National Consumer Disputes Redressal
. M/S. Glass Palace, vs M/S. Tata Aig General Insurance Company ... on 21 August, 2012
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 182 OF 2011
(Against the order dated 5.4.2011 in Complaint
No.06 of 2010
of the State
Commission, Chandigarh, UT)
1. M/s. Glass Palace,
SCO 43, Sector -7C, Madhya Marg.
Chandigarh
Through its Proprietor Shri Ajay Gupta
2. Shri Ajay
Gupta,
Proprietor of M/s. Glass Palace
SCO 43, Sector -7C, Madhya Marg.
Chandigarh. ....... Appellants
Vs.
1. M/s. Tata AIG General Insurance Company
Ltd.
2nd Floor, SCO No. 232,
Sector-34A,
Chandigarh.-
160 034 (India)
Through its Senior
Branch Manager/Branch Head.
2. M/s. Tata AIG General Insurance Company
Ltd.
Ahura
Centre, 4th floor,
82 Mahakali
Caves Road,
Andheri (Eas),
Mumbai
Through its Senior Manager (Claims) .Respondents
BEFORE:
HON'BLE
MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HONBLE MR. VINAY KUMAR, MEMBER
For the
Appellants : Mr. I.M. Suri,
Advocate with
Mr.S.M. Suri and Mr. Vikas Sagar,
Advocates
For the Respondents : Mrs. Anjali Bansall,
Advocate
Pronounced on 21st August,
2012
ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER Vide impugned order dated 5.4.2011, passed by State Consumer Disputes Redressal Commission, Chandigarh (for short as State Commission), complaint filed by appellants/complainants against respondents/opposite parties, was dismissed with litigation costs of Rs.10,000/-.
2. Brief facts are that appellant no.1, a proprietorship firm-owned by appellant no.2 insured certain goods, that is wooden and brass furniture under Marine Policy Cover Note dated 6.2.2009 and amended Marine Cargo Endorsement dated 17.3.2009, after paying premium of Rs.4,586/-, vide cheque No.034583 dated 6.2.2009. The total sum insured was Rs.45,85,000/-. As per purchase order dated 3.1.2009 and Invoice dated 6.2.2009, consignment was to be sent to Canada Warehouse from Chandigarh Warehouse via Transshipment Port Colombo (Sri Lanka) by sea/rail/road. Before dispatching the consignment, appellants applied for re-shipment and load survey vide letter dated 4.2.2009. Declaration to the custom authority was also given on 9.2.2009, vide FORM SDF. Appellants also obtained Certificate of Origin from Export Inspection Council, vide Certificate dated 9.2.2009. The Certificate of weighment and measurement, Stuffing Container Survey Report dated 6.3.2009 and Fumigation Certificate dated 7.3.2009 were also obtained by the appellants. On dispatch of shipment, respondents were duly intimated, vide letter dated 14.3.2009 and Banker of appellants was also intimated, vide letter dated 16.3.2009. Copy of Pre-Inspection Survey dated 16.3.2009, was also supplied to the respondents by the appellants. It is alleged that unfortunately when cargo arrived in Toranto-Canada, it was found by the consignee that the same did not belong to him and on investigation, the same was found to be interchanged in transit at Colombo with some other consignment. As per appellants, consignee did not take the delivery of the wrong consignment and immediately informed the consignor as well as the Insurance Company. A claim was lodged by consignee with the shipping line vide letter dated 12.5.2009 and respondents were also informed about the non delivery of the consignment vide letter of the same date. Ultimately, after submitting all the necessary documents, respondents repudiated the claim of the appellants, vide letter dated 29.12.2009. Thereafter, appellants served a legal notice dated 9.1.2010, upon the respondents and finally, filed complaint seeking direction to release its insurance claim of $91,700 (cost + 10%) (Rs.44,38,280 @48.40 prevailing rate); interest @18% per annum from the date of loss; Rs.5 Lacs as compensation for mental and physical harassment and Rs.50,000/- as litigation expenses..
