Oral:The complainant is a partnership firm engaged in manufacture and sale of gems and jewellery, obtained a Marine insurance cover from United India Insurance Co. Ltd.- appellant in FA/645/2012 and respondent No.1 in FA/550/2012, for export of gold and precious jewellery to London. The consignment of jewellery was sent by the complainant to London through FedEx Express, respondent No.2 in both the appeals, but the consignment was lost in its transit did not reach its destination. The loss of the consignment was admitted by the carrier which maintained that as per the terms and conditions agreed by it with the consignor, its liability was restricted to US$ 500.2. Being aggrieved from the refusal by the insurer to pay the claim amount, the complainant approached the concerned State Commission by way of a consumer complaint, impleading the insurer as well as the carrier as the opposite parties in the complaint.3. In its written version, the carrier admitted the shipment of the jewellery as well as the loss of the consignment during transit and stated that a certificate dated 16.12.2019 had been issued by it to the complainant with respect to the loss of the consignment. The carrier reiterated that its liability for the loss during transit was restricted to US$ 500.4. The insurer resisted the complaint primarily on the ground that the executive of the carrier did not cooperate with the settling agent appointed by them and the settling agent was not allowed to visit the hub of the carrier at Paris.5. The State Commission vide its impugned order dated 1.8.2012 directed as under:-“We allow the complaint and direct the opposite party no.1 to compensate the loss to the complainant as per policy conditions (CIF + 10% ) within two months of this order. The complainant is also entitled for Rs.50,000/- as compensation for mental agony and Rs.10,000/- as cost of prosecution.”6. Being aggrieved from the order passed by the State Commission , the insurer is before this Commission by way of FA/645/2012. Since the complainant is also aggrieved on account of interest having not been awarded to it by the State Commission , the complainant is also before this Commission by way of FA/550/2012.7. The learned counsel for the insurer has drawn my attention to the following terms of the insurance policy and has submitted that requisite documentation was not provided to them by the complainant:-“Procedure In the event of Loss or Damage for which Underwriters may be liable.LIABIIITY OF CARRIES, BAILEES OR OTHER THIRD PARTIESIt is the duty of the Assured and their Agents, in all cases to take such measures as may be reasonable for the purpose of averting or minimize a loss and to ensure that all rights against Carriers Bailees or other third parties are properly preserved and exercised in particular, the Assured or their Agents are required:-1 To claim immediately on the Carriers, Port Authorities or other Bailees for any missing packages.2 To apply immediately for survey by Carrier's or other Bailee's Representative, if any loss or damage be apparent and claim on the carriers or other Bailees for any actual loss or damage found at such survey.3 In a circumstance, except under written protest, to give clean receipts where goods are in doubtful condition.4 To give notice in writing to the Carriers or other Bailees within 3 days of delivery if the loss or damage was not apparent at the time of taking delivery.Note: The Consignees or their Agents are recommended to make themselves familiar with the Regulation of the port Authority at the port of discharge.SURVEY AND CLAIM SETTLEMENTIn the event of loss or damage which may involve a claim under this insurance immediate notice of such loss or damage should be given to and a survey Report obtained from Lloyd's Agents as below.In the event of any claim arising under this insurance request for settlement should be made to who is/are authorized by United India Insurance Co. Ltd. to adjust and settle claims on behalf of the Company.DOCUMENTAHON OF CLAIMSTo enable claims to be dealt with promptly the Assured or their Agent are advised to submit all available supporting documents without delay, including when applicable :-1 Original policy or certificate of Insurance.2 Original or copy of shipping invoices, together with shipping specification and/or weight notes.3 Original Bill of Lading and/or other contract of carriage.4 Survey report or other documentary evidence to show the extent of the loss or damage. .5 Landing account and weight notes at final destination.6 Correspondence exchanged with the Carriers and other Parties regarding their liability for the loss or damage.”8. I have carefully perused the aforesaid Clause. No doubt the insured was under an obligation to make available all such documents as were in its custody and were necessarily required by the insurer for verification and assessment of the loss alleged to have been sustained by the complainant but, there is no evidence of any such document having not been made available by the complainant