EXPORT CREDIT GUARANTEE CORPN.,INDIA LTD Vs M/S.GARG SONS INTERNATIONAL
Case number: C.A. No.-001557-001557 / 2004
Diary number: 13401 / 2003
Advocates: RANJAN KUMAR Vs
KAMALDEEP GULATI
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1557 OF 2004
Export Credit Guarantee Corpn. …Appellant of India Ltd.
Versus
M/s Garg Sons International …Respondent
With
Civil Appeal Nos. 1553, 1548, 1555, 1556, 1549, 1552, 1551, 1558, 1550, 1559, 1543, 1542, 1546, 1544, 1545 and 1547 of 2004.
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. All the above-mentioned appeals have been preferred against
the common impugned judgment and order dated 18.2.2003 passed
by the National Consumer Disputes Redressal Commission, New
Delhi, in Revision Petition Nos. 662, 663, 664, 665, 666, 667, 668,
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669, 670, 671, 672, 673, 674, 933 of 2002 and F.A.238, 246 and
247 of 2001.
2. Facts and circumstances giving rise to these appeals are that:
A. The appellant herein, Export Credit Guarantee Corporation
of India Ltd., (hereinafter referred to as `the insurer’), is a
government company, which is in the business of insuring
exporters. Respondent, M/s Garg Sons International, on 23.3.1995
purchased a policy for the purpose of insuring a shipment to
foreign buyers i.e. M/s Natural Selection Co. Ltd. of UK, and the
said buyer committed default in making payments towards such
policy from 28.12.1995 onwards, with respect to the said
consignment.
B. The insured, that is M/s Garg Sons International, sought
enhancement of credit limit to the tune of Rs.50 lakhs with respect
to the said defaulting foreign importer. Subsequently, he presented
17 claims.
C. The insurer rejected all the abovementioned claims on the
ground that the insured did not ensure compliance with Clause 8
(b) of the insurance agreement, which stipulated the period within
which the insurer is to be informed about any default committed by
a foreign importer.
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D. Thus, the insured then filed several complaints before the
State Disputes Redressal Commission, to which the insurer filed
replies. The State Disputes Redressal Commission adjudicated
upon the case and disposed of the said complaint, vide order dated
4.6.2001, directing the insurer to make various requisite payments
due under different claims, with 9 per cent interest and litigation
expenses etc.
E. Being aggrieved against the orders passed in all 17 claims,
the insurer preferred appeals under Section 19 of the Consumer
Protection Act, 1986, before the National Consumer Disputes
Redressal Commission, wherein the impugned judgment and order
was disputed, stating that it was evident from the said judgment
that 11 claims had been rejected and that 5 claims made by the
insured were accepted.
Hence, both the parties preferred these appeals.
3. Shri Santosh Paul, learned counsel appearing on behalf of
the insurer, has submitted that the insured failed to communicate
information pertaining to the default made by the foreign importer,
to the insurer, within the stipulated period, which was fixed as 45
days from the date on which the payment became due, and thus,
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failed to ensure compliance with the mandatory requirement under
Clause 8 (b), owing to which, the claims with respect to which the
said information was not furnished within the time period
stipulated in the agreement, have wrongly been allowed.
Moreover, it is evident from the judgment that only 5 claims made
by the insured were accepted, and that 11 claims were rejected,
though in the said order, only 9 claims were found to be rejected
and 4 were shown as accepted. As the only numbers of 4 revisions
have been mentioned, stating that only these were worth
acceptance, and those of 9 revisions have been mentioned, as those
that were rejected, which was all stated to show that there were
typographical errors in the judgment itself.
In addition thereto, there were also certain appeals and thus,
the order was required to be modified to the extent that only two
claims which were made in respect of Civil Appeal Nos. 1547 of
2004 and 1557 of 2004, wherein all statutory requirements were
complied with deserve to be allowed, while the others, owing to
default on the part of the insured, are liable to be rejected.
4. On the other hand, Shri Satinder Singh Gulati, learned
counsel appearing on behalf of the insured, has submitted that
admittedly, there is in fact a typographical error in the impugned
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judgment and order, and has stated that the claims of the insured,
with respect to which there has been no default on the part of
insured, i.e., some claims have wrongly been rejected. Therefore,
the appeals filed by him i.e. Civil Appeal Nos. 1559, 1544, 1545,
1543 and 1546 of 2004 should be allowed and the other appeals,
should be rejected accordingly.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6. Relevant clauses of the insurance policy dated 23.3.1995,
read as under:
“8. Declarations:
(a) Declaration of shipments :- …………
(b) Declaration of overdue payments: The insured shall
also deliver to the Corporation, on or before the 15th of
every month, declaration in the term prescribed by the
Corporation, of all payments which remained wholly
or partly unpaid for more than 30 days from the due
date of payment in respect of shipments made within
the policy period and such declaration shall continue
to be rendered to the Corporation even after the expiry
of the policy period so long as any such payment
remains overdue.
xx xx xx
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19. Exclusion of Liability: Notwithstanding anything to
the contrary contained in this policy, unless otherwise agreed
to by the Corporation in writing, the Corporation shall cease
to have any liability in respect of the gross invoice value of
any shipment or part thereof, if:
(a) the insured has failed to declare, without any
omission, all the shipments required to be declared in terms
of clause 8(a) of the policy and to pay premium in terms of
clause 10 of the policy;
(b) the insured has failed to submit declaration of overdue
payments as required by clause 8(b) of the policy; or
(c) ……………”
7. If both the conditions referred to hereinabove are read
together, it becomes evident that the insured must make a
declaration in the prescribed form (Form No. 205), on the
15th of every month as regards whether or not, there has been
any default committed by the foreign importer, either in part,
or in full, for a period exceeding 30 days from the date on
which the payment fell due, with respect to shipments made
within the policy period. Non-compliance with the said
term(s) of contract, will exonerate the insurer of all liability
in this regard.
