STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (Consumer Complaint No.6 of 2010) Date of Institution | : | 28.01.2010 | Date of Decision | : | 05.04.2011 |
1. M/s Glass Palace, SCO 43, Sector 7-C, Madhya Marg, Chandigarh through its Proprietor Shri Ajay Gupta. 2. Shri Ajay Gupta, Proprietor of M/s Glass Palace, SCO 43, Sector 7-C, Madhya Marg, Chandigarh …… Complainants. V e r s u s 1. TATA AIG General Insurance Company Ltd., 2nd Floor, SCO No.232, Sector 34-A, Chandigarh-160034 (India) through its Senior Branch Manager/Branch Head. 2nd Address : TATA AIG General Insurance Company Ltd., Ahura Centre, 4th Floor, 82, Mahakali Caves Road, Andheri East, Mumbai through its Senior Manager (Claims). .... Opposite Parties. BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT. MRS. NEENA SANDHU, MEMBER. S. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. Vikas Sagar, Advocate for the Complainants. Sh. Rajneesh Malhotra, Advocate for the OP. PER JAGROOP SINGH MAHAL, MEMBER The complainant’s have filed the present complaint under Section 17 of Consumer Protection Act, 1986 against the OP–Insurance Company alleging deficiency in service on their part in repudiating its genuine claim. 1. The complainant No.1, M/s Glass Palace, is a proprietorship firm, owned by complainant No.2, which insured the goods i.e. wooden and brass furniture under Marine Policy Cover Note dated 6.2.2009 (Annexure C-1) and amended Marine Cargo Endorsement dated 17.3.2009 (Annexure C-2) after paying the premium of Rs.4,586/- vide cheque No.034583 dated 6.2.2009 (Annexure C-3) and the total sum insured was Rs.45,85,000/- as per the purchase order dated 3.1.2009 and Invoice dated 6.2.2009 (Annexures C-4 and C-5). It is averred that the consignment was to be sent to Canada Warehouse from Chandigarh Warehouse via Transshipment Port Colombo (Sri Lanka) by sea/rail/road and that before dispatching the consignment, the complainant applied for re-shipment and load survey vide letter dated 4.2.2009 (Annexure C-7) and declaration to the custom authority was also given on 9.2.2009 vide FORM SDF (Annexure C-8). The complainant also obtained the Certificate of Origin from the Export Inspection Council, Government of India vide Certificate dated 9.2.2009 (Annexure C-9). The Certificate of weighment and measurement (Annexure C-10), Stuffing Container Survey Report dated 6.3.2009 (Annexure C-12) and Fumigation Certificate dated 7.3.2009 (Annexure C-13) were also obtained by the complainants. It was also averred that on dispatch of shipment, OPs were duly intimated vide letter dated 14.3.2009 (Annexure C-14) and the Banker of the complainants was also intimated vide letter dated 16.3.2009 (Annexure C-15). A copy of Pre-Inspection Survey dated 16.3.2009 (Annexure C-17) was also supplied to the OPs by the complainants. The case of the complainants is that unfortunately, when the cargo arrived in Toranto-Canada, it was found by the consignee that the same did not belong to him and on investigation, the same was found to be interchanged in transit at Colombo in Sri Lanka with some other consignment. As per the complainants, the consignee did not take the delivery of the wrong consignment and immediately informed the consignor as well as the Insurance Company. A claim was lodged by the consignee with the shipping line vide letter dated 12.5.2009 (Annexure C-19) and the OPs were also informed about the non delivery of the consignment vide letter of the same date (Annexure C-20). It is next averred in the complaint that heavy correspondence took place between the complainants and the OPs vide Annexures C-22 to C-30 and all the requisite documents were supplied to the OPs from time to time, but despite its best efforts, the OPs delayed the settlement of the Insurance Claim and vide letter dated 10.10.2009, they were asked by the complainants to supply the documents (under Right to Information Act, 2005), which they discovered in Sri Lanka as well as from other places through their surveyor, but they refused to hand over the same. Ultimately, after submitting all the necessary documents, information and clarifications by the complainants as well as the consignee, the OPs Insurance Company repudiated the claim of the complainants vide letter dated 29.12.2009 (Annexure C-41). It is averred that thereafter, the complainants served a legal notice dated 9.1.2010 (Annexure C-42) upon the OPs and finally, filed the present complaint seeking direction to them to release its insurance claim of $91,700 (cost + 10%) (Rs.44,38,280 @48.40 prevailing rate); interest @18% per annum from the date of loss; Rs.5 Lacs as compensation for mental and physical harassment and Rs.50,000/- as litigation expenses were also claimed. 