CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.156/2009
M/S EVERGREEN TIMBER & PLYWOOD CO.
THROUGH ITS PARTNER
SHRI SORAV GUPTA
4294/5 , JAI MATA MARKET,
TRI NAGAR, DELHI-110035
ALSO AT:
G-118, SECTOR-9,
NOIDA-201301, U.P.
…………. COMPLAINANT
Vs.
- THE BRANCH MANAGER
M/S GLADSTONE AGENCIES LTD.,
MADANGIR,
NEW DELHI-110062
- M/S GLADSTONE AGENCIES LTD.,
HEAD OFFICE:
1A, JANKI SHAH ROAD,
HASTINGS, KOLKATA-700022
- M/S CHUNG KUO INSURANCE COMPANY LTD.,
3F, 58 WU-CHANG STREET,
SEC.1, TAIPEI, TAIWAN 100,
REPUBLIC OF CHINA
- M/S HIND ROADWAYS CORPORATION
156A, LENIN SARANI,
KAMALALAYA CENTRE,
ROOM NO.311, 3RD FLOOR,
KOLKATA-700013
…………..RESPONDENTS
Date of Order:30.09.2015
O R D E R
A.S. Yadav – President
The case of the complainant is that it is a partnership concern dealing in business of all kinds of timber, plywood moulding and sunmica etc. OP-1 and OP-2 are agents/representatives and certified Surveyors and Loss Adjusters of OP-3. OP-4 is a transporter.
Complainant had imported consignment of Eva Taisox Resin from M/s Formosa Plastics Corporation, 201, TUNG HWA NORTH ROAD, TAIPEI, Taiwan Republic of China, with total quantity of 1800 bags(45 M.T.) and the said goods were consigned vice Invoice No.18B83337B-07/04/2008. The said consignment/goods were duly insured with OP-3 vide Policy NO.0200974FPC02030 dated 07.4.2008 for the sum Assured of 89,100 US $ and the said policy comprehensively covers the risks delivery of the consignment upto the insurer/applicant. As per the insurance policy it was also confirmed that all the claims arising out of the said policy will be settled in India by OP-2.
In another insurance policy, the complainant’s business relation had further similarly assured another consignment/goods i.e. Eva Taisox 7350M, 75 M.T. packed in 3000 bags for sum Assured of US $ 148,500/- vide Insurance policy NO.020097FPC02940 dated 15.5.2008 and the said Insurance policy also specifically mention the risks covered “COVERED UP TO THE GODOWN OF THE CONSIGNEE”.
During the transit of the said consignment, the complainant had entered into an agreement to sell the said consignment to M/s Tirupati Chem Industries at 446/156 Rithala Factory, Industrial Area, Delhi-110085. The above consignment was shipped to India by Sea through M/s Laurel Navigation(Mauritius) Ltd. vide Invoice No.18B 83337 B dated 07.4.2008 and Bill of Lading No.LNLUTPE 7088411 and was delivered at Kolkata port where after the goods were cleared and M/s M. Dutta Agency, Kolkata took the delivery of the consignment on behalf of complainant being authorized agent of complainant.
OP-4 approached the complainant claiming the to be a transporter of repute, assured and undertook safe delivery of the consignment on agreed terms as per the instructions of the complainant. Thereafter M/s M. Dutta on the instructions of complainant entrusted the consignment to OP-4 for delivery to M/s Tirupati Chem Industries at 446/115, Rithala Factory, Industrial Area, Delhi-110085. OP-4 had confirmed and undertaken safe delivery of consignment as per the instructions of complainant and believing and trusting the said representations, complainant did entrustment of their consignment to OP-4 to its delivery at Delhi.
However to the utter surprise and shock of complainant, the consignment failed to reach its destination as undertaken by OP-4 and on enquiry OP-4 informed the complainant that consignment in Truck No.WB-23B-2425 was stolen on its way to Delhi and OP-4 shall be handing over the necessary documentary proof of the same to complainant.
OP-4 did not keep its words and complainant requested OP-4 to send the documentary proof in support of their claim alongwith necessary documents like the copy of FIR registered with the police, No Delivery Certificate in original and No traceable report issued by the police/authority concerned. But OP-4 did not adhere to the request made by complainant. Finally complainant sent a legal notice dated 31.5.2008 to OP-4 calling upon him to pay the cost of consignment as also mentioned in the consignment note no.1013 dated 13.5.2008 i.e. Rs.14,14,546.53. OP-4 thereafter supplied a Non Delivery Certificate with copy of police report dated 23.5.2008 made to Officer in Charge, West port Police Station Khidderpore, Kolkata u/s 407/120-B IPC registered as case No.145/2008. OP-4 also sent a reply to said legal notice vide reply dated 03.6.2008. OP-4 further vide reply dated 26.6.2008 informed the entire consignment alongwith the Truck was hijacked enroute by the miscreants and the driver’s dead body was found by the police.
