ADANI EXPORTS LIMITED Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) Heard the learned Counsel for the parties. Perused the relevant materials on record.

(2.) This petition has been filed for declaring that in the absence of any agreement between the'parties as regards the payment of 'vessel overage extra' it is not permissible to the respondent-Company to demand the said extra overage premium from the petitioner-Company while setting its claim under the two marine policies in question and for a direction to the respondent-Company to pay full amount of claim demanded by the petitioner from the respondent-Company under two marine policies in question and for permanently prohibiting respondent-Company from seeking to recover any amount of overage extra premium from the petitioner company while releasing due payment in favour of the petitioner-Company and for quashing and setting aside the communication dated 15-5-2000 to the extent to overage extra amount is sought to be recovered from the petitioner-Company as being of violative of Arts. 14, 19(1)(g) and 300A of the Constitution.

(3.) The petitioner imported edible quantity of 12000 M.T. of White Sugar per vessel called M. V. Paulina from China (Hauangpu) to India. The total value of the consignment was Rs. 12.75 crores. The entire consignment was duly insured for the sum of Rs. 12.75 crores with total premium amount of Rs. 2,30,751/- under two insurance policies. On arrival of the consignment the necessary survey was shown. The petitioner lodged the claim with the respondent-Company for a sum of Rs. 5,43,500.00 under the coverage of aforesaid two insurance policies as per the claim bill dated 24-3-2000. The respondent-Company sanctioned the claim of the petitioner under two insurance policies for the amount of Rs. 4,10,243.00. The respondent-Company under the guise of sanctioning two claims of the petitioners, came out with demand of Rs. 3,06,945 (7,11,188/- overage extra) Rs. 4,10,243.00 total claim settled under survey fees against the petitioner. The petitioner protested the arbitrary claim of overage extra by the letter dated 17-5-2000 that such overage extra cannot be charged as there was no term in the contract. The contention of the learned Counsel for the petitioner is that the respondent-Company has settled the claim amount for Rs. 4,10,243.00 including the amount of claim of Rs. 3,99,500.00 and survey fee as Rs. 10,743.00. In para 6 of the petition the procedure regarding concept of insurance, insurance policy, overage extra etc. is mentioned. As per Sec.3 of the Marine Insurance Act, 1953, a contract of marine insurance is an agreement, whereby the insurer undertakes to indemnify the assured, in the manner and to the extent thereby agreed, against marine losses covering losses incidental to marine adventure. By virtue of Sec. 4 of the said Act, a contract of marine insurance can also be extended so as to protect the assured against the losses of inland waters or by any land risk which may be incidental to any sea voyage and a contract of marine is to be concluded when the proposal of the assured is accepted by the insurer upon the issuance of the policy and for the purpose of showing when the proposal was accepted with reference to the cover note or customary memorandum. What is mentioned in the policy document and/or in any accompanying document attached therewith are the terms and conditions of the marine contract arrived at by and between the insurer and the assured and the same is conclusive for all practical purposes. Any unilateral interpretation, deviation, addition introduction or inference relating to any new term and condition in respect of which there was no agreement between the parties at any point of time at the time of entering into said marine contract, would not be applicable to the parties. While settling the claim of the petitioner, the amount to be recovered under the guise and false protest of overage extra, the respondent-Company did not care to explain as to on what basis the said amount has been worked out which it was not within the knowledge or information of the petitioner. Since, the issue of "vessel overage extra" was not in the picture at the time of entering into contract of marine insurance, in respect of two insurance policies. Hence, the respondent-Company cannot claim such overage extra which was never agreed upon between the parties. It is also stated that the loss is admitted by the respondent-Company and the survey is conducted by the approved surveyor nominated by the respondent-Company, and hence, the respondent-Company cannot deny investigation of such thing. It is also submitted that overage extra has been charged at the rate of 0.56 to 50% on the total type of vessel cargo. Nothing has been stated as to on what basis amount of overage extra has been charged and overage extra is arbitrary. Hence the said amount cannot be recovered from the petitioner.