SRI.K. VIJAYAKUMARAN, PRESIDENT.

            This is a complaint for realization of Insurance amount, compensation and costs.

The averments in the complaint can be breiefly summarized as follows:

The complainant is the manufacturer of rubber mats and exporting their products all over the world  Teknor Apex , an American based company  based company had placed two purchase orders  for 800 Nos of of Hercules mat at the rate of U.S  dollars 13.4 and for  13 000 Nos of Ramp mat at the rate of U.S. dollars 9 per piece having a total value of  U.S.  dollars 22420 .    The complainant manufactured the rubber  mats  at the complainant’s factory at Chandanathoppe, Kollam .   The agent of the buyer one Mr. Mohinder Satpal, visited the complainant’s factory  and physically verified the  export quantity of the mats and  was satisfied.   Thereafter the  complainant took two Marine insurance policies for two the  types of mats stuffed in two  containers from 1^st and 2^nd opp.parties having unit No.570504  vide policy NOs. 570504/21/04/4300011 and 570504/21/04/4300012 dated 26.5.2004  for above said consignments.    The 3^rd opp.parties sent two containers bearing No. GATU 0649200  and GATU 1121686 on 27.5.2004 on the requests of the complainant to his  factory Before the stuffing of the  consignment into the two containers, the containers were subjected to physical verification by the customs officials and opp.parties 1 and 2 .   Thereafter light test  to find  out the possibility of leakage, rusting of the containers  etc. and it was approved by the customs officials  and the 1^st and 2^nd  opp.parties.   The floorings of the containers could not be subjected to the light test  because the containers had been place4d lupon the platform of the trucks.   There was no sign of leakage and rusting .   The loading and stuffing of the goods in the consignment into the containers has been effected after careful scrutiny and physical verification of the containers and the possibility of the water damage wetness, moistuerisation  within the containers had been totally ruled out.    Before the loading and stuffing of the said goods  The wooden pallets which had been used as packing materials were manufactured  with treated wood  and they were free  from all kinds of wetness at the time of loading of the goods.  And there after the goods  were despatched. after sealing the container left by the customs officials .  There was  a forecast by the metrological department  that the weather condition would be rainy and very cloudy due to early monsoon..  On 28.7.2004  the  bill of loading having No. DELPKT 04051729  was drawn by the 3^rd opp.party being the shipping agent and cargo suppliers  based at Delhi.  The shipment of the consignment  was made on FOB basis freight is to be paid by the buyer at the destination.    The destination  of the shipment was to United States.  Till the port of discharge which was New York the  containers were to be transported  by rail or road from New York to Pawtucket wherein the buyer’s   warehouse was situated.  On 20.7.04 the complainant received a communication  from the buyer’s representative namely Mr. Peter Larkin with photographs informing that the container consisting of 800 Nos.  of Hercules mat have been  received with Pallet [Skids] soaked and the goods in the consignment ie.   the mats have been infested with moid and mildew and there was sludge on the container floor.  The complainant received  another mail on 21.7.04  informing that the container holding 1300 Nos of Ramp mat had been found wet and water damaged and the buyer sent photographs through  E-mail of the said consignment also.  The buyer had expressed their inability to keep the goods in the consignments in the warehouse of the buyer in the light of anticipated practical problems  that might come across  in the course of survey by the Insurance Company,  Probability  because of the contamination of other goods stored in the warehouse etc.  Upon getting the message from the buyer the complainant activated the EWIG  International Marine Corporation Lavonia, New Jersy who are the surveyors and settling agents of the 1^st and 2^nd opp.parties in USA for conducting a spot survey of the so called water damage of the goods in the consignments.  The complainant indicated to the buyer to jet wash and dry the mats which was not acceptable to the buyer due to lack of space and to avoid outside agency to do such an expensive procedure.  The complainant alerted the buyer and EWIG International to proceed with the survey.  Thus the EWIG International  and M/s. Sealink Internation Inc. CA being the representative of the 3^rd opp.party alerted  for joint survey of containers and consignments.   On 23.7.2004 inspection was done and preliminary report having number  was drawn up by DWIG International Marine Corporation.  On 6.8.2004 EWIG International Marine Corporation unilaterally and arbitrarily issued a biased and final report  through which complainant’s claim was prompted  to be repudiated on the grounds that the goods in the consignment were contaminated and sweat occurred and it was further alleged that the pallets [skids] were green in colour.    But the  inspecting agency   ignored  the fact that greenish colour of the pallets were due to chemical treatment of the pallets which could be evidenced by the photograph of the pallets  taken at the time of loading the consignments .  The complainant requested EWIG International Marine Corporation  to do silver nitrate test and  later  it was  alleged by EWIG International Marine Corporation that presence of chloride  had been ruled out as per the test.  The EWIG International Marine Corporation  in support  of survey report had taken up untenable contention by illegally, irregularly and illogically ruling out, the possibility of two containers being simultaneously damaged through external factors.  Upon receipt  of original documents by the representative of the buyer, EWIG International Marine Corporation entered into a finding unilaterally and arbitrarily that the loss or damage did not fall under the  purview of the policy and thereby recommended the claim of the complainant to be repudiated.  The complainant under protest effected payment of US dollars 22420 to the buyer.    The survey report  prepared  by EWIG International   was not scientific and the reasoning in the survey report appeared to be partial  and biased.    The complainant is entitled to get compensation for the loss suffered which is to be recovered from the opp.parties 1  to 3 jointly and severally.   The complainant’s loss and damages  estimated at Rs.14,13,900/- which is equivalent to  US dollars 31,420/-  and the opp.parties 1 to 3 are liable to compensate the complainant.  Hence the complaint.

