In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No.12/2007. 1) Durgar Brothers Concern, P.O. Box No. 1997, Charkhal, Dillibazar, Kathmandu, Nepal and also carrying on business at C/o. Nepal Straw Board Co. Pvt. Ltd., 4, Synagogue Street, R.N. No. 606. ---------- Complainant ---Versus--- 1) Tokio Marine Insurance (Malatsia) Berhad, 29th to 31th Floor, Menara Dion, 27, Jalan Sultan Ismail 50550, Kuala Lumpur, Malaysia. Carrying Business in India at 17, Dover Road, Kolkata-700019. 2) Gladstone Agencies :td., 17, Dover Road, Kolkata-700019. 3) Zim Israil Nevigation Co. Ltd., 7-9, Pal-Yam Ave, P.O. Box-1723, Haifa 31016, Israel. And carrying business in India through their Agent M/s. Zim Integrated Shipping Services (I) Pvt. Ltd. “Surabhi”, 3rd Floor, 8/1/2, Loudon Street, Kolkata-700017. 4) Hanuman Roadways, 10, Tarachand Dutta Street, Kolkata-700073. 5) M/s. Arebee Star Maritime Agescies Pvt. Ltd., 12/1, Lindsay Street, Kolkata-700087. ---------- Opposite Parties Present : Sri Sankar Nath Das, President. Dr. Subir Kumar Chaudhuri ,Member Order No. 49 Dated 21-02-2013. The case of the complainant in short is that complainant is regd. partnership firm and runs their import of different business. O.p. no.1 carries on insurance business and covers goods under insurance risk of “ALL RISKS” of insurance and carrying on business at the address as mentioned in the cause title of the complaint petition and o.p. no.2 is acting as survey and claims payable agents on behalf of o.p. no.1 at the address as mentioned in the cause title of the complaint petition and o.p. no.3 is the shipping company who took charge of consignment to carry goods from the Port of Odessa Port of Ukraine to Port of Calcutta and carrying on shipping business as the address as as mentioned in the cause title of the complaint petition. In course of business the complainant placed an order to M/s OzEpulse Pty Ltd., Suite 103, 91 O’Sullivan Road, Rose Bay NSW 2029, Australia against Letter of Credit No.110010050467281 dt.29.6.04 issued by Nepal Bank Ltd. City Office, Biratnagar, Nepal for supply of 762 Bags weighing 34.587 MT of Oriental Mustard Seed in 1 x 20’ & 1 x 40’ Standard Container. The said suppliers / shipper M/s OzEpluse Pty Ltd. Suite 103, 91 O’Sullivan Road, Rose Bay NSW 2029, Australia executed shipment of a consignment of 762 bags weighing 34.587 MT of Oriental Mustard Seed in 1 x 20’ & 1 x 40’ Standard Container under their invoice no.1199 dt.9.7.04 on CIF Calcutta basis for invoice value of USD 12,577.22 and under Bill of Lading no.ZIMUOSS041235 dt.26.7.04 from the Port of Odessa Port of Ukraine to the Port of Calcutta per vessel s.s. ERNST RICKMERS V – 123/E. Complainant purchased the said goods against consideration and became the owner of the said goods. Accordingly to the arrangement the said goods were landed at KolkataPort. Subsequently, the said goods were dispatched to Nepal, the ultimate destination for delivering the goods to the complainant. As per usual procedure and on unloading of the said consignment per transship vessel at Calcutta Port and thereafter the said consignment was transported from Calcutta Port to final destination at Nepal by Road Carriers on 30.10.04 and as a token thereof the said Road Carriers issued 2 Clean Consignment Notes CAL/CON/1410 to 1411 all dated 30.10.04. On arrival of the above consignment at final destination at Nepal, damage was detected and immediately a survey was conducted by the nominated surveyor M/s Gladstone Agencies Ltd., Katmandu, Nepal and report vide no.N/162/04 was issued on 25.1.,05 at Kolkata mentioning the quantity of damage. The said surveyor in their report observed that 449 bags containing 20.385 MT of master seeds was found as damaged condition. Complainant brought the matter to the carriers for the said loss at the time of delivery. Said consignment was insured with o.p. no.1 under Marine Insurance4 Open Cover No.W-M-A2-AG-001831, certificate no.MR110084 dt.10.7.04 for sum insured USD 14,000.00 under ‘All Risks’ i.e. Insurance Cargo Clause ‘A’ from Warehouse to Warehouse upto final destination at Nepal. Complainant accordingly submitted the claim to o.ps. On receipt of the assessment report, the complainant submitted their claim to the o.ps. on 29.5.05 for payment of the loss sustained by the complainant and o.ps. accepted and acknowledged the demand of the complainant but till date they did not settle the claim in spite of making several correspondences and e-mails. O.ps. did not allow the claim and denied the claim of the complainant on the ground that such loss hits the clause 3.4 and 3.5 of the Institute Strikes Clauses (Cargo) attached to the policy and such information was forwarded by the letter issued by o.p. no.1 dt.27.9.05. Hence the case was filed by complainant with the prayer contained in the petition of complaint. O.p. nos.2 to 5 had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. O.p. no.1 did not contest the case by filing w/v and matter was heard ex parte against o.p. no.1. Ld. lawyer of o.ps. in the course of argument submitted that