AI Structured Summary
Not yet generated for this judgment
Judgment
ALL these revision petitions arise out of common order of State Commission; hence, decided by common order.
THESE revision petitions have been filed by the petitioner against the order dated 23.10.2007 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ''the State Commission '') in Appeal No. 1054 -1057/1996 - V.K. Manchanda & Ors. Vs. M/s. Mohd. Ibrahim & Sons by which, while dismissing appeals, order of District Forum allowing complaints was upheld. Brief facts of the case are that Complainant/respondent for the purpose of export sent request to OP No. 1/Petitioner for credit limit and also got insured export of goods upto Rs.10,00,000/ - for a period of two years from 1.9.1991 to 31.8.1993. On receiving permission, complainant exported goods within credit limit and also paid premium charges. Buyer refused to receive the exported goods, in such circumstances, complainant was compelled to sell the goods to another person on a discounted price after intimation to OP and suffered loss of Rs.3,38,578/ - in Complaint No. 172/94, Rs. 97,989/ - in Complaint No.174/94, Rs.1,49,698/ - in Complaint No.178/94, Rs.1,14,387/ - in Complaint No. 20/95. Claim was repudiated by OP. Alleging deficiency on the part of OP, complainant filed four complaints before District Forum. OP resisted complaints and submitted that complainant took policy from 23.8.1989 to 31.8.1993 for export and assured to compensate the loss occurring to goods due to unforeseen circumstances subject to timely payment of premium. It was further submitted that premium to policies is received at the time of shipment after declaration by the export with the documents. As per terms of policy it was necessary for the complainant to declare all the shipments and making shipments without declaration amounts to violation of terms and conditions of the policy. During the said period, complainant had made more than 100 shipments to various countries but declared only 10 shipments and by not paying premium for rest of the shipments, played fraud and made illegal gains. It was further submitted that 10 shipments were declared only because complainant was doubtful about the payment of aforesaid shipments. OP has rightly repudiated the claim and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaints and directed OP to make payment with interest. Appeals filed by the OP were dismissed by learned State Commission vide impugned order against which, these revision petitions have been filed.
HEARD learned Counsel for the parties and perused record.
LEARNED Counsel for the petitioner submitted that inspite of violation of the terms & conditions of policy, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeals, hence, revision petitions be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petitions be dismissed. Perusal of record reveals that as per statement of shipments, 104 shipments from 14.3.1990 to 14.11.1991 were not declared by complainant. Condition nos. 8, 9,10,13,31,32 & 33 of the policy runs as under: ''''8. Declaration: The Exporter shall (a) On or before the 15th day of each calendar month deliver to the Corporation a declaration on the form prescribed by the Corporation of (i) All shipments made by him during the previous month: (ii) All amounts which at the end of the previous month remained wholly or partly unpaid for more than one month from the due date of payment in respect of shipment previously declared (Such declaration shall continue to be delivered to the Corporation in respect of all transactions insured with it, so long as such transactions remain outstanding, even though the Policy might have expired) Note: Even if there are no shipments or there are no amounts overdue, a declaration shall nevertheless be filed showing this fact. (a) furnish the Corporation promptly with any further information regarding such shipments that the Corporation may from time to time required.
Policy Fee: The sum of Rs.200/ - (Rupees Two hundred only) is paid by the Exporter as a non -refundable fee for the issue of this policy.
Payment of Premium: The Exporter shall be liable to pay premium on all shipments to which this Policy applies forthwith on the making of such shipments and shall pay the said premium at the rates set out in the Schedule hereto (or as the case may be at any varied rate for the time being in force) on the gross invoice value of such shipments, and shall pay the said premium when making the declaration under clause 8 of this Policy.
Percentage of Loss Payable: The percentage of the amount of any los which the Corporation hereby agrees to pay shall be 90%.
Fraudulent Claims: If the Exporter makes any claim hereunder knowing the same to be false or fraudulent means or devi ...are used by the Exporter or any one acting on his behalf to obtain any benefit under this policy, the liability of the Corporation hereunder shall cease and the Exporter shall have no claim hereunder and shall repay to the Corporation on demand all sums paid by the Corporation and the Corporation shall be entitled to retain all payments made to it by way of premium or otherwise.
Observance of Conditions: The due performance and observance each term and condition contained herein or in the proposal or declaration shall be a condition precedent to any liability of the Corporation hereunder and to the enforcement thereof by the Exporter.
