State Consumer Disputes Redressal Commission
1. Union Batteries Pvt.Ltd. vs The New India Assurance Co.Ltd. on 7 February, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/98/315
1. Union Batteries Pvt.Ltd.
426/1, Gokhale
Road, Shivaji Nagar,
Pune 411 016.
2. VAO-TECHMASHEPORT,
Division of Foreign Trade Co.Ltd.
Russian
Federation Law,
Teterinsky Per, 4/8, Strogencjie,
1, Moscow 109004, Russia.
...........Complainant(s)
Versus
The New India Assurance Co.Ltd.
New India
Assurance Building, 87,
M.G.Road, Mumbai 400 001.
............Opp.Party(s)
BEFORE:
HONABLE MRS. Usha S.Thakare PRESIDING MEMBER
HONABLE MR. Narendra Kawde MEMBER
PRESENT:
Adv.A.S.Docor for the complainant.
Adv.S.S.Dwivedi
for the opponent.
ORDER
Per Honble Shri Narendra Kawde, Member (1) Consignment of 121 Rolls of Denim Fabrics was dispatched by the complainant to the consignee, BPS NICO LTD., Moscow, Russia by organization with complainant no.2 to facilitate sale of goods to consignee. Both the complainant no.2 and the consignee are based and operating in Russia. Value of consignment was `16,98,000/- as per dispatch invoice. Consignment was shipped by vessel CMBT CONCORD from Nhava Sheva Port to Moscow via Riga Port Russia. M/s.P&O Containers Ltd. are forwarding agents of the shipping company who have issued bill of lading no.35395871 favouring the consignee, namely, BPS NICO LTD. The consignment was to reach the port of destination and thereafter to the godown of the consignee in Moscow. The consignment reached at the port of Riga and it was loaded for further journey in a trailer for onward carriage by road to Moscow and it was expected to reach on 26/08/1996.
However, the trailer carrying the consignment was detained at Shakhoskoi City on the way from Moscow to Riga without goods with forged custom documents as alleged in the complainant.
Appropriate proceedings against the transporter SIA LATU Lielovord, Latvia were registered by the investigator for further dealing as per procedure. In the process as stated in the complaint, the consignment did not reach to the consignee and there was a loss to the tune of `18,67,800/-.
(2) The consignment was insured under the Marine Insurance Certificate issued by opponent, The New India Assurance Co.Ltd. (hereinafter referred to as opponent insurer) for a value of `18,67,800/- to provide transit insurance cover from port of loading, Mumbai to Moscow, Russia (warehouse to warehouse). As alleged in the complaint, the consignment did not reach to the consignee, therefore, the complainant put to loss to the extent of cost of the consignment and the ancillary charges incurred. The incident was reported to the opponent insurer. However, by letter dated 14/02/1998, the claim was repudiated stating that the goods were delivered and received by the consignee on 23/10/1996 in violation of procedure of the custom laws. Aggrieved with rejection of the claim, the complainants have filed this consumer complaint claiming compensation of `18,67,800/- together with interest @18% p.a. alleging deficiency in service against the opponent insurer.
(3) The mater pertains to the year 1998 and it was taken on the board for hearing and disposal from the sine-die list. The opponent insurer appeared and vehemently opposed the complaint mainly on the ground that the complaint is vexatious as the consignment was received by the consignee without the clearance from the custom department of Moscow. Further, it is submitted that under the policy conditions, the claim is not payable as provided under clause 8 of the policy since the delivery of the goods was taken by the consignee though unlawfully by avoiding custom clearance. There is enough evidence on record to substantiate the contention of the opponent. Since the goods were delivered and payment on account of delivery has been received by the complainant no.1 from their buyer, namely, the complainant no.2, there is no insurable interest survived in favour of the complainant no.1. Buyer and/or consignee who purchased the goods from the complainant no.1 (i.e. insured) is not entitled to the benefit under the Consumer Protection Act, 1986 as scope of the Act is limited to the person who has obtained insurance policy i.e. insured alone in this case. The complaint further suffers from non-joinder of necessary parties as the shipping company and its agent M/s.P&O Containers.Ltd. have not been impleded as necessary parties. Finally, the opponent insurer tried to justify repudiation on 14/12/1998 of the claim stating that it was untenable.
