IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT SILIGURI.

CONSUMER CASE NO 74/S/2018.                    DATE OF FILING: 09-07-2018.

BEFORE  PRESIDENT              : SRI KANHAIYA PRASAD SHAH,

                                                              President, D.C.D.R.C., Siliguri.

                      MEMBERS              : SRI TAPAN KUMAR BARMAN &

  SMT. MALLIKA SAMADDER .

COMPLAINANT             : Rachit Trexm Pvt. Ltd.,

  Saralia Market, Shivajit Road, Khalpara,

  P.O. & P.S._ Siliguri, Dist.- Darjeeling.

O.Ps.              1.                        :AXA Insurance Public Company Limited,

  Wilson Surveyor and Adjuster(W E COX) unit #806,

  8^th Floor, Suite-806, Diamond Prestige, 41A,

  AJC Bose Road, Kolkata – 700017.

                                    2.                     : W E COX Claims Group,

Wilson Surveyor and Adjuster(W E COX) unit #806,

  8^th Floor, Suite-806, Diamond Prestige, 41A,

  AJC Bose Road, Kolkata – 700017.

3.                     : Wilson Surveyor and Adjuster, (W E COX),

  Wilson Surveyor and Adjuster(W E COX) unit #806,

  8^th Floor, Suite-806, Diamond Prestige, 41A,

  AJC Bose Road, Kolkata – 700017.

                                    4.                     : Trans Asia Shipping services Pvt. Ltd.,

  Everest House, 5^th Floor, Flat 5A, 46C,

  Chowringhee Road, Kolkata – 734001.

FOR THE COMPLAINANT         : Mr. O.P. Sharma & Mithun Prasad, Advocate.

   FINAL ORDER/JUDGEMENT

                   Date: 25-02-2021.

The facts of the case.

Complainant Rachit Prexim Pvt. Ltd. is a Private Limited company registered under Companies Act and having its office at Saralia Market, Sibaji Road, Khalpara, Siiliguri in District-Darjeeling.  The complainant company is being represented through its one of director Sanjib Kumar Agarwal and in support has filed a authorization letter of the company. It has been alleged that complainant company deals with importer and exporter and  has license from competent authority.

The OP no. 1 is an Insurance Company and OP no. 2 and 3 are authorized agents and representative of OP no. 1. The OP no. 4  is a carrier and delivery agent who undertakes to arrange shipment

Contd….P/2.

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and delivery of consignment subject. During business process the complainant purchased Damar Batu (Forest Product) on 17.03.2016 from Kwangda Inter trade Company Limited for value in Indian Rs. 9,11250 ( in US dollar 13500)  in weight 15000 Kg. (kept in 300 bags each containing 50 Kg.) vide invoice no. 1603047 CIF Calcutta. Thereafter said Damar Batu was dispatched by ship freight on 20.03.2016 loading at Bangkok Thailand under requisite bill of landing dt. 20.03.2016 issued by OP no. 4 and a consigned requisites certificate was issued by Foreign Trade Thailand.  The aforesaid shipment cargo of Damar Batu was booked under a marine cargo policy bearing Policy no. 2016-S0077848-MCE dated 18.03.2016 and insured value was USD 14,850.00 which covered all risks including loading and unloading from ware house to final ware house.

 The complainant also paid custom and other charges and also premium for insurance policy.  After loading the Damar Batu reached at Calcutta and from there to final ware house on 19.04.2016 at Siliguri vide truck no WB/25D-7412 and when the same was being unloaded at ware house of complainant then complainant found Damar Batu were in burnt/damaged condition. The complainant tried to and informed the OP no.3  vide e-mail on 19.04.2016 and then OP no. 3 asked the complaint to lodge a formal claim and OP no.3 also asked for relevant documents from complaint which he complied.

Thereafter in response of Ops  through their e-mail dt. 19.04.2016 asked the OP no. 3 to proceed for survey. The OP no. 1 & 2 through OP no. 3 also advised the complainant to lodged notice of claim against carrier also and OP no. 3 nominated one surveyor Mr. S. Kundu who visited the site and submitted survey report that out of 300 bags of Damar Batu 203 bags were fully in burn conditions and 63 bags were in sound with burn mixed conditions and 34 bags were in sound conditions. Thereafter on suggestion complaint segregated the damaged, partially sound mix and sound bags of cargo and kept the same. Thereafter there were various correspondence in between both sides and as per advice of op complainant also made arrangement for sale of damaged Damar Batu but it was not satisfactory for OP no. 3 as a result OP no. 3 himself arranged for buyer of damaged Damar Batu and at last it was sold to M/S Sonu Enterprises of Garden Reach Road, Kolkata for amount of Rs.1,26,350/- and this amount was paid to complainant.

Thereafter complaint submitted final claim bill amount to Rs.10,21,066.24 after adjusting valued of sold damaged Damar Batu  and requested for payment of the same. Thereafter various correspondences also took place and at last the OP no.3 repudiated the claim of complainant on the ground that as per an article of UK P & I Club they learnt that highest incident of damage claim relates to burnt Damar. Those containers are subject to

Contd….P/3.

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heating due to being exposed to sunlight, resulting in heating/melting/burning of the goods inside.  Thereafter complainant raised objection through emails and requested for claim amount but with no good result. So having no alternative complainant filed this case before this Commission for reliefs as prayed for in the petition of compliant.

In this case it appear initially this commission (the then Forum) vide its order dt. 27.07.2018 considered this complaint case as not maintainable. Thereafter complainant preferred an appeal before the Hon’ble State Commission at Siliguri Branch from where the admission of complaint was allowed on contest.  Before the Hon’ble State Commission the respondents no. 1 to 4  i.e. OP no. 1 to 4  were there  in which respondent no. 4 did not appear before the Honble State commission and respondent nos. 1, 2, 3 contested the appeal.  Thereafter before the Hon’ble State commission the respondents/Opposite Parties were directed to submit their written version within 30 days before this commission from the date of receiving copy of the order of the appeal

Thereafter summons were issued upon Ops by this Commission also. The  OP no. 1 and 2 were found absent and OP no. 3 filed a petition praying for time to submit written version after passing of the time given by the Hon’ble State Commission, so the prayer of the OP no. 3 was rejected and case was ordered to proceed further.

The complainant filed his examination in chief by affidavit and also documents in support complaint case and argument was heard.

DECISION WITH REASONS

It appears from the evidence and documents filed by the complainant that complainant is one of director of the company name Rachit Trexim Pvt. Ltd. Situated at Saralia Market, Sibaji Road, Siliguri in this Darjeeling District. He has a certificate of importer-exporter issued from the office of zonal director General foreign trade Esplanade east, Calcutta 69.

The OP no. 1 is an insurance company and OP no. 2 & 3 looks after their business in India. The complainant has purchased Damar Batu of 15000 Kg. containing in 300 bags each bag of  50  Kg. in weight from Kwangda Inter Trade Company limited situated at Bangkok in Thailand on 17.03.2016 and total price in US dollar was 13,500 ( Indian value Rs.9,11,250/=)  under proper invoice vide annexure 3.

The above consignment was shipped from Bangkok to

Contd….P/4.

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Calcutta for Siliguri through Trans Asia Shipping Services Pvt. Ltd. i.e. OP no. 4 vide annexure 4 IV. The shipment were on 20.03.2016 from Bangkok to Calcutta port vide annexure V.

It also appears vide Annexure VI that consignment was ensured under marine cargo policy vide policy no. 2016-S0077848-MCI through OP no. 1 on 18.03.2016 and insured value was USD Dollar 14850 and voyage from Bangkok to Calcutta. Further under condition clause of this insurance policy it has mentioned that it covers  all risks including loading and unloading from ware house to final ware house. It also contain that claim, if any, payable in Calcutta, India, Surveyor agent-Wilson surveyors & adjusters (WECOX) unit, 806, 18^th floor Dimond Prestige 41 A, A.J.C. Bose Road, Calcutta 17. Further settling agent AXA Insurance public company limited Lumpini Tower-23FC, 1168/67, Rama-4 Rd. Thunga Mahamek, Sathron, Bangkok, Thailand and AXA Insurance has agreed to insured against loss damaged liability or expenses to the extend and in the manner there in provided.

