New
India Assurance Company Ltd. Vs. Shri G.N. Sainani [1997] INSC 581 (9 July
1997)
K.
RAMASWAMY, D. P. WADHWA
ACT:
HEADNOTE:
D.P. Wadhwa.
J.
Leave
granted.
This
appeal is directed against the order of the National Consumer Disoutes redressal
Commission dismissing the appeal of the appellant and confirming the order of
the Maharashtra State Commission by which order the State commission had
allowed the Complaint of the respondent filed under sections 17/16 of the
Consumer protection Act, 1986 (for short 'the Act') . In fact there were two
complaints before the State Commission: in one complaint the claim of the
complainant against the appellant was settled for Rs.5.54,841,23 and the second
for Rs. 9,99,500/-. The complaint was also awarded costs of Rs.500/- in each of
the two complaints.
In
this judgment, the appellant M/s. New India Assurance Company Ltd. is described
as 'insurer'. the respondent as complainant or assigned and M/s Ajanta Paper
and Several products Ltd. as the consignee or assured'.
The complainant
is an assigned of two insurance policies taken out by M/s Ajanta paper and General products Ltd.,
from the appellant being the insurer. One policy was to insure 244 bales
computer wastes computer prints out valued at Rs. 5,87,000/- and the second was
for 170 bales computer waste computer print out valued at Rs. 4,04,000/- to
cover the risk from the port of onward to Bombay. The pointed were taken out on
February 27,1984. by letter dated April 12, 1984 the
consignee informed the insurer, the appellant herein that at had been given to
understand that due to strike in Indian ports the vessel s.s IRISH MAPLE' which
was bringing the goods, had been diverted to Muscat and the Cargo had been
discharged there. The consignee, therefore, requested the insurer to cover the
risk accordingly. The insurer replied by its letter dated May 4,1984 . it informed the consignee that the consignments in
question were required to re-shipped from Muscat to Bombay within 60 days; time
from the date the same were discharged at Muscat and that falling which there
would be no liability of any claim covered under the two policies in question.
The
consignees again wrote to the insurer on May 21,1984 informing it that the
consignment had not been brought to Bombay by the steamer company and same was
still lying at Muscat and further that consignee was arranging to bring the
cargo from Muscat in order to avoid further delay, and damage and also to minimise
financial losses. The consignee also stated in this letter that by doing to it
was holding the insurer and therefore, the additional expenditure such as
freight from Muscat to Bombay, warehousing charge at Muscat and other
incidental expenses that might be levied by the steamer Company shall be on
account of the insurer. it, therefore, requested the insurer to endorse the
certificate for covering the risk for forced transshipment from Muscat to Bombay. By letter dated May 24, 1984 the insurer repeated what was
written in its letter of May
4, 1984. It had
informed the consignee that it was consignee's responsibility to arrange for
the re-shipment of the consignment to Bombay within the specified time-limit and that insurer would not be
responsible for any loss or damage resulting from non-cooperation of the
statement agent of the consignee in arranging re-shipment of Cargo to Bombay. The Consignee was specifically
told that under no circumstances insurer was liable for additional expenses
incurred by the consigned by way of extra freight. warehousing etc. in the
process of re-shipment of the cargo from Muscat to Bombay.
Again
on June 2, 1992 the consigned wrote to the insurer
informing it that arrangement was being made to bring the cargo as early as
possible. the insurer was, however.
requested
to extend the validity of the Certificate. While itself agreeing to pay
necessary charges for the same. Again on June 8, 1984. the consignee informed the insured
that the shipping company had agreed to bring the cargo and that the subject
consignment was being loaded per M.V. MICHEL `C' which was expected at Bombay port shortly. It may be noted that
earlier the consignment was being brought by s.s. 'IRISH MAPLE' which had
off-loaded the consignment at muscat. The insurer acknowledged the letter of June 2, 1984 of the consignee but at the same
time the request of the consigned for extension of the time beyond 60 days was
not granted. The consignee was informed that on the expiry of 60 days time
limit from the date of discharge at the port
of Muscat. the risk under the policy in
question would cease.
The
consignee, being the insured. preferred a claim for Rs. 1,74,708,52 and for Rs.
3,99,007,52 on account of short handing of the consignment under transshipment
and obtained the short handing certificates issued by the Bombay port Trust
docks of Bombay. The claim was, therefore, on account of shortage of goods.
