National Consumer Disputes Redressal
Kwang Sung Brakes Pvt. Ltd. vs Lom Logistics India Pvt. Ltd. on 7 July, 2025
IN THE NATIONAL CNSUMER DISPUTES REDRESSAL COMMISSION
AT NEW DELHI
NC/CC/283/2012
Kwang Sung Brakes Pvt. Ltd. ... Complainant
Versus
Lom Logistics India Pvt. Ltd. & Ors. ... Opp. Parties
BEFORE:
HON'BLE MR. JUSTICE A.P. SAHI, PRESIDENT
HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
Appeared at the time of arguments:
For Complainant : Mr. R. Prabhakaran, Advocate
For Lom Logistics India : Impleadment of Lom Logistics India
rejected vide Order dated 20.08.2024
For Wilson Surveyors : Mr. Abhishek Pratap Singh, Advocate
For Others : Discharged vide Order dated 14.02.2014
Pronounced on : 7th July 2025
ORDER
JUSTICE A.P. SAHI, PRESIDENT
1. The Complainant M/s. Kwang Sung Brakes Pvt. Ltd. are manufacturers of car brakes / plates and other accessories for M/s. Hyundai Motors India and are located at Sengadu Village, Sriperumbudur Taluk, Kancheepuram District, Tamil Nadu, India. They placed an order with Kwangsung Precision Co. Ltd., Asan City, Korea for supply of component parts for steering systems of vehicles. This consignment was packed in 35 wooden boxes, wrapped-up in aluminium foil and plastic sheets for being transhipped and was discharged by Page | 1 the carrier M-Trans Co. Ltd. for being loaded at Masan, Korea to be shipped to Chennai, India.
2. For this journey an insurance coverage under a Marine Cargo Insurance Policy was acquired by the Petitioners from M/s. ACE American Fire and Marine Insurance Company, Seoul, Korea. The policy mentions that the Opposite Party No. 2 M/s. Wilson Surveyors & Adjusters Pvt. Ltd., Anna Salai, Chennai would be the communicating link through whom any claim arising out of the policy would be negotiable. According to the Opposite Party No. 2, they are not agents of M/s. ACE American Fire and Marine Insurance Company and they are only facilitators with no insurance contract with the Complainant. The only arrangement in India is that in the event of any such occasion of indemnification arises, the claim would be payable at Chennai.
3. A copy of the policy has been filed on record and is Annexure P-3 to the complaint. The policy is a warehouse to warehouse policy with an endorsement of the ICC clause (all risk) with a special replacement clause. The policy also endorses a waiver of subrogation against the transporter / carrier in Korea namely M-Trans Co. Ltd.
4. The goods were loaded at Masan port, Korea through Genshipping Pacific Line PTE Ltd., Singapore on the vessel provided by them namely HAN Symphony V-275W. The consignment was to be delivered at Chennai, India.
5. All 35 boxes of the consignment valued at 14,60,558 US$ commenced the journey on the aforesaid ship from Korea on 17.10.2010 and reached Chennai port on 03.11.2010. After getting docked, the goods were discharged Page | 2 from the vessel between 03.11.2010 to 05.11.2010 and shifted to the Chennai port warehouse, where it was parked between 03.11.2010 to 24.11.2010. The custom clearance was obtained through their cleaning and handling agent M/s. A.S. Shipping Agencies Pvt. Ltd., Opposite Party No. 5 herein. The goods were to be further transported by M/s. Lom Logistics India Pvt. Ltd. to whom the invoice had been endorsed by M-Trans Co. Ltd., Korea. M/s. Lom Logistics India Pvt. Ltd. hired M/s. Vidya Transport, Opposite Party No. 4 to transport the consignment that was loaded on trailers and reached by road to the Complainant‟s factory at its address on 25.11.2010.
6. While unloading the boxes, the Complainant alleged that they noticed that 7 boxes were partly opened and some machine parts were missing. The Complainant immediately notified all the Opposite Parties about the damage and theft in respect of the cargo. The Opposite Party No. 2 sent their Surveyor who arrived on 26.11.2010 and prepared his survey notes. The survey notes have been filed as Annexure P-8 and are extracted hereinunder:
WILSON SURVEYORS AND ADJUSTERS PVT. LTD.
LLOYD'S AGENTS SURVEY NOTES Date of plant of Survey:- 26/11/10 at M/s. Kwang Sung Brake India Ltd., Kancheee Dist., India B/L no. & date : MTRS 11010074 & dte. 15/10/10 Cargo offered for Survey:- 6 Nos. of Wooden Cases STC Machinery & 1 pkgs Bare.
Our Findings : All 6 nos. of wooden cases were found partly open & Inner Aluminium Foil Sheet partly cut / open condition & 1 machine bare (in /case opened prior to our Survey) The above all wooden cases were opened in our presence & the findings of same were as follows: (The following parts missing) C/No. 1 M/c name Pipe Expand Machine Main Air check, Solvnoid volve, Main Air Solvnoid (2 no), Touch Monitor - 1, Indicator, Safety Sensor, 2 Nos., Tower Light - 1 & Measurement Sensor - 1 Page | 3 C/No. 2 CURR'G M/C
- Set .... Safety sensor, 1 - touch monitor, 1 no. Indicator, 1 no. Measurement Sensor, No - A... Unit, 1 Solvnoid volve, Air oil Cooler Fan & tower Lamp C/No. 4 CIRCUMFERENCE WELDING M/C All components in control panel, Air Unit 2 Solvnoid volve / (FRL Unit) C/No. 7 SOFT INSERT M/C Air Unit, Solvnoid Unit, Touch Monitor, Digital Indicator, 1 set (3 Nos.) Indicator, load control, Leinear Scales - 3 nos. & 1 Set Safety Sensor (2 Nos.)
12. COLM UPR + LWR 2 SHAFT PRESS M/C No. Touch Monitor, Tower Lamp - 1 No, 2 Nos. Loader set Indicator, Photo sensor, Measurement Sensor & 2 Nos. Measure Sensor, wire cut C/No. 17 RBI BRK'T ASSY 1 No. Monitor DECY (Touch), Pressur Disply Transmitter, Tower Lamp & Control Panel in loose condition & wires cut C/No. 20 RBI INSPECTION & LOT MARKING M/C FRL Unit / Air Unit & Solvnoid Unit, ..remaining parts in the above machines are available & apparently in sound, ..missing parts has to be install on the above m/c & then the working condition can be known during test running.
..remaining cargo pertaining to the Shipment not offered for Survey & accepted by the consignee as sound & in order.
....Kay Shipping (P) Lgs. Kwang Sung Brake(I) Pvt. Ltd. Lom Logistics India Pvt. Ltd.
(....ishor Raj) (KIM, JIN - HAN) (LIM HAN SUNG)
Wilson Surveyor NANDO Corporation
(D. Slango) (..................)
7. On 27.11.2010, the Complainant was informed by the Surveyors about the survey that was sent by mail along with findings therein which is extracted hereinunder:
27-Nov-10 TO M/s. Kwang Sung Brake India Pvt. Ltd., No. 49, Sengdu Village, Sriperumbudur Taluk, Kancheepuram Dist.
