National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Indo Danish Tool Room on 9 February, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 371 OF 2009 (Against the Order dated 31/03/2009 in Complaint No. 1/2007 of the State Commission West Bengal) 1. ORIENTAL INSURANCE CO. LTD. Head Office: Oriental House, A-25/27, Asaf Ali Road New Delhi - 110 002 ...........Appellant(s) Versus 1. INDO DANISH TOOL ROOM M-4 (Part), Phase VI, Tata-Kandra Road, P.O. Gambaria Jamshedpur - 832 108 2. M/S. TATA AIG GENERAL INSURANCE CO. LTD. Ahura Center, 4th Floor, 82, Mahakali Cave Road, Andheri (East) Mumbai - 400 093 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : Ms. Sakshi Gupta, Advocate For the Respondent : For the Res. No. 1 : Mr. S. Sriram, Sr. Accounts Officer
For the Res. No. 2 : Ms. Anjalli Bansall, Advocate
Dated : 09 Feb 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 31.03.2009 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, 'the State Commission') in SC Case No. 01/0/2007 - Indo Danish Tool Room & Anr. Vs. Oriental Insurance Co. Ltd. by which, complaint was allowed against OP No. 1 and OP NO. 1 was directed to pay Rs.18,72,917/- with 9% p.a. interest and complaint was dismissed against OP NO. 2.
2. Brief facts of the case are that Complainant/Respondent No. 1 imported a Co-ordinate measuring machine from U.K. having CIF value of Rs.43,99,711.50 which was duly insured with the AIG-Europe (U.K.) Limited for its carrying from UK to N.S. Dock, Kolkata under a policy of insurance dated 16.8.2005. The said consignment was packed in a 20 feet flat container containing two wooden boxes i.e. ½ and 2/2. The said goods arrived at Kolkata port on 26.9.2005, unloaded from the vessel and kept at N.S. Dock for completion of necessary customs formalities and carriage of the same to the place of business of the Complainant at Jamshedpur. Thereafter the said goods were insured with the OP No. 1/appellant for its carriage from Kolkata Port to Jamshedpur, the place of the complainant. At the instance of the OP NO. 1, Sri Sukrit Sircar, surveyor and loss assessor made a pre-insurance survey on 30.9.2005 and on being satisfied and on the basis of his report the OP No. 1 accepted the proposal of insurance and issued necessary policy on 30.9.2005. On completion of the customs formalities, the aforesaid goods were cleared and removed from the dock by lorry on 2.10.2005 and the same have been received at the Complainant's premises at Jameshdpur on 5.10.2005. On 8.10.2005 the goods were inspected by opening the boxes in the presence of the representative of the consignor and the consignee and prepared the minutes. On opening the box no. 2/2, a corrugated box was found completely water soaked and water gushed out of the wooden box. It was further found that the inner contents of the corrugated box were completely water soaked and damaged and some spares were found short which the complainant's representative noted, but the balance consignment has been found in sound condition. The matter was brought to the notice of the local office of the OP No. 1, Jamshedpur on 8.10.2005. At the instance of the OP No. 1 Sri J.K. Das, Surveyor of the Insurance Company was entrusted to examine the matter further on 8.10.2005 and after examination he submitted his report. Damaged/rusted samples, manual and stationary items, which were inside the said corrugated box, were sent to M/s. R.V. Briggs & Co. Pvt., Kolkata for analysis of the water extract of the samples who on examination reported that there were chloride content. It was further observed by J.K. Das in his report that rust developed on the machine accessories on account of water logging for more than 20 to 30 days which has affected the consignment prior to the receipt of the consignment in Kolkata Port and the same has been proved by the analysis of the water extract of the sample. It has also been observed that damages of the accessories of the machine are genuine and consistent. As the machine cannot be utilized the complainant lodged its claim before the OPs. But both the OPs ignored the claim of the complainant and have contended that the loss did not occur during the period of carriage of their policy period. The complainant sent two letters to the OP separately on 18.10.2006 and 31.10.2006 claiming the loss amount of the consignment which occurred due to their deficiency in service, but to no effect. The OP No. 1instead of considering the claim, forward the same to AIG-Europe (U.K.), who in terms of the agreement refused to accept its liability on the plea that damage occurred after the termination of their policy and advised to pursue the claim with the OP No. 1. The OP No. 1 by their letter dated 10.11.2006 also refused to entertain the claim of the complainant on the g round that damages occurred during transit by sea from UK to Kolkata Port. Alleging deficiency on the part of OPs, complainant filed complaint before State Commission.