8. It is a settled legal proposition that while construing the
terms of a contract of insurance, the words used therein must be
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given paramount importance, and it is not open for the Court to
add, delete or substitute any words. It is also well settled, that since
upon issuance of an insurance policy, the insurer undertakes to
indemnify the loss suffered by the insured on account of risks
covered by the policy, its terms have to be strictly construed in
order to determine the extent of the liability of the insurer.
Therefore, the endeavour of the Court should always be to interpret
the words used in the contract in the manner that will best express
the intention of the parties. (Vide: M/s. Suraj Mal Ram Niwas Oil
Mills (P) Ltd. v. United India Insurance Co. Ltd., (2010) 10
SCC 567).
9. The insured cannot claim anything more than what is
covered by the insurance policy. “…the terms of the contract have
to be construed strictly, without altering the nature of the contract
as the same may affect the interests of the parties adversely.” The
clauses of an insurance policy have to be read as they are…
Consequently, the terms of the insurance policy, that fix the
responsibility of the Insurance Company must also be read strictly.
The contract must be read as a whole and every attempt should be
made to harmonize the terms thereof, keeping in mind that the rule
of contra proferentem does not apply in case of commercial
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contract, for the reason that a clause in a commercial contract is
bilateral and has mutually been agreed upon.
(Vide : Oriental Insurance Co. Ltd. v. Sony Cheriyan AIR 1999
SC 3252; Polymat India P. Ltd. v. National Insurance Co.
Ltd., AIR 2005 SC 286; M/s. Sumitomo Heavy Industries Ltd.
v. Oil & Natural Gas Company, AIR 2010 SC 3400; and
Rashtriya Ispat Nigam Ltd. v. M/s. Dewan Chand Ram Saran
AIR 2012 SC 2829).
10. In Vikram Greentech (I) Ltd. & Anr. v. New India
Assurance Co. Ltd. AIR 2009 SC 2493, it was held :
“An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself…. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in re- writing the contract or substituting the terms which were not intended by the parties.”
(See also : Sikka Papers Limited v. National Insurance
Company Ltd & Ors. AIR 2009 SC 2834).
11. Thus, it is not permissible for the court to substitute the
terms of the contract itself, under the garb of construing terms
incorporated in the agreement of insurance. No exceptions can be
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made on the ground of equity. The liberal attitude adopted by the
court, by way of which it interferes in the terms of an insurance
agreement, is not permitted. The same must certainly not be
extended to the extent of substituting words that were never
intended to form a part of the agreement.
12. The instant case is required to be considered in light of the
aforesaid settled legal propositions. The requisite record reveals the
factual matrix as under:
CA No. Invoice No.
Invoice date
Date of shipment
Due date of payment
Period for payment
Date for submission of Form- 205 8(b) compliance
Delay in filing 8(b) compliance (i.e. form 205)
Amount
1555/04 160/95 3.11.95 13.11.95 28.12.95 45 days 17.7.96 More than 5 months
8777/-
1548/04 163/95 8.11.95 20.11.95 5.1.96 45 days 17.7.96 More than 5 months
116424/-
1552/04 165/95 13.11.95 19.11.95 4.1.96 45 days 17.7.96 More than 5 months
96474/-
1549/04 166/95 13.11.95 19.11.95 4.1.96 45 days 17.7.96 More than 5 months
67194/-
1551/04 177/96 2.1.96 3.2.96 18.3.96 45 days 17.7.96 More than 2 months
52629/-
1558/04 182/96 16.1.96 3.2.96 18.3.96 45 days 17.7.96 More than 2 months
249377/-
1553/04 184/96 29.1.96 15.2.96 31.3.96 45 days 17.7.96 More than 2 months
414354/-
1559/04 186/96 7.2.96 6.3.96 6.5.96 60 days 17.7.96 More than 1 month
239656/-
1550/04 191/96 22.2.96 24.2.96 24.4.96 60 days 17.7.96 More than 1 month
242055/-
1544/04 192/96 22.2.96 6.3.96 6.5.96 60 days 17.7.96 More than 1 month
343777/-
1545/04 193/96 26.2.96 28.2.96 30.4.96 60 days 17.7.96 More than 1 month
267229/-
1543/04 195/96 13.3.96 25.3.96 25.5.96 60 days 17.7.96 2 days 306159/- 1556/04 196/96 22.3.96 25.3.96 25.5.96 60 days 17.7.96 2 days 264400/- 1547/04 200/96 19.4.96 6.5.96 6.7.96 60 days 17.7.96 314961/- 1546/04 162/95 8.11.95 20.11.95 5.1.96 45 days 17.7.96 More than
5 months 528257/-
1557/04 201/96 19.4.96 6.5.96 6.7.96 60 days 17.7.96 1362688/- 1542/04 164/95 11.11.95 19.11.95 4.1.95 45 days 17.7.96 More than 579766/-
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5 months 13. The aforesaid chart clearly establishes that the insured failed
to comply with the requirement of clause 8(b) of the agreement
informing the insurer about the non-payment of outstanding dues
by the foreign importer within the stipulated time except in two
cases.
14. Thus, we are of the view that only two claims which are
subject-matters in Civil Appeal Nos. 1547 and 1557 of 2004
deserve to be allowed. The others are dis-allowed.
With these observations, all 17 appeals stand disposed of.
..………………………….J. (Dr. B.S. CHAUHAN)
.…………………………..J. (V. GOPALA GOWDA)
New Delhi, January 17, 2013
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