Page | 4
Tamil Nadu,
India
Kind Attention: Mr. KIM, JIN - HAN
Managing Director
Dear Sir,
Description of goods 35 boxes STC 1 set Column Line set
(Components Parts of Steering
System for vehicle)
Consignee M/s. Kwang Sung Brake India Pvt
Ltd., Sengadu Cillage, Sriperumbudur
Taluk, Kancheepuram Dist. Tamil
Nadu, India
Shipper M/s. Kwangsung Precision Co, Korea
Insurance Co. Name M/s. M/s. ACE American Fire &
Marine Insurance Co. Ltd., Korea.
Policy No. & date Policy No. EKC1720649-
KOPMO0069 dated 16.10.2010
House Airway Bill No. & date Bill of Lading No. MTRS 11010074
dated 17.10.2010
Vessel Name M.V."HAN SYMPHONY" V.275W
Date of Arrival 03.11.2010 Chennai Port
Survey ref CHE/10/1434
Your ref TBA
This is reference to the above we have carried out survey at your factory premises om 26.11.2010 pursuant to survey request of your carrier agent M/s LOM Logistics Chennai as above vide their email dated 22.11.2010 The Following persons were attended the survey:
1. Mr. Kim, Jin-Han-Managing Director of M/s. Kwang Sung Brake India Pvt. Ltd., Chengadu Village, Tamil Nadu, India
2. Mr. Lim Han Sung-Managing Director of M/s LOM Logistics India Pvt. Ltd., Chennai
3. Mr. Jae-Myeong Yook-Senior Manager of M/s. Mando, Korea Our Findings on the offered cargo:
Page | 5 Our 35 boxes 6 plywood cases /boxes and 1 machine (packing material discarded prior to our survey) were offered for our survey. Upon our examination, the following were observed:
S. Case Machine name Our Observations No. No. 1 1 PIPE EXPAND'D Plywood partly open, inner packing MACHINE (aluminium foil cover and polyethylene sheet) were partly cut and open and the Machine was partly in exposure. Upon dismantle the packing the following parts on the machine were missing:
1 set Main Air Check/FRL Unit, 1 set Solenoid Valve, 2 nos. main Air solenoid, 1 no. Touch Electronic Monitor, 1 no.
Indicator, 2 nos. Safety sensor, 1 no.
Tower Light & 1set Measurement Sensor.
The remaining items in the Machine were in apparently sound.
2 2 CURR'G MACHINE Plywood partly open, inner packing (aluminium foil cover and polyethylene sheet) were partly cut /open and Machine was partly exposure. Upon dismantle the packing the following parts on the machine were missing:
1 set Main Air Check / FRL Unit, 1 set Solenoid Valve, 2 nos. main Air solenoid, 1 no. Touch Electronic Monitor, 1 no.
Indicator, 1 no. Air oil cooler Fan & 1no.
Tower light. The remaining items in the Machine were in apparently sound.
3 4 CIRCUMFERENCE Plywood partly open, inner packing WELDING (aluminium foil cover and polyethylene Page | 6 MACHINE sheet) were partly cut / open and Machine was partly exposure. Upon dismantle the packing the following parts on the machine were missing:
1 set Main Air Check/FRL Unit, 1 set Solenoid Valve & all electronic parts in main control panel with on off Switch. The remaining items in the Machine were in apparently sound.
4 7 SHAFT INSERT Plywood partly open, inner packing MACHINE (aluminium foil cover and polyethylene sheet) were partly cut/open and Machine was partly exposure. Upon dismantle the packing the following parts on the machine were missing:
1 set Main Air Check/ FRL Unit, 1 set Solenoid Valve, 1 no. Touch Electronic Monitor, 1 no. Digital Indicator, l set (3nos.) Indicators, 1 set load control, 3 nos. Leaner scales & 1 set (2nos) Safety sensor. The remaining items in the Machine were in apparently sound.
5 12 COLM UPR + LWR Plywood partly open, inner packing SHAFT PRESS (aluminium foil cover and polyethylene MACHINE sheet) were partly cut/open and Machine was partly exposure. Upon dismantle the packing the following parts on the machine were missing: 1 no. Touch Electronic Monitor, 1no. Tower Light, 2 Nos. Loader cell Indicators, 1 set of Photo sensor,3 nos.
of measurement sensor and some wires cut.
The remaining items in the Machine were Page | 7 in apparently sound.
6 17 RBI BRAKIT ASSY Package materials discarded prior our survey and condition of packages were stated to be plywood partly open, inner packing (aluminium foil cover and polyethylene sheet) were partly cut / open and Machine was partly exposure. Prior to our survey, the packages were dismantle by the consignee the following parts on the machine were stated to be missing and the machine was offered for our survey:
1 no. Touch Electronic Monitor, 1no.
pressure display transmitter, control panel in loos & some of wires in cut. The remaining items in the Machine were in apparently sound.
7 20 RBI INSPECTION Plywood partly open, inner packing & LOT MARKING (aluminium foil cover and polyethylene MACHINE sheet) were partly cut/open and Machine was partly exposure. Upon dismantle the packing in our presence and the following parts on the machine were missing:
1 set Main Air Check/FRL Unit, 1 set Solenoid Valve and wires cut. The remaining items in the Machine, were in apparently sound.
The Shipper's Service Engineers attend the survey stated that the missing parts have to be replaced on the subject and the working condition of the machines can be known only during the test run.
The remaining packages pertaining to this shipment were not offered for our survey and accented by the consignee as sound and in order.
Page | 8 During our joint survey with the local carrier Agent and Customs House Agent and understand that the Packages were discharge from the vessel on 03.11.2010 to 05.11.2010 in apparently sound condition and stored at Wharf of West suay-3 and Warehouse at Chennai port, Chennai from 03.11.2010 to 24.11.2010.
The customs examination wat concluded on 23.11.2010 and after customs examination, the packages were loaded on the trailers (inland transporters was appointed by the local cases agent and despatched from the Chennai port, Chennai to the consignee's factory premises, Chenngadu Village Sriperumbudur Taluk, Tamil Nadu, India on 24.11.2010. When the cases/boxes received at the consignee's factory on 25.11.2010 the consignee noticed that the some of the cases were partly opened and some parts on the machines were in missing.
In view of the above missing parts on the machines, some one might have pilfered while the cargo was under the custody of carrier/Chennai port and or inland transporter during the period from 17.10.2010 to 25.11.2010. We advised the consignee to lodge monetary claim with carrier, Chennai Port and Inland transporter for the responsible of the missing items. We advised the consignee to lodge monetary claim with carrier and All Cargo Global Logistics Ltd, Container Freight Station. In view of the above circumstances you are kindly requested to take the following measures immediately as is required under the purview of the Insurance policy:-
1. To raise your valued claim in writing on the Shipping Line and their local agent, Chennai Port, Chennai Inland Transporter from Chennai Port to the consignee's premises and bailee Chennai Port, Chennai understood by you to be actually responsible for the damage, holding them liable for the loss while thus protecting the Insurance company's ultimate rights of recovery against these responsible parties.
Also you are requested to submit to us the following documents to enable us to substantiate and compile our survey findings as presented here above:
13 days delay in Clearing the cargo Landing Remarks Certificate issued by the Seaport Page | 9 Shipper's Service Engineer Report mentioning the missing parts with part nos.
Invoice/quotation for missing items and damage items from Shipper's end. Consignee's letter of reserve on responsible parties as explained above and the replies received or in case they do not revert, the copies of correspondence so exchanged with them.
Load port survey report with photographs and detail packing list including the missing part cargo.
Consignee's formal Claim Bill.
The above is requested and written without prejudice to the rights of our Principals, and should not be construed as an admission of liability on their behalf as the claim is subject to their perusal as well as the terms and conditions of the subject insurance Policy. Kindly revert with the requisite information and documents to enable us to proceed further in this matter and to compile and forward the matter for the consideration of the insurance Company at the earliest. Yours Sincerely, D. Elango Surveyor CC: Mr. LIM Han Sung of M/s. LOM Logistics India Pvt. Ltd., Chennai M/s Wilson Surveyors And Adjusters Pvt Ltd Lloyd's Agents since 1875 739, Anna Salai TMB Mansion, 3rd Floor Chennai 600 002 Phone: (Board) +91 44 28522811/+91 44 28525350 Fax: +91 44 25823349 E-mail: [email protected] Website: www.wilsur.com The information in this E-mail and any attachments is CONFIDENTIAL and may be privileged. If you are NOT the intended recipient please delete the message and notify the sender immediately. You should not retain, copy or Page | 10 use this E-mail for any purpose nor disclose any of it's contents to any person or persons.
Any views expressed in this message are those of the individual Sender, EXCEPT where the sender specifically states them to be the Views of WOODBRIAR GROUP.
WOODBRIAR GROUP may monitor the contents of E-mails sent and received via its network for viruses, unauthorised use and lawful business purposes.
8. The said report indicates that the packages were discharged from the vessel apparently in sound condition and stored at Wharf of West quay - 3 and warehouse at Chennai port. After custom examination on 23.11.2010, they were loaded on the trailers of the inland transport engaged by the local carrier agent and dispatched from Chennai port to the factory premises. On opening of the consignment on 25.11.2010, some of the wooden boxes were partly opened and the parts of the machine were missing. The opinion expressed by the Surveyor is that someone might have pilfered while the cargo was under the custody of the carrier or Chennai port and / or inland transporter during the period from 17.10.2010 to 25.11.2011. Accordingly, the Surveyor advised the consignee to lodge monetary claims with the carrier, the Chennai port and the inland transporter for any responsibility of the missing items. The advice was also given to lodge claim before the concerned person as detailed therein.
9. The Opposite Party No. 1 who were the carrier agents namely M/s. Lom Logistics India Pvt. Ltd. also dispatched their response through an estimate to the concerned party.
Page | 11
10. The Opposite Party No. 2 Surveyors tendered their survey report along with preliminary loss advice vide letter dated 04.12.2010 dispatched to the Insurance Company namely M/s. ACE American Fire and Marine Insurance Company along with the details of the alleged theft and missing items which is extracted hereinunder:
WILSON SURVEYORS AND ADJUSTERS PVT. LTD. CORPORATE SURVEY LICENCE NO. SLA-72399/07-12/Exp. 16/06/2012 Our ref: CL/WMM/10/3049 4th December 2010 Fax: 82 2 2127 2304 Ace American Fire and Marine Insurance Company 19F, Seoul City Tower, 581 Namdaemunro-5-ka Chung-ku, Seoul 100741, Korea Dear Sirs, We enclose herewith our Preliminary Loss Advise and copy of Insurance Policy for your kind attention.
PRELIMINARY LOSS ADVISE Insurers Ace American Fire and Marine Insurance Company Policy No EKC1720649-KOPM00069 dated 16.10.2010 Shipper Kwangsung Precise Co. Korea Consignee Kwang Sung Brake India Pvt. Ltd.
Vessel Name M.V "Han Symphony" V.275W arrived at Chennai port on 3.11.2010.
Bill of Lading MTRS11010074 dated 17.10.2010 Date & Place of 26.11.2010 at the consignees factory premises of Survey M/s. Kwang Sung Brake India Pvt. Ltd Sengadu Cillage. Sriperumbudur Taluk, Kancheepuram Dist.
Tamilnadu
Consignment 35 boxes stc 1 set Column Line set (Components
Parts of Steering System for vehicle)
Nature of Dent, bend, cut, broken.
Loss/damage
Estimated Loss Awaiting repair estimate / replacement cost.
Agent's Comments The subject cargo in break bulk arrived at Chennai
Page | 12
Port on 03.11.2010 to 05.11.2010 placed on wharf and in warehouse. The custom examination was carried on 23.11.2010 and thereafter the subject was road transported by road to the consignee's premises on 24.11.2010 which reached there on 25.11.2010. At the time of unloading the consignee's noticed damages to the captioned cargo and hence the survey was requested from our Chennai office on the same day. The survey was carried out on 26.11.2010 at the consignees factory premises of M/s. Kwang Sung Brake India Pvt. Ltd, Tamilnadu when. 35 boxes were presented for survey and the surveyor found cut/dent/bent on Pipe Expended Machine, Curr'G Machine, Shaft Insert Machine, Welding machine, & other machines. The claim is under investigation and Original Survey Report and relative claim documents will be forwarded to you as soon as our enquiries are completed Thanking You.
Yours faithfully, For Wilson Surveyors And Adjusters Pvt. Ltd.
B.B. Rai Sr. Executive - Claims Email: [email protected]"
11. The Surveyor asked for certain documents and also forwarded the claim to the Insurance Company located at Seoul, Korea and also intimated the complaint that the under writers have been informed and they are awaiting a response. The Complainant dispatched several mails and in response thereto, the Opposite Party No. 2 Surveyors intimated the Insurance Company about the claim that had been pending since long. The mails are on record but the relevant communication for the purpose of the present controversy is the mail dated 15.11.2011 dispatched by the Opposite Party No. 2 Surveyor to the Insurance Company in Korea which is extracted hereinunder:
WILSON SURVEYORS AND ADJUSTERS PVT. LTD. CORPORATE SURVEY LICENCE NO. SLA-72399/07-12/Exp. 16/06/2012 Page | 13 Our ref: CL/WMM/10/3049 15th November, 2011 ACE American Fire & Marine Insurance Company Marine Claims Department 19th Fl., Seoul City Tower, 581 Namdeamoonro-5-ka,Chung-ku, Seoul 100-741, Korea Kind attn.: Mr. J.S. Han Assistant Manager Dear Sirs, Re: Policy No. EKC1720649-KOPM00069 dated 16.10.2010 - 35 boxes of Components Parts of Steering System for Vehicle arrived per M.V. "Han Symphony" V.275W at Chennai port on 4.11.2010.
We refer to our letter dated 27.7.2011 and email dated 11.10.2011 on the above subject.
We shall be glad to know whether you have since been in a position to finalize the claim against insurance and arrange payment in settlement of the claim amount and our fees and expenses in the sum of US$ 28842.51 to enable us to conclude settlement of the claim with the consignee, who are repeatedly enquiring reason for the long delay in concluding settlement of the claim against insurance.
An early reply in the matter will be much appreciated. Thanking You, Yours faithfully, For Wilson Surveyors And Adjusters Pvt. Ltd.
