Tamil Nadu

South Chennai

CC/175/2013

M/S. KTV HEALTH FOOD PVT LTD - Complainant(s)

Versus

THE DIVISIONAL MANAGER & OTHERS - Opp.Party(s)

M.ARAVIND SUBRAMANIAM, & OTHERS

19 Dec 2018

ORDER

                                                                        Date of Filing  : 22.04.2013

                                                                          Date of Order : 19.12.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.175/2013

DATED THIS WEDNESDAY THE 19^TH DAY OF DECEMBER 2018

                                 

M/s. KTV Health Food Private Ltd.,

Rep. by its Manager

Mr. S. Durai Babu,

No.48/310, Thambu Chetty Street,

Chennai – 600 001.                                                      .. Complainant.                                                         

 

  ..Versus..

 

1. The Chairman and Managing Director,

The New India Assurance Co. Ltd.,

No.87, MG Road,

Fort Mumbai,

Mumbai – 400 001.

 

2. The Regional Manager,

The New India Assurance Co. Ltd,

No.45, V Floor,

Moore Street,

Chennai – 600 001.

 

3. The Divisional Manager,

The New India Assurance Co. Ltd.,

Spencers Tower 3^rd Floor,

No.770/A, Anna Salai,

Chennai – 600 002.

 

4. The Manager,

The New India Assurance Co. Ltd.,

Motor Claims Hub Dept.,

Macmillan House,

II Floor, B. Block,

No.21, Pattulos Road,

Chennai – 600 002.                                              ..  Opposite parties.

Counsel for complainant                 :  M/s. M. Aravind Subramaniam &

                                                            M/s. C.K. Lavanyavathi

Counsel for opposite parties 1 to 4:  M/s. S. Radha Devi & others

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to pay a sum of Rs.44,795/- towards shortage of goods with interest at the rate of 15% p.a. from 04.03.2011 to till the date of realization and to pay a sum of Rs.1,00,000/- towards compensation for mental agony and anxiety with cost of Rs.25,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that they are engaged in the business of importing Edible oils from various countries.   In order to import Edible oils, the complainant approached the opposite parties’ insurance company for insuring the vessel carrying such Edible oils.  The opposite party also, issued Marine Insurance Policy with open Cover.  The said policy covers warehouse to warehouse.  The policy also issued after submitting all the relevant documents including bill of lading.  The complainant purchased edible oil from the supplier vide Invoice and payment was made in full and the said bulk quantity was loaded into the vessel.   The Bill of Lading was made by an internationally accredited Surveyor at load port.  When the vessel arrived at Chennai port, there was a shortage in quantity.  The complainant submits that they are entitled to claim the unexpected loss since the vessel was insured for any untoward or unexpected losses.  Immediately after reaching the vessel, due information given to the opposite party informing that there was a shortage of oil in percentage of Bill of lading Invoice.  Since the opposite party has not appointed the Surveyor, the authorized surveyors were appointed for assessment of loss.  The complainant submits that as per the Marine Insurance Act, 1963, the policy of insurance shall cover indemnity, insurable interest etc.   As per Institute Cargo clauses (A) the terms of the Marine open cover all risks are covered. It has an unnamed perils clause attached unlike ICC (B) and ICC (C) where there are named perils clauses attached/ covered, SRCC (Strike, Riot and Civil commotion) also included in ICC(A) clauses for more protection.  Bulk oil clause is in the policy to give protection based on their premium.  It is the duty on the part of the opposite parties to prove that there are no perils acted upon and the policy is not covering unnamed perils specifically.   The 2^nd opposite party acted against the IRDA norms, Policy Holders Protection Act, 2002 giving false assurances for collecting premium on renewal of the policy. The  complainant submits that the Surveyor who was appointed, submitted his report showing the loss of 17.594 MT.   The complainant submits that the Surveyor while submitting the ullagge report stated bill of lading quantity is 3698.490 MT, Load Port Quantity is 3689.785 MT and Arrival Quantity is 3691.659 MT that the load port quantity is less than the arrival quantity.   The complainant submitted his claim form which was repudiated by the opposite party without valid grounds.  The complainant sent letters and mails on several occasions to the opposite parties, but the opposite parties has not come forward to settle the claim of the complainant.

