PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This appeal has been filed by the appellant against the order dated 7.10.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Complaint Case No.08/2010 – Jain Irrigation Systems Ltd. Vs. United India Ins. Co. Ltd. by which, complaint was partly allowed.

2.      Brief facts of the case are that complainant/appellant is engaged in trading of agricultural inputs manufacturing and supplying of agri inputs.  Complainant had taken Marine Cargo Insurance Policy on estimated annual sales turnover from OP/respondent for a period of one year from 1.4.2009 to 31.3.2010 and there was balance of Rs.315 crores sum insured at the time of loss.  On 12.5.2009, complainant booked consignment of the dehydrated powder of onion for shipment and accordingly it was loaded from complainant’s unit of Jalgaon on 15.5.2009 valuing 492,15.60 Euro.  Net weight of consignment was 20088 kgs. and gross weight was 21607 kgs.  Consignment was packed in customary and standard packing conditions.  Consignment was carried in containers and trailer carrying consignment met with an accident on 19.5.2009 in Kasara Ghat and fell 50-60 feet down under the  valley.  Intimation of accident was given to the police and as per driver, accident occurred due to failure of brake.  OP was also intimated and surveyor was appointed.  Surveyor visited complainant’s Jalgaon unit on 11.6.2009 and collected necessary information and documents and submitted report on 30.9.2009 wherein he assessed loss of Rs.15,33,312.90, but expressed 7 kgs. over weight as cause of accident whereas, overloading was not cause of accident.  Goods were brought to the factory premises of the complainant and were tested in laboratory for analysis and it was reported that goods have become unfit for human consumption.  OP repudiated claim on the basis of exclusion clauses.  Alleging deficiency on the part of OP, complainant filed complaint before State Commission and claimed loss of Rs.35,14,481/-.  OP resisted complaint and submitted that OP appointed surveyor, who carried out spot survey on 23.5.2009 and found seal on the container intact, so, he could not inspect consignment inside the container. Complainant told surveyor that container will be opened at its premises at Jalgaon. Later on, goods were taken to Jalgaon and another surveyor was appointed, who visited premises of the complainant and submitted report, but did not recommend claim in view of exclusion clauses 4.1 to 4.5 in the insurance policy.  It was further submitted that complainant did not submit laboratory analysis report in support of the contention that goods were unfit for human consumption.  414 bags were torn due to mishandling from the spot of accident to the unit and prayed for dismissal of complaint.  Learned State Commission after hearing both the parties observed that exclusion clauses were not attracted, but allowed partial claim and directed OP to pay Rs.15,33,000/- with 9% p.a. interest and further allowed cost of Rs.5,000/- against which, this appeal has been filed.

3.      Heard learned Counsel for the parties finally at admission stage and perused record.

4.      Learned Counsel for the appellant submitted that respondent has not challenged impugned order and findings of learned State Commission regarding non-application of exclusion clauses has attained finality.  Learned State Commission committed error in allowing partial claim; hence, appeal be allowed and rest of the claim be allowed.  On the other hand, learned Counsel for the respondent submitted that looking to exclusion clauses and surveyor’s report, order passed by learned State Commission is in accordance with law; hence, appeal be dismissed.

5.      Perusal of impugned order reveals that learned State Commission after detailed discussion observed that exclusion clauses 4.1, 4.3, 4.4, 4.5 and 5.1 of the Insurance Policy are not attracted.  Admittedly, respondent has not challenged findings of learned State Commission and in such circumstances, findings of learned State Commission regarding non-applicability of exclusion clauses 4.1, 4.3, 4.4, 4.5 and 5.1 have attained finality.  In such circumstances, argument of learned Counsel for the respondent that exclusion clauses are attracted in this claim is devoid of force and it can be held that exclusion clauses are not applicable to the claim and respondent has committed deficiency in repudiating claim on the ground of exclusion clauses of the insurance policy.