B.B. Rai Sr. Claims Executive Email: [email protected]"
12. The Surveyors once again intimated the Insurance Company about the urgency of the matter as the Complainant had threatened a legal action through a legal notice dated 21.11.2011. The said communication dated
27.12.2011 is extracted hereinunder:
Gmail Bala@Wilsur<[email protected]> Fwd: Policy No. EKC1720649-KOPM00069 dated 16.10.2010, Our ref:
CL/WMM/10/3049 Bala @ Wilsur [email protected] 27 December 2011 15:52 Page | 14 To: "Han, Ji Soo - Korea "<[email protected]> Cc: [email protected] ACE American Fire & Marine Insurance Co. Ltd. Marine Claims Department 19th Fl. Seoul City Tower 581 Namdeamoonro-5-ka, Chung-ku Seoul 100-741, Korea Re: Policy No EKC1720649-ΚΟPM00069 dated 16-10-2010 - 35 boxes of Components Parts of Steering System for Vehicle arrived per M.V. "Han Symphony" V.275W at Chennai port on 4 11.2010 Oref: CL/WMM/10/3049 Dear Mr. Han, We refer to our letter dated 27.7.2011 forwarding therewith documents relating to a claim for damage (US$27358.52) under the above insurance policy for your consideration. We wish to inform you that the said letter sent by courier vide consignment number FB0217736 dated 27.7 2011 was delivered to PARK SI HYUN on 1.8.2011. However, in spite of reminders dated 11.10.2011 and 15.11.2011 we are yet to receive your instructions and payment in settlement of the claim amount and our fees and expenses. We are now sending herewith for your kind attention a copy of notice dated 21.12.2011 received from the consignees advocate who have threatened legal action against us and yourselves. We are also sending copies of insurance policy, statement of claim and our letter dated 27.7.2011 for easy identification of the claim in your records We shall be much obliged if you will look into the matter urgently and let us have your instructions concerning the disposal of the claim to enable us to communicate your views to the consignees.
Best regards, V. Balagopalan Senior Manager Wilson Surveyors And Adjusters Pvt Ltd C-204, Remi Bizcourt, Veera Desai Road, Andheri (West) Mumba-400 053 Page | 15 Tel: 0091 22 6696 3606 Fax: 0091 22 6696 3669
13. According to the Opposite Party No. 2, they received the response from the Insurance Company for the first time on 28.12.2011 intimating them that since the custom duty clause was not attached as a condition in the policy, the custom duty of 5078 US$ was not covered under the policy. However, the claim assessed by the Insurance Company was 21904.40 US$. The Insurance Company called upon the Opposite Party No. 2 to communicate and explain this to the Complainant. Simultaneously, the Insurance Company also requested for a signed subrogation receipt and bank details. This crucial document which is a mail from the Insurance Company to the Opposite Party No. 2 dated 28.12.2011 is extracted hereinunder:
Fwd: Policy No. EKC1720649-KOPM00069 dated 16.10.2010, Our ref:
CL/WMM/10/3049 Han, Ji Soo - Korea [email protected] To: "Bala@Wilsur" <[email protected]> 28 December 2011 10:39 Dear Bala, We are sorry sorry to inconvenience you regarding this claim. Regarding the claim amount, because the Custom Duty Clause was not attached on our policy, the customs duty, US$5,078 cannot be covered. Therefore, the claim amount is US$21,904.50. Please explain this matter with the consignee Please request the consignee to send a signed subrogation receipt and bank details.
Thank you.
Best regards.
Ji Soo Han Section Manager / Marine & Property Claims Page | 16 Tel: 82 2 2127 2447 Fax 82 2 2127 2307 Email: [email protected] .........
19th Fl. Seoul City Tower, 581 Namdaemoonro 5-ka, Chung-ku Seoul 100-741, Korea
14. The Opposite Party No. 2 in their response have also brought on record their acknowledgement of the said mail through their mail dated 28.12.2011 responding to the Insurance Company. The said mail is also on record.
15. According to the Opposite Party No. 2, the said information was immediately transmitted on the same day to the Complainant through the mail dated 28.12.2011 which is extracted hereinunder:
Oref: CL/WMM/10/3049-Policy No. EKC1720649-KOPM00069 dated
16.10.2010 Bala@ Wilsur [email protected] 28 December 2011 12:48 To: 김진한 < [email protected]> Cc:[email protected], [email protected], [email protected], 서호 준 [email protected], [email protected] Kwang Sung Brake India Pvt. Ltd.
No.49. Sengadu Village, Sriperumbudur Taluk, Kancheepuram Dist.
Tamil Nadu-602 105.
Kind attn: Mr. Kim, Jin Han, Managing Director Re: Claim for 35 boxes of component parts m.v.Han Symphony V.275W Page | 17 Dear sirs, We refer to below email dated 15.11.2011 received from Lom Logistics India Pvt. Limited in connection with the claim under above insurance policy. We have to inform you that the cargo underwriters, Ace American Fire & Marine Insurance Co. Ltd, to whom the claim documents were presented for consideration of the claim against insurance have advised us that the custom duty had not been separately insured under the relative insurance policy and accordingly no liability would attach to them in respect of the claim for customs duty in the sum of US$5078.00. Accordingly the cargo underwriters have approved settlement of the claim in the sum of US$ 21904.50 towards the cost of replacement. We shall therefore be much obliged if you will return to us the attached Subrogation Form duly stamped and signed alongwith details of your bank account to enable us to forward them to the cargo underwriters for arranging payment in settlement of the claim. Please send signed copy of Subrogation Form by email and original by courier to our address below. Best regards, V. Balagopalan Senior Manager Wilson Surveyors And Adjusters Pvt. Ltd.
C-204, Remi Bizcourt, Veera Desai Road, Andheri (West) Mumbai-400 053.
Tel: 0091 22 6696 3606 Fax: 0091 22 6696 3669 e mail: [email protected]
16. According to the Opposite Party No. 2, the Complainant did not respond to all this nor did they forward the subrogation form duly stamped and signed Page | 18 nor did they send the details of the bank account that was demanded by the Insurance Company and therefore no progress was made on account of the default on the part of the Complainant. The Complainant filed the present complaint on 30.10.2012 seeking damages and compensation for the loss to the tune of Rs. 278841.94 US$ and at the time of the filing of the Complaint, the rate of US$ was quoted as on 17.12.2011 to be Rs. 52.81p. Accordingly, the net loss and damage claimed was quantified at Rs. 1,47,25,622.62p coupled with Rs. 50 lakhs for financial loss and interest at 18% per annum till the date of settlement.
17. There is an interesting turn in the litigation thereafter. According to the Ordersheet on record, the Complainant prayed for deletion of the Opposite Party No. 1 M/s. Lom Logistics India Pvt. Ltd., the Opposite Party No. 2 M/s. Wilson Surveyors and Adjusters Pvt. Ltd. and the Opposite Party No. 3 Chennai Port Trust from the array of the parties. The said deletion stands recorded in the Order dated 04.04.2013 and the Complaint was admitted with notice issued to the Opposite Party No. 4 M/s. Vidya Transport, the inland transporter and M/s. A.S. Shipping Agencies Pvt. Ltd., the clearing agent at Chennai, the Opposite Party No. 5. The Ordersheet dated 04.04.2013 is extracted hereinunder:
"Ld. Counsel for the complainant heard. Counsel for the complainant deletes the opposite parties no. 1, 2 and 3.
