Case: United India Insurance Company Ltd Vs. Kantika Colour Lab

2. Respondent No.1-Kantika Colour Lab imported one set of Noritsu QSS-1923 printer process and QSF-V50 film processor from Japan. The machines arrived at Mumbai on 1st November, 1998 and were entrusted to M/s Super Road Lines for onward transportation to Hardwar under L/R No.005495 dated 20th November, 1998. A pre-dispatch survey conducted by the Surveyor confirmed that the machines were in sound condition at the time of dispatch from Mumbai.3. To secure the machines against any possible damage respondent No.1-the owner of the machines obtained from the appellant Insurance Company a transit insurance policy for a sum of Rs.53 lakhs. The policy covered loss against all risks including damage/breakage, theft pilferage, road risk and non-delivery etc. The insurance was extended to cover SRCC as per limits and conditions of the Marine Policy.4. The case of the owner-respondent no.1 is that the machines suffered damage on account of mishandling in the course of transportation from Mumbai to Hardwar. A damage certificate issued by respondent no.7 acknowledged that the damage to the machines had occurred during transportation. Respondent no.1 accordingly lodged a claim for a sum of Rs.55 lakhs against the appellant company and the Carrier-respondent no.7 in this appeal. A preliminary survey of the damage to the machines was ordered by the appellant company and conducted by Shri Ajay Kumar Arora, who submitted a report stating that while Printing Machine QSS 1923 had suffered damage, there was no apparent damage to the Film Processor QSF-V50 which machine outwardly appeared to be in sound condition.5. The appellant-company then appointed Shri Vinod Sharma licensed Surveyor to survey the machine and assess the loss as required under Section 64UM of the Insurance Act 1938. Shri Sharma submitted a report dated 17th April, 1999 after the machines were inspected by Shri Amit Bose, the Technical Director and Engineer of M/s Satyam Equipment Services Ltd. In his report Shri Sharma opined that the damage/loss to the machine was repairable and assessed the same at Rs.5,76,730/-. The report categorically stated that there was no damage to the Film processor QSF-V50 which was found to be in working condition. Accepting the said report, the appellant company offered an amount of Rs.5,76,730/- to respondent no.1 towards compensation which the said respondent refused to accept. Instead respondent no.1 filed complaint No.153 of 1999 before the National Consumer Disputes Redressal Commission, New Delhi, claming an amount equivalent to the cost of the machines which according to the respondent were a total loss on account of the damage suffered by them.6. The appellant-company contested the claim and took several objections to the maintainability of the complaint including the objection that the complaint raised complicated questions of law and fact which could not be tried under Consumer Protection Act. It was also alleged that damage suffered by the machine was repairable and that the loss was limited to Rs.5,76,730/- which the company had offered to make good.7. In support of its complaint the respondent-company examined Shri Pradeep Kumar Sharma, one of its partners. The statement of Shri Taposh Dev, Senior Sales and Service Engineer was also recorded, on behalf of the manufacturing company who too was arrayed as a party respondent. Depositions of Shri Vinod Sharma, Surveyor and Shri Amit Bose, Technical Director of M/s Satyam Equipment Services Pvt. Ltd. examined on behalf of the appellant-company, were also recorded.8. By its order dated 1st May, 2001 the National Commission allowed the claim made before it and held the appellant-company as also the Carrier to be jointly and severally liable to pay a sum of Rs.53 lakhs together with interest @ 10% p.a. for the period commencing two months after the second Surveyors report was submitted till the actual payment of the claim is made. The Commission directed surrender of the salvage to the Insurance Company against payment of its claim within eight weeks. The complainant was also held entitled to costs of Rs.10,000/.