2. OPs in their joint reply firstly took some preliminary objections as regards the complainants filing the false complaint, complaint being grossly misconceived; complainants not being consumer; lack of territorial and pecuniary jurisdiction, complainants not coming to the court with clean hands and the complaint being bad for non joinder of necessary parties i.e. Waterway Container Pvt. Ltd. through which the consignment was sent and allegedly misplaced. On merits, it is admitted that the insurance policy was issued on the principle of utmost good faith subject to the terms and conditions of the policy that the risk covered was to the tune of Rs.45.85 Lacs and it was specified in the insurance policy that the underwriter had taken the risk w.e.f. 6.2.2009. It is next submitted that the procedure in the event of loss or damage to be followed and the risk covered was specified in the insurance policy. It is pleaded that as per the purchase order dated 3.1.2009 (C-4), the total value of the order was to be USD $83,350 with the delivery date as 28.2.2009, but from the very beginning the consigner had an intention to route the cargo through Colombo (for transshipment) as is clear from mail dated 4.2.2009. It is asserted that as per Annexure R-2 i.e. computer printout obtained from Indian Customs EDI System, the CHA for the consignment is R. K. Khurana and it is beyond normal understanding as to how the consignor could get the BL No. of Waterway Container Pte Ltd. on 6.2.2009 when the same was reportedly issued after a month on 6.3.2009. As per the OPs, the invoice-cum-packing list document is a concocted document and further the purchase order (C-4) looks fake at the face of it for the simple reason that the articles mentioned therein lack any description to their quality or catalogue number. As regards the address of Waterway Container Lines Pte Ltd., LIG 219, Sarita Vihar, New Delhi, OPs submitted that there is no such company running at this address and the given address of Waterway Container Lines Pte. Ltd. is a residential flat. As per the OPs, Waterway Container Lines Pte Ltd. even did not have their own carting area and they were used by the complainants just as a face-off to disguise the insurance company showing that the goods were being sent through them. It is next asserted that as per the Investigator’s report (Annexure R-6), consignments of three different firms managed by same set of persons were put into same container and as a preplanning, the container was booked for Colombo where manipulation leading to the alleged swapping could be done. OPs also asserted that the Fumigation Certificate is a concocted document as it mentioned the date of fumigation as 6.3.2009 with its duration as 24 hours whereas, as per stuffing sheet of Central Warehousing Corporation, the container was stuffed at 18.06 hours on 6.3.2009. It is next asserted that the bill of lading issued by Waterway Container Lines Pte Ltd. clearly shows that the same was shipped on board on 20.3.2009 after the due date of delivery of goods i.e. 28.2.2009, which shows the fraud been played by the complainant on the OPs by making a false claim. OPs also stated that Annexure C-19 i.e. letter dated 12.5.2009 as self created document by the complainant because the address of Waterway Container Lines Pte Ltd. is not mentioned on this letter. As per OPs, one non-delivery certificate was provided by Waterway Container Lines Pte. Ltd. to Beverley Howard Inc. on 10.6.2009 (Annexure R-15) and on this letter also, there was no address of Waterway Container Lines Pte. Ltd. Capt. Mike Talwar, Marine Surveyor of International Marine Surveyors Ltd. also gave his report dated 21.07.2009 (Annexure R-16). The matter was also handed over to one Anand Wijesinghe, Chartered Insurance Practitioner, Sri Lanka for investigation who vide his e-mail dated 4.8.2009 stated that there was fraud being played upon the OPs. OPs also annexed with the reply, copy of report received from State Bank of Patiala as Annexure R-22 which shows that the amount of invoice was paid to the complainant through wire transfer and once the said amount stands paid, the complainant is left with no locus standi to file the present complaint. OPs also wrote to Kim Haniff at Canada, who vide his email dated 1.10.2009 (Annexure R-25) asked Sh. Sidhartha Patnaik to further investigate the matter. As regards the non supply of documents to the complainant under R.T.I Act 2005, OPs submitted that the same were refused as the provisions of RTI Act are not applicable to the OPs. As per OPs, the report of Truth Lab (Annexure R-31) shows that the e-mails of Waterway Containers Lines Pte. Ltd., Singapore and Beverley Howard Inc. Canada, which were supposed to be in their respective countries have all originated from I.P. Address of Airtel Broadband Chandigarh and the e-mails sent from the IP Address i.e. I.P. No.122173.6.24, which belonged to the same owner and same computer machine in Chandigarh. It is also pleaded that all the e-mails being created are fake as there is no such company by the name of Waterway Containers Lines Pte. Ltd., Singapore, Beverley Howard Inc. Canada registered in Singapore and Canada respectively and no e-mails were sent from Singapore and Canada but the same were sent from one single person sitting at Chandigarh. As per the OPs, this clearly shows that a fraud is being played upon the OPs to get the fraudulent claim as the whole transaction was sham. Finally, the OPs repudiated the claim of the complainant vide their letter dated 29.12.2009 (Annexure R-33) by passing a speaking order and giving detailed reasons. Pleading no deficiency in service on their part, OPs prayed for dismissal of the complaint. 3. Both the parties were given opportunity to lead evidence. 4. We have heard the arguments of the ld. Counsel for the parties and have perused the record, including the written synopsis submitted by the counsel for the complainant. Payment received. Complaint does not lie. 5. There is no dispute about it that the goods covered by the invoice cum packing list (Annexure C-5) were to be sent to M/s Beverley Howard Inc. Canada Annexure C-1 shows that the price of the goods covered by this invoice was US dollars 83,350. It is with respect to these goods that the insurance policy (Annexure C-1) was obtained and the goods were insured for Rs.45,85,000.00. In Annexure C-1 also, the name of consignee is M/s Beverley Howard Inc. It is also not disputed that the consignee M/s Beverley Howard Inc. has already made the payment for the consignment to the complainant. The OPs produced (Annexure R-22) and the documents attached therewith (pages 287 to 301 of the reply) to prove this fact. It is admitted by the OP through its reply (Annexure C-36) given in response to question No.3 raised by the OP that the payment for this invoice was received by their bank by wire transfer from CIBC Bank. It is further admitted in reply to question No.4 that the consignee bank remitted the payment on due date. When the complainant served a notice (Annexure C-42), it was admitted through para 6 of the same that the payment has been made from Canadian Bank to Indian Bank as per the contract of payment. The ld. Counsel for the complainant argued that the amount has been debited to their account vide Annexure C-43 and, therefore, the total amount has fallen due. In fact Annexure C-43 is purported to be a debit note and not the payment of the amount by the complainant to M/s Beverley Howard Inc. The ld. Counsel for the OP has argued that even the authenticity of Annexure C-43 is doubtful and it appears to have been created by the complainant because the affidavit of none from M/s Beverley Howard Inc. has been produced to prove it nor any evidence is produced to prove that the amount was sent back by the complainant to the said company. Otherwise also, it is not the case of the complainant if they returned the amount to the said bank or the consignee on receipt of the debit note. Admittedly, no legal proceedings have been initiated against the complainant to recover the said amount. In view of these facts, when the complainant has already received the value of the invoice, they cannot now file this complaint to get further enrichment by claiming the amount from the insurance company. Waterway Container Lines Pte. Ltd. not made a party. 6. It emerges from the facts enumerated above, that the entire problem arose due to the fault of the Waterway Container Lines Pte Ltd., because the goods of other consignees are alleged to have been stuffed in the same container in which the goods of the complainant were stuffed and the goods of the complainant are alleged to have been removed at Colombo by the other consignee A. Phillips instead of taking delivery of his own goods. The complainant served a notice (Annexure C-42) in para 11 of which it was mentioned that the consignments were got interchanged during transit in Colombo. The Marks on the goods should have been specifically and correctly mentioned so as to avoid the goods being taken out of the container by unauthorised person at Colombo. When a questionnaire was sent to the complainant, enquiring about this fact (page 84 of the complaint) in reply to question No.2 the complainant alleged that it is upon the shipping line how they load the container. The notice, copy of which is Annexure R-9 (at page 221 of the reply) also held the Waterway Container Lines Pte Ltd. responsible for the loss caused to the consignee and lodged their claim on them. The consignee wrote an email Annexure R-12 (Colly.) dated 13.5.2009 (at page 235 of the reply) to the Waterway Container Lines Pte Ltd. informing them that they were responsible for the mishandling of their shipment and a notice has been issued to them. Again, through another email, dated 13.5.2009 [Annexure R-12 (colly.) page 233 of the reply] the consignee informed them that they did not look to be a professional company because this type of error was not expected from their kind of a big company. The waterwaycontainer.com vide their email dated 14.5.2009 [Annexure R-12 (colly.) at page 231 of the reply] apologized for the inconvenience and for mishandling of the cargo at Colombo by their agent. They again apologized on 15.5.2009 through email [Annexure R-12 (Colly.) at page 225 and Annexure R-13 (colly.) at page 243 of the reply] for mishandling of the cargo. In this manner, it was clear that the entire fault was that of the shipping line, which caused this alleged swapping of the goods. The shipping line is the agent of the complainant. Needless to mention that the shipping company Waterway Container Lines Pte Ltd. itself was bound to render service to the complainant and if they caused any damage or loss to the goods, whether the goods were insured or not, the shipping company is primarily responsible to compensate the complainant for the loss caused to them. The complainant has not joined the shipping line as party to this complaint, which shows that the complainant owns the defaults committed by their agent i.e. the shipping line and does not have any grievance against them. In such a situation, where the goods are damaged or lost by the shipping line, which is working for the complainant, it would be necessary party and in its absence the complainant is not entitled to compensation from the insurance company. Needless to mention that the insured has to act intelligently and with due care and caution and would be indemnified by the insurance company if, without any fault on his part, he suffers any damage. In other words, if the insured himself is responsible for the loss, he cannot ask the insurance company to indemnify him therefor. A person who throws his goods in the sea or damages the same with his hands or through his agent, cannot turn back and ask the insurance company to pay the claim for the said damage or loss. The non joining of the shipping company, therefore, assumes importance not only from the point of view that the shipping company is the service provider of the complainant in transporting the goods, but from this point also that the complainant has condoned the faults of the shipping company by exonerating them of this default and has rather tried to safeguard the interests of the shipping company by not even joining them as a party to this complaint. If the complainant does not claim any compensation from their service provider i.e. the shipping company, he would forfeit his right to claim the same from the insurance company, which for him, appears to be an easy target to get the money. Why trans-shipment at Colombo 7. It is argued on behalf of the OPs that though the goods were to be shipped to Canada, yet these were taken to Colombo as pre-planned in order to de-ship the same from the container and to facilitate its removal, for which purpose the goods of two other companies were put in the same container which were required to be de-shipped at Colombo. If the goods were to be taken from Mumbai to Canada, it is not understood as to why the complainant intended to take the same to Colombo and why else the trans-shipment port was sought to be at Colombo. Even before the invoice (Annexure C-5) was issued on 6.2.2009, the complainant had in mind the trans-shipment at Colombo and informed Anjna Vermani about it vide his emails (Annexure C-32 & C-33) dated 4.2.2009. It, therefore, cannot be said if cargo was mis-routed, in fact the complainants wanted it to route via Colombo. In Annexure C-11, which was issued on 6.3.2009, the complainant has mentioned POD as Colombo instead of Toronto. The complainant was, therefore, intending from the very beginning to take the shipment to Colombo where it could be possible to de-load the consignment under the garb of mis-description and after swapping the goods, to take the remaining goods to Canada. It was for this purpose in view that they changed the shipping company. In Annexure C-11, Trans Asian Shipping Services (P) Ltd. had booked the goods on behalf of Kutch Shipp. AG. P. Ltd. as mentioned therein. The ld. Counsel argued that since the said shipping line may not have been willing to allow the complainant to remove the goods at Colombo, Kutch Shipping AG P. Ltd. was replaced with Waterway Container Lines Pte Ltd. as per Annexure C-14. In fact even on 6.3.2009, the complainant had tied up with Waterway Container Lines Pte. Ltd., as is clear from Annexure C-5 and Annexure C-18 that the trans-shipment would be at Colombo. The complainant, therefore, wanted its trans-shipment at Colombo by choosing a shipping line having a route via Colombo so as to remove the goods there, instead of taking the goods directly to Canada. The complainant also has not been able to explain as to why some other goods of two different companies, meant for different destinations, were put in the said container and why a separate container exclusively for these goods was not hired by him if he did not want the swapping of the goods. It all shows that the complainants wanted to defraud the OP and they were not fair in their dealings. Which Goods sent to Canada. 8. In order to prove that the goods covered by invoice (Annexure C-5) and the insurance policy (Annexure C-1 & C-2) were put in transit, the ld. Counsel for the complainant has referred to the survey report (Annexure C-17) given by Wilson Surveyors and Adjusters Pvt. Ltd. and argued that the said goods were stuffed in the container. There is no merit in this contention. A perusal of the report shows that the contents of the wooden crates were not shown to the surveyor and they had inspected the consignment only from outside. It was specifically mentioned by the surveyors in their report as follows :- “The contents of the crates having not inspected, this office assumes no responsibility for variation in quality or other characteristic of the product supplied under conditions over which this office has no control. In no event shall this office be liable to collateral, special or consequential damage.” Needless to mention that the complainant did not associate any representative of the Ops at the time of preparing the crates, giving them specific marks, putting them in the container or at the time of stuffing. 