Admit. Notice be issued to the remaining opposite parties for 07.10.2013 with the direction to file written version within 30 days from the date of their service."
Page | 19
18. On 07.10.2013, the learned Counsel for the Complainant resubmitted that the Opposite Parties Nos. 1, 2 and 3 were proper and necessary parties whereas the Opposite Parties Nos. 3, 4 and 5 were not the necessary parties. It was also recorded that the notices had been served on the Opposite Parties Nos. 4 and 5. However, in view of the said statement, the Complainant was directed to file an application within one week bring about the change and the matter was adjourned for 01.11.2013. The Ordersheet dated 07.10.2013 is extracted hereinunder:
"Counsel for the complainant, Mr. Vimal Pani for Mr. R. Prabhakaran & Mr. G.S. Mani, Advocates present. He submits that in the last order dated 04.04.2013, Opposite Parties No. 1, 2 & 3 were deleted and notices were served to the Opposite Parties No. 4 & 5. He submits that OPs-1 & 2 are the necessary parties and OPs No. 3, 4 & 5 are not the necessary parties.
It is hereby directed to the Complainant to file the application in detail for his contention, within one week.
The matter is adjourned to 01.11.2013."
19. On 01.11.2013, it was recorded that no such application has been filed and a last opportunity was granted.
20. The journey takes another turn when the application was filed on 14.02.2014 for deleting the Opposite Parties Nos. 3, 4 and 5. The said application seems to have been accepted and an Order was passed to issue notice to the Opposite Parties Nos. 1 and 2 with a direction to file their written statement. The Order dated 14.02.2014 is extracted hereinunder:
"Proxy counsel for the Complainant is present. He has moved an application for deletion of Opposite Parties No. 3, 4 & 5. Counsel for OP- 5 is present. He is hereby discharged.
Page | 20 Arguments heard.
The case stands admitted.
Notice be issued to the Opposite Parties No. 1 & 2 only, returnable on 09.12.2014 with the direction to file written statement within 30 days + 15 days with application of extension, which must be moved within first 30 days, otherwise this Commission will be constrained to forfeit the right to file the written statement under section 13(1)(a) of the Consumer Protection Act."
21. It is necessary to point out at this stage that the said Order might appear to be slightly unclear in as much as the application moved was for the deletion of the Opposite Parties Nos. 3, 4 and 5, but while passing the Order, it recites that the Counsel for the Opposite Party No. 5 is present and he is discharged. The complaint was admitted and then notice was issued to the Opposite Parties Nos. 1 and 2 "only" without there being any application separately filed for bringing the Opposite Parties Nos. 1 and 2 back on record as was directed by the Order dated 07.10.2013. It seems that the matter proceeded on the presumption that it is now only the Opposite Parties Nos. 1 and 2 who would be answerable to the allegations made in the Complaint.
22. The Opposite Party No. 1 had not appeared as he had not been noticed earlier and the Opposite Party No. 2 on putting appearance had not filed the written statement within a period of 30 days + 15 days, as such on 09.12.2014, an Order was passed forfeiting the right of the Opposite Party No. 2 to file the written statement. However, a prayer was made on behalf of the Opposite Party No. 2 by the learned Counsel for an adjournment to enable them to file an application for delay condonation and accordingly the matter was adjourned on a cost of Rs. 15,000/- payable to the Complainant with 15 Page | 21 days time to file the delay condonation application. The Order dated 09.12.2014 is extracted hereinunder:
"None for the complainant and OP-1. Counsel for the opposite party No. 2 is present. Written statement has not been filed within 45 days. The right to file the same is forfeited. Counsel for OP-2 submits that he has brought the written statement today but he has not filed the application for condonation of delay. He prays for adjournment to file the application for condonation of delay.
Adjournment is granted subject to payment of Rs.15,000/- as costs, which will be paid to Kwang Sung Brakes Pvt. Ltd. through demand draft directly. Application for condonation be filed within 15 days with an advance copy to the opposite party's counsel, otherwise that right, too, shall stand forfeited.
Reply and arguments on the application for condonation of delay, on 22.04.2015."
23. The delay condonation application no. 9078 of 2014 was allowed on 22.04.2015 recording that there was a delay of 265 days in filing of the written statement and therefore a sum of Rs. 1 lakh was imposed as cost and the application was allowed in the light of an Order passed by the Apex Court referred to therein. The Order dated 22.04.2015 is extracted hereinunder:
"Counsel for the parties present. Costs paid. Application for condonation of delay in filing written statement has been moved by OP No.2. There is delay of about 265 days in filing the written statement. Counsel for the complainant has no objection if the application is allowed. Keeping in view the facts and circumstances, we condone the delay subject to payment of costs in the sum of Rs. 1,00,000/-, which be paid directly to the complainant, Kwang Sung Brakes Pvt. Ltd., by means of a demand draft. We have imposed costs as per the judgment of the Hon'ble Supreme Court passed in Civil Appeal No.8166 of 2014, decided on 27.08.2014, titled Kolte Patil Developers Ltd. Vs. Bhupendra Bhandari.
Page | 22 Although, this case is a worse case, where there is delay of more than six months', yet, we take a sympathetic view and impose the same costs. Subject to payment of the said costs, within 45 days', from today, the written statement will be read in evidence. Otherwise, the right to read the written statement shall stand forfeited.
IA/9078/2014 stands disposed of.
Case is now fixed for rejoinder and complainant's evidence, on 29.03.2016."
24. Thus it was only the Opposite Party No. 2 who contested the complaint in the background above and filed the written statement on 23.12.2014 which was taken on record. It may be pointed out that in the Order dated 22.04.2015, time was granted to the Complainant to file rejoinder and evidence. We have gone through the record as well as the Ordersheets thereafter including the Ordersheets dated 06.10.2016 and 14.03.2017 from which it can be gathered that the Complainant failed to file any rejoinder to the written statement of the Complainant. Instead, the Complainant filed an application for early hearing that was rejected.
25. The Opposite Party No. 1 was not appearing as according to it no application was moved to implead them and the notices were never served on them. We will point out the details in this respect immediately after narrating the sequence of the pleadings.
26. It is evident from the record that after the case proceeded, the Complainant filed their evidence affidavit on 18.07.2017, which is on record. The evidence affidavit of the Opposite Party No. 2 was filed on 29.01.2019.
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27. It appears that the case could not proceed thereafter and then the Covid intervened. The Complainant and the Opposite Party No. 2 also filed their written synopsis on 01.07.2022 and 18.08.2022 respectively.
28. Then came another round of an interesting turn in the litigation when on 04.10.2022, a Bench of this Commission noticed that the Complainant had not complied with the Order dated 07.10.2013 that required the moving of an appropriate application for impleadment / deletion as directed therein. The Order dated 04.10.2022 is extracted hereinunder:
"Order dated 7.10.2013 be complied by Learned Counsel for the Complainant. List the matter on 12.12.2022 for directions."
29. Needless to point out that an application to delete the Opposite Parties Nos. 3, 4 and 5 had been filed and was seemingly allowed in not very clear terms on 14.12.2014. The Order has already been extracted hereinabove, but for practical purposes, the Opposite Parties Nos. 3, 4 and 5 stood deleted and the case had proceeded only against the Opposite Parties Nos. 1 and 2.
