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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member, Dr. B.C. Gupta, Member
Madan Mohan Panda Carrying —Complainant
versus
National Insurance Co. Ltd. —Opp.Party
Consumer Case No.177 of 2008
Decided on 7.4.2016
For the Complainant:Mr. Santosh Kumar and Ms. Bhabna Das, Advocates
For the Opp.Party:Mr. Kishore Rawat, Advocate
IMPORTANT POINT
Contract of insurance presupposes that loss sought to be covered by way of an insurance policy has already not occurred by the time policy is obtained.
Headnote:(A) Consumer Protection Act, 1986—Section 21—Insurance—Specific Voyage Policy—Damage to export consignment—Claim repudiated on ground that whole transaction was a fraud—An insurance policy when taken for first time is valid only from time it is issued and not from midnight previous to day on which policy is issued—Position could be different in a case where policy is got renewed and renewal is made effective from date on which previous policy expired—In case of renewal of an existing policy, insurer is only continuing insurance of risk already covered by it whereas in a fresh policy risk comes to be covered for first time only on issuance of policy. (Para 6)
(B) Consumer Protection Act, 1986—Section 21—Insurance—Specific Voyage Policy—Damage to export consignment—Contract of insurance presupposes that loss sought to be covered by way of an insurance policy has already not occurred by the time policy is obtained—No insurer would agree to cover a loss which has already happened—Obtaining an insurance policy after loss has already occurred will be a deceitful act and on discovering of the deceit, insurer is entitled to avoid contract of insurance on ground that insurance policy was obtained by concealment of material fact—Complainant was under a contractual obligation to request insurer to depute a Surveyor to supervise loading of consignment in truck, for road journey from Kolkata to Mumbai—By not requesting insurer to nominate a surveyor to supervise weighment and loading of consignment complainant contravened a binding term of contract between parties and consequently, insurer is also not bound by its obligation to reimburse complainant for loss sustained by him—Complaint dismissed. (Paras 8, 10, 13 and 14)
Result: Complaint dismissed.
V.K. Jain, Presiding Member—The complainant, who is carrying business in the name and style of Durga Exports, received an order from M/s. Nainvirat International Business Co. Ltd. Bangkok, for supply of 4200 units of designer fabric drapes, for a total price of USD 1,428.000/-. The complainant entered into two separate contracts, one with Sethia Fashions & Agencies Pvt. Ltd. and other with Chitrakoot Suppliers Pvt. Ltd., for purchasing the aforesaid fabric drapes. Both the aforesaid companies are stated to be sisters concerns represented by one Mr. Sandeep Kumar Sethia. In turn, the above name suppliers had allegedly outsourced the said material from other suppliers. The aforesaid fabric drapes were allegedly supplied to the complainant from time to time between May 2003 and August 2003 and the complainant claims to have paid a sum of Rs.2,52,00,000/- to M/s. Sethia Fashions & Agencies Pvt. Ltd. by way of 14 cheques and Rs.2,77,20,000/- to M/s. Chitrakoot Suppliers Pvt. Ltd. by way of another 14 cheques, towards purchase price of the said drapes. On 03.09.2003, the complainant took an insurance policy from the opposite party, to cover the risk of transporting the consignment of the fabric drapes from Calcutta to Dubai, via Mumbai. The aforesaid consignment, allegedly kept in 115 card board cartoons, was entrusted to M/s. Calcutta Cargo Carriers on 20.10.2003, declaring full value of the goods. The intimation of the said dispatch was given to the opposite party, vide fax dated 20.10.2003 and endorsement in terms of the insurance policy was made by the opposite party on 22.10.2003.
2. The case of the complainant is that Truck No.WB-03A-6637 carrying the aforesaid consignment caught fire at about 1.30 AM on 22.10.2003 near Bangriposi Ghat, N.H. No.6, Mayurbhanj. The night police patrol reached the spot at about 2 AM. The fire brigade reached the spot at about 3.10 AM but could do nothing and the entire consignment allegedly got burnt in the said fire. Vide letter dated 23.10.2003, the complainant reported the incident of fire to the insurer. M/s. General Surveyors of India was appointed as the surveyor on or about 24.10.2003. On 31.10.2003, they were formally appointed as surveyors. On 17.11.2003, the complainant submitted a claim, alleging total loss of Rs.7,22,56,800/-. Later Apex Surveyors Pvt. Ltd. were appointed as investigator to assess the loss. The claim came to be rejected vide letter dated 10.01.2007, primarily, on the grounds that (i) the risk was not covered by the policy, and (ii) the whole transaction was a fraud. Being aggrieved from the non-payment of his claim, the complainant is before this Commission, seeking the principal claim amount of Rs.7,22,56,800/- along with interest etc., making a total claim of Rs. 13,74,30,026/-.
3. The complaint has been resisted by the insurer on several grounds. It is alleged that the policy issued to the complainant being a specific voyage policy and the declaration as to specific details of the risk/adventure having not being intimated to the insurer before commencement of the risk, the contract was liable to avoidance. The risk commenced at about 2.30 AM on 21.10.2003, whereas the effective date of endorsement was 22.10.2003. It is also alleged that the complainant contravened contention no.13 of the proposal by not making advance declaration of the dispatch to the insurer and therefore the contract became void ab-initio. It is also claimed in the reply filed by the insurer that the complainant was not authorized to export, which was not neither fully paid nor protected and secured by letter of credit and the movement of goods without letter of credit was illegal. The insurer has also questioned the authenticity of alleged export order and existence of the supplier named by the complainant. It is also alleged that payment of crores by the named supplier to the persons fr
