Judgment:
A.K.Mathur, J.
This appeal is directed against the
order passed by
the National Consumer Disputes Redressal Commission, New
Delhi (hereinafter referred to as 'the Commission') whereby the
Commission has allowed the claim of the respondent to the
tune of Rs. 4,94,22,000/- and directed the appellant-
Insurance Company to pay the said amount with interest at
the rate of 9 % per annum from the date after two months of
the survey report by the Apex Surveyors Pvt. Ltd. i.e. from
1.3.1995 till its payment. Aggrieved against this order of the
Commission, the present appeal has been filed by the
appellant- Insurance Company.
2. Brief facts which are necessary
for disposal of this
appeal are that the claimant-respondent is engaged in import
of sugar and other items and in connection with import of
12,000 metric tons of sugar from China to Calcutta the
respondent had taken an insurance policy for which cover note
dated 9.6.1994 and policy was valid from 23.9.1994 i.e. from
the date of issue. The policy was further extended by
endorsement dated 28.9.1994 for up-country destinations in
India. It was alleged that after taking delivery of sugar, the
bags could not be transported from the dock area because of Durga Puja celebrations and as a result of which all activities
including transportation facilities virtually came to a stand
still from 10.10.1994. Therefore, in all 82,237 bags of sugar
were temporarily stored in T-sheds at Calcutta Port area en
route up-country destinations. On 21.10.1994 fire broke out
in the godown and destroyed the entire stock of sugar bags.
Hence, a First Information Report was lodged and the
appellant- Insurance Company was also informed by the
respondent. The appellant appointed M/s. Apex Surveyors
Pvt. Ltd on 22.10.1994. On 24.10.1994 the Surveyors wrote
to the respondent asking for the books of accounts and stock
register and also took the spot inspection. The appellant
appointed one N.V.P. Sharma Associates Pvt. Ltd. as another
additional surveyor. Since the claim was not settled by the
appellant- Insurance Company, the respondent filed the
present complaint before the Commission on 21.3.1996. The
appellant on 6.5.1996 repudiated the claim of the respondent. The letter
dated 6.5.1996 reads as under :
" The unsold remaining bags of sugar
were taken to three different private godown
outside the port premises. The fire broke out on
the 26th day after the cargo was stored. This
storage was general storage other than the "in
the ordinary course of transit". The case falls
under Clause 108, 102 & 2.1 of the Institute
Cargo Clause (a) of the policy issued, as a
consequence of which transit terminated upon
storage, in the T-shed and before sale and
disposal of the cargo. It was destroyed by the
fire after the cover under the policy ceased. The
risk would have been covered, if you had
obtained a "Storage Risk Policy". Such a policy
would have covered a loss due to fire when the
goods were stored. In the absence of such a
policy, the loss which occurred due to fire to the
stored goods, well after the voyage and transit
terminated, cannot be claimed under the above.
The claim, therefore, is not maintainable. "
The plea of the appellant-Insurance company for repudiating
the present claim was that the goods were destroyed in
general storage other than in the ordinary course of transit
and it was also observed that what was covered was transit
risk and not storage risk. Therefore, it was held that the claim
was not maintainable. The Commission examined the relevant
provisions and took the view that as per the Institute Cargo
clause and extended coverage to the policy on payment of
additional amount, the insurance cover of the goods would
be till the delivery to the consignees at the destination named
therein i.e. the insurance coverage was valid till the goods
were delivered to the consignees' warehouse or other final
warehouse or the place of storage at the destination.
Ultimately, the Commission decreed the claim of the
respondent. Hence the present appeal.
3. We have heard learned counsel for the parties and
perused the records. A policy was taken out which is known as
Marine Insurance Policy for import of 12,000 metric tones of
crystal sugar from Guangzhou, China to Calcutta, India Port for
which a premium of Rs.13,57,450/- was paid. It was also
mentioned that it was subject to the clauses attached which
formed part of the policy, inter alia, Institute Cargo Clause 'A'
(21-A). As per this policy, the ship was supposed to take the
cargo from Guangzhou, China to Calcutta Port. It was also not
in dispute that the goods safely reached Calcutta Port on
22.9.1994. The discharge of sugar commenced on 22.9.1994
and continued up to 13.10.1994. 1,39,000 bags of sugar were
transported by 274 trucks from the port to private godowns.
