State Consumer Disputes Redressal Commission
M/S Ratan Exports & Industries Ltd. vs M/S The New India Assurance Co. Ltd. on 2 September, 2024
C. No. 1725/17 D.O.D: 02.09.2024
M/S RATAN EXPORTS & INDUSTRIES LTD. VS M/S THE NEW INDIA ASSURANCE CO. LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 12.10.2017
Date of hearing: 10.07.2024
Date of Decision: 02.09.2024
COMPLAINT CASE NO: - 1725/17
IN THE MATTER OF:
M/S RATAN EXPORTS & INDUSTRIES LTD.
REGISTERED OFFICE:
8A/12, W.E.A. KAROL BAGH
ROHINI, DELHI - 110005
PRESENTLY AT:
M-210, 2ND FLOOR, SHASHTRI NAGAR,
NEW DELHI - 110052
(Through: K. Datta & Associates)
...Complainant
VERSUS
M/S THE NEW INDIA ASSURANCE CO. LTD.
THROUGH ITS MANAGER
REGISTERED OFFICE:
CHANNA COMPLEX, 4TH FLOOR,
GURUDWARA ROAD,
NEW DELHI -110005.
ALSO AT:
RO-1, 5TH FLOOR, TOWER-II,
JEEWAN BHARTI BUILDING,
CONNAUGHT PLACE
NEW DELHI.
(Through: Mr. Pankaj Seth, Advocate)
...Opposite Party
DISMISSED Page 1 of 7
C. No. 1725/17 D.O.D: 02.09.2024
M/S RATAN EXPORTS & INDUSTRIES LTD. VS M/S THE NEW INDIA ASSURANCE CO. LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'ABLE MS. PINKI MEMBER (JUDICIAL)
Present: Mr. Ashish Verma and Mr. Kartikay Bhargava (Email:
[email protected]), counsel for the Complainant.
None for Opposite Party.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
JUDGEMENT
1. The present Complaint has been filed by the Complainant before this commission alleging deficiency of service and has prayed the following reliefs:
i. "To set aside the respondent's rejection letter/order dated 08.12.2016;
ii. Direct the respondent to pay the complainant the amount of Rs.
23,83,048/- as assessed by the surveyor pursuant to the directions of the Hon'ble National Commission;
iii. Pay interest to the complainant @18% on the said claim amount, from the date of the surveyor report till the date of the actual payment;
iv. Costs.
v. Pass such other or further order/s as this Hon'ble Commission may deem fit and proper in facts and circumstances of the case."
2. Brief facts necessary for the adjudication of the present complaint are that the present Complainant took a marine open insurance policy no. 2131130100297 from the Opposite Party insuring the exports of the Complainant on a warehouse-to-warehouse basis. The policy was for a total sum of Rs. 2,00,00,000 from 07.10.1991 to 06.10.1992. On 04.08.1992, the Complainant sent a consignment/shipment of 5766 cartons canned fruit preserved and 1290 cartons assorted jam from Calcutta DISMISSED Page 2 of 7 C. No. 1725/17 D.O.D: 02.09.2024 M/S RATAN EXPORTS & INDUSTRIES LTD. VS M/S THE NEW INDIA ASSURANCE CO. LTD.
(presently Kolkata) port of Lading to Illychesvk, Russia. The above consignment of 7 containers was to be delivered to M/s A.R. Systems in Moscow, Russia. Before dispatching the above consignment, the Complainant arranged for a pre-dispatch survey of the consignment, whereby the surveyor confirmed that the material/goods were in good conditions including the packing. The consignment reached Illychesvk port on 22.12.1992 and the same was delivered to M/s Automatic cargo complex for delivery to A.R. Systems. The consignment reached the consignee M/s A.R. Systems on 26.12.1992, where it was noted upon examination that the processed food cans were in-pressed, bent, dented and leaked, and completely damaged. On 01.03.1993, the consignee M/s A.R. System informed the Complainant of such damage. The Complainant intimated the same to the Opposite Party vide letter dated 02.04.1993. The above material was examined in laboratory of Russia as it was intended for human consumption, but the reports observed that the material was not fit for human consumption. The surveyor of Ingosstraksh Insurance Company Ltd. conducted a survey of the goods and found that the goods were damaged during transportation. The Complainant filled the marine claim form on 20.12.1993 and sent the same to the Opposite Party, claiming USD 87,417/- (Rs. 30,59,595/-). The Opposite Party neither rejected nor accepted the above claim and allegedly kept deflecting the claim of the Complainant. Finally, the Complainant issued a legal notice dated 28.05.2002 in respect of the abovementioned claim. With still no relief, the Complainant filed a complaint in this commission with complaint no. C- 24/2004. This Commission in its order dated 09.04.2009 granted the claim of the complainant and directed the OP to pay a sum of Rs. 30,59,555/-. The OP filed an appeal in the Hon'ble National Commission in preference of the above order of this commission. The Hon'ble National Commission vide its order dated 15.09.2016 set aside the order of this commission, DISMISSED Page 3 of 7 C. No. 1725/17 D.O.D: 02.09.2024 M/S RATAN EXPORTS & INDUSTRIES LTD. VS M/S THE NEW INDIA ASSURANCE CO. LTD.
