ORDER                                 Dated: 27-03-2017

Mohd. Anwar Alam, President

1. The complainant filed this complaint on 01-12-2014 and alleged that after collecting an insurance premium of Rs. 1,50,365/- through cheque from the complainant OP issued insurance cover note no. 298902 dated 24.12.2010 covering the import consignment against all risks for a total sum  of Rs.24,78,60,113/- from any  UAE Port  to anywhere in India. Thereafter OP issued insurance policy bearing no. 272200/21/2011/1090 dated 03.01.2010  in lieu of the above said cover note.  The shippers, M/s International Speedy Trading Petro Kimya  supplied the consignment of 5002.890 MT  of Base Oil SN 500 vide invoice no. EXP-I.S.T. 2010-002 dated 26.02.2011 and loaded consignment on vessel     MT “ASIAN CHEMI” for being carried to Mundra  port in India. On 05.03.2011  the consignment arrived at Mundra  port and was discharged into storage tanks. The complainant had received only a quantity of  4969.770 MT of material in the said storage tanks as against the bill of lading quantity of 5002.890 MT thus a quantity of 33.120 MT was received in short by the complainant. Unloading of the material into storage tanks at  Mundra  port from ship was done under supervision of the Surveyors M/s J.B. Boda Surveyors Pvt. Ltd who had surveyed the consignment and issued their report no. KDL/05206/10/AA dated 10.03.2011 and confirmed that the complainant had received the material short by 33.120 MT. Complainant company lodged their claim in respect of the shortage of material upon the Ship’s Agents, M/s  Atlantic Shipping Pvt. Ltd , Mundra   by letter dated 16.08.2011. Vide claim form and letter dated 20.08.2011 complainant lodged claim for Rs. 3,79,232/- on the OP against the shortage of material and also submitted their claim bill and other claim documents. OP did not settle the said claim despite letters  and reminders sent by complainant.  OP instead wrote a  letter dated 20.03.2014  stating therein that the claim had been already repudiated  and enclosed it with an undated letter of repudiation which the complainant had never recieved. Complainant promptly replied vide  letters dated 28.03.2014 , 08.04.2014 stating therein that the insurance policy provides coverage against all risks and the shortage of material is within the scope of insurance policy and is recoverable by the complainant. OP repudiated the lawful claim of the complainant hence OP is deficient in providing services and complainant prayed this forum to direct OP to pay to the complainant  a sum of Rs. 3,79,232/- being the loss sustained by complainant because of the short quantity received in the storage tanks. Complainant further prayed interest on the amount of  Rs. 3,79,232/- /- @  12% p.a. from 11.07.2012 up to the date of this complaint  and thereafter upto  the date of payment ,Rs. 50,000/- towards compensation for delay and deficiency and the denial of OP’s to settle the claim and Rs. 30,000/-  as cost for this action.
2. In reply OP admitted issuance of Marine Cargo Single Voyage (Sea) policy 272200/21/2011/1090 issued in favour of complainant company covering  the import consignment against all risks for a total sum  of Rs.24,78,60,113/- from anywhere in the world  to anywhere in India. OP alleged that shortage/ losses claimed are excluded as per  clause 4.2 of the institute Cargo clauses (A) under  the terms and conditions of the insurance policy and are not payable.   OP denied that Complainant Company comes within the four corners of the definition of Consumer under the Consumer Protection Act 1986 and denied rest of the allegations and prayed to dismiss the complaint with costs.
3. The complainant has filed rejoinder to the written statement and denied the objections made by OP and supported his complaint.
4. In support of his complaint complainant filed affidavit of Sh. Devki Nandan Dadhich along with documents i.e. copy of board resolution (Annexure C-1),   copy of insurance cover note (Annexure C-2) , copy of  insurance policy    (Annexure C-3) ,  copy of consignment  invoice (Annexure C-4), copy of bill of lading dated 26.02.2011 (Annexure C-5), copy of bill of entry (Annexure C-6), copy of letter dated 09.03.2011  (Annexure C-7), copy of survey report dated 10.03.2011 of M/s J.B. Boda (Annexure C-8), copy of copy of letter dated 16.08.2011 (Annexure C-9) , copy of  claim form (Annexure C-10) ,  copy of letter dated 20.08.2011 and claim bill   (Annexure C-11),  Copy of letters dated 13.04.2012 (Annexure C-12), copy of complainant’s email dated 10.03.2014, OP’s letter dated 20.03.2014 and undated letter  (Annexure C-13), copy of complainant’s letter dated 28.03.2014 (Annexure C-14), copy of complainant’s letter dated 08.04.2014 (Annexure C-15).
5.  In support of reply OP filed affidavit of Mr. Sunil Gupta (Division- Manager) along with documents i.e.  copy of condition “Institute Cargo Clauses (A)” (Annexure OP-1)  and copy of survey report dated 24.03.2012 (Annexure OP-2) and proof of dispatch (Annexure OP-3).   
6. Both the parties filed their written arguments.
7. We have heard the arguments of complainant and considered the evidence led by the parties and their written arguments.  In this case points to be considered are as under:-

1. Whether complainant is a consumer?
2. Whether this forum has pecuniary jurisdiction to entertain this complaint?
3. Whether there is any deficiency in service on the part of the OP?
4. Relief?

8. In reply OP did not deny issuance of insurance policy  bearing no. 272200/21/2011/1090 in favour of complainant company hence complainant is a consumer.
9. Mere perusal of the complaint clarifies that the OP has issued insurance covering the import consignment against all risks for a total sum  of Rs.24,78,60,113/- from anywhere in the world  to anywhere in India. It is true that the complainant prayed  for an amount of Rs. 4,13,903/-  for the short quantity received with 12 % interest , Rs 6,368/- being the amount paid by the complainant to surveyors M/s S.K. Chakraborty & Associates , Rs. 50,000/- towards compensation for delay and deficiency and the denial of OP to settle the claim and Rs. 30,000/- as cost of this action i.e. value of removing the deficiency in service and its compensation  but the total value of the service is Rs. 24,78,60,113/- i.e. total sum insured under the policy. This value of service i.e. sum assured under the policy is to be considered for pecuniary jurisdiction of this forum.
10. The  Hon’ble National Commission vide order dated 07.10.2016 passed in C. C. No. 97/2016 with regard to the reference  dated 11.08.2016 relating to issue numbers (i) to (iv) decided the pecuniary jurisdiction  as under:-

“(i) It is the value of the goods or services, as the case may be  and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.

(ii) The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.

(iii) The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.

(iv) In a complaint instituted under section 12 (1) (c) of the consumer protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefits the complaint is instituted and the total compensation claimed in respect of such consumers.”

11.  In view of the above settled legal position as well as facts of the complaint this forum has no pecuniary jurisdiction to entertain this complaint.  Looking to the above facts and circumstances we are of the considered opinion that value of service availed by the complainant is Rs.24,78,60,113/- and this forum has no pecuniary jurisdiction to entertain this complaint. Hence this complaint is not maintainable in this forum.
12.  As this forum has no pecuniary jurisdiction in this case therefore there is no need to decide remaining points of consideration. Complainant is directed to approach appropriate commission within 30 days from the date of issuance this order or within period of limitation prescribed under the provisions of Consumer Protection Act,1986.
13.  Both the parties will bear their own cost.  Copy of the order be made available to the parties free of cost as per law.  File be consigned to record room.

Announced on………