to the insurer. Clause 6 under the heading ‘Documentation of Claims’ required the complainant to share with the insurer the correspondence exchanged with the carrier and other parties regarding the liability of the insurer for the loss or damage. There is no evidence of any such correspondence having been demanded by the insurer or its agent and having been denied by the complainant.9. The learned counsel for the Insurer has drawn my attention to the Email of M/s Robert Lyon & Co. dated 17.6.2010 which to the extent it is relied upon by the learned counsel, reads as under:-“Thank you for your e-mail the contents of which I note but would reiterate yet again my earlier comments that we have submitted all our findings in previous e-mails and cannot really see what else you expect us to achieve as FedEx admitted that the consignment was lost whilst in their care. We have tried to pursue this matter further with FedEx in the United Kingdom but have received no response and attach hereto a copy of our latest e-mail to them.At an early date I explained that we were informed that this matter needed to be pursued with FedEx in India but my mails to you in this regard have remained unanswered and I attach hereto my last communications dated 14 April and 10th of May 2010 both of which remain unanswered.”In my opinion, the above-referred email does not in any manner show any non-cooperation on the part of the insured nor does it show any refusal on the part of the complainant to share any correspondence exchanged with the carrier or any other person with respect to the consignment in question. The settling agent who sent the aforesaid Email to the insurer clearly wrote that the FedEx had admitted the loss of the consignment while in their care. Para 3 of this email is important and reads as under:-“It is my opinion that this loss has occurred and in the absence of being able to obtain access to FedEx's premises in Paris, which I do not believe will reveal much further information I cannot understand why the claim cannot be settled if it falls under the terms of the policy of Insurance. We have spoken to the receiver on many occasions and can confirm that he has been aggrieved for some time and I am surprised that he has not consulted solicitors before now.”10. It is evident from a due consideration of this Email that though the carrier M/s FedEx had not given access to its premises in Paris to the settling agent, it had expressly admitted the loss of consignment while in its custody and the settling agent had opined that the loss to the complainant had actually occurred. Even with respect to access to the premises of the carrier in Paris, he was of the opinion that not much further information would be revealed from such access. He was of the opinion that the claim should be settled if it otherwise fell under the terms of the insurance policy. Therefore, this letter of the settling agent to the insurer does not show any non-cooperation on the part of the complainant and does not constitute breach of any term of the insurance policy. There was no way the complainant could have compelled M/s FedEx to give access its Paris premises to the settling agent of the insurer. The complainant could be expected to do only that much which was in its power and reach. It was the decision of the carrier and not of the complainant to access to the Paris premises of the carrier was necessary for investigation of the claim or not. Even if the stand taken by the carrier was not correct, the complainant cannot be blamed for such a stand being taken by the carrier. Therefore, the insurer, in my opinion, was wholly unjustified in not settling the claim despite a specific finding given by the settling agent and the recommendation made by him to settle the claim.11. For the reasons stated hereinabove, the complainant is entitled to payment in terms of the insurance policy. As far as interest is concerned, I see no justification for not awarding the same des
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pite loss to the complainant having been clearly established. Therefore, the insurer should also pay interest @ 9% p.a. to the complainant on the principal amount payable to it under the insurance policy. However, separate compensation for mental agony will not be justified when interest is being awarded to the complainant. The cost of litigation award by the State Commission, however, was fully justified in the facts and circumstances of the case. The interest in terms of this order shall be payable w.e.f. the date of institution of the complaint till the date on which the payment is actually made. The complainant will execute the subrogation letter and other necessary documents in favour of the insurer before payment in terms of this order is made to it. The insurer will be entitled to avail all such remedies, as may be available to it in law, against the Carrier. The payment in terms of this order shall be made within three months from today. Both the appeals stand disposed of accordingly.