- Prince Refrigeration Co. Pvt. Ltd.,
10, Crooked Lane, Kolkata-69,
P.S. Hare Street. _________ Complainant
____Versus____
- Jet Air Service Spa,
1/A, Janaki Shah Road, Hastings, Kolkata-700022.
- Gladstone Agencies Limited,
1/A, Janaki Shah Road, Hastings, Kolkata-700022.
- The Chairman, The Board of Trustees For the Port of Kolkata,
15, Strand Road, Kolkata-700001. ________ Opposite Party
Present : Sri Sankar Nath Das, Hon’ble President
Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 34 Dated 28/07/2014
The case of the complainant in short is that complainant is the importer of various items including spare parts of refrigerator and other allied products and as well as trader and carrying on business to earn their livelihood. In course of business the complainant placed an order to M/s ZNOTTI S.P.A. via Martin L. Kind No.30,46020 Pegognaga, Mantova, Italy a foreign seller for supply of four cases and one pallet and one carton of spare parts of refrigerator against purchase order no.515499 dt.20.5.1994. The complainant purchased goods from them vide commercial invoice no.00002025 and 00002974 both dt.2004 for Euro 10,018.88 and Euro 75.24 and became the owner of the said goods. Pursuant to and in terms of contract of sale the said foreign seller / shippers duly shipped the said goods / consignment in good order and sound condition on Board the Vessel “PONL HONSHU” V-43E38 for carriage of the said goods from LA SPEZIA, Italy to Kolkata Port. The cargo brought by the vessel “PAC MAKASSAR” VOY.409 under line no.116 and import rotation no.1082/04 which arrived at Kolkata Port on or about 18.10.04. Aforesaid goods were transshipped enroute to Kolkata Port per vessel s.s. “PAC MAKASSAR” VOY.409 which arrived at Kolkata Port at 4 NS Dock on or about 18.10.04. On or about in midnight of 16.11.04 a devastating fire broke out at shed no.4 NS Dock in which all the goods the stored and lying in custody of o.p. no.3 were burnt to assess. The said incident was widely reported through the media in daily newspaper. The goods belonging to the complainant which arrived at port of Kolkata on or about 18.10.04 were also lying stored at 4NS Dock when the incident of fire took place. O.p. no.1 carries on business in General and Marine Insurance by covering various risk including road transit risk for premium paid covers goods under insurance of “All Risks” of insurance and incorporated in Italy under appropriate laws. O.p. no.2 is acting as survey and claim payable agent on behalf of o.p. no.1. The said consignment was insured with o.p. no.1. Complainant asked o.p. no.3 to appoint a surveyor for joint survey of the consignment, but o.p. no.3 refused to hold a joint survey. For the reason complainant suffered loss and damages to the tune of Rs.6,67,836/- being the value of the consignment including other expenses already incurred. As a result of non delivery of the consignment the complainant suffered loss and arranged inspection of the above goods to o.p. no.2. Complainant sent demand notices to o.ps. In spite of receipt of demand notices issued by complainant, o.ps. failed and neglected to pay the claim of the complainant. Hence, the application with prayer for payment of Rs.6,67,836/- along with interest from o.p. no.1 and compensation and cost.
All o.ps. appeared before this Forum and filed their w/vs. In their w/v o.p. no.1 denied all the material of allegations interalia stated that the said consignment was insured by the said ZANOTTI S.P.A. with XL Insurance. Therefore, o.p. no.1 has been wrongly impleaded as insurer. The complainant has no prima case against o.p. no.1 as carrier of the goods and o.p. no.1 is not liable for loss or damage of the consignment while stored in the custody of o.p. no.3. Moreover, the claim of the complainant against this o.p. barred by limitation as the claim has been filed beyond the statutory period. No cause of action of arose against o.p. no.1 and the case is bad for mis joinder of party and o.p. no.1 has been made a party as insurer whereas insurer is XL Insurance. So the case is liable to be dismissed against o.p. no.1.
In their w/v o.p. no.2 also denied all the material of allegations interalia stated that complainant has wrongly filed the case against o.p. no.2. O.p. no.2 is only a survey agent and the complainant has sought a decree against o.p. no.1. Hence no claim against o.p. no.2 has been prayed for. O.p. no.2 is not the claim agent of o.p. no.1, their job is to receive any claim application. Therefore, no cause of action arose against o.p. no.2. So the case is liable to be dismissed against o.p. no.2.
In their w/v o.p. no.3 also stated that no relief has been sought for by the complainant against o.p. no.3. The subject matter relates to commercial purpose and therefore, it is not within the jurisdiction of C.P. Act, 1986. The responsibility of o.p. no.3 is governed in terms of rules and regulations of Major Port Trust Act, 1963 and o.p. no.3 is not liable to accept any claim for destruction or damage of the complainant. There is no deficiency on the part of o.p. no.3 since it has acted its diligently. This case is not at all maintainable. So the case is liable to be dismissed against o.p. no.3.
Decision with reasons:
We have gone through the pleadings of the parties, evidence and documents in particular. It is admitted fact that complainant is the importer of various items including spare parts of refrigerator and other allied products. The complainant imported four cases and one pallet and one carton of spare parts of refrigerator from Italy and the items were arrived at Kolkata Port at 4 NS Dock on or about 18.10.04. It is also fact that in the midnight of 16.11.04 a devastating fire broke out at shed no.4 NS Dock in which the complainant’s imported items were stored and all burnt to assess. Now the question is whether the complaint case is maintainable or not. The fire broke out on 16.11.04. The case has been filed before this Forum on 2.7.10. Complainant did not file any condonation of delay petition u/s 24 A of C.P. Act, 1986 nor expressed any reason which shows that what prevented them to file the instant case in time. After a long period mere correspondences by a letter cannot create a cause of action. In this connection we are relying upon the judgment (2009) 7 Supreme Court Cases 768 (Kandimalla Raghavaiah and Company vs. National Insurance Co. and another). The claim has not been lodged within the stipulated period of one year to the insurance company. Complainant has alleged that demand notices had been sent to all o.ps. but we have not found demand notice sent to o.p. no.1 to that effect as annexure. Besides this, the moot question is who is liable to pay the claim amount. O.p. no.2 is a survey agent. Their duty is to survey and assess the damage or loss. The goods were stored in the custody of o.p. no.3. Therefore, o.p. no.3 is not liable to pay the insurance amount. O.p. no.1 is carrier not the insurance company. Insurance company is XL Insurance which is not a party in this case. The insurance claim is against the insurance company and as that company is not a party in the instant case, so the case suffers from non joinder of party which is fatal. So the complainant has failed to substantiate their case and is not entitled to relief.
Hence, ordered,
That the case is dismissed on contest without cost against the o.ps.
Supply certified copy of this order to the parties free of cost.