3. Respondents in their written statement took certain preliminary objections stating that report received from State Bank of Patiala clearly shows that the amount of invoice was paid to the complainant through wire transfer. Once the amount stands paid, complainant is left with no locus standi to file the present case.
The complainant is trying to enrich himself by filing the present false claim. It is further stated that the complainant is trying to play fraud upon the Insurance Company. Other objection taken is that complainant has not made Waterway Container Lines Pte. Ltd. through which the consignment was sent and allegedly misplaced, as a party to the complaint. Hence, complaint is liable to be dismissed for non joinder of necessary party.
4. On merits, it is admitted that insurance policy was issued on the principle of utmost good faith, subject to the terms and conditions of the policy that risk covered was to the tune of Rs.45.85 Lacs and it was specified in the insurance policy that underwriter had taken the risk w.e.f. 6.2.2009. It is next submitted that procedure in the event of loss or damage to be followed and risk covered was specified in the insurance policy. It is also pleaded that as per purchase order dated 3.1.2009, total value of the order was to be USD $83,350 with delivery date as 28.2.2009, but from very beginning the consigner had an intention to route the cargo through Colombo (for transshipment) as is clear from mail dated 4.2.2009. It is asserted that as per Annexure R-2 i.e. computer printout obtained from Indian Customs EDI System, the CHA for consignment is R. K. Khurana and it is beyond normal understanding as to how the consignor could get the BL No. of Waterway Container Lines Pte Ltd. on 6.2.2009 when the same was reportedly issued after a month on 6.3.2009. Further, invoice-cum-packing list document is a concocted document and purchase order looks fake at the face of it for the simple reason that articles mentioned therein lack any description to their quality or catalogue number. As regards the address of Waterway Container Lines Pte Ltd., LIG 219, Sarita Vihar, New Delhi, it is submitted that there is no such company running at this address and the given address of Waterway Container Lines Pte. Ltd. is a residential flat.
5. It is further alleged that Waterway Container Lines Pte Ltd. even did not have their own carting area and they were used by the complainants just as a face-off to disguise the respondents showing that the goods were being sent through them. It is next asserted that as per Investigators report, consignments of three different firms managed by same set of persons were put into the same container and as a preplanning, the container was booked for Colombo where manipulation leading to the alleged swapping could be done. Further, Fumigation Certificate is a concocted document as it mention the date of fumigation as 6.3.2009 with its duration as 24 hours whereas as per stuffing sheet of Central Warehousing Corporation, the container was stuffed at 18.06 hours on 6.3.2009. It is next asserted that bill of lading issued by Waterway Container Lines Pte Ltd. clearly shows that the same was shipped on board on 20.3.2009 after the due date of delivery of goods i.e. 28.2.2009, which shows the fraud been played by the complainant on respondents by making a false claim. It is also stated that letter dated 12.5.2009, was self created document by the complainant because the address of Waterway Container Lines Pte Ltd. is not mentioned on this letter. It is also alleged that one non-delivery certificate was provided by Waterway Container Lines Pte. Ltd. to Beverley Howard Inc. on 10.6.2009 and on this letter also, there was no address of Waterway Container Lines Pte. Ltd. Capt. Mike Talwar, Marine Surveyor of International Marine Surveyors Ltd. also gave his report dated 21.07.2009. The matter was also handed over to one Anand Wijesinghe, Chartered Insurance Practitioner, Sri Lanka for investigation who vide his e-mail dated 4.8.2009 stated that there was fraud being played upon the respondents. Further, copy of report received from State Bank of Patiala shows that the amount of invoice was paid to the complainant through wire transfer and once the said amount stands paid, complainant is left with no locus standi to file the present complaint. Regarding non supply of documents to the complainant under R.T.I Act 2005, it is stated that the same were refused as provisions of RTI Act are not applicable to the respondents. Further, report of Truth Lab shows that e-mails of Waterway Containers Lines Pte. Ltd., Singapore and Beverley Howard Inc. Canada, which were supposed to be in their respective countries have all originated from I.P. Address of Airtel Broadband Chandigarh and the e-mails sent from IP Address i.e. I.P. No.122173.6.24, which belonged to the same owner and same computer machine in Chandigarh. It is also pleaded that all the e-mails being created are fake as there is no such company by the name of Waterway Containers Lines Pte. Ltd., Singapore, Beverley Howard Inc. Canada registered in Singapore and Canada respectively and no e-mails were sent from Singapore and Canada but the same were sent from one single person sitting at Chandigarh. This clearly shows that a fraud is being played by the complainant to get fraudulent claim as whole transaction was sham. Finally, the claim was repudiated vide their letter dated 29.12.2009 by passing a speaking order and giving detailed reasons. Pleading no deficiency in service on their part, respondents prayed for dismissal of the complaint.
