State Consumer Disputes Redressal Commission
Bio-Med Health Care Products Private ... vs Reliance General Insurance Company ... on 19 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No.15 of 2008 Date of Institution: 10.11.2008 Date of Decision: 19.11.2012 Bio-Med Health Care Products Private Limited, 30 DLF, Industrial Estate No.1, Faridabad-121002, Haryana ( India) through its Director Sh. J.C. Arora. Complainant Versus Reliance General Insurance Company Ltd. Near Maharana Partap Chowk, Gurgaon-121001 (Haryana) Opposite Party BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Shiv Kumar, Advocate for complainant. Shri P.M. Goyal, Advocate for respondent. O R D E R
Justice R.S. Madan, President:
Complainant- Bio-Med Health Care Products Private Limited is dealing in the export of Health Care Products. The Opposite Party is dealing in the business of General Insurance. The complainant got insured their goods (medical disposal items for different sizes) for export from Faridabad to anywhere in the world for a sum of Rs.10,00,00,000/- (Rupees Ten crores only) w.e.f. 15.05.2007 to 14.05.2008 vide Marine Open Export Policy dated 15th May, 2007 to cover their goods by shipment through sea. The complainant sent the goods (Medical disposal items of different sizes) worth Rs.31,26,398/- )US$ 70351) to Poland through shipment by sea from Mumbai Port for Hambury Port Warsaw Poland in 20 containers vide invoice No.1483 dated 20.06.2007 for which the opposite party had issued the Marine Insurance Certificate on 26.6.2007.
During the transit, this voyage was badly affected by the rough weather and most of the containers got submerged under sea water and due to seeping in of water had damaged the consignment.
Complainant lodged Insurance Claim No.65/07/58115 with the opposite party for Cargo which was got damaged during transit valuing to Rs.31,26,398/-. Surveyor was appointed by the opposite party who investigated the matter. The purchaser confirmed and issued a certificate to the effect to the opposite party that they had not received any claim of the said consignment from any Insurance Company. However, the opposite party did not pay the claimed amount even after legal notice dated 2.6.2008. Thus, alleging deficiency in service on the part of the opposite party, the complainant has invoked the jurisdiction of this Commission by filing complaint.
Upon notice, the opposite party appeared and contested the complaint by filing written statement. In the preliminary objections, the opposite party has stated that the complainant is a big exporter and had taken the Insurance Policy for commercial purpose and therefore, the complaint is not maintainable as the complainant is not covered under the definition of consumer. It is further stated that the complainant had taken Marine Open Export Policy on CIF (Cost, Insurance and Freight) basis. As per internal practices & Marine Insurance Act, the Insurance cover is to be arranged as per the contract between the Consignor & Consignee i..e in CIF (Cost, Insurance Freight) (C and I (Cost & Insurance) contract the responsibility of the insurance till delivery of the goods likes with the consignor (seller) in other contacts such as FOB (Free on Board) and C&F (Cost & Freight) contracts the responsibility of the insurance lies with the consignee (buyer). The goods in this case were delivered on FOB/C&F basis wherein once seller places the goods safely on board at his own and thereby hand over the possession of goods to the ship, the responsibility of seller would cease and delivery of goods to the buyer is complete, Goods from that stage onwards would be at the risk of buyer. In the present case since consignment was sent on FOB/C&F Basis, Seller reserves no right or lien qua the goods in question. Goods were from that stage onwards held by the carrier at the risk of the buyer and the property in the goods stood vested in the buyer. Therefore, the seller, who happens to be the complainant in this complaint, ceases all insurable interest.
It is further stated that the complainant has lodged a false and bogus claim in collusion with the purchaser and tried to perpetrate a fraud on the Company with a view of making underserved and unjust financial gain. No damage on account of sea water was found by the surveyors and in fact it has been commented there has been no transit damage and that the damp/wet cartons were packed in the container. While denying the other allegations levelled by the complainant, the opposite party has prayed for dismissal of the complaint.
In its evidence, the complainant has tendered affidavit of Shri J.C. Arora, Director of the Company as Ex.C-10 alongwith report of surveyor. Opposite Party in its evidence tendered affidavit of Shri Satyan Kapoor, Manager Legal as Ex.RW1/A alongwith the documents Ex.R1 and Ex.R-2.
We have heard learned counsel for the parties and perused the case file.
At the very outset the question for consideration before us is whether the complainant falls within the definition of consumer? The answer to this question is in negative in the judgment rendered by Honble National Commission cited as MCS COMPUTER SERVICES PVT. LTD. versus ALLENA AUTO INDUSTRIES PVT. LTD., II(2012) CPJ 173 (N.C.), wherein it has been held that:-
Respondent is a private limited company and the commercial activities carried out by it cannot be for the earning livelihood by means of self-employment. Company has to act through somebody and the question of livelihood and self-employment under these circumstances would not arise. Company has judicious identity and it can be sue through a person. Company does the commercial activities for its shareholders. Question of earning livelihood by means of self-employment would not arise.
In ADVIK INDUSTRIES LTD. versus UPPAL HOUSING LIMITED & ANR, IV(2012) CPJ 159 (NC), Honble National Commission held the Limited Company not a consumer by relying upon the following judgments:-
8. This Commission in Monstera Estate Pvt. Ltd. v. Ardee Infrastructure Pvt. Ltd., IV(2010) CPJ 299 (NC), has held that:
Housing-Purchase of space for commercial purpose-There was delay in possession. Complainant was a private, limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. Even if private limited company was treated as person purchase of space could not be for earning its livelihood. Purchase of space was for commercial purpose.
9. Also, see Rajasthan State Industrial Development & Investment Corporation v. Diksha Enterprises, III(2010) CPJ 333 (NC) and this Commissions judgment in Revision Petition No.1129 of 2012, Shri Harnam Singh v. Shalimar Estate Pvt. Ltd. & Ors., III(2012) CPJ 225 (SC), decided on 29th May, 2012.
Admittedly, the complainant is a Private Limited Company and therefore this case is fully covered by COMPUTER SERVICES PVT. LTD. versus ALLENA AUTO INDUSTRIES PVT. LTDs case (Supra) and ADVIK INDUSTRIES LTD. versus UPPAL HOUSING LIMITED & ANR case (Supra). As the complainant does not fall within the definition of consumer, therefore, this complaint is liable to be dismissed being not maintainable.
Hence, this complaint is dismissed the complainant being not a consumer.
Announced: Justice R.S. Madan 19.11.2012 President B.M. Bedi Judicial Member