NCDRC

NCDRC

RP/779/2009

ORIENTAL INSURANCE CO. LTD. - Complainant(s)

Versus

NATIONAL STEEL AND AGRO INDUSTIRES LTD . & ORS. - Opp.Party(s)

MR. A.K. RAINA

01 Apr 2010

ORDER


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIREVISION PETITION NO. 779 OF 2009
(Against the Order dated 30/09/2008 in Appeal No. 104/2008 of the State Commission West Bengal)
1. ORIENTAL INSURANCE CO. LTD.CV -O -VII ,201, f,Johari Plase , 51, M.G, Road, Indore -452001M.P ...........Petitioner(s)
Versus
1. NATIONAL STEEL AND AGRO INDUSTIRES LTD . & ORS. Registered office at.621, Tulsiani Chamber Nariman Point Mumbai at also. At 2G. Neelamber Building 28, B. Shakespeare Sarani Kolkata -7000172. EASTRERN LOGISTICS, Common Carriers, 10 B, Shakepeare Saranii,Kkolkata-71 ...........Respondent(s)

BEFORE:
HON'BLE MR. JUSTICE B.N.P. SINGH ,PRESIDING MEMBERHON'BLE MR. S.K. NAIK ,MEMBER
For the Petitioner :NEMO
For the Respondent :NEMO

Dated : 01 Apr 2010
ORDER

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There has been delay of 25 days in filing revision petition for which an application for condonation of delay has been filed. For the reasons assigned therein, we hereby condone the delay. Petitioner – insurance company suffered concurrent adverse order both by District Forum and State Commission holding them liable for indemnification of loss on part of insured consignment getting lost during transit after taking its delivery from the cargo by the Handling Agent. To appreciate the contentions raised by learned counsels for parties, the factual matrix of the case may be noticed with brevity. Consignment of 111.993 MT Fed Green Mung Beans for assured value of Rs. 20,69,700/- valid for the period from 13.04.2004 to 12.04.2005 were imported by National Steel and Agro Industries Ltd, respondent No. 1 from Myanmar to Kolkata Port. The consignments were cleared by Clearing Agent, respondent No. 2 for its delivery to Godown of the Company through their Carrier. Allegedly, due to intervening evening and shortage of labour, the containers with consignment could not be delivered at the Godown, as such, the Carrier was parked at Nimah Mandal Road, Kidderpore. Though out of five containers, as per schedule, four containers were unloaded in good condition in the godown, one container containing 460 bags of Green Mung Beans weighing 23.013 MT of value of Rs. 4,65,000/- was not delivered at the destination as the container was found empty, kept at a different place. The Handling Agent lodged FIR with Police against Driver and Khalasi for theft/mis-appropriation under Section 120-B and 407 IPC. ‘Non-delivery Certificate’ in respect of one missing container was also issued by the Handling Agent. The Company also lodged a police case on its own motion for non-delivery of part of consignment. Surveyor was appointed by petitioner – company who, in his report concluded that Branch Manager of insured, the Carrier/Handling Agent, Lorry Supplier, Driver and Khalasi in collusion with each other having committed criminal breach of trust, had engineered imaginary case of theft, and mis-appropriated cargo from container. Claim lodged by respondent company was accordingly repudiated. Taking recourse to finding recorded by Surveyor, suspecting genuineness of claim, complaint filed by respondent company before District Forum was keenly resisted by petitioner – insurance company disowning their liability to compensate losses suffered by Company due to misappropriation of part of consignment by employees of company in collusion with Lorry Supplier, Handling Agent, Driver and Khalasi who were involved in delivery of consignment to destination – Godown. District forum, however, having over-ruled contentions raised on behalf of petitioner – insurance company and also for there being no evidence about conspiracy having been hatched by officers and employees of Company with others, for misappropriation of goods, while accepting complaint, directed insurance company to pay Rs. 4,65,000/- to Company along-with compensation of Rs. 5,000/- and also Rs. 1,000/- as litigation cost. Though State Commission in appeal set aside compensation and also cost awarded by District Forum, affirmed finding of District Forum for Rs. 4,65,000/-. Certain redeeming features need to be noticed. The insured consignment imported from Myanmar had reached Kolkata Port without any complaint for damages. The consignments were cleared by Handling Agents for its delivery to Godown of Company through their Carriers. Clauses 3.1 and 3.7 which are among the Exclusions embodied in the Policy are in the following terms :- “3.1 – Loss, damage or expense attributable to willful misconduct of the Assured. 3.7 – Loss, damage or expenses arising from the absence shortage or withholding of labour of any description whatsoever resulting from any strike, lockout disturbance, riot or civil commotion”. As for duration for the insurance coverage, clauses 5.1 and 5.11 of the policy are in following terms:- “5.1 - This insurance attaches from the time the goods leave the warehouse or place of storage at the place named herein for the commencement of the transit, continues during the ordinary course of transit and terminates either”. 5.11 - on delivery to the consignee’s or other final warehouse or place of storage at the destination named herein”. Clause 5.1 quoted supra makes it manifestly explicit that liability of the insurer in respect of insured’s consignment continues till delivery is affected at consignees’ warehouse, or other final warehouse or place of storage at its destination. Learned counsel for petitioner – insurance company while interpreting the duration clause submitted that, once delivery of consignment was made to Handling Agent who was non-else but Authorised Representative of company to lift consignment from the ship, liability of insurance company ceased and insurance company cannot be made answerable to indemnify the loss suffered due to theft/misappropriation of consigned goods. Though this logic seems to be attractive to persuade one for a moment to find substance in them, are devoid of merit for the reason that insured’s liability would not cease until consignment has been delivered either at consignees’ warehouse or place of storage at the destination. Even after delivery of consignment was taken by Handling Agent, be he, on behalf of company, liability of company had not ceased till consignment had reached destination. Liability continues till consignment is in transit and does not reach destination. As for theft/misappropriation of part of consignment due to officers and employees of the company being in collusion with others, State Commission rightly did not give much credence to this aspect of issue, no good evidence having been led by company to substantiate misappropriation of goods in collusion, and that apart, after a police case was registered and matter is ex-sub-judice before court, no such conclusion as is urged can possibly be drawn. Since loss of consignment during transit had qualified respondent company for indemnification of loss, repudiation of claim obviously constitutes ‘deficiency in service’. Concurrent findings of Fora below, in our view, as such, did not call for interference in exercise of revisional jurisdiction under section 21(b) of CP Act, 1986 and revision petition in the circumstances, is dismissed, being bereft of merit but with no order as to cost.



......................JB.N.P. SINGHPRESIDING MEMBER
......................S.K. NAIKMEMBER