3. OP NO. 1 resisted complaint and submitted that Complainant imported the goods and insured the same for commercial purpose, so the complainant cannot be termed as consumer. The complainant has filed the instant case against the repudiation of the claim by this OP, but such repudiation cannot be termed as any deficiency in service on the Part of the OP as repudiation was made after applying mind and on valid grounds. The positive defense of the OP No. 1 is that the claim is neither admissible nor payable under the insurance policy issued by this OP. The inspection report of the surveyors clearly speaks out that the box no. 2/2 a corrugated box was found to be completely water soaked resulting in the damage of some spare parts and this damage had occurred prior to the arrival and delivery of the goods at N.S. Dock i.e. during sea voyage from U.K. to Kolkata and it had not occurred during transit period from Kolkata dock to Jamshedpur. The policy insured by this OP merely covered the risk of the goods between Kolkata to Jamshedpur and as there was no evidence that the goods suffered during the transit from Kolkata to Jamshedpur, the question of any claim for compensation cannot arise at all and accordingly the claim of the complainant was rightly repudiated and in repudiation there was no negligence or any deficiency in service on the part of the OP NO. 1. The OP NO. 1 has contended that the complainant wrote a letter to the OP NO. 2 on 18.10.2006 wherein it was stated by the Complainant that it has been proved beyond doubt that the damage of the goods occurred during its transit from UK to Kolkata Port and prior to arrival at Kolkata Port and not after its arrival at Kolkata Port till it was received at Jamshedpur. Denying any deficiency on the part of OP prayed for dismissal of complaint.
4. OP NO. 2 resisted complaint and submitted that OP NO. 2 was only settling agent and it has no legal liability to satisfy any claim made against AIG Europe (UK) Limited. The present complaint is not maintainable under law due to non-joinder of party, as the complainant did not make the issuer of the policy a party to the present case. The inland transit from Kolkata Port to Jamshedpur was covered by a separate insurance policy issued by the OP NO. 1. As per the pre-insurance survey report of Mr. Sukrit Sirkar appointed by the OP NO. 1 the customs authorities opened the box no. 2/2 for examination and he found that the vacuum sealed waterproof inner packing was intact even through the boxes were in wet condition externally. The inner contents had been packed in thick foil pack and sealed preventing any seepage of water. The OP NO. 1 being satisfied with the condition of the consignment and based on the survey report issued the policy. The OP No. 2 has further submitted that though the boxes were in wet condition at the time of customs examination, only the open box was found to be damaged on reaching destination at Jamshedpur and the other box was still in sound condition. This would indicate that the alleged damage had occurred during inland transit after the examination of customs. So the said loss falls only under the coverage of the insurance policy issued by the OP NO. 1. The rusted and water exposed parts had been sent for analysis to R.V. Briggs & Company Private Limited and according to their opinion the sample has been contaminated with fresh/rain water. This report infers that the loss had not occurred due to sea water during transit from U.K. to Kolkata Port. Denying any deficiency on the part of OP prayed for dismissal of complaint. Learned State Commission after hearing all the parties allowed complaint against OP No. 1 as mentioned above.
5. Heard learned Counsel for the appellant/Respondent No. 2 and Accounts Officer of Respondent No. 1 and perused record.
6. Learned Counsel for the appellant submitted that inspite of no proof of damage to the imported machinery during transportation from Kolkata Port to Jamshedpur, learned State Commission has committed error in allowing complaint against appellant, hence, appeal be allowed and impugned order be set aside. On the other hand, learned Accounts Officer of Respondent No. 1 submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed. Learned Counsel for Respondent No. 2 also supported Respondent No. 1 and prayed for dismissal of appeal.
7. The core question to be decided in this appeal is whether loss to the machinery was caused while transporting it from U.K. to Kolkata or from Kolkata to Jamshedpur, i.e., place of business of the complainant.
8. Learned Counsel for the appellant has drawn my attention towards pre-insurance survey report dated 30.9.2005 prepared by surveyor Sukrit Sirkar in which it was observed that materials were packed in wooden boxes with wooden runners. In findings arrived by surveyor, it was observed as under:
"On having a close external inspection the wooden boxes was found to be in externally sound condition. On further inspection it was observed that the wooden boxes were in wet condition. On further inspection it was observed that the wooden boxes were in wet condition. The inner contents of the boxes however could not be inspected as the box was in sealed condition. During inspection of the said boxes had the markings as Box ½ having dimension 241 x 170 x 207 cm., Gross Weight 2,800.000 kgs. The other wooden box had marks Box 2/2 having Dimension 236 X 106 X 116 cm. Gross Weight 400.000 kgs. The other marking were on Box ½ Granite Table & Bridge Assembly and Box 2/2 Table Stand & Accessories. The details of our inspection is as under:
Container No. Consignment Marks & Nos. Remarks POCU 6400346 (20') 02 Nos. Wooden Box No.1/2 In externally Flat Boxes Granite Table & sound BridgeAssembly condition with the Box Outwardly in wet condition Box No.2/2 In externally Table Stand & sound Accessories condition with the Box Outwardly in wet condition
It has been reported that the said containers would be delivered from the docks after the required customs formalities for delivery to its ultimate destination at Jamshedpur. Since the customs formalities was yet to be observed one of the Boxes No. 2/2 had been opened for customs appraisement. Under the circumstances we had the opportunity to have a visual inspection of the contents. During such visual inspection it was observed that the inner contents had been packed in thick foil pack and sealed preventing any seepage of water. On opening the seal the inner contents had been found in outwardly sound condition as far as practicable and there was no water seepage observed. It was also observed that some of the items had been wrapped with bubble sheet for protection. It had been informed that on completion of customs formalities the box would be repacked and delivered from the docks to its ultimate destination at Jamshedpur".