The transportation work started on 26.9.1994 till 10.10.1994
and it was stored at different sheds. Thereafter on 27.9.1994 a
request was made for extension of insurance coverage and
extension of insurance coverage was granted on 28.9.1994
which reads as under:
" At the request of the insured it is
hereby declared and agreed to extend the cover
under the within mentioned policy
No.01/534/94 from Calcutta Port to any place
of Indian Republic. All other terms and
conditions of the policy remains unaltered. "Unfortunately, fire broke out in T-shed on 21.10.1994.
Therefore, the respondent raised a claim for loss of sugar by
fire in T-shed. Relevant provisions of Institute Cargo Clause,
which deals with duration transit clause reads as under :
" 9.1.3 On the expiry of 60 days after
completion of discharge overside of the goods
hereby insured from the overseas vessel at the
final port of discharge, whichever shall first
occur."
It further says that so far as law and practice is concerned this
insurance was subject to English law and practices. As per this
transit clause of the Institute Cargo clause, the policy covered
on delivery to the consignee's or other final warehouse, or
place of storage at the destination named therein. It further
laid down the period, that on expiry of 60 days after
completion of discharge overside of the goods insured from
the overseas vessels at the final port of discharge, whichever
shall first occur. As per the policy, the destination was
Calcutta Port, India. This policy was extended by the
subsequent cover note as mentioned above and it was
mentioned that the policy was extended to cover from Calcutta
Port to any other place of destination in Indian Republic and
the terms and conditions of the policy remained unaltered.
4. The submission of Mr.Vishnu Mehra, learned
counsel for the appellant was that since the destination was
Calcutta Port and once the goods reached Calcutta Port and
the same were discharged, then the policy stood discharged
and if the goods were kept in some other different sheds then
that storage is not covered. Learned counsel for the appellant
submitted if the goods had been taken out and had been
destroyed in transit then perhaps the loss would have been
covered. So far as the present case is concerned, the goods
reached the Calcutta Port and they were discharged from the
vessels and they were taken out and kept in storage in
different sheds and there it was destroyed because of fire, the
storage in the godown is not covered as per the original
policy. According to learned counsel for the appellant the
destination in the original policy was Calcutta Port and the
goods were discharged and kept in storage at the risk of the
respondent. It was submitted that the policy which was
extended was only for transit purpose and not for storage
purpose. Therefore, the appellant rightly repudiated the claim.
5. As against this, Mr.Divan, learned senior counsel
for the respondent-claimant submitted that when the coverage
stood extended on same terms and conditions and it was
clearly mentioned that it would cover to any part of the Indian
Republic, that means that the goods in storage in transit from
Calcutta Port to any part of the destination would cover the
policy on same terms and conditions along with the original
marine policy. Therefore, the limited question that arises for
consideration is whether the coverage which has been
extended would cover the goods till they reached the
destination in any part of the country or not.
6. Mr. Mehra, learned counsel for the appellant has
very strenuously urged and took us through the Marine
Insurance Act, 1963 and tried to impress upon us that as per
the terms and conditions of the policy, once the goods reached
the destination i.e. Calcutta Port, the policy stood discharged
and the extended coverage does not cover the storage but
goods in transit till they reached any part of the country.
7. We have bestowed our best of consideration to the
rival submissions of the parties. Mr.Divan, learned senior
counsel for the respondent submitted that as per the Institute
Cargo Clause, the English law and practice covers the dispute
and in that connection, Mr.Divan invited our attention to a
decision in Bayview Motors Ltd. v. Mitsui Marine & Fire
Insurance Co. Ltd. & Ors. reported in [2003] 1 Lloyd's Law
Reports 131 and in John Martin of London, Ltd. v. Russel
reported in [1960] 1 Lloyd's List Law Reports 554. He has also
referred to The Law Lexicon, so as to give the meaning of the
words, 'extension' and 'renewal' and also invited our attention
to various interpretation of the word, 'extension' and in that
connection, he has also invited our attention to a decision of
this Court in Provash Chandra Dalui & Anr. v. Biswanath
Banerjee & Anr. [1989 Supp. (1) SCC 487] , and in that
connection our attention was invited at paragraph 14 which
reads as under :
" 14. It is pertinent to note that
the word used is 'extension' and not 'renewal'.
