By this order we propose to dispose of the aforesaid two
appeals. Civil Appeal No. 6892 of 2008 is filed by the New
India Assurance Co. Ltd. as the appellant, whereas Civil
Appeal No. 879 of 2009 is filed by M/s. Cargil India Pvt. Ltd.
as a cross appeal. Since the facts and the issues involved in
the two appeals are similar, we propose to dispose of both the
appeals by this common judgment and order.
The appeals are filed against the judgment and order
passed by the National Consumer Disputes Redressal Commission,
New Delhi (for short, ‘the National Commission’) in Original
Petition No. 146 of 2003, whereby the National Commission came
to a definite conclusion that the loss suffered by the
respondent (M/s. Cargil India Pvt. Ltd.) had occurred on
account of fire causing damage to the soya bean stock and, therefore, as per terms of the policy, the respondent is
entitled to receive Rs. 1,70,72,876/- which is the amount of
loss assessed by the surveyor by report dated 29.10.2002 along
with the interest @ 9% per annum from 1.1.2003 till the date
of payment. The National Commission also directed for payment
of cost of Rs. 25,000/-. Being aggrieved by the aforesaid
judgment and order, the appellant has filed this appeal
whereas the respondent has filed the appeal seeking
enhancement of the compensation awarded by the National
Commission.
Counsel appearing for the appellant has drawn our
attention to the entire facts of the case in support of his
contention that the soya bean stock was damaged before the
fire had taken place and in that view of the matter the
stipulation in the agreement between the parties does not
entitle the respondent to receive any damage or compensation
for the loss or damage caused to the goods. In support of
the said contention the counsel also relied upon the
endorsement in the agreement between the parties, which reads
as follows:
“In consideration of the payment by the insured
to the company of additional premium of Rs. …….the
company agrees notwithstanding what is stated in the
printed exclusions of this policy to the contrary that
the insurance by (items ….) of this policy shall
extend to the property insured caused by its own
fermentation, natural heating or spontaneous
combustion.
N.B. – The expression ‘by fire only’ in the
endorsement above must not be omitted under any
circumstances.”
Our attention was also drawn to the policy, which is
the subject matter of the claim in the present case. There
is an exclusion clause in the said policy which provides that
the aforesaid insurance policy would not cover loss or damage
to property caused by its own fermentation, natural heating
or spontaneous combustion or by its undergoing any heating or
drying process. However, the respondent herein paid an extra
premium of Rs. 25,000/- due to which the exclusion clause was
relaxed. In other words, because of the payment of the
aforesaid extra premium, the exclusion clause as stated
hereinbefore also became a part of the contract between the
parties and, therefore, the said exclusion clause would not
be treated as excluded terms of contract but would be treated
as an inclusive clause of the contract between the parties.
At the instance of the counsel appearing for the
parties, we have also gone through the findings recorded by
the National Commission. The National Commission on
appreciation of the entire records has come to a definite
finding that there was loss to the respondent on account of fire causing damage to the soya bean stock and, therefore, in
terms of the stipulation in the contract, the respondent is
entitled to the compensation, which was awarded by the
National Commission. We have considered the evidence on
record and we have no reason to take a different view than
what is taken by the National Commission.
Even when we examine the submission of the counsel of
the appellant to the effect that there was no fire at the
time when the soya bean stock was damaged, even then in terms
of the Full Bench decision of the National Commission, the
appellant would be liable to pay the loss or damage in terms
of the endorsement thereof whereby it was provided that the
policy would extend to include loss or damage even to the
property insured, caused by spontaneous combustion. In other
words, even if there was no loss or damage by fire even then,
for any loss or damage caused to the property insured due to
spontaneous combustion, the respondent would be entitled to
claim damages to the extent it was found to be so damaged.
The aforesaid Full Bench decision of the National Commission
although was challenged in this Court was not interfered with
in the decision in Civil Appeal No. 873 of 2005 titled
Oriental Insurance Co. Ltd. v. M/s. Murli Agro Products Ltd. disposed of on 13.03.2008. It could not be disputed before
us that the present case would also be covered by the
aforesaid decision, so far aforesaid alternative arrangement
is concerned. The NCL has given a report in terms of
the request of the surveyor assessing damage of
Rs. 1,70,72,876/-, which is the amount awarded. In terms
thereof, we do not find any ground to interfere with the
order passed by the National Commission.
So far as the counter claim is concerned, we have heard
learned counsel appearing for the parties. On going through
records, we find no reason to enhance the compensation, which
is fixed by the National Commission. The aforesaid amount,
which is awarded as damages to the respondent, is based on
the loss assessed by the surveyor. That being the position,
no case for any enhancement is made out by the respondent.
The cross appeal has no merit and is dismissed. The appeal
filed by the Assurance Company also stands dismissed being
devoid of any merit.
We are informed at the bar that the entire amount,
which was awarded by the National Commission, was paid to the
respondent on execution of a bank guarantee. Since we have
now dismissed the appeal of the appellant also, the
respondent stands discharged from the bank guarantee.
The parties will bear their own costs.
[ R.M. LODHA ]