Date of Filing : 02.02. 2011
Date of Order : 21.01.2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.52/2011
THURSDAY THIS 21ST DAY OF January 2016
M/s. Meenal Exports,
Rep. by its Partner,
A.R. Ramaswamy,
No.47 F/3, Dr. Ramaswamy Salai,
K.K. Nagar, Chennai 600 078. ..Complainant
..Vs..
M/s. Export Credit Guarantee
Corporation India Ltd.,
Rep. by its Managing Director,
Spencer Towers, VII Floor,
770A Anna Salai, Chennai 600 002. ..Opposite party
For the Complainant : M/s. D. Jawahar
For the Opposite party : M/s. S. Ramasubramaniam & Associates.
Complaint under section 12 of the Consumer Protection Act 1986. Complaint is filed seeking direction against the opposite party to settle the claim amount of Rs.9,71,442/- with interest and also to pay a sum of Rs.5,00,000/- as compensation and cost of the complaint to the complainant.
ORDER
THIRU. T.PAUL RAJASEKARAN :: MEMBER-II
1.The case of the complainant is briefly as follows:-
The complainant submit that he had obtained policy with the opposite party under the “Small Exporters Policy” category and had been regularly paying the premiums and filing periodical return with the opposite party, without any delay or default. The policy number is SEC 0070009078. The complainant further submit that he exported the items requested by the M/s. Primmas Wholesale Emporium SDN BHD under Invoice cum packing list dated 25.3.2008, Invoice No.8 and Bill of lading dated 26.3.2008, Bill of lading No.IBL 00035 and Bill of exchange dated 25.3.2008 on M/s. Primmas Wholesale Emporium SDN BHD, Malaysia for U.S Dollars19,900/- and another invoice cum packaging list dated 30.4.2008, No.009 and Bill of lading dated 2.5.2008 and Bill of exchange dated 30.4.2008 on M/s. Primmas Wholesale Emporium SDN BHD, Malaysia for U.S. 9392. The complainant had purchased both these bills on 3.4.2008 and 7.5.2008 through their bankers, Indian Bank, Ashok Nagar Branch. The complainant filed the returns for these shipments to the opposite party within the prescribed period in Form No.203 and also From No.205 for payments delayed beyond 30 days from the due date. The opposite party replied to the complainant stating that the claim form can be submitted within a period of two years from the original due date in their prescribed format vide their letter dated 13.6.2008. The above said M/s. Primmas Wholesale Emporium SDN BHD, Malaysia, had advised their bankers, CIMB bank Berhad, Malaysia in their letter dated 10.6.2008 that they did not purchase the bills raised on them and advised their bankers to return the documents to the complainant. The complainant was shocked to note that the said M/s. Primmas Wholesale Emporium SDN BHD, Malaysia had failed to honour the bills. As the complainant is only a small exporter, had been requesting the said M/s.Primmas Wholesale Emporium SDN BHD, Malaysia to clear the bills but they had been stating that due to financial constraints they were unable to clear the bills.
2. Therefore the complainant requested the opposite party to send the claim form to them at an early date through letter dated 14.7.2008 which was received by them but they failed to send any reply. Hence the opposite parties have committed deficiency of service which caused mental agony and hardship to the complainant. As such the complainant sought for claim to settle the claim amount of Rs.9,71,442/- with interest and also to pay a sum of Rs.5,00,000/- as compensation and cost of the complaint to the complainant.
Written version of the opposite party in brief is as follows:-
3. It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The opposite party submits that the complainant is holding a Small Exporters Policy bearing No.SEC 0070009078 dated 3.9.2007. The above said policy had covered the shipments effected by the complainant for the period 3.9.2007 till 31.8.2008. The said policy was subsequently renewed for the period of one year i.e. from 1.9.2008 to 31.8.2009 with 5% no claim bonus. The complainant had approached the opposite party for credit limit on one of its buyers viz M/s. Primmas Wholesale Emporium SDN BHD, Malaysia, for a sum of Rs.12,50,000/- on documents against payment on terms. The conditions of the policy and the Cover Note clearly reflect that the claim form must be filed within one year of the due date in the case of Small Exporter’s Policies, as in this case whereas the two year limitation is only for the regular Shipment, Comprehensive risks policy for large businesses. Hence the claim was rejected under term and conditions of the policy. Hence there is no deficiency of service on the part of the opposite parties and the compliant is liable to be dismissed.
4. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A49 were marked on the side of the complainant. Proof affidavit of Opposite party filed and Ex.B1 to Ex.B13 were marked on the side of the opposite party.
5. The points that arise for consideration are as follows:-.
1) Whether there is any deficiency in service on the part of the opposite party?
- Whether the complainant is entitled to the reliefs asked for?.
6. POINTS 1 & 2 : -
Perused the complaint filed by the complainant and his proof affidavit and documents Ex.A1 to Ex.A49 were marked on the side of the complainant. Written version filed by the opposite party and his proof affidavit and documents Ex.B1 to Ex.B13 were marked and also considered the both side arguments.
7. Having gone through above documents, the opposite party Export Credit Grantee Corporation of India Limited had issued a small exporters policy (SEP) vide policy No.SEC 0070009078 dated 30.8.2007 for the period 28.7.2007 to 30.1.2008 by collecting the proposal from the complainant on 28.8.2007. As per the terms in the within mentioned policy, the complainant has to submit the declaration on every quarter following the 15th day of every 4th month. The opposite party who is an insurer otherwise termed (Corporation) have received a consideration of Rs.2,000/- and accepted the liability for comprehensive risk and confirming the maximum liability as Rs.20 lakhs.
8. The policy covers the risk like (i) insolvency of the buyer, (ii) failure of the buyer to pay to the insured within two months after the due date of payment of the gross invoice value of the goods delivered and accepted by the buyer (iii) failure or refusal on the part of the buyer to accept the goods which have already been exported from India, incurring expenses (iv) in respect of goods shifted from India of any additional handling, transport or insurance charges which are occasioned by interruption or diversion of voyage outside India and which is impracticable to be recovered from the buyer (Ex.A4 page No.16 to 27). The complainant was transacting the business with their banker Indian Bank, Ashok Nagar, Chennai.
9. This comprehensive risk cover under the policy on the buyer for the goods so taken delivery of by the buyer but the payment of which remained unpaid by the letter of credit, opening bank owing to some discrepancy in the document drawn under letter of credit.
10. The risk of loss arising out the buyers protracted default or insolvency the insured appropriate credit limit available on the buyer under clause-21 of the within mentioned policy and the insured as declared all such shipments in pursuance of Claue-8 (a) of the within mentioned policy.
11. The opposite party issued a SEP policy which stipulate the cause of loss is due to any of the causes specified under the additional risk insured shall be 95% under SEP policy. As per the credit limit is concerned the liability of the policy in relation to all additional risk insured herein, in respect of bills drawn on any one opening bank shall be limited to the amount herein after specified as amount of credit limit on the opening bank. Accordingly the credit limit given to the complainant is Rs.12 lakhs as per opposite party’s letter dated 3.12.2007 and terms of payment is by CAD/DP.
12. The complainant had sent the shipment under Bill of lading No.IBL00035 dated 26.3.2008 Ex.A7 and another Bill of lading by IBL000390 dated 2.5.2008 (Ex.A9) to Primmas Wholesale Emporium Malasiya. When the consignment reached at destination the buyer, as made an endorsement in the shipping document “party not interested in clearing goods, alternative buyer found”, arranged to deliver the goods a new buyer on 7.7.2008” (Ex.A15). In the mean time the bank at the destination point SIMB bank, BHD claimed handling charges of 75 US dollars Ex.A17.
13. There was an outstanding of two invoices from the buyer M/s Primmas whole sale Emporium, Malasiya, 19,900 USD and 9392 USD the INR amounting to Rs.11,85,429/- (Ex.A23 & Ex.A24). The complainant under Ex.A31 claimed Rs.9,24,442/- stating the payment realized by him to the tune of Rs.2,05,124/- from the total value of Rs.11,66,566/-.
14. In summation, the complainant states that under bill No.8 Rs.9900 US dollar and bill NO.9 Rs.9392 US dollar totaling Rs.29,292/- less part payment in two installments Rs.2537.70 and 1631.64 the balance amounting to 25122.66 us dollar which amounting to Rs.11,30,500/-. On the contrary, the opposite party under Ex.B8 mentions both the invoices amounting to Rs.11,76,566/-, in which recovery was made Rs.5,25485/- the actual amount liable to pay by the opposite party is Rs.6,51,081/-.
15. Further the opposite party has raised objection stating that this complaint filed by the complainant is not in time and barred by limitation by stating that the cause of action for the complaint is arised on 25.2.2010 and the complaint is filed on 6.6.2012 i.e. after two years and four month time as such the complaint filed is not in time i.e. within two years under the Consumer Protection Act 1986. However as contended by the complainant the opposite party has finally rejected the claim made by the complainant on 13.1.2011 under Ex.A40 from the date of rejection of the said claim made by the complainant, this complaint is filed before this forum on 6.6.2012 which is within two years as mentioned in Sec.24 (A) of the Consumer Protection Act, as such the complaint is filed in time and not barred by limitation is acceptable. Therefore we are of the considered view that the contention made by the opposite party that this complaint filed by the complainant is barred by limitation is not sustainable and the same to be rejected. Further the complainant sought for the claim form to be filed in time, the opposite party had delayed in providing the required claim form and putting the blame on the complainant is not acceptable. The complainant made his all out efforts when the buyer refused to accept the consignment or the complainant tried to find a new buyer and made personal visit to Malasiya. When the 1st buyer Primmas wholesale Emporium had declined to accept the consignment. He made efforts in disposing of the consignment lying at the destination point. This itself proved the complainant is not negligent on his part. The opposite party themselves had agreed the balance amount due to the complainant Rs.6,51,089/- (Ex.B8). Under Ex.B9 the opposite party had clearly given the detailed liability of the complainant by claiming 100% of the loss i.e. Rs.9,71,442/-. The opposite party had sent a letter on 25.2.2010 to the complainant (Ex.B11) it is time barred case which could not be accepted. No legal proceedings or recovery actions initiated against the buyer by the complainant, which in normal procedure, letter of subrogation will be collected from the insured and the insurer after settlement of the claim to the insusred will proceed for recovery action. This allegation on complainant will not be accepted and also not a lapse on the part of the complainant.
16. We are of the considered view that though the complainant had claimed Rs.9,71,442/- under Ex.A31 and as committed by the opposite party in their written version under Ex.B8 the payment of Rs.6,51,081/- is due to the complainant is justifiable. Had it been settled in time the complainant would not prefer this complaint in this forum. Hence it is observed this is purely the deficiency of service on the part of the opposite party and we hereby direct the opposite party to pay a sum of Rs.6,51,081/- as loss and pay an interest at the rate of 9% p.a. on this amount from the date of filing the complaint i.e. 2.2.2011 to till the date of payment. We are not inclined to grant compensation to complainant and also direct the opposite party to pay Rs.5,000/- as litigation charges to the complainant and as such the points 1 & 2 are answered in favour of the complainant.
In the result the complaint is partly allowed. The opposite party is directed to pay a sum of Rs.6,51,081/- (Rupees Six lakhs Fifty one thousand and eighty one only) with interest at the rate of 9% p.a. from 2.2.2011 to till the date of payment and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards litigation charges to the complainant within six weeks from the date of this order.
Dictated directly by the Member-II to the Assistant, transcribed and computerized by her, corrected by the Member-II and pronounced by us in the open Forum on this the 14th day of December 2015.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents :
Ex.A1- 5.8.2006 - Copy of Partnership Deed.
Ex.A2- 28.7.2008 - Copy of Income-tax Return.
Ex.A3- 30.7.2009 - Copy of Income-Tax Return.
Ex.A4- 3.9.2007 - Copy of Policy.
Ex.A5- 1.11.2007 - Copy of Purchase orders.
Ex.A6- 3.12.2007 - Copy of Credit Limit Approval.
Ex.A7- 26.3.2008 - Copy of Bill lading.
Ex.A8- 30.4.2008 - Copy of Invoice.
Ex.A9- 2.5.2008 - Copy of bill lading.
