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2. The complainant, alleged in its complaint, that the complainant is a pharmaceutical company and is engaged in manufacturing of medicines and export of Menthol. M/s Symrise Asia Pacific Pte. Ltd, a customer of the complainant company, had placed an order with the complainant for the supply of 15000 kilograms of Menthol Crystals to be supplied to them at their warehouse in Singapore.

The complainant company executed the said order and the material was packed in 600 nos. of Fibre Drums containing 25 kilograms of net material in each. The opposite party issued a Marine Insurance Certificate No.2011/NLL/0670 under its Open Cover No.360100/21/11/05/00000001 for coverage of the said consignment against loss or damage during the transit, for a sum insured of ₹2,92,45,219/-. The said Insurance Certificate acknowledges payment of insurance premium and states the insurance premium including service tax and stamp duty "as agreed and paid" and the mode of transit as "Road, Rail & Sea" and journey "from anywhere in India to Singapore Sea port,". The insurance obtained by the complainant is against All Risks of loss of or damage to insured material. The insurance is subject, inter alia, to Institute Cargo Clauses "A" including the risk of TPND (theft, pilferage, non- delivery), short delivery and breakage/damage to packing. The insurance further covers the sellers' interest. The insurance policy/certificate covers the delivery from Sellers' warehouse anywhere in India upto the warehouse of the consignee. The said material in 600 Nos. fibre drums was loaded in container No.MSWU- 0070956 of M/s Maersk Shipping Line India P. Ltd., which was properly sealed with seal No.MAERSK-ML-IN 0401279. The consignment was collected by Mr. Jalish, the driver/representative deputed by the Transporters M/s Akal Transport Co. on 09.12.2011 to be transported from Derabassi to ICD, Dadri and at ICD, Dadri Container No.MSWU-0070956 was entrusted to Shipping Company for which M/s Maersk India Pvt. Ltd., issued their Multimodal Transport Document B/L No.863061256 dated 20.12.2011. From ICD Dadri the container was dispatched to Mumbai through rail and was shipped on "MAERSK KOLKATA" for its journey to Singapore Sea Port. The said container was received by the consignee/importers M/s Symrise Asia Pte Ltd., on 31.12.2011 at their warehouse and on opening the container, the consignee found bricks and soil in the drums. Consignee immediately approached the surveyors for inspection of the consignment. The insurers got the consignment surveyed through M/s International Surveyors and Adjusters, Singapore, who found that 114 drums x 29.5 kgs contained Red Sand, 40 drums x 28.5 kgs contained MBF Bricks, 11 drums stolen away and found short and out of 600 drums only 435 drums were found externally in sound condition with lead seals. The complainant lodged FIR No.6 on 18.01.2012 at Dera Bassi, Police Station u/s 406/407/420/379/120B of IPC. The owner of the truck had also lodged FIR No.18 on 15.01.2012 at Police Station Vijaynagar in District Ghaziabad (UP) under Section 406 IPC. The complainant lodged the claim for $153,996.56 equivalent to Indian ₹79,69,322/-. On 14.01.2012 the complainant had also served the notices and lodged claims upon M/s Jaykay Freighters P. Ltd., New Delhi, who had engaged the transporters for complainant; namely, M/s Akal Transport Co. New Delhi, M/s Maersk Line India Pvt. Ltd. the shipping company and to the providers of Container No.MSWU- 0070956. A notice dated 15.05.2012 was also issued to M/s Star Track Terminals Pvt. Ltd. and Container Corporation of India Ltd. The opposite party approved the claim for only ₹59,76,992/- on non- standard basis by e-mail dated 21.11.2012 and deducted a sum of ₹19,92,331/- arbitrarily for no fault of the complainant. The complainant immediately wrote to the opposite party a detailed e- mail submitting therein that the complainant company was in no way at fault and ought not to be penalized by deducting ₹19,92,331/-. It was advised that the complainant was accepting the offer of settlement under protest as part payment. By e-mail dated 23.11.2012 the complainant company had advised the opposite party that the complainant company accepts the approval under protest and further undertook that in case the complainant recovers from transporter or any other party, then the excess amount after adjusting the shortfall and recovery expenses, would be paid over to the opposite party. On 29.11.2012, the opposite party informed the complainant that it was proceeding with the processing of the claim on non-standard basis for ₹59,76,992/-. Despite repeated requests the opposite party was not prepared to release the payment of even the approved amount on part payment basis and made it a pre- condition to sign a clear discharge for releasing the said amount. In- spite of the repeated requests and representations to the opposite party for settling the claim in full, only an amount of Rs.59,76,992/- was paid to the complainant after deducting the amount of Rs.19,92,331/-. A legal notice dated 17.9.2014 was served upon the opposite party to reconsider the settlement of the claim and to make payment of amount arbitrarily and unlawfully deducted by it, but the same was not responded.

