State Consumer Disputes Redressal Commission
Divisional Manager, The Oriental ... vs P.Gurusamy & Sons Partnership Firm, ... on 24 April, 2015
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IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MADURAI BENCH.
Present: Thiru.A.K. ANNAMALAI, M.A.M.L.,M.Phil., Presiding Judicial Member
Thiru.M.MURUGESAN, B.Sc, B.Ed., Member
F.A.No.162/2012
(F.A.No.595/2011 on the file of State Consumer Disputes Redressal
Commission, Chennai)
(Against the order in C.O.P.No.21/2002 dated 24.01.2011 on the file of DCDRF,
Virudhunagar District @ Srivilliputhur.)
THIS FRIDAY THE 24th DAY OF APRIL 2015.
1. The Divisional Manager,
The Oriental Insurance Company Limited,
Post Box No.1877,
No.8, Esplanade, Chennai - 108. 1st Appellant/1st Opposite Party
2. The Branch Manager,
The Oriental Insurance Company Limited,
656, Thenkasi Road,
Rajapalayam. 2nd Appellant/2nd Opposite Party
Vs
M/s. P. Gurusamy and Sons,
Partnership firm,
Represented by its partner,
G.Lakshmanaperumal. Respondent/Complainant
Counsel for Appellants 1 & 2/Opposite Parties 1 & 2 : M/s.K. Bhaskaran, Advocate.
Counsel for Respondent/Complainant : M/s. A. Sivaji, Advocate.
This appeal coming before us for final hearing on 17.04.2015 and on hearing
the arguments of both sides and on perusing the material records this Commission
made the following:
ORDER
THIRU. A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER.
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1. The opposite parties are the appellants.
2. The complainant filed a complaint before the District Forum alleging deficiency against the opposite parties in all settlement of the claim relating to containers of goods loss on the basis of insurance claiming settlements of Rs.4,72,800/- and Rs.15,000/- towards expenses of transport and Rs.10,000/- as compensation for mental agony and for costs.
3. The appellants/opposite parties denied the allegations before the District Forum contending that the claim was settled on the basis of terms and conditions of the policies and by way of full settlement a sum of Rs.6,80,000/- was settled and as per the terms and conditions of the policy, since the other container of goods loss was violated which was not considered and thereby there was no deficiency on their part.
4. On the basis of both sides materials and after an enquiry, the District Forum came to the conclusion that there was no full and final settlement and thereby directed to pay a sum of Rs.4,72,800/- with 6% interest towards the loss and damages for the 3rd container and also to pay a sum of Rs.5000/- as costs.
5. Aggrieved by the impugned order, the opposite parties have come forward with the appeal contending that the District Forum erroneously allowed the complaint that there was a breach of policy terms and conditions wherein the containers are expected to be properly/carefully handled and the consignment being highly dangerous cargo, the container containing the consignment should have been stored at the top of the row in the ship. But contrary to the same, the container containing the consignment was stored in the bottom of the ship, which led to the 3 destruction of the consignment along with the container and no safety measures were found available on the container such as marks or stickers and there were no documents filed to show that the containers were inspected by Fire Safety Officers of the Cochin Port Trust and/or various authorities of the various Ports where the ship called and the claim is rejected due to inherent vice of the cargo as per excluded clause 4.4 of the policy.
6. Both sides have filed the written arguments and the respondent/complainant submitted oral arguments and we have considered all the materials including written submissions also carefully.
7. It is the contention of the respondent/complainant that they have insured three containers of goods which were transshipped to the country Oran containing the "Stable Bleaching Powder" duly consigned for export since the ship in which the goods were transshipped met with fire accident and thereby the entire goods were destroyed for the claim made by the appellants/opposite parties allowed the claim only for two containers for the value of Rs.6,80,000/- claiming to be the final settlement for the entire claim which is not correct. Whereas the appellants/opposite parties contended that even though all the containers were destroyed and since the goods transshipped were being highly dangerous was in nature of inflammable goods and thus which is to be transshipped in the prescribed manner by storing at the top of the row in the ship must being affix marks or stickers showing the nature of dangerous and contrary to the same, since the containers were stored in the bottom of the ship, which led to the destruction of consignment along with the container.
