State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs M/S. R. Piyarelall Import & Export Ltd. on 9 April, 2010
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/511/09 DATE OF FILING: 24.12.09 DATE OF FINAL ORDER: 09.04.2010 APPELLANT United India Insurance Co. Ltd. Regional Office 38B, J.L. Nehru Road Kolkata 700 071 RESPONDENT M/s. R. Piyarelall Import & Export Ltd. 12, Govt. Place (East) Kolkata 700 069 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER FOR THE APPELLANT : Mr. S. Basu, Advocate FOR THE RESPONDENT : Mr. U.C. Jha, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed against order dated 04.11.09 passed by District Consumer Disputes Redressal Forum, Kolkata Unit-II in C.C. Case No.95/2002 (C.C. 55/2000 of District Consumer Disputes Redressal Forum, Kolkata Unit-I) whereby the complaint was allowed with cost directing payment of compensation of Rs.3,45,495/- on account of insured value, compensation of Rs.50,000/- on account of loss of bank interest, stress and strain and cost of Rs.5,000/-.
The case of the complainant as made out in the complaint, is that the complainant obtained insurance coverage on 20,000 bags of Green Mung Beans shipped from Yangon to Bombay and coverage was given from 25.9.95 issuing Marine Cargo and Duty Insurance Policies in favour of the complainant.
The insurance covered loss or damage to the subject matter insured except as provided in Clauses 4,5,6 and 7 and such cover attaches from the time the goods leave the warehouses or place of storage at Yangon for the commencement of the transit and continues during the ordinary course of transit and terminates either on delivery to consignees or other final warehouses or place of storage at the destination i.e. Bombay.
The Insurer appointed surveyor to conduct survey on 20,000 bags of Green Mung Beans at Bombay Port and report dated 21.11.95 was submitted. The report certified that out of 20,000 bags 1,000 bags were found sweepings and contaminated with dust and dirt and other mixed beans which were cleared under a joint survey with the Ship Surveyors and the Surveyors who ascertained that net shortage was of 9252 kgs. and damage to 12,294 kgs. out of 1,000 damaged bags and assessed depreciation allowances @ 30% on the net weight of 40,980 kgs. of damaged Green Mung Beans. The complainant obtained Landing Particulars Certificate from Bombay Port Trust and arranged for weighment of damaged bags by Bombay Port Trust before clearance for the purpose of ascertaining the net quantum of shortage and damage. The complainant served notice of claim for Rs.2,85,931.70 P upon the steamer agents on 09.1.96 supported by relevant claim documents. The complainant paid Customs Duty of Rs.6,64,109/- on the import of 20,000 bags of Green Mung Beans weighing 991.480 MT as per Bill of Entry dated 04.10.95 and in terms of the policy condition for proportionate refund of duty amounting to Rs.14,431.94. The complainant submitted their claim notice and bill for Rs.3,45,495/- supported by relevant documents. As repeated correspondence did not produce any result the present complaint was filed praying for insured value of the claim at Rs.3,45,495/-, compensation of Rs.50,000/- and interest.
Heard Mr. S. Basu, the Ld. Advocate for the Appellant. The first contention of Mr. Basu is that the matter was decided by the Forum without service of any notice upon the OPs after the case went back on remand by the State Commission. In support of this contention no material could be produced by the Appellant. On the contrary in the order dated 12.2.07 the Forum below recorded that the S/R had been received but none was present for the OPs. This S/R was in view of notice to the OPs as directed on 06.12.06. Therefore, there is no substance in the said contention.
The next contention of the Appellant is that requirements of Section 64-VB of the Insurance Act, 1938 were not satisfied.
The next contention of the Appellant is that the vessel by which the consignment was sent was not authorized under GIC Rules and no additional premium was paid by the complainant. The next contention of the Appellant is that the findings in the survey report are disputed and therefore, the said survey report cannot be relied on. Mr Jha, the Ld. Advocate for the Respondent contended that the no document has been produced by the Appellant to show violation of Section 64-VB and the said contention has not been pleaded in the written version of the OP/Appellant and, therefore, should not be entertained at the Appellate stage. The Ld. Advocate further contended that the OP/Respondent did not prove that the vessel was not authorized and no additional premium was ever asked for on such contention that the vessel was not authorized under GIC Rules.
The next contention of the complainant/Respondent is that the survey report was never challenged or disputed by the Insurer and in such circumstances no dispute can be raised in respect of the said survey report in the present proceeding.
After considering the above contentions I find that contention with regard to compliance of Section 64-VB has been considered in the impugned judgment recording that the policies are covered by the provisions of Marine Insurance Act of 1963 and in view of Section 23 of the said Act the policies in question cannot be said to be vitiated for non-compliance of the said Section 64-VB. Mr. Basu, the Ld. Advocate for the Appellant though argued that balance premium was not paid in time for particular consignment but has not shown any material in support of this contention or to contradict the findings of the Forum in respect of contention on Section 64-VB.
As regards the vessel being not authorized under GIC Rules I find that the said contention was also considered by the Forum.
It was considered that such objection had not been raised by the Insurer at any point of time on the ground of non-approval of the vessel in question. It was also the case of the complainant that such non-approval of the vessel can be regularized by imposing additional premium. On behalf of the Insurer even in the appeal it has not been shown that the vessel was not so authorized or any additional premium was ever charged from the complainant. Therefore, this contention also has not strength and cannot be allowed to form a ground for repudiation of the claim.
As regards the survey report the Insurer has not shown that the same was not accepted by the Insurer at any point of time.
Therefore, the Insurer is not entitled to dispute the survey report at a later stage of the proceeding.
In view of the aforesaid findings as the contentions of the Appellant are found not substantiated, no interference is felt required with the impugned judgment and, therefore, the appeal is dismissed and the impugned judgment is affirmed. There will be no order as to costs.
(S. Majumder) (Justice A. Chakrabarti) MEMBER(L) PRESIDENT