Reasoning:
16. We may at this stage refer to the deposition of Shri Taposh Dev, Senior Sales and Service Engineer of respondent no.2 the manufacturer of the machines in question. In the affidavit filed by the said witness it is, inter alia, stated that a thorough visual inspection of the machines in question was made by the engineers of respondent no.2 company and a report based on the said inspection submitted on 21st December, 1998. The witness on the basis of the said inspection report stated that Noritsuprinter process was subjected to a strong impact from the sides during transit from Mumbai to Hardwar resulting in severe damage, especially to the Paper Processor & Dryer Section thereof. The mechanical alignment and the optical accessories also had been badly affected. The witness also stated that it was not economical to undertake such repair work on account of the high cost involved in the same especially when the repair may not exclude the possibility of any future complications arising in the working of the machines. The witness also referred to manufacturers letter dated 7th January, 1999 informing the insured about the price of NoritsuPrinter Process andFilm Processor after deducting the value of the optional accessories. According to the witness the price of Printer Processworks out to Singapore $ 62,100. The witness asserted that M/s Satyam Equipment Services Ltd. were appointed as authorized sales representatives during early 1996 but since their services were not found to be satisfactory the agreement between the parties was terminated. He has further stated that respondent no.2Not much has been extracted from the witness inwho has stuck to his version that the machine is not at all repairable, and that the cost of getting the machine repaired in Japan would be much more than the cost of a new machine.18. Two aspects stand out from the above evidence. Firstly, it is clear that the damage has been caused only to the printer modeland not to the film processorwhich was found to be in working condition and about which there was only an apprehension and no more that its working may run into difficulty in future. We, however, see no real basis for such an apprehension. In any case in the absence of proved damage affecting the performance of the machine, it is difficult to assume that the film processor was also damaged either wholly or in part so as to call any repair or replacement of the said machine.19. Contracts of Insurance are generally in the nature of contracts of indemnity. Except in the case of contracts of Life Insurance, personal accident and sickness or contracts of contingency insurance, all other contracts of insurance entitle the assured for the reimbursement of actual loss that is proved to have been suffered by him. The happening of the event against which insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy. It is only upon proof of the actual loss, that the assured can claim reimbursement of the loss to the extent it is established, not exceeding the amount stipulated in the contract of Insurance which signifies the outer limit of the insurance companys liability. The amount mentioned in the policy does not signify that the insurance company guarantees payment of the said amount regardless of the actual loss suffered by the insured.The other aspect that is established is that printer modelhas been extensively damaged and the manufacturing company has no arrangement in this country for carrying out the repairs to the damaged machine. The Insurance Companys version that M/s Satyam Equipment Services Ltd. undertakes the repairs does not appear to us to be acceptable specially when the manufacturing companys authorized representatives has in no uncertain terms denied the competence of the M/s Satyam Equipment Services Ltd. to undertake any such repairs. Such being the position, the National Commission was, in our opinion, justified in holding that the printer processor modelbeing extensively damaged requires complete replacement.21. The question, however, is as to what is the cost of such replacement. Shri Taposh Dev, has referred to letter dated 7th January 1999 addressed by the manufacturing company to the insured M/s Kantiak Colour Lab and stated that the price of a brand new printer processor modelworks out to Singapore $62100. We see no reason why the said amount can not be awarded to the insured by way of compensation for the damage caused to the machine. Besides the cost of the machines the insured would also be entitled to the customs duty component paid on the import of the said machine. From the Surveyors report submitted by Mr. P.M. Patel and Co. it is evident that the invoice value of the goods comprising the printer processor and the film processor was Singapore $ 104000 with an assessable value of Rs.A sum of Rs.21,32,776/was on that value paid towards customs duty on the import of the said equipment. The duty payable on a machine valuing Singapore $ 62100 would, therefore, come to Rs.21,32,776X62100/104000=Rs.12,73,513.36.22. To sum up the total amount payable to the insured by way of compensation for the damage caused to the machine in question would work out to rupees equivalent of Singapore $ 62100 at the exchange rate prevalent as on the date of this judgment plus a custom duty component of Rs.12,73,513.36 rounded off to Rs.The sum total of the two figures would be payable with interest @ 10% p.a. for the period mentioned in the National Commissions order.