Rajasthan

StateCommission

CC/20/2010

M/S Jawelles Amporioum - Complainant(s)

Versus

The New India Insurance Co.Ltd. - Opp.Party(s)

D.M.Mathur

20 Aug 2015

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

COMPLAINT CASE NO: 20/2010

 

Jewels Emporium, M.I.Road,Jaipur. Through authorised representative Anil Bansal

Vs.

Chairman-cum-Managing Director, The New India Assurance Co.Ltd. Head office New India Assurance Building, 87 Mahatma Gandhi Marg, Fort, Mumbai & ors.

 

 

Date or order 20.8.2015

 

Before:

 

Hon'ble Mr.Vinay Kumar Chawla-Presiding Member

Mr.Liyakat Ali -Member

Mrs.Sunita Ranka-Member

 

Mr.D.M.Mathur counsel for the complainant

Mr.O.P.Gupta counsel for the Insurance Company(Opposite party nos. 1 to 4 )

Mr.S.K.Taylor counsel for FEDEX (Opposite party no.5)

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BY THE STATE COMMISSION

 

1. This complaint has been filed by one Mr.Anil Bansal, the authorised signatory for Jewels Emporium, Jaipur.

 

2. Brief facts of this complaint are that Mrs. Bertha Chagoury placed an order with the firm for one necklace set of gold enameled and diamond Polkis in 22 k. gold for 92000 US $ vide Ex. Anx. 1 and the complainant firm executed this order vide invoide Ex. Anx.2 on 18.2.2008. The jewellery packet was handed over to M/s. Jeena & Co. who are International Cargo Consolidator vide Ex. Anx.4. This packet was got insured from the Insurance Company for Rs. 35,60,400/-. This packet is said to have been dispatched through FEDEX to Los Angeles. This packed did not reach its destination and a claim was lodged with the Insurance Company and the carrier FEDEX. The FEDEX paid 500 US $ in respect of their limited liability for loss of the packet. The claim was repudiated by the insurance company on the ground that this packet had arrived at Los Angeles and the risk covered under the policy was for air transit and since the packet had arrived at Los Angeles, no claim was payable. The Insurance Company raised various objections to the complaint. It submitted that the complainant firm is a

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large establishment engaged in export of jewellery and is not a 'consumer'. The main objection to the claim was that they had issued a insurance cover for air transit but the complainant handed over this packet to FEDEX door to door service through its agent Jeena & Co. Thus, no loss was occurred during air transit and a false claim has been submitted in collusion with Mrs. Bertha Chagoury and FEDEX.

 

3. The carrier FEDEX has filed a written statement admitting that the packet was lost during transit, and as per the limited liability clause 500 US $ had already been paid to the complainant and no further liability arises in this case. Both the sides have filed respective documents in support of their versions and have filed affidavits.

 

4. The learned counsel for the complainant has argued that this packet was sent through FEDEX which is an international carrier and the packet was lost during transit. The FEDEX had issued a loss certificate in respect of the complainant and has paid the limited liability under the contract to the complainant. The learned counsel has referred to the report of M/s. International Surveyors & Adjusters (USA) who were instructed by WK Webster ( Overseas ) Ltd. in which they have found

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that shipment was lost while in custody of the carrier, therefore, the company was liable for the loss. A further clarification about this report was also sought by the Insurance Company and the Settling Agent vide Anx. 5 informed that the coverage was provided upto the final destination and liability under the policy would engage. He has further argued that from the tracking reports of the carrier it is established that this packet was lost while in custody of FEDEX and this packet was sent through FEDEX which is an air cargo company. Therefore, the argument of the insurance company that loss during air transit has not been proved is vexatious. He has referred to a judgment of this Commission in Complaint No. 61/2010 (Shankar Jewels Vs. United India Insurance Co. ).

 

5. The learned counsel for the insurance company has raised various objections to the complaint. He has argued that Mr.Anil Bansal has no authority to present this complaint and he has no locus- standi to present this complaint as the firm is a registered partnership firm and the complaint should have been filed through one of the authorised partner not through any third person. It is also not clear whether this firm is a partnership firm or proprietorship firm. The second argument is that the complainant has no insurable interest as the complainant had

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already received the value for the goods dispatched by it, therefore, no loss has occurred to the complainant. The third argument is that the complainant is a large firm engaged in export of jewellery, therefore, it is not a 'consumer dispute'. He further argued that there was a theft of jewellery packet which was valued at 92000 US$ and the complainant had not lodged any police report and had taken no action against the carrier. No notice under the Carriers Act was served on the carrier which is a mandatory requirement. He further argued that on the basis of the documents and the record submitted by the complainant it is clear that the packet reached the Los Angeles- its destination. As soon as the packet reached its destination the liability under the policy was excluded. He has also referred to a report of M/s. Tarun Kumar & Associates who are insurance claim investigators to whom the company had assigned the investigation in this case. In view of this report he further argued that the consignment had reached its destination and no liability arose under the policy.

 

6. We have heard the learned counsels for the respective parties.

 

7. The first point raised by the learned counsel for the

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insurance company is with regard to the locus-standi of Mr.Anil Bansal. In the complaint Anil Bansal has not stated in which capacity he is presenting this complaint. However, an authority was filed on the letter head of Jewels Emporium authorizing him to file the complaint by one partner of the Jewels Emporium. The name of the partner has not been disclosed and this authority is undated and Anil Bansal has not signed this authority. A partnership firm can file a complaint in case it is a registered partnership firm in its own name and complaint can be signed by one of its partner. A certificate of Registrar of Firm is necessary for this purpose. This firm has not filed any certificate of Registrar of Firms whether this firm is registered or not. If it is not a registered partnership firm then all the partners of this firm were required to sign the complaint. Thus, there is substance in the argument that Anil Bansal has not proved his locus-standi to file this complaint.

