BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.37 of 2016
Date of Instt. 19.01.2016
Date of Decision : 24.08.2016
M/s H.B.Metals, Opp.Transport Nagar, Bulandpur Road, GT Road Byepass, Jalandhar-144004 through its Partner Sh.Charanjit Singh son of Late Sh.Harbel Singh.
..........Complainant
Versus
1.The Oriental Insurance Co.Ltd., Registered Office:-Oriental House, A-25/27, Asaf Ali Road, New Delhi-110002 through its Managing Director.
2.The Branch Manager, The Oriental Insurance Co.Ltd., B.O.II, SCO-50, Jeevan Raksha, PUDA Complex, Opp.Tehsil Complex, Jalandhar.
.........Opposite parties
Complaint Under The Consumer Protection Act.
Before: S. Bhupinder Singh (President)
Sh.Parminder Sharma (Member)
Present: Sh.IS Bhatia Adv., counsel for the complainant.
Sh.AK Arora Adv., counsel for opposite parties.
Order
Bhupinder Singh (President)
1. The complainant has filed the present complaint under 'The Consumer Protection Act' against the opposite parties (hereinafter called as OPs) on the averments that the complainant firm purchased Brass Balls Valves of various sizes from M/s Yuhuan Wanshida Copper Industry Company Limited, China worth US$ 66,510 and imported the same into India. The goods were shipped from China to India by the aforesaid supplier and the complainant firm got insured the said shipment from OP No.2 vide cover note No.CH/096663 dated 24.2.2012 for the sum insured US$ 76,486.98 on payment of premium of Rs.2999/-. The goods transported, were 22,198 pcs of Brass Ball Valves of various sizes and the same were shipped from China to Nahava Sheva Port, Mumbai for onward delivery to the complainant firm at Jalandhar. The complainant submitted that the supplier had dispatched 398 cartons consisting of 22198 pcs vide bill of landing No.ULSNGB10518 dated 16.2.2012. The complainant paid US$ 66510.42 to its supplier through State Bank of India, Civil Lines, Jalandhar vide certificate dated 6.12.2012. The goods were off loaded at Nahava Sheva Port, Mumbai and further transported to Ludhiana. The complainant got the goods cleared through Customs Department on payment of Import Duty to the tune of Rs.9,19,595/- vide TR No.2003395839. The complainant alleges that during the customs clearance of the consignment at Ludhiana, the complainant found that out of 398 cartons/21 pallets only 354 cartons/19 pallets were delivered to the complainant in the godowns of the custom department. Therefore, two pallets/44 cartons were missing. Vide letter dated 17.4.2012, complainant immediately informed the OP No.2 alongwith relevant documents that the consignment was short and is lying at ICD Container Depot, Dadri Kalan, Phase-V, Ludhiana. Complainant also lodged complaint dated 19.4.2012 with M/s Unique Logistic International Pvt Ltd regarding short shippment. Vide letter dated 25.4.2012, complainant requested Container Corporation of India Limited for joint survey and issuance of short landing certificate. Resultantly, a joint survey was conducted on 26.4.2012 by CONCOR in the presence of customs authority, CHA-R.N.Orance Overseas Pvt Ltd, DDL Ludhiana, shipping line's surveyor and representative of the complainant firm and as per joint survey, short landing of 44 cartons/2 pallets was certified. Earlier joint survey was conducted on 18.4.2012 which also certified short landing. The complainant got the short delivery of goods through Preet Container Service, Ludhiana vide G.R.No.4004 dated 28.4.2012. The complainant also produced copy of slip of Dharam Kanda dated 29.4.2012. The complainant lodged claim with the OP but the OP did not settle the claim of the complainant despite issuance of reminders dated 6.8.2012. Complainant sent so many reminders to the OP. The OP vide letter dated 16.8.2012 told the complainant that there was no shortage against the revised invoice and packing list. Moreover, there was no evidence of pilferage during the transit at ICD, Ludhiana. The complainant again requested the OP to consider the case of the complainant. However, OP again issued letter dated 12.12.2012 that their claim is being reconsidered in the light of documents submitted by the complainant. On such averments, the complainant has prayed for directing the OP No.1 to pay a sum of Rs.9,04,119/- inclusive of value of the goods short shipped and OP No.2 to pay pendentilite and future interest @ 18% per annum.
