State Consumer Disputes Redressal Commission
Proprietor Ayshabeevi,Rasheed ... vs The Branch Manager,The New India ... on 7 December, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU. S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
C.C.No.15/2013
Date of complaint filed : 06.08.2013
Date of orders pronounced : 07.12.2023
M/s.Rasheed Storage Solutions,
Through its Proprietor,
Ayshabeevi,
4/28F, West Mudukkukadu,
Harbour Byepass Road,
Tuticorin - 628 006. Complainant
-Vs-
1. The New India Assurance Company Limited,
Represented by its Branch Manager,
41-B Vigtoriya Street,
Tuticorin - 628 001.
2. The New India Assurance Company Limited,
Represented by its Regional Manager,
No.87, M.G.Road Fort,
Mumbai - 400 001. Opposite Parties
Counsel for Complainant : M/s.Thirumalaiappan, Advocate.
Counsel for Opposite Parties-1&2 : Mr.K.Chandrasekaran, Advocate.
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This complaint came before me for final hearing on 11.09.2023 and upon
perusing the material records this Commission made the following:-
ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The complainant's case :
The complainant is running a customs bonded warehouse in the name and style of Rasheed Storage Solution at Tuticorin. She insured the stocks up to the value of Rs.1,00,00,000/- with the first opposite party/insurance company. The period of coverage is 12.05.2009 to 11.05.2010. The policy premium amount is Rs.11,471/-. On 30.12.2009 the godown caught fire and all the stocks were completely damaged. This fact was immediately informed to the first opposite party/insurance company, customs officials and also police station. The opposite party/insurance company also sent surveyor to assess the damage and there were many correspondence between the complainant and the insurance company's surveyor. But to the complainant's shock and surprise on 09.04.2013 the first opposite party/insurance company repudiated the claim as if the policy condition has been violated by the complainant. The terms of policy conditions were not informed to the complainant and the repudiation is amounted to deficiency in service. Hence, the complaint is filed seeking to direct the opposite parties to pay Rs.1,00,00,000/- towards insurance claim and Rs.10,000/- towards compensation for mental agony and stress and also cost of the proceedings.
2. The opposite parties filed their written version stating that the complaint itself not maintainable and the complainant is not the insured as per the policy condition. The complainant also not the owner of stocks stored in the warehouse and hence he 3 is not entitled to claim compensation. Apart from that, as per the policy condition, in the godown hazardous goods of a higher category should not be stored more than 5% of the total goods value. Against this condition the complainant stored Hydrogen Peroxide, value of more than 8.5% of the total stock value. So the repudiation is valid, and hence, the complaint is to be dismissed.
3. In this complaint, the complainant was examined as PW1 by filing proof affidavit and Exhibits A1 to Ex.A11 were marked. On the side of the opposite parties proof affidavit of RW1 filed and Exhibits B1 to B11 were marked.
4. In this case oral arguments of opposite parties heard. The complainant did not appear before this Commission.
5. Now the points for consideration are:
1. Whether the complainant has violated any policy condition?
2. Whether the opposite parties/insurance company committed any deficiency in service?
6. Discussion on the Points: It is an admitted fact that the complainant is running a customs bonded warehouse godown and she got a licence from the Customs Department which is Form Part of the Ex.B10 in which stocks were stored by the customs department. The good were kept by the department either for pending clearance or confiscated by them. Ex.B11 is the Surveyor Report which is based upon particulars issued by the complainant herein which is also found place in Ex.B10.
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7. As per the particulars furnished the following stocks were stored in the above ware house.
Sl. Description of Name of the Value in Rs. Quantity Remarks
No. the Cargo importer
1. Polyester fabrics Gudiyadas - DRI Rs.8,93,380 224 Bales DRI
investigation
2. Betel nut Bajarang Expo Rs.5,00,198 350 bags DSA
3. Polyvinyl Alcohol Paramount Rs.6,73,933 300 bags
Textiles Mills (P)
Limited
4. Mango pulp Maagrita Exports 0 675 ctns Were ordered to
be destroyed
5. Papaya Pulp Maagrita Exports Rs.1,11,683 225 ctns
6. PVS Cables Mohan Mutha Rs. 52,298 100 nos
Exports
7. EG Wire Mohan Mutha Rs. 4,75,994 602 rolls
Exports
8. Swivel Coupler Mohan Mutha Rs. 85,912 52 ctns
Exports
9. Lubricant Oil Mohan Mutha Rs. 4,85,056 24 drums
Exports
10. PP Roof net Mohan Mutha Rs.11,60,566 765 rolls
Exports
11. Cotton Fabric J.S.Fashion Rs.57,33,631 364 pkgs DRI
Investigation
12. Hydrogen Ganesh Rs. 9,39,252 2040 Hazardous
Peroxide Nagendra& Co. drums Category II
Goods
TOTAL Rs.1,11,11,903
8. As per the above, the goods stored belonged to various companies. This fact is an admitted fact by the complainant himself. So the goods damaged did not belong to the complainant. The complainant did not produce any documents to show that he was liable to compensate to those real owners of the goods damaged. No piece of documents produced to prove the liability of the complainant towards owner of the goods.
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9. At the same time, an agreement between the complainant and the customs is marked as part of Ex.B10 the license No.9/2009 dated 12.05.2009 in which the condition imposed is reproduced hereunder:
"The licence is issued subject to further condition that duty should be paid on losses if any".
So it is the first contention of the opposite party that even if it is taken that the complainant is the insured, the above goods were sent by various companies towards export or import during transit kept in the above warehouse and the goods damaged in the fire did not belong to the complainant.
