National Consumer Disputes Redressal
Bajaj Allianz General Insurance Co. ... vs Karthik Alloys Ltd. on 18 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 2323 OF 2017 (Against the Order dated 30/06/2017 in Complaint No. 8/2016 of the State Commission Goa) 1. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. & ANR. ...........Appellant(s) Versus 1. KARTHIK ALLOYS LTD. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. Ankit Chaturvedi, Advocate For the Respondent :
Dated : 18 May 2018 ORDER JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainant which is engaged in the manufacturing and trading of Silico Manganese Alloys, obtained an Open Marine Insurance Cover from the petitioner company for the period from 14.09.2013 to 13.09.2014 in respect of marine transits from India to anywhere in the world with per location limit of Rs.2,25,00,000/-. The complainant obtained an order for supply of 500 MT (+/- 5%) of Silico Manganese from an overseas buyer @ USD 1,227 per MT. The complainant engaged services of two companies namely Topstar Suppliers Pvt. Ltd. and Eastern Carriers, for shipment and export of consignment of 140 MT Silico Manganese to Italy. Those two companies engaged M/s Gorsia Terminal Services for taking the consignment to Haldia Dock Complex of Kolkata Port for shipment. Five containers, loaded on five trucks/lorries were sent for the purpose of the said transportation and they arrived at the factory of the complainant on 09.03.2014. The loading was carried out on 9th/10th March' 2014 in the presence of the officials of Excise Department and the Executive of Bureau Veritas (India) Pvt. Ltd. After loading, samples were collected from each container and thereafter, Excise officials sealed the containers. The transporter then applied the shipping liner's seals on the containers. The seals of Bureau Veritas (India) Pvt. Ltd. were also applied on the said containers. Thus, every container had been sealed with three seals i.e. the seal of Excise Department, the seal of shipping liner and the seal of Bureau Veritas (India) Pvt. Ltd. The Excise Department also issued a certificate with respect to weighment and sealing in the factory compound of the complainant. Four trucks departed from the factory of the complainant on 10.03.2014 for Haldia Dock Complex of Kolkata Port whereas the fifth truck departed on 11.03.2014. The containers on arrival at Haldia Dock Complex, were taken for custom clearance on 15.03.2014 and the consignment was shipped on 21.03.2014.
2. In May 2014, the overseas buyer informed the complainant that the consignment was found mixed up with sizeable volume of slag and iron powder, in three containers. The aforesaid intimation was given to OP No.1 on 08.05.2014. There was exchange of mails between the complainant and the overseas surveyor engaged by the claim settling agency of the insurer. This is also the case of the complainant that it had to refund an amount of USD 39,002 to the overseas buyer by adjustment of accounts on account of short receipt of the material as well as on account of surveyor inspection and analysis fees, the same being USD 3,676. The claim lodged by the complainant for re-imbursement in terms of the insurance policy taken by it however, was repudiated by the appellant vide letter dated 06.04.2015.
3. Being aggrieved from the rejection of the claim, the complainant approached the concerned State Commission by way of a Consumer Complaint. The complaint was resisted by the insurer primarily on the ground on which the claim had been repudiated.
4. The first ground of repudiation of the claim was that the consignment had been handed over to the transporter even before the seals were fixed on them by the Inspectors of Central Excise. In this regard, it was noted by the State Commission that the trucks with tankers had arrived at the Angadpur Factory of the complainant for loading the consignment, in the morning of 09.03.2014. The Managers of the complainant stated in their affidavits on oath that the entire cargo was loaded in the containers under the supervision of the surveyor of M/s Bureau Veritas (India) Pvt. Ltd. and was completed in the presence of the officials of the Central Excise Department and the representatives of Bureau Veritas (India) Pvt. Ltd. whereafter the Excise Department sealed the consignment followed by transporter applying the seal of shipping Liner and the representative of Bureau Veritas (India) Pvt. Ltd. applying his own seal. The aforesaid sealing as well as the loading of the cargo as per invoice specifications were confirmed in the report of Central Excise Department and the certificate issued by Bureau Veritas (India) Pvt. Ltd. Therefore, there is no evidence of the consignment having been handed over by the complainant to the transporter, before the cargo was duly sealed with the seal of Excise Department, the seal of the shipping liner and the seal of Bureau Veritas (India) Pvt. Ltd.
