JUDGMENT : Asper S.K. Kulshrestha , J . : - Thisis a dispute between State of Madhya Pradesh and Bajaj Allianz GeneralInsurance Company Ltd. regarding the liability of insurer in respect of thecargo insured and damaged. The complainant is the owner of BELL 430 TWIN ENGINEHELICOPTER (VT - MPS) (hereinafter referred to as "helicopter") whichmet with an accident in February, 2002 near Indore and got damaged in the saidaccident. The helicopter was purchased in the year 1988 and for repair of thesaid helicopter, the same was required to be sent to Vancouver ( Canada ) andaccordingly the same was sent to Canada in the year 2004 for repairs. After repairs it was to be brought to Bhopal from Canada via Hong Kong . The State of Madhya Pradesh then approached the opposite party to provideinsurance coverage from Langley to Bhopal .Negotiations continued between the parties and eventually the complainantaccepted the offer of the opposite party and issued a letter of acceptance on 15-7-2005 . The opposite party inprinciple agreed to offer the coverage of insurance under a Marine InsurancePolicy covering all risks including War & SRCC from Langley ( Canada ) to Pithampur /Bhopal for a total sum assured, Rs . 20 crores . 2.The opposite party issued a policy intimating the complainant about the same on21-7-2005, the said helicopter was insured under a Marine Insurance Policy fromLangley to Bhopal for a total sum of Rs . 20 crores and a premium of Rs .1,64,883/- was paid. The policy of insurance was from 21-7-2005 till the actual arrival of thehelicopter at Bhopal . 3.On going through the policy, the complainant noticed that the excess clause of0.5 % was changed to 5%. On being brought to the notice of the opposite partythe policy was duly corrected and excess clause was brought down from 5% to0.5% and revised Schedule of the policy was also sent. After getting the saidinsurance cover and after receiving the said revised policy, the helicopter wastransported from Langley to Vancouver by road and from Vancouver to Delhi via Hong Kong by air freight and the same reached at Delhi Airport on 5-10-2005 . It is at this juncture that disputeinitiated between the parties. 4.The helicopter was cleared by customs on 13-10-2005 and was transported to Indamer Hanger. It is at this juncture that disputeinitiated between the parties. 4.The helicopter was cleared by customs on 13-10-2005 and was transported to Indamer Hanger. The helicopter was inspected by the Company Engineer on 21-10-2005 and it was reported thatwindow glass of the helicopter was damaged and, therefore, anintimation in writing was given to the opposite party on 22-10-2005 . As the helicopter was intrans-shipment enroute no formal claim was lodgedwith the opposite party. It was partly conveyed to the opposite party that thesaid damage was noticed by the Engineer of Aero Helipro at Indamer Hanger and any further damage, if noticed,would be intimated to the opposite party after its due inspection by theexperts. On 20-11-2005 theBell Company Engineer inspected the helicopter and additional damage wasdetected in the helicopter's tail boom. Immediately the opposite party wasintimated about the said damage. After the damage was noticed, the estimate ofrepair charges for making the said helicopter functional was called from twocompanies and it was informed to the complainant that a total amount of 1 ,38,068:21 US Dollars = 64,89,205:87 Indian Rupees (at therate of 47 rupees per Dollar) would be required for making good the repair inthe said helicopter and, therefore, a consolidated claim was prepared andpreferred to the opposite party with a request to settle the same. The oppositeparty kept on assuring that claim would soon be settled and a decision wouldalso be communicated to the complainant soon, but it did not settle the claimas promised. 5.On 28-6-2006 the oppositeparty informed the complainant that as damage to the window falls within theexcess limit of 0.5 %, therefore, the same is not payable. Thereafter on11-7-2006 the opposite part repudiated the claim on the ground that thedestination of consignment for air transport was New Delhi Airport and as thedamage was noticed after 30 days of unloading at New Delhi, therefore, nothingis payable under the policy. 6.The repudiation of claim of the complainant was, according to the complainant,wholly unwarranted as the policy was issued to complainant covering the risk oftransport from Langley to Bhopal .To demonstrate that it was from Langley to Bhopal, learned Counsel has invitedattention to the letter dated 25-6-2005 (Annexure C-2) issued by the DirectorAviation in which it has clearly been mentioned that the helicopter would bebrought from Langley to Vancouver by road, then from Canada to India (Mumbai)by sea and from Mumbai to Bhopal by road. Attention has also been invited toAnnexure C-3 covering all risks including War and SRCC. Learned Counsel hasfurther invited attention to Annexure C-4, dated 10th July, 2005 issued by the opposite party to theDirector Aviation in which it has also clearly been mentioned in the"Transit Details" that the helicopter would be brought from Langley to Bhopal by road/air. Attention hasalso been drawn to Annexure C-9 issued by the opposite party in which place ofcommencement has been shown as Langley with the place of termination of Bhopal .The documents referred clearly spell out that the commencement of the risk ofthe cargo was from Langley up tofinal destination at Bhopal . 