6. In rejoinder, appellants nowhere denies the following averment made by the respondents in its written statement that, The amount of invoice was paid to the complainant through wire transfer
7. Similarly, this allegation made by respondents that no office address of Waterway Containers Lines Pte. Ltd. has been found at the given address, has not been specifically controverted by the appellants.
8. State Commission vide impugned order, dismissed the complaint.
9. Aggrieved by the order of State Commission, appellants have filed this appeal. We have heard learned counsel for the parties and gone through the record.
10. It has been argued by learned counsel for the appellants that consignment was booked from Chandigarh to Canada and information in this regard was given to the respondents. Accordingly, respondents insured the goods by specifically mentioning about the transshipment port at Colombo in Sri Lanka.
It is also contended that none of the documents relied upon by the appellants regarding transaction was found to be forged or fabricated. The repudiation of insurance claim is against the contractual obligation cast upon the respondents to reimburse the loss. Another contention is that the goods were properly packed and thereafter were loaded in container and during its transition period the goods were de-loaded at Colombo and put in a fresh container and then sent to Canada. This all has taken place at Colombo and appellants had at no stage having any control over the goods when these left India, the respondents have specifically admitted that it was the case of loss due to inter-change of consignment in Sri Lanka. Other contention is that shipping line is not a necessary party as per terms and conditions of the policy. Appellants had taken all due diligence and through M/s. Wilson Surveyors and Adjusters Pvt. Ltd., got conducted pre inspection at Delhi and all the packaging were found in sound condition. Fumigation of the consignment was also done and certificate to this effect was taken on 7.3.2009. The appellants had thus completed all the necessary formalities. State Commission has wrongly relied upon the investigation report dated 4.8.2009 given by Mr. Nanda Kumar which has not been proved. Under these circumstances, impugned order is liable to be set aside.
11. On the other hand, it has been contended by learned counsel for the respondents that State Commission has gone in great detail with regard to the payment received earlier by the appellants and the fraud committed by the appellants as well as non existence of firm Waterway Container Lines Pte Ltd. Thus, there is no infirmity or ambiguity in the impugned order.
12. Main thrust of appellants is that goods were inter-changed at Colombo and as such original consignment did not reach the consignee.
13. We must appreciate that State Commission has taken great pain in dealing with the present case and has thoroughly examined all the documents and evidence led by the parties and had also given head-wise finding on each issue.
14. With regard to the payment already received by appellants, State Commission observed;
It is also not disputed that the consignee M/s.
Beverley Howard Inc. has already made the payment for the consignment to the complainant.
State Commission further observed;
When the complainant served a notice (Annexure C-42), it was admitted through para 6 of the same that the payment has been made from Canadian Bank to Indian Bank as per the contract of payment. The ld. Counsel for the complainant argued that the amount has been debited to their account vide Annexure C-43 and, therefore, the total amount has fallen due. In fact Annexure C-43 is purported to be a debit note and not the payment of the amount by the complainant to M/s Beverley Howard Inc. The ld. Counsel for the OP has argued that even the authenticity of Annexure C-43 is doubtful and it appears to have been created by the complainant because the affidavit of none from M/s Beverley Howard Inc. has been produced to prove it nor any evidence is produced to prove that the amount was sent back by the complainant to the said company. Otherwise also, it is not the case of the complainant if they returned the amount to the said bank or the consignee on receipt of the debit note. Admittedly, no legal proceedings have been initiated against the complainant to recover the said amount. In view of these facts, when the complainant has already received the value of the invoice, they cannot now file this complaint to get further enrichment by claiming the amount from the insurance company.