30. It seems on the passing of the Order dated 04.10.2022, the Complainant woke up and filed I.A. No. 3491 of 2023 for impleading the Opposite Party No. 1 M/s. Lom Logistics India Pvt. Ltd. who were the carrier agents and had engaged the Opposite Party No. 4 M/s. Vidya Transport as their inland transporter. I.A. No. 3492 of 2023 was also simultaneously filed on 17.03.2023 by the Complainant praying that the Opposite Party No. 1 be commanded to respond to the Complaint in the circumstances therein.
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31. These two applications purportedly filed in compliance of the Order dated 07.10.2013 read with the Order dated 04.10.2022 was taken up for consideration and the following Order was passed on 19.12.2023:
This is yet another complaint where things have complicated on account of certain orders passed by this Commission as also the nature of the contest which has been put forth.
It is averred in the complaint that the Complainant had placed an order with regard to certain machinery and component parts of steering system of vehicles that were dispatched by the consigner in 35 boxes. The consignment was to be shifted from Korea to Chennai Port and then onwards to the destination of the Complainant.
A Marine Cargo Insurance Policy was taken by the Complainant from M/s Ace American Fire and Marine Insurance Company Korea for the amount as indicated in the complaint in respect of the said 35 boxes of the consignment.
The policy according to the Complainant was a warehouse to warehouse policy and the conditions of warranty applied in respect thereof. According to the Complainant, the claims if any are payable by the agents and surveyors of Ace American Fire and Marine Insurance Company Korea who are the Opposite Party No.2 herein.
According to the Complainant the loss and damage if caused would be reimbursable by the said insurance company and as a matter of fact the goods which were packed and dispatched in solid wooden boxes were suitably made to sustain the long transit of ocean and land transportation.
The goods according to the Complainant arrived on 03.11.2010 when the said consignment was off loaded from the vessel between 03.11.2010 and 05.11.2010 and was stored at Wharf of West Quay-3 and warehouse at Chennai Port between 03.11.2010 to 24.11.2010. It is alleged by the Complainant that after the formalities of the Custom Department were concluded, the said goods were loaded and dispatched to the Complainant factory premises at Chenngadu Village Sriperumbudur Taluk, Tamil Nadu on 24.11.2010 and were received on 25.11.2010. While unloading, the Page | 25 Complainant alleges 7 boxes out of 35 were discovered to have been opened and some machine parts went on missing. This according to the Complainant was also witnessed by the surveyor who arrived on 26.11.2010 and carried out the survey.
It is this dispute which has been raised in the complaint as according to the Complainant the second Opposite Party did not honour the full capacity of the risk covered under the Insurance Policy. The complaint was filed by arraying 5 Opposite Parties. The Opposite Parties No.3,4&5 arrayed were Chennai Port Trust, Vidya Transport and A. S. Shipping Agencies Private Ltd. respectively.
From the Order sheet, it appears that on 04.04.2013, when the Complaint was admitted, a request was made on behalf of the Complainant for deleting Opposite Party No.1,2&3 and they were accordingly deleted by the Complainant.
The order sheet dated 07.10.2013 records that the learned Counsel for the Complainant stated that the Opposite Party No.1&2 were necessary parties and Opposite Parties No. 3,4&5 were not necessary parties. This turn over request stands recorded in the order dated 07.10.2013 when a direction was given to the Complainant to move an application for correcting the same.
On 14.02.2014 arguments were heard and notices were issued to the Opposite Parties No.1&2 after the application for deletion of Opposite Parties No.3,4&5 was allowed and they were discharged. Thus the order dated 14.02.2014 re-introduced Opposite Parties No.1&2 in the array of parties and deleted Opposite Parties No.3,4&5.
So far as the Opposite Party No.1 is concerned, the written statement was not filed within 45 days and therefore vide order dated 09.12.2014 the right to file the same was forfeited. So far as Opposite Party No.2 is concerned, they were granted an adjournment and costs were also imposed. From the order sheet dated 22.04.2015, it appears that the delay on the part of the Opposite Party No.2 to file a written version was condoned on payment of Rs.1,00,000/- as costs.
The complaint was thereafter adjourned on several occasions, costs were imposed and the matter did not proceed on the merits or otherwise. Pleadings were allowed to be exchanged to the extent as was permitted and Page | 26 then the matter came to be listed in 2020 and then in 2021, with a direction to the parties to file their written synopsis. The written synopsis has been filed by the Opposite Party No.1&2.
The sum and substance of this entire narrative is to indicate that it is only Opposite Parties No.1&2 who stand recorded in this case and the Opposite Parties No.3,4&5 have already been discharged as indicated above.
From the narration of facts, it is appears that M/s Ace American Fire and Marine Insurance Company Korea are sought to be represented through Wilson Surveyors and Adjustors Pvt. Ltd. who are Opposite Party No.2.
In the above background, the matter has now to be proceeded with on the merits of the claim in respect of the loss alleged by the Complainant.
Learned Counsel for the Opposite Party No.2 has submitted that so far as the claim of loss of the 7 boxes and the machinery parts contained therein is concerned, they were offered to be indemnified by the Insurance Company which was however not accepted by the Complainant and they insisted on the full claim of all the 35 boxes.
Be that as it may, the issue on merits therefore has to be proceeded with and this is a 2012 complaint with all the aforesaid interventions of the orders passed by this Commission. Nonetheless as the learned Counsel for the Opposite Parties and learned Counsel for the Complainant are seeking an adjournment, let the matter come up on 16.04.2024."
32. The Complaint witnessed another round of contest when Opposite Party No. 1 M/s. Lom Logistics India Pvt. Ltd. contesting these two applications filed written submissions. After deliberations in detail, I.A. No. 3491 and 3492 of 2023 were heard and the following Order was passed on 16.04.2024:
"This is one of those cases the proceedings whereof and the progress is one of the examples that can be cited for clogging the docket of this Commission with unnecessary adjournments and litigation not only because of the various applications which were moved but because of some uncertain orders being passed without entering into the records of the case.
Page | 27 The chequered history of the case is that in the year of 2012, the present Complaint was filed arraying five Opposite Parties. The journey of the orders adding confusion began with the order dated 04.04.2013, which is extracted here in under: -
"Learned Counsel for the Complainant heard. Counsel for the Complainant deleted the opposite parties No. 1,2 and 3. Admit, Notice be issued to the remaining opposite parties for 07.10.2013 with the direction to file written version within 30 days from the date of their service."
Accordingly, the Complaint was admitted with the deletion of the Opposite Parties No. 1, 2 and 3. As a result, whereof notice was issued only to remaining Opposite Parties No. 4 and 5. Later on, on 07.10.2013, the following order was passed:-
"Counsel for the complainant, Mr. Vimal Pani for Mr. R. Prabhakaran & Mr. G.S. Mani, Advocate present. He submits that in the last order dated 04.04.2013, Opposite Parties No.1,2 and 3 were deleted and notices were served to the Opposite Parties No.4 and 5.
He submits that Ops-1 and 2 are the necessary parties and Ops No.3,4 and 5 are not the necessary parties.
It is hereby directed to the Complainant to file the application in detail for his contention, within one week.
The matter is adjourned to 01.11.2013".
