Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This consumer complaint has been filed by the complainant/Kavi Commercial Company Ltd. through its Director Shri Kailash R. Didwania against the National Insurance Company alleging deficiency in service on its part. According to the complainant-Company, its registered office is at 87-B, Broach Street, Nooruddin Chamber, 4th floor, Masjid (East), Mumbai. It is having business of import and export in steel and its products. O.P. is the Company carrying on business in insurance. Complainant-Company pleaded that on 02/04/2007 it had approached O.P. at their Mumbai Office and purchased insurance policy bearing No.281000/21/87/4300000008 dated 23/04/2007 for sum of `9,48,35,390/- being value of intended import of 3527 MT Rolled Steel Plates from a Ukraine Port to Kalamboli via Mumbai Port. Voyage Policy covered the risks and loss arising out of ICC (C) War/SRCC/Theft and non-delivery of each and every package. The risk was to be commenced from BL/AN/R.RRW LR or the polity date. The complainant paid premium of `42,578/- to the O.P. for purchasing said policy. According to the complainant, goods were shipped on M.V. Antarios Breeze from Iloicheusk, Ukraine Port to Mumbai Port weighing in the unit of 1694.400 MT. Total pieces were 836 valued at US $9,86,140.80. The Company has enclosed copy of Invoice dated 16/07/2007 with Bill of Lading. By their letter dated 24/07/2007, complainant informed the O.P./Insurance Company the particulars of shipment of goods insured during voyage furnishing the bill of lading, number of pieces and net weight and also enclosed invoice. The goods had arrived by vessel “M.V. Antarios Breeze” on 13/08/2007 at Mumbai Port and started discharging Cargo on 16ID, 17 ID and 18ID. The import duty was paid by the complainant and the goods were examined on 14/08/2007. It is the case of the complainant that he started taking delivery from 16/08/2007 under the supervision of M/s.N.R. Shenvi & Associates. The complainant could take delivery of 820 pieces weighing 1621.180 MT. leading to short delivery of 16 pieces weighing 73.220 MT. Samrat Clearing Agency Pvt. Ltd. was the clearing agent for the complainant. They had paid custom duty on the goods amounting to `1,12,70,771/-. The complainant pleaded that it has searched diligently for remaining 16 pieces with the help of dock staff, but the same could not be found. By their letter dated 21/08/2007 the complainant intimated the O.P./Insurance Company about short delivery. They had intimated short delivery to Samsara Shipping Pvt. Ltd. who were shipping agent endorsing a copy thereof to Mumbai Port Trust. The complainant pleaded that the last day of the said vessel at Mumbai Port was 21/08/2007 till then they had tried to locate 16 pieces, but same could not be located. Therefore, it is averred by the complainant-Company that it has suffered loss of `19,08,000/- on account of short delivery of 16 pieces weighing 73.220 MT. The complainant lodged the claim with O.P. by their letter dated 21/08/2007 and claimed amount of `19,08,000/- and submitted documents accordingly. The complainant forwarded Survey Report dated 29/08/2007 and 31/08/2007 confirming said shortage of delivery. The complainant also obtained and forwarded Short Landing Certificate issued by Mumbai Port Trust and MATE’S Receipts 7 showing that 836 pieces were loaded on the vessel. So, there was short delivery of 16 pieces and for that short delivery, complainant-Company had claimed amount of `19,00,800/- from the Insurance Company. However, O.P. repudiated the claim by sending letter dated 23/07/2008 that claim file was closed for the reason “Peril/cause of loss not covered in the policy”.
According to the complainant-Company, complainant by their letter dated 01/08/2008 reminded O.P. that policy covered said loss, but the Divisional Manager of O.P. by letter dated 03/03/2009 reiterated that the claim for shortage was not covered under the policy. The complainant-Company by their letter dated 09/03/2009 and 24/12/2009 further requested the Insurance Company to consider their claim, but it was in vain and therefore, complainant-Company filed a consumer complaint claiming amount of `19,00,800/- towards short delivery suffered by the complainant-Company and complainant-Company pleaded that by denying liability, the Insurance Company is guilty of deficiency in service and unfair trade practice. The complainant-Company alleged that O.P. has falsely denied the claim of the complainant and therefore, it is entitled to get an award of `19,00,800/- with interest @ 18% p.a. from the date of filing of the complaint till realization of the entire amount. In all complainant claimed amount of `28,15,184/-. The complainant has filed various documents along with the complaint.
