Date of Filing:13.02.2008<br /> Date of Order:19.12.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 19TH DAY OF DECEMBER 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> COMPLAINT NO: 425 OF 2008<br /> <br /> M/s Gokuldas India,<br /> No.70, Mission Road, <br /> Bangalore 560 027, By Director. Complainant<br /> <br /> V/S<br /> <br /> 1. Hyundai Marine & Fire Insurance Co. Ltd.,<br /> No.178, Sejong-ro, Seoul, Korea.<br /> <br /> 2. Gladstone Agencies Ltd.,<br /> Head Office, 1-A, Janki Shah Road, <br /> Hastings, Kolkata 700 022.<br /> <br /> 3. Gladstone Agencies Ltd.,<br /> T.F 6 City Point, 13, Infantry Road, <br /> Bangalore. Opposite Parties<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed U/Sec. 12 of the Consumer Protection Act, 1986 claiming damages of Rs.11,58,885/- with interest. <br /> The brief facts of the case are that, the complainant placed an order with Sunstar Precision Co Ltd., S.Korea for supply of 12 automatic embroidery machine for their factory at Bangalore. The said company accepted the order and dispatched 12 automatic embroidery machines from China to Bangalore. The machines were transported from China to Chennai by Sea carrier and from Chennai to Bangalore by road carrier. The said machines had been insured with the opposite party No.1 for transit risk covering risk of damages, loss etc., under policy No.5200503EQ400175. While lifting the machines from the vehicle one out of 12 machines fell down and sustained damages. At the time of unloading the machines at the place of destination the supplier’s representatives were present to supervise unloading and arranging installation as per contract and as agreed with the supplier. On receipt of the intimation and claim from the complainant the opposite party No.2, the claim settlement office in India arranged for survey of damaged machinery. The surveyor visited the premises of Gokaldas India Unit III Wear craft Apperal-III and inspected the damaged machine. The surveyor on inspection of the damaged machine made a report as to the nature and extent of damages caused to the machine. The surveyor required to get the estimate for the repairs. Accordingly, the complainant got the estimate for the repairs of damaged portion of the machine and the cost thereof through the local agent of supplier. As per the supplier the cost of parts and other expenses etc., was US $ 25470. As submitted above the machine were unloaded not at the place named in the policy but at the place selected by the complainant insured which they were entitled as per conditions 8.1.2 of institution cargo clause A of the policy. Based on the report of the surveyor the second opponent by letter dated 14/2/2006 informed the complainant about their inability to entertain the claim on the ground that the consignment reached the destination named in the policy in sound condition and alleged damage took place after that whilst machinery was being shifted inside the premises. The complainant wrote a letter on 19/4/2006 to reconsider the claim terms of the policy as the transit of consignment terminated at the final destination where the machines were unloaded. As there was no reply from the opposite parties the complainant got issued a notice dated 12/7/2007 to the opposite parties calling upon them to settle the claim and pay US $ 25470 in respect of damage caused to the machine. The opposite party No.2 sent a reply expressing their inability to entertain the claim without expressing the facts and other information furnished in letter dated 19/4/2006. Hence, the complaint.<br /> 2. Notice issued to opposite parties through RPAD. Notice served. Opposite parties put in appearance through Advocate and filed defense version stating that the complainant has suppressed the material facts. Complainant is not a consumer as defined under Section 2(d) of the Consumer Protection Act. The present complaint is liable to be dismissed for lack of jurisdiction. There is no insurable interest so far as the complainant is concerned, and therefore the complaint is not maintainable. Complaint is also liable to be dismissed for non-joinder of necessary parties. Damage to the machine has occurred at the time when the machine was lifted/shifted to the factory premises. Damaged occurred due to the negligence and mishandling of the Crane Lifter/Operators. Insurances expires on the consignment reaching the premises of the consignee. The complainant is not entitled to any of the reliefs. Therefore, the opposite party has prayed to dismiss the complaint.<br /> 3. Respective parties have filed Affidavit evidence and documents. Arguments are heard.<br /> 4. The points for consideration are:- <br /> 1. Whether the complaint is maintainable?<br /> <br /> 2. Whether the complainant has got insurable interest?<br /> 3. Whether the complainant has proved any deficiency in service on the part of the opposite parties?<br /> 4. Whether the complainant is entitled for insurance claim?