15. Regarding existence of Waterway Container Lines Pte.. Ltd. and not impleading it as party, State Commission has held;
It emerges from the facts enumerated above, that the entire problem arose due to the fault of the Waterway Container Lines Pte Ltd., because the goods of other consignees are alleged to have been stuffed in the same container in which the goods of the complainant were stuffed and the goods of the complainant are alleged to have been removed at Colombo by the other consignee A. Phillips instead of taking delivery of his own goods. The complainant served a notice (Annexure C-42) in para 11 of which it was mentioned that the consignments were got interchanged during transit in Colombo. The Marks on the goods should have been specifically and correctly mentioned so as to avoid the goods being taken out of the container by unauthorised person at Colombo. When a questionnaire was sent to the complainant, enquiring about this fact (page 84 of the complaint) in reply to question No.2 the complainant alleged that it is upon the shipping line how they load the container. The notice, copy of which is Annexure R-9 (at page 221 of the reply) also held the Waterway Container Lines Pte Ltd. responsible for the loss caused to the consignee and lodged their claim on them. The consignee wrote an email Annexure R-12 (Colly.) dated 13.5.2009 (at page 235 of the reply) to the Waterway Container Lines Pte Ltd. informing them that they were responsible for the mishandling of their shipment and a notice has been issued to them. Again, through another email, dated 13.5.2009 [Annexure R-12 (colly.) page 233 of the reply] the consignee informed them that they did not look to be a professional company because this type of error was not expected from their kind of a big company. The waterwaycontainer.com vide their email dated 14.5.2009 [Annexure R-12 (colly.) at page 231 of the reply] apologized for the inconvenience and for mishandling of the cargo at Colombo by their agent. They again apologized on 15.5.2009 through email [Annexure R-12 (Colly.) at page 225 and Annexure R-13 (colly.) at page 243 of the reply] for mishandling of the cargo. In this manner, it was clear that the entire fault was that of the shipping line, which caused this alleged swapping of the goods. The shipping line is the agent of the complainant. Needless to mention that the shipping company Waterway Container Lines Pte Ltd. itself was bound to render service to the complainant and if they caused any damage or loss to the goods, whether the goods were insured or not, the shipping company is primarily responsible to compensate the complainant for the loss caused to them. The complainant has not joined the shipping line as party to this complaint, which shows that the complainant owns the defaults committed by their agent i.e. the shipping line and does not have any grievance against them. In such a situation, where the goods are damaged or lost by the shipping line, which is working for the complainant, it would be necessary party and in its absence the complainant is not entitled to compensation from the insurance company. Needless to mention that the insured has to act intelligently and with due care and caution and would be indemnified by the insurance company if, without any fault on his part, he suffers any damage. In other words, if the insured himself is responsible for the loss, he cannot ask the insurance company to indemnify him therefor. A person who throws his goods in the sea or damages the same with his hands or through his agent, cannot turn back and ask the insurance company to pay the claim for the said damage or loss. The non joining of the shipping company, therefore, assumes importance not only from the point of view that the shipping company is the service provider of the complainant in transporting the goods, but from this point also that the complainant has condoned the faults of the shipping company by exonerating them of this default and has rather tried to safeguard the interests of the shipping company by not even joining them as a party to this complaint. If the complainant does not claim any compensation from their service provider i.e. the shipping company, he would forfeit his right to claim the same from the insurance company, which for him, appears to be an easy target to get the money.
