State Consumer Disputes Redressal Commission
National Insurance Company Ltd vs R.P. Export Pvt Ltd on 2 January, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/307/2010 DATE OF FILING : 09.06.2010 DATE OF FINAL ORDER: 02.01.2012 APPELLANT : 1. National Insurance Company Limited, 3, Middleton Street, Calcutta- 700 071. RESPONDENTS : 1. R.P. Export Pvt. Limited, 26, Sarat Bose Road, Suit No-14, 1st Floor, Calcutta-700 020. 2. Arte Viva, Handelsgesellschaft M.B.H. Austria. BEFORE HONBLE MEMBER
: Smt. Silpi Majumder.
HONBLE MEMBER : Sri Shankar Coari.
FOR THE APPELLANT : Mr. Srijan Nayek, Mr. S.K. Chakraborty, Advocates.
FOR THE RESPONDENTS: Mr. Prasanta Banerjee, Advocate.
Silpi Majumder, Member This appeal has been directed against the judgment passed by the Ld. District Forum, Kolkata, Unit-I, on 26.03.2010, in the case no-34/2006, whereby the Ld. District Forum allowing the complaint on contest against the OP-1 has directed the OP-1 to pay a sum of Rs.7,04,099/- along with compensation of Rs.20,000/- and litigation cost of Rs.5,000/- to the Complainant within a period of 45 days from the date of communication of the judgment, failing which the total amount of Rs.7,29,099 would carry interest @10% p.a. till full realization.
The brief fact of the case of the Complainant is that it being a supplier/consignor used to deal in export business of cotton bags and allied goods. The OP-2 placed an order for supply of 480 cartoons of processed cotton handbags with string by their invoice no-924/2002 dated 28.06.2002 by sea under Bill of Lading no-X001559 HBG dated 13.07.2002 through Haldia Port to the destination at Austria for Invoice Value of US$ 14,520.00 through their local clearing agent at Kolkata.
Prior to dispatch of 480 cartons of cotton handbags the contents were thoroughly inspected by the Surveyor, Mr. Manash Dev Mallick of Kolkata, who issued number dispatched Survey Report on 15.07.2002 and confirmed that the goods were dispatched in good order and sound condition and moreover, the Customs Appraiser also opened 4 number of cartons prior to the goods were boarded on vessel and and drew a representative sample and sealed the same with CH Seal no-106 and allowed the shipment and confirmed that the goods were dispatched in good order and sound condition.
At the time of dispatch the Complainant obtained Marine Cargo Insurance Policy for sum insured for Rs.7,82,600/- covering risk ICC (A) including war and SRCC as per policy issued by the OP-1 and the premium was also paid accordingly. During 6 days throughout the whole of Europe including Humburg and lots of areas in Austria there were flooding which caused damage to the consignment. Subsequently on detection of the damaged consignment the consignee arranged for inspection of the said consignment immediately and assessed the loss, and accordingly intimated the above to the Complainant and also informed the matter to the OP-1.
The Surveyor detected that the loss occurred due to contact with fresh/flood/rain water and not by sea water. It was also detected by the laboratory test which favoured that the damage was not occurred due to sea water but due to fresh water.
When the claim was submitted by the Complainant to the OP-1 for recovery of the loss, the OP-1 accepted the claim form and processed the same. The Complainant claimed the total value of US$ 15,306.50, i.e. 7,04,099.00.
The OP thereafter replied that the damage was caused due to sea water and they are not liable to pay the claim and by a letter dated 08.09.2005 they informed that the said loss was occurred not within the prescribed time of the insurance policy and accordingly they refused to pay the damage. They also by a letter dated 27.01.2006 informed the Complainant accordingly. The Complainant has alleged that the OP-1 deliberately delayed and dragged the matter to deprive the Complainant has filed this case against the OP-1. No relief has been prayed for against the OP-2 in the petition of complaint. The Complainant has prayed for direction upon the OP-1 to pay a sum of Rs.7,04,099/- along with 12% interest from the date of claim till full payment and compensation of Rs.50,000/- and other reliefs as the Forum may deem fit and proper.
Being aggrieved by the abovementioned judgment the OP-1-Appellant has preferred the present appeal before this Commission contending that as the Complainant informed the OP-1 about the loss and damage of the article, delay arose in respect of inspection of the said article by the Survyor, appointed by the OP-1. It has been mentioned in the grounds of memorandum of appeal that the Ld. Forum below has erred to consider that the Complainant did not have insurable interest over the insured property from Haldia Port to Feldkirch, Austria, therefore the contract of marine insurance under reference was devoid of the basic element. The Ld. Forum has erred to consider that pre-despatched inspection was reportedly held on 09.07.2002 at Maheshtala, while the customs appraisal at the Haldia Port Dock by way of sample checking was over on 08.07.2002. It is also fact that no inspection is possible once customs authorities inspect and seal a container. This clearly established that the pre-despatched inspection report seem to have been agitated by the Complainant was out and out a concocted one, not admissible either in fact or in law. The Insurance Company took decision on the claim after due application of its mind, hence the said decision cannot be said to have taken otherwise than on good faith and the act of the insurer cannot be challenged or questioned as an act of deficiency in service. As there was no deficiency in service in respect of repudiation of the claim of the Complainant, the complaint cannot be considered by the Consumer Forum. The claim of the Complainant has been repudiated by the OP-1 based on the report of the Surveyor. It has been stated by the Appellant that the Ld. Forum has erred in holding that the surveyor confirmed that the container was not damaged and it was in good condition. There was no report about traces on the container to show that it was standing in water when under transportation. Thus loading of the goods into the container in wet condition prior to shipment appeared to be the most probable cause of the damage to the surveyor which was not covered under the policy under reference and there is no encumbrance on the part of the Insurance Company to accept such report. The carrier did not issue any damage certificate for the alleged loss, the container was found intact in destination, so the claim has no foundation and has rightly been repudiated. According to the Appellant the Ld. Forum below has passed the judgment erroneously, which is liable to be set aside and prayer has been made by the Appellant for allowing of the present appeal.
Before the Ld. Forum below it has been stated by the OP-1 in its written version that there is no evidence of damage during the transit for the negligence on the part of the insurer. The Complainant did not take any insurance for shifting of the container from Maheshtalsa to Haldia Port. The OP-2 was supposed to arrange for insurance at its own cost which is confirmed by Freight Payable at Destination endorsement on Bill of Lading itself. During process of claim lack of due care on the part of the Complainant was found. The Complainant on advice by the Buyer in their letter dated 25.03.2003 to arrange insurance in India and subsequently the Complainant forwarded a letter dated 22.10.2003 of its Banker confirming realization of the premium amount from the Buyer in an approved manner. Buyer was arranging insurance at its end for imports from other countries like Turkey, Potugal, China, Hongkong etc whereas the Complainant did not have any insurable interest from Haldia Port to Feldkirch, Austria and accordingly the Complainant had no insurable interest, and so it is not enforceable by common law, and so the Complainant has no claim at all. The Surveyors report shows cotton bags were found wet and moulded and the cartons were wet, the goods had bad smell. The samples of packing materials were subjected to chemical test to conclude that there was no sea water damage as well as no damage to the container. The damage was either caused by loading the goods in wet condition into the container or the container was standing in water and it was coming in from the bottom. So it can be concluded that the container was in wet condition prior to shipment appeared to be the most probable cause of damage, which was not covered under the policy of insurance and the pre-despatched inspection report claimed to be correct by the Complainant is a fabricated one, and an after-thought and totally unreliable and accordingly there is no deficiency in service on the part of the OP-1 and hence the case is liable to be dismissed.
We have carefully perused the entire record and several documents and heard the arguments as advanced by the Ld. Counsel for the parties. It is seen by us that admittedly the OP-2 placed an order for 480 cartons of processed cotton handbags with string by their invoice by sea and during transit overseas it is the allegation of the Complainant that due to contact with fresh/rain/or flood water the goods were damaged and accordingly it sustained huge loss and the goods got damaged but in the opinion of the Complainant not by the sea water. The Complainant informed about the loss and damage to the OP-1. Inspite of processing the claim of the Complainant the OP-1 ultimately repudiated the claim on the ground that the goods were damaged due to sea water and there is no deficiency in service on the part of the OP-1 and hence the Insurance Company is not liable to pay any damage or any amount towards compensation to the Complainant. The Marine Cargo Insurance Policy issued by the OP-1 shows that 480 number of cartons containing cotton printed bags were booked for journey from Haldia to Feldkrich, Austria by the Complainant as well as in the event of loss or damage which may result in claim under this insurance , immediate notice must be given to Transpack. We have also noticed the annexure-6 dated 27.02.2003 addressed to the OP-1 by the OP-2 wherein it has been stated that this is to inform you that we have debited the full invoice value and hence we request you to arrange settlement and payment of the claim in favour of M/s. R.P.Export (P) Limited and their discharge be accepted as full and final and they are fully competent and authorized by us. It is also noticed by us that the port of loading is Haldia and the port of discharge is Humburg, Austria in respect of 480 cartons containing 1,20,000 pieces.
For the abovementioned loss and damage the Complainant lodged a claim by submitting a claim form claiming US$15,306.50.