(4) Heard learned advocate Mr.A.S.Doctor for the complainant and learned advocate Ms.S.S.Dwivedi for the opponent insurer. The learned advocate of the complainant argued that there was theft of the goods in transit from port Riga onwards to Moscow during road journey. The complaint was lodged by the complainant with the authorities in Russia. Value of the goods consigned is supported by the cost mentioned in the invoice to the tune of `16,98,000/-. Though the claim was preferred in time on account of theft of the goods as consignment was not delivered to the consignee. Opponent insurer neither accepted nor repudiated the claim as yet.
In so far as the submission about theft and repudiation of the claim are concerned, the arguments made by the learned advocate are in variance from the facts on record as there is no conclusive proof to establish theft and opponent insurer has repudiated the claim on 14/12/1998. From the perusal of the documents, it reveals that the consignee received the goods without clearance from the custom authorities of Russia.
(5) Learned Advocate of the insurer rightly drawn out attention to the ruling dated 01/11/1996 of the State Custom Committee of the Russian Federation in respect of violation of custom rules while the goods were in transit from port Riga for onward journey to Moscow by the container belonged to shipping company, SIA LATU Lielovord, Latvia. With a view to avoid custom duty in collusion with shipping company, the goods were taken away with the help of forged documents. As rightly pleaded by the opponent insurer admittedly on 16/12/1997, delivery of goods was obtained by the consignee at port Riga against surrender of original bill of lading together with other documents.
On perusal of the ruling given by the State Custom Committee of Russian Federation, submissions of the learned advocate of the opponent insurer are substantiated. Order of the State Custom Committee of Russian Federation amply makes it clear that one Mr.Dima, representative of the consignee received the goods against the documents on which the Moscow Goods Trucking Customs marks were already placed and attested seal numbering 0212 with endorsement with goods received on 26/08/1996. Empty trailer after having delivered goods to the consignee by avoiding custom duty was detained on way back to Riga from Moscow and subsequently, proceedings were instituted under the relevant law by the Russian Prosecutor. The shippers by their communication by Fax addressed to Geeta Dheer of the complainant company made it clear that the empty trailer was returned to Riga and the file was closed by them in respect of claim until the customer i.e. the complainant or consignee presents evidence of non-delivery of the goods. All these missing facts have never been brought out by the complainant before this State Commission. It is only the opponent insurer who collected all the relevant documents and placed on record. Mere denial/allegation of non-delivery of goods will be of no avail to complainant.
(6) It is rightly contended by the insurer that the complainant has no locus-standi and for want of insurable interest and suppressing facts, complaint deserves to be dismissed as vexatious u/s. 26 of the Consumer Protection Act, 1986. It was transit insurance policy extending insurance cover to the consignment in journey under Marine Insurance Policy.
The complainant failed to establish as to how insurable consignee survives under the policy, especially after having received full consideration in respect of dispatch of consignment. It is established fact principle that the insurer must have insurable interest at the time of loss of goods in respect of Marine Insurance Policy.
The learned advocate has rightly pleaded on behalf of the opponent insurer that the complainant has lost insurable interest in the goods due to receipt of consideration against the consignment from the buyers.
(7) It is also not made it clear how the insurable interest under the policy occurs in favour of the complainant no.2 who is neither the party to the contract of the insurance nor the invoice or bill of lading establishes relationship in respect of consignment. There is no privity of contract between the complainant no.2 and the opponent insurer nor there assignment of rights, interest under the policy in favour of the complainant no.2. Therefore, as rightly argued, the complaint suffers from mis-joinder of parties. The complainant also failed to implede shipping company and its agents who have actually carried out the goods and not joined them as necessary party.
Therefore, the complaint also suffers from non-joinder of necessary parties.
(8) Having considered, the case in its entirety, the complainant failed to establish deficiency in service against the insurer for rightly repudiating the insurance claim on 14/12/1998. Therefore, repudiation of the insurance claim cannot be called as arbitrary or unreasonable especially complainant suppressed material facts about delivery of goods in violation of Custom Rules & Regulation of Russia. We hold accordingly and pass the following order.
ORDER Consumer Complaint stands dismissed.
No order as to costs.
Pronounced on 7th February, 2014.
[HON'ABLE MRS.
Usha S.Thakare] PRESIDING MEMBER [HON'ABLE MR.
Narendra Kawde] MEMBER pgg