Tamil Nadu

StateCommission

CC/87/2012

GLOBAL CALCIUM PRIVATE LIMITED, ASSOCIATE DIRECTOR - Complainant(s)

Versus

ORIENTAL INSURANCE COMPANY LIMITED - Opp.Party(s)

FOX MANDAL AND ASSO

29 Nov 2022

ORDER

Date of filing : 02.08.2012

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:  Hon’ble THIRU. JUSTICE R. SUBBIAH       :    PRESIDENT

                                   THIRU R VENKATESAPERUMAL  :      MEMBER

                      

C.C. No. 87 of 2012

Tuesday, the 29^th day of November 2022

 

M/s. Global Calcium Private Limited

125 & 126, Phase I

SIPCOT Industrial Complex

Hosur – 635 126

Rep. by its Associate Director

  - Operations Mr.Satish Hebbar R                               .. Complainant

 

- Vs –

1.  Oriental Insurance Company Ltd.

Branch Office

25/C, Arunagiri Complex

Bye Pass Road

Hosur – 603 109.

 

2.  Oriental Insurance Company Ltd.

Regional Office

Mayflower Building 2^nd floor

72, Dr. Balasundaram Road

A.T.T Colony

Coimbatore - 641 018... Opposite Parties

   

Counsel for the Complainant           :  M/s. Fox Mandal & Associates

 

    Counsel for the Opposite parties      :  M/s. Nageswaran & Narichania

                 This complaint came before us for hearing on 26.07.2022 and on hearing the counsel for both the parties and perusing the material records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

                This complaint has been filed as against the opposite parties, under Section 2(1)(g) r/w 17 of the Consumer Protection Act, 1986, for the following reliefs :-

1. To direct the opposite parties to pay a sum of Rs.74,75,896/- with interest at 9% p.a., from 08.08.2008 as compensation as per the policies taken out by the complainant;
2. To direct the opposite parties to pay a sum of Rs.5,00,000/- towards mental agony and hardship;
3. To direct the opposite parties to pay a sum of Rs.2,00,000/- as costs.

 

            2.  It is the case of the complainant that they are manufacturers of Calcium and other related products.  One such product is Calcium Gluconate.  The complainant is an EU-GMP certified Global Company and set as standard company for pharmaceutical products due to its superior quality.  The Global Calcium Pvt. Ltd., was

established in 1979 as Calcium India and represents the true hallmark of quality when it comes to pharmaceutical products, armed with advanced technologies and the latest pharmaceutical innovations.  The complainant has partnered with an enviably comprehensive logistic network comprising air, sea, road and rail transport and deliver supplies on time, ensuring sustained batch to batch quality along with responsive, flexible and focused customer support are maintained, which is the necessity to continue to be favoured globally.  The complainant has been certified to comply with standards set by WHO CGMP, ISO 9001:2000 and also by European DMF and Certificate of Suitability, to mention a few that have certified Global Calcium products and processes.  The complainant sell their products internationally, based on Purchase Orders being placed on them, by the companies.  The complainant ensures that the products meet with international standards and are packed as per international standards, stuffed into containers, fumigated and thereafter exported.  The complainant has been following this procedure for all international consignments for the past 25 years and till date there has been no complaint or rejection from any international buyers, regarding the standard of material and packing.  The products are sent in large quantities by rail, road, sea etc., and hence to cover any loss in transit or loss arising out of any other contingency, the complainant had taken out insurance coverage by insuring the goods so that any loss that may occur, is reimbursed. The terms of in surance indicate the contingencies that are covered by the Insurance company. The procedure for packing of the material, which is as per international standard, is as follows:-

1. The product is filled in big bags having two layers.  The first layer, known as the liner, is into which the product is filled and the second layer is the bag itself.

 

2. The material used for the first layer is a 150 micron thick food grade poly ethylene liner. 

 

3. The second layer is a 220 gsm body fabric polypropylene.

 

4. These bags are filled with the product mechanically, that is there is no filling of the bags manually and stitched/tied by machines.

 

5. The stitched bags are then wrapped with two layers of film roll which is of a 17 micron thickness and is a stretch wrapping film.

 

6. After wrapping, the bags are stacked mechanically, as the bags vary in weight from 700 kgs to 800 kgs, on wooden pallets.  These wooden pallets are also treated against infestation, fungus, and such like by fumigating them.

 

 

7. The bags are then strapped with strapping roll and strapping pins to the wooden pallets and the entire pallet along with the filled bags are once again stretch wrapped three rounds with wrapping film rolls.
8. Thereafter the pallets with the bags are stuffed into containers.  The containers are sealed and once again fumigated thereby ensuring that there is no chance of infestation of any kind to the products placed in the containers.

M/s. Purac Biochem BV is one of the customers of the complainant, for the past ten years.  During the year 2007 and 2008, the said customer had placed orders for supply of Calcium Gluconate M H EP (I R 2244) totalling to 5,75,150 kgs., with the complainant, which were delivered on various dates, as per the terms of the purchase orders.

Order No.	Date	No. Of Containers	Quantity Kgs.
607339	19.12.2007	13	195000
612371	27.02.2008	4	60000
618489	07.07.2008	4	64150
618493	07.07.2008	4	64000
624457	01.08.2008	4	64000
624458	01.08.2008	4	64000
624459	01.08.2008	4	64000
Total Kgs.		37	575150

 

 

These were to be packed in bags of 800 kgs. each, put inside 40 ft. containers and sent through CIF (Cost, Insurance & Freight) to Rotterdam.  The total price for the products in question was Euro 1,14,070 (for 61,000 kgs sent in 4 containers falling within the purview of purchase orders dated 27.02.2008 and 07.07.2008) amounting to, an equivalent of about Rs.75.19 lakhs.  M/s. Purac Biochem BV had also paid the entire amount of Euro 114,070 immediately thereafter, as per the invoice raised by the complainant company.  The complainant had packed the material in the prescribed manner, as per international standards, stuffed the products into containers, fumigated the containers and sealed the containers and also obtained certificates for such fumigations.  The complainant had taken out separate Marine Export Insurance coverage from the 1^st and 2^nd opposite parties, known as Institute Cargo Clauses (A) Policy for each container and had paid the premium for the same, to the opposite party.  The shipment was sent on various dates from 16.06.2008 to 10.07.2008 and the goods were also received at Rotterdam.  Subsequently, the complainant was surprised to receive complaints from M/s. Purac Biochem BV, vide their mail dated 08.08.2008 and through telephonic calls on 18.08.2008 and 08.09.2008 that the containers No.15, 16, 17 and 18 sent to them were infested by insects.  Photographs of the same were taken and forwarded to the complainant.  The said containers were insured with the 1^st opposite party as per the details given below:-

Sl. No.	Certificate Number	Date	Invoice No.	Date	Container Number	Sum Assured (Rs.)
1	45407/21/2009/57/0002	18.06.08	GC/E0061	16.06.08	15	20,70,371
2	45407/21/2009/57/0008	28.06.08	GC/E0069	24.06.08	16	20,70,371
3	45407/21/2009/57/0013	11.07.08	GC/E0078	04.07.08	17	20,42,601
4	45407/21/2009/57/0014	11.07.08	GC/E0082	17.07.08	18	24,70,054

 

Immediately, the complainant requested the 1^st opposite party for a survey to be done.  The 1^st opposite party seems to have instructed M/s.Interlloyd Averij BV to carry out a survey.  This survey was registered under Registration No.20081551 with M/s.Interlloyd Averij BV.  The complainant also agreed to the same and sent an email to that effect, and requesting a copy of the report to be sent to them.  The surveyors visited the place where the containers were kept, on 11.08.2008 and 15.08.2008.  A preliminary report was given by M/s.Interlloyd Averij BV to M/s. Purac Biochem BV on 18.08.2008.  The complainant company vide email dt. 19.08.2008 sought for the report stating that they are the insurer and hence the report ought to be given to them.  However, M/s.Interlloyd Averij BV informed the complainant that only M/s.Purac Biochem BV is their customer and hence the report will be submitted to them.  On 19.08.2008 M/s. Purac Biochem BV requested the complainant certain information with regard to container No.15 and the same was submitted by the complainant on 29.08.2008.  Again, M/s. Purac Biochem BV sought for details with regard to Containers No.16, 17 and 18, which were also produced by the complainant immediately.  A soft copy of the surveyor report was sent to the complainant, alleging that the infestation had taken place at the time of packing.  On the basis of the report of the surveyor, M/s. Purac Biochem BV informed the complainant that they are liable for infestation and that the materials supplied by them were unusable.    However, M/s. Purac Biochem BV, vide their email dated 15.09.2008 informed the complainant that they have proposed to return the materials.   The complainant requested M/s. Purac Biochem BV to add the reprocessing charges, while filing the claim with the Insurance Company and to settle the claim at the earliest.  