Handelsgesellschaft M.B.H., Austria. ---------- Opposite Party
Present : Sri S. K. Majumdar, President.
Smt. Jhumki Saha, Member.
Sri T.K. Bhattacharya, Member
Order No. 3 0Dated 2 6 / 0 3 / 2 0 1 0 .
Complainant R.P. Exports Pvt. Ltd. by filing a Petition of Complaint on 13.02.2006 has prayed for issuing direction upon the O.P. No. 1, National Insurance Co. Ltd. to pay Rs. 7,04,099.00 alongwith 12% interest from the date of the claim till full payment and compensation of Rs. 50,000.00 and other relief(s) as the Forum may deem fit and proper.
Complainant, a Supplier/Consignor deals in export business of cotton bags and allied goods and O.P. No. 2, Arte Viva placed an order for supply of 480 cartons of processed cotton handbags with string by their Invoice No. 924/2002 dated 28.06.2002 by sea under Bill of Lading No. X001559 HBG dated 13.07.2002 through Haldia Port to the destination at Austria for Invoice Value of US$ 14,520.00 through their local clearing agent at Kolkata.
Prior to dispatch of 480 cartons of cotton handbags the contents were thoroughly inspected by the Surveyor, Mr. Manash Dev Mallick of Kolkata, who issued number despatched Survey Report on 15.07.2002 and confirmed that the goods were dispatched in good order and sound condition, and moreover, the Customs Appraiser also opened 4 number of cartons prior to the goods were boarded on vessel and drew a representative sample and sealed the same with CH Seal No. 106 and allowed the shipment and confirmed that the goods were despatched in good order and sound condition.
At the time of despatch the Complainant obtained Marine Cargo Insurance Policy for sum insured for Rs. 7,82,600.00 covering Risk ICC(A) including war and SRCC as per policy issued by the O.P. No. 1, and premium was also paid accordingly. During 6 days throughout the whole of Europe including Hamburg and lots of areas in Austria there were flooding which caused damage to the consignment. Subsequently, on detection of the damaged consignment the Consignee arranged for inspection of the said consignment immediately and assessed the loss, and accordingly intimated the above to the Complainant and also informed the matter to the O.P. No. 1.
The Surveyor detected that the loss occurred due to contact with fresh/flood/rain water and not by sea water. It was also detected by the laboratory test which favoured that the damage was not occurred due to sea-water but due to fresh water.
When the claim was submitted by the Complainant to the O.P. No. 1 for recovery of the loss, the O.P. No. 1 accepted the claim and processed the same. The Complainant claimed the total value of US$ 15,306.50, i.e., Rs. 7,04,099.00.
The O.P. thereafter replied that the damage was caused due to sea-water and they are not liable to pay the claim and by a letter dated 08.09.2005 they informed that the said loss was occurred not within the prescribed time of the Insurance Policy and accordingly they refused to pay the damage. They also by a letter dated 27.01.2006 informed the Complainant accordingly. The Complainant has alleged that the O.P. NO. 1 deliberately delayed and dragged the matter to deprive the Complainant from its legitimate claim, and accordingly on service of Lawyer’s notice the Complainant has filed this case against the O.P. No. 1 and Consignee, O.P. No. 2 who is a necessary Party in this case but no relief has been sought for against ;the O.P. No. 2.
O.P. no.1, National Insurance Co. Ltd. has contested this case by filing a Written Statement on 17.05.2006 stating therein that the case is not maintainable in view of the fact that the petition of Complaint does not contain allegation of deficiency of service.
They have repudiated the claim of the Complainant after due application of mind to the Report of the Surveyor dated 14.10.2002 and it has, inter-alia, been contended that it is a settled principle of Law that if the Insurer on due application of mind repudiates the claim the act of Insurer cannot be challenged or questioned as an act of deficiency of service.
They have also alleged that there is no evidence of damage during the transit for the negligence on the part of the Insurer. The Complainant did not take any insurance for shifting of the container from Maheshtala to Haldia Port. The buyers M/s. Arte Viva was supposed to arrange for insurance at its own cost which is confirmed by ‘Freight Payable At Destination’ endorsement on Bill of Lading itself. During processes of claim the lack of due care on the part of the Complainant was found. The Complainant on advice by the Buyer in their letter dated 25.03.2003 to arrange insurance in India and subsequently the Complainant forwarded a letter dated 22.10.2003 of its Banker confirming realization of the premium amount from the Buyer in an approved manner. Buyer was arranging insurance at its end for imports from other countries, like Turkey, Portugal, China, Hongkong etc. whereas the Complainant did not have any insurable interest from Haldia Port to Feldkirch, Austria, and accordingly Complainant had no insurable interest, and so it is not enforceable by common law, and so the Complainant has no claim at all. The Surveyor’s Report shows “Cotton Bags” were found wet and moulded and the cartons were wet, the goods had bad smell. The samples of packing materials were subjected to chemical test to conclude that there was no sea-water damage. There was no damage to the container. The damage was either caused by loading the goods in wet condition into the container or the container was standing in water and it was coming in from the bottom side. So, it can be concluded that the container was in wet condition prior to shipment appeared to be the most probable cause of damage, which was not covered under the Policy of Insurance and the pre-despatch Inspection Report claimed to be correct by the Complainant is a fabricated one, and an after-thought and totally unreliable, and accordingly, there is no deficiency of service on the part of the O.P. No. 1 and the case is liable to be dismissed.
DECISION WITH REASONS
Before discussing the merit of this case we like to take note of the fact that even inspite of sending notices to O.P. No. 2 its name has been expunged, vide Order No. 13 dated 20.06.2007 and the Complainant in its Petition of Complaint has stated that it has no grievance nor any claim against O.P. No. 2.
Admittedly, O.P. No. 2 placed an Order for 480 cartons of processed cotton handbags with string by their Invoice No. 924/202 dated 28.06.2002 by sea and during transit overseas it is the specific grievance of the Complainant that due to contact with fresh/flood/rain water the goods were damaged and accordingly he sustained huge loss and the goods were damaged “Not by Sea-water”. And he informed about it to the O.P. No. 1 . But, even after processing the claim of the Complainant the O.P. No. 1 ultimately repudiated his claim on the ground that the goods were damaged due to sea-water and so there is no deficiency of service on the part of the O.P. No. 1 and as such they are not liable to pay any damage or any compensation to the Complainant.
It appears from the Marine Cargo Insurance Policy issued by O.P. No. 1, Annexure-1, that 480 number of cartons containing cotton printed bags were booked for journey from Haldia, India to Feldkirch, Austria by the Complainant, who is the assured in the present case. It shows also that Basic Premium, Total Extension Premium etc., and it is also evident from the Annexure-1 that in the event of loss or damage which may result in claim under this Insurance, immediate notice must be given to TRANSPACK”. It appears from Annexure 6 dated 27.02.2003 addressed to O.P. No. 1 by O.P. No. 2 wherein it has been stated “This is to inform you that we have debited the full Invoice Value, i.e., the entire value of the claim to the shipper, M/s. R. P. Export (P) Ltd., and hence we request you to please arrange settlement and payment of the claim in favour of M/s. R. P. Export (P) Ltd. and their discharge be accepted as full and final and they are fully competent and authorized by us”. We have also perused the Bill of Lading, Annexure-2 wherefrom it appears that the Port of Loading is Haldia and Port of Discharge is Hamburg in respect of 480 cartons containing 1,20,000 pieces.
For the said damage the Complainant made a claim, vide Annexure-5 by submitting a claim bill showing total claim as US$ 15,306.50.
Complainant in its letter dated 16.12.2005 addressed to the O.P. No. 1 has categorically stated that on the basis of observation of Surveyor “it is evident that the insured cargo was damaged due to contact with flood/rain/fresh water during the transit and is covered under the terms & conditions of the policy issued. It has, inter-alia, been stated in Serial No. 3 that “During those days there were floodings all over Europe (also Hamburg and lots of areas in Austria) and the container was standing somewhere in Hamburg or later on in water during this flood”.
On the other hand, on the basis of Surveyor’s Report it has been alleged that it is a settled principle of Law that if the Insurer repudiates the claim after due application of mind to all matters concerning the claim the act of Insured cannot be challenged or questioned as an act of deficiency of service.