the case has got no merit and the same is liable to be dismissed. Decision with reasons:- We have gone through the pleadings of the parties, evidence and documents in particular and we find that complainant is regd. partnership firm and runs their import of different business. O.p. no.1 carries on insurance business and covers goods under insurance risk of “ALL RISKS” of insurance and carrying on business at the address as mentioned in the cause title of the complaint petition and o.p. no.2 is acting as survey and claims payable agents on behalf of o.p. no.1 at the address as mentioned in the cause title of the complaint petition and o.p. no.3 is the shipping company who took charge of consignment to carry goods from the Port of Odessa Port of Ukraine to Port of Calcutta and carrying on shipping business as the address as as mentioned in the cause title of the complaint petition. It is seen from the record that in course of business the complainant placed an order to M/s OzEpulse Pty Ltd., Suite 103, 91 O’Sullivan Road, Rose Bay NSW 2029, Australia against Letter of Credit No.110010050467281 dt.29.6.04 issued by Nepal Bank Ltd. City Office, Biratnagar, Nepal for supply of 762 Bags weighing 34.587 MT of Oriental Mustard Seed in 1 x 20’ & 1 x 40’ Standard Container. We further find that the said suppliers / shipper M/s OzEpluse Pty Ltd. Suite 103, 91 O’Sullivan Road, Rose Bay NSW 2029, Australia executed shipment of a consignment of 762 bags weighing 34.587 MT of Oriental Mustard Seed in 1 x 20’ & 1 x 40’ Standard Container under their invoice no.1199 dt.9.7.04 on CIF Calcutta basis for invoice value of USD 12,577.22 and under Bill of Lading no.ZIMUOSS041235 dt.26.7.04 from the Port of Odessa Port of Ukraine to the Port of Calcutta per vessel s.s. ERNST RICKMERS V – 123/E. It is also seen from the record that complainant purchased the said goods against consideration and became the owner of the said goods and accordingly to the arrangement the said goods were landed at KolkataPort and subsequently, the said goods were dispatched to Nepal, the ultimate destination for delivering the goods to the complainant. It transpires from the record that as per usual procedure and on unloading of the said consignment per transship vessel at Calcutta Port and thereafter the said consignment was transported from Calcutta Port to final destination at Nepal by Road Carriers on 30.10.04 and as a token thereof the said Road Carriers issued 2 Clean Consignment Notes CAL/CON/1410 to 1411 all dated 30.10.04. We further find from the record that on arrival of the above consignment at final destination at Nepal, damage was detected and immediately a survey was conducted by the nominated surveyor M/s Gladstone Agencies Ltd., Katmandu, Nepal and report vide no.N/162/04 was issued on 25.1.,05 at Kolkata mentioning the quantity of damage. It also transpires from the record that the said surveyor in their report observed that 449 bags containing 20.385 MT of master seeds was found as damaged condition. Complainant brought the matter to the carriers for the said loss at the time of delivery. On perusal of the record we find that said consignment was insured with o.p. no.1 under Marine Insurance4 Open Cover No.W-M-A2-AG-001831, certificate no.MR110084 dt.10.7.04 for sum insured USD 14,000.00 under ‘All Risks’ i.e. Insurance Cargo Clause ‘A’ from Warehouse to Warehouse upto final destination at Nepal and Complainant accordingly submitted the claim to o.ps. It is seen from the record that on receipt of the assessment report, the complainant submitted their claim to the o.ps. on 29.5.05 for payment of the loss sustained by the complainant and o.ps. accepted and acknowledged the demand of the complainant but till date they did not settle the claim in spite of making several correspondences and e-mails. It is also seen that o.ps. did not allow the claim and denied the claim of the complainant on the ground that such loss hits the clause 3.4 and 3.5 of the Institute Strikes Clauses (Cargo) attached to the policy and such information was forwarded by the letter issued by o.p. no.1 dt.27.9.05. In view of the above findings and on perusal of the entire materials on record we find and hold that that o.ps. had sufficient deficiency in service being service provider to their consumer / complainant and complainant is entitled to relief. Hence, ordered, That the case is allowed on contest with cost against o.p. nos.2 to 5 and ex parte with cost against o.p. no.1. O.ps. are jointly and/or severally directed to pay to the complainant a sum of Rs.3,13,084.50 /- (Rupees three lakhs thirteen thousand eighty four and fifty paise) only being the claimed amount and are further directed to pay compensation of Rs.10,000/- (Rupees ten thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization. Complainant is at liberty to file execution case before this Forum in case of non execution of the aforesaid order in its entirety within the stipulated period under the provision of the COPRA, 1986. Supply certified copy of this order to the parties free of cost. | 