          The opp.parties 1 and 2  filed a joint version contending, interalia, that the complaint is not maintainable either in law or on facts.  The definition complaint, complainant Consumer dispute services as defined  in section 2 [1] of the Consumer Protection Act  do not cover the claim madeout in the complaint.  It is admitted that the 2^nd opp.party had issued two specific voyage policies with the risk of Institute Cargo Clause [A], infavour of the complainant for 2 different containers carrying 1,300Pcs of Competitor rubber mats and 800 Pcs of Hercule4s rubber mats, shipped by the complainant from  the factory at Chandanathoppe, Kollam to the consignee M/s Teknor  Apex, USA.  The consignments  were insured with this opp.party for US dollars 11,792 and 12,870.  The consignments were shipped  in two different containers provided by the  3^rd opp.parties.    Both the containers were thoroughly and properly checked and inspected by the complainant inroder to rule out any damages to the containers.  The complainant had also conducted light testing in the containers .  The above containers were at the disposal of the complainant in his factory premises before loading the cargo and there was ample opportunity for the complainant to inspect the physical condition of the containers and to point out any defect whatsoever as to the fitness, safety aspects and quality of the containers.  The cargo  were loaded into the containers after full satisfaction of the complainant  about the fitness, quality and condition of the containers against the possibility of any leakage water entry or any other risk due to the fitness and quality of the containers.  The allegation made in the complaint  that the flooring of the containers could not be subjected to the light test because the same  was placed upon the platform of truck during the inspection  is baseless and false.    The customs officials  for the opp.parties 1 and 2  have no  any report  that the light test and fitness  and certified by them.    The containers were properly sealed after packing in the presence of the complainant and customs officials in their full satisfaction  before despatch and there was no complaint about the sealing procedure and its quality etc.  The opp.parties 1 and 2 never verified or were convinced about the quality and condition of the packing materials and the pleadings stated in the complaint that the wooden pallets which were used as packing materials were manufactured with the treated wood and they were free from all kinds of wetness at the time of loading of the rubber mats into the containers are not matters brought to the notice of the opp.parties 1 land 2 and hence denied.  On getting intimation from the complainant and his buyer  M/s. Teknor Apex USA informing that the mats in the consignments had been delivered with water damages to the  cargos, the overseas claim settling agent  of this opp.parties M/s Ewig International Marine Corporation  had arranged  survey of the consignment at the consignees storage place inroder to determine the cause and extent of damage reported by the complainant.  The Marine surveyor Mr. Ed. Romans  had visited the Teknor Apex Warehouse  for conducting survey in the presence of Mr. Peter Larkin, the representative of the consignee.   The surveyor at the time of his examination found that almost all the original packing were green in colour apparently from mold and the wooden pallets were  noted with thick, white mold in various areas of the wood used for packing the rubber mats..  All the  nails used for wooden packing observed very rusty and were corroded..  The surveyors took samples of the rubber mats from both the containers for conducting Silver Nitrate test.  The surveyors thereafter conducted silver nitrate test in the samples collected at the time of survey in order to rule out the presence of chlorides due to sea water entry.  They came  to a definite conclusion  that  the damages were caused as a result of the condensation within the shipping containers and not due to any external source.  The surveyor also observed that the cargos were wet when loaded into the containers and subsequent fluctuations in temperature during voyage caused moisture to condense on the internal surface of the containers and to drip down on the cargo.  The surveyor clearly ruled out the possibility of the above damages from an external source such as entry of water into the containers.  It is also opined that it is unlikely that damages from exeternal source to two separate containers would have occurred simultaneously.  The consignee who took delivery of the containers did not make any complaint about any sort of damage to the containers and they were best placed to ascertain the physical condition of the containers.  The allegation made in the complaint against the surveyor regarding the procedure adopted by  him is totally baseless and false and hence denied.  On the basis of the  survey report  M/s Ewig International Marine Corpn informed  the consignee of the complainant with a copy to the complainant as per letter dated 13.9.2004 about their inability to entertain the claim stating specific reasons for repudiation of the claim.  The surveyor  further reported  that the damages resulting from condensation is not a risk covered under the terms of the insurance policy .      Loss due to condensation proves that the packing of cargos were  insufficient or unsuitable for the transit.   Therefore the claim was correctly repudiated as  per terms of the policy.  The allegations made in the complaint  against the finding and report of the surveyor  in para 12 of the complaint is totally baseless and false.   The consignee of the complainant never made any complaint regarding the condition of the containers, seals of the containers or any damage whatsoever in the containers during voyage or transportation at the time of taking delivery .  Had there been any such complaints, the consignee should have either noted the same in the delivery form or lodged a written complaint to the shipping agent .  The containers were in sound condition and the seals of the containers were also  infact  at the time of taking delivery.  The allegation that M/s. Ewig International Marine Corpn.  has declined the request of the complainant for a joint survey is also false and hence denied.    The complainant infact never made such a request at the relevant time.  No representative from M/s. SeaLink was made available lby the consignee or complainant for a joint survey.  The  survey was conducted in the presence of the complainants buyers the survey was conducted by the surveyor by meticulous  examination of various aspects.  The opp.party had repudiated the claim of the complainant on the basis of the finding of the surveyors and the recommendation given by the surveyor about the cause of damage sustained to the insured goods and the non coverage of the policy of the actual cause of the damage sustained to the goods..  The opp.party had repudiated the claim after due application  of mind   The reasons given by the complainant to the cause of damage sustained to the goods are not based on any authentic findings   Thesurveyor informed the consignee that the consignments could either be cleaned or  if that proved to be cost prohibitive that they could be sold in the secondary salvage market inorder to reduce the net loss.  The Ewig Internation Corpn  visited the warehouse of the consignee on 30.3.2005 at the time of the visit it was found that majority of the rubber mats except 300 Pcs Hercules mats and 750 Pcs. of Competitor mats have been cleaned and sold by the consignee.  