Haryana

Ambala

CC/242/2021

M/s Shiv Shakti International - Complainant(s)

Versus

National Insurance Co Ltd - Opp.Party(s)

D.S. Chhillar

19 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	242  of 2021
Date of Institution	:	10.08.2021
Date of decision	:	19.01.2024

 

M/s Shiv Shakti International, Village Samlehri, NR Mithapur, Ambala Cantt, Tehsil and District Ambala, through its partner Sh. Ankur Garg.

……. Complainant

   Versus

1. National Insurance Company Ltd. Regional Office, SCO 57, Ist Floor, Sector 26-D, Madhya Marg, Chandigarh (U.T) 160019.
2. Regional Manager, National Insurance Company Ltd. SCO 57, Ist Floor, Sector 26-D, Madhya Marg, Chandigarh (U.T) 160019.
3. The Branch Manager, National Insurance Co. Ltd., 106, Railway Road, Ambala Cantt.

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri D.S.Chhillar, Advocate, counsel for the complainant.                                                                                                                                Shri Mohinder Bindal, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to pay a sum of 2090.5 USD which comes to Rs.155409.37 as on the date of notice as per the exchange rate alongwith interest @ 18% per annum, till the date of its realization besides payment of compensation for mental agony and harassment or grant any other relief which this Hon’ble Commission may deems fit.

2.           Brief facts of the case are that the complainant is in the business of shelling, exporting etc., of different varieties of rice. He had to supply the rice to the purchaser through Cargo, and for that the complainant got the consignment insured through OPs, vide policy no. 420100/21/16/4200000004 on making payment of premium of Rs. 70,000/- to the OPs, which included all types of services against damage and delay. Consignment of 2400 bags of rice vide invoice no. SSI/236/2016-17 dated 1-08-2016, vide bill of lading no. NYKSA MDS 02495600, dated 11-08-2016 was sent through CCNI ARAUCO, to consignee Kamran Import and Export Ltd, Greenford. CCNI ARAUCO caught fire and number of consignments on board got damaged but the consignment of the complainant was safe. On repeated e-mails sent by the complainant to the OPs, it was informed that the Average Adjusters will first quantify the loss incurred and thereafter will release the consignment on furnishing security. Salvors quantified the salvage security from  the OPs and as such, the OPs directed the complainant to furnish the security amount, although it was the duty of the OPs. Still, the complainant paid the same to the tune of 2090.5 USD, and thereafter the consignment was released. The OPs pleaded that German Authorities won't accept guarantee by National Insurance i.e.  the OPs and their partner i.e. WK Webster & Co. Ltd., and as such the complainant had to deposit security in cash. After paying the security of 2090.5 USD, the complainant had been in regular touch through e-mails, with the OPs, for refund of 2090.5 USD which comes to Rs. 1,56,211.99 as on the day of issuance of notice but to no avail.   However, vide mail dated 28-08-2018, the OPs informed the complainant that "It is for the party that deposited the cash deposit with the Average Adjuster to request its reimbursement. This is a simple step to prevent third parties from seeking to obtain these funds, when they are not entitled to them" and further advised to claim the security amount directly from the Average Adjuster and further directed the complainant to contact WK Webster for further assistance. When the complainant has hired the services of the OPs for sending the consignment from "anywhere from India to anywhere to world" and it included Vessel/Road/Rail, then the question of depositing of security amount by the complainant doesn't arise. Under compelling circumstances, notice  dated 27-08-2020 was also sent by the complainant to the OPs the same was received back with the reason "left address". Thereafter the complainant sent Legal Notice to the OPs afresh, in the matter, on the correct address but to no avail.  Hence this complaint.
3.           Upon notice, the OPs appeared and filed written version wherein they raised preliminary objections to the effect that the present complaint is barred by limitation; the present complaint is not maintainable; this Commission is not vested with territorial jurisdiction to decide this complaint; the complainant has suppressed the material facts from this Commission; the complainant has not approached this Commission with clean hands etc. On merits, it has been stated that the complainant has tried to manipulate the facts for imposing this false and frivolous complaint just to make a case and to have such amount for which he is not legally entitled to. The insurance policy in question was issued subject to certain terms and conditions, for different consignments to the sent by the complainant, through vessel/road/rail to anywhere in world against total sum insured of Rs.20 crore with limit of per transit to Rs.80 lacs. As a matter of fact the reported claim of the complainant without going into the maintainability aspect of the claim was duly entertained on receipt of the intimation in the year 2016 about the alleged loss to his consignment overseas but at the same time, the complainant was informed to deal the matter of its own being not concerned with the OPs, as the matter relates to some surety about the release of the consignment of the complainant at its destination. The alleged loss to the consignment of the complainant took place due to some loss on ship which had to be indemnified by the ship company on average basis to be calculated later on and since the competent authority of the German Govt. did not entertain the authorized agent of the OPs at Germany to deal the matter, therefore,  the surety was to be given by the complainant and the refund of the said surety amount is also to be entertained through the complainant. The complainant was clarified every time about the legal preposition as the surety amount cannot be treated as a loss amount which was liable to be refunded later after due verification and calculation. The complainant was convinced being very much aware of this preposition and fate of his claim but now after such a long period in order to put undue pressure, has filed this false complaint by exploiting the process of law. Rest of the averments of the complainant were denied by OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of Ankur Garg partner M/s Shiv Shakti International, Village Samlehri NR Mithapur, Ambala Cantt. Tehsil and District Ambala as Annexure CW1/A alongwith documents as Annexure C-1 to C-19 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs tendered affidavit of Raman Chhabra, Div-Manager, authorized signatory, National Insurance Co. Ltd., Divisional Office, Ambala as OP-1/A and closed the evidence on behalf of OPs. 
5.           We have heard the learned counsel for the complainant and learned counsel for the OPs and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by not refunding the security deposit of USD 2090.5, made by the complainant on the asking of the OPs to ALBA Tross Adjusters Limited for  release of container (UK Consignment) on 07.10.2016, despite the fact that number of  requests were made by the complainant, the  OPs are deficient in providing service.  
7.           On the other hand, learned counsel for the OPs while reiterating the  objections taken in the written version contended with vehemence that the officials of the complainant were number of times informed to approach directly to ALBA Tross Adjusters Limited, with whom security of USD 2090.5 was deposited on 07.10.2016, yet, they failed to approach it for getting the security deposit and now they are stopped for seeking the said relief, as the complaint is hopelessly time barred.  
8.           Before going into the merits of this case, the main question that arises for consideration is whether this complaint is filed within limitation or not i.e. whether this complaint has been filed within a period of 2 years from the  date of cause of action or not. It may be stated here that it is clearly coming out from the record that the disputed amount of USD 2090.5 was paid by the complainant, as security deposit to ALBA Tross Adjusters Limited for release of container (UK Consignment) on 07.10.2016, Annexure C-14. However, it is also established from the email dated 03.01.2019, Annexure C-16 that the complainant intimated the OPs that he has been asking for the refund of USD 2090.5 from the last two years i.e. from 2016 itself and he had also requested to refund the same vide email dated 20.12.2018 but to no avail and therefore it will be taking legal action. Relevant part of that email is reproduced hereunder:-