On 23.09.2008, the 1^st opposite party requested the complainant company to confirm whether payment for the consignments in question have been received and the complainant confirmed receipt of payment from M/s. Purac Biochem BV and further stated that they are insisting for replacement of the consignments in question.  Thereafter, the officer-in-charge of the Namakkal Branch of the opposite party Insurance company, by his email dated 27.09.2008 requested M/s.Interlloyd Averij BV to furnish the details and the status of the claim lodged by the complainant.  The 1^st opposite party, by its letter dated 10.10.2008 informed the complainant that since they had already received the payments, both the consignor and the consignee have to co-operate with the surveyors in order to settle the claim and to provide all necessary documents to the surveyors. Thereafter, since there was no positive response from the 1^st opposite party, a formal claim was lodged on 12.12.2008 with the opposite party.  However, after a lapse of more than a year, M/s.Interlloyd Averij BV rejected the claim of the complainant and M/s.Purac Biochem BV, on the ground that the infestation was prior to the stuffing of the container.  On 19.01.2010, the 1^st opposite party requested for further details from the complainant, which was furnished by the complainant on 18.02.2010, setting out in detail as to the manner of packing, stuffing, fumigation etc., and hence there could never be any possibility of infestation happening prior to the stuffing of the container.  Since nothing was heard from the opposite party, the complainant vide letter dated 10.03.2010 sought for settlement of the claim from the 1^st opposite party.  The complainant received a reply stating that the delay in settling the claim is due to account closing activities of the opposite parties and once the Head office takes a decision, the outcome of the claim would be intimated to the complainant.  The 2^nd opposite party vide their letter dated 23.06.2010 sought for a detailed note on packing and also requested the complainant company officials to make a personal visit to their head office at Delhi.  Further, all the information and clarification sought by the 2^nd opposite party was also forwarded by the complainant through its email dated 06.07.2010, whereby the complainant company has sought to correct the impression on packing and stuffing aspects of the captioned consignments.  The complainant company had also visited the head office of the opposite party at Delhi on 04.08.2010 and substantiated that infestation had not occurred before stuffing and produced sufficient evidences.  Thereafter, the head office at Delhi remitted the matter to the 2^nd opposite party for settling, as it falls within the financial purview of them.  Hence, the complainant requested the opposite parties to favourably consider their request for settlement of the claim, as the complainant had explained in detail the manner of packaging and proved that the pallets had been treated, therefore it could not be the source for infestation.  The complainant company also requested that the claim be settled under the Institute Cargo Clauses (A), which provides for the coverage of other or extraneous perils all involving a fortuity and from external causes such as infestation, mould, mildew, rust, etc.  The complainant came to understand that the 2^nd opposite party had recommended to the head office at Delhi, to settle atleast 75% of the claim amount and the head office had returned the case to the 2^nd opposite party to deal with the same, as it fell within his financial authority.  Therefore, the complainant expected that the claim would be settled and the matter would be closed.  But, the complainant was surprised and shocked to receive a letter from the opposite party dated 28.09.2010, rejecting the claim, since it falls under the Exclusions Clause No.4.4 of the Institute Cargo Clauses (A), which reads as follows :-

