IMPORTANT POINT
Marine Cargo Specific Voyage Policy – Insurer cannot be held liable for any loss or damage to insured cargo on account of negligence or fault of Master of ship.

ORDER

This Consumer Complaint has been filed under the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in service in repudiation of an insurance claim in a Marine Cargo Specific Voyage Policy issued by the Opposite Party in respect of transportation of a cargo of Iron Ore fines in bulk.

2. The facts, in brief, as stated by the complainant, are that the complainant formerly registered as “R. Piyarelall International Private Limited., (RPIL)” for the business of import and export of Minerals, Food Grains and Consumer Articles, changed its name on 13.03.2015 to “M/s. Dynametic Overseas Private Limited”. A policy for consignment of 8,125 WMT of Iron Ore fines in bulk from Haldia Port (India) to one main port (China), commencing from 08.10.2013 was taken by it. The Iron Ore was loaded on the ship ‘M.V. Bingo’, on 08.10.2013 partly at Haldia (6000 WMT) and partly (2125 WMT) at Sagar Anchorage on 11.10.2013, in view of the limitation of loading of cargo vessels at Haldia Port due to draught issues. The Bill of Lading dated 11.10.2013 of the entire consignment of 8,125 WMT iron ore was issued and the vessel sailed the same day. The vessel, however, sank on 12.10.2013 near sandheads in the Bay of Bengal about 28 nautical miles off Balasore Coast in Odisha, on account of cyclone ‘Phailin’. The Complainant filed a claim of Rs.05,03,03,468/- on 30.10.2013 under the said policy. The Opposite Party appointed M/s. Cunningham Lindsey International Private Limited, as Surveyor who in their report dated 25.04.2014 reported that the claim was not valid since the Complainant did not have any insurable interest at the time of loss as the title of the cargo had been transferred to the buyer on stowage of goods on the vessel. It was also reported, inter alia, that there was a large discrepancy between the purchase price and the sale price of the cargo; the moisture content and SiO2 was in excess of the permitted limits; the loading of cargo was not supervised by the surveyor and / or engineer approved by the Respondent. The cargo was also not packed and / or carried according to the guidelines specified as per the trade. There was a breach of policy with regard to chemical analysis of samples during loading and prior to the sailing of the vessel, the buyers and / or their Bankers had returned the documents, interalia, on the ground of discrepancies and the Claimant/Complainant did not have insurable interest at the time of loss.

3. According to the Complainant, the vessel sank because the Master did not heed warnings about the cyclone and due to navigational fault on the part of the Master which is covered under the policy for reimbursement of claim. He is, therefore, before this Commission with the following prayer:—

(a) To show cause as to why the claimant should not be indemnified with Rs. 5,03,03,468/-;

(b) To pay Rs. 05,03,03,468/- to the claimant;

(c) To pay interest on Rs. 05,03,03,468/- @18% per annum from 29.10.2013, till the date of filing of the claim;

(d) Any other relief or reliefs which the claimant entitled to;

4. The complaint was resisted by the Opposite Party by way of Written Statement filed on 31.03.2013. Preliminary objections were taken that (i) the Complainant was not a ‘consumer’ u/s 2 (d) of the Act; (ii) there was no deficiency of service or negligence or unfair trade practice on the part of the Opposite Party; (iii) the Consumer Complaint was not maintainable for Non-joinder of M/s Shandong Zhongshuo Iron & Steel Co. Ltd., as a party; and (iv) that there are complicated and disputed questions of facts requiring elaborate trial, which cannot be done by this Commission.

5. On merits, it was argued that under the Marine Cargo Specific Voyage Policy in question, there were special conditions as per the Annexure and under condition No.14 and the insurance covered was to be commensurate only with the terms of sale. The INCOTERMS were CFR FO main Port China. The title of the cargo was transferred to