KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 362/2008 JUDGMENT DATED: 23-01-2010 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT APPELLANT M/s BROS INDIA GROUP., P.O. BOX No. 3, Muhamma, Alleppey, Kerala-688 525 Represented by its Managing Partner, John Paul, Kunnappalliyil House, Muhamma, Alleppey. (Rep. by Adv. Sri. Vishnu. R & Sri. Koshy. P.J) Vs RESPONDENT Export Credit Guarantee Corporation of India Ltd., (Regd. Office, Express Towers, 10th Floor, Nariman Point, Mumbai 400 021) represented by its Branch Manager, Branch Office, H D F C House, II Floor, P.B. No. 1678, Ravipuram Junction, M.G. Road, Ernakulam, Kochi-682 015. (Rep. by Adv. M/s V.M. Kurian & others) JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT The appeal is filed by the complainant over the order in IA 14/07 in CC No. 454/06 in the file of CDRF, Ernakulam. 2. The IA was filed by the opposite party disputing the maintainability of the complaint. It was the contention of the opposite party that with respect to the claims of the complainant, a sum of Rs. 8,31,683/- has been paid in full and final settlement and hence the complaint is not maintainable. The Forum relying on the documents produced held that the amount has been received in full and final settlement and hence the complaint is not maintainable and therefore dismissed the complaint. 3. It is the case of the appellant/complainant that there was two claims involved and that the Forum has considered only the alleged payment with respect to one claim and the second claim with respect to the consignment of Rs. 11,75,966/- which was rejected was not considered. It is pointed out that the second claim has not been settled so far by the opposite party. Hence, the dismissal of the complaint as such without affording opportunity for the complainant to adduce evidence is incorrect and is liable to be set aside. 4. We find that the complaint is concerning the guarantee of the opposite party Export Credit Guarantee Corporation of India Ltd. vide policies issued regarding the damages sustained with respect to the goods exported. As per claim dated 18-08-2004 the complainant has claimed the loss with respect to 3 shipments vide document No. 2 produced by the complainant. As per document no. 4 the second claim dated 31-08-2004, the loss of the abandoned consignment is mentioned as Rs. 10,58,369.40 being 90% of the invoice value of Rs. 11,75,966/-. It is evident from the documents produced that it is with respect to the first claim that the amount has been paid towards the full and final settlement and the same has been accepted by the complainant. Of course, with respect to the above first claim there is no contention in the complaint that the discharge voucher was obtained by the insurer by fraud, misappropriation, undue influence or the like. 5. As per reply lawyer notice dated 30-05-2006(document No. 13 filed by the complainant) with respect to the complainant’s lawyer notice No. 484/4506 it is mentioned that the second claim cannot be considered for failure on the part of the complainant to submit the prescribed declaration of shipment. Hence the second claim virtually stands rejected. 5. It is the contention of the respondent/opposite party that the payment of the amount of Rs. 8,31,683/- is with respect to both the claims. We find that the above contention has not been considered by the Forum. In fact, the Forum has not considered the second claim at all. The Forum has not examined the complaint with respect to the two claims raised therein. Ofcourse, it appears that with respect to the first claim, the case of the opposite party appears rather formidable. All the same, in view of the fact that the matter has not been considered by the Forum in the proper perspective the order of the Forum is set aside. 6. The matter is remitted back to the Forum for fresh consideration with respect to the question of maintainability and further steps. The case stands posted before the Forum on 11-03-2010. The office is directed to forward the copy of this order and lower court records to the Forum urgently. JUSTICE K.R. UDAYABHANU: PRESIDENT | 