Thus Goods were insured covering all risks from ware house to final ware house including risks of loading and unloading and complainant vide annexure VII  and VIII  has paid other charges also.

Thereafter as per evidence of complainant, it appears that complainant’s above consignment reached at Siliguri on 19.08.2016 and same was being unloaded at ware house of complainant then it was found in burnt and damaged condition of Damar Batu. After it complainant has informed this to OP no. 3 through email on 19.04.2016 at 3.38 pm and thereafter OP no. 3 through email has sought details from complainant i.e. Annexure X wherein OP no. 3 has forwarded the claim to his principal. The OP no. 3 has also asked the complaint to lodge formal claim against carrier/shipping. Thereafter complaint has complied the same. It further appears vide letter dt. 21.04.2016 that OP no. 3 has informed the complainant that surveyor S. Kundu will visit the site to carry out survey/inspection for Dammar Batu and also informed that documents mentioned in the letter may be required in said connection.

Thereafter from annexure XIV it appear Mr. S. Kundu (Surveyor) visited the site on 22.04.2016 and prepared report. From the report it reveals that out of 300 bags 203 bags were in burnt condition and 63 bags were in sound mix burnt condition and 34 bags were in sound condition. The surveyor also asked the complaint to segregate the damaged and sound cargo and informed them accordingly and thereafter complainant did so and informed the OP no. 3 on 24.04.2016 through email and requested to make arrangement for lifting of burnt goods i.e. Damar Batu vide Annexure XV. Thereafter vide annexure XVI complainant asked for

Contd….P/5.

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the status of claim. Thereafter some comments were made and clarification were asked from complaint by OP no. 3 vide Annexure XVII with further report. It has been mentioned that during survey it was found that part of cargo in bags was in burnt condition turned blackish and formed lumps. Considering the nature of cargo, Damar Batu which is a natural product having some inherent property of self heating by exothermic reaction due to variation of temperature and moisture during storing in container, so in their experience they feel such burnt of cargo cannot be happened during course in land transportation from Kolkata to Siliguri. Further as per their information Cargo was loaded in Kolkata on 13.04.2016 and reached at Siliguri Ware house on 19.04.2016. It was further directed to complainant to proceed for salvage operation of damaged cargo and to inform them for best offer at earliest.

It also appears, there after communications took place vide annexures XVIII to XX. It appears vide annexure XXI the complainant informed the surveyor of OP no. 3 Mr. S. Kundu that offer had been received for Rs. 5 per Kg. from one buyer. Thereafter OP no.3 vide annexure XXII asked the complainant to inform him, for best offer of damaged cargo then complainant vide annexure XXIII dated 19.05.2016 informed to OP no. 3 that best offer has been found @ Rs. 8 per Kg.

It appears further that thereafter OP no. 3 vide mail dated 25.05.2016 i.e. annexure XXIV has informed that they have found best offer @ Rs. 9.50 per kg who is M/S. Sonu Enterprise of Garden Reach Road, Kolkata and Sonu Enterprise will contact the complainant. Thereafter as per advice of OP no. 3 complainant handed over damaged Damar Batu (Salvage) to M/S Sonu Enterprise on 24.05.2016 after weight measurement and counting the rate the total amount stand  Rs.126350/- and complainant kept it and  vide annexure  XXV and vide Annex- XXVI it was informed to OP no. 3 by email.

It appears from annexure XXVII that complainant sent claim documents for amount of Rs.10,21,066.24 after adjusting sale value of damaged Damar Batu. Further as per advise of OP No. 3 complainant has also lodged claim against OP no. 4 vide annexure XXIX. Thereafter Op No. 3 has sought some clarification vide annexure XXX which has been complied by complainant on 21.06.2016 vide annexure XXXI.