7.That on account of repudiation of the claim the complainant being a StateGovernment has also sustained a loss of US Dollar 1 ,38,068:21 of which Indian Currency comes to Rs . 64,89,205:87.In addition the complainant is required to pay minimum amount of Rs . 10,000/- per day to the Airport Authority for holdingthe helicopter at the said hanger. The complainant, therefore, alleged thatrepudiating the genuine claim of the claimants amountsto gross deficiency in service and misconduct on the part of the oppositeparty. The claim has been quantified as under:- (a)Compensation towards loss sustained and towards the cost of repair Rs . 64 ,89,205.00 (b)Compensation towards cost of hanger charges for 10 months @ Rs .10,000/- per day Rs . 30 ,00,000.00 (c)Compensation towards mental annoyance and agony and towards punitive damage Rs . 02 ,00,000.00 Total: Rs . 96 ,89,205.00 Thecomplainant therefore, seeks an order directing the opposite party to pay thesaid amount with 18% interestpendente lite and future interest on the same amount. Cost ofcomplaint has also been claimed. 8.The complaint has been signed and verified by the Director Aviation, Shri V.P. Singh who has also filed an affidavit in the formof evidence substantiating the averments made in the complaint. He has alsofiled a counter-affidavit after the receipt of the affidavit from the oppositeparty. 9.The opposite parties have filed their written statement in which they haveraised preliminary objections to the effect that this Commission has nojurisdiction to entertain and adjudicate upon the dispute involved in thecomplaint inasmuch as it is not a "consumer dispute" and does not fallwithin the ambit of the provisions of the Consumer Protection Act, 1986 andtherefore, the matter should be tried by a Civil Court. That the claimant hasmade a complaint for insurance claim in respect of the damage to helicopter, itis very much clear that the complainant can file a consumer dispute before theCommission when he is covered under the definition of "consumer"under Section 2 (1) (d) of the Consumer Protection Act, 1986. 10.Apropos the preliminary objections, suffice is to say that the helicopter wasnot being purchased for any commercial purpose. It was private property of theGovernment of Madhya Pradesh and for personal use. Therefore, there is noelement of any commercial transaction or use and, therefore, the complainantwas definitely a consumer. The complainant being consumer is also manifest fromthe fact that the aircraft was given for repairs and services of the oppositeparties were obtained for being brought back to Bhopal .As held in Harsolia Motors Vs. National Insurance Co.Ltd., I (2005) CPJ 27 (NC), commercial purpose means goods purchased orservices hired should be used in activity directly intended to generate profit.In the present case as pointed out the aircraft is a private helicopter usedfor personal purpose without commercial object. Thus, in any case thecomplainant is not commercially exploiting the aircraft and is a consumer quathe opposite party. 11.In the written statement it is admitted that the O.P. issued a Marine CargoInsurance Policy covering risk upto Rs . 20 crores for transportationof cargo from Langley to Bhopal for a premium of Rs .1,64,883/-. But, it is contended that it was subject to Clauses 5 and 6.Reference has also been made to Annexure C/9. C/9 itself recites that thehelicopter would be transported from Langley to Bhopal . It has further beenaverred that Canadian Repair Company thoroughly inspected the helicopter andnoticed carck in the window glass at the pilot side.He worked on the helicopter for one week and assembled it but test drive couldnot be taken as the Director General, Civil Aviation did not give clearance.This was at the time when fuselage assembly was being carried out. It is onthis ground that the opposite party alleges that the subsequent damage has beencaused by some hard and/or sharp object and was not noticed initially whichshows that it is in hanger or while assembling that it has received the damageon the tail boom. It is onthis ground that the opposite party alleges that the subsequent damage has beencaused by some hard and/or sharp object and was not noticed initially whichshows that it is in hanger or while assembling that it has received the damageon the tail boom. 12.The opposite party has placed great stress on Clauses 5.1 to 6.2 of theInsurance Policy which read as follows :- "5.1.This insurance attaches from the time the subject-matter insured leaves thewarehouse, premises or place of storage at the place named herein for thecommencement of the transit, continues during the ordinary course of transitand terminates either, 5.1.1. on delivery to the Consignees' or other finalwarehouse, premises or place of storage at the destination named herein, 5.1.2. on delivery to any other warehouse or place ofstorage, whether prior to or at the destination named herein, which the assuredelect to use either, 5.1.2.1. for storage other than in the ordinary course oftransit or 5.1.2.2.for allocation or distribution or 5.1.3. on the expiry of 30 days after unloading thesubject-matter insured from the aircraft at the final place of discharge,whichever shall first occur. 