“ 4.4  loss, damage or expense caused by inherent vice or nature of the subject - matter insured”.

The complainant with a fond hope that the matter would be settled with the intervention of the highest officer of the opposite parties, sent an email dated 14.10.2011, addressing to the Chairman, pointing out the sequence of events and requesting him to intervene in the matter.  Since there was no response, he sent another email dated 14.12.2011, for which too there was no response.  The rejection of the claim on the basis of Clause 4.4 of the Institute Cargo Clauses (A), amounts to deficiency of service, since the complainant had taken out  a policy under the Institute Cargo Clauses (A), which covers any such infestation, moulding, mildew and such like, and only as the opposite parties do not want to pay the claim amount, they have rejected it on this spurious ground.  Having accepted the premium to cover such a loss, the opposite parties are estopped from denying payment of the claim amount, while the validity of the insurance is not denied.  The only ground for denial is that it falls under Clause 4.4.  This is done only to deny the complainant their legal dues, for which the complainant had obtained cover and is provided under Clause 18 of the Institute Cargo Clauses (A).  Hence, the complainant has come forward with the present complainant, for the reliefs stated supra.

 

             3. Countering the same, the opposite parties had filed a version stating that the complainant is not a Consumer as defined under Section 2(d)(ii) of the ‘Consumer Protection Act, 1986’.  The service of the opposite parties was availed by the complainant for commercial purpose. Even as per the averments in the complaint, they are manufacturers and engaged in the business of production of calcium and other related products.   Admittedly, the complainant sell their products internationally, based on purchase orders placed by various buyers/ companies, which results in distribution for sale and profit. During the course of commercial transactions for their benefit, they avail the service of the opposite parties, which is a step in aid to minimise loss and maximise profit.  Therefore, they do not come under the definition “Consumer”, in as much as they availed the services provided by the opposite parties for commercial purpose, particularly when the service provider dealt with the complainant in respect of an international trade, export of Calcium Gluconate, for purely commercial purpose, by a private limited company working for profit and for the benefit of its share holders.  The service was not availed exclusively for the purpose of earning its livelihood by means of self employment.  A corporate entity carrying on business with the capital contributed by share holders, being one of the factors of production cannot be construed as one in self employment for the purpose of earning its livelihood.  Further, the dispute is one arising under a contract of Marine Insurance managed by a Special Enactment namely, the Marine Insurance Act, 1963 and hence various questions of law and facts are to be gone into, based upon the oral and documentary evidence to be let in, by the contesting parties.  In the absence of the same, the adjudication of the dispute would be incomplete.  An elaborate trial by means of production of documents, their reception and admission as well as proof of contents should be gone into, which process could be well administered only in a civil court and not by means of summary disposal.  The summary disposal of this complaint may result in great prejudice to the opposite parties and hence the complainant may be directed to agitate their remedy, if any, before a Civil Court.  The complaint is barred by limitation under Section 24A of the Consumer Protection Act, as the same is not filed within two years from the date of accrual of cause of action or repudiation of the claim.  The complainant has admitted in paragraph 11 of the complaint that their consignee lodged a claim on 12.12.2008 but the same was rejected, on the ground of infestation prior to shipment/ improper fumigation and inherent vice.  The same was intimated to them by their consignee on 08.01.2010, to which the complainant has sent a reply on 18.02.2010.  But, the complaint was filed only in the month of August 2012, which is after two years from the date of repudiation and hence the complaint is liable to be dismissed under section 24A of the Consumer Protection Act.  The insurance policy issued by the opposite parties is subject to the terms and conditions, exclusions and including the clauses attached to, forming part of the contract.  This is clearly set out in the first paragraph of the policy.  The terms of cover are also specifically set out, including special conditions.  The complainant did not dispute the issue of the said policy, which is the subject to such clauses.  The policy is subject to Institute Cargo Clauses (A), which is admitted by the complainant in the complaint.  The complainant informed the opposite parties that the consignee M/s. Purac Bio Chem BV had intimated/ complained that four containers containing the consignment of Calcium Gluconate were infested with insects and sought survey to evaluate the condition of the consignment.  M/s. Inter Lloyd Averij BV and Marine surveyors at Rotterdam, The Netherlands were requested to survey and report the nature, extent and cause of damage to the consignment.  The surveyors have clearly given a finding that the insects were present upon stuffing the consignment into the container and survived the fumigation due to the tight wrapping material which might have delayed the diffusion of the gas into the package. The surveyor considers it likely, that infestation is of a pre-stuffing nature.  Further, the surveyor has categorically stated that the shipper/ complainant is responsible for the same.  Further, the surveyors sought expert opinion about the characteristic features of the insects and obtained an opinion from the appropriate department of the University of Amsterdam. The Identification and Advisory Service in Entomology, University of Amsterdam, by letter dated 14.10.2008 has given its opinion that insects were present on the pallets prior to stuffing and that fumigation was not completely successful.  Therefore, it is very clear that loss suffered by the complainant was only due to improper packing and the insects were present even prior to stuffing the pallets into the container and survived fumigation due to tight wrapping material, which might have delayed the diffusion of the gas into the package.  It is true that infestation is of a pre-stuffing nature and hence attracted Exclusions Clauses 4.3 and 4.4 of Institute Cargo Clauses (A).   The mode of packing of the consignment has been stated in the certificate of insurance, namely, the subject matter has been packed in 20 HDPE bags each of 750 kgs., with liner LDPE liners of 20 pallets.  The preparation for ocean transportation is subject to the condition that the cargo and the container should be properly fumigated. According to the pallet fumigation certificate issued on 17.06.2008, the date of fumigation is 03.06.2008 and place of fumigation is Chennai.  In the said certificate there is a specification regarding wrapping and timber.  In answer to the question as to whether plastic wrapping has been used in the consignment, the answer is ‘not applicable’.  Evidently, fumigation has not taken place prior to packing of the 20 bags, each weighing 750 kgs with inner LDPE liners.  In other words, the bags were subjected to fumigation only after due packing.  The complainant having received the sale consideration from their buyer and having assigned the certificates of Insurance in favour of the consignee/ buyer, have no right to initiate any legal action in their name, and hence the complaint is liable to be dismissed.  The authorisation letter dated 26.07.2012 is a proof for absence of complainant’s right to file this complaint and the complaint is not filed in their representative capacity.  No power of attorney duly executed by the foreign buyer, is filed.  Thus, the opposite parties sought for dismissal of the complaint.

    

                4.  Counsel for the complainant has also filed a detailed reply to the version filed by the opposite parties. 

 