 

​                      “...TRAIL EMAIL DATED 20/12/18-IT IS REALLY BAD THAT TILL NOW EEN AFTER TWO YEARS PASSED                         AND WE DID NOT GOT OUR MONEY BACK WHICH WAS PAID AS SECURITY IN ONLY ONW                                               INSTRUCTION BY  OUR INSURANCE COMPANY. 

 

PLEASE DO LET US KNOW IF YOUR COMPANY IS NOT ABLE TO REFUND OUR MONEY BACK WHICH WAS ASKED BY THEM TO DEPOSIT AS SECURITY SO WE CAN START OUR OTHER PROCESS FOR LEGAL ACTION………”
 

Thus, to our mind, from the sequence of events narrated above, it can easily be said that the cause of action arose in favour of the complainant in the year 2016 itself, when it sought refund of USD 2090.5 from the OPs, yet, filing of this complaint on 10.08.2021 is clearly barred by limitation. Mere exchange of emails or any other letters between the parties qua refund of USD 2090.5 aforesaid after 2016, will not extend the period of limitation which started in the year 2016 and lapsed in the year 2018. Because it has been held above that this complaint is barred by limitation, as such, in our considered opinion, even then if we proceed further on merits of this case, it would be nothing but commission of an illegality on the part of this Commission. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court in the case of State Bank Of India vs M/s. B.S. Agricultural Industries (I), CIVIL APPEAL NO. 2067 of 2002, decided 20 March, 2009,   wherein it was held as under:-           

• If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside……”

 

9.             For the reasons recorded above, this complaint stands dismissed being barred by limitation, with no order as to costs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

                  

aNNOUNCED 19.01.2024

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President