Punjab

Ludhiana

CC/13/672

National Soap Mills - Complainant(s)

Versus

Hanjin Shipping(India)Pvt.Ltd - Opp.Party(s)

15 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                                 Old CC No: 688 of 06.10.2009

                                                                 New CC. No: 672 of 09.09.2013

                                                                 Date of Decision: 15.04.2015

 

1.       National Soap Mills, Village Pahwa, G.T.Road, Ludhiana, through its Partner/Authorised Representative.

2.       Sangam Enterprises (Commission Agents), Ist Floor, Sohan Palace, The Mall, Ludhiana through its Authorised Representatives.

3.       Raj Agro Mills Limited, Village Pawa, G.T.Road, Ludhiana through its Company Secretary.

                                                          … Complainant.

                                      Versus

1. Hanjin Shipping (India) Pvt. Ltd., 4^th Floor, Vedanta 779, Makwana Road, Marol Village off. Andheri-Kurla Road, Andheri (East) Mumbai-400 059 through its Director.

 

2. Contfrieght Shipping Agency (India)Pvt., Ltd., Ganesh palace,  First Floor, SCO-9-10 G.T.Road, Dhandari Kalan, Ludhiana- 141 010 through its Director/Authorised Representative.

 

3. National Insurance Company Limited, Ludhiana Branch III, Link Road, Cheema Chowk, Ludhiana through its Branch Manager.

 

                                                                   …. Opposite parties.

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

 

Quorum:             Sh. R.L.Ahuja, President

                             Sh.Sat Paul Garg, Member.

 

 

Present:                Sh.Munish Mittal, Advocate for the complainants.

                             Sh.Deepak Kumar, Advocate for the OP1 & OP2.

                             Sh.Rajeev Abhi, Advocate for OP3.

 

 

                                                ORDER

(SAT PAUL GARG, MEMBER)

1.                The complaint was earlier filed before this Forum, vide complaint bearing no.688 of 06.10.2009, which was allowed against OP3 only, vide order dated 02.06.2010. Thereafter an Appeals no.1298 of 2010 by OP3 and no.1393 of 2010 was filed by present complainants, which were accepted and vide which the impugned order passed by the District Forum had been set aside and case had been remanded to this Forum for a fresh decision on merits after giving appropriate opportunity to the parties.

2.                Brief facts of the complaint are that complainants being manufacturer of soap, detergents, vanaspati ghee, refined oil placed order 500 Mts of RBD Palm Olein  with M/s. V.V.F. Singapore Pvt. Ltd. The said exporter discharged  13-Flexi bags containing 257.12 Mts of RBD Palm Olein  and 12 Flexi bags containing 238.12 Mts of RBD Palm Olein totaling 495.24 Mts through Hanjin Shipping  (India) Pvt. Ltd., vide bills of lading No.HJSC PRD1 0314 5001 and HJSC PRD1 0314 490  dated 08.10.2008 and 02.10.2008 respectively. OP1 loaded the material from Port of Lading at Pasir Gudand, Malaysia in the Vessel to be delivered at Inland Container Depot (herein after referred to as “ICD”), Ludhiana. Complainant no.1 took marine policy from the National Insurance company OP3 vide cover note no.144898 dated 19.09.2008 for 500 Mts  of RBD Palm Olein. Under the policy material was to be delivered at the warehouse of the complainant no.1 after receipt of premium. OPs issued marine cargo policy no.404501/21/08/4300 0000 36. But when the material reached Indian port at Mumbai, complainant received a message from OP2 a shipping agency that the flexi-bags are leaking. Intimation was given by complainant no.1 to OP3 regarding damage to insured flexi bags  and also informed OPs 1 & 2 for taking necessary action and to quantify the loss. Out of 25 containers one container No.HJCU 8298189 was lying in damaged condition at Mumbai Port and remaining 24 containers at ICD, Ludhiana. That in ICD, Ludhiana, one more container bearing No.HJCU 2017936 was seen in damaged condition. OP3 appointed Mr.O.P.Garg & Associates, who assessed loss of 6435 Kgs  and calculated the loss after taking into account the condition of 1.20% of Excess clause, though it was not applicable. Total loss suffered was Rs.3,15,498/-. But  after applying excess clause surveyor assessed loss of Rs.44,415/-. The insurer was liable to pay the same and balance loss was liable to be paid by OPs 1 & 2  as the Palm Olein  got damaged due to their negligence and also to pay compensation  Rs.3 lacs for harassment and Rs.11000/- litigation cost.