except on the issue of limitation, and directed the Opposite Party Insurance Company to appoint a new surveyor and make a decision with regard to the claim on the basis of the surveyor's report. The Opposite Party Insurance Company vide its letter dated 08.12.2016 once again completely rejected the claim of the Complainant on the grounds that there were inordinate and unexplained delays in the whole export process. This decision was despite the surveyor's report, whereby the surveyor had assessed a loss of Rs. 23,83,048/-. The Complainant, aggrieved by the above decision of the Opposite Party, approached the Hon'ble Supreme Court on the grounds that the Opposite Party rejected the claim of the Complainant on grounds already addressed by the Hon'ble National Commission in its order dated 15.09.2016. The Hon'ble Supreme Court suggested that the Complainant approach this Commission by way of a fresh complaint as was also suggested by the National Commission in its abovementioned order. The Complainant has thus approached this Commission by way of the present complaint.
3. The Opposite Party Insurance Company by way of its Written Arguments denied the claim of the Complainant on the ground that there was inordinate delay of more than four and a half months in the consignment reaching its destination, and more than five months of delay in intimation of such claim. Accordingly, the above amounts to a breach of policy conditions. The claim of the Complainant was thus rightly repudiated. The Opposite Party further submits that words of the contract should be given paramount importance, and the court may not add, delete or substitute any words, as is laid down by the Hon'ble Supreme Court in a myriad of cases.
4. Evidence by way of affidavit and written arguments of both the parties are on record.
5. We have perused the material on record and heard the counsel for the parties.
DISMISSED Page 4 of 7C. No. 1725/17 D.O.D: 02.09.2024 M/S RATAN EXPORTS & INDUSTRIES LTD. VS M/S THE NEW INDIA ASSURANCE CO. LTD.
6. The only issue for consideration is whether the Opposite Party is deficient in providing its services to the Complainant.
7. To resolve this issue, we deem it proper to reproduce section 2(1)(g) of the Consumer Protection Act, 1986 as under:
"(g) "deficiency" means any fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
8. We also reproduce section 2(1)(o) of the Consumer Protection Act, 1986 as under:
"(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
9. Upon perusal of the evidence on record, we find that the Complainant had received correspondence from the consignee M/s A.R. Systems on 03.01.1993. However, the Complainant only intimated the Opposite Party DISMISSED Page 5 of 7 C. No. 1725/17 D.O.D: 02.09.2024 M/S RATAN EXPORTS & INDUSTRIES LTD. VS M/S THE NEW INDIA ASSURANCE CO. LTD.
Insurance Company on 02.04.1993, i.e. after 3 months of receiving information about the loss/damage to the insured consignment. This exorbitant and undue delay is in fact a breach of the terms of the insurance contract. The Opposite Party Insurance Company cannot be made to bear the brunt of such unreasonable delay caused at the hands of the Complainant.
10. It is imperative to point out that the Complainant had been inconsistent in laying down the facts of the above incidence; whereas in the complaint, the Complainant admits to receiving communication from the consignee on 01.03.1993, the same is admitted to be 03.01.1993 in the written arguments put on record by the Complainant. In the interest of justice, even if we were to take the facts as provided by the Complainant in the original complaint, the Complainant received information from the consignee M/s A.R. Systems on 01.03.1993. It is also submitted that the said consignment reached the consignee on 26.12.1992. There was hence a delay of almost three months in intimation of this information to the insured Complainant, who took another one month to intimate the same to the Opposite Party Insurance Company. Hence there is no doubt that there was indeed an undue delay in notifying the Insurance Company about the loss. It is in contravention to the principles of justice to let the Opposite Party Insurance Company to bear the loss caused due to the delay in communication on part of the consignee of the Insured Complainant.
11. We are of the opinion that the Complainant has failed to demonstrate any deficiency in service on the part of the Opposite Party.
12. Consequently, the present complaint thus stands dismissed with no order as to costs or remedies.
13. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
DISMISSED Page 6 of 7C. No. 1725/17 D.O.D: 02.09.2024 M/S RATAN EXPORTS & INDUSTRIES LTD. VS M/S THE NEW INDIA ASSURANCE CO. LTD.
14. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties as well as forwarded to the corresponding E-mail addresses available on record i.e., [email protected] (Complainant), [email protected] (Opposite Party).
15. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced on:
02.09.2024 DISMISSED Page 7 of 7