16. Next bone of contention between the parties is as to whether Waterway Container Lines Pte Ltd.
is a genuine company or a false one. State Commission in this regard has made following observations;
The search on the internet revealed (Annexure R-26 at page 317-A of reply) that there is no such company incorporated in Singapore. The Bill of Lading was issued on 6.3.2009 but it was mentioned thereon that the freight is shipped on board on 20.3.2009 which shows that it was a made up document; otherwise they would not have mentioned 20.3.2009 on the document prepared on 6.3.2009. The address of Waterway Container Lines Pte. Ltd. finds mention in Annexure C-25 which is a letter sent by the complainant to them. Mahesh Gotecha conducted an enquiry and submitted a report on 24.8.2009 through email [Annexure C-35 (colly.) at page 84 of the complaint and Annexure R-20 at page 281-282 of the reply] in which the complainant was intimated vide para 4 that when a visit was made to Waterway Containers office in Delhi, no such office was found at the address which was, in fact, a residence and the lady at the address denied the existence of any such firm at the place. The complainants did not adduce any evidence to prove that Waterway Containers exists anywhere or have the office at the address given by them but said that goods were given by them to their agents who in turn got this shipment booked through Waterways. They advised the OP to write a mail to them and get this clarification. Their explanation was that they may have changed their address. The complainants were informed through email dated 9.12.2009 [Annexure C-40 (colly.) at page 98-99 of the complaint] that the Waterway Container Lines Pte. Ltd. were not traceable at their available address and did not respond to their request for enquiry in spite of their email assurance to cooperate, upon which a similar reply was given by [email protected] to [email protected] through email [Annexure C-40 (Colly.)] dated 10.12.2009. This fact was also confirmed through the investigation report (Annexure R-4) submitted by Satyender Pandey who has submitted his affidavit in support of his contentions. According to him, another address of Waterway Container Pte. Ltd., K 185/15, 3rd Floor, Surya Plaza, New Friends Colony, New Delhi 110065 also came to their notice but when visited, it was found that the Waterways have no office at the said address also. The complainant has not given any evidence to suggest if such a company existed and what is its present address. It is, however, intriguing to note that when Beverley Howard Inc. issued a notice Annexure R-9 (regarding the loss of cargo) at the address:
Waterway Container Lines Pte Ltd., New Delhi (India).
The letter reaches the addressee! Needless to mention that address is totally incomplete and the letter could not have reached the addressee in normal circumstances, unless the addressee was sitting by the side of the person who was writing the letter. The investigations revealed that it was actually happening like this and both of them were operating from not only the business premises of the complainant but from the computer machine of the complainant also. Waterway Container Lines Pte. Ltd. responded to the letter as expected. The contention of the complainant is that in fact the full address of Waterway Container Lines Pte. Ltd. was written on the envelope, which on the one hand shows that the complainant was also present there when this letter was despatched and could notice that the full address was written on the letter but on the other hand, they did not disclose the said address to the OP or before this Commission. The waterwaycontainer.com responded vide email dated 15.5.2009 (Annexure R-12) and asked for the details so that non delivery certificate is issued. The same was subsequently issued, which is Annexure C-21. Interestingly, no address of their office has been mentioned by Waterway Container Lines Pte. Ltd. even on this letter Annexure C-21 as to from where it has originated. It is an old saying that men may tell lies but the circumstances do not. The circumstantial evidence mentioned above originating from different players in the fraudulent drama discloses their complicity that they were aiding and abetting each other to achieve their object of duping the insurance company of a hefty amount of Rs.45 lacs.
17. Next question which arises for consideration is as to why the transshipment was through Colombo. On this issue, State Commission has held;
If the goods were to be taken from Mumbai to Canada, it is not understood as to why the complainant intended to take the same to Colombo and why else the trans-shipment port was sought to be at Colombo. Even before the invoice (Annexure C-5) was issued on 6.2.2009, the complainant had in mind the trans-shipment at Colombo and informed Anjna Vermani about it vide his emails (Annexure C-32 & C-33) dated 4.2.2009. It, therefore, cannot be said if cargo was mis-routed, in fact the complainants wanted it to route via Colombo. In Annexure C-11, which was issued on 6.3.2009, the complainant has mentioned POD as Colombo instead of Toronto. The complainant was, therefore, intending from the very beginning to take the shipment to Colombo where it could be possible to de-load the consignment under the garb of mis-description and after swapping the goods, to take the remaining goods to Canada. It was for this purpose in view that they changed the shipping company. In Annexure C-11, Trans Asian Shipping Services (P) Ltd. had booked the goods on behalf of Kutch Shipp. AG.P. Ltd. as mentioned therein. The ld. Counsel argued that since the said shipping line may not have been willing to allow the complainant to remove the goods at Colombo, Kutch Shipping AG.P. Ltd. was replaced with Waterway Container Lines Pte Ltd. as per Annexure C-14. In fact even on 6.3.2009, the complainant had tied up with Waterway Container Lines Pte. Ltd., as is clear from Annexure C-5 and Annexure C-18 that the trans-shipment would be at Colombo. The complainant, therefore, wanted its trans-shipment at Colombo by choosing a shipping line having a route via Colombo so as to remove the goods there, instead of taking the goods directly to Canada. The complainant also has not been able to explain as to why some other goods of two different companies, meant for different destinations, were put in the said container and why a separate container exclusively for these goods was not hired by him if he did not want the swapping of the goods. It all shows that the complainants wanted to defraud the OP and they were not fair in their dealings.