2.      The brief averments in the written version filed by the  opposite parties 1  to 4 is as follows:

The opposite parties 1 to 4 specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.   The opposite parties state that the opposite parties issued Marine Open Cover policy for the year 01.04.2010 to 31.03.2011.   The opposite parties state that as per the terms and conditions of Marine Open Cover Policy, the opposite parties are not liable to settle the claim for the simple reason “Shortage due to unexplained perils”.   The details of unexplained perils also has not been given specifically.           The opposite parties deny the averments in para 10 and states that the policy is subject to Institute Bulk Oil clause which stipulates that to make a claim for shortage the complainant need to clearly prove the quantity that left the shore tanks at the load port for loading on to the vessel and also the quantity that had been delivered into the shore tank at the discharge port. 

The opposite parties state that in clause 15 (2) and 15(3) it reads as follows:-

15.2 Adjustment shall be made to the calculation under 15.1 above to eliminate any change in the volume caused by variation in temperature and any apparent change in quantity arising from the use of inconsistent procedures in determining the certified quantities.

15.3  Where this insurance provides for an excess to be applied to claims for leakage or shortage, such excess shall be deemed to include ordinary loss in weight or volume except when caused by variation in temperature or settling out of water.  Where there is no such provision, the amount recoverable in accordance with Clauses 15.1 and 15.2 shall be subject to reduction for any ordinary loss excluded by Clause 4.2.

3.     The opposite parties state that as per the above clause the comparison should be between the gross volume certified as having left tanks for loading to the vessel and the gross certified volume as having been delivered to tanks at the termination of transit and not between Bill of Lading quantity and received quantity.  Therefore, for processing the claim the opposite parties require the certified figures of gross volume that had left tanks for loading.  The complainant failed to furnish the gross volume that had left tanks for loading”.  The opposite parties state that the complainant is claiming the loss on the basis of billing of lading quantity and shore quantity i.e. 3698.490 MT – 3680.896 =17.594 MT.  The opposite parties state that the complainant failed to furnish the gross volume that had left tanks for loading.   The opposite parties state that the complainant has not given due intimation of shortage of goods immediately after the arrival of the ship.   Further the opposite parties state that as per the excess clause 0.45% alone is entitled for loss.  Therefore, there is no deficiency in service on the part of the opposite parties 1 to 4 and the complaint is liable to be dismissed.

4.    To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A18 are marked.  Proof affidavit of the opposite parties 1 to 4 is filed and document Ex.B1 is marked on the side of the opposite parties 1 to 4. 

5.      The points for consideration is:-

1.  Whether the complainant is entitled to a sum of Rs.44,795/- with interest at the rate of 15% p.a. towards the shortage of goods as prayed for?

2. Whether the complainant is entitled to a sum of Rs.25,000/- towards expenses incurred with a compensation of Rs.1,00,000/- for mental agony with cost as prayed for?

6.      On point:-

Both parties filed their respective written arguments.  Heard both the Counsels also.  Perused the records namely the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that they are engaged in the business of importing Edible oils from various countries.   In order to import Edible oils, the complainant approached the opposite parties’ insurance company for insuring the vessel carrying such Edible oils.  The opposite parties also issued Marine Insurance Policy with open Cover as per Ex.A2 and Ex.A3.  The policy covers warehouse to warehouse.  The policy also issued after submitting all the relevant documents including bill of lading.  Ex.A2, Cover note Schedule shows all the details including mode of transport.  Covering “All risks ICC(A) + WSRCC + Institute of Bulk Oil”.   Ex.A3, the policy Certificate is very clear that “CUSTOMARY PACKING ALL KINDS OF EDIBLE / NON-EDIBLE / VEGETABLE OILS & OIL FATS 0.2000”.   Further the contention of the complainant is that as per Ex.A3, policy, the complainant is entitled to claim the unexpected loss; since the vessel was insured for any untoward or unexpected losses.    Further the contention of the complainant is that immediately after reaching the vessel, due information given to the opposite parties informing that there was a shortage of oil in percentage of Bill of lading Invoice.  Since the opposite party has not appointed the Surveyor, the authorized surveyors were appointed for assessment of loss.    The complainant had expended a huge sum of Rs.25,000/- towards Surveyor charges, but no bills filed.