The array of Parties therefore took a U-turn when a statement was made by the learned counsel for the Complainant that the Opposite Parties No. 1 and 2 deserve to be retained and the Opposite Parties No.3, 4 and 5 need to be deleted.
Consequently, the Opposite Party No.3 stood deleted by the order dated 04.04.2013, and also again by the order dated 07.10.2013. The Opposite Parties No. 4 and 5 were deleted on 07.10.2013, and what remained were the requests of continuing the Opposite Parties No.1 and 2 subject to an application to be moved in this regard within one week.
The order sheet dated 01.11.2013, records that the Complainant did not file any application and then, an application was moved for deleting the Opposite Parties No.3, 4 and 5 which was allowed and the Complaint was Page | 28 again admitted with fresh notice to the Opposite Parties No.1 and 2. The order dated 14.02.2014, is extracted here in under: -
"Proxy Counsel for the Complainant is present. He has moved an application for deletion of Opposite Parties No.3, 4 and 5. Counsel for OP-5 is present. He is hereby discharged.
Arguments heard.
The case stands admitted.
Notice be issued to the Opposite Parties No. 1 and 2 only, returnable on 09.12.2014 with the direction to fil written statement within 30 days + 15 days with application of extension, which must be moved within first 30 days, otherwise this Commission will be constrained to forfeit the right to file the written statement under section 13(1)(a) of the Consumer Protection Act".
From the office records (correspondence file) a noting appears of 10.03.2014, that as directed vide order dated 14.02.2014, notices were issued along with a copy of the Complaint to the Opposite Parties No.1 and 2. It seems that the Opposite Party No.2 stood served whereas the noting and notes on the correspondence file are to the following effect.
"Notice sent to Opposite Party No.1 received back undelivered with the postal remarks (left)".
Thus, it is evident that the Opposite Party No.1 was not served at all and the case continued with the Opposite Party No.2 having been served. On 09.12.2014, adjournment was sought along with a Condonation of delay application by the Opposite Party No.2 to file the written version on record which was allowed with Rs. 15,000/- as costs.
This cost was enhanced to a sum of Rs. 1,00,000/- vide order dated 22.04.2015, and again 45 days' time was granted to the opposite Party No.2 to file the written version. The written version was accordingly filed by the Opposite Party No.2 which is on record, to which a rejoinder has also been filed. However, an observation was made that in the event the written version is not filed the right to file shall stand forfeited. However, the said contingency did not arise as the written version was accepted on record and time for filing rejoinder was granted with Rs. 15,000/- costs on 09.03.2016. Further, cost of Rs. 15,000/- was imposed on 06.10.2016, extending the time for filing the rejoinder affidavit. Applications were moved for early hearing, which were Page | 29 rejected since the rejoinder affidavit was not filed and another opportunity was given on 14.03.2017, with a condition of cost of Rs. 60,000/-.
The matter was engaging the attention of the Bench only on payment of cost when ultimately the covid intervened and all matters were adjourned due to the Pandemic.
On 13.01.2021, directions were issued for filing the written synopsis and dates were fixed for final arguments and the matter was adjourned. Thereafter, on 04.10.2022, an order was passed calling upon the Learned Counsel for the Complainant to comply with the order dated 07.10.2013, requiring the Complainant to file an application for impleadment of the Opposite Party No.1. It appears that pursuant thereto, no application was filed, yet notice was tendered privately by the Complainant to the Opposite Party No.1 by email on 31.08.2022, for 04.10.2022, whereupon the Opposite Party No.1 appeared through proxy counsel without there being any application for impleadment by the Complainant, as noted above.
The Complainant was called upon to supply a copy of the paper book to the Learned Counsel for the Opposite Party No.1 whereafter, Opposite Party No.1 came to be represented time and again without being impleaded and the case was directed to come up for hearing on 14.09.2023, and then again on 19.12.2023, when this Bench took notice of the pending proceedings and on a request made by the Learned Counsel for the Parties, after noting the major aspects of the dispute, granted adjournment as sought for by a detailed order which is on record.
The aforesaid facts were also noticed today, when the matter proceeded Mr. Prabhakaran, Learned Counsel for the Complainant who has joined online urged that an impleadment application being IA/3491/2023 has now been filed on 17.03.2023, to formally implead the Opposite Party No.1 a copy whereof has been served on the learned counsel for the proposed Opposite Party No.1 who has not been impleaded as yet. An objection has been filed on behalf of the proposed Opposite Party No.1, on 03.07.2023, which is in the shape of written arguments with a prayer that the impleadment application be rejected, which runs into 42 paragraphs. Keeping in view the nature of the contest put forth as to whether the proposed Opposite Party No.1 is a proper or necessary party or not, Learned Counsel for the Page | 30 Complainant who has moved IA/3491/2023 prays that the said impleadment application be allowed.
Another IA/3492/2023 has been moved for directions to the proposed Opposite Party No.1 to contest the present proceedings.
In effect, both the applications seek impleadment of the Opposite Party No.1 as a proper and necessary party which is being disputed and contested by Mr. Varadarajan Learned Counsel for the proposed Opposite Party No.1, contending that the application should be rejected and the proposed Opposite Party No.1 should be dropped from the proceedings.
Thus, after a span of 12 years, this Commission has now to proceed to first, to determine as to whether the Opposite Party No.1 is a proper and necessary party or not. Learned Counsel for both the parties are requested to study the subject in the light of the law laid down by the Apex Court in the case of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar and Another, AIR 1963 Supreme Court 786.
"The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi- judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the affected party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it. Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any or that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party.
In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order, but whose presence may facilitate the settling of all the Page | 31 questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a parry or such a party may suo motu approach the court for being impleaded therein".
As to whether the proposed opposite party No.1, in the background of the litigation, is a proper or a necessary party or not, this issue with regard to impleadment of the proposed Opposite Party No.1 has to be disposed of before calling upon it or giving it time to file a written version, as from the facts narrated herein above the opposite Party No.1 was never put to notice calling upon it to answer the Complaint and was consciously deleted and even till date, the issue of his impleadment is yet to be decided as the impleadment application was filed in 2023.
Let the matter come up on 06.08.2024, by which time Learned Counsel for the Complainant may file a reply to the objections taken by the proposed Opposite Party No.1 to the impleadment application.
33. All these facts were noted in detail together with the pleadings and the written submissions on record and the aforesaid two applications were finally rejected on 20.08.2024 with a direction that the matter shall be now listed for final hearing. The case was listed thereafter and was adjourned on 28.03.2025 on the request of the learned Counsel for the Complainant and was fixed for 23.05.2025.
34. As noted in the Ordersheet, a request had been made by the learned Counsel, who appeared online holding brief for Mr. Prabhakaran to adjourn the matter as he was not available on account of his pre-engagement. We declined to entertain the request for adjournment and we reserved Orders keeping in view the fact that the pleadings as aforesaid were on record and the written arguments were also available. Learned Counsel also stated that Page | 32 they were awaiting instructions as instructions had not arrived from the Complainant.
35. In the said backdrop, it is evident that the case has meandered for a long duration and a lot of time was consumed on arguments on the impleadment and deletion of parties as narrated above ending up in the date 20.08.2024, which seems to have become final and was not subject matter of any challenge.