18. Coming to the next issue as to which goods were sent to Canada, State Commission held;
In order to prove that the goods covered by invoice (Annexure C-5) and the insurance policy (Annexure C-1 & C-2) were put in transit, the ld. Counsel for the complainant has referred to the survey report (Annexure C-17) given by Wilson Surveyors and Adjusters Pvt. Ltd. and argued that the said goods were stuffed in the container. There is no merit in this contention. A perusal of the report shows that the contents of the wooden crates were not shown to the surveyor and they had inspected the consignment only from outside. It was specifically mentioned by the surveyors in their report as follows :-
The contents of the crates having not inspected, this office assumes no responsibility for variation in quality or other characteristic of the product supplied under conditions over which this office has no control. In no event shall this office be liable to collateral, special or consequential damage.
Needless to mention that the complainant did not associate any representative of the Ops at the time of preparing the crates, giving them specific marks, putting them in the container or at the time of stuffing.
19. Next point which arise for consideration is as to whether consignee Beverley Howard Inc. and Jassy are fake. In this regard, State Commission observed;
The ld. Counsel for the OP has also argued that even the consignee and its proprietor Jassy, are fake persons. The Beverley Howard Inc. is registered in Canada. It has placed a supply order for importing furniture but did not produce any import licence. When the consignment reached Toronto on 11.5.2009, he did not deposit any custom duty to take delivery of the same. He did not even go to take delivery and rather knew before hand that it was not the same consignment. On 12.5.2009, the consignee wrote an email (Annexure R-10 page 223, Annexure R-12 page 229 of the reply) sending pictures of their cargo to confirm if the cargo with them was the same. They just wanted a reply in the negative, and accordingly a reply was received from nitu.cator @ freight systems.com that this was not what they had. The consignee, therefore, wrote on 14.5.2009 [Annexure R-10 (Colly.) at page 222-223 of the reply] that the cargo does not belong to them and (he) cannot take delivery of the stuff they had and demanded a non delivery certificate to act against the shipper. There is no document on file to suggest if the consignee tried to inspect the cargo or to see whether the same belonged to them or not. In the entire correspondence, one Jassy has been writing emails on behalf of the consignee. When the emails were examined by Truth Foundation they submitted their report (Annexure R-31) and it was found that these emails, written by the consignee, originated not only from Chandigarh but from the same machine from which the complainant was giving emails. It, therefore, shows that the consignee was fake, none else but the complainant, and was operating from the premises of the complainant and not from Canada. The complainant did not deny it nor adduced any evidence to rebut this fact but in their rejoinder gave an interesting explanation that during the starting of business transactions, till the claim was repudiated by the insurance company, representative of the consignee as well as the person from shipping line used to be called or they visited independently at their own in concern with the claim pending with the insurance company. According to the complainant, there was nothing abnormal in adopting such practice and if the same computer has been used by the representative of third party at some time, it does not create any doubt that there is any fraud played against the insurance company. The ld. Counsel for the complainant has also argued in tune with this reply. However, it smacks of fraud because a person, who is supposed to be in Canada and was to receive the consignment, could not have been sitting in the business premises of the complainant to allege that the consignment was not his. It shows the connivance of the consignee with the consignor. Moreover, the person corresponding on behalf of the consignor never told his full name, but always referred himself to be Jassy. The ld. Counsel for the OP has argued that in fact his name is Manpreet Jassal who was involved alongwith the complainant in an earlier case of fraud whereby the silk carpets were similarly swapped with curtain rolls and the claim of Rs.46 lacs was obtained from the insurance company. This fact is mentioned in the investigation report, Annexure R-4 (page 111 of the reply) submitted by the OP.