It
would appear from the letter dated July 25, 1989 of the insurer to M/s. national
consultants (proprietor Mr. G.N. Sainani, the complainant) that the policies
had been assigned by the consigned in favour of M/S National Consultants. By
this letter the insurer acknowledged letter dated July 18,1989 of the assignee. The insurer in this letter informed the
assigned as under:
"1)
The vessel carrying g the insured consignments had diverted its course, and the
consignments wore discharged at Muscat, for onward carriage to Bombay. Our Marine insurance cover had ceased at this stage. Moreover no
extension of insurance cover was obtained by you.
ii)
Insured consignments were discharged at Bombay ex Michalle `C' on 30.7.84 where
as claims on ocean carriers were lodged on 16.7.85/17.7.85 respectively, i.e. about
a year after discharging of the consignments. Further more no extension of
time-limit was obtained from them to safeguard our rights of recoveries. Our
recoveries therefore are lost. as claims against carriers have now become time
barred/suit barred.
Owing
to the above irregularities/lapses, it will be appreciated that we have no
liabilities to meat towards the above subject claims." On July 23,1992 the assignee instituted two
complaints before the Consumer Disputes Redressal Commission.
Maharashtra State, Bombay against the insurer alleging
deficiency while rendering the service. The state Commission considered the
question if by not extending the insurance cover during re-shipment and
repudiating the insurance claim constituted deficiency in service by the
insurer. By the order dated October 29, 1994
it held against the insurer.
The
appeal of the insurer was dismissed by the national Consumer Disputes Redressal
Commission by the order dated September 30, 1996.
All
this narration of events was necessary to understand the issues involved into
the appeal. it is submitted by Mr. Midha, learned counsel for the appellant
that the complaint was barred by limitation; that the complainant was not a
consumer within the meaning of the Act and under clause 9 of the Policy the
appellant was absolved from claim as the policy had lapsed.
Before
insertion of Section 24A in the Act with effect from June 18,1993 the Act did not prescribe any
period of limitation for filing a complaint. It was, however, not disputed that
early to this the consumer commissions have been applying the limitation act
1963 to find out if a complaint was barred by limitation or not. Since at the time
when the complaint in the present case was filed Section 24A was not there, we,
therefore, fall back from the provisions of the limitation Act. Article 44 of
Schedule to the Limitation Act, in relevant part. is as under:
------------------------------------------------------------
Description of suit Period Time from which period of Limitation begins to run
------------------------------------------------------------
44. (b)
On a policy Three years The date of the occurrence of insurance when the causing
the loss. or where sum insured is payable the claim on the policy is after
proof of the loss denied either partly or has been given to or wholly, the date
of such received given to or denial".
received
by the insurers.
------------------------------------------------------------
It would appear that the complaint was filed on the basis that claim on he
policy was denied wholly by the insurer which was by letter dated July 25, 1989 of the insurer. The cause of
action, therefore, arose on the date of denial or repudiation of the policy by
the insurer. The question does arise as to when the claim on the policy should
have been lodged. it appears the claim on the policy should be lodged within a
reasonable time. As to what is reasonable time would depend on the facts and
circumstances of each case. Since on the basis of the record we are handicapped
to know as to when the claim was lodged. we would, therefore, treat the date, July 25, 1989, when the time for the purpose of
limitation had begun to run . As noted above this is the date when the insurer
repudiated the claim on the policy. From this angle. therefore, the complaint
filed by the assignee on July
23, 1992 is within the
period of limitation. It is, however, a different matter when the insurer
raises the defence that it had earlier informed the insured that the policy had
ceased to be operative in terms para 9 of the policy. As far as the insured is
concerned he can file the complaint with in three years of the date of
occurrence causing loss or from the date when the claim on the policy is denied
by the insurer.
Far
him time for lodging the complaint would not start running while the goods are
still in transit as he can claim the policy to be valid till he lodges the
complaint.
The
relevant portion of the policy would be paras 8,9, and 11 of the policy which
are reproduced as under:
"8.1
This insurance attaches from the time the goods leave the warehouse or place of
storage at the place named herein for the commencement of the transit,
continues during the ordinary course of transit and terminates either 8.1.1 on
delivery to the Consignees or other final warehouse or place of storage at the
destination named herein 8.1.2 on delivery to any other warehouse or place of
storage, whether prior to or at the destination named herein, which the Assured
elect to use either 8.1.2.1 for storage other than in the ordinary course of
transit or 8.1.2.2 for allocation or distribution or 8.1.3 on the expiry of 60
days after completion of discharge overside of the goods hereby insured from
the oversea vessel the final port of discharge.
which
shall first occur.
8.2
If, after discharge overside from the oversea vessel at the final port of
discharge, but prior to termination of this insurance.
the
goods are to be forwarded to a destination other than that to which they are
insured hereunder, this insurance, whilst remaining subject to termination as
provided for above, shall not extend beyond the commencement of transit to such
other destination.