2. Upon notice, OPs appeared through counsel and filed written statement pleading that on receipt of information from the complainant firm regarding the loss caused to the consignment, the OP appointed M/s Suresh Vashisht & Company as surveyor to assess the loss, who submitted their report dated 15.6.2012 in which the surveyor submitted that on checking it was found that quantity of cartons in pallets were not as per packing list supplied by the consignor. They asked the representative of the complainant/insured to open each and every pallets and compare quantity with packing list. On checking 44 cartons were found less. Therefore, the surveyor asked the insured to get this verified from the consignor whether they had packed and shipped 44 cartons less from the invoice quantity of 398 cartons. Instead consignor issued a revised invoice and packing list under original number and date which clearly means, the consignor accepted the consignment was shipped short i.e. only 19 pallets were shipped. When the surveyor asked the insured to clarify the invoice, the insured replied that the revised invoice is for getting refund of the excess custom duty paid. The surveyor assessed the loss to the tune of Rs.3,42,450/- as per terms and conditions of the policy but further pointed out that there was no evidence of pilferage during transit. As such, a acceptance of liability of the claim is at the discretion of the underwriters. Therefore, the claim was repudiated by the OP vide letter dated 16.8.2012 which was duly received by the complainant in which it was categorically mentioned that the consignment was packed improper as it does not match the original packing list. There was no evidence of pilferage during the transit at ICD Ludhiana. The revised invoice and packing list was issued by the consignor after alleged short receipt of the contents against original invoice and packing list. Issuance of revised invoice and packing list by the consignor is the admission on the part of consignor that the consignment was shipped short by them. As such, there was no shortage against the revised invoice and packing list. So, the claim is not tenable as per policy terms and conditions. The claim of the complainant was repudiated vide letter dated 16.8.2012 and the same decision reiterated vide letter dated 15.1.2013 and vide letter dated 27.1.2014 and the complainant was categorically stated that the OP rightly repudiated the claim and as such it does not merit reconsideration. OPs denied other material averments of the complainant.
3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C58 and closed his evidence.
4. On the other hand, learned counsel for the OPs has tendered affidavits Ex.OP/A and Ex.OP/B alongwith copies of documents Ex.OP/1 to Ex.OP/8 and closed evidence.
5. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.
6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that the complainant firm purchased Brass Balls Valves of various sizes from M/s Yuhuan Wanshida Copper Industry Company Limited, China worth US$ 66,510 and imported the same into India. The goods were shipped from China to India by the aforesaid supplier and the complainant firm got insured the said shippment from OP No.2 vide cover note No.CH/096663 dated 24.2.2012 for the sum insured US$ 76,486.98 on payment of premium of Rs.2999/-. The performa invoice of the said goods is Ex.C6, commercial invoice Ex.C7, packing list is Ex.C8. The goods transported, were 22,198 pcs of Brass Ball Valves of various sizes and the same were shipped from China to Nahava Sheva Port, Mumbai for onward delivery to the complainant firm at Jalandhar. The complainant submitted that the supplier had dispatched 398 cartons consisting of 22198 pcs vide bill of landing No.ULSNGB10518 dated 16.2.2012 Ex.C11. Complainant paid US$ 66510.42 to its supplier through State Bank of India, Civil Lines, Jalandhar vide certificate dated 6.12.2012 Ex.C9. The goods were off loaded at Nahava Sheva Port, Mumbai and further transported to Ludhiana. The complainant got the goods cleared through Customs Department on payment of Import Duty to the tune of Rs.9,19,595/- vide TR No.2003395839 Ex.C10 which were paid through HDFC Bank. The complainant alleges that during the customs clearance of the consignment at Ludhiana, the complainant found that out of 398 cartons/21 pallets only 354 cartons/19 pallets were delivered to the complainant in the godowns of the custom department. Therefore, two pallets/44 cartons were missing. Vide letter dated 17.4.2012 Ex.C18, complainant immediately informed the OP No.2 alongwith relevant documents that the consignment was short and is lying a ICD Container Depot, Dadri Kalan, Phase-V, Ludhiana. The complainant also lodged complaint dated 19.4.2012 Ex.C19 with M/s Unique Logistic International Pvt Ltd regarding short shippment. Vide letter dated 25.4.2012 Ex.C20, the complainant requested Container Corporation of India Limited (hereinafter called as CONCOR) for joint survey and issuance of short landing certificate. Resultantly, a joint survey was conducted on 26.4.2012 by CONCOR in the presence of customs authority, CHA-R.N.Orance Overseas Pvt Ltd, DDL Ludhiana, shipping line's surveyor and representative of the complainant firm and as per joint survey short landing of 44 cartons/2 pallets was certified. Earlier joint survey was conducted on 18.4.2012 which also certified short landing. Complainant got the short delivery of goods through Preet Container Service, Ludhiana vide G.R.No.4004 dated 28.4.2012. The complainant also produced copy of slip of Dharam Kanda dated 29.4.2012. The complainant lodged claim with the OP vide claim form Ex.C5 but the OP did not settle the claim of the complainant despite issuance of reminders dated 6.8.2012. The OP submitted frivolous reply through letter dated 6.8.2012 and reply dated 16.8.2012. Complainant sent so many reminders to the OP. The OP vide letter dated 16.8.2012 Ex.C23 told the complainant that there was no shortage against the revised invoice and packing list. Moreover, there was no evidence of pilferage during the transit at ICD, Ludhiana. Complainant again requested the OP to consider the case of the complainant. However, OP again issued letter dated 12.12.2012 Ex.C27 that their claim is being reconsidered in the light of documents submitted by the complainant. However, through letter dated 15.4.2013 Ex.C28, the OP again stated that there is no change in the decision of the OP earlier conveyed to the complainant. The complainant again approached the OP through letter dated 16.4.2013 Ex.C29 and letter dated 22.5.013 Ex.C34. OP again vide through letter dated 27.1.2014 Ex.C47 repudiated the claim of the complainant and reiterated their earlier decision. Complainant again requested the OP to reconsider the matter but in vain. Learned counsel for the complainant submitted that all this amounts to deficiency in service on the part of the OPs qua the complainant.
7. Whereas the case of the OPs is that on receipt of information from the complainant firm regarding the loss caused to the consignment, the OP appointed M/s Suresh Vashisht & Company as surveyor to assess the loss, who submitted their report dated 15.6.2012 Ex.OP3 in which the surveyor submitted that on checking it was found that quantity of cartons in pallets were not as per packing list supplied by the consignor. So, they asked the representative of the complainant/insured to open each and every pallets and compare quantity with packing list. On checking 44 cartons were found less. Therefore, the surveyor asked the insured to get this verified from the consignor whether they had packed and shipped 44 cartons less from the invoice quantity of 398 cartons. Instead consignor issued a revised invoice and packing list under original number and date which clearly means, the consignor accepted the consignment was shipped short i.e. only 19 pallets were shipped. When the surveyor asked the insured to clarify about the invoice, the insured replied that revised invoice is for getting refund of the excess custom duty paid. Further, the surveyor assessed the loss to the tune of Rs.3,42,450/- as per terms and conditions of the policy but further pointed out that there was no evidence of pilferage during transit. As such, an acceptance of liability of the claim is at the discretion of the underwriters. Therefore, the claim was repudiated by the OP vide letter dated 16.8.2012 Ex.C23 which was duly received by the complainant in which it was categorically mentioned that the consignment was packed improper as it does not match the original packing list. There was no evidence of pilferage during the transit at ICD Ludhiana. The revised invoice and packing list was issued by the consignor after alleged short receipt of the contents against original invoice and packing list. Issuance of revised invoice and packing list by the consignor is the admission on the part of consignor that the consignment was shipped short by them. As such, there was no shortage against the revised invoice and packing list. So, the claim is not tenable as per policy terms and conditions. The claim of the complainant was repudiated vide letter dated 16.8.2012 Ex.C23 and the same decision reiterated vide letter dated 15.1.2013 Ex.C28 and vide letter dated 27.1.2014 Ex.C47 and the complainant was categorically stated that the OP rightly repudiated the claim and as such it does not merit reconsideration. So, the claim of the complainant was repudiated on 16.8.2012. But the present complaint has been filed by the complainant on 191.2016 i.e. after a lapse of more than three years. As such, the same is hopelessly barred by limitation. Learned counsel for the OPs submitted that OPs have rightly repudiated the claim of the complainant and the present complaint is barred by limitation. As such, there is no deficiency of service on the part of the OPs qua the complainant
