ADROIT INDUSTRIES (INDIA) LTD. vs NEW INDIA ASSURANCE CO. LTD.

BY this complaint under Section 17 of the Consumer Protection Act, 1986 (for short "C.P. Act"), complainant-Adroit Industries (India) Ltd. a public limited company dealing in manufacture and export of auto parts, claims 43100.99 US dollars as sum assured with further compensation of Rs. 1,00,000/- and interest, from respondent-the New India Assurance Co. Ltd., under a marine insurance policy taken out by the complainant from the respondent on 21.2.1997 for safe transport of auto parts by road from Indore to Bombay port.

IN all 8378 auto parts weighing 15409.75 kgs. packed in 61 boxes (cases) valued at 77171.26 US dollars, were booked on 5.3.1997 by the complainant with Pithampur-Bombay Roadways Transport and despatched from INdore to Bombay Port in two trucks bearing registration Nos. MP 09 K 8764 and MTB 7842, vide L.R. No. 43801. The goods as already stated, were insured with respondent-INsurance Company for safe transport from INdore to Bombay Port. While truck No. MP 09 K 8764 carrying 31 cases safely reached to its destination, the other truck MTB 7842 carrying 30 cases did not report its arrival and later on it was discovered that this truck carrying a fake registration number plate, was diverted to some other place along with the said cases. A report of the incident was lodged with Police Station, Aerodrome Road, INdore on 14.3.1997 and the respondent-INsurance Company was also informed. On 23.5.1997, the stolen truck and goods were recovered by the police from some place in UP and brought back to INdore. The respondent-INsurance Company asked the complainant to take delivery of the stolen goods under supervision of some Surveyor who may assess the damage, if any, caused to the said goods. However, the complainant-company insisted for payment of the entire sum for which the said goods were insured and on repudiation of its claim by the respondent has approached this Commission claiming compensation as aforesaid. The respondent-Insurance Company has resisted the claim on the ground that it cannot be treated as a case of total loss and that the goods having been recovered the Insurance Company under the terms and conditions of the policy cannot be held liable to pay the entire price money of the goods. The respondent-Insurance Company again offered to deliver the said goods under the supervision of a Surveyor and make good to loss, if any, assessed by the Surveyor.

We have heard Mr. Mohan Chouksey, learned Counsel for the complainant and Mr. R.C. Sobhani, learned Counsel for the respondent. We have also gone through the evidentiary material available on record.

THE facts of the case already stated hereinabove, are more or less admitted between the parties. THE moot question is whether the complainant is entitled to recover the entire cost of goods from the respondent-Insurance Company notwithstanding the recovery of the goods and without assessment of their present value by the Surveyor. THE obvious answer in our considered judgment, is NO. It will be useful here to read certain terms and conditions of the policy (Annexure N-1). Under the head "Exclusions" condition No. 4.5 reads: "In no case shall this insurance cover: loss in damage or expense proximately caused by delay, even though the delay be caused by a risk insured against (except expenses payable under Clause 2)."

The policy further under the head "Minimising Losses", Clauses 16.1 and 16.2 read: "16.1. It is the duty of the assured and their servants and agents in respect of loss recoverable here under 16.1 to take such measures as may be reasonable for the purpose of averting or minimizing such loss, and 16.2. to ensure that all rights against carriers, bailees or other third parties are properly preserved and exercised."

IT will be thus seen that mere delay in delivering the goods at its destination may not be a cause for holding Insurance Company liable under the policy and further the value of the goods recovered has to be taken into consideration while assessing the loss, if any caused to the complainant. The complainant is further required to ensure and protect rights of the insurer against the carriers through whose agency the goods were transported from Indore to Bombay port. IT is significant to note here that the complainant has not joined the said transporter, Pithampur-Bombay Roadways, as party to this case so as to find out their liability, if any, for the said theft and consequent loss caused to the complainant. The main contention of the complainant is that non-delivery of goods at Bombay Port in time caused immense loss to the complainant, who was required to manufacture the goods afresh and export the same to the foreign company. It was further contended that the inordinate delay in making the goods available to the complainant virtually rendered them valueless and the complainant was, therefore, justified in not taking delayed delivery of the goods. We are afraid, this kind of loss was not covered by the policy and the remedy of the complainant for recovery of such a loss caused in business lay elsewhere not under the provisions of the C.P. Act. As already pointed out, the complainant has not made the said Transport Company as party respondent to this complaint. Needless to say that the said Transport Company was a common carrier and could be held responsible for the loss if any caused to the complainant, under Section 9 of the Carriers Act, 1865. However, the ground on which the total loss is claimed has to be adjudicated upon after taking detailed evidence which is not possible under the summary inquiry envisaged under the C.P. Act. The Insurance Company is responsible to make good to the loss/damage if any caused to the goods not the loss in business suffered by the complainant on account of non-delivery or late delivery of the goods at their destination. Assessment of such a business loss would obviously necessitate a detailed inquiry to which the said carrier would also be a necessary party. The better course for the complainant was to first obtain the delivery of the stolen goods under survey and then stake its claim if any against the respondent-Insurance Company as also the said carrier. The claim as preferred before this Commission cannot be allowed. In the result, this complaint fails and is dismissed with liberty to the complainant to take recourse to such other remedy as may be available to it under the law. We, however, make no order as to the cost of this complaint which the parties are left to bear at their own as incurred. Complaint dismissed.