consignees or other final warehouse or place of storage at the destination named herein. 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. For storage other than in the ordinary course of transit; or For allocation or distribution; or On the expiry of 60 days after completion of discharge ............. of the goods thereby insured from the oversea vessel at the final port of discharge."

ADMITTEDLY the peril had taken place during the currency of the validity of the policy. For the goods stolen, damaged misplaced for whatsoever reasons, the Insurance policy does not exclude the peril of change of the contents of the goods by any party during transport or transit period. Hence, this peril is squarely covered by the policy. The next issue to be decided is whether there was delay from the date of the knowledge of the peril. The complainant came to know from the alternate buyer about the whole episode who informed him on 12.10.1992 and he filed a complaint within one year from that date. Hence, the complaint is not time barred under the Consumer Protection Act, 1986.

THE judgment quoted by the learned Counsel for the petitioner is distinguishable. In this case, the insured wanted to get the policy extended beyond 60 days and, this request was not granted by the Insurance Company, and as the peril occurred after 60 days the claim was not payable. In the case under consideration, intimation of peril was received in the year 1993 and the claim was repudiated on 18.6.1993 and from the date of knowledge, repudiation within a few months this complaint has been filed. Accordingly, the complaint is time -barred.

IN this case in the Bill of landing, it is specifically mentioned that the goods booked were Indian Hand Knotted Woollen Carpets weighing 1010.5 kgs. valued at Rs. 1,82,619. In the description column it is written Ind. Goods are not used after Mfg.'' The despatcher is shown as M/s. Sanjay Exports and destination is shown as Hemburg. The loading at Bhadoi was admittedly done through Tara Shipping Services. No record was placed before the State Commission to show the liability of M/s. Majaria Shipping Agency, hence no liability could be fixed on that company.

IT is an undisputed fact that the peril has occurred during the currency of the valid insurance policy. The bald allegation of the Insurance Company to the effect that goods could have been changed by the complainant is baseless as there is enough evidence on records to prove that goods booked, insured, transported were checked up by the custom authorities and then only loaded in the ship. Accordingly, the State Commission upheld the liability of the Insurance Company to pay an amount of Rs. 2 lakh. The State Commission has saddled the Insurance Company with nominal interest of 6% p.a. with effect effect from 18.10.1990 till the date of payment.

WE do not see any material irregularity or jurisdictional error in the order passed by the State Commission. Accordingly, this Revision Petition is dismissed. The petitioner, Insurance Company shall pay Rs. 10,000 as cost to the respondent No. 1/complainant. R.P. dismissed.