8. From the entire above discussion, we have come to the conclusion that the complainant firm purchased Brass Balls Valves of various sizes from M/s Yuhuan Wanshida Copper Industry Company Limited, China worth US$ 66,510 and imported the same into India. The goods were shipped from China to India by the aforesaid supplier vide performa invoice dated 16.2.2012 Ex.C6, commercial invoice dated 16.2.2012 Ex.C7 and packing list dated 16.2.2012 Ex.C8 with certificate of origin. The complainant firm got the said shippment insured from OP No.2 vide cover note dated 24.2.2012 Ex.C17. As per the performa invoice, commercial invoice and packing list, the supplier dispatched 398 cartons consisting of 22198 pcs vide bill of lading dated 16.2.2012 Ex.C11. The goods were shipped from China to Nahava Sheva Port, Mumbai for onwards delivery to the complainant at Jalandhar. The goods were off loaded at Nahava Sheva Port, Mumbai and were transported to Ludhiana. The complainant got the goods cleared through Customs Department on payment of Import Duty to the tune of Rs.9,19,595/- through HDFC Bank vide TR No.2003395839 Ex.C10. However, at Ludhiana, it was found that out of 398 cartons/21 pallets only 354 cartons/19 pallets were received at ICD Container Depot, Dadri Kalan, Phase-V, Ludhiana. There was a shortage of two pallets/44 cartons. The complainant wrote letter dated 17.4.2012 Ex.C18 to the OP No.2 regarding this shortage. The complainant also lodged complaint dated 19.4.2012 Ex.C19 to M/s Unique Logistic International Pvt Ltd regarding short shippment. The complainant also requested CONCOR vide letter dated 25.4.2012 Ex.C20 for joint survey. Resultantly, a joint survey was conducted on 26.4.2012 by CONCOR in the presence of customs authority, CHA-R.N.Orance Overseas Pvt Ltd, DDL Ludhiana, shipping line's surveyor and representative of the complainant firm who certified short landing of 44 cartons/2 pallets. The short delivery was made to the complainant vide G.R.No.4004 dated 28.4.2012 through Preet Container Service, Ludhiana. The complainant lodged claim with the OP vide claim form Ex.C5. The OP deputed surveyor M/s Suresh Vashisht & Company as surveyor to assess the loss, who submitted their report dated 15.6.2012 Ex.OP/3. The surveyor clearly mentioned that they contacted the representative of the insured and visited ICD, near Dhandari Flyover, Ludhiana for survey. On checking it was found that the quantity of pallets were not as per packing list supplied by the consignor. There was no evidence of pilferage during transit, in ICD, Ludhiana So, the surveyor asked the insured to get this verified from the consignor i.e. supplier in China, whether they had packed and shipped 44 cartons less from the invoice quantity of 398 cartons. Resultantly, consignor issued a revised invoice, revised commercial invoice and revised packing list Ex.C14 under original number and date which clearly proves that the consignor accepted the consignment was shipped short i.e only 19 pallets were shipped. When the surveyor asked the insured to clarify the invoice, he replied that the revised invoice was issued for getting refund of the excess custom duty paid. No doubt, the surveyor assessed the loss to the tune of Rs.3,42,450/- as per terms and conditions of the policy but pointed out that as there was no evidence of pilferage during transit, therefore, acceptance of liability of the claim is at the discretion of the underwriters. That is why the surveyor asked the complainant to confirm from the supplier in China whether they had packed and shipped 44 cartons less from the invoice quantity of 398 cartons. The complainant produced revised commercial invoice and packing list Ex.C14 issued by the consignor under original number and date which clearly proves that the consignment was shipped short i.e. only 19 pallets were shipped by the consignor. So, there was no shortage of consignment received by the complainant. Resultantly, the OP vide letter dated 16.8.2013 Ex.C23 repudiated the claim of the complainant on the ground that the revised invoice and packing list issued by the consignor is the admission on the part of the consignor that the consignment was shipped short by them. So, there was no shortage of delivery to the complainant against the revised invoice and packing list Ex.C14.