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8. While considering these contentions of both sides and on perusal of the documents relied upon either side in Ex.A14 the letter addressed by the complainant to the opposite parties along with other details as follows: "we request you kindly re- survey the above cargo and settle the full amount, since we are very much suffered of this cargo. We informed our other buyers at Colombo & Barcelona to collect the „Stowage Plan‟ at Zim Hamburg V.17. From vessel owner, Llyodes surveyors, customs or port trust anyone. After receiving the „Stowage Plan‟ we will send you. In mean time you may check your surveyors report, the above three containers are stored under deck. Due to under deck storage, without air circulation it is fired. It is purely wrong storage as admitted by the complainant. On perusal of Ex.A21 the opposite party sent the letter to the complainant relating to the re- consideration in which it is stated as follows: "In the given situation, when the three containers sustained fire damages, it was attributed to fire caused by inherent vice in one container, the Insurance Company has judiciously used the discretion in your favour by ascertaining from the surveyors the cause of loss for all the three containers and eliminating the loss sustained by one container where the cause of fire was inherent vice, the claim for the other two containers has been favourably considered. We request you to please appreciate that the Insurance Companies do not admit to please appreciate that the Insurance Companies do not admit liability for any loss brought about by inherent vice which is a standard exclusion under the terms of the insurance cover. In particular, we have to draw your attention to the exclusion No.4.4 of the Exclusion clause in the Institute Cargo Clauses (A) excluding any loss or damage occasioned by this peril. In view of this 5 exclusion named in the Institute Cargo Clause subject to which your shipment was covered, the Insurance Company is not in a position to favourably deal with this part of the claim" and also the documents relied upon by the opposite parties under Exhibits B5 & B6 one of the agencies sent the fax message to the complainant it is mentioned as follows: "Understand that above 2x20 container arrived destination without label stating "HAZ CARGO" and hence held by customs authorities at Oran and also under Ex.B7 it is stated as "It should be noted that the IMCO labels on the container panels were found to be new and must have been placed after the fire had been extinguished, therefore special attention should be given to the supporting documentation in order to determine whether the cargo was correctly declared as Dangerous Goods" and as per the letter of the service agencies under Ex.B11 it is mentioned as follows: "From this information we can consider that the cargo within TRLU-320858-0 had suffered internal combustion "inherent vice", however the remaining 2x20, were affected as a direct consequence of the fire from 1x20 TRLU-320858-0 and therefore may be considered as a consequential damage" and also as per the exclusion clause 4.4 of the policy terms and conditions the opposite parties have stated since the policy become violated itself due to inherent vice to the cargo and the fire was due to the nature of the cargo by improper packing and loading into the containers and from the first container fire was broken out which caused fire and also to other two containers and thereby the first container from which the fire was broken which was under due to inherent vice of the cargo for which the claim was excluded and for the other two containers claim was considered. Because the destruction was caused due to fire from the 1st container which was shipped against the 6 terms and conditions of the policy and thereby we are of the view that the contentions of the opposite parties/appellants are acceptable and reasonable and the claim was considered according to the terms and conditions of the policy taken by the complainant in this regard and thereby we are of the view that the District Forum without taking into consideration of the facts and circumstance of the case and the contentions of the opposite parties/appellants which is proved the necessary materials erroneously allowed the complaint which is to be set aside and accordingly.
9. In the result, the appeal is allowed by setting aside the order of the District Forum, Virudhunagar District @ Srivilliputhur in C.O.P.No.21/2002, dated 24.01.2011. No order as to costs in this appeal.
The Registry is directed to refund the mandatory Fixed Deposit with accrued interest duly discharged in favour of the appellant/opposite parties.
Sd/-xxxxxxxx Sd/-xxxxxxxx
M.MURUGESAN, A.K.ANNAMALAI,
Member. Presiding Judicial Member.
INDEX: YES/NO
AMS/Mdu.Bench/Orders-2015/April
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