20. Coming to the issue as to whether Mohan Forging Trading P. Ltd. (in short MFT) is fake. State Commission in this regard held;
As regards the antecedents of another player in this drama, MFT, whose goods were loaded allegedly in the same container in which the goods of the complainant were loaded, it also appears to be a bogus company.
When R. Nanda Kumar was appointed to verify their address, he submitted his report (Annexure R-6) in which it was mentioned that Mohan Foreign Trading P Ltd. is not operating at No.57, 1st Lane, Pantheon Road, Egmore, Chennai. They were said to have moved out of the premises 4 years back and the premises had already been sealed by some Govt. authority. He submitted the photographs alongwith their report alleging that they were chronic financial defaulters and had cheated banks, financial institutions and individuals. Satyendra Pandey also in his report (Annexure R-27) mentioned that MFT does not exist at the address of Chennai, appearing on the Bill of Lading. At one time, Gotecha Mahesh also investigated this claim and submitted a report, Annexure C-35, (page 77 of the complaint). According to him, the consignees contact details in Sri Lanka is incorrect and hence (he was) unable to trace the consignee. R. Nanda Kumar came to know that the MFT company had shifted to T. Nagar, Chennai. When he went there, he found the name board of R.V. Steels Pvt. Ltd. in bold letters and MFT company in small letters. It was found that one Suresh is the person associated with the company and sits there. They, however, did not change the address and it appeared to be a bogus company.
21. Other issue is as to A-Phillips consignee of MFT is also a fake person. State Commission in this regard has held;
The goods booked by MFT were meant for A. Phillips, 265/19, Gale Road, Colombo, Sri Lanka. Instead of taking delivery of his own goods, the goods allegedly booked by the complainant for Canada were delivered to him. A. Phillips again is a ghost. Waterway Container.com itself wrote an email, Annexure R-12 (page 225 of the reply submitted by the OP) admitting that A.Phillips could not be contacted on the address given to them. Satyendra Pandey was the surveyor who, on 1.10.2009, sent an email (Annexure R-27) through which he intimated that he was unable to locate the consignee of MFT. Varun Gupta of the complainants had written email dated 29.6.2009 (Annexure C-35 at page 77-78 of complaint) to Gotecha, Mahesh in which he referred to the talk he had with Mrs. Vermani who told him that the person who had taken wrong delivery (i.e. A. Phillips) was not traceable. This fact was intimated by the OP to the complainant and Beverley Howard Inc. through their letter, Annexure C-41, in para 8 of which it was intimated that the MFT were no more located at the same address and even the consignee A. Phillips was untraceable in Sri Lanka. Water Container.com through its email dated 15.5.2009 [Annexure R-13 (colly.) at page 243 of the reply) admitted this fact that A. Phillps could not be contacted on the address given to them and they apologised for the mishandling of the cargo. Another email [Annexure R-13 (Colly.) at page 246 of the reply) from Barrientos Maria to Gotecha, Mahesh also records that the entire cargo was erroneously released to/picked by somebody else during trans-shipment in Colombo; that efforts of the shipping line to trace the cargo and the receiver turned out negative. When Wijesinghe was appointed as investigator, he on 2.9.2009 submitted a report, Annexure R-23, (at page 310 of the reply) after checking house to house on Galle Road from Colepatty to Wellawatte in search of A. Phillip of 265/19, Galle Rd., Colombo. He did not find any A. Phillips and, therefore, intimated that it was a case of fraud and fraud investigations cannot be done in a hurry. His assessment was that fraudsters would press relentlessly the insurance company so that the investigations are either abandoned or curtailed resulting in innocent insured having to pay the fraudulent claims. The complainant and the consignee actually behaved in this manner pressing the OPs to settle their claim immediately. It all shows that MFT had a bogus consignment in the same container in which the consignment of the complainant was allegedly put so that some fake person takes delivery of the allegedly booked consignment in Colombo to the detriment of the OP.