3.                OPs 1 & 2 appeared through their counsel and filed written statement taking preliminary objections that the present complaint is barred u/s 26 of the Consumer Protection Act; the present complaint is not maintainable in the present form, as the Forum has no jurisdiction to try and entertain the present complaint; the complainant is not a consumer as defined under the Consumer Protection Act since the complainant is a commercial organization earning huge profits and is not running the firm to earn their livelihood. Further claimed that OP1 is agent of carriers Hanjin Shipping Company Ltd., Seoul Korea and OP2 is sub agent of OP1. As they are agents, so complaint against them is not maintainable. The complaint is bad for non-joinder of necessary parties. The OP1 and OP2 simply supplied containers to shipper of FCL,CY/CY basis and the shipper’s loaded and   count carriers supplied the containers to the complainants and  shippers who had stuffed the cargo in the container and sealed the same  and handed over to the carrier for carriage and the OPs had sent the containers to shipper’s in sound condition and the complainant had not made them party in the present complaint. Containers at  ICD Ludhiana  were received in sound and O.K. condition, which clearly shows that there was no negligence on their part. On merits, denying the contents of all other paras, OP1 and OP2 prayed for the dismissal of the complaint.

4.                On notice of the complaint OP3 appeared through their counsel and filed written statement. But thereafter at the stage of evidence of OPs, Ld. counsel for OP3 had moved an application for amendment of the written statement and affidavit in order to write the word Before District Consumer Disputes Redresssal Forum, Ludhiana on the first page of the written statement and affidavit in place of work in the court of Civil Judge Senior Division, Ludhiana on 25.3.14, which was allowed, vide order dated 6.6.14 of this Forum. Thereafter amended written statement on behalf of OP3 filed, wherein took certain preliminary objections that the present complaint is barred u/s 26 of the Consumers Protection Act; this Forum has got no jurisdiction to try and decide the present complaint since there is no deficiency in service or negligence on the part of the OPs; the complaint is not maintainable since immediately on receipt of the claim it was duly registered, entertained and processed. The complainant had obtained Marine Cargo Insurance from OP3. Insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy and as per law of the land nothing can be added or abstracted out of it. M/s O.P. Garg & Associates, Engineers, Investigators, Surveyors and Loss Assessors Marine and Miscellanoues, 17-GF, HIG Flats, Rajguru Nagar, Ludhiana was appointed as surveyor and Loss Assessor. The said surveyor personally inspected the consignment and document and prepared his report dated 18.2.09 assessing the loss to Rs.44,415/- with the opinion under the head Observation that “it is apprised that a consignment of 257.12 MT & 238.12 MT RBD Palm Oil was imported from Malaysia to Ludhiana by the consignee. The consignee reached the destination but out of 24 containers, 22 containers containing RBD Palm oil reached in intact condition whereas 2 (Two) containers were found leaking”. “It is hereby informed that the loss to only that containers which were leaked were reported to the insurer of the container which was intact was not informed. The captioned container at Sr.No.12 was received leaked and the loss to which was reported to the insurers and surveyed by the undersigned. The inspection of the container was made ICD and at the consignee’s factory premises. The weightment of the contained both in loaded as well as unloaded condition was made and the shortage ascertained”. M/s Kochhar Surveyors Pvt. Ltd. were appointed as surveyor and loss assessor by OP1 M/s Hanjin Shipping Co. Pvt. Ltd.. The said surveyor had also inspected the containers and had submitted their opinion under the head Observation as under:-

            “Observed Cargo (Liquid) to be found leaking on the floor of the container. Extent of leakage could not be ascertained. On completion of above inspection container was sealed with bottle seal no.HA078792 in the presence of the above mentioned persons”.

