Case: New India Assurance Co. Ltd Vs. G.N.Sainani

not, before or at the time of so doing expressly or impliedly agreed to assign the policy, any subsequent assignment of the policy is in operative :Provided that nothing in this section affects the assignment of a policy after loss." No doubt the policy can be assigned either before or after the loss. But then the assignee must have insurable interest in the subject-matter as provided in para 11.1 of the policy. The provisions of the Marine Insurance Act and terms of the policy have to be read in the context of definition of "consumer" as contained in clause (d) of Section 2 of the Act. The relevant part of this clause is as under : "(d) `consumer means any person who, -(i) . . . . . . . . . . . . . . . .(ii) hires or avails of any services for a consideration which has been paid or promised partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person :" 12. The question that arises is if the assignee in the facts and circumstances of the present case could be said to be beneficiary so as to stake his claim under the policy. If we see the definition of "service" as provided under the Act it means and includes the provision of facilities in connection with the insurance as well. The complaint under the Act in the present case has to show that the service hired or availed of or agreed to be hired or availed of by the complainant suffers from deficiency in any respect. The complainant, of course, means a consumer and as we have seen above includes any beneficiary. "Deficiency" has been defined in clause (g) of Section 2 of the Act as under : "(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service :" The interest of the insured must exist in the case of marine insurance at the time of loss and the assured must have some relation to or concern in, the subject of the insurance. The service which the insurer offers is with reference to the goods and the insurable interest has to be in respect of the goods. To put it in other words, insurable interest in property would be such interest as shall make the loss of the property to cause pecuniary damage to the assured. To come under the scope of the word "consumer" as defined in the Act it should be possible for the assured to assign his insurable interest in the goods subject-matter of the policy for the assignee as a consumer to enjoy the benefit of the policy with reference to the goods which are insured. What has been assigned in the present case is the amount of loss suffered by the assured on account of shortlanding of the goods, meaning thereby that right to recover the loss is assigned to the assignee and not that any service is to be rendered under the policy by the insurer with reference to the goods. We are looking at the whole thing from the point of the consumer under the Act with reference to certain relevant provisions of the Marine Insurance Act. Unless the assignee has some insurable interest in the property subject-matter of the insurance until the time the policy terminates he cannot be beneficiary of any service required to be rendered by the insurer under the policy. Admittedly it was much after the goods had reached the port of destination and appropriated that the policy was transferred by the insured to the complainant to recover the amount of loss suffered by the assured. Thus, what is assigned is in effect a mere right to sue for the loss on account of shortlanding of the goods. It is difficult to see as to how it could be said that the respondent, that is the assignee, is the beneficiary of any service under the policy. He may, however, have right to recover the loss from the insurer by filing a suit in a civil court but certainly to seek remedy under the Act he must be a consumer. If the policy had been assigned during the course of its validity and before the goods were appropriated after their arrival at the port of destination, it could perhaps be said that the assignee had beneficial interest therein but not otherwise. By not extending the policy beyond a particular period, that is 60 days, the insurer acted within the terms of the contract of insurance and on that account it could not be said that there was deficiency in service to be provided by the insurer under the policy. 13. It is not necessary for us to examine in depth various provisions of the Marine Insurance Act as in the present case we are primarily concerned with the provisions of the Consumer Protection Act. The policy in question is though designated as Marine Insurance Policy but we think it is more a question of interpretation of relevant clauses of the policy. The Act is not a general law for all remedies. It is for the protection of the consumer as defined in the Act. To succeed in the present case the complainant must show that he is a consumer and that there has been deficiency in service by the insurer. This he has been unable to show. He, therefore, could not maintain complaint under the Act. 14.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The interest of the insured must exist in the case of marine insurance at the time of loss and the assured must have some relation to or concern in, the subject of the insurance. The service which the insurer offers is with reference to the goods and the insurable interest has to be in respect of the goods. To put it in other words, insurable interest in property would be such interest as shall make the loss of the property to cause pecuniary damage to the assured. To come under the scope of the word "consumer" as defined in the Act it should be possible for the assured to assign his insurable interest in the goods subject-matter of the policy for the assignee as a consumer to enjoy the benefit of the policy with reference to the goods which are insured. What has been assigned in the present case is the amount of loss suffered by the assured on account of shortlanding of the goods, meaning thereby that right to recover the loss is assigned to the assignee and not that any service is to be rendered under the policy by the insurer with reference to the goods. We are looking at the whole thing from the point of the consumer under the Act with reference to certain relevant provisions of the Marine Insurance Act. Unless the assignee has some insurable interest in the property subject-matter of the insurance until the time the policy terminates he cannot be beneficiary of any service required to be rendered by the insurer under the policy. Admittedly it was much after the goods had reached the port of destination and appropriated that the policy was transferred by the insured to the complainant to recover the amount of loss suffered by the assured. Thus, what is assigned is in effect a mere right to sue for the loss on account of shortlanding of the goods. It is difficult to see as to how it could be said that the respondent, that is the assignee, is the beneficiary of any service under the policy. He may, however, have right to recover the loss from the insurer by filing a suit in a civil court but certainly to seek remedy under the Act he must be a consumer. If the policy had been assigned during the course of its validity and before the goods were appropriated after their arrival at the port of destination, it could perhaps be said that the assignee had beneficial interest therein but not otherwise. By not extending the policy beyond a particular period, that is 60 days, the insurer acted within the terms of the contract of insurance and on that account it could not be said that there was deficiency in service to be provided by the insurer under the policy.It is not necessary for us to examine in depth various provisions of the Marine Insurance Act as in the present case we are primarily concerned with the provisions of the Consumer Protection Act. The policy in question is though designated as Marine Insurance Policy but we think it is more a question of interpretation of relevant clauses of the policy. The Act is not a general law for all remedies. It is for the protection of the consumer as defined in the Act. To succeed in the present case the complainant must show that he is a consumer and that there has been deficiency in service by the insurer. This he has been unable to show. He, therefore, could not maintain complaint under the Act.