B.K. Taimini, Member — Complai-nant is a company dealing in sugar which entered into a contract for import of 13,000 MT of sugar from M/s. Jeen & Lion and Cie, Paris vide contract dated 19-5-1994 and as per the terms, the insurance was to be effected by the buyer, in this case, the complainant. As per this term of the contract, the complainant obtained an Insurance Policy for Rs. 18.5 Crore for which a premium was paid. The material was shipped through vessel MV Gill, which set sailed on 28-8-1994 and reported at the Indian Port on 30-11-1994. The ship was lightened at Haldia and finally the vessel berthed at jetty on 8-11-1994. On 16-11-1994, it was noticed that consignment was damaged due to water, hence a joint survey was con-ducted with M/s. Port land Surveyors, nominated by the OP. The surveyor assessed the loss and claim was preferred on 24-4-1995 amounting to Rs. 29,82,973/-. By the time the complaint was filed on 27-3-1996, despite repeated meeting and letters written to the Opposite Party, Insurance company, the claim was not settled. Hence, alleging deficiency in service, this complaint has been filed praying for total amount of Rs. 39,82,973/- comprising the loss of sugar of Rs. 29,82,973/- and Rs. 10,00,000/- for deficiency in service.

2. The written version was filed by the OP stating that the complainant is not a ‘Consumer’ and he has violated the provisions of 64 V.B. of the Insurance Act as he has not paid the premium in advance and any policy which is issued against the provisions of the Act has not complied with the provisions of the Act, no liability of the company will arise. The Marine Policy was issued on 13-5-1994 where as the shipment had started on 31-8-1994. At that time of taking the Policy, the premium paid was less than what the complainant should have paid. The balance was paid by the complainant on 22-9-1994, but that will not cure the deficiency as it is violation of the provi-sions of Section 64VB. As per the directions and instruction of the General Insurance Company, the ship through which the goods are shipped should be approved by that company. In case, the ship is not approved then for non approval, extra premium is payable by the insured. This premium is placed at Rs. 18.75 Lakhs. It is also stated by them that the seepage/sweepings which remained in the ship were not cleared as also the fact that no step was taken by the com-plainant to protect the interest of the insurers. It was also stated that during the survey being carried out by the surveyor, he was informed by the insured about the shipment of 13,000 MT being 10% more or less. Since there was no excess quantity, short loading of the bags at the time of loading/embarkation cannot be ruled out. The complaint is pre-mature as the matter stood referred to the Head Office on 26th March 1994, despite this the complaint has been filed which should be dismissed.

3. A rejoinder was filed by the complainant meeting all these points. One affidavit each was filed in support of the pleadings.

4. We heard the parties at length. Before we go to the merits of the case, narration of the sequence of events will in order. Undisputed facts of the case are that upon complainant approaching the Opposite Party, a Cover Note was issued on 30-5-1994, the under the Heading ‘cover terms’, the following entries were made :-

“1) Institute Cargo Clauses (A) Rs — All Risk

2) Institute War Clause (Cargo)

3) Institute Strike Clause (Cargo)

4) Warehouse to warehouse.

5) TPND Clauses.

6) Classification clause.

Excluding the shipment by Panaminum & Hondurisn Flags.”

It also carried an endorsement of the Insurer, which read as follows:-

“THIS COVERNOTE IS A PROVISIONAL ACCEPTANCE NO LIABILITY ATTACHES TO THE COMPANY UNLESS THE COVERNOTE IS CONVERTED INTO A STAMP POLICY INCORPORATING THE FULL DETAILS OF SHIPMENT ON PAYMENT OF REQUISITE AMOUNT IMMEDIATELY THE PARTICULARS OF SHIPMENT ARE MADE AVAILABLE TO OUR INSURED.”

5. There is no difficulty in appre-ciating the ter