The  Ewig International  Corpn requested the consignee V/s Teknor Apex to hold the remaining mats pending with them in order to conduct salvage sale through them.  M/s. Ewig International  Corpn contacted local salvage buyers and obtained tentative offer for salvage mats on the basis of the samples provided to them which were picked from the consignees warehouse.  A prospective buyer Mr. Mike Mentuck offered  dollars 15 per piece of Hercules mat and dollars 12 per piece of Competitor mats after commission and cleaning expenses  etc.    But the complainants consignee refused to hand over the salvage mats to M/s Ewig Internationam Marine  Corpn the overseas claim settling agent informed the consignee regarding the offer received by them from the salvage buyers for the salvaged mats on the basis of the samples provided to them.  The opp.party on 5.5.2005 sent a letter to the complainant requesting them to hand over the rubber mats in the custody of the consignee to the claim settling agents of the opp.parties M/s. Ewig for conduct of salvage sale.  The allegation made in the complaint that the complainant had effected payment of US dollars 22420 to his buyer at abroad under protest is baseless and false and hence denied.  The complainants pleadings  in this regard is quite contrary to the salvage sale procedure adopted by the consignee.  The complainant as per letter dated 28.5.2005  have informed the opp.party that the buyer of the complainant had already sold the salvaged rubber mats, except with a few remaining unsold.  The buyer of the complainant do not furnish any accurate details about the sale conducted by his consignee and the actual revenue received by them about the above sale. Though M/s Ewig Internation Marine Corpn informed the complainant buyer about the offer received from the salvage buyers of the complainant as per letter dated 22.5.2005 informed the claim settling agent of this opp.party that despite of their request, they have sold the entire rubber mats with them.  The complaint is silent about the salvage proceeds received by the consignee.  Since the consignee preferred to sell the entire salvage, despite informing the details of offer received by Ewig, it can be reasonably inferred that the consignee has realized better value .    If the buyer of the complainant permitted salvage sale of the remaining rubber mats through the claim settling agent of this opp.party  there would have been  a net return of US dollars 12825.   The buyer of the complainant  in an arbitrary manner without obtaining any offer from the salvage buyers took a decision to sell this  salvage consignments without any intention to minimize the loss.  The buyer of the complainant did not co operate with the claim settling agent of the opp.party  for obtaining  the quoted rates from the salvage  buyers in the market .  The buyer of the complainant infact sold the entire  mats in an arbitrary manner ignoring the better  offer received by M/s Ewig Inational   The above act of the consignee as well as the complainant in the procedure adopted by them for the salvage sale is a clear violation of the terms and conditions of the policy   If the entire consignments were sold  by way of salvage sale  as per the rates  offered to M/s Ewig the consignee would have recovered at least net salvage proceeds of US dollars 26220 after deducting the salvage commission.   Had the consignee of the complainant sold the entire mats in both the containers, the realizable value after deducting salvage commission would have been more than the sum insured in both the polices   The opp.party cannot be held liable for the failure on the part of the complainant’s buyer to arrange proper salvage sale .  The complainant and his buyer had deliberately suppressed the actual value received by them by way of salvage sale after cleaning operations.   As per the complaint, the complainant had transferred the value of consignment of USD 22420 to the consignee.  If that is  correct why the consignee sold the salvage in an arbitrary manner is  doubtful . There is also no explanation about the fate of the salvage proceeds received by the consignee, had the complainant transferred the value of the consignment to the consignee.  The claim was repudiated  by M/s Ewig for valid reasons  as per the advice of this opp.party Ewig was asked to explore the possibility of selling the salvage..  But the offer for salvage received by them worked out more than the insured value..  The opp.party further repudiated the claim as the net realizable salvage value, as per firm offer received by EWIG far exceeded the value insured .  Either the opp.party or  Ewig never conducted sale of a single piece of the consignments and had not received any amount by way of salvage sale as alleged by  the complainant.  It is evident from the letter send by the complainant dated 28.5.2005 that is buyer had already sold a substantial quantity of the rubber mats as on the date of this letter except a few rubber mats remaining unsold.    The buyer of the complainant never handed over the remaining consignments to M/s Ewig for conducting salvage sale.  The present attempt of the complainant in demanding an amount of Rs.6,02,775/- from this opp.party claimed to be the salvage sale proceeds alleged to be retained by M/s Ewig International is a baseless and false statement without any bonafides.  The consignee has not alleged any complaint against the carriers and have not initiated any action against the carriers alleging any discrepancy or imperfection in the transportation of the goods.  The nature of goods in the consignments were not tested and verified for its quality against any prescribed standard before loading.    The allegation made in the complaint that the policy was issued by the opp.party after being satisfied and certified about the nature of goods is false and baseless and hence denied.  Neither the 2^nd opp.party nor the customs official made any inspection about the moisture contents of goods before loading into the containers..  The allegation made in para  19 of the complaint  is also denied..  Ewig International  had already sold a portion of salvaged rubber mats left over  with the consignee and received a net salvage return of US dollars 12825 corresponding to Indian rupees 602775 is absolutely false and hence denied..  Since the complainant informed through their legal notice that they have refunded the full payment under both consignments to the consignee, this opp.parties reasonably assumed that the consignee would have handed over the remaining mats with the claim settling agent of this opp.party and they would have completed the salvage sale as per the offer received by them from the salvage buyer.  Under this assumption only this opp.party happened to inform the complainant as per its letter dated 1.6.2005 that M/s Ewig could have received a net salvage return of US dollars 12825 by way  of salvage sale after deducting the salvage expenses.  The complainant is now trying to take advantage of the inadvertent bonafide mistake committed by the 1^st opp.party. in the letter dated 1.6.2005.  The complainant  knows that the entire consignments were sold by his buyer M/s. Teknor Apex USA.    There is no evidence  to show that his consignee had entrusted a portion of the consignment to M/s Ewig for conducting salvage sale.  The claim for an amount  of Rs.602775 is advanced by the complainant by making use of an inadvertent error committed from the 2^nd opp.party in the letter dated 1.6.2005  The complainant is not entitled to get any amount from the opp.parties.  Hence the opp.parties 1 and 2 prays to dismiss the complaint.