To extend means to enlarge, expand, lengthen,
prolong, to carry out further than its original
limit. Extension, according to Black's Law
Dictionary, means enlargement of the main
body; addition of something smaller than that
to which it is attached; to lengthen or prolong.
Thus extension ordinarily implies the continued
existence of something to be extended. The
distinction between 'extension' and 'renewal' is
chiefly that in the case of renewal, a new lease is
required, while in the case of extension the
same lease continues in force during additional
period by the performance of the stipulated act.
In other words, the word ' extension' when used
in its proper and usual sense in connection with
a lease means a prolongation of the lease.
Construction of this stipulation in the lease in
the above manner will also be consistent when
the lease is taken as a whole. "
He has also submitted that in case of interpretation of policy if
two views are possible, then the one which favours the policy-
holder should be accepted as the same serves the purpose for
which the policy is taken and would be in consonance with the
object to be achieved for the lives assured.
8. In support of his contention, learned counsel relied
on a decision of this Court in Shashi Gupta (Smt.) vs. Life
Insurance Corporation of India & Anr. [ 1995 Supp.(1) SCC 754]
in which it has been held as follows :
" As both the aforesaid interpretations
are reasonably possible, we would accept the
one which favours the policy-holder, as the
same advances the purpose for which a policy is
taken and would be in consonance with the
object to be achieved for getting lives assured."
9. Our attention was also invited to a decision of this
Court in Life Insurance Corporation of India vs. Raj Kumar
Rajgarhia & Anr. [(1999) 3 SCC 465] wherein it has been held
as follows :
" It is not always possible to be guided
by the meaning of the words as found in the
dictionary while resorting to interpret the actual
meaning of a word found in an agreement
between the parties. While construing the
meaning of a particular word found in an
agreement between the parties the intention of
the parties to the document in question will
have to be given necessary weightage and it is
not possible to give a wider and liberal meaning
merely because one of the parties to the said
agreement is a public authority. While
interpreting the terms of the insurance policies
if two views are possible, courts will accept the
one which favours the policy-holders."
10. Our attention was also invited to a decision of this
Court in United India Insurance Co, Ltd. vs. Pushpalaya Printers
[(2004) 3 SCC 694] wherein it has been held as follows :
" In order to interpret clause 5 of the
insurance contract, it is also necessary to
gather the intention of the parties from the
words used in the policy. It is evident from the
terms of the insurance policy that the property
was insured as against destruction or damage to
whole or part. If the word "impact" is interpreted
narrowly, the question of impact by any rail
would not arise as the question of a rail forcibly
coming into contact with a building or
machinery would not arise. In the absence of
specific exclusion and the word "impact" having
more meanings in the context, it cannot be
confined to forcible contact alone when it
includes the meanings "to drive close", "effective
action of one thing upon another" and "the
effect of such action"; it is reasonable and fair to
hold in the context that the word "impact"
contained in clause 5 of the insurance policy
covers the case of the respondent to say that
damage caused to the building and machinery
on account of the bulldozer moving closely on
the road was on account of its "impact". Clause
5 speaks of "impact" by "any rail/road vehicle or
animal". If the appellant Company wanted to
exclude any damage or destruction caused on
account of driving of vehicle on the road close
to the building, it could have expressly excluded
the same. The insured possibly did not
understand and expect that the destruction and
damage to the building and machinery is
confined only to a direct collusion by vehicles
moving on the road, with the building or
machinery. In the ordinary course, the question
of a vehicle directly dashing into the building or
the machinery inside the building does not
arise. Further, "impact" by road vehicle found in
the company of other words in the same clause
5 normally indicates that damage caused to the
building on account of vibration by driving
vehicle close to the road is also included."
11. Our attention was also invited to a decision of this
Court in Oriental Insurance Co. Ltd. v. Sony Cheriyan [(1999) 6
SCC 451] wherein it has been held as follows :
" The insurance policy between the
insurer and the insured represents a contract
between the parties. Since the insurer
undertakes to compensate the loss suffered by
the insured on account of risks covered by the
insurance policy, the terms of the agreement
have to be strictly construed to determine the
extent of liability of the insurer. The insured
cannot claim anything more than what is
covered by the insurance policy."
