State Consumer Disputes Redressal Commission
Chairman Board Of Trustees For The Port ... vs Kinjal Bearing Co. on 23 March, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1249/2014 (Arisen out of Order Dated 05/09/2014 in Case No. CC/15/2006 of District Kolkata-I(North)) 1. Chairman Board of Trustees for the Port of Calcutta 15, Strand Road, Kolkata - 700 001 ...........Appellant(s) Versus 1. Kinjal Bearing Co. A sole proprietorship firm, 510, Shreemanta Market, A.T. Road, Guwahati-781 001(Assam) represented by Sri Alip Roy, Prop., 7/A, Priyanath Chakraborty Lane, Kolkata-700 035. 2. American Home Assurance Co., Singapore, a foreign Co. office at 22, Martin Road, Singapore - 239058. 3. Tata AIG General Insurance Co. Ltd. Tata Centre, 1st Floor, 43, Jawaharlal Nehru Road, Chowringhee Road, Kolkata -700 071, P.S. - Park Street. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: For the Respondent: Dated : 23 Mar 2018 Final Order / Judgement Sri Shyamal Gupta, Member
Present Appeal emanates out of the Order dated 05-09-2014 passed by the Ld. District Forum, Kolkata, Unit-I (North) in CC/15/2006 whereof the complaint has been allowed.
Brief facts of the complaint case are that the Complainant imported some goods from abroad duly insured. Unfortunately, while the goods were kept in the custody of the OP No. 3, the same caught fire. On the basis of information given by the Complainant, the Insurance Company deputed a Surveyor who assessed the loss and submitted his report before the OP Insurer. However, insofar as the OP No. 3 did not issue any Damage Certificate in favour of the Complainant, the OP Insurance Company settled the claim on non-standard basis; hence, the complaint.
Appearing to contest the case, the OP No. 3 submitted that the Complainant is not a consumer. Further case of this OP is that the goods landed at the dock on 02-11-2004 and on 06-11-2004, the same was destuffed in trivial damaged condition. Since the Complainant did not furnish necessary ownership documents (jetty challan, Bill of Entry and related shipping documents such as Bill of Lading duly endorsed in favour of the Complainant by the Steamer agent and container agent along with invoice, packing list etc.) in order to prove their ownership of the cargo, this OP could not issue any damage certificate in favour of the Complainant.
Decision with reasons Heard the Ld. Advocates of the parties and gone through the material on record.
It appears from the petition of complaint (para 23) that the Respondent No. 1 prayed for a direction upon the Respondent Nos. 2 and 3 to pay the remaining 25% of the balance claim amount. It, thus, appears that the instant complaint was primarily filed over non-settlement of the insurance claim to the entire satisfaction of the Respondent No. 1 by the Respondent Insurers.
In its celebrity order in M/S. Harsolia Motors vs M/S. National Insurance Co. Ltd, [I (2005) CPJ 26 (NC)], the Hon'ble National Commission observed that a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit implying that in case of insurance related disputes, the issue of commercial purpose has got no bearing to determine the status of the petitioner as a 'consumer'. Therefore, the objection of the Appellant in this regard is not tenable.
The Appellant also contended that the Respondent No. 1 filed a Money Suit before the City Civil Court on the self-same subject matter inter alia claiming compensation and damages against this Appellant which is still pending. Accordingly, this case is not maintainable.
As noted hereinabove, the present complaint was filed over unsatisfactory settlement of insurance claim; whereas, admittedly, the money suit has been filed against the Appellant, where the Respondent Nos. 2 and 3 have even not been made parties to the case. Since the relief sought for in both the cases and the concerned parties are altogether different, in our considered opinion, pendency of Money Suit has got no bearing in the present case.
It appears from the record that the Appellant vide its letter dated 20-07-2005 asked the Respondent No. 1 to furnish necessary documents to prove ownership as per procedure to enable it to issue necessary certificate in respect of the consignment. However, no such document is placed on record from the side of the Respondent No. 1 to show that it fulfilled such demand of the Appellant. Against such backdrop, we find no fault on the part of the Appellant over non-issuance of damage certificate in favour of the Respondent No. 1.
It further appears from the impugned order that the Ld. District Forum held the Appellant jointly liable to pay the decretal amount. However, insofar as the Respondent No. 1 in para 23 of its petition of complaint clearly sought for due relief from the Respondent Nos. 2 and 3, by holding the Appellant jointly liable to pay the decretal amount, it appears, the Ld. District Forum committed jurisdictional error. In view of this, we are inclined to alter the order slightly to set right such error.
The Appeal, thus, succeeds.
Hence, O R D E R E D The Appeal stands allowed on contest against the Respondent No. 1. The Appellant is hereby exonerated from the liability of paying any decretal amount to the Respondent No. 1. The impugned order shall otherwise remain unaltered. However, Appellant shall issue requisite damage certificate in favour of the Respondent No. 1 within 15 days of receipt of relevant ownership documents from the latter. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER