BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.393 of 2014

Date of Instt. 10.11.2014

Date of Decision :20.04.2015

Goyal International through its Partner Ashok Goyal, C-66, Focal Point Extension, Jalandhar.

..........Complainant

Versus

The New India Assurance Company Ltd, through its Branch Manager, City Branch-I, Patel Chowk, Jalandhar.

.........Opposite party

Complaint Under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Karan Seth Adv., counsel for complainant.

Sh.AK Arora Adv., counsel for opposite party.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act against the opposite party on the averments that the complainant dispatched 1085 bags containing 78,500 pieces of different sizes of Anchor Nuts for its transportation by road and sea from India to Dubai (UAE) and the same were to be delivered to M/s Raj Star General Trading, Dubai(UAE). These goods were sold to the said consignee vide invoice No.G.INT./127 dated 6.8.2013 valuing 29000 US Dollars. These goods were handed over to the transport company namely M/s Sahni Golden Transport Service (Regd.) against their G.R.No.130860 dated 8.8.2013 for road transport and then to shipping company namely Lancer Containers Lines Pvt Ltd for sea transport from Mundra/Port of loading to Jebel Ali at Dubai/Port of discharge and place of delivery against their bill of lading No.Munlinjea 2013-00187 dated 16.8.2013. The invoice and packing/rate list alongwith the goods were also handed over to the shipping company. Since the goods were to be carried by road and ship from Jalandhar to Dubai as such the complainant obtained insurance cover under Marine Cargo Insurance from opposite party covering all risk of loss or damage to goods during transit and upto delivery to consignee's warehouse vide policy No.3610012113040000 00180 dated 8.8.2013 thereby covering the transit of goods from Jalandhar to Mundra by road and from Mundra to Dubai by Vessel. The goods arrived at the port of delivery and during course of off-loading by the consignee from the container the same were found to be in a damaged condition during course of transit. The goods were found in wet condition and all the material was damaged due to rust. The complainant lodged the claim of damage of goods during transit to the opposite party and submitted all other information pertaining to particulars of bill of lading, container number, port of delivery etc and also provided all the required documents including invoice, packing list, bill of lading etc to the agent of opposite party No.1 namely W.K.Webster & Co.Ltd. The claim was lodged at toll free No.18002091415 and e-mail dated 20.9.2013. The opposite party appointed its surveyor and loss assessor namely W.K.Webster &Co. Ltd for the assessment of the loss. The goods were inspected and the loss was assessed by the surveyor of the duly appointed agent of the opposite party and during inspection it was found that goods have damaged during transit. The complainant vide various reminders/ emails dated 8.10.2013, 12.10.2013, 21.10.2013, 9.11.2013, 3.1.2014, 23.1.2014, 24.1.2014, 27.1.2014, 29.1.2014, 4.2.2014, 12.2.2014, 31.3.2014, 1.4.2014, 29.5.2014, 30.6.2014 etc repeatedly requested for the settlement of the claim and for the payment of the amount but till date the opposite party has neither settled the claim nor paid the amount. On such like averments, the complainant has prayed for directing the opposite party insurance company to pay the claim amount of 29000 US Dollars or its equivalent amount in Indian rupees as per value of the dollar as on the relevant date of invoice i.e Rs.17,69,000/- alongwith interest. He has also claimed damages and litigation expenses.

2. Upon notice, opposite party appeared and filed a written reply pleading that immediately on the receipt of information regarding the loss caused to the consignment of the complainant, the matter was referred to M/s W.K.Webster & Company Limited and M/s Incharge Shipping Services were appointed to survey the loss, who have submitted their survey report qua the loss caused to the consignment of the complainant and assessed monetary loss to the tune of US$ 14,500. The consignment in the present case was shipped in a container on shippers load, stow, count and sealed basis. The surveyor has pointed out that following discharge from the overseas carrier, the container was stored at Jobel Ali Port container terminal, where it remained for 22 days. Upon closer inspection of the container it was noted to be found with normal wear and tear with minor scratches, dents and rust. The container was found to free any damage which can cause ingress of water into container. Saline tests also revealed no salt water contamination effected the goods. There was no evidence of ingress of the water into the container. As per the survey report the damage found to be in existence may fairly and reasonable be attributed to condensation generated within the container. Further it was pointed out by the surveyor that the cargo may have been exposed to cold weather prior to or during loading in the container. The said container was lying in Jebel Ali Port for 22 days after discharge from the Ocean Carrier. This undue delay may have played a contributory role in deterioration of the contents. Acting on the report of the surveyor the claim of the complainant was declined under general exclusion clauses 4.4 & 4.5 of the policy of insurance. The insured has not served any notice upon the carrier with in the prescribed time, which is mandatory to be given to the carrier in the event of damage caused to the goods during transit, thus has breached clause No.16.2 of Institute Cargo Clause (A), which states that it is the duty of the assured, their servants and agents in respect of loss recoverable under the policy of insurance to ensure that all rights against the carriers, bailees or other third parties are properly preserved and exercised. That being so the opposite party is not liable to make payment of any compensation to the complainant. It denied other material averments of the complainant.