                   After the receipt of the report of M/s O.P. Garg & Associates dated 18.2.09 and after scrutinizing the documents placed in the claim file and after applying the mind by the official of the OP3 National Insurance Co. Ltd. in terms of the insurance policy the claim of the complainant was repudiated as No Claim by the answering OP3, vide letter dated 30.04.09 on the ground that ordinary leakage is not covered under the policy issued to the complainant as per exclusion clause no.4.2 of the Institute Cargo Class “A”. There is as such no deficiency in service or negligence on the part of the answering OP3. The complainant is stopped by their own act and conduct from filing the present complaint; complicated question of law and facts are involved in the present case, which require elaborate evidence both oral and documentary and it is only civil court of competent jurisdiction who can try and decide the present complaint; the complainant is not a consumer as defined under the Consumer Protection Act; the present complaint is bad for mis-joinder and non-joinder of parties and cause of action. On merits, denying the contents of all other paras of the complaint, answering OP3 prayed for the dismissal of the complaint.

5.                Ld. counsel for complainant has adduced the evidence by way of duly sworn affidavit of complainant Sh.Davinder Kumar Ex.CA, wherein, the same facts have been reiterated as narrated in the complaint and also attached documents Ex.C1 to Ex.C58. On the other hand, Ld. counsel for OP1 and OP2 has adduced the evidence by way of duly sworn affidavit of Sh.Sachin Suneja (BM), Hanjin Shipping Company, SCO-9-10, G.T.Road, Ganesh Palace, Dhandari Kalan, Near new Greatway Factory, Ludhiana Ex.RA, wherein, the same facts have been reiterated as narrated in the written statement and also attached documents Ex.R1/1 to Ex.R6/1. Whereas, Ld. counsel for OP3 has adduced the evidence by way of duly sworn affidavit of Sh.Kamaljit Singh, Deputy Manager, National Insurance Co. Ltd. Divisional Office no.4, at Mandi Kesar Ganj Chowk, Ludhiana Ex.RA3, wherein the same facts have been reiterated as narrated in the written statement and affidavit of Sh.O.P.Garg of M/s O.P. Garg & Associates, Engineers, Investigators, Surveyors and Loss Assessors Marine and Miscellaneous, 17-GF, HIG Flats, Rajguru Nagar, Ludhiana Ex.RB3, wherein he deposed that he was appointed as Surveyors and Loss Assessor by National Insurance Co. Ltd. A/c M/s National Soap Mills. The deponent had personally inspected the consignment, took photographs and other documents and thereafter prepared his report dated 18.2.09 assessing the loss to Rs.44,415/- with the opinion under the head Observation that “it is apprised that a consignment of 257.12 MT & 238.12 MT RBD Palm Oil was imported from Malaysia to Ludhiana by the consignee. The consignee reached the destination but out of 24 containers, 22 containers containing RBD Palm oil reached in intact condition whereas 2 (Two) containers were found leaking”. “It is hereby informed that the loss to only that containers which were leaked were reported to the insurer of the container which was intact was not informed. The captioned container at Sr.No.12 was received leaked and the loss to which was reported to the insurers and surveyed by the undersigned. The inspection of the container was made ICD and at the consignee’s factory premises. The weightment of the contained both in loaded as well as unloaded condition was made and the shortage ascertained”. Ld. counsel for Ops also attached the documents Ex.R1 to Ex.R21.

