thereafter despatched the consignment to HCCBPL through Contour Logistics Pvt. Ltd. (CLPL) on 11.09.2012. As per consignment note, the declared asset value was Rs.2,52,64,000/-. The consignment was loaded under supervision of the complainant and transported in an open trailer in three wooden cases ('boxes'), containing the Accumulator Helix 30, Tray Shrink 30 and local installation material. It is stated by the complainant that the Accumulator Helix was placed at the rear end of the trailer. The consignment was received at the Khurda factory of HCCBPL on 16.09.2012 and was found to be received in a damaged condition when unpacked. One box was found partially broken/damaged at the bottom. The complainant was informed by the vendor M/s Siddhartha Installations on 25.09.2012. The complainant informed the insurance broker on 27.09.2012. a claim of Rs.11,00,000/- was filed initially on 11.10.2012. A preliminary survey was carried out by the First Surveyor, S.K. Brahma, on 04.10.2012. According to the complainant, the manufacturer, Hartness International informed on 28.11.2012 that the cost of repair would exceed the original cost of the Accumulator Helix 30. The complainant therefore supplied a new equipment to HCCBPL.

3. According to the complainant, the loss assessed by his engineer was revised to Rs.1,23,92,500/- and was intimated to the insurance broker on 13.12.2012 as also to the transporter, CLPL. The opposite party appointed another surveyor, Bhadra Insurance Surveyors & Losss Assessors Pvt. Ltd. who conducted a survey on 20.12.2012. As per the report of the first surveyor, the cause of loss was concluded to be jerks/jolts during transit or rough handling during loading/unloading. During a meeting between the complainant, opposite party CLPL and the second surveyor on 19.08.2013 it was confirmed that cause of damage was continuous jolts/jerks/bumping of the trailer during transit from Pune to Bhadra and that no overloading or oversized materials were loaded as the process was under supervision of the complainant. The transporter, CLPL, vide a "Damage Certificate" dated 12.09.2012 stated that the consignment was in a sound condition when loaded under supervision of the complainant, that there were no oversized boxes, that the trailer was not overloaded or the boxes placed in a wrong manner. It was also stated that jerks to the trailer during transit was the cause of damage. According to the second surveyor, damage occurred during transit due to faulty loading on the trailer and constraint of space as a third local package was also loaded in the front of the trailer resulting in the main box of the Accumulator Helix protruding from the trailer, which amplified the jerks during transportation resulting in aggravated damage. The second surveyor ascribed the fault to the complainant due to faulty selection of vehicle and loading and did not recommend the settlement of the claim on the ground that the policy condition excluded damage or loss due to shortcomings in 'stowage, securing or lashing of cargo'. The opposite party repudiated the complainant's claim on 10.06.2014 on the ground that the cause of damage was improper loading/stowage as per clause 2.3 of the policy.

4. The complainant has contested this repudiation on the grounds that the transporter, CPLP and the second surveyor have all concluded similarly that the damage was due to continuous bumping which was aggravated by the protrusion of the box containing the equipment on the trailer. He contends that the consignment was loaded properly under his supervision. It is contended by the complainant that the second surveyor has presumed that the box protruded/extended beyond the trailer length and has reached conclusions without any valid/justifiable grounds. The complainants are before us with the following prayer:

Hold the opposite party deficient in services and pass an award in favour of the complainant directing the opposite party to pay a sum of Rs.1,23,92,500/- along with i.

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interest @ 18% from the date of the lodging of the claim, i.e., 27.09.2012 till actual payment thereof;

Order and direct the opposite party to pay a sum of Rs.25,00,000/- towards damages for the undue hardship, mental agony, frustration, financial and business less and harassment caused to the complainant as a result of the above facts of omissions on part of the opposite party;

ii.

Order and direct the opposite party to pay a sum of Rs.3,00,000/- towards costs of the litigation; and

iii.

Any other and further relief/ order/ direction as this Hon'ble Commission may deem fit and proper under the facts and circumstances of the case be also passed along with costs in favour of the complainant against the opposite party.

iv.