36. With the aforesaid developments in the case, it is only the Opposite Party No. 2, Wilson Surveyors and Adjusters Pvt. Ltd. who remained on record in the array of parties even though the allegation made by the Complainant in the complaint and in their evidence affidavit was against all the Opposite Parties and the specific allegation against the opposite Party No. 2 contained in paragraph „21‟ of the evidence affidavit is to the following effect:
"21. I state that the chain of events leads to the logical conclusion that the 2nd Opposite party has colluded with the other third parties including the 3rd, 4th and 5th Opposite Parties, with the dishonest intention to cheat and defraud the Complainant right from the inception so as to cover up any snag or dereliction of duty of the part of these opposite parties."
37. The allegation therefore against the Opposite Party No. 2 is in combination with all the other allegations that have been made against the other Opposite Parties who were either deleted or Orders were passed in this respect finally on 20.08.2024 as a result whereof it is only the Opposite Party No. 2 who survives and has contested the complaint on whose behalf Mr. Abhishek Pratap Singh has appeared and advanced his submissions and has Page | 33 also pressed into service his written submission along with the contents of the written statements and the evidence affidavit filed by the Opposite Party No. 2.
38. The first major contest raised by the Opposite Party No. 2 is that there is no privity of contract or insurance or indemnity with the Opposite Party No.
2. The contract of insurance was with M/s. ACE American Fire and Marine Insurance Company, Korea and therefore in the absence of any such contract neither any damages nor any liability can be claimed as against the Opposite Party No. 2. The said contention is correct and even otherwise there is no vicarious liability that can be pegged on the Opposite Party No. 2. The Opposite Party No. 2 has discharged all his obligations towards sending of communications to the insurers including its survey report.
39. Another major plea taken is that the Complainant had wilfully and deliberately concealed the communications that ensued from 28.12.2011 onwards intimating the Complainant of the settlement offer made by the Insurance Company through the Opposite Party No. 2 which is evident from the communications quoted above. These facts have nowhere been stated either in the complaint nor have they been rebutted by filing any rejoinder affidavit. Even the evidence affidavit filed by the Complainant does not contain any recital or explanation as to why they did not choose to respond to the offer of settlement as indicated in the mail dated 28.12.2011 dispatched by the Opposite Party No. 2 to the Complainant. It is urged that there is no denial of the receipt of the said information and there is also no explanation as to why the Complainant did not offer their subrogation receipt or forwarded the details Page | 34 to the under writers as desired therein. Not only this, repeated reminders were sent thereafter till 08.01.2013, which was even during the pendency of the complaint. However, the said communications referred to in the reply were very much in the knowledge of the Complainant when they had filed the complaint on 30.10.2012 yet they did choose to disclose the same and was deliberately withheld. The contention therefore in the written submission as well as in the written statement and evidence affidavit of the Opposite Party No. 2 is that this concealment amounts to a suppression of material fact by the Complainant to obtain Orders by misleading this Commission and there being no rebuttal to the same, this should be sufficient to reject the complaint.
40. Learned Counsel for the Opposite Party No. 2 therefore submits that there is no claim surviving against the Opposite Party No. 2 and the complaint being bereft of any proper or necessary parties, the same deserves to be dismissed. It is further submitted that the Opposite Party No. 2 is not the insurance agent and is a mere surveyor entrusted with the task of facilitating the survey that was carried out and forwarded to the insurer. It is urged by the learned Counsel that there was no defect pointed out in the carrying out of the survey and therefore there was no deficiency as against the Opposite Party No. 2 that could be made the basis of the challenge raised in the present complaint. It is therefore urged that the complaint has no merit and the complaint deserves to be dismissed.
41. Having considered all the submissions, the only allegation made against the Opposite Party No. 2 is contained in paragraph 21 of the complaint that Page | 35 has been extracted hereinabove. There is no other deficiency pointed out against the Opposite Party No. 2. The Opposite Party No. 2 is a Surveyor and was a communication facilitator between the Complainant and the Insurance Company in Korea. Apart from this, there is no liability or any obligation arising out of any loss or damage suffered by the Complainant. Consequently, the contention of the learned Counsel for the Opposite Party No. 2 is correct that there is no privity of contract between the Complainant and the Opposite Party No. 2. Accordingly, in the absence of any such obligation on the Opposite Party No. 2 either arising out of the policy or having been cast on them otherwise, the Opposite Party No. 2 cannot be held liable in any manner whatsoever. The other reason is that the Opposite Party No. 2 was only a Surveyor and after carrying out the survey, the Opposite Party No. 2 had dispatched the survey report promptly whereafter, the Insurance Company had called upon the Complainant to submit their documents which admittedly they did not do. The Complainant had been offered a settlement which was not accepted by them. Thus there was nothing as against the Opposite Party No. 2 who had fully discharged its obligation in communicating the claim of the Complainant to the Insurance Company and the response of the Insurance Company back to the Complainant. There was no deficiency in service that could be alleged against the Opposite Party No. 2.
42. The allegation made in paragraph 21 about collusion of the Opposite Party No. 2 with the other Opposite Parties is imaginary and is nowhere substantiated by any fact or by any evidence or pleadings. Collusion is not an Page | 36 ornamental term to be used loosely. It amounts to imputing a motive depicting a secret arrangement for purposes of fraud or to evade law. Collusion means working together to deceive or injure another. To allege connivance without any proof therefore cannot lead to an assumption of collusion. Accordingly, this allegation against the Opposite Party No. 2 by the Complainant is unfounded and is liable to be rejected.
43. The Complainant by its own conduct did not choose to sue the Insurance Company in this complaint for reasons best known to it. It is quite possible that the territorial jurisdictional issues would have arisen and therefore the Complainant did not choose to implead the Insurance Company. The Opposite Party No. 2 is not an agent of the Insurance Company nor any such material is available on record to construe the status of the Opposite Party No. 2 as an agent. Consequently any deficiency on the part of the Insurance Company cannot be transferred to make the Opposite Party No. 2 jointly and severally liable for such a deficiency and if at all, on the part of the Insurance Company. This is yet another reason to reject the contentions against the Opposite Party No. 2.
44. The status of the Opposite Party No. 2 is not that of a delegate or a deputy appointed by the Insurance Company for any vicarious service. The Complainant therefore cannot be treated even as a proxy of the Insurance Company even though as indicated above, the Opposite Party No. 2 carried out all its responsibility as a Surveyor and dispatching the report as well as the information to the Insurance Company.
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45. Lastly, it would be apt to confirm that the Complainant has deliberately withheld the entire information regarding the communication between the Opposite Party No. 2, the Insurance Company and its intimation to the Complainant that commenced with the mail dated 28.12.2011 reflecting the offer of the settlement by the Insurance Company. We find that the arguments on behalf of the Opposite Party No. 2 is correct that no explanation has been afforded by the Complainant either by way of rejoinder or by way of evidence explaining their conduct for not disclosing these facts in the complaint or even thereafter.
46. Consequently, for all the reasons discussed hereinabove, the complaint completely lacks merit as against the Opposite Party No. 2 and is therefore dismissed.
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(A.P. SAHI, J) PRESIDENT .......................................
(BHARATKUMAR PANDYA) MEMBER Pramod/Court-1/CAV Page | 38