6.                Case was fixed for arguments. Ld. counsel for complainant filed written arguments, whereby it is averred that complainant had placed a order to import  500 Mts of RBD Palm Olein  with M/s. V.V.F. Singapore Pvt. Ltd. The said exporter discharged  13-Flexi bags containing 257.12 Mts of RBD Palm Olein  and 12 Flexi bags containing 238.12 Mts of RBD Palm Olein totaling 495.24 Mts through OP1, vide bills of lading No.HJSC PRD1 0314 5001 and HJSC PRD1 0314 490  dated 08.10.2008 and 02.10.2008 respectively. The complainants took marine policy from OP3 vide cover note no.144898 dated 19.09.2008 for 500 Mts  of RBD Palm Olein and as such the material was to be delivered by OP1 at the warehouse of the complainant no.1. The policy was issued by OP3, vide policy no. 404501/21/08/4300000036 by Marine Cargo Department under specific voyage policy. As out of 25 containers one containers bearing No.HJCU 8298189 and HJCU2017936 was found in damage condition and the loss was assessed 6435 kgs in total by the O.P. Garg Surveyor of OP3 and after applying the condition of 1.20% of Excess Clause the loss was assessed to the amount of Rs.44,415/- instead of actual amount of Rs.3,46,215/-. Thereafter the OP3 repudiated the claim of complainant by taking the plea that “ordinary leakage is not cover under the policy issued to the complainant as per exclusion clause no.4.2 of institute cargo class-A. Now it the present complaint, it is most important to see that the said loss is not occurred due to ordinary leakage infact the same was occurred due to damage in flexti bags placed in containers specifically mentioned above having no.HJCU8298189 and HJCU2017936. If the said loss is occurred due to an ordinary leakage then it must be occurred in all of the containers and not specifically in above said two containers. It clearly means that the said leakage is occurred due to damage in the above said containers on the part of negligence of OP1 and OP2. The other thing which is very important in this complaint is that the condition of excess clause 1.20% is not applicable in this case as on the cover note which was supplied to the complainant, there is mentioned only the words the claim is subject to excess of 1.2% applied on total sum assured, but does not explain what it mean and even not stated in what circumstances it will be applicable. As such, repudiation of claim by OP3 is not sustainable in the eyes of laws and it is liable to be set aside.

7.                Refuting the allegations leveled by the complainant, Ld. counsel for OP1 and OP2 filed written arguments, wherein, reiterating the facts of the written statement averred that the complainants themselves admitting this fact that the goods imported are for commercial purposes and are commercial in nature as the complainant no.1 is manufacturer of soap and detergent and complainant no.2 is merchant commission agent through whom the goods are being purchased and sold and the complainant no.3 is a manufacturer concern of Vanaspati Ghee and Refined Oil which clearly shows that the complainants are booked business offices and in order to short circuit civil litigants has approached this Forum. Further averred that as per the arrival inspection report of the surveyors M/s Ericson & Richards (Delhi), Ludhiana issued with respect to the container no.HJCU8298189 and HJCU2017936. “Report is OK Ext/sound i.e. to say that the container in apparent good order and externally in sound condition. Even after de-stuffing the container by consignee/complainants at his factory premises, when empty containers arrived at ware house at Ludhiana, which were in sound condition. With regard to Container no.HJCU2017936, which clearly shows that the shortage form the containers as alleged by the complainants, accrued after the containers were moved out by the consignee to his factory premises for de-stuffing the same which clearly shows that the complainants are negligent while de-stuffing the containers in their factory premises and now the complainants want to shift the onus for shortage in oil on the answering Ops. Further averred that when the material reached at Indian Port, Nhave Sheva in a proper sealed container, the authorized representative of OP2 noticed some type leakage from the container no.HJCU8298189 and they immediately informed the complainants about the same, but the container was in perfectly sound condition and was duly sealed as such the OP1 and OP2 had no negligence in brining the container is a sound condition to Nhave Sheva. After the surveyor of OP1 inspected the container no.HJCU8298189 and container seal was broken open for reworking of container in the presence of surveyor/customs, the oil was transferred in drums and thereafter the same was dispatched to Ludhiana as it is not possible to carry the leaking container from Nhava Sheva to ICD, Ludhiana. It is worth mentioning here that as per the arrival inspection report of the surveyors M/s Ericson & Richards (Delhi) issued with respect to the container no.HJCU8298189 and HJCU2017936. “Report is OK Ext/Sound i.e. to say that the container is apparent good order and externally in sound condition meaning thereby that there is no fault on the part of the answering OPs.  