5.2.If, after unloading from the aircraft at the final place of discharge, butprior to termination of this insurance, the subject-matter insured is forwardedto a destination other than that to which it is insured hereunder, thisinsurance, whilst remaining subject to termination as provided for above, shallnot extend beyond the commencement of transit to such other destination. 5.3.This insurance shall remain in force (subject to termination as provided forabove and to the provisions of Clause 6 below) during delay beyond control ofthe Assured, any deviation, forced discharge, reshipment or trans-shipment andduring any variation of the adventure arising from the exercise of a libertygranted to the air carriers under the contract of carriage. 6.If owing to circumstances beyond the control of the Assured either the contractof carriage is terminated at a place other than the destination named thereinor the transit is otherwise terminated before the delivery of thesubject-matter insured as provided for in Clause 5 above, then this insuranceshall also be terminated unless prompt notice is given to the Underwriters andcontinuation of cover is requested when the insurance shall remain in force,subject to an additional premium if required by the Underwriters, either, 6.1. until the subject-matter is sold and delivered at suchplace or, unless otherwise specifically agreed, until the expiry of 30 daysafter arrival of the subject-matter hereby insured at such place, whichevershall first occur, or 6.2. if the subject-matter is forwarded within the saidperiod of 30 days (or any agreed extension thereof) to the destination namedherein or to any other destination, until terminated in accordance with theprovisions of Clause 5 above." 13.In reality Clause 5 does not apply to the facts of the present case. Clause 5envisages a situation where on delivery to the Consignee or other finalwarehouse, premises or place of storage at the destination named herein; ondelivery to any other warehouse or place of storage, whether prior to or at thedestination named herein, which the Assured elect to use. It is not the casewhere any instructions in super session of the earlier instructions have beenissued for giving delivery at New Delhi .At New Delhi only it was assembledwhich did not change it from the definition of cargo as it could have beenimmediately dismantled and taken to Bhopal .However, since the delivery was given in damaged condition at least to theadmitted extent of window glass of the pilot side, there was no occasion forthe complainant to have taken it by air as the Director of Civil Aviation hasalso not granted permission. The opposite party is being oblivious of the factthat New Delhi was not thetermination point where they could have discharged their obligation on landingof the aircraft in New Delhi . In sofar as Clause 5.1.3 is concerned, in the present case the question of dischargeof liability of the insurance at New Delhi does not arise. In respect of Clause 6, it is clear that the said clause willcome into operation when the delivery is taken before the destination. Here itis not a case of delivery before destination but only a transit halt at New Delhi . 14.In further statement, the opposite party has disowned the liability of damageto tail boom of the helicopter as the damage was caused during transit. Inalternative the opposite party has submitted that it was not reported. Therepresentative of Canadian Repairer Mr. Lome Vowles and Mr. Adrine Lawrence inthe presence of the representatives of insured, Mr. Surana confirmed that at the time of assembly and thereafter handing over the insured/ Indamer prior to return to Canada ,there was no damage to tail boom. Inalternative the opposite party has submitted that it was not reported. Therepresentative of Canadian Repairer Mr. Lome Vowles and Mr. Adrine Lawrence inthe presence of the representatives of insured, Mr. Surana confirmed that at the time of assembly and thereafter handing over the insured/ Indamer prior to return to Canada ,there was no damage to tail boom. The hollowness of this contention is apparentfrom the fact that no affidavit of Mr. Lome Vowles and Mr. Adrine Lawrencewas filed; not even a letter. The opposite party has also stated thatdestination of the helicopter by