3. In the reply filed by the opposite party it is admitted that the opposite party had issued a Marine Certificate of insurance mentioned in the complaint subject to the usual terms, conditions and exclusions as per Institute Cargo Clause (A) and other related clauses. It also admitted the settlement of the insurance claim on non-standard basis. While denying the other allegations, it has been pleaded that the complainant has not been able to establish that a proper system for sealing of the container after its stuffing was in place. This is the precise reason that it could not be established exactly when, where and how the loss had taken place, prejudicing the recovery rights. Since the container reached ICD Dadri bearing original seal and they did not see any apparent tempering, the custom officials cleared the cargo and put their seal also and both these seals were found intact by the consignee. Moreover, Annexure C-5 attached with the complaint clearly mentions under the column PARTICULARS (Said to contain) and the carrier does not confirm what the drums contain. The carriers M/s Akal Transport Co. sent their letter dated 5.3.2012 stating that their driver loaded duly sealed container from their premises in the condition as handed over to him and in same condition was unloaded at ICD Dadri for custom clearance. The carrier denied its liability and did not give any damage/short certificate. Thus, the opposite party's recovery rights were prejudiced adversely and thus, the claim was settled on non-standard basis. The opposite party also got the claim investigated through J.C. Gupta & Co. Pvt. Ltd. and they submitted their report dated 18.05.2012 in which at para no.10.1.6 'Seal' the investigator mentioned that "the container along with shipping line seal was brought by the drivers to consignors, Dera Bassi works and the seal was affixed on the container after stuffing at the consignor works. There was hardly any system to judge the genuineness of the seals affixed on the container. No photographs were taken. It will not be out of context to mention here that if the driver, with mala fide intention, also carried a duplicate seal which if affixed on the container, the consignor could hardly detect the same." Based on verification of the records, the involvement of the consigner was not found and inquiry indicates that theft has been committed skillfully by the drivers. Both the drivers remained untraceable for several months after the first theft was discovered. The transporter M/s Akal Transport Co. also lodged FIR against the drivers stating that the drivers had committed theft. As per para 12.6 (Seal) of the Surveyor's report, it appears that the drivers handed over duplicate seal to the consigner and kept the original seal with them. There was no system to verify the authenticity of the seal fixed at Derabassi after stuffing of the container. The consigner was not aware of the original seal which the shipping line provided for the purpose. The drivers were well aware of the system of seal fixing and ignorance of the consigner in the matter. In view of this, the driver could have arranged a fabricated seal for the purpose of committing theft. The drivers were planning since long time, arrangement of fabricated seal in a short period was not difficult. No damage/shortage certificate was submitted by the complainant company and thus, has prejudiced the recovery rights of the opposite party to exercise the recovery rights against the carrier. The opposite party could not have released the payment without the proper Discharge Voucher duly signed and stamped. It is denied that the complainant had signed the discharge voucher on 23.11.2012 under coercive and compelling circumstances. There is no allegation that the complainant was compelled by any of the officials of the opposite party at any stage to settle the claim at a lesser amount. After accepting the offer of the opposite party, the complainant company cannot go back on the acceptance as it is irrevocable and a concluded contract. The e-mail dated 30.11.2012 is of no consequence after submitting the Discharge Voucher voluntarily signed. The complaint is time barred and is defective due to non-joinder of the necessary parties.

8. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.

9. The admitted facts are that the complainant Company, who is a pharmaceutical company, had availed the insurance policy (Ex.C3) from the opposite party covering the risk to the goods arising out of theft, pilferage, non-delivery, short delivery, breakage, damage to packing and so on from anywhere in India to anywhere in the world and vice versa. The transportation of 15000 kilograms of menthol crystals from the warehouse of the complainant-Company in Derabassi, Punjab to the consignee based in the Singapore has not been denied. It has also not been denied that the said consignment suffered pilferage and theft in transit in respect of which FIR No.6 dated 18.01.2012 got registered in PS-Dera Bassi, SAS Nagar, Mohali (Ex.C-7) and another FIR No.18 dated 15.01.2012 was got registered by the owner of Truck in Police Station Vijaynagar, District Ghaziabad (Ex.C-8). Appointment of the Surveyors by the opposite party and the assessment of the total loss at ₹79,69,322/- by the Surveyors, vide their Survey Reports dated 25.06.2012 (Ex.C-10) has also not been denied. The settlement of the insurance claim to the extent of ₹59,76,992/- on non-standard basis at the rate of 75% has also not been denied. The opposite party alleged that the amount of ₹59,76,992/- was received by the complainant-Company in full and final settlement and it has duly signed and stamped the discharge voucher dated 23.11.2012 Ex.C18/Ex.R-1 without any protest. However, the complainant Company alleged that the same was received under coercion and compelling circumstances and the discharge voucher was sent in advance under compelling circumstances and under protest.