In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No. 205/2011
1) B.S. Progressive Pvt. Ltd.
3A, Pollock Street, 1st Floor, Kolkata-1 ---------- Complainant
---Versus---
1) ACE Insurance Ltd.
600, North Bridge Road,
17-01 Park View Square, Singapore-188778.
2) ACE Synergy Insurance Berhad,
3rd Floor, Bangunan KWSP,
No.3, Cangkat Raja Chulan 50200 Kuala Lumpur, Malaysia.
3) Gladstone Agencies Ltd.
1A, Janki Shah Road, Hastings,
Kolkata-700022, P.S. Hastings. ---------- Opposite Parties
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri, Member
Smt. Sharmi Basu, Member
Order No. 16 Dated 17/10/2012.
The petition of complaint has been filed by the complainant B.S. Progressive Pvt. Ltd. against the o.ps. ACE Insurance Ltd. and others. The case of the complainant in short is that complainant is engaged in import of various items from overseas countries. O.p. no.1 is insurance company, o.p. no.2 is the settling agents of o.p. no.1 and o.p. no.3 is the survey agent of o.p. no.1. O.p. no.1 is issued a Marine Cargo Insurance Policy on 20.11.06 under open policy no.202764 assured in the name of the shipper M/s Farlin Timbers PTE Ltd., Singapore for a consignment of 261 pieces of Malaysia Round Logs – Keruing and the same was insured at the tune of USD 125,595.40 covering cargo undr Institute Cargo Clause “A” i.e. ‘All Risks’.
On 20.11.06 the said consignment were boarded on a ship being M.V. QUING ANN VOY 05/06 from the Port of Sarawak, Malaysia Port to Port of Kolkata and the said consignment were to be delivered to the consignee and/or its assignees/agents. Carlon Shipping INC issued a bill of lading no.FAR-32256. Soon after arrival of the said vessel under Import Rotation No.2024/2006 and Line No.7 at Falta Jetty and 5/7 K.P. Dock and 28 K.P. Dock o.p. no.3 th e survey agent of o.p. no.1 was informed by complainant on 1.12.06. o.p. no.3 did not turn up and as the port authorities refusing to hold the vessel for indefinite period started unloading the aid consignment in presence of their paneled surveyor viz. United Surveyors as requested by complainant.
During assessment by United Surveyors it was noted that out of 261pieces of the said consignment were unloaded from the said vessel and the said surveyor issued Survey Report on 22.12.06. United Surveyors assessed that 38 pieces of the said consignment were short landed from the said vessel. Assessment was held and related loss certificate was also issued by paneled surveyors of port authorities. That the complainant suffered loss to the tune of USD 19,367.00 forf 38 ‘Malaysia Round Logs-Keruing’ (Rs.44.95 approx X USD 19,367.00 i.e. Rs.8,70,547.00 of the Indian currency).
Complainant lodged claim with o.ps. along with all relevant documents, but o.ps. did not settle the claim. Subsequently, legal notices were also served upon o.ps. but in vain. Hence the case was filed by complainant with the prayer contained in the petition of complaint.
O.p. no.3 had entered its appearance in this case by filing w/v and denied all the material allegations labeled against it and prayed for dismissal of the case. O.p. nos.1 and 2 did not contest the case by filing w/v and matter has been heard ex parte against o.p. nos. 1 and 2. ld. lawseyr of o.p. no.3 in course of argument submitted that complainant has no cause of action to file the instant case and the same is liable to be rejected.
Decision with reasons:
We have gone through the pleadings of the parties, evidence and documents in particular. O.p. no.1 is insurance company and o.p. no.2 is claim settling agent of o.p. no.1 and o.p. no.3 is the surveyor of o.p. no.1. It is admitted position that o.p. no.1issued a Marine Cargo Insurance Policy vide certificate no.M202014457 on 20.11.06 under open policy no.202764 assured in the name of the shipper M/s Farlin Timbers PTE Ltd. Singapore for a consignment of 261 Malaysia round logs – Keruing and the same was insured at the tune of USD 125,595.40 covering cargo under Institute Cargo Clauses “A” i.e. all risks and on 20.11.06 the said consignment were boarded on a ship being MV QING ANN VOY 05/06 from the Port of Sarawak, Malaysia Port to the Port of Kolkata and the said consignment to be delivered to the consignees and/or its assignees / agent. Carlon Shipping Inc. issued a bill of lading no.FAR-32256 and soon after arrival of the said vessel under import rotation no.2024/2006 and line no.7 at Falta Jetty and 5/7 K.P. Dock and 28 K.P. Dock o.p. no.3 the survey agent of o.p. no.1 was informed by complainant on 1.12.06. As 261 pieces of the said consignment as per shippers invoice and bill of landing only 223 pieces of the said consignment were unloaded from the aforesaid vessel and the said surveyor issued survey report on 22.12.06. The United Surveyor assessed that 38 pieces of the said consignment were found short landing from the said vessel, but o.p. no.3 did not cause any survey as they were not instructed for the same by o.p. nos.1 and 2. Finding no other alternative complainant caused the survey by the panel surveyor of Kolkata Port authorities and the said surveyor admitted loss of 38 piece of Singapore round logs and related loss survey was also issued by the said surveyor.
Not it is crystal clear be that as it may, complainant consigned for the articles and made payment of insured amount and despite the same complainant did not receive 38 pieces of Singapore round logs which he ought to have been received and it is only o.p. nos.1 and 2 who are duty bound to compensate of the loss of the complainant and this act on the part of o.p. nos.1 and 2 amounts to deficiency in service particularly when they did not repudiate the claim and this act too amounts to deficiency in service and to make it clear non repudiation amounts to deficiency in service as per decision of Hon’ble National Commission to their consumer / complainant and complainant is entitled to relief.
Hence, ordered,
That the case is allowed on contest without cost against o.p. no.3 and exparte with cost against o.p. nos.1 and 2. O.p. nos.1 and 2 are jointly and/or severally directed to pay Rs.8,70,547/- (Rupees eight lakhs seventy thousand five hundred forty seven) only together with interest @ 9% p.a. from the date of claim till realization and are further directed to pay compensation of Rs.25,000/- (Rupees twenty five thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