<br /> <br /> REASONS<br /> 5. The learned Advocate for the opposite party argued that the complainant is not a consumer as defined under Section 2(d) of the Consumer Protection Act, 1986 on the ground that the complainant is a trader engaged in the business of manufacture and export of garments. It is argued that the complainant is a commercial firm operating for gain/profit, hence he cannot be termed as consumer under the Consumer Protection Act. The learned counsel for the opposite party submitted that on this ground itself the complaint is liable to be dismissed. I am of the opinion that this argument cannot be accepted in the present case. There is a direct decision on this point by the Hon’ble National Commission in Ritu Gram Udyog Pvt. Ltd., Vs. New India Assurance Company Limited (NCDRC) page 1208 CTJ December-2008 page 189 wherein it has been held as under:- <br /> “Insurance – Consumer – Consumer Protection Act, 1986 – Section 2(1)(d) – Deficiency in service – Section 2(1)(d) – An insurance policy issued to cover the insured’s industrial shed against such perils as storm, cyclone, typhoon etc. – Shed collapsed due to hail-storm and rain – Claim repudiated by the insurer alleging that loss due to rain nor covered by the policy and moreover as per the expert opinion the building could not have collapsed due to the cause stated by the insured – Complaint dismissed by the District Forum on the sole ground that after the Amendment Act of 2002 (w.e.f. 15/3/2003) the insured did not fall under the definition of consumer – State Commission dismissed the insured’s appeal – Revision Petition – Admittedly the peril took place during the currency of the policy – Collapse of the building also not disputed – Insurer insisted that the policy in question served a commercial purpose and as such the insured could not be a consumer under the Act – Contention held not acceptable – Policy taken only for indemnification of an actual loss and not for the purpose of generating any profit – Insured, therefore held to be a consumer and its complaint covered under the provisions of the Act – Revision petition partly allowed – Insurer directed to pay the assessed sum of Rs.40,000 with 10% interest and cost of Rs.10,000 – Ritu Gram Udyog Samit v. New India Assurance Company Ltd.” <br /> <br /> 6. Therefore the first point of argument advanced by the learned Advocate for the opposite party is answered to the effect that the complaint cannot be dismissed on the ground that complainant is not a consumer under the Act. The second point urged by the learned Advocate for the opposite party is that the complainant has no insurable interest. Therefore, the complaint is liable to be dismissed on this ground. It is argued that insurance policy has been obtained by M/s Sunstar Precision Company Limited, a company incorporated at Korea which has been shown as the assured in the insurance policy. The complainant has produced copy of policy. By looking into the policy it is clear that Sunstar Precision Company Limited is the assured. Nowhere the name of the present complainant is found in the policy relied upon by the complainant. It is not the case of the complainant that the policy in question was transferred to his name or assigned to him by the Sunstar Precision Company Limited who has taken the Marine Cargo Insurance Policy from the opposite party. Therefore, the present complainant has no insurable interest to put up the claim against the opposite party. It is very unfortunate that how the complainant is putting up his claim and claiming the damages from the opposite party company. There is absolutely no basis either legal or flactual to put up the claim against the opposite party company by the complainant because, the policy was taken by the Suntar Precession Company Limited, Korea. If at all any claim is to be put up against the opposite party company for loss or damage to the property, it is the Sunstar Precision Company Limited and not the complainant. The complainant is only a consignee. The goods have been transported from China to Bangalore to be delivered to the complainant. So, under these circumstances when the complainant has not taken Marine Cargo Insurance Policy and he is not at all assured under the policy, how can he put up the claim against the opposite party company for damage caused to the consignment. The learned Advocate for the complainant relied upon Institute Cargo Clauses. Clause 11.1 states that in order to recover insurance the assured must have an insurable interest in the subject matter insured at the time of the loss. Admittedly, the present complainant had no insurable interest in the subject matter at the time of loss because, the policy was standing or taken by the Sunstar Precision Company Limited and on the date of loss or damage to the goods the policy was not transferred or assigned in the name of the present complainant. Therefore, the present complainant has no insurable interest on the date of loss and therefore, he cannot put