Failure to comply with conditions: No failure by the Exporter to comply with the terms and conditions of the Policy shall be deemed to have been waived, excused or accepted by the Corporation in writing.
PERUSAL of aforesaid conditions reveals that complainant was under an obligation to deliver declaration on the form prescribed by OP on or before the 15th day of each calendar month in respect of all shipments made by him during the previous month; all amounts which at the end of previous month remained whole or partly unpaid for more than one month and to pay Rs.200/ - as non -refundable policy fee for the issue of policy and complainant was also under an obligation to pay premium on all the shipments to which the policy applies. As per clause 31, if the exporter makes any claim knowing the same to be false or fraudulent, liability of Corporation shall cease and exporter shall have no claim. As per clause 32 conditions contained in the policy or in the proposal or declaration form are condition precedent to any liability of the OP and failure to comply with the condition shall not be treated as waiver of the conditions by OP.
PERUSAL of aforesaid terms and conditions makes it crystal clear that complainant was under an obligation to declare all the shipments made by him during the previous months on or before 15th day of each calendar month and also to pay premium for that shipment, but as complainant has not complied with the terms & conditions of the policy, OP has not committed any deficiency in repudiating claim. Learned District Forum has allowed complaint on the principle of one sided policy which is discriminatory and against the principles of natural justice. Learned State Commission also observed in its order at page 4 as under: ''''The argument of Sri Jaiswal that since all the shipments were not declared prior to shipments in question, it infringes condition no. 8 of the contract in question is not convincing as such declaration is of no u se. The purpose of declaration is not clear, it cannot be stressed to mean that the declaration is going to serve any useful purpose for the settlement of the determination of the terms and conditions of the contract and respective rights and liabilities of the parties to the contract. ''''
Further, at page 5: ''''the non -disclosure of all shipments cannot be taken to mean that it will absolve the appellants in the event of occurrence of risks to identify the loss ''''.
meaningthereby, learned District Forum and learned State Commission has held that terms & conditions of the policy were one sided and discriminatory and declaration was of no use and allowed complaints. On the other hand, learned Counsel for the petitioner placed reliance on judgment of this Commission in F.A. No. 90 of 2004 - M/s. Mohammed Ibrahim & Sons Vs. Branch Manager, Export Credit Guarantee Corpn. of India Ltd. (ECGC) decided on 17.09.2009 pertaining to similar matter between the same parties in which, order of State Commission dismissing complaint regarding four shipments was upheld by this Commission and it was further observed as under: ''''The learned Counsel for the appellant has not been able to show us anything that would amount even distantly to a factual error or failure of due appreciation of the policy terms in the impugned order of the State Commission. We are rather surprised that even in a case as blatantly violative of the explicit terms of the policy as this, the complainant/appellant thought it fit to challenge the State Commission ''s order. The appeal is totally devoid of merits and is dismissed as such. ''''
HON ''ble Apex Courtin C.A. No. 1557 of 2004 and others - Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International while incorporating some terms and conditions observed as under: ''''Held, it was not permissible for Court to substitute terms of contract itself under garb of construing terms incorporated in agreement of insurance - No exceptions could be made on ground of equity - However liberal attitude adopted by Court by way of which it interfered in terms of an Insurance Agreement was not permitted - Same must certainly not be extended to extent of substituting words that were never intended to form part of agreement - However Insured failed to comply with requirement of Clause 8 (b) of Insurance Agreement informing Insurer about non -payment of outstanding dues by foreign importer within stipulated time except in two cases - Thus, only two claims which were subject matters in Civil Appeal Nos. 1547 and 1557 of 2004 deserve to be allowed and others were disallowed - Appeals disposed of. ''''
IN the light of aforesaid judgments, it becomes clear that it was not permissible for District Forum and State Commission to substitute terms of contract and when complainant had violated the terms and conditions of the policy, OP was right in repudiating claim and has not committed any deficiency in repudiating claim. Learned District Forum without any cogent reason allowed complaints and learned State Commission further committed error in dismissing appeals and impugned order is liable to set aside. Consequently, R.P. Nos. 51 -54 of 2008 - V.K. Manchanda and Ors. Vs. M/s. Mohd. Ibrahim and Sons are allowed and impugned order dated 23.10.2007 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow in Appeal No. 1054 -1057/1996 - V.K. Manchanda & Ors. Vs. M/s. Mohd. Ibrahim and Sonsand order of District Forum dated 12.07.1996 passed in respective complaints are set aside and complaints stand dismissed with no order as to costs.