ORDER                                    Dated: 24-03-2017

Mohd. Anwar Alam, President

1. The complainant filed this complaint on 04-03-2016 and alleged that OP after collecting an insurance premium of Rs.30,524/- through cheque from the complainant  issued insurance cover note no. 327289 dated 28.01.2014 covering    the import    consignment   against       all risks for a total sum  of Rs. 4,93,90,688/- from any European port to anywhere in India. Thereafter OP issued insurance policy bearing no. 272200/21/2014/1169 dated 28.01.2014 in lieu of the above said cover note.  The shippers, M/s Evonik Industries AG supplied the consignment of 500.040 MT of 2-Propy Heptanol and issued their invoice no. 8895803356 dated 12.02.2014 and loaded consignment on  Vessel MT Oriental Clematis at Rotterdam for being carried to Mumbai port in India. On 25.03.2014  the consignment arrived at Mumbai port and was discharged into storage tank at Mumbai port. The complainant had received only a quantity of 496.053 MT of material in the said storage tanks as against the bill of lading quantity of 500.040 MT thus a quantity of 3.987 MT was received in short by the complainant. Unloading of the material into storage tanks at Mumbai port from ship was done under supervision of the Surveyors, M/s S.G.S. India Pvt. Ltd who had surveyed the consignment and issued their report no. IN/MUM/OGC/2014/00373 dated 28.03.2014 and confirmed that the complainant had received the material short by 3.987 MT.  Complainant company lodged their claim in respect of the shortage of material upon the Ship’s Agents, M/s Allied Shipping Agencies Pvt. Ltd. Mumbai by registered A.D. Letter dated 08.04.2014.  Vide letter dated 18.07.2014 complainant lodged their claim for Rs. 3,79,382/- on the OP against the shortage of material and submitted the claim form and other claim documents.   OP did not settle the said claim despite personal approaches and reminders sent to them.  Instead OP wrote a  letter dated 08.09.2014 seeking clarifications in respect of the loss to which the complainant promptly replied vide  letter dated 25.09.2014 that the policy provides coverage against all risks with  excess clause. On 29.10.2014  OP repudiated the lawful claim of the complainant hence OP is deficient in providing services and complainant prayed this forum to direct OP to pay to the complainant  a sum of Rs. 3,79,382/- being the loss suffered  by complainant because of the short quantity received in the storage tank.  Complainant further prayed interest on the said amount of Rs. 3,79,382/- @ 12% p.a. from 25.03.2014 upto the date of this complaint and thereafter up to the date of payment,  Rs. 50,000/- towards compensation for delay and deficiency and the denial of OP to settle the claim and Rs. 30000/-  as cost for this action.
2. In reply, OP admitted issuance of Marine Cargo Single Voyage Sea policy 272200/21/2014/1169  issued in favour of complainant company covering 500.040 MT of Chemical 2-Propy Heptanol from any European Port to any port in India. OP alleged that shortage/ losses claimed are excluded as per  clause 4.2 of the institute Cargo clauses (A) under  the terms and conditions of the insurance policy and are not payable.   OP denied that complainant company comes within the four corners of the definition of Consumer under the Consumer Protection Act 1986 and denied rest of the allegations and prayed to dismiss the complaint with costs.
3. The complainant has filed rejoinder to the written statement and denied the objections made by OP and supported his complaint.
4. In support of his complaint complainant filed affidavit of Sh. Ashok Maharshi (Authorised Official) along with documents i.e. copy of board resolution (Annexure C-1),   copy of insurance cover note (Annexure C-2) , copy of  insurance policy (Annexure C-3) ,  copy of consignment  invoice(Annexure C-4), copy of bill of lading no. OC/EVO-2PH/01 and OC/EVO-2PH/02 dated 12.02.2014 (Annexure C-5), copy of ware house bills (Annexure C-6), copy of survey report (Annexure C-7), copy of letter dated 08.04.2014 (Annexure C-8), copy of letter dated 18.07.2014 (Annexure C-9) , copy of letters dated 08.09.2014, 25.09.2014 and 29.10.2014 (Annexure C-10).
5.  In support of reply OP filed affidavit of Mr. Sunil Gupta (Division – Manager).  
6. Both the parties filed their written arguments.
7. We have heard the arguments and considered the evidence led by the parties and their written and oral arguments.  In this case points to be considered are as under:-

1. Whether complainant is a consumer.
2. Whether this forum has pecuniary jurisdiction to entertain this complaint?
3. Whether there is any deficiency in service on the part of the OP?
4. Relief?

8. In reply OP did not deny issuance of insurance policy no. 272200/21/2014/1169 dated 28.01.2014 in favour of complainant Company hence complainant is a consumer.
9. Mere perusal of the complaint clarifies that the OP has issued insurance policy bearing no. 272200/21/2014/1169 dated 28.01.2014 covering the import consignment against all risks for a total sum  of Rs. 4,93,90,688/- from any European port to anywhere in India. It is true that the complainant prayed an amount of Rs. 3,79,382/-  for the short quantity received with 12 % interest, Rs. 50,000/- towards compensation for delay and deficiency and the denial of OP to settle the claim and Rs. 30000/-  as cost for this action but the total value of the service is Rs. 4,93,90,688/-  i.e. total sum insured under the policy.
10. The  Hon’ble National Commission vide order dated 07.10.2016 passed in C. C. No. 97/2016 with regard to the reference  dated 11.08.2016 relating to issue numbers (i) to (iv) decided the pecuniary jurisdiction  as under:-

“(i) It is the value of the goods or services, as the case may be  and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.

(ii) The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.

(iii) The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.

(iv) In a complaint instituted under section 12 (1) (c) of the consumer protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefits the complaint is instituted and the total compensation claimed in respect of such consumers.”

11. In view of the above settled legal position as well as facts of the complaint this forum has no pecuniary jurisdiction to entertain this complaint.  Looking to the above facts and circumstances we are of the considered opinion that this forum has no jurisdiction to entertain this complaint. Hence this complaint is not maintainable in this forum.
12. As this forum has no pecuniary jurisdiction in this case therefore there is no need to decide remaining points of consideration.Complainant is directed to approach appropriate commission within 30 days from the date of issuance this order or within period of limitation prescribed under the  provisions of Consumer Protection Act,1986.
13.  Both the parties will bear their own cost.  Copy of the order be made available to the parties free of cost as per law.  File be consigned to record room.

Announced on………