Notice was issued to the O.P. O.P. filed written version and contested the matter. According to the O.P. complainant had availed ‘Marine Cargo Specific Voyage Policy’ for the period and for the sum as mentioned by the complainant. But, O.P. denied that there was deficiency in service on their part. The Insurance Company repudiated the claim on genuine grounds as complainant-Company had not pointed out any incident of peril which resulted into loss of goods or plates as alleged by the complainant. According to the O.P.-Insurance Company, insurance cover is available to the customer to compensate the loss insured in the event of unforeseen peril or circumstances, resulting into loss of goods to the insured. In the complainant’s case, there was no report of peril either from overseas seller or from ocean carrier nor even from the complainant or Mumbai Port Trust Authority. The complainant failed to describe any situation/incidence which resulted into short of delivery of goods as claimed by the complainant. According to the Insurance Company, MATE’S Receipt annexed by the complainant shows that more than one consignment was delivered by the overseas seller/supplier. So, without production of whole documents, O.P. pleaded it could not ascertain real value of goods and therefore, short delivery claim made by the complainant is without any basis and short delivery cannot occur in the absence of any report of peril, pilferage or theft, etc. O.P. specifically pleaded that shortage of delivery in goods was not covered under the policy and it had rightly repudiated the complainant’s insurance claim and there was no deficiency in service of any nature as alleged by the complainant. The Insurance Company therefore pleaded that no case has been made out by the complainant alleging deficiency in service or unfair trade practice of whatsoever nature and prayed that complaint should be dismissed with costs.
We heard submissions of Advocate Mr.R.M. Tiwari for the complainant and Mr.S. Hussain, Advocate for M.V. Kini & Company, Advocate for the O.P.
Now, following points arise for our consideration and our findings thereon are as under :-
Point No.1 :
Whether complainant proves that while importing Hot Rolled Steel Plates from a Ukraine Port to Mumbai Port by ‘M.V. Antarios Breeze”, there has been short delivery of 16 pieces weighing 73.220 MT. and therefore, complainant suffered loss of `19,00,800/-?
Finding
There was short delivery of 16 pieces but weighing 40.523 MT worth `11,07,837/-.
Point No.2 :
Whether repudiation of claim by National Insurance Company was proper?
Finding
No
Point No.3 :
What order?
Finding
Complaint is partly allowed.
REASONS :-
Complaint is supported by affidavit of Shri Kailash R. Didwania, Director of complainant-Company. It is also supported by the insurance policy Exhibit-B appended to the complaint. If we see the policy, it covers ICC(C), WAR/SRCC/Theft and non-delivery of each and/or entire package. Exhibit-C is the document attached with the complaint showing that similar policy purchased was honoured by the O.P.-Insurance Company. Commercial Invoice dated 16/07/2007 clearly mentioned shipment on ‘MV Antarios Breeze’ from Ilyichevsk, Ukraine Port to Mumbai Port with Bill of Lading No.7 dated 16/07/2007 was containing Hot Rolled Steel Plates from stock in various grades and quantity was 1694.400 MT and total pieces were 836. Total value of consignment was US $9,86,140.80. Bill of Lading is annexed at Exhibit-E by the complainant, which shows that ‘MV Antarios Breeze’ set out for sail from Ilyichevsk, Ukraine Port to Mumbai Port and it contained Hot Rolled Steel Plates from Stock weighing 1694.400 MT. and total pieces were 836. It is mentioned on this Bill of Lading that the bill of lading is to constitute the conclusive piece of evidence about total pieces of consignment loaded in the shipment. Next letter is issued by Kavi Commercial Company Ltd. to the National Insurance Company dated 24/07/2007 informing that they had sent through MV ‘Antarios Breeze’ 836 pieces as per Bill of Lading No.7 having total weight of 1694.400 MT. and for this consignment they asked for insurance policy. Exhibit-G is the Bill of Entry for Home Consumption and there is custom receipt to show that duty has been paid on the imported goods worth `1,12,70,771/-. It is the receipt about payment. There is also receipt about payment of import duty by the complainant-Company. Mumbai Port Trust Docks has issued Short Landing Certificate which is at Exhibit-I to the effect that on 09/08/2007 MV ‘Antarios Breeze” berthed at Shed No.18ID packages bearing marks and number ‘Green Paint’ were containing 836 packages as per Bill of Entry but packages landed was 820 and there was short delivery of 16 packages which are said to be containing steel plates. The complainant also annexed with complaint a M.R. Shenvi & Associates Survey Report which clearly mentioned that there was short delivery of 16 packages. The packages as per Bill of Landing were 836 and quantity delivered was 820. So, total shortage of steel plates was weighing 73.220 MT. This report is dated 31/08/2007 and they had attended the said ship on behalf of Kavi Commercial Company on 16,17&18 of Indira Dock, Mumbai Port Trust and weighbridge at Kalombali, Navi Mumbai on 16/08/2007 to inspect and survey and to monitor delivery of goods.
