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CASE NO.:

Appeal (civil) 2319 of 2004

PETITIONER:

United India Insurance Co. Ltd

RESPONDENT:

M/s. Great Eastern Shipping Co. Ltd

DATE OF JUDGMENT: 16/07/2007

BENCH:

A.K.MATHUR & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

A.K. MATHUR,

1. 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

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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 \026 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

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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

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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. \005"

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."

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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

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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

there 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

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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

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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 :

" \005 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

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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

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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.