          The 3^rd opp.party filed a separate version contending as follows:   The complainant has no  locus standi to file this complaint.   The complainant is not a consumer  within the meaning of Consumer Protection Act.  The claim is barred by limitation   This opp.party is a Multi  modal transport operator registered under the Multi Model Transportation of Goods Act 1993 Section 24  of this Act prescribes the period of limitation of 9 months   The averments in para 7 of the complaint  the reveal that the consignment had been delivered prior to 20.7.2004 therefore  the claim is barred by limitation.  The complaint is  is bad for non joinder of necessary parties  in so far as agencies who are admittedly the customs clearing agent who had  handed over the relevant containers to the complainant are not made parties  to the complaint.   As the goods were already loaded and sealed before the containers were entrusted for carriage to this opp.party they had no opportunity  to verify  the quality quantity value contents etc of the cargo loaded in the containers .    It was in these circumstances that this opp.party accepted the containers and signed the MTD/bill of lading with the remark particulars furnished by the consignor/consignee and made  a clear notation “SHIPPER LOAD STOW AND COUNT’.This opp.party submit that they had prudently and reasonably performed the responsibilities and liabilities on their part of the transportation loss sustained to the complainant  is not due to the negligence  or fault on the side of this opp.party.    This opp.party has nothing to do with the stuffing of the cargo.    This complaint pertains to an international commercial  transaction and the passing of property in international sale of goods.  It raises numerous questions of international carriage of goods and transportation as also numerous complicated questions of law which   require a detailed and thorough trial which can be done by competent civil court only .   This opp.party does not admit the statements made in paras 1 and 2 of the complaint.    This opp.party   is not aware of the purported  transaction between the complainant and the 1^st and 2^nd opp.party.   The complainant approached this opp.party on 12.5.2004 and  requested them to arrange two 20 FCL containers for stuffing at complainant’s factory premises at Kollam, and accordingly the same were arranged.   The complainant was satisfied that the containers were in  sound condition for stuffing the goods.     The customs officials  and the 1^st and 2^nd opp.parties were present at the time of loading stuffing  There is no cause  for this opp.party to check the veracity  of packing and number of packing of the goods stuffed in the sealed containers handed over for transportation.    The averments  contended paras 7 and 8  of the complaint  are not within the knowledge of this opp.party.     The statements contained in paras 10 and 11  are also does not concern this opp.party and this opp.party has no knowledge about the transaction and correspondences alleged to have taken place.   With regard to the averments contained in paras 12 and 13  of the complaint this opp.party was not aware of or party to  the purported survey report made by Ewig International Marine Corporation.  This opp.party is not liable to pay any amount to the complainant as per the averments  in para 14.  The complainant has no right to issue notice claiming amounts from this opp.party as  alleged para 15 of the complainant.  The averments in para 16  does  not concern the opp.party.   The averments in para 17 does not in  any  manner  implicate this opp.party or make  them liable for the purported  claims raised by the complainant.   This opp.party  is not aware of  the alleged statements contained in para 18 and  19 and denied.    The complainant is not entitled to recover any amount whatsoever from this opp.party as alleged in para 20  There is no cause of action for the complainant against this opp.party.   Hence this opp.party also prays to dismiss the complaint with  their costs.

Points for consideration are:

1.     Whether the complaint is maintainable ?

2.     Whether the repudiation of the claim is valid and proper?

3.     Whether there is any deficiency in service on the part of the opp.parties?

4.     What amount, if any, the complainant is entitled to get?

5.     Reliefs and costs?

For the complainant PW to 4 are examined.  Ext. P1 to p15 are marked.

For the opp.party DW.1 is examined.   Ext. D1 to D18 are marked.

Point:1

The contention of the opp.parties is that the complainant is not a consumer within the meaning of Sec. 2 [1] [d] of the Consumer Protection Act 1986 and as such this complaint is not maintainable  as the service availed herein is in connection with a commercial purpose.   That argument is unsustainable in the light of the decision of the National Commission reported in 2005 [1] CPR 1 wherein it has been held that insurance policy taken by commercial units cannot be held to be hiring of services for commercial purposes so as to exclude it from the purview of Consumer Protection Act.  It has been further held therein that person who takes insurance policy to cover the risk does not take policy for commercial purpose as policy is only for indemnification or actual loss and is not intended to generate profit.  In the light of the above  decision we hold that the complainant herein is a consumer and the complaint is maintainable.  Point found accordingly.

Points 2 to 4:

          These points can be considered together for the sake of convenience.   As a  matter of fact there is no dispute that the complainant exported rubber mats to their overseas buyer M/s. Tecknor Apex  USA  1300 Pcs of competitor mats and 800 Pcs  of Hercules mats in 2 containers on FOB basis Exts.P1 and P2 are the Insurance  policies in respect of the goods and  the total value of consignments is Rs.10,85,228/- .  There is also no dispute that the above consignments reached the overseas buyer and on getting  Ext D4 arrival notice the consignee took delivery of the containers from the port of discharge as per Ext.D5 dispatch delivery order.   It is also not seriously disputed that the consignee took delivery on the basis of the clean dispatch delivery order and not open delivery evidenced by Exts. D6 and D7 trailer interchange receipt.  It is also not in dispute that the consignment on opening was found wet damaged and the consignee rejected the same.

          Now the question is who is at fault for sustaining damages to the consignment.   Admittedly the containers were supplied by Opp.party 3.   According to the complainant the history of the container was not given by opp.party 3 despite several demands.  It is the case of the complainant that on arrival of the containers the same were  tested to rule out any leakage by resorting to light test and nothing has been noticed.   The light test in respect of the floors of the containers could not be conducted as the containers were kept on the platform of the  trucks in which they were brought.  It is the further case of the complainant that PW.2 , the Superintendent of Central Excise who is an independent   witness  has also sworn that inspection of the containers and consignments were made before stuffing and that PW.5 the agent of the buyer  and the representatives of opp.parties 1 and 2 were also present at the time of inspection and stuffing of the consignment and that  PW.5  issued Ext.P13  report to the complainant certifying the quality of the consignment.   According to the complainant treated woods were used as pallets and the goods in the consignment were covered using polythene sheets and that the description regarding these aspects can be seen in Exts.P1 and P2.   Photographs  of the consignment with pallets were taken before and after stuffing and Ext.P12 photographs would clearly show that the pallets were made of treated wood.  The stuffing sealing etc were done in the factory of the complainant under roofed premises to avoid rain water and that the veracity of Ext.P12 has not been seriously assailed.   According to the complainant they have established that the consignment was in good condition that packing was effected to avoid any damage to the goods and stuffing made  carefully which were certified by the  statutory authorities, the agent of the buyer and the insurer who issued Exts P1 and P2 policies after satisfying the same and according to the complainant the duty of an insured as an exporter would be extinguished with the above.

          According  to the opp.party the contention that PW.2 was satisfied of the condition of the containers and the consignment and certified to that effect is unfounded.   It is argued that PW.2 has not stated any where in Ext. X3 or X4 that the containers were leak proof and that in cross examination PW.2 has stated that he has not stated anything with regard to the quality of the containers or the consignment in his report.   The definite contention of the opp.parties is that apart from the statement  of the complainant there is nothing to show that representatives of opp.parties 1 and 2 were present at the time of inspection of containers or at the time of stuffing or sealing.  In this context it is worth pointing out that opp.parties 1 and 2 have issued Exts. P1 and P2 policies in respect of the containers without any objection.  One is at a loss to understand as to  how they issued the policies without satisfying themselves of the quality, quantity, packing etc. of the consignment and  the insurable interest .   The mere fact that opp.parties 1 and 2 issued Ext.P1 and P2 itself in sufficient for an inference that opp.parties 1 and  2 were present or represented at the time of inspection, stuffing etc. and that they were satisfied of the quantity, quality, insurable interest etc.

          There is no dispute that a part of the consignment when opened was found damaged.  The dispute is with regard to the reason for sustaining damages.  The   survey was conducted by EWIG International Marine Corporation USA, the claim settling agents of opp.parties 1 and 2 in USA is also not  disputed.  According to the opp.parties 1 and 2  the surveyor Mr. Ed. Romance had conducted survey along with Mr. Peter Larkin who was the representative of the buyer and that Ext. D2 is the preliminary survey report and Ext. D3 is the final survey report.   The   learned counsel for the opp.parties would argue that the representative of the buyer Mr. Peter Larkin never raised any dispute about the survey procedure or the result of the silver nitrate field test conducted  from which it can be inferred that Exts. D2 and D3 are prepared in accordance with law.   But Exts. D2 and D3 are seriously assailed by the complainant.  In fact,  Exts. D2 and D3 were marked through DW.1  who has no connection of  knowledge about the survey or   the preparation of Exts. D2 and D3.   The surveyors who prepared the reports were not examined despite the fact that sufficient opportunity was availed for the same.   In fact these surveyors were cited as witnesses.   At first the opp.parties submitted that  since the above witnesses are abroad their evidence could be adduced by way of interrogatives.   When that was objected their examination through video conferring was suggested which was allowed.    But the opp.parties without any reason  moved back from their suggestion and did not make arrangements for the same and sought for the examination of DW.1 and marked D2 and D3 through DW.1.   The marking  of Ext. D2 and D3 were not seriously opposed by the complainant.   The learned counsel for the complainant would argue that marking a document and proving a document are entirely different and that Exts. D2 and D3 can be said to be proved only when the person who prepared the same or signed the same is examined and an opportunity is given to the complainant to cross examine them and so  the credibility of Exts. D2 and D3 have to be doubted .  It is further contended that Exts. D2 and D3 are prepared on the basis of inferences and presumption and so the same  cannot be  accepted.  In fact the manner  in which the survey has been conducted and the finding of the surveyors were seriously challenged in the complaint itself.  Admittedly the alleged survey was not conducted in the presence of the complainant.   In such circumstances the examination of the surveyors is highly essential.   When it is alleged that the survey report is unilateral and biased the burden is on the opp.party to examine the surveyors and prove the report in accordance with law.

The learned counsel for opp.parties argued that the surveyors report is an important document and it’s non  consideration results in serious miscarriage of justice relying on the decision of Apex Court reported in [2000] 10, Sec.19.  In the above decision the Apex Court has considered a survey report which was properly proved.  In this case DW.1 through whom Exts. D2 and D3 are proved was not present when survey conducted and report was prepared.  She is not even familiar with the handwriting or signature of the surveyors who  prepared Exts. D2 and D3.  For the acceptability of the document it must be proved in accordance with law.   The learned counsel for the complainant argued that no report is appended to Exts. D2 and D3.  According to him the surveyors had not inspected the containers or ascertained as to whether there was any tampering with the seal of the containers.  No chemical analytical test was also conducted to rule out the rain water entry.   There is force in that contention.   The  complainant as we said earlier has establish that he has preferred his duties as an exporter and when it is found at the post of discharge that the consignment is damaged the burden to establish that the damage has occurred due to the negligence of the insured is on the opp.parties and in our view the opp.parties failed to establish that aspect other than Exts. D2 and D3 no material worth believable was produced.   Ext. D2 and D3 for the reasons stated above cannot be safely relied on.  It is to be noted that the claim was repudiated mainly on the basis of  Exts. D2 and D3.  In these state of affairs we are of the view that the repudiation of the claim on the basis of Ext. D2 and D3. cannot be said to be proper or valid.

