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Judgment
THIS revision is directed against the order of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''''the State Commission '''') dated 11.1.2012 in first appeal No.A/10/387 whereby the State Commission allowed the appeal preferred by the respondent/insurance company, set aside the order of the District Forum, Mumbai Suburban District and dismissed the complaint.
BRIEFLY put, facts relevant for the disposal of this revision petition are that the complainant M/s Pushpak International is engaged in the business of import and export of goods. They were having their godown at 1st Floor, A -24, Nandjyot International Estate, Andheri -Kurla Road, Safed Bridge, Saki -Naka, Andheri (East) Munbai. It is the case of the complainant that they purchased Marine Open Cover (Cargo) Policy from the respondent/opposite party valid for the period w.e.f. 16.12.2014 to 15.12.2015. The complainant was required to export a consignment of 484 boxes containing stainless steel and aluminium utensils as well as plastic wares to M/s Mosali Cold Storage, Zambia by sea to Lusaka. For that purpose they engaged M/s Swift Shipping & Freight Logicstics Pvt. Ltd. and called upon them to send 22 containers for sending the above noted goods. According to the complainant M/s Swift Shipping & Freight Logicstics Pvt. Ltd. on 25.7.2005 informed that they would be sending containers for transporting the above goods on 26.7.2005 and confirmed that they had made arrangement with M/s Arabi Star Maritime Agency Pvt. Ltd. for exporting those containers by ship to the destination port. Accordingly, the complainant shifted the boxes containing the export material from the godown to the ground floor and kept those boxes in open space awaiting the containers which were expected to arrive on 26.7.2005 at 10.00 a.m. Intimation to Superintendent, Central Excise Range O -I, Powai was also given. However, on 26.7.2005 the containers could not reach because of heavy rains. The complainant, therefore, started shifting those boxes from ground floor to the first floor godown. The complainant could take 48 boxes to the first floor but remaining 438 boxes were totally spoiled because of heavy rains. The loss was intimated to the opposite party. The surveyor appointed by the opposite party inspected the goods and assessed the damage caused due to heavy rains to the extent of Rs.11,92,415/ -. The insurance company repudiated the claim.
BEING aggrieved of the repudiation of the claim, the petitioner filed the consumer complaint. Respondent/insurer contested the complaint. It was pleaded in the written statement that the damage caused to the goods was not covered under the Marine Open Cover (Cargo) Policy purchased by the complainant. According to the respondent under the policy before sending the goods the insured was required to submit a declaration describing the goods to be exported and pay the insurance premium thereon. It was also pleaded that as per the allegations in the complaint, goods at the time of damage were not in transit and as such the damage was not covered under the insurance policy.
LEARNED District Forum on consideration of the pleadings and the evidence was of the view that the goods in question were covered under the insurance policy and by repudiating the claim the respondent/opposite party has committed deficiency in service. The District Forum allowed the complaint and directed the opposite party to pay to the petitioner a sum of Rs.11,92,415/ - with 9% interest thereon w.e.f. 5.101.2005 till the realization of amount. Besides compensation of Rs.10,000/ - was granted towards mental torture and Rs.1000/ - towards the cost of litigation.
BEING aggrieved of the order of the District Forum the petitioner preferred an appeal and the State Commission vide the impugned order allowed the appeal, set aside the order of the District Forum and dismissed the complaint.
LEARNED Shri Sunil Malhotra, Advocate for the petitioner has contended that the impugned order of the State Commission is based on incorrect appreciation of the facts. He has drawn our attention to condition No.8.1 of the terms and conditions of the insurance policy which provides that the insurance cover starts from the time the goods leave the warehouse or the place of storage for commencement of the transit and the cover continues during ordinary course of transit. It is contended that the State Commission has failed to appreciate that the goods/consignment was brought out from the warehouse and kept at the ground floor in anticipation of arrival of the containers for transporting the consignment. Therefore, the moment the goods left the godown at the first floor those were in transit and were covered under the policy in view of clause 8.1 of the terms and conditions. It is argued that since the impugned order is against the terms and conditions of the contract, it cannot be sustained.
LEARNED Shri V.S. Chopra, Advocate for respondent No.1 has argued in support of the impugned order of the State Commission.
