LAW FOR ALL

Sections 17 and 52 of the Marine Insurance Act, 1963=When the delivery was taken at Moscow, it was found short of 142 and 139 cartons respectively. The matter was then reported to the Insurance Company who, in turn, appointed M/s Ingostarkh Insurance Company Ltd., Moscow as the surveyors to investigate into the matter and assess the loss. The surveyors confirmed the short delivery of the cartons. In terms of policy, the claim for the loss sustained by the consignee was lodged with M/s Ingostrakh Insurance Company in the first instance. They did not settle it and hence the consignee authorized the respondent to file the claim against the appellant for recovery of the loss sustained by them due to loss of their goods.= whether the complaint petition filed by the respondent under the Consumer Protection Act against the appellant (Insurer) was maintainable or not or in other words whether the respondent had the locus to file the complaint on the strength of contract of Insurance Policy in question for claiming compensation for the loss sustained in the transaction? = Sections 17 and 52 of the Marine Insurance Act, 1963 (hereinafter referred to as “the Act”) are relevant for deciding the abovesaid question. They read as under : “Section 17. Assignment of interest.—Where the assured assigns or otherwise parts with his interest in the subject-matter insured, he does not thereby transfer to the assignee his rights under the contract of insurance, unless there be an express or implied agreement with the assignee to that effect. But the provisions of this section do not affect transmission of interest by operation of law. “Section 52. When and how policy is assignable.— (1) A marine policy may be transferred by assignment unless it contains terms expressly prohibiting assignment. It may be assigned either before or after loss. (2) Where a marine policy has been assigned so as to pass the beneficial interest in such policy, the assignee of the policy is entitled to sue thereon in his own name; and the defendant is entitled to make any defence arising out of the contract which he would have been entitled to make if the suit had been brought in the name of the person by or on behalf of whom the policy was effected. (3) A marine policy may be assigned by endorsement thereon or in other customary manner.”Section 52 provides as to when and how the marine policy may be transferred. It says that a marine policy may be transferred by assignment unless it contains express terms, which prohibits any assignment of the policy. It also provides that such assignment can be made before or after the loss has occasioned.Sub-Section(2)of Section 52 provides that once the assignment is made then the assignee is entitled to sue in his name whereas the insurer/defendant is also entitled to raise all such defences against the assignee, which are available to him against the original insured i.e. assigner.-Under these circumstances, by virtue of Section 17, the respondent is legally entitled to retain, enjoy and exercise all those rights, which are available to them under the contract of insurance, which they have entered into with the appellant despite making the assignment of their policy in favour of the assignee.Section 17, in terms, recognizes and permits the insured to make assignment of their contract of insurance policy in favour of an assignee and at the same time allows the insured even after making an assignment to retain all those rights which are available to them under the contract of insurance with the Insurer (appellant). In other words, in terms of Section 17, even after making an assignment by the insured of their contract of insurance policy, the rights of insured under the contract of insurance policy are not assigned in favour of assignee by the deed of assignment but they are continued to remain with the insured. We are, therefore, of the considered view that firstly, we do not find that the respondent (insured) assigned the contract of insurance policy in favour of their consignee as contended by the appellant. Secondly, even assuming that the respondent (insured) assigned the contract of insurance policy in favour of their consignee, yet the assignment so made did not have any adverse effect on the rights of the insured under the contract of insurance policy as the rights continued to remain with them by virtue of Section 17 of the Act.The respondent was, therefore, legally entitled and had the locus to file a complaint against the appellant on the strength of contract of insurance policy for enforcement of their all contractual rights available to them under the insurance policy for claiming compensation for the loss caused from the appellant and the complaint so filed by the respondent could not be dismissed as not maintainable on the ground of locus. It was thus rightly held as maintainable.In our considered opinion, even if we accept, for the sake of argument, that the respondent had assigned their rights under the contract of Insurance policy in favour of their consignee by way of endorsement as contended by the appellant, yet in the light of authorization letter dated 04.07.1997 duly issued by the consignee in favour of the respondent authorizing the respondent to file a complaint petition before the Consumer forum for recovery of the compensation, the respondent was entitled and had the locus to file a complaint against the appellant for realization of compensation amount towards the loss sustained due to short delivery of the goods on the strength of the authorization letter for enforcement of contract of insurance policy. In view of foregoing discussion, we are of the considered opinion that in any event, the complaint filed by the respondent (insured) was maintainable and that the respondent had the locus to file the complaint against the appellant. It was, in our view, saved by Section 17 of the Act and by the authorization letter dated 04.07.1997, issued by the consignee in respondent’s favour. Both the Authorities, i.e., State forum and National forum (as the first appellate authority) were, therefore, justified in overruling the objection of the appellant and were justified in holding that the complaint filed by the respondent was maintainable and the respondent was legally competent to file such complaint.- New India Assurance Co. Ltd. vs. G.N. Sainani, 1997 (6) SCC 383 and Oberai Forwarding Agency vs. New India Assurance Co. Ltd. & Anr. [2000(2) SCC 407]. We have perused these decisions and find that these are distinguishable on facts. In the latter decision, the question of locus was not expressly examined in the context of Section 17 but was examined in the context of Section 79 of the Act on different set of facts. Likewise, in the former case, the facts were different and again Section 17 of the Act did not fall for consideration. In any event, in the light of findings which we have recorded on the facts of this case against the appellant, the case law relied upon by the appellant is of no help to them.