IMPORTANT POINTS
(1) Perils - Once it is established that surveyor has no concrete reasons to frame his opinion but it has presumed that it might be because of excluded perils.
(2) Legitimate Right - Mere presumption as to existence of Peril cannot be sustained in law to repudiate somebody’s legitimate right.
(3) Indemnification - When loss is covered by the policy, according to sound principles of indemnification, the insured is entitle to indemnification to the extent actual loss suffered by him.
(4) Movable goods - Usually in movable goods, it is law that ownership passes to possession holder.

ORDER

R.N. Mehta, Member—The present complainant has filed this complaint under Sec. 12 read with Sec. 17 of The Consumer Protection Act, 1986 (herein after referred as “Act” or “The Act”) and prayed that the opponent be directed to pay US $ 31733 equivalent to INR Rs.20,40,432/- with interest @18 % p.a. from 3/2/2014 till realisation, cost of litigation and Rs. 1,00,000/- towards compensation for harassment and hardship caused to the complainant.

2. That the complainant is a proprietorship firm engaged in the business of export and import whereas the opponent is a licensed insurer company regulated by IRDA, carrying on general insurance business in India. That the complainant had availed Open Marine Policy vide Policy No. 0830012116 for the period from 25/4/2013 to 24/4/2014 to cover annual turnover of total consignment value of Rs.7,00,00,000/- with a condition of reinstatement of sum insured utilisation or depletion of sum insured. That the policy so obtained was All Risk Policy with SRCC & War and basis of valuation was CIF/FOB/C&F + 10% on agreed value basis. That it is general practice in Open Marine Policy, where the insured declares consignment and value in advance using / through e-marine. That complainant had therefore declared consignment on 19/8/2013 for Invoice No. TE/034/13 for which declaration certificate no. F689367217 was given. That the certificate so given was covering insured goods i.e. 1380 bags of wheat flour in 3 separate containers described in Bill of Lading dated 2/9/2013 for shipping bill dated 29/8/2013 and subject material was to covered under transit risk from Rajkot to Mundra port and from Mundra Port to Tamatave Port of Madagascar. That the name of consignee was declared as Gold Star Commodities and Mineral SARL having its office at Villa Finartra 25 Rue De La PoundrierePlle 2, Toamasina 501, Madagascar and invoice value of goods declared was US$ 33879/- (with fix exchange rate of US $ 1 = INR 64.30). That insurer also agreed for coverage to the extent CIF + 10% which comes to US$37267/-. That the stuffing activity of container was undertaken by Central Warehousing Corporation.

3. That the consignment was covered under ICC-Clause A of Marine Insurance Policy and the clauses thereof remains standard since it is drafted by Lloyds of London. It is alleged that the complainant was given only schedule of policy and not supplied full text of policy which includes detail terms and conditions of the policy. It is alleged that the consignment covered under above referred certificate sustained damage during transit and loss was intimated by consignee to Lloyds agent at Madagascar and also as opponent’s office at Parktown, the opponent insurer appointed R. Duponsel& Co. as surveyor and loss assessor and on the basis of observation made by him the opponent came out with self-suited exclusions to repudiate legitimate claim. That the consignee had extended fullest co-operation in investigation and assessment of claim and submitted all required papers demanded by surveyor. The complainant also had submitted necessary papers to insurer as and when called for. The said surveyor had observed vide his report dated 7/11/2013 that one bag was missing, whereas 1201 bags were damaged and became unfit for human consumption and have to destroy, The value of loss therefore taken at US$28848/- plus US$ 2884 (being 10% in addition) means US$ 31733 (rounded off) and applying exchange rate of Rs. 64.30 it comes to Rs.20,43,432/-. However, thereafter insurer had series of communication with regard to cause of damage and it’s coverage under the policy and subsequently insurer had repudiated claim vide letter dated 3/2/2014. It is alleged that surveyor and insurer had presumed cause of loss without there being any solid base for the same. It is also alleged further that repudiation of insurance claim was based on whimsical, illogical and on flimsy grounds which is unjust and arbitrary in nature and seems to have exercised righ