8.3
This insurance shall remain in force (subject to termination as provided for
above and to the provisions for Clause 9 below) during delay beyond the control
of the Assured, any deviation. forced discharge, reshipment or transshipment
and during any variation of the adventure arising from the exercise of a
liberty granted to shipowners or charterers granted to shipowners or charterers
under the contract of affreightment.
9. If
owing to circumstances beyond the control of the Assured either the contract of
carriage is terminated at a port or place other than the destination named
therein or the transit is otherwise terminated before delivery of the goods as
provided for in Clause B above, then this insurance shall also terminate unless
prompt notice is given to the Under writers and continuation of cover is
requested when the insurance shall remain in force, subject to an additional
premium if required by the Underwriters. either
9.1
until the goods are sold and delivered at such port or place.
or,
unless otherwise specially agreed, until the expiry of 60 days after arrival of
the goods hereby insured at such port or place, whichever shall first occur.
or
9.2 If
the goods are forwarded with in the said period of 60 days (or any agreed
extension thereof) to the destination named herein or to any other destination.
Until terminated in accordance with the provisions of Clause 8 above.
11.1
In order to recover under this insurance the Assured must have an insurable
interest in the subject- matter insured at the time of the loss.
11.2
Subject to 11.1 above, the Assured shall be entitled to recover for insured
loss occurring during the period covered by this insurance, notwithstanding
that the loss occurred before the contract of insurance was concluded, unless
the Assured were aware of the loss and the Underwriters were not." Para 8
above states as to when insurance policy would start and upto what stage it
would terminate. Under sub-para
8.3 which
is subject to clause 9 the insurance remains in force during the delay beyond
the control of the assured.
But
then under para 9 the insurance terminates if owing to the circumstances beyond
the control; of the assured as mentioned therein unless prompt notice is given
and continuation of cover is requested. In that case insurance shall remain in
force subject to an additional premium if required (1) within 60 days of the
arrival of the goods at such port or place other than that named in the policy
or until those goods are sold whichever shall occur first unless otherwise
specially agreed or (2) if the goods are forwarded within the period of 60 days
to the destination named in the policy or within any further extension if
agreed to. Since the extension of the period was not agreed to by the insurer
the goods had to be forwarded or transshipped from Muscat to Bombay within 60
days of the discharge of the goods there. If these goods are not transshipped
within 60 days to the destination as agreed to then clause 8 will not remain in
operation. In the present case, there is no evidence that goods were transshipped
within 60 days of their discharge at Muscat. That being so the policy would
lapse in terms of the agreement between the parties. However. it was submitted
by Mr. Mudnaney, learned counsel for the respondent, that the policy was
governed by the English law and would remain in force till the goods reached
their destination. He referred to para 19 of the policy which provided that the
insurance was subject to English law and practice. We were, however, not told
as to under which provision of English law the policy would remain in force in
spite of its various clauses and the terms of agreement between the parties.
Reference was drawn to Section 51 of the Marine Insurance Act. 1963 providing
for an excuse for deviation or delay. This section and its relevant part is as
under:
"5.1
Excuse for deviation or delay.
(1)
Deviation or delay in prosecuting the voyage contemplated prosecuting the
voyage contemplated by the policy is excused - (a)--------------------- (b)
where caused by circumstances beyond the control of the master and his
employer: or (c)--------------- (d)------------------ (e)------------------
(f)------------------- (g)------------------- (2) When the cause excusing the
deviation or delay ceases to operate. the ship must resume her course. and
prosecute her voyage, with reasonable despatch." To our mind the section
would appear to apply when the ship in which the goods were originally being
carried resumed her voyage and not to situation where the goods are discharged
and then these are carried to the part of destination in another ship. We have
not been shown any provision of law or practice or term of the policy under
which the insurer was sound to extend the policy beyond the period of 60 days
as per para 9 of the policy. The appellant is right therefore, in its
contention that it is abolished from any claim under the policy in view of para
9 above and it could not, therefore, be said that there was any deficiency in
service to come within the purview of the Act.
Under para
11 in order to prefer a claim under the policy the insured must have an
insurable interest in the subject-matter insured at the time of loss. Assuming
the policy as valid and para 9 did not apply the insured could prefer the claim
under the policy for the loss. But that is not the case here. The policy has
been assigned in favour of the complainant. Marine Insurance Act provides for
assignment of policy. Sections 52 and 53 are relevant. these are reproduced as
under:
"52
When and how policy is assignable -(1) A Marine policy may be transferred by
assignment unless it contains terms expressly prohibiting assignment. It may be
assigned either before or after loss.
