S.A. Kader, President. - This is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

2. The complainant is a registered firm of Partnership carrying on business in the sale of various chemicals like acetone, Di Acetone Benzene, Tolvene Ethyl Acetate, Zylene, SBP Sovent, IPA, Butanol, DOP, DEP. etc. These chemicals are purchased from various places in India and transported by road to Madras for sale in Tamilnadu and other southern states. The complainant took an Open Policy of Marine Insurance(Cargo) with the opposite party for the period from 30.4.l991 to 29.4.1992 for a total sum of Rs. 40 lakhs to cover various risks in the transport of these chemicals. Under this open Policy the complainant has to file a declaration with the opposite party every month mentioning all the particulars of consignments transported during the month, the invoice number, the nature of the consignment, the place from which they are transported and their value. Along with the declaration a blank cheque is also enclosed and the insurer works out the premium, fills up the cheque and encashes the same. One load of SPB solvent transported from Bombay to Madras in tanker bearing registration No.TMK 7200 met with an accident near Bangalore on 26.8.1991 and the entire consignment was lost. The value of the consignment is Rs. 1,23,760/-. The opposite party was duly informed of the same and the surveyors appointed by the opposite party by their report dated 28.8.1991 held that the entire consignment has become a total loss without any salvage and the insured's claim may be treated on a "total loss basis". Meanwhile the complainant sent a declaration for the month of August'91 to the opposite party and this declaration included this tanker consignment with a covering letter dated 9.9.1991 and a blank cheque bearing No. 618797 drawn on the Bank of Baroda. The opposite party worked out the premium at Rs. 2,292/- filled up the cheque and realized the same. Though the officials of the opposite party agreed to settle the claim, they by their letter dated 14.11.1991 repudiated the claim on the ground that the consignment had been despatched by tanker and not by barrels as stated in the proposal of the insured. The opposite party also sent a cheque for a sum of Rs. 959/- in favour of the complainant stating that the premium for the tanker consignment was collected by mistake. The rejection of the claim is arbitrary and lacks bonafides. This amount to deficiency of service and negligence and the complainant has therefore claimed the policy amount of Rs. 1,23,760/- and damages in the sum of Rs: 1 lakh.

3. The claim is resisted by the opposite party. It is admitted that the complainant has taken an Open Policy of Marine Insurance for the period from 30.4.1991 to 29.4.1992. 1l is alleged that the specific understanding as regards the mode of packing as indicated in the complainant's proposal dated 30.4.1991 was transport in new MS/HM/HDPE barrels. The computation of premium depends upon the nature of the consignment, the mode of packing and the mode of transport. The contract of insurance being of an utmost good faith, the representation made by the complainant was acted upon by the opposite party are the premium was levied and collected on that basis. But the consignment in this case has been transported not in barrels, but in tankers, contrary to-the proposal and the premium for tanker consignment is more than that for consignment dispatched by barrels. It is also pointed out that the - complainant knew that the consignment covered by this Open Policy of Marine Insurance must be transported only in barrels and that is the reason why the complainant had taken a separate policy on 28.8.1991 in respect of a tanker load of Cyclohexanone. The complainant has thus committed a breach and it is not therefore entitled to enforce the claim. It is further pointed that in the declaration for the month of August 1991, this consignment has been inclu