5. The second reason given in for repudiating the claim was that one of the container bearing no. 3992406 was replaced by container number 3992407. The State Commission noted in this regard that as per the goods received, shipping bill and other documents, the number of the container was 3992406. The State Commission rightly felt that the complainant could not have any control on the container after the vehicle had left its factory. If the container had been replaced during the transit while in custody of the transporter, such replacement cannot be attributed to the complainant nor it can be said to have been done in connivance with it. Therefore, I find no merit in the second ground on which the claim had been repudiated.
6. The third reason given for repudiating the claim was that challan number 16/C dated 07.03.2014 which was received at Haldia Port on 12.03.2014 and allowed for shipment on 15.03.2014, did not carry any container number or seal number. As rightly noted by the State Commission, the complainant cannot be held responsible for the container number and seal number not being recorded on the port challan issued by the Port Trust, since at the time the goods were brought to the port, they were under the control of the carrier and not under the control of the complainant.
7. The fourth ground given in the repudiation letter was that no video recording of sealing, loading and inspection process was produced. It was noted by the State Commission in this regard that there was no term in the insurance policy requiring video recording of sealing, loading and inspection process. Therefore, the aforesaid act cannot constitute negligence on the part of the OP.
8. The fifth reason given for repudiating the claim was that a sample of the consignment was not produced by the complainant. The State Commission noted in this regard that there was no material to establish that the insurer had at any point of time, asked for the sample of the consignment. Therefore, the aforesaid alleged failure to provide a sample of the consignment also does not constitute negligence on the part of the complainant and cannot be said to be a valid ground for repudiating the claim.
9. The next reason given in the repudiation letter for repudiating the claim was that in the normal course, there should have been seal of the consigner, the Excise Department and Bureau Veritas (India) Pvt. Ltd. on the container, but the pictures taken at the time of loading show only the Bureau Veritas (India) Pvt. Ltd. seals and not the M.S.C. seals. The State Commission noted in this regard and rightly so that no requirement to have three seals on the containers was made out by the insurer and the policy did not contain requirement of applying three seals on each container. Therefore, repudiation of the claim on the aforesaid ground was not justified.
10. The next ground given for repudiating the claim was that no FIR was lodged against the transporter who carried the consignment from Durgapur to Haldia taking inordinate time for delivering the consignment to the dock. The State Commission noted in this regard that the complainant did not suspect any mischief in the delay on the part of the transporter in carrying the goods from Durgapur to Haldia and therefore, there was no question of filing an FIR against the transporter. As noted earlier, the Central Excise Department as well as the Bureau Veritas (India) Pvt. Ltd. both had certified that the consignment as per the invoice had been loaded and sealed in their presence. The containers were later loaded on vessel with Bill of Lading and there was no occasion for the complainant to believe that the goods had been stolen or pilfered. Therefore, the complainant cannot be said to be negligent only because it did not register an FIR on account of the delay in taking the trucks loaded with containers from Durgapur to Haldia. As rightly noted by the State Commission in this regard, if the insurer so desired, it could itself lodge an FIR with the police against the transporter if it suspected the involvement of the transporter in the theft/pilferage of the goods.
11. The last reason given by the insurer for repudiating the claim is that the goods had been well stowed which affirm that people carrying the operation knew how to handle the material and the missing stolen goods were replaced by slag in the same quantity, thereby showing an organized crime. Even if this is so and the replacement of the material by slag had taken place with the connivance of the transporter/shipper, the complainant cannot be held responsible for the same unless it is shown that such replacement had taken place with its connivance. There is no evidence of the goods having been replaced with the consent or connivance of the complainant.
12. For the reasons stated hereinabove, I find no ground to interfere with the well-reasoned order passed by the State Commission. The appeal being devoid of any merits, is hereby dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER