State Consumer Disputes Redressal Commission
Indian Farmers Furtilisers Co Op Ltd vs M/S International Shipping And ... on 29 March, 2023
Details DD MM YY
Date of disposal 29 03 2023
Date of filing 20 04 2010
Duration 9 11 12
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 04
COMPLAINT NO.23 OF 2010
1. Indian Farmers Fertilizers Co-Operative Ltd.
Having its office at IFFCO Sadan-1,District
Center Saket Place, New Delhi - 110 017
2. IFFCO - Tokio General Insurance Co. Ltd.
Having its registered office at 34, Nehru Place
New Delhi - 110 017 and branch office at 505,
5th Floor, K.G.Marg, New Delhi - 110001 ...Complainants.
Vs.
M/S. International Shipping and Logistics FZE,
Jebelali Free Zone Lob 17
Suit 203, Dubai U.A.E.
P.O. Box No. 18490
through their Agents in In
J.M. Baxi & Co.
Sonawala Building
Ground Floor 29, Bark Street
Fort, Mumbai - 400 001
Branch office at Kandala ... Opposite Party
BEFORE: Dr. J. G. Mecwan, Presiding Member.
APPERANCE: Mr. Sandip Shah, L.A. for the Complainants,
Mr. Dakshesh Mehta, L.A. for the Opponent.
ORDER BY DR. J. G. MECWAN, PRESIDING MEMBER
JUDGMENT
1. The facts giving rise to the present Complaint are as set out herein under 1.1 It is the case of complainant that the Complainant No.1 is the Purchaser of above consignment of 32469.628 M/Ts of Dry Bulk Granule Uria, which was imported on their behalf by the President of India, Ministry of Chemicals and Fertilizer, Department of Fertilizer, Shastry Bhavan, New Delhi, under Invoice RUTVIK C.C. 23-10 Page 1 of 16 No.OMIFCO/U/08/18 dated 15TH April, 2008 for U.S.$ 4318460.520. The shipper/Seller of the said quantity of 32469.628 M/Ts. Dry Bulk Granule urea is Oman India Fertilizer S.A.O.C. (hereinafter referred to as the "said Shipper"). Further the Complainant No.1 states that the Government of India, Ministry of Chemicals & Fertilizer, on behalf of the Complainant No. 1 had chartered the said Vessel by executing Charter Party Agreement dated 10th April, 2008 with the Despondent Owner of the said Vessel, the opposite Party herein. 1.2 It is the further case of complainant that immediately after loading of the said consignment of 32469.628 M/T Urea to ascertain the actual quantity loaded on board the said Vessels, Draft Survey was carried out by Intertek Caleb Brett on behalf of the Master/ Despondent Owner of the Vessel. The Complainants states that after conducting Draft Survey, the said Intertek Calen Brett have issued their Draft Survey Report, confirming that as per the Draft Survey, Cargo loaded on the said Vessel weight 32469.628 M/Ts. The Opposite Party/Master of the Vessel have also issued their Statement of Facts after completion of the loading on the Vessel to confirm that 32469.628 M/Ts. Bulk Granule Urea was loaded on the Vessel..
1.3 It is the submission of complainant that in acknowledgement of receipt of the Consignment of 32469.628 M/Ts, in full quantity, the Master of the Vessel on behalf of the Despondent Owner/ the Opposite Party have issued clean on board B/L No.18/U/08 dated 15th April, 2008, for the full quantity of 32469.628 M/Ts. for carriage of the said consignment on board the Vessel M.V.S. Kala from Omifco Marine Terminal, Sur-Sultanate Omen to Kandla Port, in which name of the RUTVIK C.C. 23-10 Page 2 of 16 consignee is shown as Ministry of Chemicals & Fertilizer, Government of India and notifying party as the Complainant No.1.
1.4 It is the further case of complainant that as such being notifying party and the holders of the endorsed Bill of Lading for the said Consignment having paid the value thereof to the said sellers and the original Bill of Lading having been duly endorsed in its favour entitling it to take delivery of the entire consignment at the Kandla. They filed Bill of Entry No.237232 dt. 16.4.2008 for Home Consumption with the Customs.
1.5 It is the submission of complainant that after shipment of the Consignment by Oman India Fertilizer Company S.A.O.C. the Government of India sold and transferred the said Consignment to the Complainant No.1 by endorsing the said Bill of Lading as is evident from the endorsement on the face of the Bill of Lading. The Complainant No.1 states that as such being Purchaser, Notifying Party and endorsed holder of the Bill of Lading having paid value of the aforesaid Consignment, they are the owners of the said Consignment and entitled to take delivery at Kandla.
1.6 It is the case of complainant that the said Vessel carrying the said Consignment of Dry Bulk Granular Urea arrived at Kandla on or around 17.04.2008. As owners of the said quantity of dry Bulk Granular Urea and holders of the Original Endorsed Bill of Lading, the Complainant No.1 and Complainant No.2 as the Insurers of the said consignment had appointed M/s. Metcalfe & Hodgkinson (Pvt.) Ltd. and M/s. TCRC Surveyors & Assessors Pvt. Ltd. respectively as their surveyors to carry out the pre-discharge Survey on board the Vessel, to draw samples, to supervise the discharge and delivery of the said dry cargo of Urea to RUTVIK C.C. 23-10 Page 3 of 16 Complainant No.1. Pursuant to the said appointment upon the arrival of the said Vessel at Kandla Port, the Surveyors of both the Complainants along with Surveyor of the Charterer and Stevedores boarded that the said Vessel on 21.4.2008 and thereafter they carried out Draft Survey to determine the quantity discharge from the said Vessel and prepared and signed Draft Survey Report. Further it is the case of complainant that on completion of Draft Survey Report by the Surveyors it is found that cargo to the extent of 585.285 M.T.s has been Shortlanded from the Vessel and this Shortlanding is calculated on usual calculation method. Accordingly Metcalfe Hodgkinson (Pvt.) Ltd. the Surveyor for the Receivers Agent prepared its Report and sent it to appointee M/s. Rishi Shipping on 28.4.2008. Similarly TCRC Surveyors and Accessors Pvt. Ltd. appointed by the Complainant No.2, prepared their Survey Report and Loss Assessment Report showing Shortage/short landing of 585.285 MTs. 1.7 It is the case of complainant that after Shortlanding of 588.285 MT of Bulk Granular Urea was confirmed during the Draft Survey by M/s. Metcalfe & Hodgkinsons Pvt. Ltd., M/s. TCR Surveyors and Assessors Pvt. Ltd., J.B. Boda Surveyors Pvt. Ltd. and Fair Surveyors and Supdts. They Lodged their claim for shortages of 585.285 MT on the Opposite Party through their Agents M/s. J. M. Baxi & Company by their E-mail dated 22nd April, 2008 and followed by letter dated 7th May, 2008 forwarding therewith Surveyors Letter dated 21 st April. 2008 jointly signed by them, calculation for Shortlanded quantity and calling upon them to settle the claim for Shortlanding to which the Opposite Party or their Agents have failed and neglected to respond.
RUTVIK C.C. 23-10 Page 4 of 16 1.8 It is the submission of complainant that the Complainant No. I thereafter lodged their claim for the said loss on the Complainant No.2 who had insured their subject Consignment under Marine Policy Bearing No. 21374010, along with all necessary documents to support their claim for the Shortlanding of 585.285 MT and the Loss suffered due to the same. The Complainants states that on receipt of the Claim from the Complainant No.1 by the Complainant No.2, they processed the Claim for payment in terms of the Policy and the Complainant No.2 paid to the Complainant No.1 Rs.31,88.662/- (Rupees Thirty One Lakhs Eighty Eight Thousand Six Hundred Sixty Two Only) in discharge of their liability under the Marine Insurance Contract and obtained from the Complainant No.1 Claim Discharge Voucher and Letter of Subrogation and Special Power of Attorney both dated 21st April, 2009. The Complainant No.2 thereby making payment for the loss Subrogated themselves to all the rights and remedies of the Complainant No.1 in respect of the subject Claim in accordance with Section 79 of the Marine Insurance Act, 1963 entitling them to file the present Complaint jointly with and in name of Complainant No.1 as is decided by the Supreme Court of India in the case of Economic Transport Versus Charan Spinning Mills Ltd. and others (2010 AIR SCW 1687).
1.9 It is the case of complainant that since the Opposite party had received 32469.628 MT Bulk Granule Urea on their Vessel M.V. S. Kala for carriage from Port Sur Sultanate of Oman to Kandla as confirmed by their Chief Officer on Draft Survey Report issued by Intertek Caleb Brett and by the Master in the Bill of Lading 18U08 dated 15th April, 2008 issued on behalf of the Opposite Party, it was expected of the Opposite party to discharge and deliver the said full quantity RUTVIK C.C. 23-10 Page 5 of 16 of the Consignment at Kandla to the Complainant No.1. The Complainants states that however, the Opposite Party on account of deficiency in their Service at Kandla, Short delivered 588.285 MT from the said Consignment as is confirmed by the Discharge Port Draft Survey Reports issued by M/s. Metcalfe Hodgkinsons Pvt. Ltd., M/s. TCRC Surveyors and Assessors Pvt. Ltd., J. B. Boda Surveyors Pvt. Ltd. and Fair Surveyors and Supdts., and confirmed by Chief Officer of the Opposite Party by his endorsement on the Draft Survey Report. The Complainants state that though the claim for the said Shortlanding of 585.285 MT and as such non-delivery was lodged on the Opposite Party through their Agents J. M. Baxi and Company, the Opposite Party have failed and neglected to settle the said claim for Shortlanding resulting from their negligence and deficiency in their services. The Complainant further states that the Shortlanding of 585.285 MT from the Opponents Vessel M.V. S. Kala and as such non-delivery of the said quantity has resulted due to/ from their deficiency in services. 1.10 It is further case of complainant that non-payment of the value of Short landed quantity of 585.285 M.Ts. of dry Bulk Granular Urea to the tune of Rs. 37,87,964.00 by Opposite Party is illegal, unjust, improper, contrary to law and contract and hence the complainants are forced to approach this Hon'ble Consumer Disputes Redressal Commission, Ahmedabad. In above view of facts pointing out deficient services and non-payment of the value of shortlanding of 585.285 M.Ts. of dry Bulk Granular Urea to the tune of Rs. 37,87,964.00 by Opposite Party and claiming said amount in this Complaint. With 18% interest there on from 22/04/2008 till its realization & Sum of Rs. 25,000 as compensation and cost of this complaint.
RUTVIK C.C. 23-10 Page 6 of 16
2. In this complaint, complainant has submitted following documents:-
1. Copy of Invoice dtd. 15.4.2008
2. Draft survey report with statement of facts dt 13.4.2008 & 15.4.2008
3. Copy of Bill of Lading issued by Master of M.V.S. Kala dt 15.4.2008
4. Copy of Bill of Entry filed with Customs by Complainant dt 17.4.2008
5. Copies of Draft Survey Report at Kandla dt 17.4.2008 & 21.4.2008
6. Copy of report of Metcalfe & Hodgkinson (Pvt.) Ltd. dt 28.4.2008
7. Copy of loss assessment by TCRC Surveyors & Assessors Pvt. Ltd. dt 12.9.2008
8. Copy of email to J.M. Baxi & Co. dt 22.4.2008
9. Copy of letter to J.M. Baxi & Co. by complainants dt 7.5.2008
10. Certificate of insurance dt 11.4.2008
11. Copy of Claim Discharge Voucher dt 21.4.2009
12. Letter of Subrogation & Special Power of Attorney executed by complainant No. 1 dt.21.4.2009
3. Opposite party has submitted written statement which is on record on page no.47-53. Complainant has also submitted rejoinder which is on record on page no. 57-70. Furthermore on dated 20.1.2023 complainant has submitted copy of agreement between opponents and motor sheet owner MVSKALA dated 10.4.2008
4. Argument of Complainants:
Ld. Adv. Mr. Shah for the complainants argued out that at the time of loading of cargo draft Survey was carried out by Intertek Caleb Brett on behalf of Master of owner Vessel and report is issued and cargo was loaded on vessel hence it is confirmed that quantity of 32469.628 MT bulk granule urea was loaded.
4.1 It is further submitted by Ld. Adv. Mr. shah that on 17/4/2008 said Vessel arrived at Kandla and complainant no. 1 as owner of said consignment and RUTVIK C.C. 23-10 Page 7 of 16 complainant no.2 as insurer, appointed M/s. Metcalfe & Hodgkinson (Pvt) Ltd and M/s TCRC Surveyors as their surveyors for carrying out pre discharge survey on board the vessel, to draw samples, to supervise the discharge and safe delivery of cargo to complainant no.1.
4.2 It is argued out by Ld. Adv. Mr. Shah that on arrival of Ship with cargo, both above surveyors and surveyor of Charterer Stevedores boarded the vessel on 21/4/2008 to carry out draft survey to determine quantity of discharge from said vessel and prepared draft survey report.
4.3 It is further argued out that by Ld. Adv. Mr. Shah that at that time it was found that cargo to the extent of 585.285 MT was short landed and accordingly Surveyor Metcalf Hodgkinson (Pvt) Ltd , Surveyor for receivers agent prepared report and sent it to appointee M/s Rishi Shipping on 28/4/2008. Similarly TCRC Surveyors appointed by insurance company / complainant no.2 also prepared Survey report showing short landing of 585.285 MT. 4.4 It is the submission of Ld. Adv. Mr. Shah that the claim was lodged with opponent for short landing of 585.285 MT through their agent M/s. J M Buxi & company vide email dt.22/4/2008 and other letter dt.7/5/2008 calling upon to settle the claim however opponent failed to settle the claim and pay the amount. 4.5 It is further argued out by Ld. Adv. Mr. Shah that the opponent has filled reply to complaint in October 2010 denying liability mainly saying that Bill of Lading is issued by the Master of Vessel M V S Kala on behalf of its owners Teledata Marine Solutions Limited and hence it is submitted that complainant/s have availed services of Teledata Marine Solutions and not of opponent and cause of action lies on said owner namely Teledata Marine RUTVIK C.C. 23-10 Page 8 of 16 Solutions Limited. Furthermore it is submitted that, as per Agreement dt.10/4/2008, which is signed by opposite as owner vessel M V S Kala, hence as stated in agreement itself the opposite party is owner of the Vessel. A copy of said agreement is produced herewith hence it is clear that opposite party has taken false plea to avoid the legal liability to make payment to complainants.
In the support of argued Ld. Adv. Mr. Shah submitted following judgement:
(i) Hon'ble Supreme Court of India civil Appeal No. 5611 of 1999 Economic Transport Organization, Delhi vs. Charan Spinning Mills Pvt. Ltd. and other.
5. Argument of Opponent:
Ld. Adv. D.B. Mehta for the opponent argued out that Clause 1 of the Conditions of Carriage of the said Bill Of lading incorporates the arbitration clause and it is submitted that the Complainant No. 1 can only refer its allege disputes against Teledata Marine Solutions Ltd. to arbitration and cannot refer to the same to this Hon'ble Forum.
5.1 It is the submission of Ld. Adv. Mr. D.B. Mehta that the issues raised in the Complaint not only require copious expert evidences on when and how a initial and final draft survey is to be conducted but are equally complex in nature and can only be tried by a competent Civil Court and not by this Hon'ble forum.
5.2 It is further argued out by Ld. Adv. Mr. D.B. Mehta that the Complainant No. 1 claims to be the owner of the cargo of 32,469.628 MT of Granular Urea in bulk and holder of the Original Bill of Lading No. 18/U/08 dated 15th April 2008. The said Bill of Lading has been issued by the Master of the Vessel M.V. "s. Kala" on behalf of its owners, Teledata Marine Solutions Ltd. The said bill RUTVIK C.C. 23-10 Page 9 of 16 of Lading therefore, forms the evidence of a contract of Affreightment between the said Teledata Marine Solutions Ltd. and the Complaint No. 1. The Complainant, therefore, has availed the services of Teledata Marine Solutions Ltd. and not of the Opposite Party as a carrier. The Complainant's entire cause of action hence lies against Teledata Marine Solutions Ltd. and not against the Opposite Party. The Complainant No. 1, therefore, fails to establish the requirements of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 and for this reason as well the Complaint should be dismissed with exemplary costs.
5.3 It is further submitted by Ld. Adv. Mr. D.B. Mehta that section 2 (d) of the Consumer Protection Act, 1986 was amended by the Amendment Act 62 of 2002 with effect from 15th March 2003, by adding the words in the definition of consumer "but does not include a person who avails of such services for any commercial purpose". The effect of this amendment is that if after the said amendment the services of any carrier are used for any commercial purpose then the person availing it will not be regarded as a "Consumer" and consequently complaints will not be maintainable in such cases.
It is, therefore, submitted that Complaint No. 1 not being a "consumer" the Complaint cannot lie and ought to be dismissed with exemplary costs. 5.4 It is concluded by Ld. Adv. Mr. D.B. Mehta that true facts of the case is that as per the figures of the final draft survey there was only a shortage of 91.93 MTs which fell well within the permissible ocean loss allowance and hence there was no claim to be made against the vessel and the question of deficiency of opposite party does not arise.
RUTVIK C.C. 23-10 Page 10 of 16 In support of arguments, Ld. Adv. Mr. Mehta has submitted of following judgments:
I. Hon'ble Supreme court of india civil appl. No. 5611 of 1999 Economic Transport Organization vs. Charan Spinning Mills Pvt. Ltd. and other. II. Hon'ble Supreme Court of India Civil appl. No. 770 of 1993 Rajeev Metal Works and Ors. vs. The Mineral & Metal Trading Corporation of India Ltd.