up claim against the present opposite party. On this ground itself, the complaint is liable to be dismissed. The third ground urged by the learned counsel for the opposite party was that the consignment reached to the godown of the complainant safely. Once the consignment reached the premises of the complainant the responsibility of the opposite party company ends. Admittedly, the consignment reached from China to Chennai and from Chennai to Bangalore the consignment reached by road carrier and the consignment was unloaded at the factory premises. The complainant engaged services of Arulkumar Engineering Works, Gandhi Cranes, Bangalore to lift the machines to the places indicated by the complainant. Out of 12 machines 11 machines were lifted safely and placed at the places shown by the complainant and one of the machine while lifting slipped and fell down and thereby damage caused to the said machine. Therefore, the learned Advocate for the opposite party argued that it is the Arulkumar Engineering Works is responsible for loss and damage sustained to the machine. The contract of insurance was not extended for lifting and placing the machine at the places shown by the complainant. The policy ends once the consignment reaches the factory premises or godown of the complainant. Therefore, on this ground also the learned Advocate submits that the complaint is not maintainable against the present opposite party. In support of this submission the learned Counsel for the opposite party relied upon the letter of complainant himself written to Crane Operator on 21/11/2005. The letter of complainant addressed to Arulkumar Engineering Works, Gandhi Cranes, Bangalore dated 21/11/2005 is as follows:-<br /> Arulkumar Engineering Works,<br /> Gandhi Cranes, No.1384, II Cross,<br /> Marappanapalya, Yeshwanthpur,<br /> Bangalore 560 022.<br /> <br /> Dear Sir,<br /> Sub: Damage to embroidery Machine.<br /> Regarding the damages to the above machine, we reiterate that you are carrying on the business among others of loading, unloading, unloading machines by use of crane on hire.<br /> We imported 12 automatic embroidery machines from China. The said machines had been suffered into a container. The container was transported from Chennai to Bangalore by road carrier. The road carrier unloaded the container at the factory premises. We engaged your services to lift the machines to the places indicated by us. You undertook to lift the machines to the places shown by use of crane. Of the 12 machines 11 were lifted and placed at the places shown and one of the machine while lifting slipped and fell down and sustained damages. <br /> It is represented that your employees while lifting one machine had properly secured the machine in the crane which slipped from the crane fell down and sustained damage. The damage to the machine while lifting was due to not taking proper care and due to negligence on the part of your employees which resulted in damage and loss.<br /> As the damage to machine and resultant loss caused was due to negligence on the part of your servants/employees in not properly securing the machine in the crane you are liable to make good the loss sustained by us.<br /> In the above circumstances you are hereby called upon to make good the loss suffered by us in the sum as per the assessment of the surveyor which will be duly intimated by you.<br /> <br /> Thanking you.<br /> <br /> Yours faithfully, <br /> for GOKALDAS INDIA<br /> Sd/-<br /> Rajendra J Hinduja<br /> Director. <br /> <br /> <br /> 7. By the above letter it is very clear that, it is the Crane Operator Company is responsible for the loss or damage to the machine. The complainant shall have to put up his claim against Arulkumar Engineering Works for the negligence and not taking proper care while lifting the machine to the place shown by the complainant. The complainant himself has fastened negligence or carelessness on the part of Arulkumar Engineering Works. Therefore, where is the question of the complainant putting up insurance claim against the present opposite party company. Taking any view of the matter the complaint is not maintainable before this Forum against the present opposite party. The complainant has to get relief against the concerned party who is responsible for the loss or damage to the machine in question. The complainant has not at all proved any deficiency in service on the part of the opposite party. Therefore, there is no question of granting any compensation to the complainant as against the present opposite party is concerned. Therefore, the complaint deserves to be dismissed. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 8. The Complaint is dismissed. No order as to costs. <br /> 9. Send the copy of this Order to both the parties free of costs immediately as a statutory requirement. <br /> 10. Pronounced in the Open Forum on this 19TH DAY OF DECEMMBER 2008. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br /> <br /> Rhr.<br />