9. It is also argued by the ld. Counsel for the OP that there is no proof if the goods covered by invoice (Annexure C-5) were ever put in transit for being sent to Canada. The goods covered through the insurance (Annexure C-1) were marked 1 to 10 Beverley Howard, as mentioned in Annexure C-2, which is the endorsement of amendment vide which the complainant wanted the trans-shipment port Colombo incorporated in the insurance policy. This endorsement was made in pursuance of an application (Annexure C-14) moved by the complainant mentioning therein the marks and number of the goods as 1 to 10 Beverley Howard. Annexure C-12 is the stuffing container survey report showing that the goods marked 1 to 10 Beverley Howard were never stuffed in the container but the goods stuffed bore the marks Glass 1 to 10. It is, therefore, clear that the goods, which were covered under the insurance policy i.e. 1 to 10 Beverley Howard were never stuffed in the container for being transported to Canada. If the said goods were lost in transit, the OP would not be liable for that. 10. As per the report (Annexure C-17) at that time no other goods were placed in the container and the complainant, if honest, would not have permitted placing any other goods/consignment in the said container so as to avoid the chances of the alleged swapping of the goods. It, therefore, cannot be said if any such goods were sent to Canada. Shipping Line - Waterway Containers Lines Pte. Ltd. – Whether Fake? 11. The case of the complainant is that the goods were shipped through M/s Waterway Container Lines Pte. Ltd. and their agent M/s Aero Marine Cargo Agencies Pvt. Ltd. It is contended by the ld. Counsel for the OP that M/s Waterway Container Lines Pte. Ltd. is a fake company. Annexure C-18 is the Ocean Bill of Lading on which no address of this company has been given and the only thing mentioned is that it is incorporated in Republic of Singapore. The search on the internet revealed (Annexure R-26 at page 317-A of reply) that there is no such company incorporated in Singapore. The Bill of Lading was issued on 6.3.2009 but it was mentioned thereon that the freight is shipped on board on 20.3.2009 which shows that it was a made up document; otherwise they would not have mentioned 20.3.2009 on the document prepared on 6.3.2009. The address of Waterway Container Lines Pte. Ltd. finds mention in Annexure C-25 which is a letter sent by the complainant to them. Mahesh Gotecha conducted an enquiry and submitted a report on 24.8.2009 through email [Annexure C-35 (colly.) at page 84 of the complaint and Annexure R-20 at page 281-282 of the reply] in which the complainant was intimated vide para 4 that when a visit was made to Waterway Container’s office in Delhi, no such office was found at the address which was, in fact, a residence and the lady at the address denied the existence of any such firm at the place. The complainants did not adduce any evidence to prove that Waterway Containers exists anywhere or have the office at the address given by them but said that goods were given by them to their agents who in turn got this shipment booked through Waterways. They advised the OP to write a mail to them and get this clarification. Their explanation was that they may have changed their address. The complainants were informed through email dated 9.12.2009 [Annexure C-40 (colly.) at page 98-99 of the complaint] that the Waterway Container Lines Pte. Ltd. were not traceable at their available address and did not respond to their request for enquiry in spite of their email assurance to cooperate, upon which a similar reply was given by varun@glasspalace.in to Sidhartha.Pattnaik@TATA-AIG.com through email [Annexure C-40 (Colly.)] dated 10.12.2009. This fact was also confirmed through the investigation report (Annexure R-4) submitted by Satyender Pandey who has submitted his affidavit in support of his contentions. According to him, another address of Waterway Container Pte. Ltd., K 185/15, 3rd Floor, Surya Plaza, New Friends Colony, New Delhi 110065 also came to their notice but when visited, it was found that the Waterways have no office at the said address also. The complainant has not given any evidence to suggest if such a company existed and what is its present address. It is, however, intriguing to note that when Beverley Howard Inc. issued a notice Annexure R-9 (regarding the loss of cargo) at the address: “Waterway Container Lines Pte Ltd., New Delhi (India).” The letter reaches the addressee! Needless to mention that this address is totally incomplete and the letter could not have reached the addressee in normal circumstances, unless the addressee was sitting by the side of the person who was writing the letter. The investigations revealed that it was actually happening like this and both of them were operating from not only the business premises of the complainant but from the computer machine of the complainant also. Waterway Container Lines Pte. Ltd. responded to the letter as expected. The contention of the complainant is that in fact the full address of Waterway Container Lines Pte. Ltd. was written on the envelope, which on the one hand shows that the complainant was also present there when this letter was despatched and could notice that the full address was written on the letter but on the other hand, they did not disclose the said address to the OP or before this Commission. The waterwaycontainer.com responded vide email dated 15.5.2009 (Annexure R-12) and asked for the details so that non delivery certificate is issued. The same was subsequently issued, which is Annexure C-21. Interestingly, no address of their office has been mentioned by Waterway Container Lines Pte. Ltd. even on this letter Annexure C-21 as to from where it has originated. It is an old saying that men may tell lies but the circumstances do not. The circumstantial evidence mentioned above originating from different players in the fraudulent drama discloses their complicity that they were aiding and abetting each other to achieve their object of duping the insurance company of a hefty amount of Rs.45 lacs. 12. A perusal of the complaint shows that Ajay Gupta is the proprietor of the complainant, M/s Glass Palace. In the same container in which the goods covered by this insurance policy were placed, were the goods of Savikar Plyboard. In the earlier claim, the matter was investigated by Ex.Capt. A.N. Chopra who submitted his report (at page 184 of the reply). His findings were that Ajay Gupta and Subhash Gupta, sons of B.R. Gupta are the proprietors of Savikar Plyboard. The Proprietor of MFT is also alleged to be their relative. It is also contended that MFT and the complainant have a common CHA, namely R.K. Khurana, as is mentioned in the investigation report (Annexure R-4). These facts, therefore, show all were actively participating in this fraud to cheat the OP. Consignee Beverley Howard Inc. and Jassy – Whether Fake? 13. The ld. Counsel for the OP has also argued that even the consignee and its proprietor Jassy, are fake persons. The Beverley Howard Inc. is registered in Canada. It has placed a supply order for importing furniture but did not produce any import licence. When the consignment reached Toronto on 11.5.2009, he did not deposit any custom duty to take delivery of the same. He did not even go to take delivery and rather knew before hand that it was not the same consignment. On 12.5.2009, the consignee wrote an email (Annexure R-10 page 223, Annexure R-12 page 229 of the reply) sending pictures of their cargo to confirm if the cargo with them was the same. They just wanted a reply in the negative, and accordingly a reply was received from nitu.cator@freightsystems.com that this was not what they had. The consignee, therefore, wrote on 14.5.2009 [Annexure R-10 (Colly.) at page 222-223 of the reply] that the cargo does not belong to them and (he) cannot take delivery of the stuff they had and demanded a non delivery certificate to act against the shipper. There is no document on file to suggest if the consignee tried to inspect the cargo or to see whether the same belonged to them or not. In the entire correspondence, one Jassy has been writing emails on behalf of the consignee. When the emails were examined by Truth Foundation they submitted their report (Annexure R-31) and it was found that these emails, written by the consignee, originated not only from Chandigarh but from the same machine from which the complainant was giving emails. It, therefore, shows that the consignee was fake, none else but the complainant, and was operating from the premises of the complainant and not from Canada. The complainant did not deny it nor adduced any evidence to rebut this fact but in their rejoinder gave an interesting explanation that during the starting of business transactions, till the claim was repudiated by the insurance company, representative of the consignee as well as the person from shipping line used to be called or they visited independently at their own in concern with the claim pending with the insurance company. According to the complainant, there was nothing abnormal in adopting such practice and if the same computer has been used by the representative of third party at some time, it does not create any doubt that there is any fraud played against the insurance company. The ld. Counsel for the complainant has also argued in tune with this reply. However, it smacks of fraud because a person, who is supposed to be in Canada and was to receive the consignment, could not have been sitting in the business premises of the complainant to allege that the consignment was not his. It shows the connivance of the consignee with the consignor. Moreover, the person corresponding on behalf of the consignor never told his full name, but always referred himself to be Jassy. The ld. Counsel for the OP has argued that in fact his name is Manpreet Jassal who was involved alongwith the complainant in an earlier case of fraud whereby the silk carpets were similarly swapped with curtain rolls and the claim of Rs.46 lacs was obtained from the insurance company. This fact is mentioned in the investigation report, Annexure R-4 (page 111 of the reply) submitted by the OP. Mohan Forging Trading P. Ltd. (in short MFT) – Whether Fake? 14. As regards the antecedents of another player in this drama, MFT, whose goods were loaded allegedly in the same container in which the goods of the complainant were loaded, it also appears to be a bogus company. 15. When R. Nanda Kumar was appointed to verify their address, he submitted his report (Annexure R-6) in which it was mentioned that Mohan Foreign Trading P Ltd. is not operating at No.57, 1st Lane, Pantheon Road, Egmore, Chennai. They were said to have moved out of the premises 4 years back and the premises had already been sealed by some Govt. authority. He submitted the photographs alongwith their report alleging that they were chronic financial defaulters and had cheated banks, financial institutions and individuals. Satyendra Pandey also in his report (Annexure R-27) mentioned that MFT does not exist at the address of Chennai, appearing on the Bill of Lading. At one time, Gotecha Mahesh also investigated this claim and submitted a report, Annexure C-35, (page 77 of the complaint). According to him, the consignee’s contact details in Sri Lanka is incorrect and hence (he was) unable to trace the consignee. R. Nanda Kumar came to know that the MFT company had shifted to T. Nagar, Chennai. When he went there, he found the name board of R.V. Steels Pvt. Ltd. In bold letters and MFT company in small letters. It was found that one Suresh is the person associated with the company and sits there. They, however, did not change the address and it appeared to be a bogus company. A. Phillips – consignee of MFT – Whether a fake person? 16. The goods booked by MFT were meant for A. Phillips, 265/19, Gale Road, Colombo, Sri Lanka. Instead of taking delivery of his own goods, the goods allegedly booked by the complainant for Canada were delivered to him. A. Phillips again is a ghost. Waterway Container.com itself wrote an email, Annexure R-12 (page 225 of the reply submitted by the OP) admitting that A.Phillips could not be contacted on the address given to them. Satyendra Pandey was the surveyor who, on 1.10.2009, sent an email (Annexure R-27) through which he intimated that he was unable to locate the consignee of MFT. Varun Gupta of the complainants had written email dated 29.6.2009 (Annexure C-35 at page 77-78 of complaint) to Gotecha, Mahesh in which he referred to the talk he had with Mrs. Vermani who told him that the person who had taken wrong delivery (i.e. A. Phillips) was not traceable. This fact was intimated by the OP to the complainant and Beverley Howard Inc. through their letter, Annexure C-41, in para 8 of which it was intimated that the MFT were no more located at the same address and even the consignee A. Phillips was untraceable in Sri Lanka. Water Container.com through its email dated 15.5.2009 [Annexure R-13 (colly.) at page 243 of the reply) admitted this fact that A. Phillps could not be contacted on the address given to them and they apologised for the mishandling of the cargo. Another email [Annexure R-13 (Colly.) at page 246 of the reply) from Barrientos Maria to Gotecha, Mahesh also records that the entire cargo was erroneously released to/picked by somebody else during trans-shipment in Colombo; that efforts of the shipping line to trace the cargo and the receiver turned out negative. When Wijesinghe was appointed as investigator, he on 2.9.2009 submitted a report, Annexure R-23, (at page 310 of the reply) after checking house to house on Galle Road from Colepatty to Wellawatte in search of A. Phillip of 265/19, Galle Rd., Colombo. He did not find any A. Phillips and, therefore, intimated that it was a case of fraud and fraud investigations cannot be done in a hurry. His assessment was that fraudsters would press relentlessly the insurance company so that the investigations are either abandoned or curtailed resulting in innocent insured having to pay the fraudulent claims. The complainant and the consignee actually behaved in this manner pressing the OPs to settle their claim immediately. It all shows that MFT had a bogus consignment in the same container in which the consignment of the complainant was allegedly put so that some fake person takes delivery of the allegedly booked consignment in Colombo to the detriment of the OP. Improbable and unnatural conduct. 17. The ld. Counsel for the OP has also argued that in fact it was a game plan of the complainant from the very beginning to cheat the OP and for that purpose, documents were fabricated and a fraud was played on the OP. The following facts and circumstances prove the same:- (i) Annexure C-5 is the invoice cum packing list prepared on 6.2.2009. In this document, despatch document No.WATDELYTO000016 has been mentioned which actually came in existence after about one month on 6.3.2009. The date on which the invoice cum packing list (Annexure C-5) was prepared, this number could not be known to the complainants and it is not understood as to how they have come to know of this number a month earlier. It shows Annexure C-5 is not a genuine document and was prepared after 6.3.2009. (ii) The Ocean Bill of Lading (Annexure C-18) is a fake document. No address of Waterway Container Lines Pte Ltd. has been mentioned therein. It is alleged to have been issued on 6.3.2009. However, it is mentioned therein : “LCL/LCL FREIGH PREPAID SHIPPED ON BOARD 20/03/09” Had it been prepared on 6.3.2009, the Waterway Container Lines Pte Ltd. would not have come to know of this fact if the goods had been shipped on board on 20.3.2009. The bill of lading is, therefore, of doubtful origin. (iii) In annexure C-14 in column No.3, the means of transport and route has been mentioned as Mumbai to Toronto/Canada by sea. In the column of declaration by exporter, the complainant has not mentioned the port in Canada where the consignment was to reach. In Annexure C-10 also, the destination is mentioned as Toronto and not the port. (iv) Fumigation certificate (Annexure C-13) was issued on 7.3.2009 according to which fumigation started on 6.3.2009. It was to continue for 24 hours . Annexure C-11 shows that the stuffing was done on 6.3.2009 at 1806 p.m. The fumigation certificate (Annexure C-13), therefore, could not have been issued on 7.3.2009. (v) As per Annexure C-10, the 10 packages, which were to be transported, were to cover 6.959 cubic meters of area for which an exclusive container could be available. These packages, however, were not put in an exclusive container but the goods of two other firms were also put in the said container – one of Savikar Plyboard Ltd., which is owned by the close relatives of the complainant No.2 and functions from the same premises from which the complainant