Now we have to consider how much amount regarding the complainant is entitled to get.   There is dispute  the date of repudiation.   According to the opp.parties the claim was repudiated on 6/8/2004.  But according to the complainant the repudiation was on 1.6.2005 as per Ext.P10.   It is seen that the repudiation letter dated 6.8.2004 was issued by the Ewig International  to the buyer instead of the complainant .  No material was produced to show any copy was marked to the complainant.  The learned counsel for opp.parties 1 and 2 argued that in Ext.P3 Advocate notice issued by the complainant  dated 11.11.2004 the repudiation of the claim  on the basis of Exts. D2 and D3  has been mentioned from which it can be seen that even prior to the issuance of Ext.P3 the complainant had knowledge about repudiation and that the contention that the complainant did not receive any claim repudiation letter is false and  that the complainant is attempting to make a  false claim against the opp.parties by misinterpreting  and taking advantage of  a mistake in Ext.P10 letter issued by the opp.party.   Ext.P5 is a letter issued by opp.parties 1 and 2 to the complaint expressing their willingness to reconsider the matter in case the complainant furnish certain information.  Ext.P6 is the  reply given by the complainant to opp.party with certain details Ext. P7 is another letter issued by the complainant to the opp.parties Ext.P8 is a letter issued by the opp.parties to the complainant requiring him to handover the damaged mats to Ewig International for sale in the secondary market with a view to reduce loss.   Ext.P9 is the reply given by the complainant to the opp.parties informing that the buyer had already sold the rubber mats but for a few mats.   It is stated therein that the total revenue as per salvage sale by the buyer is 23,100/- US Dollars and  the total expenses incurred by the buyer was 20993/- US dollars and the balance comes to about 3000 US dollars.   It is further stated in Ext.P9 that the complainant is not in a position to advise their buyer to surrender the salvage to Ewig International.  Ext.P10 is the reply to Ext.P9 issued by the opp.parties to the complainant in para 4 of Ext.P9 it is stated that following Ext.P8 letter the buyers of the complainant handed over the remaining mats to M/s. Ewig International who sold them for 13500/- US dollars and after deducting salvage commission 675/- US dollars @ 5% the balance comes to 12825 US dollars.  It is further stated in Ext.P10 that if the salvage sale had been concluded immediately after detection of damage the  sale proceeds could have been much higher.  It is further stated therein that since the amount recoverable on as is where is condition is more than the insured value under both the policies the complainant had not suffered  any loss under those policies.   The learned counsel for the opp.parties 1 and 2 would argue that the statement in Ext.P10 is only a proposal if any sale has been conducted by Ewig International as stated in Ext.P10 the complainant could have produced evidence to show that the remaining mats were handed over to Ewig International by Teknor Apex Company.  The learned counsel would further argue that  in Ext.D14 reply Teknor Apex Company has stated that the mats were never sold to Ewig as the offer from Ewig was ridiculously low.  Ext. D14 is dated 15.8.2007.   Ext.D14 is seen issued by one Peter Larkay to one Shantha Gopinath.   But the same also was proved through DW.1  who has not seen any of the above   persons or is familiar with their signature or handwriting.    In these circumstances , we are of the view that Ext.D14 cannot be safely relied on.  Ext. D14 is seen issued about 2 years after Ext.P10 and as argued by the complainant the possibility of Ext.D14 being a forgedone cannot be entirely ruled out.

          Ext. P10 is signed by one Ramabhadran Regional Manager of opp.party company.  DW.1 has stated that though he is working in another insurance company now he is available in Kerala.   There is no explanation, what so ever for the  non examination of Ramabhadran at least as a witness in this case to bring out the truth rather than attempting  to shift the burden of proof on  the complainant.  Even assuming that there is some difficulty in examining  the authors of Ext D2, D3 and D14  the   non examination of Ramabhadran who is available is highly  suspicious and as argued by  the complainant it is nothing but  a material suppression of evidence.  It is  also pertinent to point out in this context that the opp.parties has not examined even a single person who is directly involved in this case in one way or another for which  there is no explanation worth believable..   As pointed out earlier DW.1 has no direct knowledge about the transaction in this case.   On a careful consideration of the materials and evidence now before us we are of the view that Ext.P10 is issued not by any mistake but it is a bonafide one and a sum of Rs. 602775/-   Collected by way of salvage sale by Ewig International is with the opp.parties 1 and 2.