        5.  When the matter was taken up for consideration, learned counsel for the complainant inviting the attention of this Commission to Section 2(1)(d) and 2(1)(o) of the Consumer Protection Act, submitted that from a conjoint reading of the above definitions, it could be seen that a person who buys any goods for consideration is a Consumer, which includes such users of the goods or anyone who hires any services is also a Consumer and includes any beneficiary of such service.  The exclusion to this definition is, anyone who obtains such goods for resale or for any commercial purpose, or avails the service free of charge, or under a personal service or for any commercial purpose.  Therefore, only if the goods or services are used for commercial purposes, it would be excluded.  But availing of an Insurance policy by the complainant is neither for resale or for commercial purpose and it is for the use of the complainant and is not given out to anyone.  With regard to this, counsel for the complainant relied upon the judgment of the National Commission in the case of Harsolia Motors Vs. National Insurance Co. Ltd., reported in 2005 CPJ 27 NC and United India Insurance Co. Ltd., Vs. Leisure Wear Exports Ltd., reported in JT 2016 (7) SC 431.  With regard to the defence on ‘limitation’ raised by the opposite parties, counsel for the complainant submitted that the opposite parties had failed to see that the orders were placed on the complainant by M/s. Purac Biochem BV between 19.12.2007 and 01.08.2008, in 7 separate orders.  After following the procedures for shipment of the goods, including fumigation, the goods were shipped out to the complainant’s customer between 16.06.2008 and 10.07.2008.  The goods reached the customer at Rotterdam and the customer rejected container Nos. 15, 16, 17 and 18 between 08.08.2008 and 08.09.2008.  These containers were insured with the opposite parties between 18.06.2008 and 11.07.2009.  A formal claim was lodged with the opposite parties on 12.12.2008 and only on 08.01.2010 the claim was rejected by M/s.Inter Lloyd Averij BV.  Hence, vide email dated 10.03.2010 a request was made to the opposite parties for settling the claims to which, a reply was received on 23.06.2010 from the opposite party, seeking details and calling upon the complainant to visit the opposite parties at Delhi.  The details were sent and the complainant visited the headquarters of the opposite parties on 04.08.2010.  Only thereafter, on 28.09.2010 the opposite parties sent a letter rejecting the claim.  Against this rejection dated 28.09.2010, the present complaint is filed in August 2012, which is within the two year limitation, as provided under the Act. 

 

        6.  The counsel for the complainant further submitted that so far as merit of the complaint is concerned, the complainant company had packed the material in the manner, as per international standards, stuffed the products into the containers, fumigated the containers, sealed them and also obtained certificates for such fumigations, which are marked as Ex.A8 to Ex.A15.  The pallets were fumigated at the factory of the complainant at Hosur itself, before shipping.  This fumigation is done for pallet treatment which takes care of insects, pests, etc., present in the pallets and the container fumigation is for the outer surface of the pallet packing treatment and for the inside of the container.  The container fumigation is done at Chennai by a certified external party, using his manpower.  The University of Amsterdam did not give any conclusive finding that the infestation arose due to improper fumigation and it only states that they considered it not unlikely that the insects were present on the pallets prior to stuffing and that the fumigation was not completely successful.  Therefore, the University has not come to a definite conclusion that the cargo was infested due to poor fumigation.  Thus, the counsel for the complainant submitted that certainly there is deficiency of service on the part of the opposite parties in rejecting the claim and thus prays to allow the complaint.

 

                7. Countering the same, counsel for the opposite parties submitted that the opposite party is a service provider in as much as they are a General Insurance company.  However, the complainant is not a consumer as defined under Section 2(d)(ii) of the Consumer Protection Act, 1986.  As stated in paragraph 4 and 5 of the complaint, they are manufacturers and are engaged in the business of production of Calcium and other related products.  Admittedly, the complainant sells their product internationally, based on purchase orders placed by various buyers/ companies, resulting in distribution for sale and profit.  During the course of such commercial transactions, for their benefit they availed the services of the opposite parties.  Therefore, they do not come under the definition of the word ‘Consumer’ in as much as they availed the services provided by the opposite party for commercial purposes.  Further, under Section 2(g) of the Act, ‘Trade’ is also defined as a trader in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form.  The complainant is an exporter, manufacturer, distributer and seller of their product Calcium Gluconate.  Therefore, it is established that the complainant is a Trader for gain, directly attracting the exclusion as provided under the definition of a Consumer, under Section 2(d)(ii) of the Act.  Furthermore, the dispute is one arising under the contract of Marine Insurance governed by a special enactment, namely, the Marine Insurance Act, 1963.  The complainant having received the sale consideration from their buyer and having assigned the certificates of Insurance in favour of the consignee/ buyer are not having any right to initiate any legal action in their name.  The authorisation letter dated 26.07.2012 filed with the complaint is proof of absence of complainant’s right to file and maintain this complaint.  The complaint is not filed in their representative capacity.  No Power of Attorney duly executed by the foreign buyer is filed.  The complaint is hopelessly barred by limitation under Section 24-A of the CP Act as the same is not filed within two years from the date of accrual of cause of action or repudiation of the claim.  The complainant has admitted in paragraph 11 of the complaint that their assignee lodged a claim on 12.12.2008.  The said claim was rejected on the ground of infestation prior to shipment and inherent vice and the same was intimated to the complainant on 08.01.2010, for which a reply was sent by the complainant on 18.02.2010.  The complaint was filed only in August 2012, which is after two years from the date of repudiation.  Therefore, the complaint is purely hit by limitation. Thus, the complaint is liable to be dismissed.

 

                8.  In order to prove the case, on the side of the complainant, along with proof affidavit, 52 documents have been filed and the same were marked as Ex.A1 to Ex.A52.   On the side of the opposite parties, proof affidavit and 28 documents have been filed and were marked as Ex.B1 to Ex.B28.