5. The opposite party has contested the complaint by way of reply. It is contended that as per clause 2.3 under the Exclusions Clause 2 of the policy the claim is not admissible. It is also contended that both the first and second surveyors had specifically referred to improper stowage under the supervision of the complainant which resulted in heavy jerks to the equipment during transit. The second surveyor, M/s Bhadra Insurance Surveyors & Loss Assessors Pvt. Ltd. in their report dated 27.03.2014, had also pointed out that a third package was also loaded. As the insured-complainant was responsible for the faulty loading and the selection of the vehicle, the claim had been repudiated. Reliance has been placed on judgment of the Hon'ble Supreme Court in Sri Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd. and Anr, (2009) 8 SCC 507 laying down that surveyor's reports need to be given due importance unless there are sufficient grounds to disagree.

6. Parties led their evidence. Learned counsels also filed their short synopsis along with case laws relied upon. We have heard the learned counsel for both the complainant and the opposite party and given thoughtful consideration to the record.

7. Learned counsel for the complainant argued that the repudiation of the claim is arbitrary and unjustified since the second surveyor has presumed that if there was a gap between the three boxes loaded on the trailer, then box no. 1 would protrude. This conclusion is based on presumption and not on any evidence. The delay of nearly 20 months in repudiation is inordinate and is not based on any cogent evidence to prove insufficiency or unsuitability of packing. Deficiency of service is therefore alleged by the complainant. Reliance is placed on judgments of the Hon'ble Supreme Court in Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan & Ors, (1987) 2 SCC 654, B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. Divisional Officer, Hassan, (1996) 4 SCC 647 wherein it was held that the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle. Accordingly it is argued that the complainant is

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entitled to the reliefs sought.

8. On the other hand, learned counsel for the opposite party has argued that the burden lies on the insured to prove that the loss fell within the purview of the policy which it had failed to do. It is contended that the condition of the machine was not documented by the insured- complainant by any survey or photograph before its transportation from Pune to Khurda.

9. It is evident that the claim of the complainant was repudiated on the basis of the exclusionary clause in the policy. This clause reads as follows:

"Exclusions:

2. In no case shall this insurance cover

2.3 Loss damage or expense caused by insufficiency or unsuitability of packing ore preparation of subject - matter. (for the purpose of this clause 2.3 'packing' shall be deemed to include stowage in a container of lift van but only when such stowage is carried out prior to attachment of this insurance or by the assured or their servants".

10. It is not in dispute that the loading and stowage of the three boxes comprising the consignment was done under the supervision of the complainant. The selection of the trailer was also done by him. It is also the case of the complainant that the goods suffered damage during transportation between Pune and Khurda. It is also not in dispute that the boxes suffered jerks and vibrations during the transit from Pune, Maharashtra to Khurda, Odisha. The responsibility for this is the issue before us. The responsibility for stowage and lashing of the boxes as per the policy was that of the complainant who admittedly supervised the process. The opposite party has contended that there was another box that was loaded in the front which resulted in the box of the Accumulator Helix being located towards the rear end and suffering greater jerks during transit, including projecting beyond the trailer. The issue of the additional box being loaded is disputed by the complainant. It is argued that in view of there not being such a box having been loaded, there is no question of the three boxes in the consignment having not been accommodated on the trailer and therefore getting impacted by violent/aggravated jerks on the journey from Pune to Khurda. The opposite party has not produced any evidence to support this finding.

11. In the absence of any evidence to support the assertion that there was an additional box loaded in the front of the trailer before the transportation of the consignment from Pune, this assertion cannot be held as valid. However, it is undeniable that the responsibility of loading, stowage and lashing was that of the complainant as per clause 2.3 of the policy. It is undisputed that this was done under the supervision of the complainant. The complainant cannot resile from this position at this stage. The issue of whether the box containing the transported goods protruded beyond the trailer or suffered severe jerks has to be the responsibility of the complainant who was primarily responsible for its stowage and lashing and had, in fact, had it done under his supervision.

12. We are, therefore, of the considered opinion that damage to the consignment of the Accumulator Helix 30, occurred during transportation between Pune to Khudra due to the negligence of the complainant who was responsible for the loading, stowage and lashing of the

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items as per condition no. 2.3 of the insurance policy. Accordingly, this complaint is dismissed.

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C. VISWANATH

PRESIDING MEMBER

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SUBHASH CHANDRA

MEMBER

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