3. In support of his complaint, learned counsel for complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C43 and closed evidence

4. On the other hand, learned counsel for opposite party has tendered affidavits Ex.RA and Ex.RB alongwith copies of documents Ex.R1 to Ex.R7 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. Ex.C5 is Marine Cargo Open Cover Certificate. The complainant firm sent consignment of 1085 bags containing 78500 pieces of different sizes of Anchor Nuts from India to Dubai (UAE). The goods were transported firstly through road by transport company and then in ship/vessel. It is not disputed that complainant has obtained insurance cover under Marine Cargo insurance policy. When the goods reached at port of delivery, the same were found to be damaged i.e rusty. The complainant intimated about the damage to opposite party insurance company who appointed surveyor and loss assessor namely W.K.Webster & Co.Ltd who gave its report Ex.R3 assessing the loss at 14500 US Dollars. In its report the surveyor observed as under:-

"We have given due consideration to the survey findings, to the damage sighted present upon survey, and to the information made available to us and/or obtained by us. On the basis, we are of the opinion that the damage found to be in existence at the time of our inspection may fairly and reasonably be attributed to condensation generated within the container.

The cargo may have exposed to cold weather prior to or during loading into the container. It has also been noted that the container was lying in Jebel Ali Port for 22 days after discharge from the ocean carrier. This undue delay may have played a contributory role in deterioration of the contents".

7. The opposite party insurance company has repudiated the claim of the complainant on the ground that rust to the consignment was due to existence of moisture at the time of packing which resulted in condensation within the container. Counsel for the opposite party contended that the surveyor has also obtained saline test from the laboratory and the same indicated no salt water contamination which clearly shows that the rust to the consignment was result of presence of moisture at the time of packing, which falls under exclusion clause 4.4 and 4.5 of the policy and as such the claim has rightly been repudiated. On the other hand, learned counsel for the complainant contended that water entered in the container containing consignment during transit and resulted in rust to the consignment and there was no defect in the packing of the consignment. So we are to see, whether rust to the consignment was result or defect in packing or it resulted due to entry of water in the container during transit? We have only inspection report Ex.R3 to determine the above said fact. Even in its report the surveyor has not given definite opinion and on the contrary has observed that we are of the opinion that damage found to be in existence at the time of their inspection may fairly and reasonably be attributed to condensation generated within the container. In its report the surveyor has observed as under:-

"The container was reopened in our presence and we found about 50% of the cargo had already been offloaded. The remaining bags containing anchor nuts were noted to be in proper stow in the container. On inspection we found that the bags in the top tiers and the bags in contact with the side panels of the containers had wet stains marks at places".

8. So from the report of surveyor it is evident that only the bags in the top tiers and bags in contact with the side panels of the container were found to be having wet stains marks at places. In case the rust had taken place due to any defect in packing i.e presence of the moisture at the time of packing of the consignment then all the bags of consignment would have wet stains marks present but in this case only bags of the top tiers and side panels of the container were found to have wet stains marks at places, which clearly suggest that the water entered the container during transit in the sea. The report of saline test, is not conclusive to hold that the moisture was present at the time of packing and it did not enter in the container during transit. So in the above circumstances, insurance company was not justified in repudiating the claim of the complainant on the above said ground.

9. In view of above discussion, the present complaint is accepted and opposite party insurance company is directed to pay the loss assessed by the surveyor i.e 14500 US Dollars or it is equivalent amount in Indian rupees at the exchange rate prevalent at the time of date of invoice alongwith 9% interest from the date of filing of the present complaint till the date of payment. It is clarified that interest amount is being granted by way of compensation. The complainant is also awarded Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

20.04.2015 Member Member President