 

                9.  Keeping in mind the submissions made by the counsel for either side, we have carefully gone through the entire materials available on record. 

 

                10.  It is the main submission of the counsel for the opposite parties that the complainant is not a Consumer.  But, we find that, as contended by the counsel for the complainant, a con-current reading of Section 2(1)(d) and Section 2(1)(o) of the Consumer Protection Act, anyone who hires any services is also a Consumer and includes any beneficiary of such service.  In this regard, it would be appropriate to rely upon the judgment of the National Commission in the case of Harsolia Motors and the judgment of the Supreme Court in United India Insurance Co. Ltd., (cited supra), wherein it has been held that the insurance policy is taken for reimbursement or for indemnity, for the loss which may be suffered due to various perils.  There is no question of trading or carrying on commerce in insurance policies, by the insured.  Therefore, the complainant will fall within the purview of a “consumer”.  The next defence raised by the opposite parties is that the complaint is barred by limitation.  It is the specific contention of the opposite parties that the complaint is hopelessly barred by limitation, as per Section 24A of the CP Act as the same is not filed within two years.  It is the contention of the opposite parties that the repudiation of the claim was intimated to the complainant on 08.01.2010, for which a reply was sent by the complainant on 18.02.2010.  But the complaint was filed in August 2012 i.e., after a period of two years.  Whereas, according to the complainant, though the claim was rejected on 08.01.2010, the complainant, by email dated 10.03.2010 again made a request to the opposite parties to settle the claim, for which the opposite parties sent a letter dated 23.06.2010 seeking details and calling upon the complainant to visit Delhi and meet the officials at their headquarters.  As requested by the opposite parties, the details have also been sent on 04.08.2010.  Thereafter, only on 28.09.2010 a letter was received from the opposite parties, repudiating their claim, against which the complaint was filed in August 2012. Therefore, according to the complainant the complaint is within the period of limitation.

 

             11.  Therefore, the factual matrix of the case would show that the opposite parties, had rejected the claim of the complainant on 08.01.2010 itself.  Thereafter, the complainant made a request for considering their claim, again by letter dated 10.03.2010.  Once the Claim is rejected, thereafter by exchanging correspondences in respect of the said claim, the limitation cannot be extended.  The limitation period has to be calculated from 08.01.2010 only and not from the subsequent events.  In fact this Commission in the judgment delivered in F.A. No.103 of 2014 dated 22.02.2022 in the case of Dr.Raghavendra Rao and Archana Raghavendra Rao Vs. The Manager In-charge, Standard Chartered Bank Ltd., had observed that,

             “when the consequences resulting from a single source by themselves would not constitute a fresh or further cause of action so as to term it a ‘continuity in cause of action’, the events enumerated by the appellants viz., payment followed by detection of forgery, lodging criminal complaint with the police, forensic report confirming the forgery, legal notice, etc., are all nothing but consequences flowing from the said single instance; thus, we see no substance in the claim for continuity in cause of action.   At the risk of repetition, it is underlined that consequences arising from the same injury that gave rise to the cause of action can never be cited as grounds for continuity in cause of action for reviving a time-barred dispute. In the present case,  when the alleged act  of forgery did not give rise to a liability de die in diem, the endeavour of the appellants to  hopelessly convert the cause of action into ‘continuity in cause of action’  for reviving a dead complaint that was hit by limitation,  cannot be legally permitted”.   

 

The said judgement is squarely applicable to the facts of this case also.  Therefore, we are of the opinion that the complaint is purely hit by limitation. 

                12.  So far as the merit of the case is concerned, the product is filled in big bags having two layers.  The first one is known as the liner into which the product is filled and the second layer is the bag.  It is the specific case of the complainant that as per international standards the material was packed, stuffed the products into containers, fumigated the containers and had sealed them.  In order to prove the same, they have also filed certificates for fumigation, which are marked as Exhibits A8 to A15.  The pallets were fumigated at the complainant’s factory at Hosur, before shipping.  Whereas, according to the opposite parties, the preparation of ocean transportation is subject to the condition, precedent to the cargo and the container should be properly fumigated.  Four consignments, under four invoices were despatched to the consignee, at Rotterdam, The Netherlands.  The consignees had found the consignments infected with insects and sought assessment of the nature of infection.  Hence, the complainant was directed to contact M/s. Inter Lloyd Avery BV, at Rotterdam, The Netherlands for claim intimation and survey.  They conducted the survey on various dates and issued their survey report, stating that infestation had taken place prior to stuffing the consignment into the container, packing/ preparation prior to transit.  Similarly, in 3 other containers also the products were infected and rendered unfit for the purpose for which the consignee had imported the same.  Thus, the consignment was infected even prior to the commencement of the marine transit and not due to any marine peril, for which the complainant had sought insurance coverage with the opposite parties.  The claim has been rejected based on the survey report, which was issued as per Section 64 UM of the Insurance Act, which have statutory force when the report is issued by the Lloyds Surveyor.   In support of this, the judgment of the Supreme Court is relied upon the case of Sri Venkateswara Syndicate Vs. Oriental Insurance Co.Ltd., reported in (2009) 8 SCC 507.  