12. Our attention was also invited to a decision of this
Court in M/s. Peacock Plywood Pvt. Ltd. V. The Oriental
Insurance Co. Ltd. [ JT 2007 (1) SC 191] wherein at paragraph
71 of the judgment while interpreting the expression, " peril
insured against", it has been held as follows :
" Marine Insurance Act is subject to the
terms of insurance policy. Where the insurer
takes additional premium and insure a higher
risk, no restrictive meaning thereto need be
given. A term of the policy must be given its
effect. While construing a contract of insurance,
the reason for entering thereinto and the risks
sough to be covered must be considered on its
own terms. "
13. A reference may also be made to a decision of this
Court in Polymat India (P) Ltd. & Anr. v. National Insurance Co.
Ltd. & Ors. [ (2005) 9 SCC 174] wherein this Court held as
follows :
" The expression "factory-cum-
godown" occurring in the policy document has
to be read in the present context with the other
conditions which appear in the policy
document. In fact clause 8 of the policies
concerned specifically made a query as to
whether the goods were stored in the open or
there was a kutcha shed or timber-built or
thatched-roof building within 15 m (50ft) of
the property, asking for details in this regard.
But no details were given and the query in
clause 8 was answered in the negative.
Therefore, what was sought to be insured was
the plant and machinery. It is admitted that here was no godown. Therefore, it is clear that
the goods lying outside the plant were not
insured. Had the intention of the parties been
otherwise, then they would have answered the
query in clause 8 in positive terms, which
details. But it was answered in the negative.
Therefore, the documents have to be construed
in the manner they are presented and a different
interpretation cannot be given dohors the
context."
14. Learned counsel also referred to The Law :Lexicon,
to give dictionary meaning to the word, "extend", which reads
as follows :
" Extend. This term has a wide variety of
meanings and has been defined as follows : To
prolong, to continue or continue in any
direction; stretch out; to stretch out of reach; to
expand; to enlarge or lengthen the bounds or
dimensions or; lengthen. And it is sometimes
used as equivalent to the word "exceed" (as) to
extend the bounds of jurisdiction."
Learned counsel also referred to K.J.Aiyar's Judicial Dictionary
wherein the word "extend" has been defined as follows:
" EXTEND. The word "extend" in an
enactment is not quite analogous to "shall come
into force". Where it is laid down in an Act that
it extends to a certain area it does not
necessarily mean that it is also in that area,
particularly when there is an express provision
that before it can come into force, something
further, such as a notification, is necessary."
Learned counsel also invited our attention to Black's
Dictionary of Law ( Fifth Edition) which defines the word,
"extend" as follows :
" Extend. Term lends itself to great
variety of meanings, which must in each case be
gathered from context. It may mean to expand,
enlarge, prolong, lengthen, widen, carry or draw
out further than the original limit; e.g., to
extend the time for filing an answer, to extend a
lease, term of office, charter, railroad track, etc."
15. Learned counsel also invited our attention to a
decision of this Court in General Assurance Society Ltd. v.
Chandumull Jain & Anr. { [1966] 3 S.C.R. 500}. In that case it
was observed as follows :
" In other respects there is no
difference between a contract of insurance and
any other contract except that in a contract of
insurance there is a requirement of uberrima
fides i.e., good faith on the part of the assured
and the contract is likely to be construed contra
proferentem that is against the company in
case of ambiguity or doubt. A contract is formed
when there is an unqualified acceptance of the
proposal. Acceptance may be expressed in
writing or it may even be implied if the insurer
accepts the premium and retains it. In the case
of the assured, a positive act on his part by
which he recognizes or seeks to enforce the
policy amounts to an affirmation of it. This
position was clearly recognized by the assured
himself, because he wrote, close upon the
expiry of the time of the cover notes, that either
a policy should be issued to him before that
period had expired or the cover note extended
in time. In interpreting documents relating to a
contract of insurance, the duty of the court is to
interpret the words in which the contract is
expressed by the parties, because it is not for
the court to make a new contract, however
reasonable, if the parties have not made it
themselves. Looking at the proposal, the letter
of acceptance and the cover notes, it is clear
that a contract of insurance under the standard
policy for fire and extended to cover flood,
cyclone etc. had come into being."