But, it is not evident on perusal of the record including the documents of the O.P. No. 1 that there was “due application of mind to all matters concerning a claim”. 480 cartons containing 1,20,000 pieces of Cotton Bags with Strings were put to shipment under Bill of Lading on 13.07.2002 through Haldia Port to Austria and at that time the goods were found not in wet condition and it was properly checked by the concerned authorities. And it is the specific case of the Complainant that before despatch the Complainant obtained Insurance Policy from O.P. No. 1 and this has been categorically mentioned in the Affidavit of the Complainant filed on 11.09.2006. It is also the specific case of the Complainant that for non-settling of claim of Rs. 7,04,099.00 he has filed this case. He has regularly paid the premium as we have already said. O.P. No. 1 has alleged that the Complainant has not adduced any evidence of damage during transit. We cannot accept this contention of O.P. No. 1 because it is the main allegation of the Complainant that the goods were damaged and loss was incurred due to contact with flood-water and not due to sea-water, and this is also evident from the Surveyor’s Report. And this simply highlights the deficiency of service committed by the O.P. no.1 for which the Complainant is entitled to claim for damage of the insured goods payable by the Insurer, National Insurance Co. to the Insured, viz. here, the Complainant.
Repudiation of claim by the Insurance Co. against the damage is very easy, but we are unable to accept it, particularly when the Complainant as on Insured Person, regularly paid the insurance premium. Accordingly, we cannot accept Annexure-A of the O.P. No. 1 as sacrosanct repudiating the claim of the Complainant only on the basis of the Survery’s Report.Moreover, it appears from Annexure-C that they are not sure that how the goods were damaged as it is stated “it appears damage was caused either in lading the container with goods in wet condition or by the container standing in fresh-water”. We have already said that there is no evidence that the goods were put for shipment in wet condition. Moreover, it appears from the Report of the Transpack”. In paragraph 3 dealing with cause of damage ‘the set of photoprints we received (attached to this Report) are showing the consignments was wet and mouldy after delivery but not in an extent that it is clear the water came from outside the container. We emphasize the words “it is clear the water came from outside the container.”
We also focus our attention on the paragraph running as ‘we want remark that was in August, 2003 bit of flood catastrophe in Austria. The flood was mainly from August 13, to August, 18. Nevertheless, there is not any remark there were found traces on the container that it was standing in water. In our experience always there are traces on the container when it was standing in water. Moreover, it also appears from Annexure-E which runs as ‘hence the Survey Report could not confirm that the loss occurred due to operation of any peril covered under policy, and as such reported damage does not come under the purview of the Policy No. 00900/21/02/4300132. So, we are not sure and confirmed about the actual cause of damage, and accordingly, we cannot deny the contention of the Complainant specifically made out in paragraph 10 of the Petition of Complaint which runs as “that after assessment by the Surveyor at final destination in respect of the damaged consignment it was detected that the loss was occurred due to contact with fresh/flood/rain water and not by sea-water.”
Actual truth came out when we consider Annexure-G relating to Billing of Lading indicating that the Customs Department received the goods on 08.02.2002. Relevant portion of the Bill is as follows : G.C.B. Haldia : S/opened 10 ctns Sl. No. 34, 42, 69, 99, 79, 131, 255, 326, 417, 389 for examination. Opened 10 cartons for examination, checked declaration with the S/Bill and found in order, also complied with DEPB requirement as per DEPB P/N/S/O Nos.15/97 & 20/97 checked and endorsed. This simply belies the allegation of the O.P. that the goods were put for shipment in wet condition. We have also said that there was flood in Austria at the relevant period of time. So, in view of this position and more particularly, when we take into consideration of the remarks of G.C.B., Haldia, vide Annexure-G. We think that there is no difficulty to observe that there is merit in the case of the Complainant and accordingly, the Complainant is entitled to get relief as prayed for as because the deficiency of service by the O.P. no.1 is proved beyond doubt.
Hence ordered
that the Petition of Complaint is allowed on contest against O.P. No. 1, R. P. Exports (P) Ltd. O.P. No. 1 is directed to pay Rs. 7,04,099.00 and to pay Compensation of Rs. 20,000.00 and Litigation Cost of Rs. 5,000.00. So the total amount of Rs. 7,29,099.00 is to be paid to the Complainantwithin 45 days from the date of communication of this Order, failing which it will carry interest @ 10% per annum till full realization.
Fees paid are correct. Supply Certified Copy of this Order to the Complainant on payment of prescribed fees.
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