All these documents mentioned above are clearly supporting complainant’s case that complainant-Company had imported 836 pieces of Hot Rolled Steel Plates from Ukraine Port weighing 1694.400 MT. having total value of US $9,86,140.80 as per Invoice marked Exhibit-D dated 16/07/2007 and as per Bill of L marked Exhibit-E. The Mumbai Port Trust’s shortage certificate clearly proved that when the goods arrived by said ship, there was shortage of 16 pieces and this has been confirmed by the Surveyor M/s. M.R. Shenvi & Associates. The question is what was the weight of short delivery pieces. There appears to be divergence. The complainant is claiming that short delivery of pieces 16 in numbers weighing 73.220 MT. Whereas, on page-101 of the complaint, there is a letter issued by M/s.Kavi Commercial Company Ltd. to the National Insurance Company wherein they mentioned following portion which is very pertinent to resolve this dispute:-
“All above reveals and proves without doubt that there is shortage by way of short landing of 16 plates = 73.220 MT. Initially Surveyor Trans Ocean Marine and General Survey Agencies accepted weight shortgage of 32.480 MT in 16 plates however stated that only 16.240 MT (half the quantity) would be admissible towards claim. Now in the above referred letter they have admitted shortage of 38.592 MT. in 15 plates which have been identified non delivered after comparing the dimensions of plates mention in the packing list with the dimensions mention in the delivery challan. One plate which cannot be identified is taken as average weight which is 1.931 MT thereby admitted short land/short delivery of 16 plates = 40.523 MT. beyond any doubt.”
In this portion, it is clearly mentioned by the complainant-Company that they had admitted shortage of 38.592 MT in 15 plates, which have been identified by non-delivered after confirming the dimension of plates mentioned in the packing list in the delivery challan. One plate which cannot be identified is taken as average weight of 1.931 MT., therefore, admitted short delivery of 16 plates/pieces would be 40.523 MT. beyond any doubt. When this was contention of the complainant-Company in their letter issued to the Insurance Company dated 16/01/2008, we are of the view that the Insurance Company should take short delivery of 16 pieces of weighing 40.523 MT. and therefore, the Insurance Company should pay amount of `11,07,837/- by way of damage in terms of policy in question.
The question is whether policy is covering shortage delivery of articles imported from the foreign country. We have carefully perused and scanned policy issued by the O.P.-Insurance Company. Policy clearly covers non-delivery of each and every package. Short delivery is nothing but the non-delivery of some of the packages which were insured, but not delivered at the Port of destination. So, short delivery is always tantamount to non-delivery of packages and same is strictly covered under the policy in question (Exhibit-B). Thus, we are finding that in repudiating the claim of the insured i.e. complainant-Company, there has been deficiency in service on the part of the O.P.-Insurance Company and since, actual shortage of delivery is of 16 pieces equivalent to 40.523 MT. as per the complainant’s own letter written to the Insurance Company dated 16/01/2008, we hold that in terms of exchange rate available, the complainant is entitled to recover `11,07,837/- towards insurance claim which was lodged by the complainant. In the circumstances, we are inclined to allow this complaint partly. Besides insurance amount, the complainant-Company is entitled to `5,000/- by way of litigation cost. We therefore record our finding on Point Nos.1&2 accordingly and proceed to pass following order :-
-: ORDER :-
1. Complaint is partly allowed.
2. O.P.-Insurance Company is directed to pay `11,07,837/- towards insurance claim lodged by the complainant-Company.
3. O.P.-Insurance Company is also directed to pay `5,000/- as cost of litigation to the complainant-Company and bear its own costs.
4. Copies of the order be furnished to the parties.