(2)
Where a marine policy has been assigned so as to pass the beneficial interest
in such polity, the assignee of the policy is entitled to sue thereon in his
own name as the defendant is entitled to make any defence arising out of the
contract which he would have been entitled to make if the suit had been brought
in the name of the person by or on behalf of whom the policy was effected.
(3) A
marine policy may be assigned by endorsement thereon or in other customary
manner.
53.
Assured who has no interest cannot assign. where the assured has parted with or
lost his interest in the subject matter insured, and has not, before or at the
time of so doing expressly or impliedly agreed to assign the policy any
subsequent assignment of the policy is in operative.
Provided
that nothing in this section affects the assignment of a policy after
loss." No doubt the policy can be assigned either before or after the loss
But then the assignee must have insurable interest in the subject matter as
provided in para 11.1 of the policy.
The
provisions of the Marine Insurance Act and terms of the policy have to be read
in the context of definition of "consumer" as contained in clause (d)
of Section 2 of the Act. The relevant part of this clause is as under:
"(d)
'consumer means any person who,- (i) -------------------------------
------------------ (ii) hires or avails of any services for a consideration
which has been paid or promised or partly paid and partly promised, or under
any system of deferred payment and includes any beneficiary of such services
other than the person who hires or avails of the service for consideration paid
or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of the
first mentioned person:" The question that arises is if the assignee in
the facts and circumstances of the present case could be said to be beneficiary
so as to stake his claim under the policy. if we see the definition of
"service" as provided under the Act it means and includes the
provision of facilities in connection with the insurance as well. The complaint
under the Act in the present case has to show that the service hired or availed
of or agreed to be hired or availed of by the complainant suffers from
deficiency in any respect. The complainant, of course, means a consumer and as
we have seen above includes any beneficiary. "Deficiency" has been
defined in clause (g) of section 2 of the Act as Under:
"(g)
deficiency" means any fault, imperfection, shortcoming or inadequacy in
the quality, nature and manner of performance which is required to be
maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise
in relation to any service." The interest of the insured must exist in the
case of marine insurance at the time of loss and the assured must have some
relation to or concern in, the subject of the insurance. The service which the
insurer offers is with reference to the goods and the insurable interest has to
be in respect of the goods. To put it in other words, insurable interest in
property would be such interest as shall make the loss of the property to cause
pecuniary damage to the assured. To come under the scope of the word
"consumer" as defined in the Act it should be possible for the
assured to assign his insurable interest in the goods subject matter of the
policy for the assignee as a consumer to enjoy;; the benefit of the policy with
reference to the goods which are insured. What has been assigned in the present
case is the amount of loss suffered by the assured on account of short handing
of the goods, meaning thereby that right to recover the loss is assigned to the
assignee and not that any service is to be rendered under the policy by the
insurer with reference to the goods. We are loading at the whole thing from the
point of the consumer under the Act with reference to certain relevant
provisions of the Marine Insurance Act. Unless the assignee has some insurable
interest in the property subject matter of the insurance the time the policy
terminates he cannot be beneficiary of any service required to be rendered by
the insurer under the policy. Admittedly it was much after the goods had
reached the port of destination and appropriated that the policy was
transferred by the insured to the complainant to recover the amount of loss
suffered by the assured. Thus, what is assigned is in effect a mere right to
sue for the loss on account of short handing of the goods. It is difficult to
see as to how it could be said that the respondent, that is the assignee. is
the beneficiary of any service under the policy. He may, however, have right to
recover the loss from the insurer by filing a suit in a civil court but
certainly to seek remedy under the Act he must be a consumer. If the policy had
been assigned during the course of its validity and before the goods were
appropriated after their arrival at the port of destination, it could perhaps
be said that the assignee had beneficial interest therein but not otherwise. By
not extending the policy beyond a particular period. that is 60 days the
insurer acted within the terms of the contract of insurance and on that account
it could not be said that there was deficiency in service to be provided by the
insurer under the policy.
It is
not necessary for us to examine in depth various provisions of the Marine
Insurance Act as in the Present case we are primarily concerned with the
provisions of the consumer protection act. The Policy in question is though
designated as Marine Insurance policy but we think it is more a question of
interpretation of relevant clauses of the policy. The Act is not a general law
for all remedies. it is for the protection of the consumer as defined in the
Act. To succeed in the present case the complainant must show that he is a
consumer and that there has been deficiency in service by the insurer. This he
has been unable to show. He, therefore, could not maintain complaint under the
Act.
We do
not think that the National commission has taken the correct view of the
matter. Accordingly, the appeal is allowed. the orders of the National
Commission and State Commission are set aside and complaints of the respondents
dismissed. We, however, direct that the parties bear their own costs.
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