 

8. So far as the argument regarding insurable interest is concerned, we are of the opinion that there is no substance in this argument. Though the complainant had received the value of the goods but the complainant would have to make good the loss to the purchaser in case the packet is not delivered to the purchaser.

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9. The argument that this was a commercial transaction, the learned counsel for the complainant has referred the judgment of the Hon'ble National Commission in Harsolia Motors Vs. National Insurance Co. ( I (2005) CPJ 27 (NC) ) in which it was held that insurance was not taken to generate profits but it was a contract of indemnification. Principally we are in agreement with this argument but we cannot resist to observe that there are certain gaps and circumstances which make this transaction doubtful. The order was placed vide Anx. 1 by Mrs.Bertha Chagoury and she gave her address as 24, Spontine, 75116 Paris- France and this jewellery was dispatched to her at her Los Angeles USA address . When it did not reach at Los Angeles the second shipment was sent to her on 13.3.2008 at Culver city, California 90232 USA , thus, there are three addresses given by her. First time she placed an order on 3.12.2007 and the delivery period was two and half months but when the second shipment was sent it was sent within 5-6 days of report of the lost items. It also raises a reasonable suspicion how the necklace of the same design and pattern and almost of the same weight was got prepared within five days when earlier order took two and half months. In order Anx. 1 no details of weight of the jewellery was given while in the invoice Anx. 2 net weight of 22 k. gold , weight of diamond, weight of wax

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filling was seperately given while placing the order no details were obtained by Mrs. Bertha Chagoury which also raises a reasonable suspicion.

 

10. In her e- mail to the complainant dated 29.2.2008 she informed the complainant that she was informed by FEDEX Minneapolis that necklace has arrived and when her broker contacted them, they sent it to Los Angeles then she informed the complainant that necklace was lost between Minneapolis and Los Angeles. Thus, there was also a broker involved in the deal with indicate that Mrs.Bertha Chagoury was not a real consumer of the jewellery and there was a commercial element in this transaction.

 

11. The next important argument of the insurance company was that it is not proved that this packet was lost during air transit while the complainant had relied on tracking sheet Anx. 8 & 9 and has emphasized on the view taken by this Commission in Complaint Case No. 61/2010 (Shankar Jewells Vs. United India Insurance Co.). We have considered this argument.

 

12. In Shankar Jewell's case the complainant had produced

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shipment bill for export. It also filed an international airway bill which showed that the consignment was handed over to FEDEX and shipment travel history was also produced. When the packed was picked up from Jaipur on November 30,2009 and arrived at FEDEX location Paris, the FEDEX disclosed the details of the flight number, its origin, its destination and the route. Now all these details are missing in this case. The FEDEX is an airline designated by United States of America and has been granted operating permit by DGCA in India, a letter to this effect was produced by the complainant in that case. No evidence of this kind has been placed by the complainant in this case. Now the tracking sheets Anx. 8 & 9 are not believable. They do not prove that this packet travelled through FEDEX Air Corporation. No flight number has been given, no authentic record of the flight taking off from Delhi has been produced and no route chart has been produced. This packet was sent to Delhi vide Indian Airlines, who took the delivery from Indian Airlines and handed over to FEDEX, no record is available and the tracking sheet Anx. 9 states that on 26.2.2008 this packet was in transit at EL SEGUNDO CA airport and on that day at 3.14 p.m. this packet was in clearance which shows that this packet had arrived at Los Angeles airport. EL SEGUNDO CA is stated to be an airport at Los Angeles

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while the e-mail of Mrs. Bertha Chagoury states that this packet had arrived at Minneapolis and lost on its way to Los Angeles. Both these facts are contradictory. The place Minneapolis do not figure anywhere in the tracking sheet. The tracking sheet states that packet dispatched from Paris on 20.2.2008, arrived at Memphis TN on 21.2.2008 it was cleared from Memphis TN and then on 26.2.2008 it arrived at EL SEGUNDO CA i.e. Los Angeles. So we are in agreement with the argument of the learned counsel for the insurance company that the loss during air transit has not been proved. Through which airline the packet travelled is not proved. If it travelled through FEDEX air craft details have not been placed on record. In the tracking sheet when did the packet arrived at Minneapolis is no where mentioned.

 

13. The report of W K Webster (Overseas) Ltd., the settling agent has not gone into these aspects of investigation while Tarun Kumar & Associates have raised certain points which make the story doubtful, like the complainant did not forward the goods by air and handed over the packet to one Jeena & Co. who sent it through Indian Airlines and tracking report states that consignment had arrived on 26.2.2008 at Los Angeles airport and Mrs. Bertha Chagoury mentioned that she had

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ordered for 18 k. gold while dispatch was 22 k. gold jewellery and the complainant was not entitled for claim for the consignment which was forwarded by it under Door to Door service. It was not directly handed over to any airlines.

 

14. To sum up, our conclusion is that Anil Bansal has no locus-standi to file this complaint on behalf of partnership firm. Secondly, there are reasonable suspicion of commercial element in this transaction and thirdly, it has not been proved that this packet was handed over to any airlines, no details of flight number or other records are placed on record and on the basis of tracking report submitted by the complainant the packet had reached Los Angeles airport.

 

15. In view of this the complaint is dismissed. There will be no order as to costs.

 

 

(Sunita Ranka) (Liyakat Ali) (Vinay Kumar Chawla)

Member Member Presiding Member

 

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