air was New Delhi Airport . The cargo was to beassembled at this location and then aircraft was to fly to Bhopal .This flight would be out of Marine Cargo transit scope of insurance. The Cargowas delivered at Delhi on 5-10-2005 , cleared by custom on 13-10-2005 and tail boom was founddamaged on 20-11-2005 after 45 days of delivery at Delhi Airport .In this connection also reference has been invited to Clause 5 of the InsurancePolicy. But as stated above the landing of the cargo at New Delhi did not discharge the opposite parties fromtheir responsibility to deliver the aircraft at Bhopal .The inability of the opposite parties in not delivering the cargo at Bhopal clearly indicates their attempt to wriggle out of their commitment. It, was also not a case of intermediate storage and noticeto underwriter had duly been given. The opposite parties have also pleaded thatclaim has not disclosed that cargo shall have intermediate storage at New Delhi which amounts to concealment of material fact. 15.It is not a case of the opposite party that the cargo was diverted and allowedto remain at New Delhi Airport against the wishes of the opposite party. The opposite party could haveinsisted that if the cargo is not made available for onward transmission, theywould stand relieved from their obligations contained in the policy ofinsurance. 16.Learned Counsel for the complainant has referred to the decision of the SupremeCourt in United India Insurance Co. Ltd. Vs. Great Eastern Shipping Co. Ltd.,III (2007) CPJ 3 (SC), that transit infers storage also till goods reach itsdestination. This shows that even if the goods are stored in transit theliability of the Insurance Company does not get extinguished merely because thegoods have been kept though in India ,in a place different from the place mentioned in the Policy. Ltd. Vs. Great Eastern Shipping Co. Ltd.,III (2007) CPJ 3 (SC), that transit infers storage also till goods reach itsdestination. This shows that even if the goods are stored in transit theliability of the Insurance Company does not get extinguished merely because thegoods have been kept though in India ,in a place different from the place mentioned in the Policy. Learned Counselfor the opposite party has invited attention to the decision of the SupremeCourt in New India Assurance Co. Ltd. Vs. G.N. Sainani ,1986-99 CONSUMER 4369 (NS), but it was a case where on account of strike inIndian Ports, consignment was diverted to Muscat and Cargo discharged there asaccording to the terms of the Insurance Policy the goods had to betrans-shipped from Muscat to Bombay within 60 days of discharge of goods andrequest for extension beyond 60 days was refused by the insurer, thus policylapsed. How the facts of this case would apply to the facts of the present caseis incomprehensible. Likewise reference has also been made to the decision ofthe Supreme Court in M/s. Bihar Supply Syndicate Vs .Asiatic Navigation and others, AIR 1993 SC 2054 , which deals with entirely adifferent controversy. Their Lordships have opined that expression"ware-house to warehouse" denotes time during which policy wouldremain in force and cannot be interpreted as covering each and every risk. Inthe present case, risk has been fully covered as has already been pointed out. 17.This takes us to the question of quantum of the amount. The complainant claimcompensation towards the loss sustained and towards the cost of the repair Rs . 64 ,89,205 ; compensationtowards the cost of hanger charges at the rate of Rs .10,000/- per day for 10 months since 5-10-2005 till the date of filing of theclaim Rs . 30,00,000/- and compensation towards themental annoyance and agony and towards punitive damages Rs .2,00,000/-. We have already seen that the complainant is a consumer as thecomplainant has kept the helicopter for personal use and not for commercialuse. The insurance provided by the Insurance Company namely opposite party wasalso not for any commercial enterprise, but simply for giving coverage whileaircraft was to be brought to India .It is thus, clear that the Insurance Company was providing service in which ithas committed gross deficiency and, therefore, rendered itself liable to paycompensation to the complainant. The insurance provided by the Insurance Company namely opposite party wasalso not for any commercial enterprise, but simply for giving coverage whileaircraft was to be brought to India .It is thus, clear that the Insurance Company was providing service in which ithas committed gross deficiency and, therefore, rendered itself liable to paycompensation to the complainant. However, the opposite party can, at the mostbe saddled with the compensation towards the cost of repair, i.e., Rs . 64 ,89,205 /-. This amount willhowever, be variable in accordance with the excess clause of 0.5 % and shall bepaid within one month of the order. 18.Accordingly, the complaint is partly allowed. However, in the facts andcircumstances of the case we do not consider it proper to award costs.