8.                Ld. counsel for OP3 also filed written arguments on behalf of OP3, wherein, reiterating the facts as narrated in the written statement at the Point of Arguments submitted that policy is a contract in itself and the parties are bound by the terms and conditions of the policy and as per law of the land nothing can be added or subtracted out of it. It is one of the condition in the policy i.e. exclusion in institute cargo clause A at 4.2 that the company it not liable for any losses due to ‘ordinary leakage loss in weight of volume”. The container in question was not received in a damaged condition. Rather there was a leakage in the container for which the claim was lodged and the same has been repudiated vide letter dated 30.4.09 on the ground mentioned in the said letter of repudiation Ex.R21. M/s O.P. Garg & Associates had rightly applied the excess clause of 1.20% which is applicable to the claim of the complainant. Even amount of Rs.44,415/-, which is assessed by the surveyor aforesaid is not payable as the said loss is due to the leakage which is not covered under the policy. The said loss of palm oil is not on account of shortage due to damage to the container. The claim of the complainant has been repudiated as no claim by OP3, vide letter dated 30.4.09 on the grounds that the ordinary leakage was not covered under the policy obtained by the complainant as per exclusion clause 4.2 of the institute cargo. Complainant no.1 has got no insurable interest in the consignment as per the law of the land and as per provisions of Sales of Goods Act as ownership of the goods have passed on to the complainant no.3, who is an ultimate buyer as admitted by the complainant. Other complainants no.2 and 3 have no locus standi to file the complaint and they are not consumers as defined under the Consumers Protection Act since they have not obtained the insurance policy and had not hired the service of OP3 for consideration. There is as such no deficiency in service on the part of the OP3 National Insurance Co. Ltd. Ld. counsel for OP3 has also relied upon the judgements passed in cases titled as Ind Swift Ltd. Vs New India Assurance Co. Ltd.-2012 (IV) CPJ 148 by National Commission, Usha Sharma Vs New India Assurance Co. Ltd.-2012 (I) CPJ 488 (NC) passed by the National Commission, United India Insurance Co. Ltd. Vs Harchand Rai Chandan Lal-2014 (IV) CPJ 15 passed by Supreme Court, Deokar Exports Pvt. Ltd. Vs New India Assurance Co. Ltd.-2009 (I) CPJ 6 Supreme Court, Ankur Surana Vs United India Insurance Co. Ltd.-2013 (I) CPJ 440 (NC) passed by National Commission, Oriental Insurance Co. Ltd. Vs B.Ramareddy-2006 (II) CPJ 339 (NC) passed by National Commission, Chaitanya Prasad Vs National Insurance Co. Ltd.-2011 (IV) CPJ 83 passed by Uttarakhand State Commission, Khimjibhai & Sons Vs New India Assurance Co. Ltd.-2011 (IV) CPJ 458 (NC) passed by National Commission, Sikka Papers Ltd. Vs National Insurance Co. Ltd. -2009 (III) CPJ 90 (SC) passed by Hon’ble Supreme Court of India etc. etc.

9.                 We have gone through the pleadings of the complainant as well as defence taken by the OPs and gone through the written arguments submitted on behalf of the parties and the entire record placed on file.

10.              The main dispute in the present case is that OPs had applied excess Clause of 1.20 % to compensate loss by way of other being and this 1.20% of the total consignment was deducted at the time of assessment of the loss, which the complainant contended in the present complaint. It is very much apparent that complainant had paid the premium for 100% of the cost of (RBD Palm Olein) and not for 1.2 % extra dispatched by OP1. In this way the cost insured were to the extent of 100% (RBD Palm Olein). However if the premium paid for 101.2%, the liability of OP3 shall also arise. The complainant failed to adduce any evidence against OP3 regarding the premium paid by him or insurance cover of 1.2 % which was dispatched by OP1 and OP2 in excess. At the same time OP1 and OP2 also failed to adduce evidence, whether the 1.2% extra was in lieu of the compensation of leakage or to make good the loss by other modes. Further contention of Ops that loss took place after reaching ICD Ludhiana is not tenable. If it was so then why some claim has been satisfied.

11.              In view of the above discussion the present complaint is partly allowed and OP3 is directed to re-calculate the loss by taking into the factor, whether the premium was paid for 100% or for 101.2 % and shall become liable to settle and pay the claim as per the recalculation of the loss. But OP1 and OP2 shall be liable to make good the loss as per terms and conditions, which occurred on account of leakage as per assessment by O.P. Garg Associates, but sans 1.2% extra clause. Further Ops jointly and severally are directed to pay Rs.15,000/-(Fifteen thousand only) as compensation and litigation expenses compositely assessed to the complainant. Order be complied within 30 days of the receipt of the copy of the order, which be made available to the parties, free of costs. File be consigned to record room.

 

                             (S.P.Garg)                                         (R.L.Ahuja)

                     Member                                            President

Announced in Open Forum.

Dated:15.04.2015 

Hardeep Singh