Ex.A10- 25.4.2008- Copy of Integrated import document.
Ex.A11- 25.4.2008- Copy of import document.
Ex.A12- 5.4.2008 - Copy of Form 203.
Ex.A13- 6.6.2008 - Copy of Form 203.
Ex.A14- 9.6.2008 - Copy of Form 205.
Ex.A15- 7.7.2008 - Copy of Form 203.
Ex.A16- 10.6.2008- Copy of letter from CIMB Bank.
Ex.A17- 13.6.2008- Copy of letter from CIMB Bank.
Ex.A18- 13.6.2008- Copy of Letter from opposite party.
Ex.A19- 21.6.2008 – Copy of offer letter from M/s. Jus Global.
Ex.A20-23.6.2008 – Copy of letter to opp. party.
Ex.A21- 9.7.2008 - Copy of M/s. Jus Global.
Ex.A22- 14.7.2008 – Copy of letter to opposite party.
Ex.A23- 14.8.2008 – Copy of letter to opposite party.
Ex.A24- 11.9.2008 - Copy of letter to opposite party
Ex.A25- - - Copy of Statement of exports made.
Ex.A26- 30.12.2009- Copy of letter from opposite party.
Ex.A27- 6.1.2010 - Copy of letter to opposite party.
Ex.A28- 19.1.2010 – Copy of letter from opposite party.
Ex.A29-10.2.2010 – Copy of letter to opposite party.
Ex.A30- 10.2.2010 – Copy of Claim form.
Ex.A31- 18.2.2010 – Copy of letter from opp. party.
Ex.A32- 20.2.2010 – Copy of letter to opposite party.
Ex.A33- 23.2.2010 – Copy of letter to opposite party.
Ex.A34- 23.2.2010 – Copy of complaint to Malaysian consul.
Ex.A35- 25.3.2010 – Copy of rejection order from opposite party.
Ex.A36- 1.3.2010 - Copy of letter to opposite party.
Ex.A37- 5.3.2010 - Copy of compliant to Malaysian consul.
Ex.A38- 20.4.2010 – Copy of letter from opposite party.
Ex.A39- 20.12.2010 – Copy of letter to opposite party.
Ex.A40- 13.1.2011 - Copy of letter from opposite party.
Ex.A41- - - Copy of Passport & Visa Endorsements.
Ex.A42- - - Copy of Website print out.
Ex.A43- 21.1.2011 – Copy of complaint to High Commission.
Ex.A44- 21.1.2011 – Copy of complaint to DGP-TN.
Ex.A45- 29.1.2011 – Copy of Bank Certificate.
Ex.A46- 16.9.2011 – Copy of letter to Indian Bank from Complainant.
Ex.A47- 15.3.2012 – Copy of Certificate issued by the Indian bank.
Ex.A48- 30.3.2012 – Copy of Form No.1.
Ex.A49- 28.7.2011 – Copy of Income-Tax Return.
Opposite parties’ side documents:
Ex.B1- 3.9.2007 - Copy of Small Exporters policy.
Ex.B2- 6.6.2008 - Copy of Declaration of overdue shipments.
Ex.B3- 13.6.2008 - Copy of letter from CIMB Bank, Malaysia to Indian
Bank, Madras.
Ex.B4- 13.6.2008 - Copy of letter from opposite party to complainant.
Ex.B5- 19.6.2008 - Copy of letter from Indian Bank to complainant.
Ex.B6- 8.9.2008 - Copy of monthly Declaration of overdue shipments.
Ex.B7- 20.10.2008-Copy of letter from opposite party to complainant.
Ex.B8- 27.8.2009 - Copy of letter from complainant to opposite party.
Ex.B9- 10.2.2010 - Copy of Claim Form.
Ex.B10- 23.2.2010 -Copy of letter from Complainant to Consulate
General of Malaysia.
Ex.B11- 25.2.2010 Copy of letter from opposite party to complainant.
Ex.B12- 5.3.3010 - Copy of letter from complainant to Consulate
General of Malaysia, Teynampet.
Ex.B13- 15.3.2010 – Copy of agreement between complainant and
MAH International Corporation.
MEMBER-I MEMBER-II PRESIDENT.
