SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s.12 of the C.P. Act, 1986.

            The case of the complainant, in short; is that they imported a consignment of 187 cartons containing Chest Freezer, spare parts and other allied, products from M/s Magic Appliance Corporation, Hefei, China against Invoice No. MC160310Q dated 28.07.2016 for a total invoice value of USD 80175. The goods were sold under bill No. YMLUS23114132 dated 02.08.2016 through M/s. Yong Carrier Int’l Freight Agency Company Limited through Vessel s.s. “Munich Trader”  Voy.11 and arrived at Kolkata Port on 22.08.2016. Subsequently, the said goods were transported from Kolkata Port through OP-3 under Lorry Consignment Note No. 790/16/17 dated 15.09.2016 and those goods were arrived at Birgunj, Nepal. Finally the goods were arrived at its destination on 23.09.2016. The OP-1 being the Insurers of Cargo issued “all risks” insurance policy being No. 1021535012016101120 for sum insured USD 135,258.75 covering insured property as per invoice and bill of lading up to final destination at Nepal. The goods were delivered in damaged / broken condition. Complainant assessed the loss through surveyor.

            Further case of the complainant is that on receipt of Surveyor’s report they lodged claim to the OP-1 as per terms and conditions of the policy. Despite of several approaches the OP-1 did not settle the claim and lastly offered for settlement of claim against payment of USD 2000.00 without considering the loss of goods. Finding no other alternative, complainant issued legal notice dated 31.07.2017 to the OP-1 but such notice was unattended. Hence,  the consumer complaint.

            The OP-2 has contested the case by filing Written Version wherein they have denied all the material allegations made out in the complaint petition. The specific case of the answering OP is that there was no contract between the complainant and the answering OP for sale of goods. The role of the answering OP was limited and being the agent of Yang Ming Lines they issued deliver order of the goods. The claim of the complainant is against the OP-1 / Insurer. Thus, the answering OP has prayed for dismissal of the complaint.

            In this context, it is pertinent to mention here that the OP-2 did not file examination in chief in spite of giving opportunity.  As such, the case has proceeded ex parte against the OP-2.

            Despite of service of notices the OPs 1, 3 and 4 did not turn up to contest the case. Thus, the case has proceeded ex parte against the OPs 1, 3 and 4.

POINTS FOR DETERMINATION

1)         Whether the complainant had Cargo Insurance Policy with OP-1 on the relevant point of time ?

2)         Whether the consignment of cartons containing Chest Freezer. Spare parts and other products were damaged / broken during delivery?

3)         Whether non settlement of claim by the OP-1 caused deficiency in service ?

4)         Whether the complainant is entitled to get relief as prayed for ?

DECISION WITH REASONS

Points No. 1 to 4 :

            All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

            Upon taking into account of the consumer complaint including Written Version of OP-2 and also considering on overall assessment and evaluation of the evidence as well as documents furnished by the complainant, it is found that the complainant Coral International (Pvt.) Ltd. imported a consignment of 187 cartons containing Chest Freezer, spare parts from Magic Appliance Corporation, Hefei, China against Invoice No. MC160310Q dated 28.07.2016 for total invoice value of USD 80175.00 and those goods were sold against Bill of Lading No. YMLUS23114132 dated 02.08.2016. Bill of Lading further goes to show that Shipping Company, M/s. Young Carrier Int’l Freight Agency Co. Ltd. transmitted those goods through Vessel s.s “Munich Trader “ Voy. 11. Those goods were transported from Kolkata Port to Birgunj, Nepal against Lorry Consignment Note No. 790/16/17 dated 15.09.2016 through OP-3 and finally arrived at final destination i.e. the warehouse of the complainant on 23.09.2016. On perusal of the photocopy of Cargo Transportation Insurance Policy it appears that OP-1 Huatai Property & Casualty Insurance Company Ltd. issued insurance policy dated 02.08.2016 in the name of the complainant. Description of goods, quantity of cartons,   place of destination and insured amount has been mentioned in the said policy. Condition of policy is covering all risks as per Ocean Marine Cargo Clauses of Huatia Insurance Company of China Limited up to final destination in Nepal. Total amount of insured is USD 135,258.75. There is a condition in the Cargo Transportation Insurance Policy that survey through any Government approved independent Surveyor is also acceptable.

            The grievance of the complainant is that during delivery at the goods at Nepal, goods were found damaged / broken condition. Immediately they assessed the loss through the Surveyor and lodged claim of USD 27200.15 equivalent to Rs.18,42,810.16  as per terms and conditions of the policy to the OP-1. OP-1 acknowledged the claim but did not settle in spite of repeated approach. Even the legal notice dated 31.07.2017 was also unattended.

            Record speaks that the complainant lodged claim vide letter dated 27.09.2016. In support of the claim complainant has also annexed  Invoice & Packing List, Way bill No. 790/16-17 dated 15.09.2016, Survey report with photograph  of the damaged goods. Report of the Surveyor goes to show that damage was caused due to contact with fresh water during loading and unloading period in transit and damage was noticed during delivery of goods. Cargo Transportation Insurance Policy covering all risks as per Ocean Marine Cargo Clauses of Huaitai Insurance Company of China Limited against  187 cartons  containing Chest Freezer and spare parts from Shanghai, China to final destination  in Nepal. As per Surveyor report damage was caused due to contact with fresh water during loading and unloading period in transit and damage was noticed during delivery of goods. As per Insurance Policy total amount of insured is USD 135,258.75.

            In view of the above observation we hold that complainant had a valid Cargo Insurance Policy with the OP-1 on the relevant point of time, consignment of cartons containing Chest Freezer and spare parts were damaged / broken during delivery at Birgunj, Nepal and there is also deficiency of service on the part of the OP-1 / Insurer for non settlement of claim.

            The OPs 2 to 4 have no role regarding damage of goods and there was also no contract between the complainant and the OPs 2 to 4 for sale of Chest Freezer and spare parts. The role of the OPs 2 to 4 was limited and being the agent of Yang Ming Lines they issued delivery order and delivery of the goods at its destination. Therefore, there is no deficiency in service on the part of the OPs 2 to 4.

            In the result, the case succeeds in part.

            Hence,

ORDERED

            That the complaint case be and the same is allowed ex parte in part against the OP-1 with litigation cost of Rs.20,000/-  (Rupees Twenty thousand) only  and also dismissed ex parte against the OPs 2 to 4 without any cost.

            OP-1 is directed to pay Rs.18,42,810.16/-  to the complainant along with litigation cost within 30 days from the date of this order in terms of the Cargo Transportation Insurance Policy in default to pay simple interest  at the rate of 4  percent P.A. from the date of filing the consumer complaint till realization.

            Liberty be given to the complainant to put the order in execution if the OP-1 transgresses to comply the order.