16. Our attention was invited to Queen's Bench decision
in John Martin of London, Ltd. v. Russell ( [1960] Vol.I Q.B.
(Com.Cr.) 554). In this case, purchase of 7200 cartons of pure
refined lard,c.i.f., J.K.Port was made by the plaintiff from
Chicago company in May, 1957. In the same month lard was
sold by plaintiffs to various English customers on landed terms
ex-quary Liverpool. The defendant insured on June 7, 1957
covering lard against all risks and including Institute Cargo
Clauses (Extended cover) and the policy provided at and from
Chicago to Liverpool or held covered Institute Cargo Clauses
(Extended cover). This insurance continued until the goods
were delivered to the consignees' or other final warehouse at
the destination named in the policy. In terms of the aforesaid
policy, lard discharged from vessel into transit shed on quary,
on July 2,1957 and delivery orders were issued. On July 4,
1957 lard was found to be infested with copra beetle from
another part of transit shed. Delivery orders were cancelled
and reissued later. The plaintiffs claimed under the policy and
it was denied that the cover terminated on discharge into
transit shed which was final warehouse and that insurance
ceased on discharge of goods if consignees did not intend to
send goods to final warehouse. The plaintiffs' contention was
that the lard was still insured because it was in a transit shed
and had not reached consignees or other final warehouse. It
was also contended that transit shed was not a warehouse and
the transit shed was owned by the port authority and that the
transit shed was not a final warehouse. In this background,
when the policy was repudiated, the claim was filed. In that context,
leaned Judge held as follows:
that transit shed at Liverpool was
the place at which goods were placed as soon as
they were discharged and they were then
waiting patently to go somewhere else; and that
therefore, the transit shed was not the final
warehouse; that insurer's contention that cover
ceased if consignee did not intend to send
goods to a final warehouse did not give
reasonable businesslike meaning to the clause
and that there was no condition that goods were
only covered so long as they were intended to
go to a final warehouse; and that there fore, the
insurer had failed to prove that goods were not
covered when damaged.."
Mr. Divan, learned senior counsel strongly relied on the above
observation and submitted that this decision given by the
English Court is binding as per the terms of policy that the
English law in question would be applicable. Learned senior
counsel submitted that in view of the direct decision of the
English Court, the repudiation of the claim by the appellant-Company is ex facie bad. Learned senior counsel also invited
our attention to another English decision in Bayview Motors
Ltd. v. Mitsui Marine and Fire Insurance Co.Ltd. & Ors. { [2003]
Vol.1 C.A.131}. In this case the claimants were dealers in
motor vehicles in Providenciales, Turks and Caicos Islands. In
1997 they bought two consignments, each of six vehicles from
Toyota Tsusho Corporation. The vehicles were sold c.i.f. Santo
Domingo in the Dominican Republic although the terms of the
contracts of sale both referred to the destination of the goods
being the Turks and Caicos Islands. The consignment was
insured. The first consignment arrived in Santo Domingo on
August 11, 1997 and the second consignment arrived on
September 14, 1997. The vehicles were not released by the
Dominican customs for transshipment to the Turks and Caicos
Islands. The claimant claimed under the insurance policies
alleging that the vehicles were stolen or otherwise taken
without any legal justification by employees of the Dominican
customs after discharge from the vessels in Santo Domingo.
The defendants claim was that the cars were "confiscated" by
the Dominican custom authority because of contravention of
Dominican law. Therefore, loss was caused by seizure and it
excluded or excepted peril under the terms of the insurance
cover. It was contended that the loss was proximately caused
by the claimant's failure to take reasonable steps to avert or
minimize their loss in particular by ensuring that their rights
against the Dominican customs were properly preserved by
seeking legal advice or otherwise pursuing legal proceedings.