 

        13.  Be that as it may, all the above aspects would go to show that, in this case disputed question of facts are involved, which cannot be gone into or decided by this Commission in a summary manner, by merely relying upon the pleadings made on either side.   The proper forum to decide the issue is only a Civil Court, particularly when these types of complicated issues are involved, to delve into which, it is inevitably necessary that the parties shall, apart from filing elaborate documentary evidence, also adduce oral evidence that would include cross-examination of the witnesses.  Further, from the submission of the counsel for the complainant we find that the complainant has received the sale consideration from their buyer and have assigned the certificates of Insurance in favour of the consignee/ buyer. The complainant has filed the authorisation letter dated 26.07.2012 along with the complaint.  But, the complainant has not filed the complaint in their representative capacity.  Furthermore, there is no averment in the complaint that the complaint is filed for and on behalf of the consignee/buyer, who is competent to claim under the policy assigned in their favour.  Therefore, the complainant has no locus standi to file the complaint. 

 

                 14. In view of the discussion made above, the complaint is liable to be dismissed.  Accordingly, the Complaint is dismissed.  No costs.

                                        

 

R VENKATESAPERUMAL                                                                                                                            R.SUBBIAH

       MEMBER                                                                                                                                              PRESIDENT

 

 

DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

 

Ex. A1       27.02.2008       Purchase order of M/s. Purac Biochem BV

                                           placed with complainant

       

Ex.A2        07.07.2008       Purchase order of M/s. Purac Biochem BV

                                           placed with complainant

 

Ex.A3        16.06.2008       Invoice No.GC/E-061 raised by complainant

                                           On M/s.Purac Biochem BV

 

Ex.A4        17.06.2008       Fumigation Certificate issued by Scientific

   Pest Control Services for Invoice

   No.GC/E-061

 

Ex.A5        18.06.2008       Fumigation Certificate issued by Fumigation

   Technologies (India) Invoice No.GC/E-061

 

Ex.A6                       Marine Cargo Certificate of Insurance issued

   by Opposite parties for Invoice No.

   GC/E-061

 

Ex.A7        24.06.2008       Invoice No.GC/E-069 raised by complainant

                                           On M/s.Purac Biochem BV

 

Ex.A8        27.06.2008       Fumigation Certificate issued by Fumigation

   Technologies (India) Invoice No.GC/E-069

 

Ex.A9        01.07.2008       Fumigation Certificate issued by Scientific

   Pest Control Services for Invoice

                                           No.GC/E-069

 

Ex.A10                           Marine Cargo Certificate of Insurance issued

   by Opposite parties for Invoice No.

   GC/E-069

 

Ex.A11      04.07.2008       Invoice No.GC/E-078 raised by complainant

                                           On M/s.Purac Biochem BV

 

 

Ex.A12      08.07.2008       Fumigation Certificate issued by Fumigation

   Technologies (India) Invoice No.GC/E-078

 

Ex.A13      11.07.2008       Fumigation Certificate issued by Scientific

   Pest Control Services for Invoice

                                           No.GC/E-078

 

 

Ex.A14                             Marine Cargo Certificate of Insurance issued

   by Opposite parties for Invoice No.

   GC/E-078

 

Ex.A15      10.07.2008       Invoice No.GC/E-082 raised by complainant

                                           On M/s.Purac Biochem BV

 

Ex.A16      11.07.2008       Fumigation Certificate issued by Scientific

   Pest Control Services for Invoice

                                           No.GC/E-0082 

 

 

Ex.A17      13.07.2008       Fumigation Certificate issued by Fumigation

                                            Technologies (India) for Invoice No.GC/

                     E-082

 

Ex.A18                              Marine Cargo Certificate of Insurance issued

   by Opposite parties for Invoice No.

   GC/E-082

 

Ex.A19      08.08.2008       E-mail from complainant to M/s.Interlloyd

Averij BV (Insurance agent of opposite       parties)

 

Ex.A20      08.08.2008       E-mail from M/s.Interlloyd Averij BV to

   complainant

 

Ex.A21      11.08.2008       E-mail from complainant to M/s.Interlloyd

   Averij BV

 

Ex.A22      13.08.2008       E-mail from complainant to M/s.Interlloyd

   Averij BV

 

Ex.A23      14.08.2008       E-mail from M/s.Interlloyd Averij BV to

                                           complainant

 

Ex.A24      18.08.2008       E-mail from complainant to M/s.Interlloyd

   Averij BV

 

Ex.A25      18.08.2008       E-mail from M/s.Interlloyd Averij BV to

                                           complainant

 