6. Merit of the case:
6.1 I have gone through the record this matter. In this matter to decide the case this commission finds it necessary to examine the following points
i) Since complainants has taken the service of carrier for commercial purpose and hence are they included in the definition of consumer under Consumer Protection Act?
ii) Whether insured or the insurer (as subrogee) can filed complaint under Consumer Protection Act?
iii) Whether the complainant has engaged services of opponent for carrier?
iv) How much the goods was short landed when it reached at Kandla port? 6.2 Point (i) As far as point (i) above is concerned it is an averment of opponent party that the insured is not a consumer within meaning of section 2(1)(d) of consumer protection act. Since it is dealing in the commercial activities, however the argument of opponent party has no merit in view of the findings of Hon'ble Supreme Court in Harsholia Motors vs. National Insurance Company I (2205) CPJ 27 (NC).
The Hon'ble Supreme Court in Harsholia Motors case held as under: RUTVIK C.C. 23-10 Page 11 of 16
"Applying the aforesaid test we have to find out two things:
(i) whether goods are purchased for resale or for any commercial purpose? Or
(ii) (ii) whether the services are availed for any commercial purpose?
Therefore, the two fold classification is commercial purpose and non- commercial purpose.
If the goods are purchased for resale or for commercial purpose then such consumer would be excluded from the coverage of Consumer Protection Act, 1986. Such illustration could be that a manufacturer who is producing one product A', for such production he may be required to purchase articles, which may be raw-material, then purchase of such articles would be for commercial purpose. As against this, the same manufacturer if he purchases a refrigerator, a television or an air-conditioner for his use at his residence or even in his office, it cannot be held to be for commercial purpose and for this purpose he is entitled to approach the consumer forum under the Act. Similarly, a hospital which hires the services of a medical practitioner, it would be a commercial purpose. But, if a person avails of such services for his ailment it would be held to be not a commercial purpose. Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose. In this view of the matter, 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. In the light of the above judgment of Hon'ble Supreme Court when insured has taken policy only for indemnification for actual loss and it is not intended to get profit and hence in the opinion this commission complainant is a consumer within the meaning of section 2(1)(d) of act. 6.3 Point (ii) The term 'subrogation' in the context of insurance, has been defined in Black's Law dictionary as under:
"The principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy."
Black's Law Dictionary also extracts two general definitions of `subrogation'. The first is from Dan B. Dobb's Law of Contract (2nd Edn. - # 4.3 at 404) which reads thus :
"Subrogation simply means substitution of one person for another; that is, one person is allowed to stand in the shoes of another and assert that person's rights against the defendant. Factually, the case arises because, for some RUTVIK C.C. 23-10 Page 12 of 16 justifiable reason, the subrogation plaintiff has paid a debt owed by the defendant."
The second is from Laurence P. Simpson's Handbook on Law of Suretyship (1950 Edn. Page 205) which reads thus :
"Subrogation is equitable assignment. The right comes into existence when the surety becomes obligated, and this is important as affecting priorities, but such right of subrogation does not become a cause of action until the debt is duly paid. Subrogation entitles the surety to use any remedy against the principal which the creditor could have used, and in general to enjoy the benefit of any advantage that the creditor had, such as a mortgage, lien, power to confess judgment, to follow trust funds, to proceed against a third person who has promised either the principal or the creditor to pay the debt."
(i) Right of Subrogation' is statutorily recognized and described in Section 79 of the Marine Insurance follows:
Where the insurer pays for a total loss, either of the whole, or in the case of goods of any apportionable part, of the subject- matter insured, the thereupon becomes entitled to take over the interest of the assured in whatever may remain of the subject-matter so paid for, and he is thereby subrogated to all the rights and remedies of the assured in and in respect of that subject-matter as from the time of the casualty causing the loss. Subject to the foregoing provisions, where the insurer pays for a partial loss, he acquires no title to the subject matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the assured and in respect of the subject matter insured as from the time of the casualty causing the loss, in so far as the assured has been indemnified, according to this Act, by such payment for the loss".
Hon'ble Supreme Court in civil appeal no. 5611 of 1999 Economic Transport Organization vs. Charan Spinning Mills Ltd. and another held as under:
(a) The insurer, as subrogee, can file a complaint under the Act either in the name of the assured (as his attorney holder) or in the joint names of the assured and the insurer for recovery of the amount due from the service provider. The insurer may also request the assured to sue the wrong doer (service provider).