22. Finally, State Commission in its impugned order concluded as under;
A perusal of the above discussion shows that the complainant by joining hands with the consignee, the shipping company and others, committed a fraud pretending to have transported the goods to Canada, when actually there is no proof that the insured goods were put in the containers by them. They purposely chose Colombo as trans-shipment port when the goods could easily be sent directly from Mumbai to Canada. The complainant chose container of a larger size with a view that the goods of two other companies, including its sister concern, were put in the same, making it possible for the agents of the complainant to de-ship the goods at Colombo for which a fake person namely A. Phillips was introduced to take delivery, who was later not traceable. The company, Waterway Container Lines Pte Ltd. is also of doubtful origin and has been exonerated by the complainants by not joining it as a party. The entire case smacks of fraud with the object of cheating the insurance company by claiming the insurance amount from them. In fact, it appears to be fit case for registering a criminal case of fraud and fabrication of documents against the complainants. We do not find any merit in this complaint and the same is accordingly dismissed with litigation costs of Rs.10,000/-.
23. After going through the entire record as well as the impugned order, we find no reason to disagree with the detailed reasoning given by the State Commission.
24. We may further add that as per purchase order (Page no.55 of the paper book) delivery of the goods was to be made before 28th February, 2009.
However, as per bill of lading (Page no.151 of the paper book) dated 6/3/2009 issued at Delhi, the goods were shipped only on 20.3.2009. There is no explanation from the appellants as to why goods were despatched after three weeks from the date of delivery. Moreover, bill of lading has been issued by Waterway Container Lines Pte. Ltd. the shipping company in this case, but surprisingly it does not bear address of this company on this bill which corroborates the findings of the State Commission that it is a non-existence company.
25. Lastly, waterway Container Lines Pte Ltd. has issued a Non Delivery Certificate in this case (Page no.77 of the paper book) which is reproduced as under;
Dated : June 10, 2009 NON DELIVERY CERTIFICATE To, Beverley Howard Inc, 26, North Face Cres., Brampton, ON, L6R 2Y2 (Canada) Our HBL No. WATDELYTO000016 dated 06/03/2009 Dear Sir, With reference to your Claim on us for the non delivery of your shipment shipped through us under our above reference. We are sorry to intimate that your Cargo could not be recovered in spite of our best efforts. We shall not be able to deliver your Cargo as it has been misdelivered during transit. We hope that you understand that the loss has occurred for the reason beyond our control.
We regret for the inconvenience being caused.
Best Regards, For WATERWAY CONTAINERS LINES PTE LTD., sd/-
(JACK) Branch Manager
26. This certificate nowhere states as to how and to whom and at which place, the cargo has been misdelivered during transit. Thus, Waterway Container Lines Pte Ltd. was the primary and best evidence for the appellants to prove their case and it was a necessary party in this case.
However, for reasons best known to the appellants they have chosen not to implead this shipping company as a party in these proceedings. Hence, under these circumstances inference has to be drawn against the appellants for withholding the primary and the best evidence.
27. Thus, looking from any angle we do not find any illegality or infirmity in the impugned order passed by the State Commission, which rightly dismissed the complaint of the appellants. Present appeal being absolutely bogus and frivolous, is hereby dismissed with costs of Rs.10,000/-
28. Appellants are directed to deposit the costs by way of demand draft for the sum of Rs.10,000/- in the name of Consumer Legal Aid Account within four weeks from today.
29. In case, the cost is not deposited within the prescribed period, appellants shall be liable to pay interest @ 9% p.a., till realization.
30. List on 5.10.2012 for compliance.
....J (V.B. GUPTA) (PRESIDING MEMBER) ....
(VINAY KUMAR) (MEMBER) Sg.