is functioning and the second firm was Mohan Foreign Trade Pvt. Ltd. (for short MFT) which was being run allegedly by the relatives of the proprietors of Glass Palace. Subsequent enquiries revealed that MFT is a fake company and was not functioning from the premises as was given in the record. (vi) The goods could be directly transported from Mumbai to Canada but the same were desired to be first taken to Colombo and thereafter to Canada. (vii) On 12.5.2009 Beverely Howard Inc. had come to know that the goods meant for them have been swapped at Colombo and he did not intend to take delivery. Even in spite of that, he made the payment of the entire amount thereafter on 15.5.2009 for the reasons best known to him. It is true that mere making advance payment to the complainant may not make any difference but if the consignee had been a stranger, he would have been the last man to pay the amount for the goods which he had not even received and is not likely to receive. (viii) As per the supply order (Annexure C-4), the delivery was to be made before 28.2.2009. In the present case, the invoice cum packing list was prepared on 6.2.2009 but the stuffing was done on 6.3.2009, much after the delivery date. The complainant thereafter waited for the consignment from Savikar Plyboard and MFT which was received on 19.3.2009. As per Annexure C-18, the goods were shipped on board on 20.3.2009 and the goods reached Canada on 11.3.2009. This all happened after the delivery date of 28.2.2009 had since been over. The supply order issued vide Annexure C-4 was never renewed by the consignee but even then the goods were sent and it was presumed that the same would be accepted by the consignee. This also creates a doubt and shows that the consignee was under the thumb of the consignor and would not have any objection even if the goods are received after the said date. (ix) As per the invoice (Annexure C-5 and C-6), the goods were dispatched with the stipulation of 90 days D.A. which means that the payment thereof could be made within 3 months from the date of acceptance of documents. However, this condition was unilaterally changed by the complainant in Bill of Exchange (Annexure C-16) to 90 days from the date of shipment. Even in spite of that, the payment was made by Beverley Howard Inc. even before that said period was hit. (x) The Container Stuffing sheet (Annexure C-11) and Stuffing Containing Survey Report (Annexure C-12) shows that Savikar Plyboard had sent 22 number of packages of wooden furniture and accessories and the weight thereof was only 1100 kilogram. As against it, there were only 10 packages of wooden furniture of the complainant and the weight thereof was said to be 2000 kilogram. He argued that Savikar Plyboard is the sister concern of the complainant preparing furniture and referred to the report (Annexure R-21) submitted by Mihiri Seneviratne and argued the weight of the consignment creates doubts about the contents thereof. It is also argued that the complainant has intentionally swelled the price of the goods to dollar 83,350/- whereas the same may have been of lesser amount. (xi) When the investigator, Pattnaik.Sidhartha vide his email (Annexure C-36 at page 82 of the complaint) enquired from the complainant as to what were the specifications of the goods invoiced, they were unable to tell the same. They sent their reply to question No.2 of this email dated 30.9.2009 (at page 83 of the complaint). Annexure C-4 is the supply order in which no specifications and description regarding their quality and catalogue number has been given, though the furniture was alleged to be worth $ 83,350/-. According to the complainants the furniture does not have any product code nor any specifications. If the furniture is to be imported/exported , we do not believe that the importer would not give any such specifications. It all appeared to be a paper work. 18. A perusal of the above discussion shows that the complainant by joining hands with the consignee, the shipping company and others, committed a fraud pretending to have transported the goods to Canada, when actually there is no proof that the insured goods were put in the containers by them. They purposely chose Colombo as trans-shipment port when the goods could easily be sent directly from Mumbai to Canada. The complainant chose container of a larger size with a view that the goods of two other companies, including its sister concern, were put in the same, making it possible for the agents of the complainant to de-ship the goods at Colombo for which a fake person namely A. Phillips was introduced to take delivery, who was later not traceable. The company, Waterway Container Lines Pte Ltd. is also of doubtful origin and has been exonerated by the complainants by not joining it as a party. The entire case smacks of fraud with the object of cheating the insurance company by claiming the insurance amount from them. In fact, it appears to be fit case for registering a criminal case of fraud and fabrication of documents against the complainants. We do not find any merit in this complaint and the same is accordingly dismissed with litigation costs of Rs.10,000/-. Copies of this order be sent to the parties free of charge. Pronounced. 5th April 2011. Sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] MEMBER Sd/- [JAGROOP SINGH MAHAL] MEMBER hg
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