The Ld. Counsel for the Appellant has submitted before this Commission by filing a judgment passed by the Honble Supreme Court, reported in 2010 CTJ 1109 (Supreme Court) (CP), wherein Their Lordships have held that seller having no insurable interest in the goods, the insurance company was not to reimburse the loss arising from mis-delivery of the carton, that in view of the aforementioned judgment the present Complainant is also not entitled to get any relief from the Insurance Company due to damage of their article as being a seller it has no insurable interest. But in this respect we are of the view that in the instant complaint the Complainant being the insured has certainly insurable interest. So the relied judgment is not applicable in the present case. The Ld. Counsel for the Appellant has also relied on another judgment passed by the Honble National Commission, reported in vol-III (2006) CPJ 289 (NC) in respect of providing information to the Insurance Company about the damage of the goods after a long period. In the said judgment the Honble National Commission has held that Insurance- delay in intimating claim to insurer-incident of loss reported after 58 days- incumbent upon the insured to report immediately of any loss to insurer-failure of the Complainant to do so resulted in Surveyor not being able to ascertain cause of loss- repudiation of claim by the OP justified. But in the instant case there is no iota of evidence on behalf of the OP-1 that there was delay in intimating the incident of damage by the Complainant to the OP-1. So in this respect also the contention of the Appellant cannot be accepted and the aforementioned judgment also not applicable in the instant case.
It is the main allegation of the Complainant that the goods were damaged and loss was incurred due to contact with flood water and not due to sea water, which is also evident from the surveyors report. In the letter dated 16.12.2005 the Complainant wrote to the OP-1 on the basis of the observation of the Surveyor that it is evident that the insured cargo was damaged due to contact with flood/fresh/rain water during transit and it is covered under the terms and conditions of the policy issued. It has been also stated in the said letter that during those days there were floodings all over Europe (also Hamburg and lots of areas in Austria) and the container was standing somewhere in Hamburg or later on in water during this flood.
Admittedly 480 cartons containing 1,20,000 pieces of cotton bags with strings were put to shipment under bill of lading on 13.07.2002 through Haldia Port to Austria and at that time the goods were found not in wet condition and it was properly checked by the concerned authorities. At the time of advancing argument before this Commission the Ld. Counsel for the Appellant has submitted that the Complainant has never challenged the repudiation of the claim in the petition of complaint. In this context we are of the opinion that as the OP-1 has repudiated the claim of the Complainant, it has preferred the petition of Complaint or approached before the Court of Law for its redressal. Therefore through filing of this complaint the Complainant has certainly challenged the repudiation letter of the OP-1.
It is an admitted fact that the Complainant-insured paid the requisite premium and the OP-1 based on the Surveyors report has repudiated the claim of the Complainant. It is also an admitted fact that the report of the surveyor shall carry weightage in respect of settlement of a claim and moreover legally the Surveyors report cannot brushed aside. But in the instant complaint/case it appears from the surveyors report that they are not sure how the goods were damaged as it is stated it appears damage was caused either in lading the container with goods in wet condition or by the container standing in fresh water. It is seen by us that there is no evidence that the goods were put for shipment in wet condition as from the pre-despatched survey report dated 09.07.2002 reflects that external condition of the package at the time of survey was in O.K. Annexure-F (P-20) shows that the carton did not come into contact with sea water. The report of the Transpack shows under column-3 cause of damage that we were informed about the incident approx 3 weeks after delivery. We were not able to start own investigation about the cause of damage. In respect of such remark and observation of the surveyor it can easily be said that the surveyor was not in a position to inspect to damaged goods and as they could not perform their duties the Insurance Company cannot repudiate the claim of the Complainant based on such incomplete report. Moreover why the surveyor was informed after three weeks from the date of delivery the OP-1 has failed to give any satisfactory reply. Though the Appellant-OP-1 has mentioned that due to delay in providing information by the Complainant, but in that respect the OP-1 has failed to adduce any cogent evidence in support of its contention. In the report of the Transpack it has been mentioned under the heading of cause of damage that the set of photo prints we received (attached to this report) are showing the consignment was wet and mouldy after delivery but not in an extent that it is clear the water came from outside the container. Such remark proves that at the time of shipment the goods were not in wet condition. It has been also mentioned by the said surveyor that this type of packing is usual for this type of goods , Hence going by the foregoing discussion we are of the opinion that the Ld. Forum below has passed a very well-reasoned judgment after perusing the pros and cons of the facts and circumstances of the case in which we are not inclined to interfere. Therefore, the appeal be dismissed on contest without any cost and the judgment of the Ld. Forum below is hereby affirmed. With the abovementioned observation the appeal be disposed of accordingly.
Shankar Coari Silpi Majumder (Member) (Member)