          Exts.P9 shows that the buyer of the complainant conducted salvage sale of the consignment and collected 23100 US dollars Ext. P10 shows that Ewig International conducted salvage sale and collected 12525 US dollars corresponding to Rs.602775/-.   Though the complainant would state in Ext.P9 that more than 20,000/-  US dollars were expended towards salvage sale, salvage commission Freight charges etc  However  no  statement of accounts is produced with regard to these expenses..  According to the complainant there is a balance of 3000 US dollars after  the above expenses..   The amount paid towards freight charges is 6571US dollars is  evidenced by
Ext.D4.    There is no explanation for not producing the expenses incurred by the buyer for the sale of salvage.  Ext.P10 shows that the salvage commission is 5% .   Taking into account all other expenses such as transportation, cleaning etc, the expenses  at any rate cannot exceed 12000/- US dollars leaving a balance 11000 US dollars.  Though the complainant would claim that he has paid the entire expenses incurred by Tecknor Apex,  his buyer no material was produced to establish that aspect, the burden of which is on the complainant.   If he has paid such amount it is not known why his buyer has deducted expenses for salvage sale from the sale amount.  The  non production of the document evidencing payment by the complainant to his buyer is also highly suspicious and it leads to an irresistible conclusion that such expenses are far below the amount shown as expenses in Ext.P9.   The definite contention of   opp.parties 1 and 2 is that the complainant by way of salvage sale got  more than the insured sum.  If the amounts covered by the salvage sales referred to in Ext.P9 and P10 are taken together it can be seen that that  statement is correct.  It is true that an  insurer is not liable to pay the insured more than the insured amount.   But there is nothing to show that opp.parties 1 and 2 have given  the amount referred to in Ext.P10 to the complainant.   It is not known as to why opp.parties 1 and 2 are keeping the amount referred to in Ext.P10 even  after the repudiation of the claim and that sole aspect would establish the deficiency in service on the part of opp.parties 1 and 2.

          The complainant is claiming Rs.14,13,900/- eventhough the insured sum as per Exts.P1 and P2  is Rs.10,85,228/-.  As pointed out earlier the insurer is liable to indemnify only the insured amount which is Rs.10,85,228/-.  The amount collected by way of  sale of salvage as stated in Ext.P9 and P10 would come more than the insured sum and so as argued by opp.parties 1 and 2 the complainant has not sustained any loss provided the amount referred to in Ext.P10 is also paid to the complainant.   The opp.parties 1 and 2 are retaining the sum of Rs.602775/- with them without any reason and they are bound to repay this sum to the complainant with interest.   Points found accordingly.

In the result the complaint is allowed in part, directing the opp.parties 1 and 2 to pay the complainant a sum of Rs.6,02,775/- with interest @ 12% per annum from 1.6.2005 till repayment.   The opp.parties 1 and 2 are also directed to pay Rs.50,000/- as compensation and Rs.10,000/- towards costs. The order is to be complied with within one month from the date of receipt of this order.

Dated this the 26^th day of February, 2009.

I N D E X

List of witnesses for the complainant

PW.1. Murugesh Narendran

PW.2. – Salikutty

P3. – P.K. Money

P4. – Venugopala Pillai

P5. – Mohindra Sathpal

List of documents for the complainant

P1. –Insurance policy

P2. – Insurance policy No.570504/2/04/4300012

P3. – Bill of loading dt. 28.5.04

P4. – Suit notice

P5. – Letter issued by the 1^st and 2^nd opp.party dt. 30.11.2004

P6- Office copy of the communication dt. 8.12.2004

P7. – Office copy of the communication 14.12.2004

P8. – Original letter dated 5.5.2005

P9. – Copy of letter dated 28.5.2005

P10 – Repudiation letter

P10 [a] – Para 4 of Ext. P10 repudiation letter dt. 1.6.05

P11. – Office copy of letter dt. 20.6.05

P12. – Photograph of goods in the cargo taken at the time of dispatch

P13 – Certificate issued by Sathpal

P14. – Letterrequestion for the history of the container

P15. – Inspection report.

X1. – Consignment dt. 27.5.2004 No.138

X2. – Consignment No.139

X3. – Invoice relating to X1

X4. – Invoice relating X2.

X5 –

List of witnesses for the  opp.parties

DW.1. – Susheela Ibraham.

List of documents for the opp.parties

D1. – Copy of Conditions of policy

D2. – Final survey

D3. – Report

D4. – Copy of the consignment arrival note

D5. – Despatch order

D6. – Copy of the Trailer interchange receipt

D7. – Copy of the Trailer enter change receipt

D8. – Copy of Repudiation letter

D9. – Copy of the letter to Ewig International Marine Corpn.

D10. – Copy of the salvage offer letter issued by the complainant

D11. – Letter issued by the complainant

D12. – Copy of the letter issued by opp.party to PeterLarkin

D13. – Copy of E-mail Correspondence between Ewig and Peter Larkin

D14. – Letter issued by Peter Larkin to Ewig

D15. – Office copy of reply notice issued to complainant

D16. – Copy of E-mail correspondence made by the complainant with Ewig

D17. – Addendum to survey report

D18. – Letter sent by National Insurance Co. to the CDRF., Kollam