Ex.A26      19.08.2008       E-mail from complainant to M/s.Interlloyd

   Averij BV

 

Ex.A27      17.09.2008       Letter from complainant to 1^st opposite

   Party

 

Ex.A28      17.09.2008       Letter from complainant to 1^st opposite

   Party for Invoice No.GC/E-061

 

Ex.A29      17.09.2008       Letter from complainant to 1^st opposite

   Party for Invoice No.GC/E-069

 

Ex.A30      17.09.2008       Letter from complainant to 1^st opposite

   Party for Invoice No.GC/E-078

 

Ex.A31      17.09.2008       Letter from complainant to 1^st opposite

   Party for Invoice No.GC/E-082

 

Ex.A32      23.09.2008       Letter from 1^st opposite party to

   complainant

 

Ex.A33      23.09.2008       Letter from complainant to 1^st opposite

                                           Party

 

Ex.A34      27.09.2008       E-mail from complainant to M/s.Interlloyd

   Averij BV and 1^st opposite party

 

Ex.A35      10.10.2008       Letter from 1^st opposite party to

                                           Complainant

 

Ex.A36      12.12.2008       Letter from complainant to 1^st opposite

                                           Party

 

Ex.A37      30.12.2009       E-mail from Cargo Claims Dept., of

   W.K.Webster & Co., to M/s.Interlloyd

   Averij BV with separate copy

                                                                                                                                   

Ex.A38      08.01.2010       E-mail from M/s.Interlloyd

   Averij BV to M/s.Purac Biochem BV

   with separate copy

 

Ex.A39      08.01.2010       E-mail from M/s.Purac Biochem BV to

   Complainant with separate copy

 

Ex.A40      19.01.2010       Letter from 1^st opposite party to

                                           Complainant

 

Ex.A41      18.02.2010       E-mail from complainant to 1^st Opposite

   Party

 

 

Ex.A42      10.03.2010       Letter from complainant to 1^st opposite

                                           Party

 

Ex.A43      10.05.2010       Letter from 2^nd opposite party to

                                           Complainant

 

Ex.A44      23.06.2010       Letter from opposite party to

                                           Complainant

 

Ex.A45      06.07.2010       Letter from complainant to opposite

                                           Party

 

Ex.A46      05.08.2010       E-mail from Head office of opposite parties

   To 2^nd opposite party

 

Ex.A47      28.09.2010       Letter from 2^nd opposite party to

                                           Complainant

 

Ex.A48      14.10.2011       E-mail from complainant to the Chairman

   Of the Opposite Parties

 

Ex.A49      14.12.2011       E-mail from complainant to the Chairman

                                           Of the Opposite Parties

 

Ex.A50                              Institute Cargo Clauses (A) of Opposite

   Party

 

Ex.A51                              Comparison Table between Institute

                                           Cargo Clauses (A), (B) and (C)

 

Ex.A52                              Authorization Letter

 

 

 

DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES

 

Ex. B1                               Marine Policy Form

 

Ex.B2        27.02.2008       Invoice

 

Ex.B3        27.02.2008       Packing list & Weight Specs.cum Packing list

 

Ex.B4        17.06.2008       Marine Cargo –open cover

 

Ex.B5        20.06.2008       Bill of lading

 

Ex.B6        28.06.2008       Marine Cargo Certificate of Insurance

 

Ex.B7        10.07.2008       Bill of lading

 

Ex.B8        04.07.2008       Certificate of Origin

 

Ex.B9        11.07.2008       Marine Cargo Certificate of Insurance

 

Ex.B10      11.07.2008       Marine Cargo Certificate of Insurance

 

Ex.B11      13.07.2008       Bill of lading

 

Ex.B12      25.07.2008       Bill of lading

 

Ex.B13      14.10.2008       Report of Universiteit Van Amsterdam

 

Ex.B14      22.10.2008       Reminder Letter

 

Ex.B15      29.11.2008       Letter by the complainant

 

Ex.B16      11.03.2009       Purchase order

 

Ex.B17      23.04.2009       Sea waybill

 

Ex.B18      18.06.2009       Sea waybill

 

Ex.B19      18.06.2009       Sea waybill

 

Ex.B20      16.10.2009       Invoice

 

Ex.B21      16.10.2009       Survey Report

 

Ex.B22      16.10.2009       Survey Report

 

Ex.B23      16.10.2009       Survey Report

 

Ex.B24      13.11.2009       Letter by cargo claims department

 

Ex.B25      13.11.2009       Tax Invoice

 

Ex.B26      28.09.2010       Letter by 2^nd opposite party

 

Ex.B27                               Material safety data sheet

 

Ex.B28                               Tracking Shipment details

 

 

 

R  VENKATESAPERUMAL                                                                                                                        R.SUBBIAH

       MEMBER                                                                                                                                          PRESIDENT

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/November/2022