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Judgment
C.Viswanath, Presiding Member
The present Appeal is filed by the Appellant/Opposite Party against the order passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (for short “State Commission”) in Consumer Complaint No. 62 of 2011 dated 15.10.2014.
Along with the Appeal IA/Nil/2015 an application for condonation of delay of 88 days has also been filed by the Appellant. For the reasons mentioned in the application and in the interest of justice, application is allowed and delay condoned.
Complainant No.1 is engaged in the business of exploration, development and production and Coal Bed Methane. Opposite Party No.1 is a Nationalised Insurance Company and Respondent No.2 is an insurance agent of Respondent No.1, a proforma party. Case of the Complainant is that on 09.05.2007 they took Marine Policy No.100701/21/07/4300000019 insuring Mobile Rig (RD20 Atlas Copco) along with accessories and spares for Coal Bed Methane (CBM) Gas scheduled to be shipped from Houston, Texas to Asansol, West Bengal for sum insured of Rs.4,96,10,000/-. The Policy covered among others “all water damages including rain damages”. The Complainant purchased the Rig alongwith accessories and spares from its manufacturer at Houston, Texas which was shipped to Asansol, West Bengal via Mumbai Port by a Vessel named SAUDI HOFUF – V-132. On 23.06.2007, the consignment was discharged at Mumbai, Ballard Pier Extension, Indira Docks for onward road transport to Asansol and the said ship was waiting inspection and clearance from the Custom Authorities at Mumbai Port. The Rig was parked in the open. After clearance from the Authorities, the supplier of the Indian Representatives, M/s Atlas Copco, who was called on July 15, 2007 for inspection, noticed that the diesel engine did not respond on ignition as rain water had entered the engine crank casing through the exhaust pipe due to heavy rainfall at Mumbai.
The Surveyor J.B. Boda Surveyors Pvt. Ltd. asked the Insurance Broker M/s Howden Insurance Brokers India Pvt. Ltd. to inform all parties concerned regarding survey of the said Rig. After survey, the Rig was transported to M/s GMMCO Ltd. Nagpur for repairing. During the joint inspection on 22.08.2008 by the Surveyor at Nagpur, it was found that various parts of the diesel engine got affected due to the rain water and were to be replaced. After incurring an expenditure of Rs.15,71,457/- towards repair of the said Rig, it was transported to Asansol its final destination. On 04.01.2008, the Complainant filed insurance claim of Rs.15,71,457/- with Respondent No.1 alongwith all the necessary documents. Thereafter, the Complainant pursued the matter with Opposite Party No.1. The claim was repudiated by the Opposite Party on 05.05.2009. Thereafter on 26.05.2009, a legal notice was served by the Counsel for the Complainant upon the Opposite Party No.1. On 8.10.2009, Opposite Party No.1 replied to the said legal notice and rejected the claim of the Complainant. Alleging deficiency in service despite on the part of Opposite Party No.1, the Complainant filed a Complaint in the State Commission with the following prayer:-
“a. Compensation and/or damages for a sum of Rs.27,72,949/- as pleaded in paragraph 31 herein to be paid to the Complainant by the respondent No.1
b. Interest @ 18% per annum as pleaded in paragraph 32 herein until realization.
c. Costs of an/or incidental to this Complaint be paid by the respondent No.1
d. Such further or other order/orders be passed and/or direction or directions be made as to this learned Redressal Commission may deem fit and proper.”
The Complaint was resisted by the Opposite Party No.1 on the ground that the Complaint was not maintainable. The cause of action arose on 05.05.2009 when the claim was repudiated and the Complaint was filed on 17.10.2011, after expiry of limitation period. The Complaint was barred by limitation.
On merit, the Opposite Party stated that the Rig booked for Asansol was unloaded at Mumbai and for its stay at Mumbai they are in no way responsible for the damage caused at Mumbai Port. The Rig was parked in open space despite heavy rains and water entered into the exhaust pipe and caused damage. This was a violation of the Policy and the claim was rightly repudiated after due inspection by the Surveyor by the Insurance Company on 05.05.2009, on the ground that the observations received from the Divisional Office and the Surveyor, that the validity of the Marine Policy stood ceased from the time the Drilling Rig prior to its causality, rolled out of Vessel under its own power from Mumbai Port and intended to move to its final destination at Asansol. Thus there was no deficiency in service.
The State Commission after hearing the Learned Counsel for the Complainant and Opposite Party No.1 and perusing the record allowed the Complaint with following order:-
“That the Complaint be and the same is allowed on contest against the OP no.1 with cost of Rs.10,000/- and exparte against the OP no.2 without any cost. The Complainant is entitled to a sum of Rs.15,71,457/- along with interest @ 18% p.a. from 08.10.2009 till full and final settlement from the OP no.1, which should be paid by the OP no.1 to the Complainant within a period of 45 days hence. No order cost/compensation is awarded in the matter.”
Aggrieved by the order of the State Commission, the Appellant/Opposite Party No.1 filed the instant Appeal before this Commission.
We have heard Learned Counsel for the Appellant/Opposite Party No.1 and Learned Counsel for Respondent No.1/ Complainant and carefully perused the record. Respondent No.2/Opposite Party No.2 was proceeded ex-parte. Learned Counsel for the Appellant submitted that the State Commission ignored the legal proposition and condoned the delay. Exchange of letters between the Parties does not extend the period of limitation under the Consumer Protection Act, 1986. He relied on the judgment of Hon’ble Supreme Court in Ashok Kumar Saina vs. Delhi Development Authority, 2013 2 AWC4.57 (NC) . The Complainant filed the application for condonation of delay in the State Commission after evidence was by the Appellant. The State Commission should not have entertained the application filed at a belated stage.
On merit, Learned Counsel for the Appellant submitted that the consignment was booked for Asansol and not Mumbai. However, the Complainant unloaded the consignment at Mumbai and for the loss occurred at Mumbai, the Appellant was not responsible to indemnify. The Complainant was aware that there was heavy rain at Mumbai yet the Rig was parked in the open space at Ballard Pier, Indira Docks, Mumbai for onward transmission to Asansol through a trailer. The State Commission exceeded its jurisdiction by granting relief out of the contract of insurance. He relied on the judgment of Hon’ble Supreme Court in Vikram Green Tech (I) Ltd. vs. New India Assurance Co. Ltd., II (2009) CPJ 34 (SC). Learned Counsel further submitted that the State Commission awarded interest 18% p.a. without any basis.
On preliminary objection regarding condonation of delay, Learned Counsel for Respondent No.1/Complainant submitted that the Complainant properly explained the delay, which the State Commission found to be satisfactory and condoned the delay.
On merit, it was submitted that the vessel was stationed at Mumbai port for inspection and clearance from the Custom Authorities. Only after clearance from the Custom Authorities the vessel could be transmitted to Asansol, West Bengal. Since the engine could not start, the Rig was loaded on a trailer and transported to Nagpur for repairing. During inspection it was found by the Surveyor that various parts of the diesel engine got affected due to rain water and required replacement. It was all due to heavy rains in Mumbai and there was no negligence on the part of the Complainant. Opposite Party No.1 was intimated about the situation. Opposite Party No.1 also appointed a Surveyor. Learned Counsel submitted that the impugned order of the State Commission suffers from no illegality and the Appeal be dismissed.
It is an admitted fact a Marine Insurance Policy was taken by the Complainant from Opposite Party No.1 insuring Mobile Rig (RD20 Atlas Copco) along with accessories and spares for Coal Bed Methane (CBM) Gas scheduled to be shipped from Houston, Texas to its final destination Asansol, West Bengal for the sum insured at Rs.4,96,10,000/-. The Rig left from Houston, Texas to Asansol via Mumbai. The Rig was rolled out at Mumbai Port and was stationed in the open for inspection by the Custom Authorities. The Rig got damaged because of the heavy rainfall in Mumbai and was got repaired at workshop in Nagpur and thereafter dispatched by road to Asansol. The Surveyor appointed by the Insurance Company submitted a detailed report. The Surveyor attributed the cause of damage to rain water entering the engine crank through the exhaust pipe, due to heavy rainfall at Mumbai and assessed the loss at Rs.1348474.04.
Regarding the issue of condonation of delay, we would like to refer to the judgment in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Others wherein Hon’ble Supreme Court observation is as follows:-
“15. From the aforesaid authorities the principles that can broadly be culled out are:
i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
In para viii above, Hon’ble Supreme Court held that while dealing with ordinate delay, liberal approach has to be adopted. Opposite Party No.1 raised objection to condonation of delay of 73 days. On the contrary, The Opposite Party No.1 filed the instant Appeal with a delay of 88 days. Moreover, after service of legal notice, the Appellant/Opposite Party No.1 intimated the Complainant, vide letter dated 08.10.2009 that the claim was not admissible. The State Commission in its discretion had condoned the delay. We find that while condoning the delay, the State Commission had exercised its discretion judiciously and we are not inclined to interfere with the same. The argument of the Appellant that the Complaint ought to have been dismissed on the ground of delay is rejected.
On merit, the claim of the Complainant was repudiated on the ground that the contract of insurance stood ceased at the time the Rig rolled out prior to its custody. It is the case of the Complainant that vessel was stationed at Mumbai port for inspection and clearance from the Custom Authorities. It is admitted that only after clearance from the Custom Authorities the vessel could be transmitted to Asansol, West Bengal. During inspection it was found that the engine of the Rig could not start. The Complainant got the Rig repaired and thereafter got the inspection completed, which was the condition precedent. It is not disputed by Opposite Party No.1 that the loss had occurred to the Rig due to rains. The Complainant claimed an amount of Rs.15,71,457/- for repair of the Rig. The Appellant Insurance Company cannot evade their responsibility taking shelter that the loss occurred due to negligence of the Complainant. This is only a bald allegation and the Appellant had not produced any evidence whatsoever to prove that there was negligence on the part of the Complainant. State Commission also observed as follows:-
“There is no outward breach of any policy condition by the Complainant. The objection of the OP No.1 in this regard remains unfounded. The contributory negligence of the Complainant is also not proved by any supportive document. Therefore, the repudiation, as a whole, is incorrect and violates the terms and conditions of the Policy itself.”
Further, Surveyor Report is also relevant, which reads as follows: -
After our inspection we made out minutes of meeting recording our findings which is enclosed with the survey report.
M/s GIMMCO Ltd., has completed the repairs, assembled the diesel engine, test run same and thereafter mounted it on the rig. The mobile rig has rolled on its own power and processed on journey to Asansol.
ASSESSMENT OF LOSS:
PLEASE SEE ATTACHED ANNEXURE FOR DETAILS … RS.1348474.04
SURVEYORS REMARKS
Out of the above damages the party has not pursued claim for items 39- kit gasket-S- 2 nos., item 41-kit gasket-C-1 no. & item 47- kit gasket-A-1 no.
While assessing the loss we have found that there are certain expenses related to the other sound equipments and the container unit, these have been excluded by us in our workings.
The Insureds or their repairers have not offered any salvage value for the damaged items replaced hence we have taken the salvage value on the basis of approx. weights of these components and taking the prevalent market value.”
The Surveyor after a detailed inspection of each item and the claims pressed and excluding certain items and salvage value, assessed the loss at Rs.13,48,474.04. However, the State Commission directed the Appellant to pay an amount of Rs.15,71,457/- with interest @ 18% p.a. without assigning any reason.
For the foregoing discussion, the impugned order is modified to the extent that the Appellant/Opposite Party shall pay an amount of Rs.13,48,474.04 alongwith interest @ 9% p.a. from the date of repudiation of claim till the date of payment. Order be complied in six weeks, failing which interest will be charged @ 12% p.a. Appeal stands disposed of.