Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
1. This consumer complaint pertains to deficiency in service on the part of the Insurance Company which repudiated the claim.
2. It is the case of the complainant-M/s.Transasia Bio-Medical Ltd. (hereinafter referred to as ‘complainant’) that it imported Titrus Fully Automated Walkaway Analyzers as per the specific needs of their two customers, namely, Army Base Hospital at New Delhi and Divya Yog Mandir Trust, Haridwar. Those consignments were arrived at Chatrapati Shivaji International Airport at Mumbai by Singapore Airlines from Spain on 22/07/2005. Clearance of the goods was stopped due to unprecedented rains and accordingly the concerned persons were informed by opponent No.2/Airports Authority of India (AAI). The activity was resumed only after 03/08/2005. The goods imported were thereafter transported to Daman factory of the complainant by road. On 29/09/2005 one of the machines which received in packed condition of international packing, was sent to Army Base Hospital at New Delhi and the second machine was dispatched through courier to Divya Yog Mandir Trust, Haridwar on 04/08/2005. However, when the packing of those machines at their respective destinations were opened by the engineers of the complainant to give delivery, moisture was noticed inside the packing of machines and machines were found damaged due to seepage of water in the machines. Insurance claims were accordingly lodged and the Airports Authority of India was also informed. The Insurance Company by its letters dated 25/04/2007 and 12/06/2008, repudiated the claim and therefore, this consumer complaint is filed inter alia claiming the following reliefs :-
“a) The rejection letter dated 12/06/2008 which was in continuation of the earlier letter dated 25/04/2007 issued by the Opponent No.1 be quashed and set aside along with all its previous communications rejecting the claim.
b) The Hon’ble Commission declare that the Opponents are guilty of deficiency in service and order to pay the Complainant, the loss caused due to damage of instruments amounting to `36,00,000/- being the invoice value of the instruments along with interest @ 18% p.a. from the date of claim i.e. from 25/04/2007 till the realisation of the claim.
c) The Opponents be directed to pay the Complainant `50,000/- as undue hardship and harassment caused to the Complainant.
d) Any other order or direction with the permission of the Commission.”
3. Opponent No.1/New India Assurance Co. Ltd. (hereinafter referred to as ‘Insurance Company’) opposed the claim stating that their repudiation is proper. Opponent No.2/Airports Authority of India also denied the liability saying that there are no allegations of any deficiency in service on their part.
4. Heard both sides. Perused the record.
5. Though there are plethora of documents i.e. Xerox copies and unattested, are placed on record, they are not tendered in evidence as per provisions of Section 13(4) of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’). A particular survey report dated 06/11/2006 on which heavy reliance is placed by the complainant, there is no affidavit of surveyor filed.
6. The insurance policies referred, the fact which is not in dispute; copies are marked as Exhibit-A and filed along with complaint by the complainant as per list of documents. The first policy bearing No.2202000500001 year 2005 covering period from 0000 hrs of 01/04/2005 to midnight of 31/03/2006 insurance cover for journey from anywhere in the world to any Indian Port to insured premises i.e. factory at Daman/Mumbai and/or complainant’s Mumbai Warehouse. The sum insured is `5 Crores with a tag of per consignment unit of `25 Lakhs.
7. Another policy bearing No.220200/21/05/00001 covering period 0000 hrs. on 01/04/2005 to midnight of 31/03/2006 covers all risks including SRCC and the sum insured is `15 Crores with a tag limit for transit `25 Lakhs. It is a Marine Cargo (open policy). Third policy is also a Marin insurance policy per certificate No. 220200/21/05/10/70001195 with effect from period 0000 hrs of 18/07/2005. The sum insured was `25 Lakhs and the goods covered having packing description “standard and customery of the goods Bio-medical equipments, spares, reagents, and any other equipments/material pertaining to insured’s trade, etc. Risk of loading and unloading was also covered as a special condition.
8. This consumer complaint was filed on 12/12/2008. Cause of action for the consumer complaint arose on the date of event i.e. in between 03/08/2005 to 29/09/2005 i.e. delivery taken at Mumbai Airport and when the last consignment was dispatched to Army Base Hospital at New Delhi from Daman. There is no application for condonation of delay. Thus, consumer complaint filed being hopelessly time-barred, cognizance thereof cannot be taken. A useful reference can be made to the judgement of the Hon’ble Supreme Court in the case of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr., 2009 CTJ 951 (SC)(CP).
9. It is revealed from the material placed on record that when the consignment was arrived at Mumbai Airport by Singapore Airlines, it was in good condition. Thereafter, it was stored in the Cargo area of Air India, the authority or ‘person’ under the Actdistinguishable than the Airports Authority of India. If we go by the statement made by the surveyor in its final report, supra, consignment was got cleared and delivered on 12/08/2005 and not on 03/08/2005 as alleged by the complainant. As further alleged by the complainant both machines i.e. consignments received were first shifted to factory site at Daman and from there on different dates, supra, consignments were sent to the respective places at New Delhi and Haridwar. There is no evidence at all as to what precautions were taken and observed during the transshipment of the consignment firstly from Mumbai Airport to Daman and then secondly from Daman to New Delhi and from Daman to Haridwar. Further, what was the condition observed when the goods were lying at Daman is also not made known. It may be noted that the period mentioned i.e. 03/08/2005 to 29/09/2005 is the period of rainy season. Admittedly, the international packing in which the consignment was kept was found intact. There seals were also intact. How the moisture got inside is not clear. The complainant as well as his surveyor goes with the assumption that due to unprecedented rains or inundation of 25 & 26/07/2005 there was seepage of water inside the consignments. There is no evidence to that effect on record. Therefore, such contention of the complainant cannot be accepted. There is no evidence as to the alleged damage caused pertaining to either of the policies risk cover areas. Therefore, from the material placed on record and which is tendered in evidence under Section 13(4) of the Act, we find that the complainant miserably failed to show that either the Insurance Company or the Airports Authority of India are deficient in service and that the complainant is entitled to recover compensation on that count from them. We hold accordingly and pass the following order :-
-: ORDER :-
1. Complaint stands dismissed.
2. In the given circumstances, there shall be no order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 29th April 2011.
