Sri Utpal Kumar Bhattacharya, Member
In this Appeal u/s 15 of the C P Act, 1986, the Appellant/ Complainant has challenged the judgment and order No. 34 dated 28/07/2014 passed by the Ld. District forum, unit-I, Kolkata in Complaint Case No. 220/2010 dismissing the complaint without cost against the OPs.
Relevant facts of the case, as it emerged from the available records, were that the Appellant/Complainant, an importer of spare parts of refrigerator and other allied products, used to run his business for earning his livelihood. It, in course of its said business, placed an order to M/S Znotti SPA via Martin L Kind No. 30, 46020, Pegognaga, Montora, Italy, a foreign seller for supplying four cases, one pallet and one carton of spare parts of refrigerator on payment of Euro 10,018 and Euro 75.24 against commercial invoice Nos 00002025 and 00002974 respectively both of the year 2004.
The said booked goods which were shipped in good and sound condition on Board the vessel, reached the Kolkata Port on 18/10/2014 and thereafter stored at the 4 N S Dock of the said port on the same day with due observance of required formalities.
In the midnight of 16/11/2004, the said 4 NS Dock caught a devastating fire and the Respondent/OP No.3 who owned the said 4 NSD and who, as alleged, in spite of demand made on that behalf, failed to deliver the stored goods to the Appellant/Complainant through its clearing agents. They, allegedly, wrongfully detained the said goods and ultimately reported that the goods were gutted fully by the said devastating fire.
The goods, as alleged, were insured with the Respondent/OP No.1 under Marine Insurance Policy No. NR00008508MA dated 06/09/2004 under “All Risks”, that is, Insurance Cargo clause-A from PEGOGNAGA MANTOVA to Kolkata port. The Respondent/OP No. 2, a limited liability concern incorporated in India under companies Act, 1956 carried business as survey and settling agent on behalf of Respondent/OP No. 1. Respondent/OP No. 3, being the chairman, Board of Trustees for the port of Kolkata, refused to accept even holding the joint survey to ascertain the loss sustained by the Respondent/Complainant, let alone accepting any liability for the damage of the consignment in spite of the fact it was holding custody of the goods at the relevant point of time.
The survey work, however, was done by the Respondent/OP No. 2 on payment of charges by the Appellant/Complainant with no report submitted so far and the Respondent/OP No.1 disburdening itself from any kind of liability explaining that its periphery of service was limited only to the extent of ensuring supply of the goods which, as stated, it had properly done. The Appellant/complainant, in the given situation, lost even a faint hope of getting its compensation towards damage of the goods which were properly insured.
The aggrieved Appellant/complainant, for that reason, resorted to the filing of the complaint case before the Ld. District Forum in the facts and circumstances narrated above. The impugned judgment and order which had disposed of the said complaint case was challenged in the instant Appeal.
Heard Ld. Advocates appearing on behalf of both sides.
Ld. Advocate appearing on behalf of the Appellant complainant repeated the facts in the same lines as above. Drawing attention to running page No. 58, being the Declaration of Insurance issued in its Letter Head from the Head Office at R. Sanzio, 6/8, 20090, Segrate Milano, Italy by the Respondent/OP No.1, the Ld. Advocate pointed out that the same was indicating about of the subject consignment having 100% insurance against all risks under the policy sponsored by the XL Insurance. There was an instruction for contacting the Respondent/OP No. 2 in case of any loss or damage of the insured goods at the bottom of the said declaration which indicated that the Respondent/OP No.2 was an agent of the Respondent/OP No.1.
The Ld. Advocate referred further to the running page No. 53 of the case record being a letter of the Appellant/OP No.3 addressed to the Clearing Agents Pvt. Ltd. towards non-delivery of the subject consignment and submitted that the letter itself was indicative that the entire consignment remained undelivered.
The Ld. Advocate, in this context, referred to the decision of the Hon’ble National Commission passed in Revision Petition No. 3426 of 2014 [M/S Gladstone Agencies Ltd.—Vs—Dugar Brothers Concern and others] wherein the Hon’ble National commission was pleased to upheld the order allowing refund of the cost of damaged articles together with cost and compensation dismissing the above mentioned Revision Petition.
The Ld. Advocate went on to submit further that one of the reasons for the dismissal of the complaint case was that the complaint case was barred by limitation when the said observation did not hold good on the instant occasion because of its having continuous cause of action
With the above submission, the Ld. Advocate prayed for the appeal to be allowed setting aside the impugned judgment and order.
There was none to represent the Respondent/OP No.1
The Ld. Advocate appearing on behalf of the Respondent/OP No.2, on the other hand, submitted that the Respondent/OP No. 2 was not any agent of the Respondent/OP No. 1 nor was the Respondent/OP No.1 carrying on business through respondent/OP No.2.The Respondent/OP No. 2, as continued, was only the survey agent whose duty was only to conduct survey and assess the damage and loss. The prayer part of the complaint also was, as submitted, revealing that the Appellant/complainant had, in fact, no claim against the Respondent/OP No.2.
As submitted, the complaint case was filed on expiry of two years since the date on which the Port Trust Authorities, the Respondent/OP No.3 rejected the claim. The complaint petition, in the above perspective, was barred by limitation. As continued, there was no contract of service between the Respondent/OP No.2 and the complainant and there was no assessment of damage as well.
The Ld. Advocate continued to submit that there was a vital lapse on the part of the Respondent/complainant who did not implead the XL Insurance company, the sponsor of the subject policy under which the goods in question were insured, as a necessary party. The complaint, therefore, suffered from the demerits of non-joinder of party.
With the above submission, the Ld. Advocate submitted that the Ld. District Forum, in view of the above circumstances, had rightly passed the impugned order which was needed to be affirmed.
The Ld. Advocate appearing on behalf of the Respondent/OP No.3 submitted that the Appellant/complainant at Para No.2 of the complaint Petition mentioned that its activities were related to his business. The Appellant/Complainant, in view of his own averment as above, should not be treated as a consumer within the meaning as envisaged under section 4(1)(d) of the C P Act, 1986.
The goods in question, as submitted, were destroyed by fire at 4 NSD owned by the Respondent/OP No.3 in spite of all possible measures being adopted for saving the said goods. There was no wrongful detaining of the said goods as alleged in the complaint
The most peculiar thing was that the Appellant/Complainant did not make the insurance company a party to the complaint which led the Ld. District Forum to take the right decision of dismissal of the complaint case.
As submitted, the complaint which was filed before the Ld. District Forum on 02/07/2010 was not accompanied by any petition for condonation of delay although the same was filed almost six years after the cause of action arose on 16/11/2004. The complaint, as continued, was devoid of any merit in view of the same being barred by limitation.
The Ld. Advocate went on to submit that as per section 43 of the Major Port Trust Act, 1963 read with the Port of Calcutta (Responsibility for Goods) Regulations,1975, published in the Gazette of India vide GSR 32 E on 01/02/1975, liability and responsibility of port had been limited up to the period of 7 clear working days from the date of taking charge of the goods and receipts thereof were issued u/s 43 of the Major Port Trust Act.
On the instant occasion, since the incident of fire took place on 29th. day from taking charge of the goods, the Port Trust did not have any liability to compensate for the loss.
With the above submission, the Ld. Advocate prayed for dismissal of the of the Appeal so far as it was related against the Respondent/OP No.3.
Perused the papers on record. The complaint, as it appeared, was filed much after two years of the Port Trust Authority rejecting the claim of the complainant. Appellant/complainant claimed that there was continuous cause of action but, the complaint appeared to be accompanied by no petition for condonation of delay. Accordingly, the delay was not formally heard or condoned which had been reflected in the order of the Ld. District Forum and undoubtedly, it was a lapse on law point.
The complaint, since related to the insurance claimed and the complainant definitely had not insured its goods with any intention of deriving any profit, the issue although related to commercial purpose, was not beyond the purview of the Consumer Protection Act, 1986. We may, in this context, rely on the decision of the Hon’ble National Commission in First Appeal Nos 159, 160 and 161 of 2004 reported in I (2005) CPJ 27 (NC) [Harsolia Motors—Vs—National Insurance Co. Ltd.].
It appeared that the “Declaration of Insurance” issued under the Letter Head of the Respondent/OP No. 1 that the goods in question were insured with X L Insurance under all risks by an organization Zannotti/Spa with which the Respondent/OP No.1 entered into a contract of carriage of the subject consignment by the sea. Delivery terms in the said declaration were seen to be recorded as ‘CIF Calcutta port’.
The rules to be followed in case of damages on forwardings by the sea, as it appeared on the reverse side of the said “Declaration of Insurance” were to “immediately apply for the Average Agent Indicated in the present certificate or in his absence, apply Italian Consular authority or to local authority who will endorse all the documents concerning the estimate of the damages.
The Receivers shall also arrange without delay a joint survey with the Carrier before the goods are taken over.”
It was clear from the above rules that the insurance of the consignment was against any damage caused to the consignment in course of carriage by the sea. It was also mentioned that the receiver of the goods would help cause a joint survey with the carrier to take place in case of any damage detected before the goods were taken over. Delivery terms being ‘CIF Calcutta Port’, it became more clear that the Insurance Company was liable for any loss or damage to the goods up to Calcutta Port and not beyond that. There being no complaint against loss or damage of the goods by the Port Authority or from the Appellant/Complainant, it will be no wrong to presume that the goods reached safely to the Port without any loss or damage.
The subject Insurance, therefore, appeared to be not in force immediately after the goods reached safely to the Port where the goods were stored. The question of non-joinder of XL Insurance as necessary party in absence of existence of the said insurance in the given circumstances seems to be of no relevance. The Respondent/OP No. 1, therefore, did not have any liability towards subject insurance policy after the goods reached safely to its destination - - Calcutta Port.
The goods, as it appeared on verification of records, reached the Respondent/OP No.3 on 18/10/2004 and the incident of fire took place on 16/11/2004, that is, 29 days after the receipt of the consignment. It further revealed that as per section 43 of the Major Port Trust Act, 1963 read with GSR 32 E of the port of Calcutta (Responsibility for Goods) Regulations, 1975 published in the Gazette of India on 01/02/1975, liability/responsibility of the post was limited to the period of seven clear working days from the date of taking over charge .The denial of taking liability because of not taking delivery of the articles within the period specified was prima-facie having reasons. The denial of delivery of the goods to the Appellant/Complainant by the Respondent/OP No. 3, as alleged, was not substantiated with any documentary evidence. Moreover, the claim in the instant complaint was preferred against the Respondent/OP No. 1 and none else. The Consumer Fora cannot and should not pass any order going beyond the pleadings in the complaint.
Respondent/OP No.2 was a survey agent whose activity was limited to the extent of causing survey only to ascertain the extent of damage that the goods had sustained and also to ascertain the loss. They, therefore, had unquestionable immunity from paying any compensation from the damaged goods.
The record revealed that the documents to be sent to the insurer as per provision of the terms and conditions laid down in the policy, running page 59, were not sent. The vital document like survey report was not there. We did not find any properly filled in claim form. We, rather, came across communications urging for payment of compensation to the Respondent/OP No. 2 and Respondent/OP No.3 both of them were wrong parties for such claim to be placed before particularly when the complaint was lodged against Respondent/OP No.1.
Such being the circumstance, we are of the considered view that the Ld. District forum has rightly dismissed the complaint case without doing any material irregularity.
Hence, ordered that the Appeal be and the same stands dismissed. The impugned judgment and order stands affirmed. No order as to costs.