It appears further that there after on 09.08.2016, the OP no. 3 has informed the complainant that they have received letter of declination from their principal against the claim i.e vide annexure  XXXII and XXXIII. From declining report it appears that main contents are “having investigated the nature of insured goods, it contend self heating nature by exothermic reaction due to variation

Contd….P/6.

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of temperature and moisture during the storage of container. Our surveyor has done several survey with similar damage situation, hence they incline to believe the damage was due to inherent i.e. self heating of container”.

The letter also states that their surveyor reports reveal that FCL container no. TLXCU3003687 containing 300 bags of Damar Batu was shipped from Bangkok to Calcutta and arrived in apparent in good condition without discrepancy and at the time of delivery of component burning damage was reported. It has been also mentioned that they have noted destuffing of Cargo from container and loading on to truck were done at midnight by labours which complainant (You) did not know the conditions of goods at that time. No photos have been taken during destuffing.

Further from article of UK-P & I Club, they have learnt that highest incident of damaged claim relates to burnt Damar. Those container are subject to heating being exposed to sunlight resulting in heating/melting/burning of goods in container, so there lacks of evidence that damaged resulted from any fortuitous incident occurred during transit, so they regret to repudiate the claim.

It appears, thereafter complainant lodged protest and communications took place with complainant and OP no. 3 but with no good result.

So from the evidence of complainant and documents it appears that complainant has made full coperation with Ops who took several reports for his claim. The insurance of cargo was covering all risks whatsoever including loading and unloading from ware house to final ware house. This final ware house is at Siliguri. In insurance policy also duration of policy has been mentioned. The Cargo has been damaged when it was being unloaded at final ware house. The OP no. 3 has rejected the claim quoting an Article of UK P & I Club, which has learnt that the highest incident of damage claim which relates burnt Damar. Those containers are subject to heating due to being exposed to sunlight resulting in heating/melting/burning of the goods inside. Further as per their information they have lack of evidence to demonstrate that the damage was resulted on fortuitous incident during transit.

These allegations have been denied by complainant. It appears that surveyor could have opened the cargo to ascertain the truth. If Ops alleges any quotation from an Article then the burden is upon  them to prove it because they can’ot escape from their liability that cargo should reach in good condition to final ware house. Further from all the communications it appears that it was within their knowledge that Damar Batu is being loaded and is being shipped  and will be transported and if OPs had experiences,

Contd….P/7.

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then they could have denied the issue of insurance policy in respect of Damar Batu cargo. Further if OPs alleges then they should have produced documents before this commission and could have proved by expert evidence regarding suo-moto burnt of Damar Batu but they have not come forward.

Under these circumstances evidence of complainant remains on challenged and there is no reason to disbelieve this evidence, so this commission is of the view that the complainant has been able to prove his case by adducing oral as well as documentary evidences that the insurance policy covers all risks till reaching the goods in safe condition its final  ware house and when this has not happened then the complainant is entitled for claim amount. Accordingly the complaint’s case succeeds and the complainant is entitled for the reliefs.

Hence it is ordered

That complaint case being no. CC 74/2018 is allowed ex-parte with cost against all the Opposite parties. The complainant is entitled for his net claim value amount to Rs.10,21,066.24 from the  OP nos. 1 to 3 and jointly and singly with an interest @ 8 % per annum since the date of filing of this case till the date or order.

It is further ordered the complainant shall be entitled for Rs.1,00,000/-towards mental agony, damage and financial loss from the OP nos.  1 to 3 jointly and singly along with litigation cost of Rs.15000/=

The Op nos. 1 to 3 jointly or singly are here by directed to pay the above amounts to the complainant within 45 days from the date of this order failing which the amount shall carry interest @ 12% per annum thereafter till the date of realization.

In default the complainant shall be at liberty to execute the order as per law.

Let a copy of this judgment/final order be supplied to the parties free of cost.