In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No.452/2009 .
1) North Eastern Regional Institute of Science & Technology ,
Through Dy. Registrar, Nirjuli-791109, Arunachal Pradesh, India. ---------- Complainant
---Versus---
1) National Insurance Co. Limited,
3, Middleton Street, Kolkata-700 071.
2) Overnite Express Limited, Domestic & International Courier,
7A, Tiljala Road, Kolkata-700046. ---------- Opposite Party
3)) M/s. Eastern Clearing & Forwarding Agency (P) Ltd.,
501, Mangalam, 24, Hemant Bose Sarani, Kolkata-700001.
4) Inkarp Instrument Services,
1-2-45/1, Street no. 2, 2nd Floor, Kakateeya Nagar Colony,
Habsiguda, Hyderabad-500007. ---------Proforma Opposite Parties
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri, Member
Smt. Sharmi Basu, Member
Order No. 27 Dated 31/12/2012.
Smt. S. Basu, Member
In a nutshell the case of the complainant in short is that complainant viz. North Eastern Regional Institute of Science and Technology placed an order before one German company viz. M/s Retsch Gmb H for transportation of certain equipments on 27.1.07. As per complainant the total price of the equipment so ordered was Euro 5250. Complainant received those equipments on 17.7.07 and unfortunately in that transit not only the packing of the said equipments, but also the equipment themselves got badly damaged and by the time those reached the complainant the products were badly damaged which was accordingly intimated by the complainant to the aforesaid German company on 17.7.07 and that company deputed M/s Inkarp Instrument Services (proforma o.p. no.4) for inspection and on 7.8.07 a report was prepared from which interalia found that the damage which had been done to the equipment could not have happened except in the transit. Thereafter on 19.8.07 complainant by a letter to o.p. no.2 requested o.p. no.2 to provide the details as to how the materials were damaged during transit from Kolkata to the company of complainant, so the complainant could fix responsibility for compensation. A copy of that letter was also sent to clearing agent, i.e. proforma o.p. no.3. On 20.8.07 complainant specifically wrote to that clearing agent, proforma o.p. no.3 informing that the equipment which had been delivered to the complainant through o.p. no.2 had been so delivered in damage and broken condition. Proforma o.p. no.3 also requested complainant to take up the matter with o.p. no.2 and to send to complainant complete set of insurance papers for the insurance policy covered from Kolkata to Nirjuli, Arunachal Pradesh for the aforesaid equipment with o.p. no.1 (insurer). Pursuant to such letter complainant on 5.9.07 served the claim intimation letter to o.p. no.1 in the prescribed format detailing therein the damage caused and loss incurred by the complainant was estimated to be Rs.3,20,594/- and thereby to depute a surveyor for assessing his loss. Upon receipt of complainant’s claim o.p. no.1through its letter dt.10.9.07 informed complainant that one Sri S.K. Chowdhury had been requested to assess the loss which would be reimbursed if the claim was found to be otherwise in order. Ultimately, the surveyor appointed by insurance company surveyed the damage and on 25.9.07 the said surveyor submitted a survey report assessing the loss of Rs.2,93,493.38 and the surveyor also sent his bill for his professional fees and expenses for the survey amounting to Rs.14,360/- which was duly cleared and paid by the complainant with a covering letter dt.15.10.07. After that though the complainant has run from pillar to post for settlement of his claim and to be compensated by o.p. nos.1 and 2, but all in vain. Hence the case was filed by complainant with the prayer contained in the petition of complaint.
O.p. nos.1 and 2 had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. Proforma o.p. nos.3 and 4 did not contest the case by filing w/v and matter was heard ex parte against proforma o.p. nos.3 and 4. Ld. lawyer of o.p. no.1 in the course of argument submitted that the case is barred by limitation and admitted that complainant took Marine Cargo Policy issued by o.p. no.1 to cover transit under AWB no.87020408 dt.12.7.07 against risk under “Basic Cover” and this insurance covers except as provided in clause 2, 3 and 4, the risks physical loss or damage to the insured goods caused by:-
(a)(i) Fire,
(ii) Lighting,
(iii) Breakage of bridge.
(b)(i) Collision with or carrying vehicle,
(ii) Over tuning of the carrying vehicle,
(iii) Derailment or accidents of like nature to the carrying railway wagon / vehicle and the same is liable to be dismissed.
As per o.p. no.2 the instant case is pre-mature, bad in law and misconceived and the same is dismissed with cost.
Decision with reasons:-
We have gone through the pleadings of the parties, evidence and documents in particular. As proforma o.p. nos.3 and 4 have not appeared this Forum even after valid service of notices, the instant case has been heard ex parte against proforma o.p. nos.3 and 4 and the submission of the complainant in relation to proforma o.p. nos.3 and 4 and the relevant documents have been unchallenged piece of testimony and this Forum has no alternative but to rely on those documents.
From the record it appears that it is beyond doubt that after making schedule payment complainant gave the responsibility to o.p. no.2 for transportation of some goods from Kolkata to the company of complainant and complainant received on 17.7.07 the goods in damaged condition. It is also needed to be mentioned that damages of goods are confirmed by the surveyor of o.p. no.1 and the from the survey report it reveals that the loss suffered by the complainant had been assessed at Rs.2,93,493.38. From the record it is crystal clear that o.p. no.2 being service provider after repeated requests neither served any loss assessment report nor compensated the complainant for the aforesaid loss and this act on the part of o.p. no.2 amounts to deficiency in service being service provider to its consumer / complainant. We are of the opinion that o.p. no.2 failed to transport the goods in question in its proper form and due to their negligence goods had been badly damaged. Therefore, o.p. no.2 could not shirk off the responsibility to compensate the complainant for the loss of complainant due to failure of o.p. no.2 to transport the goods in proper form.
To decide whether o.p. no.1 is liable to compensate the complainant or not following discussion is advanced:
The points of period of limitation is raised by ld. counsel of o.p. no.1 is not acceptable by this Forum as from the record it is crystal clear that complainant has made continuous correspondence with the concerned companies for assessment of loss and also for compensation for that loss continuously from 17.7.07 and o.p. no.2 repudiated the claim on 21.2.08 and the instant case has been filed by complainant on 2.12.09 and which is very much within the statutory period of limitation and this is also needed to be mentioned that the judgment has been referred by the ld counsel of complainant viz. the case of Kandimalla Raghaviah & Co. vs. Ntional Insurance Co. Ltd. & Anr. Ld. lawyer of o.p. no.1 has raised the point of clause 2, 3 and 4 of the policy in question and has stated that the claim of the complainant is not payable as per those clauses. But in this regard it is our view that only for technical plea once justified claim should not be left apart wherein particular loss has been assessed by their surveyor admitting the loss in question.
In view of the findings above we further hold that o.p. no.2 as ties with o.p. no.1 and as such o.p. no.2 cannot shirk off its responsibility from making payment of the claim amount which was assessed by their own surveyor. In view of the findings above both o.p. nos.1 and 2 have deficiency in service being service provider to their consumer / complainant and complainant is entitled to relief.
Hence, ordered,
That the case is allowed on contest with cost against o.p. nos.1 and 2 and ex parte without cost against proforma o.p. nos.3 and 4. O.p. nos.1 and 2 are jointly and/or severally directed to pay Rs.2,93,493.38 (Rupees two lakhs ninety three thousand four hundred ninety three and paise thirty eight) only being the cost for the damage of the goods in question and are further directed to pay compensation of Rs.50,000/- (Rupees fifty thousand) only for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees ten thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
