CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.308/2011
MAHALAXMI
(THROUGH ITS PROPRIETOR)
SH. SANJAY AGRAWAL
SHRI RAM VILLA,
UDAI SINGH JAIN ROAD,
ALIGARH, U.P.
…………. COMPLAINANT
Vs.
TATA AIG GENERAL INSURANCE CO. LTD.
LOTUS TOWER, 1ST FLOOR, COMMUNITY CENTRE,
NEW FRIENDS COLONY, NEW DELHI
…………..RESPONDENT
Date of Order:22.01.2019
O R D E R
A.S. Yadav - President
This complaint under section 12 of the Consumer Protection Act, 1986, has been filed by Mahalaxmi, the complainant, through its Proprietor Shri Sanjay Agrawal , against Tata AIG General Insurance Co. Ltd., submitting that the complainant is carrying on business of export and engineering hardware, at Aligarh, and the address of the complainant for the purposes of service of summons and notices is that of its advocates at Abacus Legal Group, R-116, Ground floor, Greater Kailash part I, New Delhi-110048. The OP claims that it provides a complete range of general insurance products including insurance for automobile, home, personal accident, travel, energy, marine, property and casuality as well as several specialized financial lines. The complainant obtained insurance cover for the goods that were to be exported from Aligarh, UP to New York, USA vide insurance policy bearing no.834911=CIF dated 25.09.2010. It is submitted that the goods reached the consignee at New York, USA in a damaged state i.e. the packaging box was found broken and the material rusted. The claimant submitted a claim form with the OP but neither any satisfactory reply was given nor has the OP honoured its commitment which is contrary to the tall claim. The action of the OP is gross deficiency in service as is demonstrated from the sequence of events.
It is submitted that the complainant had to consign goods valued at $28,800 and $13,200 to Marksmen Manufacturing Corporation (Marksmen) having its address at 355, Marcus, BLVO – Deer Park – NY -11729. It is submitted that a packing list dated 13.9.2010 was prepared for delivery of the goods to the port of Nhava Sheva while the port of discharge and the final destination remained at New York, USA. The invoice value of goods was US$ 49,050 equivalent to Rs.22,07,250/-, and in this regard, an invoice bearing no.10 dated 13.9.2010 was prepared. The consignment was transported by road by the transporter Delhi Gujarat Fleet Carriers Pvt. Ltd. having its branch office at New Delhi, starting their journey from Aligarh on 24.9.2010 and 25.9.2010 to be delivered to M/s Francis Shipping Agency for its onward shipping to the final consignee at New York. The OP issued a certificate of Insurance bearing policy no.834911 – CIF dated 25.9.2010. A combined transport bill of lading bearing no.NHY NY 1475 dated 6.10.2010 was issued by Knight International Corporation Ltd. to be consigned to the consignee Marksmen and the notified party was Ikaros Transport Corporation Ltd. The consignment was put aboard the container no.HLXU 341604-O, 20th, the consignment was photographed and seal bearing no.765059 was planted. It is submitted that on 12th November, 2010, the complainant was shocked to receive an email from the consignee that they want to return the rusty parts to the shipper. On 16.11.2010, the complainant received yet another email insisting therein for taking back the rusty parts followed by another email dated 17.11.2010 clarifying that the consignee will not pay shipping to the shipper/complainant for return of one box weighing 34 pounds. It is submitted that another email was received by the complainant on 18.11.2010 clearing specifying that the shipper has to provide the shipping address along with the advice that the entire expenses would be borne by the complainant, and that the repeated emails caused a lot of embarrassment and loss of future business opportunity. It is further submitted that the complainant immediately made a claim with the shipping line i.e. Hapag Lloyd India Pvt. Ltd. having its registered office at Diamond Square, Second floor, CST Road, Kalina, Santacruz (E) Mumbai-400098 vide letter dated 20.11.2010. In pursuance thereto, the complainant addressed a communication dated 27.11.2010 to the OP, for settlement of his claim. A hard copy of the marine claim form dated 29.11.2010 was also lodged with the OP by a registered mail received on 30.11.2010 claiming therein US $49050 equivalent to Rs.24,27,975 for the broken/damaged and rusted consignment that was delivered at the port of discharge.
It is further submitted by the complainant that with a view to substantiate the damage/loss occurred for the consignment in transit, the complainant then contacted Francis Shipping Agency Ltd. having its registered office at Mumbai, and in response thereto, the Francis Shipping Agency furnished documents comprising of letter from the office of Forbes & Company Ltd., running container Freight Station at Veshvi (Village), Dighode (Post), Uran (Taluka), Raigad (District), Maharashtra, confirming therein that the cargo stuffed in the container was absolutely dry and seaworthy and to which extent certified copies of stuffing request, stuffing sheet and photographs were provided to the complainant. Letter dated 28.2.2011 received from Samarth Pacific Marine Cargo Pvt. Ltd. once again confirmed that the condition of the cargo at the time of stuffing was dry and in sound condition in container bearing no.HLXU 3416040 20”. The complainant further submits that there was no response from the insurer Tata AIG General Insurance Company Ltd. despite lodgment of insurance claim. The OP confirmed having registered the complainant’s claim bearing allotment no.431552 as early as 27.11.2010 for Policy no.0830004911, and thereafter having heard nothing from the OP even after 3 months, the complainant even lodged a complaint with the Insurance Regulatory Development Authority vide complaint bearing registration no.115/TATNL/COMP/10-11 dated 26.2.2011. The complainant is stated to have received a payment of US $ 49,050 and hence the amount unrecovered is US $21050 till date which is liable to be payable by the OP along with interest apart from other claims. The complainant further submits that the services of the OP hired and availed by the complainant suffer from gross deficiency as every attempt has been made to delay the claim settlement of the complainant. The complainant finally prays that the OP might be directed to settle insurance claim of the complainant to the tune of US $21,050, equivalent to Rs.9,36,725/- along with interest.
In its WS/Reply, the OP submitted that the complaint is not maintainable because the complainant has not disclosed the true and correct facts; the complainant is a commercial entity and does not come under the ambit of provisions of the Act; the complainant is not a consumer as defined under the Act; there is no deficiency of service on the part of the OP. It is submitted that based on the surveyor’s findings, none of the perils served as the operative cause of the damage sighted in the present claim and the loss of the claim of the complainant was declined under the insuring terms and condition being specifically excluded in the policy.
The OP submitted that rusting has not occurred due to moisture in the container but due to the cargo itself getting drenched in rainwater which had led to getting the same rusted, as mentioned in the Survey report; that the claim of the complainant related to overseas transactions hence the processing of claim for assessing the loss by the surveyors located outside India took time and based on the report of the surveyor, proper decision was supposed to be taken by the OP. The OP further denies the claim of the complaint and submits that the complainant is not entitled to any amount of compensation or interest.
The complainant filed replication to the reply filed by the OP and denied the contents of the reply as wrong, false, vague and denied, and reiterated and reaffirmed the allegations and averments of the complaint as true and correct. The complainant submits that the survey report relied upon by the OP states possibility and probabilities about the manner in which goods were got damaged and the cause confirmed was presence of moisture. The said report of Maritime Alliance Group, Inc. although confirms the possibility of cargo being wetted at some point of time before being loaded into the container, however, it is contrarily stated that the cargo was in dry condition at the time of it being loaded into the container. The report furnished by Forges & Company Ltd. confirms that the cargo stuffed in the container was absolutely dry and in seaworthy condition. It is further submitted that if any shipment was found moist or damaged, it would be immediately rejected and returned. It is submitted by the complainant that the OP admits that the complainant’s claim had been received by the OP and that there was delay caused in processing of claim and assessing the loss by the surveyors located outside India. It is submitted that admittedly the claim was lodged by the complainant on 27.11.2010 while the reason rejecting the claim was brought to the notice of the complainant by virtue of reply filed after more than sixteen months i.e. on 27.3.2012 before this Forum.
The parties filed their respective evidence by way of affidavit and also their written submissions.
We have gone through the case file carefully.
It is submitted by Ld. Counsel for OP that the ‘Open Policy Clause, Special Condition/Warranties/Exclusions’ reads as follows:-
“Institute Standard Conditions for Cargo Contracts 1/4/82. Warranted carrying vehicle is closed or adequately covered with weather proof materials. Warranted cargo to be containerized during ocean voyage. Excluding losses due to Rust, Oxidation & Discoloration unless caused by ICC/ITC (B) perils.
Per institute Cargo Clause (B), 1, Risk Clause
This insurance covers, except as provided in clause 4, 5, 6 and 7 below,
- loss of or damage to the subject-matter insured reasonably
attributed to
1.1.1 fire or explosion
1.1.2 vessel or craft stranded grounding sunk or capsized
1.1.3 overturning or derailment if land conveyance
1.1.4 collusion or contract of vessel craft or conveyance with any
external object other than water
- discharge of cargo at a port of distress
1.1.6 earthquake volcanic eruption or lightning
1.2 loss or damage to the subject-matter insured caused by
1.2.1 general average sacrifice
1.2.2 jettison or washing overboard
1.2.3 entry of sea lake or river water into vessel craft hold conveyance container lift van or place of storage
1.3 total loss of any package lost overboard or dropped whilst loading on to, or unloading From, vessel or craft.”
It is submitted that based on the surveyor findings, none of the above perils served as the operative cause of the damage sighted in the present claim. The claim of the complainant was declined under the insuring terms and conditions.
The surveyor has specifically stated in his final report that consignee found no evidence of moisture within the container. The surveyor further found that the rusting and oxidation had resulted in discoloration of the zinc coating on the insured pipes and that there is every possibility of cargo being wetted at some point before loaded into the container in India.
To this, it is submitted on behalf of the complainant that Francis Shipping Agency furnished documents comprising of letter from the office of Forbes & Company Ltd., confirming therein that the cargo stuffed in the container was absolutely dry and seaworthy. Letter dated 28.2.2011 received from Samarth Pacific Marine Cargo Pvt. Ltd. (Marine Surveyors, Loss Assessors, Cargo & Container Superintendent) once again confirmed that the condition of the cargo at the time of stuffing was dry and in sound condition in container bearing No. HLXU 3416040 20”.
The fact of the matter is that the damages were suffered due to rusting/oxidation and these damages were not covered under the Risk Clause. As such OP was justified in repudiating the claim. No case of deficiency on the part of OP is made out. The complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(H.C. SURI) (A.S. YADAV)
MEMBER PRESIDENT