OP-1 being the agent/representative of OP-3 also submitted the original Policy No.020097FPCO2030, B/L, Invoice, Policy List on dated 23.5.2008. The said total consignment of 1800 bags was dispatched in three trucks i.e. each truck was containing around 600 bags while two trucks had reached the complainant on 20.5.2008 and one truck no.WB-23B-2425 containing 600 bags was reportedly hijacked and the driver was killed Thus on getting the said information, the complainant lodged the claim with OP-1 immediately on 23.5.2008. Thereafter complainant received another letter dated 02.7.2008 from OP-2 repudiating the claim of the complainant on false, frivolous an flimsy reasons that complainant since entered into trade of selling, the said consignment to M/s Tirupati Chem Industries, therefore the insurers are not liable for any loss which occurred during transit form Kolkata to Delhi.
OP-2 further sent a letter dated 23.7.2008 again reiterating the repudiation of the claim of complainant with another reason that the subject matter insured was loaded on board MV “Viking Osprey” in Keelung, Taiwan an terminate on delivery to the consignee i.e. complainant’s warehouse in Kolkata, India.
It is prayed that OP be directed to pay a sum of Rs.14,14,546.53 being the cost of goods of the complainant which were covered under Insurance Policy No.020097FPCO2030 dated 07.4.2008 with OP- to OP-3 alongwith interest @ 18% p.a. w.e.f.23.5.2008 and also to pay compensation of Rs.10 lakhs and Rs.22,000/- for cost of complaint.
OP-1 and OP-2 in the written stated took the plea that admittedly the Insurance Policy No.020097FPC0230 cover the alleged goods from Keebeng, Taiwan to Kolkata, India whereas the said goods were missing somewhere in Jharkand. Hence these respondents have no liability to pay any claim of the complainant. The truck carrying the alleged goods were missing after crossing West Bengal and the body of the driver was found by Barhi P.S. in Hazaribagh, Jharkand hence this Forum has no jurisdiction to hear this complaint petition. The complainant is not a consumer as defined under Sec.2(d)(i) and (ii) of the Consumer Protection Act 1986 as it has obtained goods for resale on commercial purpose and as well availed of services for commercial purpose. The complainant is not the ‘Assured’ and hence cannot be a complainant and/or a consumer in this complaint. It is further stated that complainant has not annexed the invoice. The insurance policy mentioned therein covers the risk upto Kolkata. If the goods sold as mentioned therein it would be for the buyer to file the complaint and not the complainant. Cause of action, if any is against OP-4 and not other OPs. It is prayed that the complaint be dismissed.
OP-4 in the written submissions took the plea that complaint is not a consumer as complainant is indulging in commercial transaction. The complaint was not owner of goods at the time of sold on basis which is reflected form the bill of entry filed with the custom wherein M/s Tirupati Chem Industries was shown as importer. It is further stated that the consignment was accepted by OP for transportation with the terms and conditions that company will not be responsible for any loss or damage to goods arising from act of God, unexpected emergency, state enemies, riot and civil etc. But truck carrying the goods was forcibly taken away and by some and its driver was killed for no fault of OP-4 hence OP-4 is not liable as per terms and conditions agreed. It is prayed that the complaint be dismissed.
We have heard Ld. Counsel for complainant as well as OP-4. During the course of argument on 24.9.15, Ld. Counsel for complaint stated that he is not pressing his claim against OP-4 . Since complaint has not pressed its claim against OP-4, the same stands dismissed quo OP-4.
The first point for consideration is whether this forum has got the jurisdiction to entertain the present complaint. Counsel for complainant has drawn our attention to the insurance policy which provides that claim if any payable at/in India in US dollars By M/s Gladstone Agencies Ltd., 1A, Janki Shah Road, Hastings at Kolkata, India.
As per the policy, the claim was payable at the Kolkata office and not in other office in India. The jurisdiction of this Forum has been invoked merely because there is branch office of M/s Gladstone Agencies Ltd. at Madangir, New Delhi. It is settled law that only that branch office has got the jurisdiction from where the transaction has been conducted. In this case, nothing has been placed on record to suggest that transaction has been conducted at Madangir. As per policy the jurisdiction only vested with Customer Forum at Kolkata. Obviously this Forum has no jurisdiction to entertain the present complaint.
Assuming for the sake of arguments, that this Forum has jurisdiction to entertain the present claim, even then the present complaint is not maintainable on merit. OP-1 and OP-2 in para (f) of their written submissions have specifically stated that admittedly complainant is not “Assured” hence cannot be a complainant or consumer in this claim petition. This fact is denied by complainant in its rejoinder but failed to assert as to how complainant is a consumer. Complainant has placed on record the policy and as per policy, the assured is Formosa Plastic Corporation. In the entire policy, name of complainant is not mentioned anywhere. The original invoice has not been placed on record by the complainant. As per policy complainant is not assured. Hence this complaint is not maintainable.
Even otherwise in para 10 of complaint, complainant has stated that during transit of said consignment, the complainant had entered into agreement to sell the said consignment to M/s Tirupati Chem Industries at 446/156 Rithala Factory, Industrial Area, Delhi-110085. In para 10, it is further stated that the consignment was entrusted to OP-4 for delivery to M/s Tirupati Chem Industries.
So it is proved from the averments made in the complaint that during transaction, the complainant has sold the goods to M/s Tirupati Chem Industries. Assuming for the sake of arguments that the complainant was assured, the moment the complainant has sold the goods during transit, then relationship between the insurer and insured has come to an end and precisely this is the reason for repudiation of the claim.
For the aforesaid reasons, we are of the view that the present complaint is not maintainable, the same is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