6.      Learned Counsel for the appellant submitted that learned State Commission allowed partial claim and rejected rest of the claim without any cogent reason; hence, full amount claimed in the complaint should be allowed.

7.      Order of learned State Commission runs as under:

“20. As to Issue No. II

In view of our finding regarding issue Nos. 1 & II in affirmative we hold that, the complainant is entitled to compensation from the opposite party. The complainant has claimed total compensation of Rs. 35,14,481 with interest @ 15%p.a. from the date of loss till its realization. Admittedly, the surveyor who was appointed by the opposite party inspected the goods in question and submitted report on 30.09.2009 to the opposite party. The said surveyor Mr. A. N. Gowarikar in that report assessed the total loss of Rs.15,33,312.90 sustained by the complainant, due to damage of dehydrated onion powder goods in the aforesaid accident. The complainant has claimed the compensation of Rs.35,14,481/- which is total value of the said goods. In our view in the absence of any independent evidence, the said compensation of Rs. 35,14,481/- cannot be granted to the complainant. We also find that the report of the surveyor dated 30.09.2009 is sufficient to come to the conclusion that, the complainant sustained loss of Rs.15,33,312.90 due to damage caused to its dehydrated onion powder goods in the aforesaid accident. Hence we are inclined to grant compensation of Rs.15,33,000/- (rounded figure) to the complainant. The complainant is also entitled to interest @ 9 % p.a. over the said compensation from the date of repudiation i.e. from 07.01.2010 till its realization. The complainant has not claimed compensation on any other count. Therefore we hold that the complaint deserves to be partly granted”.

Learned State Commission disallowed rest of the claim on account of absence of any independent evidence.  Perusal of record reveals that no other independent evidence was required as surveyor himself admitted in its report dated 30.9.2009 as under:

                             “a)….

                             b)      In case of damaged cartons the inner bags are exposed to ambient high temperature for longer period and due to nature and characteristics of product, the process of lump formation and color deterioration is initiated and after few days for storage, it becomes unsafe and not suitable for use and rejected. Such products are also cannot be reprocessed/reused”.

From the record it appears that total 837 bags were consigned out of which, 1 bag was found short, 414 bags were found torn and 386 cartons were found damaged and State Commission disallowed claim for 386 cartons.  Perusal of the aforesaid observation of sample analysis makes it clear that material consigned in damaged cartons also became unsafe and not suitable for use and that product was also not capable of reprocession or reuse. Surveyor further observed that in ordinary marine box type containers are not provided with regeneration units, but for storage about 10 days refrigeration is specified.  Learned Counsel for the respondent could not show me any requirement for regeneration under the Policy and admittedly, consignment was to be shipped which met with an accident and suffered damage; hence, there was no question of storing the consignment for 10 days in the container or the trailer and learned State Commission inspite of observing that no exclusion clause was applicable committed mistake in allowing only part claim and rejecting claim for 386 damaged cartons.

8.      Perusal of record further reveals that matter was referred by the Branch Office but Divisional Office did not agree with surveyor’s opinion and observed that claim was very much admissible within the scope of the policy and it was further observed that they agreed with insured’s representation about properties of their product.

9.      In such circumstances, I do not find any cogent reason with the State Commission for allowing only part claim and for rejecting claim pertaining to 386 cartons.  No further independent evidence was required for proving damage to 386 cartons as surveyor himself observed that product in 386 damaged cartons was not suitable for use and could not have been reprocessed or reused.  Learned State Commission should have allowed claim as prayed by the complainant.

10.    Consequently, appeal filed by the appellant is allowed and impugned order dated 7.10.2013 passed by the Maharashtra State Commission, Circuit Bench at Aurangabad in Complaint Case No.08/2010 – Jain Irrigation Systems Ltd. Vs. United India Ins. Co. Ltd. is modified and OP/respondent is directed to pay complainant Rs.35,14,481/- instead of Rs.15,33,000/- and rest of the order regarding grant of interest and cost of the complaint awarded by State Commission is upheld with no order as to costs.