Learned Counsel for the appellant submitted that as wooden boxes were in bad condition and inner contents of the boxes could not be inspected as the boxes were in sealed condition and as there were no rains during transportation period from Kolkata to Jamshedpur, no deficiency can be imputed on the part of appellant. Perusal of pre-survey report clearly reveals that box no. 2/2 which was found damaged at Jamshedpur was opened for customs appraisalment and surveyor Sukrit Sirkar had visual inspection of the box and he found that inner contents were packed in thick foil pack and sealed preventing any seepage of water. It was further observed that on opening the seal inner contents had been found in outwardly sound condition and there was no water seepage observed.
9. Perusal of aforesaid pre-survey report makes it crystal clear that surveyor Sukrit Sirkar did not find any water seepage in box no. 2/2 and in such circumstances, learned State Commission has not committed any error in observing that damage to transported box no. 2/2 was caused during transportation from Kolkata to Jamshedpur.
10. Damaged consignment reached Jamshedpur on 5.10.2005 and wooden boxes were opened in presence of the representative of M/s. Machine Tool (India) Ltd., Mirza Ghalib Street, Kolkata, Sri Nagendra Kumar Ojha and IDTR, Jsr., representative Shri S.S. Kohli, Sr. Manager (Production) and Shri R.K. Verma, Engineer (Maintenance) on 08.10.05 and box no. ½ was found in good condition, but box no. 2/2 was found containing approximately 10 to 15 ltrs. of water inside the box and further observed that "probably Seawater" has entered in the box and all the packets were completely damaged. Later on, Mr. J.K. Das, Surveyor was appointed who conducted survey between 8.10.2005 to 22.10.2005 and who after obtaining test report dated 1.2.2006 from R.V. Briggs & Co. Pvt. Ltd. submitted report on 7.2.2006 and observed that accessories of the machine parts of wooden box no. 2/2 were found with water stained marks on the surface resulting into rusting. It was further observed that presence of chloride ion (Trace +) was found with rusting marks on the accessories. Test report also contained remark that "sample is contemplated with fresh/rain water". In the light of this remark it cannot be inferred that rusting was caused due to seawater because sample of water was found fresh/rain water. Merely because there were no rains during transportation period from Kolkata to Jamshedpur, it cannot be held that rusting was caused due to seawater because as per test report, water was fresh/rain water and in such circumstances, it can be held that damage to the machinery was caused due to fresh water.
11. Surveyor J.K. Das also observed in his report that the top seal had been cut open about 2.5 feet by the custom officer and during such time the pre inspection surveyor also had a look inside as far as practicable and found it to be in sound condition with no water seepage and the pre inspection survey has clearly mentioned the observation was as far as practicable and under the circumstances it was not possible for him to have a clear inspection of the entire inner contents of the Box No. 2/2.
This observation does not find support from pre-insurance survey report because in pre-insurance survey report it has nowhere been mentioned that only 2.5 ft. cut was put on the top seal for appraisal by custom officer, but it has clearly been mentioned that there was no water seepage observed. Had there been seawater in box no. 2/2 at the time of appraisal by Custom Officer or when pre-insurance survey was made by Mr. Sukrit Sirkar, he must have seen seawater in the box. When Mr. Sukrit Sirkar did not observe any water seepage in the box, it cannot be observed that seawater entered in the box while transportation from U.K. to Calcutta.
12. Learned Counsel for the appellant has also drawn my attention towards reply to the question no. 7 in which complainant has answered that he did not collect water sample from the boxes. Learned Counsel for the appellant submitted that as water sample was not collected by complainant, so-called test report cannot be relied on. This argument is devoid of force because water sample was collected by surveyor Mr. J.K. Das who sent it for test and got test report which finds place in the report. In such circumstances, it cannot be held that test report does not pertain to sample of water taken from damaged box as sample of water was found to be of fresh/rain water. Learned State Commission has not committed any error in allowing complaint against appellant.
13. I do not find any force in the appeal and there is no illegality in the impugned order and appeal is liable to be dismissed.
14. Consequently, appeal filed by the appellant is dismissed with no order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER