Haryana

StateCommission

A/294/2014

NIA - Complainant(s)

Versus

Kundan Rice Mills - Opp.Party(s)

R C Gupta

20 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.294 of 2014

Date of Institution: 15.04.2014

                                                               Date of Decision: 20.09.2016

 

1.      The New India Assurance Company Limited, through its Divisional Manager, Divisional Office, Panipat.

2.      The New India Assurance Company Limited,  through its Regional Manager, Regional Office, SCO NO.36-37, Sector 17-A, Chandigarh.

3.      The New India Assurance Company Limited, through its Chief Manager, Head office, New India Assurance Building 87, M.G.Road, Fort, Mumbai-400001 now through authorized signatory of Regional Office, Chandigarh.

….. Appellants

Versus

 

M/s Kundan Rice Mills Ltd. through its Law Officer, Mr.Ranbir Singh, office at E-4 Industrial Area, Panipat-132103.

                                      …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:               Shri R.C.Gupta, Advocate for appellants.

                             Shri R.K.Chaudhary, Advocate for respondent.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:-

It was alleged by the complainant that he purchased crude palm oil from   M/s Sawitra Oil Grains, Jakarta, Indonesia weighing 2999.930 metric ton (MT) vide invoice No.2003/07/SOGD/075-086 (12 Invoices), dated 04.07.2003 and measuring 5002.235 MT from M/s P.T. Kalpataru Semesta, Jakarta, Indonesia, vide invoice No.068/INV/VII/03 dated 07.07.2003 and obtained marine insurance cover against 5,000 M.T. vide cover note No.011791 dated 09.06.2003 for agreed value of Rs.10,90,77,000/- and marine cover note No.011794 dated 11.06.2003 for 3000 M.T. for agreed value of Rs.6,53,74,000/-.  Terms and conditions of the coverage were as under:-

“ a.    Commodity                   :         Crude Palm Oil

b.      Risks covered    :         All risks including War & SRCC

c.       Voyage:From anywhere in Indonesia to anywhere in India

d       Basis of valuation:       Value + 10%

f.       Mode of transport:       Rail/ road/ Ship”

Total quantity of both consignments was 8002.165 MT.  When unloaded, crude oil was found to be 7902.005 MT and there was shortage of 100.160 M.T. The claim was lodged with the O.P. for compensation to the tune of Rs.13,35,631/- as detailed below:-

          “Total quantity as per Bill of Loading      8002.165 MT

Quantity Received                                   7902.005 MT

Shortage                                                   100.160 MT

Less: Excess 0.50%                                40.000 MT

Shortage claim payable                 60.150 MT @ Rs.21806

                                                          PMT=Rs.13,11,631/-

Survey Fees                                             Rs.24,000/-

Total                                                          Rs.13,35,631/-“ 

O.P. repudiated claim without any reasonable ground. Hence the complaint.

2.      O.Ps. filed reply denying their liability to pay any compensation.  It was alleged that as per port survey report 7941.866 MT of Crude Palm oil was loaded and not 8002.165 MT, so it cannot be presumed that 60.299 MT was lost. Surveyor submitted the report which was as under:-

          “1.     Difference of shortage                                      100.160 MT

          2.      Short Loading at the Load Port               60.298 MT

          3.      Density Difference                                   8.126 MT

          4.      Excess Clause deducted                        40.011 MT

                    Net Shortage Payable                             Nil”

 Other averments were also denied and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Panipat (In short “District Forum”) allowed the complaint vide impugned order dated 05.02.2014 and directed as under:-

“In view of above discussion, present complaint succeeds. We hereby allow this complaint with a direction to opposite parties to pay Rs.13,35,631/- to the complainant with interest @ 9% per annum from the date of filing the complaint till its realization and further to compensate the complainant to the tune of Rs.20,000/- for causing mental agony, harassment etc. Cost of litigation quantified of Rs.5500/- is also allowed to be paid by opposite parties to the complainant.”

4.      Feeling aggrieved therefrom O.Ps.(appellants) have preferred this appeal.

5.      Arguments heard and file perused.

6.      Learned counsel for the complainant-respondent vehemently argued that as per Ex.C-14. Crude palm oil was 8002.165 MTs at the time of loading whereas at the time of the unloading it was found to be 7902.05 MTs  and  there was shortage of 100.160 MTs.  So learned District Forum rightly granted compensation about the difference.

7.      This argument is devoid of any force.  As per insurance policy Ex.C-7 insurance company is responsible for the loss of crude oil after loading and not before unloading.  If palm oil is lost during transportation after loading then only insurance company can be held liable and not otherwise.  If we scan the evidence available on the file then it will be clear that there was shortage of palm oil at the time of loading.  As per annexure D1 shore figures given by shippers load was 2999.930 MT but ship’s figures by ullaging or sounding was 2972.729 MT. In this way there was shortage of 0.906%. Vide Annexure D2 shore figures given by shippers load was 5002.235 MT, whereas according to ship’s figure by ullaging or sounding it was 4969.138 MT and there was shortage of 0.662%.  These documents are pertaining to the actual loading.  For ready reference relevant figures of Annexure D1 and D2 are as under:-

“Annexure D1

Shore figures given by shippers   (A)       :2999.930 M/T

Ship’s Figures by ullaging or sounding (B): 2972.729 M/T

Discrepancy between both figures        (A-B)  :  27.201 M/T”

 

“Annexure D2

Shore Figures given by shippers  (A)     : 5,002.235 M/T

Ship’s figures by ullaging or sounding (B): 4,969.138 M/T

Discrepancy between both figures (A-b)         : 33.097 M/T”

Even as per weight and quality certificate Ex.C-24, measurement of shore tank before and after loading was 2999.930 MTs, whereas measurement on board after loading  it was 2972.729 MTs. Likewise as per Ex.C-25 measurement of shore tank before and after loading was 5002.235 MTs, whereas measurement on board after loading was 4969.130 MTs. These documents are also corroborating the annexures as D-1 and D-2 produced by appellant-O.Ps. As per these documents it is clear that there was shortage in loading. When proper load was not there it cannot be presumed that insurance company is responsible for the same. As per insurance policy the average clause was also applicable, which is taken into consideration by surveyor, as mentioned above.  It is not alleged by the complainant that excess clause was not applicable because in his claim bill Ex.C15 complainant has applied the excess clause. Learned District Forum failed to take into consideration all these facts and wrongly awarded compensation as mentioned above. So impugned order dated 05.02.2014 is set aside, appeal is allowed and complaint is dismissed.

8.      The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

 

September 20th, 2016            Urvashi Agnihotri                    R.K.Bishnoi,                                                                           Member                                  Judicial Member                                                                     Addl. Bench                            Addl.Bench                

S.K.