PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant is a Public Limited Company incorporated under the provision of Companies Act, 1956. The Complainant is mainly engaged in manufacturing and marking of Pharmaceuticals and Medicines products in India and abroad for nearly 6 decades. The Opposite Party is a Private Sector Insurance Company. On payment of premium of Rs.9,31,157/-, the Complainant obtained Marine Export – Import Insurance Policy No.2002/0008537/01/001 covering period from 01/10/2006 to 30/09/2007 covering Estimated Annual Turnover of Sales for Rs.839/- Crores. The policy was covering all types of cases as mentioned in the policy documents including the loss sustained by the policy holder on account of short delivery or theft in transit.
2) It is the case of the Complainant that total 119 cartons containing various kind of medicines were dispatched through Ethiopian Airline vide their Airway bill no.071-13661351 dtd.28/08/07. These cartons were sent through Barclays Bank (T) Ltd. for final buyer namely M/s. Biocare Health Products Ltd. of Tanzania. Ultimately the said goods were received by buyers at Tanzania through Swill Port Authority and that time it was found that the Swiss Port Authority had collected only 114 cartoons and handed over to the concerned party. There was shortage of 5 cartons.
3) After knowing the fact of shortage of 5 cartons the Complainant lodged a complaint with Ethiopian Airlines through its Clearing Agent namely M/s. Frieght Wings Travels Pvt. Ltd. and the Swiss Port Authority has also addressed a letter dtd.12/09/07 to the Ethiopian Airlines and explained the case. Simultaneously the Complainant also informed to the Opposite Party by its letter dtd.10/01/07 and requested for appointment of a surveyor. The Complainant then addressed another letter dtd.10/10/07 and again requested for appointment of surveyor and sent all the document i.e. Certificate of Insurance, Invoice copies, packing list and details of loss of US $ 910.200 aggregating to Rs.40,400/-. The Complainant was regularly in touch with the Opposite Party by way of correspondence, personal visits, but there is no response. Lastly in the month of December, 07 Opposite Party agreed to settle the claim but thereafter, they have failed and neglected to give any response. Inspite of repeated letters, the Opposite Party did not comply with the demand of the Complainant which is against principle of natural justice and IRDA Regulations. The Complainant served legal notice dtd.20/08/08 and called upon the Opposite Party to settle the claim of Rs.40,400/- within 10 days but Opposite Party failed and neglected to settle the claim. There is deficiency in service on the part of Opposite Party and therefore, Complainant was constrained to file this complaint. The Complainant has prayed to direct Opposite Party to pay to the Complainant an amount of Rs.40,400/- with interest @ 24 % p.a. from 10/12/2007 till realization of entire amount. The Complainant has also claimed cost of this complaint from Opposite Party. Alongwith complaint, the Complainant has produced copies of the documents at Exh.‘A’ to ‘H’ and affidavit of K. Subharaman, Head- Legal & Company Secretary, in support of the complaint.
4) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that complaint is malafied and the Complainant has suppressed relevant terms and conditions of the policy and therefore, complaint is liable to be dismissed with cost. It is further submitted that this complaint involves complicated questions of facts and law and therefore, this Forum cannot entertain and try this complaint.
5) It is submitted by the Opposite Party that the Consignee has admittedly accepted the consignment without any protest. The Complainant has failed to give ‘notice’ or lodge complaint within 3 days (statutory period) upon the Air Carrier besides failure to lodge any claim for ‘breach’ of Law/Policy and/or Port Authority, therefore, Complainant is not entitled to claim any benefit under the policy. According to the Opposite Party, there is no deficiency in service on the part of Opposite Party. The Opposite Party has admitted that they have issued Marine Export – Import Policy stated in the complaint in favour of Complainant effective from 01/10/2006 to 30/09/2009 for estimated annual turnover of export, import, sales and purchases of Rs.839/-. Under the said policy there is no question of covering only ‘sales’ as the ‘risk’ was mainly for ‘imports’ i.e. ‘purchase’ from abroad, ‘export’ i.e. ‘sales’ abroad and also inland transit/ movement of goods within the country. It is submitted that the Complainant was also required under the Law and/or the Policy to declare specific dispatches and/or consignments which the Complainant has miserably failed and neglected to comply with and therefore, there is no question of any ‘indemnity’ under the Marine Open Policy.
6) Opposite Party has denied allegations of short delivery of 5 cartons alleged in the complaint. The Complainant has failed and neglected to obtain ‘Shortage Certificate’ from the Air Carriers or Port Authority. Further it is prima facie clear that Complainant’s overseas buyers have accepted the ‘delivery’ without any protest and therefore, there is no question of maintaining any claim for ‘short delivery’. The Complainant has miserably failed and neglected in lodging the claim upon the ‘carrier’ and thus, breached the ‘obligation’ under the policy to minimize the loss and to act diligently in preserving ‘right of recovery’ of the underwriters apparently has been extinguished on account of acts and/or omissions on the part of the Complainant. For the first time on 10/10/07 i.e. after 2 months of landing of the consignment at Tanzania Airport, the Complainant intimated the loss and requested for appointment of surveyor which in gross violation of the policy. The Opposite Party has denied allegations of submission of requisite documents for the purpose of processing and/or settlement of the claim as alleged in the complaint. The Complainant has not furnished Shortage Certificate, Notice to the Carrier, Bill of lading etc. Opposite Party has denied that it had agreed to settle the claim in the meeting held in December, 07. Opposite Party has denied allegations of deficiency in service and submitted that after scrutiny of documents and due application of mind it has rejected claim of the Complainant and therefore, complaint deserves to be dismissed with cost.
7) Alongwith list of documents the complainant has produced number of copies of documents. The Complainant has filed affidavit of evidence of K. Subharaman, Head - Legal & Company Secretary. Opposite Party has filed written argument. The Complainant repeatedly remained absent so we heard oral submissions of the Ld.Advocate Mr.S.R.Singh from Opposite Party and complaint was closed for order.
8) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : No
Point No.2 : Whether the Complainant is entitled to recover Rs.40,400/- with interest and cost of proceeding from Opposite
Party ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted fact that the Complainant is a Public Limited Company and is mainly engaged in manufacturing and marking of Pharmaceuticals and Medicines products throughout in India and abroad for nearly 6 decades. The Complainant has obtained Marine Export – Import Insurance Policy No.2002/0008537/01/001 covering period from 01/10/2006 to 30/09/2007 covering Estimated Annual Turnover of Sales for Rs.839/- Crores and for that policies the Complainant has paid premium of Rs.9,31,157/- to the Opposite Party. The Complainant has produced aforesaid insurance policy and terms and conditions of the policy. The Opposite Party has admitted fact that the policy mentioned in the complaint is issued to the Complainant by the Opposite Party.
It is the case of the Complainant that total 199 cartons containing various kind of medicines were dispatched through Ethiopian Airlines vide their Airway bill no.071-13661351 dtd.28/08/07. The Complainant had sent these cartons through Barclay Bank (P) Ltd., for final buyer namely M/s. Biocare Health Products Ltd. of Tanzania. The Complainant has produced copies of aforesaid Airways bill at Exh.‘C’. It appears from contains of Airway bill that 119 cartons were sent to M/s. Biocare Health Products Ltd. of Tanzania. According to the Complainant, when the buyer at Tanzania received goods through Swiss Airport Authority only 114 cartons were delivered to the buyer and there was shortage of 5 cartons. The Complainant and Swiss Airport Authority also lodged complaint to the Ethiopian Airlines vide letter dtd.10/10/07. The Complainant informed shortage of delivery to the Opposite Party and requested for appointment of surveyor. The Complainant had sent certificate of Insurance, Invoices copies packing list and details of loss of US $ 910.200 aggregating to Rs.40,400/- to the Opposite Party and requested for appointment of a surveyor but there was no response from the Opposite Party. In the month of December, 07 Opposite Party agreed to settle the claim. However, thereafter, Opposite Party failed and neglected to settle the claim and therefore, the Complainant have filed this case.
According to the Opposite Party, in the instant case the Complainant has alleged the loss of 5 cartons worth Rs.40,400/-. The Complainant was expected to informed the loss immediately in view of the ICC (A clause 18 read with footnote of Marine Open Policy). In this case the Complainant informed Opposite Party about the alleged loss only on 10/10/07 i.e. after about month of landing of consignment at Tanzania. Ld.Advocate Mr.S.R. Singh has further submitted that in the instance case the ultimate buyer received the goods without any protest. It is vehemently submitted that Marine Export-Import in insurance (open policy) it was obligatory on the part of Complainant to report every dispatch of goods immediately to the Complainant. In this case no such declaration was made by the Opposite Party. By referring to the provision of Carriage by Air Act, 1972, it is submitted that in case of damage to the consignment, complaint must be made to the Carriers within 3 days from the date of receipt of loss or within 15 days from the date of entrustment of goods else no action against carrier would survive. It is submitted that in this case, the Complainant has not taken any legal action against the Carriers. Ld.Advocate Mr.S.R. Singh has referred to the provisions of Sec.64 UM(2) of the Insurance Act and submitted that in case of claim of more than Rs.20,000/- which is compulsory to get the survey indicate. In the instance case, as per the Complainant it suffered loss of Rupees more than 14,000/- but no survey was conducted. The Complainant has committed breach of various terms and conditions of the policy and therefore, the Complainant is not entitled to claim any compensation from the Opposite Party. In support of his contention, Ld.Advocate has relied upon the decision of the Hon’ble Supreme Court in Civil Appeal No.1375/2003 M/s. Surajmal Ram Niwas Oil ..... Appellant V/s. United India Insurance Co. ….Respondent.
In this case according to the Complainant 119 cartons containing various medicines were dispatched through Ethiopian Airlines vide their Airway bill dtd.28/07/08 to M/s. Biocare Health Products Ltd. of Tanzania. When the goods were received by buyers at Tanzania from Swiss Airport Authority, at that time there was shortage of 5 cartons and only 114 cartons were received by the buyers. The Complainant has not produced any documentary evidence about the complaint received from the buyers. It appears that buyers accepted the goods without any protest. The Complainant did not intimate the claim expeditiously to the Opposite Party as required under the Marine Open Policy. No declaration was made before the goods were dispatched. The Complainant did not immediately inform the loss to the Opposite Party and thereby Complainant has committed breach of terms of Marine Export (Open) Insurance Policy. The Complainant has not initiated any legal proceeding against the Carriers for the alleged loss of goods. In such circumstances, it appears that Opposite Party avoided settling of the claim because of breach of terms and conditions of policy by the Complainant. There are justifiable grounds not considering claim of the Complainant. Considering the aforesaid fact, we hold that the Complainant has failed to prove deficiency in service on the part of Opposite Party. Therefore, the Complainant is not entitled to recover Rs.40,400/- with interest as prayed for. The Complainant is also not entitled to any other relief. Therefore, we answer point no.1 in the negative.
Point No.2 :- As discussed above the Complainant has failed to prove deficiency in service on the part of Opposite Party and therefore, the Complainant is not entitle to any compensation from the Opposite Party. Hence, we answer point no.2 in the negative.
For the reasons discussed above, the complaint deserves to be dismissed. Therefore, we pass following order -
O R D E R
i.Complaint No.271/2008 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