7.     Further the contention of the complainant is that as per the Marine Insurance Act, 1963, the policy of insurance shall cover indemnity, insurable interest etc.   As per Institute Cargo clauses (A) the terms of the Marine open cover all risks are covered. It has an unnamed perils clause attached unlike ICC (B) and ICC (C) where there are named perils clauses attached/ covered, SRCC (Strike, Riot and Civil commotion) also included in ICC(A) clauses for more protection.  Bulk oil clause is in the policy to give protection based on their premium.  It is the duty on the part of the opposite parties to prove that there are no perils acted upon and the policy is not covering unnamed perils specifically.   Immediately after arrival of the vessel, due intimation given to the opposite parties for appointment of Surveyor.   The opposite parties has not taken any steps to appoint any Surveyor deliberately which amounts to gross deficiency in service.   The 2^nd opposite party acted against the IRDA norms, Policy Holders Protection Act, 2002 giving false assurances for collecting premium on renewal which amounts to unfair trade practice.  Since the opposite parties has not come forward to settle the claim even after issuing the policy which is subsisting.   As per the bill of lading and invoice, the goods were insured under the Marine Insurance Policy as per the special condition which reads as follows:

“SUBJECT TO INSTITUE BULK OIL CLAUSES, WAR AND SRCC CLAUSES.  POLICY EXCESS:0.45% ON BILL OF LADING QUANTITY TERMS AND CONDITIONS AS PER MOU”.   It is very clear from the records that the quantity loaded is 3698.490 MT as per the Bill of Lading out of which, the complainant received only 3680.896 MT and  there is a shortage of 17.594 MT. i.e. 0.48% which is very clearly noted in the Ex.A8 Series Survey Report.    Further the contention of the complainant is that the Surveyor who appointed submitted his report Ex.A8 showing the loss of 17.594 MT with Surveyor remarks which reads as follows:

1. Ullages were taken manually.

2. Temperature were recorded from ship’s CCR.

3. Density as per Load Port Chart.

8.     Further the contention of the complainant is that the Surveyor while submitting the ullagge report stated bill of lading quantity is 3698.490 MT, Load Port Quantity is 3689.785 MT and Arrival Quantity is 3691.659 MT which is apparently very clear that the load port quantity is less than the arrival quantity and it is not at all possible without loading, nothing excess shall be received.  Hence, the bill of lading quantity alone loaded in the vessel.  Further the contention of the complainant is that letter of discrepancy attacked with the survey report shows the Load Port Quantity is 4480.464 MT and the difference between the Load Port Quantity and Quantity on board on arrival is (+) 1.874 MT must be an imaginary one.  Because under any circumstances, excess quantity shall not be arrived against the loaded quantity.   Hence, the bill of lading quantity 3698.490 MT and provision shore receipt the quantity of 3680.900 alone shall be taken into consideration.   Thereby, the difference loss shall be 17.590 MT which can be very clearly proved from Ex.A8. 

Ship’s Calculations:

Ship’s Tank No.	Ullage in Metres	Temp in ˚C	Density Temp	Volume in Kilo Litres	Weight in MT
1P	1071	42.0	0.8951	254.165	227.503
1S	1042	41.0	0.8958	259.221	232.210
3P	1124	43.0	0.8945	438.752	392.464
3S	1074	42.0	0.8951	443.638	397.100
6P	1287	44.0	0.8938	585.621	523.428
6S	1283	43.0	0.8945	592.661	530.135
8P	1075	44.0	0.8938	598.013	534.135
8S	1082	44.0	0.8938	605.300	541.017
10P	880	41.0	0.8958	173.329	155.268
10S	926	41.0	0.8958	174.320	156.156
					3689.785

 

Before and after loading the shore/ vessel’s line was inspected visually and found to be empty.  There was no spillage of cargo noted throughout the entire operations”.

Further the contention of the complainant is that the complainant is claiming a sum of Rs.44,795/- towards the shortage of edible oil and a sum of Rs.25,000/- towards the expenses incurred by way of Surveyor charges and other charges with a compensation of Rs.1,00,000/-.

9.     The learned Counsel for the opposite parties contended that the opposite parties issued Marine Open Cover policy for the year 01.04.2010 to 31.03.2011 as per Ex.A2.   Further the contention of the opposite parties is that as per the terms and conditions of Marine Open Cover Policy, the opposite parties are not liable to settle the claim for the simple reason “Shortage due to unexplained perils”.   But the details of unexplained perils has not been given specifically.   The opposite parties state that the policy is subject to Institute Bulk Oil clause which stipulates that to make a claim for shortage the complainant need to clearly prove the quantity that left the shore tanks at the load port for loading on to the vessel and also the quantity that had been delivered into the shore tank at the discharge port. 

