IMPORTANT POINTS
(1) Liability – The liability of the Insurance Company under the policy is clear as the claim is reimbursable in terms of the risk cover under clause-1 of the schedule pertaining to the sinking of a vessel which is not disputed.
(2) Denial of Claim - The Insurance Company therefore for it’s deficiency and want of promptness with no plausible material to contradict the narrative of the Complainant was equally liable and could not have carved out an excuse of any lapse on the part of the Complainant to deny the claim.
(3) Lame excuse - the lapse of the Insurance Company in not promptly sending a surveyor and thereafter withholding, if any, spot survey report and then expressing doubts on the Complainant about not taking steps for salvaging is a lame excuse.
(4) Assumption - The subsequent assumption by the final surveyor in his report of 2001 and the conclusion of the Insurance Company in its repudiation is without any cogent evidence to the contrary.
(5) Risk - The Insurance Company therefore was also equally liable for the loss suffered in terms of the risk cover under the policy and hence liable to pay damages in equal measure to the Appellant.

ORDER

A.P. Sahi, President—The dispute relates to a claim arising out of Marine Transit Risk Insurance Policy under which the Appellant was claiming a loss as against the Respondents No.1 and 2 jointly and severally to the tune of Rs.8.5 Lakh for which the goods were insured under the Insurance Policy dated 27.11.1998.

2. The claim was repudiated by the Insurance Company. Thereafter, a Claim Petition was filed before the State Consumer Disputes Redressal Commission, Maharashtra at Mumbai. It was partly allowed vide order dated 04.04.2012 against the Opposite Party No.2 (Respondent No.2 herein)-M/s. Shree Hari Shipping Pvt. Ltd. but was dismissed as against the Opposite Party No.1 (Respondent No.1 herein)-M/s New India Assurance Company Limited.

3. Aggrieved the present Appeal has been filed questioning the correctness of the impugned order on the ground that the State Commission has committed an error in absolving the Insurance Company in spite of the fact that loss and damage of goods stand proved. The Appellant contends that the Insurance Company was negligent and deficient in its services as such the liability of the loss of goods was equally on the Insurance Company as well.

4. The Appeal was admitted. Notices dispatched but the Opposite Party No.2 has not chosen to contest this Appeal in spite of service of notice and proof of notice on record. The Insurance Company has filed its Written Version and pleadings have been exchanged between the parties whereafter arguments were heard finally and order was reserved.

5. The Country Craft M.S.V. Shreemathi was hired for carriage of 500 M.T. of Bentonite Lumps in 13,000 cement bags that was to be shipped from Mundra to Mangalore port. The booking was done through the Agent of the Opposite Party No.2 Shipping Company namely M/s.Sirius Shipping Company Limited. The goods to be shipped were sought to be secured by a Policy issued by the Respondent No.1 Insurance Company in favour of the Appellant on 27.11.1998. The Policy covers the risk of the goods as insured which included strike, riots and civil commotion causes, a copy of the Policy is on record which also indicates that loss or damage due to the sinking of the vessel would also be covered under the Policy.

6. It seems that the Complainant was reasonably expecting the cargo to be delivered within time, but since the consignment was being delayed, the Complainant has contended that they called upon the Shipping Company vide letter dated 16.12.1998 seeking information about the exact date of arrival of the vessel delivering the cargo and also inform about the present location of the vessel. This letter dated 16.12.1998 was filed as Ex.C before the State Commission.

7. It appears that the vessel had developed some problem and on the same date, the Appellant informed the Insurance Company vide letter dated 16.12.1998 through a fax message informing that they have learnt from the owners representatives that a major leakage problem in the vessel has occurred that might result in the goods being effected by moisture rendering then unusable. The letter dated 16.12.1998 addressed to the Insurance Company by the Appellant is extracted hereinunder:—

“The New India Assurance Co. Ltd., Mumbai

Date: 16/12/1998

Kind Attn: Mr. Pravin Shetty.

Dear Sirs,

Sub: Your Marine Cargo Policy No: 112500/21/98/23864 dated 27/11/98, M.S.V. Sreemathi

Please refer copy of the letter dated 16/12/1998 faxed to you today addressed to the Owners of M.S.V. Sreemathi.

We telephonically understand from Owners representative that M.S.V. Sreemathi is anchored at Karwar Port in Karnataka due to major leakage problems in the Country Craft/bad weather.

If the leakage in the Country Craft is excessive material is bound to get wet. Wet material is not at all usable.

We request you to inform your Karvar D.O. to inspect the same immediately. We also verbally understand that Craft may not be in a position to proceed further.

However the accurate details wa