10. It is further contended that the owner of the respective goods may take insurance policy particularly transit policy for their goods. If the above goods are damaged then the respective companies can either claim from their own insurance company or have to bear their loss. No document is produced to show that the owner of goods claimed compensation from this complainant. Particularly the customs officials also did not claim any compensation or did not allege the petitioner was liable for the loss of goods. When there is no liability arose for the loss of goods then the insurance company is not liable to compensate the complainant herein.
11. As rightly pointed out by the opposite party/insurance company the complainant is not the insured person as per Ex.A1 & Ex.B1. Only the Commissioner of Customs Department is the insured. The place of insurance alone mentioned the receipt bonded warehouse. So the complainant is not entitled to claim compensation eventhough he paid the premium and made the claim form to the insurance company.
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12. Apart from that as per the admitted facts the total goods kept in the godown is Rs.1,11,11,903/- it involves cotton and polyster fabric bundles, Betel nut, lubricant oil, polyvinyl alcohol, hydrogen peroxide etc.,. Among the same Hydrogen Peroxide value is Rs.9,39,252/-.
As per the policy condition column (6) clearly stated, Godowns and Warehouses:
(a) Warranted that the presence of Hazardous goods of a higher category does not exceed 5% of the total value of the stocks.
(b) Non-Hazardous goods storage-Warranted that goods of Category I, II and III Coir waste, Coir Fibre, Caddies are not stored therein.
(c) Category I goods storage-warranted, that goods of Category II and III Coir waste, Coir Fibre, Caddies are not stored therein.
(d) Category II goods storage-Warranted that goods of category III Coir waste, Coir Fibre, Caddies are not stored therein.
(e) Category III goods storage-warranted that Coir waste, Coir Fibre, Caddies are not stored therein. Description, of goods failing under Category I, II and III Category.
13. So admittedly in the same place category-I goods kept along with category III goods which leads to above accident. Because the cause of fire accident, as per the investigation report which is also marked by the complainant as Ex.A2 & Ex.B2is "The warehouse contained 680x3 drums (each drum weighing 30kg) of 50% Hydrogen Peroxide all in plastic cans. In some of the cans the lids would have not been intact leading to leakage of H2O2. As a result, the leaked H2O2 would have undergone a violent exothermic decomposition reaction"
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So the violation of policy condition is the root cause of the fire accident has been proved as such the repudiation is also found valid.
14. Apart from that the surveyor submitted in his report that the insurance is made only to compensate the loss sustained by the customs in loss of customs duty. Because as per Section 23 of customs Act which is reproduced hereunder:
23. Remission of duty on lost, destroyed or abandoned goods.--
(1) 1[Without prejudice to the provisions of section 13, where it is shown] to the satisfaction of the 2[Assistant Commissioner of Customs or Deputy Commissioner of Customs] that any imported goods have been lost 3[(otherwise than as a result of pilferage)] or destroyed, at any time before clearance for home consumption, the 2[Assistant Commissioner of Customs or Deputy Commissioner of Customs] shall remit the duty on such goods. 4[(2) The owner of any imported goods may, at any time before an order for clearance of goods for home consumption under section 47 or an order for permitting the deposit of goods in a warehouse under section 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon:] 5[Provided that the owner of any such imported goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force.]
15. The customs should waive duty on the goods lost. Eventhough the customs are not responsible and did not suffer any damage for the value of the goods lost in the accident, certainly, they suffered loss of customs duty. Only to compensate the same, they made the condition in the licence that the warehouse owner is liable for such loss of customs duty. So in every respect the complainant is not entitled to claim the total value of the goods as insurance amount. At the worst he can claim the customs duty on the goods damaged, for which also there is no proof filed. As such the repudiation is not defective and there is no deficiency in service on the part 8 of the opposite parties as such the complaint is liable to be dismissed without cost and answered the points accordingly.
16. In the result,
1. The complaint is dismissed.
2. No cost.
Sd/-xxxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
ANNEXURE List of documents marked on the side of the complainants Ex.A1 12.05.2009 Copy of the License No.09/2009.
Ex.A2 12.05.2009 Copy of Insurance Policy. Ex.A3 30.12.2009 Copy of letter to the Insurance Company. Ex.A4 02.01.2010 Copy of the FIR in Crime No.5/10. Ex.A5 02.01.2010 Copy of the letter from Asawa& Co. Ex.A6 08.03.2011 Claim form. Ex.A7 08.03.2011 Copy of the letter to the M/s.Asawa& Co. Ex.A8 22.06.2011 Copy of the letter from M/s.Asawa& Co. Ex.A9 18.07.2011 Copy of the letter to M/s.Asawa& Co. Ex.A10 06.01.2012 No claim letter from the Insurance Company. Ex.A11 09.04.2013 Rejection letter for claim by the Insurance Company.
List of documents marked on the side of opposite parties. Ex.B1 12.05.2009 Copy of the License No.09/2009.
Ex.B2 12.05.2009 Copy of Insurance Policy.
Ex.B3 30.12.2009 Copy of letter to the Insurance Company.
Ex.B4 02.01.2010 Copy of the FIR In Crime No.5/10.
Ex.B5 02.01.2010 Copy of the letter from Asawa& Co.
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Ex.B6 08.03.2011 Claim Form.
Ex.B7 08.03.2011 Copy of the letter to the M/s.Asawa& Co
Ex.B8 22.06.2011 Copy of the letter from M/s.Asawa& Co.
Ex.B9 18.07.2011 Copy of the letter to M/s.Asawa& Co.
Ex.B10 06.01.2012 No claim letter from the Insurance Company.
Ex.B11 09.04.2013 Rejection letter for claim by the Insurance Company.
Sd/-xxxxxxxx
S.KARUPPIAH,
PRESIDING JUDICIAL MEMBER.