(b) Even if the letter of subrogation executed by the assured in favour of the insurer contains in addition to the words of subrogation, any words of assignment, the complaint would be maintainable so long as the complaint is in the name of the assured and insurer figures in the complaint only as an attorney holder or subrogee of the assured.
(c) The insurer cannot in its own name maintain a complaint before a consumer forum under the Act, even if its right is traced to the terms of a Letter of subrogation-cum-assignment executed by the assured.RUTVIK C.C. 23-10 Page 13 of 16
(d) Oberai is not good law insofar as it construes a Letter of subrogation-cum-
assignment, as a pure and simple assignment. But to the extent it holds that an insurer alone cannot file a complaint under the Act, the decision is correct. In the light of the above observation of Hon'ble Supreme Court in the instant case when insurer as subrogee has filed complaint with assured then the complaint is maintainable before Consumer Commission under Consumer Protection Act.
6.4 Point (iii) It is an averment of opponent that bill of landing is issued by the Master of vessel MVS KALA on behalf of its owners Teledata Marine Solution Ltd. and hence it is submitted that complainants have availed services of Teledata marine solution ltd. and not of opponent.
Ld. Adv. Mr. Shah has drawn attention of this commission to the agreement made between International Shipping and logistic FZE and charterers: President of India department of fertilizer on dated 10.4.2008 wherein the first para of agreement mentioned as under:
It is this day mutually agreed between Mssrs INTERNATIONAL SHIPPING AND LOGISTICS FZE DUBAI despondent owners of the good Motorship called the "MVSKALA" (please see clause10 MATHESE built 1983 of 23144 gross register 38156 Metric tons deadweight now trading and spected ready to load about 12TH April 2008 and laydays not to commence before 11TH April 2008 and THE PRESIDENT OF INDIA Department of Fertilizer) New Delhi CHARTERERS.
Above agreement clearly establish that the opponent party is owner of vessel MVSKALA and hence in the considered opinion of this commission it is crystal clear that complainant has engaged services of opponent for transportation of goods.
RUTVIK C.C. 23-10 Page 14 of 16 6.5 Point (iv) 6.6 In this Matter it is an admitted fact that the complainant had received 32469.628 MT granula urea on their vessel MVSKALA for safe transportation from OMAN to Kandla and that was also confirmed by their chief officer on draft survey report issued by Intertek Caleb Brett and by the Master in the bill of lading 18 U 08 dated 15.4.2008 but when vessel came at Kandla port surveyor of both the complainants along with surveyor of the charterer and Stevedores boarded the said vessel on 21.4.2008 and carried out draft survey to determine the quantity discharge from the said vessel and prepared a signed draft survey report and it is found that the cargo to the extent of 585.285 MTs has for short landed from the vessel and this short landing is calculated on usual calculation method. Hence on the basis of said draft survey it is crystal clear that 585.285 MTs granula urea was short landed.
6.7 It is also an averment of opponent that Clause 1 of the Conditions of Carriage of the said Bill Of lading incorporates the arbitration clause and it is submitted that the Complaint No. I can only refer it's allege disputes against Teledata Marine Solutions Ltd. through arbitration and cannot refer to the same to this Hon'ble Forum but Hon'ble Supreme Court in EMAARMGF land ltd. vs. Aftab singh (i) (2015) CPJ 5(SC) held that an arbitrator clause on the agreement does not bar the jurisdiction of the Consumer Fora to entertain complaint hence the object raised by opponent party that the clause of the arbitration bars this commission from entertain the complaint is unsustainable.
RUTVIK C.C. 23-10 Page 15 of 16
7. In view of the above discussion in the opinion of this commission short landing of 585.285 MT of granula urea is arised due to deficiency services of opposite party & therefore opposite party is liable to pay sum of Rs.
37,87,964/- together with interest to the complainant no.2/insurer and hence following final order is passed ORDER
1. Present Complaint is partly allowed
2. Opponent is ordered to pay Rs.37,87,964 (Rs. Thirty seven lacks eighty seven thousand nine hundread sixty four only ) to the complainant no.2/ insurer with 9% interest from the date of filling of complaint till its realization
3. No order as to costs
4. Opponent shall comply with this order within 60 days from the date of this order
5. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open court today on 29th March 2023 [Dr. J.G.Mecwan] Presiding Member RUTVIK C.C. 23-10 Page 16 of 16