THE first question which needs determination in this revision petition is whether shifting of carton of the export goods from the godown at the first floor to an open space on the ground floor on 25.7.2005, means that the goods were in transit? In order to find answer to the above question, it would be useful to have a look on clause 8.1 of the terms and conditions of the policy dealing with the duration of the insurance cover. The said clause reads as under: - ''''8.1 This insurance attaches 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 course of transit or terminates either
8.1.1 on delivery to the Consignees or other final warehouse or place of storage at the destination named herein.
8.1.2 on delivery to any other warehouse or place of storage whether prior to or at the destination name therein, which the Assured elects to use either.
8.1.2.1 for storage other than in the ordinary course of transit or
8.1.2.2 for allocation or distribution
or 8.1.3 on the expiry of 60 days after completion of discharge overside of the goods hereby insured from the overseas vessel at the final post of discharge.
whichever shall first occur. ''''
LEARNED counsel for the petitioner has contended that on reading of the above clause particularly 8.1 it is clear that the insurance cover extends to the export consignment from the time the goods leave the warehouse or place of storage for commencement of transit and continues during the ordinary course of transit. It is contended that admittedly the subject goods were shifted from the godown at first floor to the ground floor for transit, therefore, at the relevant time the benefit of insurance cover was attached to the subject goods.
LEARNED State Commission has dealt with the aforesaid issue by observing as under: - ''''In the instant case, we are finding that the goods in consignment of export had not been put in the container sent by M/s Swift Shipping and Freight Logistic Pvt. Ltd., because the containers had not reached to the complainant ''s premises. Mere shifting of goods from first floor to ground floor of the complainant ''s premises does not mean the goods were in transit. So, that attracts the ambit of Marine Open Cover (Cargo) Policy. Movement of goods from godown to ship would have been covered if the goods were taken to container for taking them to the nearest port means taking cargo to foreign destination. In this case, the goods were lying in the premises of the complainant and therefore the complainant ''s goods were not in transit so that attract the Institute Cargo Clauses. Before goods could have taken for shipping, before they were put in the truck or container to be carried by truck, goods were damaged by floods and therefore this contingency is not covered under Marin Open Cover (Cargo) Policy. So we agree with the submission made by Adv. S.R.Singh for the appellant. The forum below erred in law by passing award against the appellant. The order passed by the forum below allowing the consumer complaint is appearing to be bad in law and is not sustainable as such. Hence, the order.
WE do not find any irregularity or infirmity in the reasoning given by the State Commission. Admittedly, the containers meant to carry the subject goods were supposed to arrive on 26.7.2005. Merely because if in anticipation of arrival of containers the petitioner has shifted the subject goods from first floor to ground floor of his premises, it cannot be said that the transit of the goods had commenced because the goods were still lying in the premises of the petitioner. Therefore, we do not find any reason to differ with the order of the State Commission.
THE second question which arises for determination is whether or not the subject goods at the relevant time were covered under the insurance policy? The State Commission has come to the conclusion that the subject goods were not covered under the insurance policy because of the fact the petitioner company had failed to declare the goods to be imported and pay the advance premium deposit. On perusal of the copy of the Marine Open Cover (Cargo) Schedule, we find that it provides for following conditions: - ''''Coverage - This insurance is subject to Advance Premium deposit A/c. with statutory balance. Subject to following applicable clauses 11,1213 current at the time of attachment of the risk. ''''
ON reading of the above it is clear that the petitioner had taken Marine Open Cover (Cargo) Policy and as per the above -noted term of the policy the insurance for every export consignment was subject to advance premium deposit A/c with statutory balance. This means that before dispatching the consignment for export the assured was supposed to submit a declaration detailing the goods to be exported on paying the insurance premium in advance calculated on the basis of value of those goods. It is not the case of the petitioner either in the complaint or the grounds of revision petition that the relevant declaration in terms of the above -noted condition of the insurance cover was given to the respondent company and the advance premium was paid before putting the goods into transit. That being the case, we find no error in the finding of the State Commission that the insurance cover was not available to the petitioner because it had failed to pay the advance premium as per the terms and conditions of the insurance contract.
IN view of the discussion above, we find no jurisdictional error or infirmity in the order of the State Commission which may call for the interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.