On the other hand, the opposite parties very clearly stated that in clause 15 (2) and 15 (3) it reads as follows:-

15.2 Adjustment shall be made to the calculation under 15.1 above to eliminate any change in the volume caused by variation in temperature and any apparent change in quantity arising from the use of inconsistent procedures in determining the certified quantities.

15.3  Where this insurance provides for an excess to be applied to claims for leakage or shortage, such excess shall be deemed to include ordinary loss in weight or volume except when caused by variation in temperature or settling out of water.  Where there is no such provision, the amount recoverable in accordance with Clauses 15.1 and 15.2 shall be subject to reduction for any ordinary loss excluded by Clause 4.2.

          The opposite parties state that as per the above clause the comparison should be between the gross volume certified as having left tanks for loading to the vessel and the gross certified volume as having been delivered to tanks  at the termination of transit and not between Bill of Lading quantity and received quantity.  Therefore, for processing the claim the opposite parties require the certified figures of gross volume that had left tanks for loading.  The complainant failed to furnish the gross volume that had left tanks for loading”.

establishes the unexplained perils which shall cover the policy and the Insurance Company is liable for compensation for such loss.   The opposite parties also has not filed relevant documents to prove such terms and conditions.   Also none of the terms and conditions filed before this Forum.  Ex.A2, Marine Open Cover is absolutely silent regarding such perils including unexplained perils.   Further the contention of the opposite parties is that the complainant is claiming the loss on the basis of billing of lading quantity and shore quantity i.e. 3698.490 MT – 3680.896 MT = 17.594 MT.

10.    Further the contention of the opposite parties is that the complainant failed to furnish the gross volume that had left tanks for loading.   But on a careful perusal of Ex.A7, it is apparently clear that “before and after loading the shore vessel’s line was inspected visually and found to be empty.  There was no spillage of cargo noted throughout the entire operations”.   Hence, no such question of something left in the tank for loading arise.  On the other hand, insurance policy is issued on the basis of bill of lading and invoice.   Further the contention of the opposite parties is that the complainant has not given due intimation of shortage of goods immediately after the arrival of the ship.   But it is very clear from the records that immediately after arrival of the vessel on 08.09.2010 at Chennai Port, an Authorised Surveyor was appointed and inspected the vessel and submitted his report as per Ex.A8.   Further the contention of the opposite parties is that as per the excess clause 0.45% alone is entitled for loss.  On a careful perusal of the claim and calculation, the complainant is claiming for the .45% loss of Edible oil alone.   Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 to 4 are jointly and severally liable to pay a sum of Rs.44,795/- with interest at the rate of 9% p.a. from the date of filing of this complaint to till the date of this order with a compensation of Rs.30,000/- and cost of Rs.5,000/-.

  In the result, this complaint is allowed in part.   The opposite parties 1 to 4 are jointly and severally liable to pay a sum of Rs.44,795/- (Rupees Forty four thousand seven hundred and ninety five only) being shortage of goods along with interest at the rate of 9% p.a. from the date of complaint (i.e.) 22.04.2013 to till the date of this order (i.e.) 19.12.2018 and to pay a sum of Rs.30,000/- (Rupees Thirty thousand only) towards compensation of damages for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 19^th day of December 2018. 

 

MEMBER-I                                                                     PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:

		Copy of MOU filed between the complainant and opposite party
		Copy of Open Cover Schedule
		Copy of Policy from the Opposite party to complainant
		Copy of Commercial Invoice
		Copy of Bill of Lading
		Copy of Certificate of Origin
		Copy of Load Port Survey
		Copy of Discharge Survey Report
		Copy of claim form which was acknowledged by the 3rd opposite party
		Copy of Vessel Arrival intimation
		Copy of repudiation letter
		Copy of the complaint sent to the opposite parties 2, 3 & 4
		Copy of reminder mail sent to the 3rd opposite party
		Copy of the complaint to the 2nd opposite party and duly acknowledged
		Copy of the complainant mails to the opposite parties 2,3 & 4
		Copy of mail sent to the Head Office, New India Assurance Co. Ltd., Bombay
		Copy of letter from the complainant approaching RTI
		Copy of reply from the RTI

 

OPPOSITE  PARTIES 1 to 4 SIDE DOCUMENTS: 

Ex.B1

Copy of Institute Bulk Oil clauses

 

 

                                                                              

MEMBER-I                                                                     PRESIDENT