9. The complainant requested the OP to reconsider the matter and wrote letters Ex.C24, Ex.C25 but the OP vide letter dated 15.4.2013 Ex.C28 rejected the request of the complainant confirming their earlier decision dated 16.8.2012 and informed the complainant that there is no change in the decision already conveyed. Further, the complainant again wrote letters Ex.C29, Ex.C34, Ex.C44 and Ex.C45 to reconsider the claim case of the complainant but the OP vide letter dated 27.1.2014 Ex.C47 again wrote to the complainant that earlier decision of repudiation of the claim of the complainant is in order and the claim does not merit reconsideration. So, all this fully proves that the claim of the complainant was repudiated by the OP and was conveyed to the complainant vide letter dated 16.8.2012 Ex.C23 holding that there was no shortage of delivery of the consignment as per revised invoice and packing list Ex.C14 supplied by the complainant from supplier in China on their letter-head pad with original number and date. Learned counsel for the complainant submitted that this revised invoice and packing list Ex.C14 was not supplied by the original supplier but was submitted by the complainant for getting refund of the excess custom duty paid by him to the custom authorities. This plea of the complainant is not tenable because the surveyor M/s Suresh Vashisht & Company categorically told the complainant that as there is no pilferage during transit at ICD Ludhiana, so, the complainant was directed to confirm/verify from the consignor whether they had packed and shipped 44 cartons/2 pallets less from the invoice quantity of 398 cartons/21 pallets. On the basis of that request of the surveyor, the complainant supplied this revised commercial invoice and packing list Ex.C14 on the letter-head pad of the supplier M/s Yuhuan Wanshida Copper Industry Company Limited, China with original number and date. Had this Ex.C14 was not revised invoice and revised packing list issued by the original supplier in China then why the complainant used the letter-head pad of the supplier in China and why he did not give this information on his own letter-head pad and with fresh number and date, but he had issued this revised commercial invoice and revised packing list on the letter-head pad of original supplier in China with original number and date. Resultantly, we hold that the OP was justified in repudiating the claim of the complainant on the basis of these revised invoice and revised packing list Ex.C14 issued by the supplier/consignor vide which they have admitted that they shipped the consignment with 2 pallets/44 cartons short.
10. Apart from this, the present complaint is also barred by limitation because the OP has repudiated the claim of the complainant and conveyed to the complainant vide letter dated 16.8.2012 Ex.C23 and later on same decision was confirmed and conveyed to the complainant that it does not require reconsideration vide letters dated 15.4.2013 Ex.C28 and 27.1.2014 Ex.C47 issued by the OP to the complainant. So, the claim of the complainant was repudiated by the OP on 16.8.2012 and the present complaint has been filed by the complainant on 19.1.2016 i.e. after a lapse of a period of more than 3 years which is also barred by limitation as consumer complaint is maintainable within two years.
11. In view of above discussion, we do not find any merit in this complaint and the same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of cost, under rules. File be consigned to the record room.
Dated Parminder Sharma Bhupinder Singh
24.08.2016 Member President