The Queen's Bench held that the insurers' submission that the
losses occurred after cover had ended and /or by seizure, an
excluded peril, would be rejected. The insurers filed an
appeal and in the appeal their Lordships held as follows:
" ..where goods were intended to go to
the destination named in the policy and then on
to some other destination cl. 1(a) did not
contemplate that there would be a final
warehouse or place of storage at the
destination named in the policy; in such a case
the warehouse or place of storage was not final
and cover would only cease if the assured
elected to use it either for storage other than in
the course of transit or for allocation or
distribution; otherwise cover was extended for
up to 60 days by cl. 1(c)."
Learned counsel submitted that in view of this interpretation of
the clause it would mean that after the extended coverage
granted by the Insurance company the goods till they reach
any destination on any part of the country would equally stand
covered.
17. After considering the ratio with regard to the
construction of the terms of the policy it transpires that while
interpreting the policy the courts should keep in view the
intention of the parties as well as the words used in the policy.
If the intention of the parties subserves the expression used
therein then the expression used in that context should be
given its full and extended meaning. In the present case, as is
apparent on reading of the Institute Cargo clause and the
coverage, terms of the policy and the extended coverage, the
intention that appears from these terms and conditions that
the goods were first covered from port in China, destination in
Calcutta port and thereafter extended coverage was sought
and in that it was extended to any part of the Republic of India.
If these two terms of the policy are read in conjunction then it
clearly transpires that the goods are covered till they reach the
destination in any part of India. If the extended cover would
not be given the policy would extend to Calcutta port. If
extended coverage is read, which clearly stipulates that this
extension is covered on same terms and conditions of the
original policy then it could mean that the policy has been
covered till the goods reach the consignee in any part of the
country in India. In fact, the extended coverage was only
meant for the goods to be covered till they reach destination
either by rail or road in any part of the country. If this
extended coverage is not interpreted to mean that goods
should reach the destination in any part of India, then the
extended coverage on payment of higher premium would be
meaningless.
The coverage was sought because the final
destination of the goods was not at Calcutta port. When the
coverage was extended on same terms and conditions that
would mean that the goods were covered till the same reached
in any part of the country in India. In the present case, the
goods reached the Calcutta Port and they were taken to
different sheds. But unfortunately, the goods were destroyed
by fire at Calcutta port itself. Therefore, we are of the view
that since the goods were covered from Calcutta port till the
same reach its destination and they were lying on storage,
that would cover the goods by the extended policy and the
insurer cannot defeat the claim of the claimant that the goods
once reached the destination at Calcutta the policy stood
discharged. The contention of Mr. Mehra that the extended
coverage does not cover the goods in transit till they reach any
part of the country is not correct because the transit infers
storage also till it reaches its destination. The damage on the
rail or road would also include that in transit the goods are to
be kept in transit shed, the policy would cover that also. If
this interpretation is not given then the extended coverage
would be of no use. Looking to the expression used in the
background of the intention of the parties, it clearly transpires
that once the goods were insured, then till they reach any
part of the country shall be covered by the extended coverage.
Therefore, the contention of Mr. Mehra cannot be accepted.
18. The next question comes with regard to the
quantum of compensation. In view of the fact that the reports
of M/s. Apex Surveyors Pvt. Ltd as well as N.V.P.Sharma
Associates Pvt. Ltd. were considered by the Commission for
computing the quantum of compensation and on that basis the
compensation has been granted by the Commission, that
cannot be said to be in any manner bad as both the Surveyors
were of the appellant company and the appellant company
cannot possibly deny the amount of compensation arrived at by these
surveyors. The calculation given by M/s. Apex
Surveyors Pvt. Ltd. has been accepted by the Commission and
there is no reason for us to take a different view from the
Commission as the Commission has arrived at the amount of
compensation as assessed by M/s. Apex Surveyors Pvt. Ltd.
Therefore, we affirm the order passed by the Commission on
this count also. However, we may modify the order of the
Commission with regard to interest. The Commission has
granted interest @ 9% from the date of report of the Surveyor
but we modify the said order and direct that the claimant will
be entitled to interest at the same rate from the date of the
order of the Commission instead of the date of report of the
Surveyor.
19. As a result of our above discussion, we find that the
view taken by the Commission appears to be justified and
there is no ground to interfere with the order of the
Commission except to the extent of interest as indicated
above. Hence, this appeal fails and is dismissed. There would
be no order as to costs.
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