NARENDRA KAWDE,MEMBER -
(1.)COMPLAINANT is a company incorporated under the Indian Companies Act, 1956 (hereinafter referred to as 'complainant -company'). The complainant -company hired services of opponent/United India Insurance Company Ltd. (hereinafter referred to as 'Insurance Company') for covering risk involving in transportation of second hand 32 Sulzer looms from European Port to Nhava -Sheva Port, Navi Mumbai and further to Tarapur at their factory site near Mumbai. It is alleged by the complainant -company that insurance claim payable on account of damage in transit was arbitrarily repudiated by the Insurance Company which was payable under the Marin Cargo Cover Insurance Policy. Aggrieved thereby this consumer complaint alleging deficiency of service against the opponent/Insurance Company has been filed.
(2.)SALIENT facts giving rise to file this complaint are that Complainant -company subscribed to Marin Cargo Cover Insurance Policy for providing transit insurance cover to the second hand 32 Sulzer looms for marine shipment from European Port to NhavaSheva Port and further onward transportation to the factory site at Tarapur near Mumbai. Said Insurance Cover Note with a condition "to pack three looms in one container" was issued by the opponent/Insurance Company, valid for a period 16.9.1998 to 15.3.1999 with sum assured of USD 4,47,068 equivalent to Rs.1,90,00,000 (Rupess One Crore Ninety Lakhs). In the first lot, complainant -company transported marine shipment with 16 second hand Sulzer looms in five containers, three looms each in four containers and four looms in fifth container. After marine shipment arrived at destination Port, pre -dispatch survey was carried out by Surveyor M/s. Dixit and Co. appointed by the Insurance Company on 31 /03/1999 and submitted its report on 1.4.1999. Both parties very much relied on this pre -dispatch report in support of their contentions which is discussed hereinafter.
(3.)INSURANCE Company issued another policy bearing No.120100/21.6.11/1910/98 mentioning the earlier cover note on 15.3.1999 with sum assured of USD 2,91,500 equivalent to Rs.1,23,88,750 (One Crore Twenty Three Lakhs Eighty Eight Thousand Seven Hundred Fifty) with imposing condition of cargo clauses as:
"(1) Inst Ccargo Clause 'A' all RSKS (2) Inst War Clause (Cargo) Ins strike Clause (Cargo). (3) Inst Radioactive Con. Excl. Clause"
After conducting the pre -dispatch survey by M/s. Dixit and Co. the containers with 16 second hand Suizer looms were dispatched to Tarapur Factory of the complainant from Nhava Sheva Port of Navi Mumbai. On consignment reaching to factory site, complainant noticed damage to 7 looms out of 16 looms and this fact was reported to the opponent/Insurance Company. The Insurance Company appointed M/s.J.B. Boda, Surveyorto carry out the survey. Said Surveyor carried out the survey at factory site and submitted his report on 3.4.1999 recommending net liability of Rs.12,76,340 payable under the Insurance Company with his observations in respect of damaged seven looms as: "Parts/components of the affected looms comprising of projectile retainer, pressure plate, cloth role bracket, healed wire frame, centering blade, driving lever, slay bar, beam role flinch, elcumeter etc. found bend, dented and distorted....Further it is observed that.... damage could have been sustained by the Sulzer Projectile Shuttler Looms due to knocks, falls and/or blows received during transit and/or at the time of handling." (page 33 to 43). Hot satisfied with this Survey Report, the Insurance Company appointed second surveyor M/s. M.R. Jhalani and Associates to carry out survey, who recommended net extent of liability of Rs.2,54,852 payable under the policy. Insurance Company again appointed third surveyor M/s Marulkar and Co., Chartered Engineer, Valuer and Surveyors for offering their technical opinion. Said valuer reported possible repairs and replacement cost of Rs.3,31,304. The loss reported by M/s. M.R. Jhalani and Associates and subsequent Valuer M/s. Marulkar and Co. was offered for settlement by the Insurance Company and even payment voucher were sent to the complainant. However, complainant -company declined to accept the offer. Correspondence was exchanged between the parties for long time for settlement of insurance claim and ultimately, the Insurance Company repudiated the claim on 28.5.2001 on the ground that the claim falls under exclusion clause No.4.3 of the insurance policy which reads as:
"4.3 loss damage or expense caused by insufficiency or unsuitability of packing or preparation of the subject -matter insured (for the purpose of this Clause 4.3 "packing" shall be deemed to include stowage in a container on lift -van but only when such stowage is carried out prior to attachment of this insurance or by the Assured or their servants)."
Aggrieved with the repudiation, the complainant -company filed this consumer complaint claiming amount of Rs.20,00,000 together with interest 8% p.a. with cost of litigation.
Insurance Company appeared and filed their written version inter alia denying the contentions and claim of the complainant and stated that whenever any policy is issued subsequent to the cover note, terms and conditions of the cover note gets merged in the insurance policy. Further averred that marine shipment of the goods was obviously dispatched on the basis of Cover Note issued by the Insurance Company and/Cover Note was in respect of providing marine insurance cover to 32 second hand Sulzer looms. However, the complainant -company then decided to import only 16 secondhand Sulzer looms under the Bill of Lading dated 22.2.1999. The pre -dispatch survey carried out by M/s.Dixit and Co. shows that nature of packing of looms was unprotected in the containers. On receiving the intimation of damage, opponent/Insurance Company appointed M/s. J.B. Boda Surveyors. Ltd. to carry out survey at factory site. However, not convinced with the report of M/s. J.B. Boda Surveyors Ltd., second Surveyor M/s. M. R. Jhalani and Associates were appointed followed by the appointment of M/s. Marulkar and Co. a Chartered Engineers and Valuers to assess and to quantify the alleged damage. Since as required under the policy terms and conditions referred to above i.e. exclusion clause 4.3, the machineries were shipped in the containers was not packed and was in unprotected condition in violation of the terms of the policy as in one of the containers four looms were shipped as against three as against the stipulation in the policy Cover Note. Further, it is also stated that cover note is not only the provisional document as alleged and the terms and conditions stipulated under the Cover Note are not applicable as presumed by the complainant is ridiculous and such a contention cannot stand to reasons. Issue of voucher for amount of Rs.3,31,304 against the settlement of insurance claim was inadvertent act on the part of Divisional Office and so also the further settlement offer for Rs.2,54,852 was withdrawn. Finally, the Insurance Company vehemently tried to justify the repudiation of the claim as not admissible since the falling under the exclusion clause 4.3. of the policy.