DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 696/2014
D.No._____________________ Dated: ________________
IN THE MATTER OF:
M/s JAI HEALTHCARE LTD.,
GD-101, VISHAKHA ENCLAVE,
PITAM PURA, DELHI-110088. … COMPLAINANT
Versus
M/s UNITED INDIA INSURANCE CO. LTD.,
(THROUGH THE GENERAL MANAGER/BRANCH
MANAGER/CONCERNED OFFICER),
SAVITRI CHAMBERS-II, L.S.C.,
OUTER RING ROAD, PRASHANT VIHAR,
DELHI-110085. … OPPOSITE PARTY
CORAM:SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 06.06.2014
Date of decision: 23.09.2019
SH. M.K. GUPTA, PRESIDENT
ORDER
1. The complainant has filed the present complaint against the OP under Section 12 & 13 of the Consumer Protection Act, 1986 therebyalleging that the complainant is a company incorporated under the Indian Companies Act, 1956 having its office at the above said address and the complainant’s company is carrying on and engaged in the business of international trade, export, real estate
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etc. and Sh. Rakesh Gupta, Manager (Authorized Signatory) in the complainant’s company is duly authorized to institute, sign, file & prosecute the present complaint. The complainant further alleged that the complainant’s company has taken a comprehensive open insurance policy being Marine Certificate under Open cover no. 2219001200012 having certificate no. 221900/21/13/10/70000003 from OP to cover the risk of loss, theft, damage to goods etc. for the transit of the goods consisting of interest Pharmaceutical Products, Surgical Products, Hospital Equipments, Medicines, Agriculture Equipments, Packing Material, Furniture, Dress & Linen and stationery INV. No. H-428/12/2013-14 dated 04.04.2013 contained in 12 boxes (harmless medicines “scolax” succinyl choline chloride INJ. I.P. 500 mg, 10 ML) and the policy being open one, the premiumtowards the policy are made in advance from time to time which gets adjusted according to the value of the risk covered for the transit of goods. Thereafter, the complainant’s company accordingly got the premium paid amounting to Rs.1,977/- (Rs.1,606/- +Rs.371/-) adjusted/paid towards the said policy for the subject shipment/export in question and OP also accepted and confirmed the adjustment for the said premium and accordingly issued the cover/policy for insurance of risk during the transit of the shipment/export of goods and the deficient amount of premium as was noted by the complainant was also paid subsequently. The complainant further alleged that OP
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issued certificate to the complainant vide marine certificate under open cover no. 2219001200012 dated 14.08.2012 having certificate no. 221900/21/13/10/70000003 dated 05.04.2013 US$ 26,631 in Indian Rupee Rs.14,64,705/-(@ Rs.55/-) and all the payments including the premium for the current shipment are made by the complainant to OP in Delhi and due receipt of the same is also issued by OP in Delhi from their Delhi office. The complainant further alleged that the complainant exported the goods value at US$ 24,210 (equivalent to Rs.13,31,550/-) consignee/importer being Hospimed Grupo Limitada, Rua Do Kicombo No. 136 (Rue Do Cine Sao Paulo), Luanda Angola, via Conveyance by Air (CIF LUANDA BY AIR) in the month of April 2013 and the goods were loaded at the port Mumbai, India and were to be delivered at Luanda Angola and the policy covered all types of risk involved in the transit viz. damages, loss, theft etc. At the time of loading of the goods, the complainant completed all the formalities and submitted all the documents required for the said consignment to be exported and the shipment/consignment contained pharmaceutical products/ surgical products/medicines (“scolax” succinyl cholinechloride inj. i.p. 500 mg, 10ml) in 12 boxes as per invoice no. H-428/13/2013- 14 dated 04.04.2013 and the air way bill clearly mentioned the goods to be kept in cool conditions during the entire journey to avoid the spoilage of the goods/medicines. The complainant further alleged that it received a communication from
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the importer/consignee vide letter dated 10.05.2013 received on 11.05.2013 that the goods contained in 12 boxes full of materials got spoiled due to the fault of Enana (Angola Govt. Airport Authority) as the authority did not maintain the temperature required for keeping the good safe because of the said spoilage of the goods/medicines, the concerned authority did not allow the goods to be taken out and accordingly the same was destroyed and it was a total loss of consignment/goods/medicines resulting into total loss to the complainant. Thereafter, the complainant immediately vide letter dated 13.05.2013 informed OP about the said loss and lodged the claims with OP and gave the details of the goods and their values which were lost. The complainant further alleged that the complainant was informed by the importer/consignee that as per the declaration report given by the Republic of Angola, Ministry of Finance, the medicines arrived in Angola in good conservation condition on 21.04.2013 and were deposited in one of the warehouses of ENANA but as the same was not properly stored by the authorities they were spoiled/deteriorated and OP thereafter, informed complainant that they have appointed a surveyor M/s W.K. Webster & co., Webster House, 207, Longlands Road, SIDCUP, Kent Da 15 7 JH, United Kingdom to assess the loss. The complainant has given, supplied and submitted to the surveyor all the information and documents asked for by the surveyor and the surveyor has also found the claim lodged by the
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complainant as genuine and correct. Thereafter, the complainant was informed by the OP that the appointed surveyor has assessed the loss at US$ 24,210 (Rs.13,31,550/-) on the basis of the documents submitted by the complainant and the investigation carried out by the surveyor (appointed by the OP) and the OP however, despite complainant asking for a copy of surveyor report, did not supply the copy of the same to the complainant. The complainant further alleged that the complainant had finished and provided all the details and information to the OP as well as to the surveyor from time to time to facilitate the settlement of the claim and the details of the lost goods with their financial worth were also given and submitted with the OP and the surveyor, though the said surveyor and the OP assured complainant that the claim for US$ 24,210 (Rs.13,31,550/-) has been admitted and that the complainant would be getting its claim amount soon, nothing was heard from the OP for a long time thereafter and when nothing was heard from the OP and the surveyor for a long time, the complainant approached them and requested them to clear its claim and pay the amount of loss at the earliest so that the complainant could rehabilitate their business without facing further monetary losses and consequential loss of business. However, nothing was informed to the complainant even thereafter, and the complainant thereafter, pursued their claim with the OP and explained their financial hardships which they were facing due
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to non-settlement of their long outstanding claim and again requested OP to settle its claim at the earliest. The complainant further alleged that the complainant has written several letters dated 31.05.2013, 04.06.2013, 17.07.2013, 05.12.2013 asking the OP to settle its claim at the earliest but no reply was given from the OP and vide mail dated 07.02.2014, OP falsely claimed that they have written mails dated 24.12.2013, 10.01.2014 and 14.01.2014 which allegedly remained un-responded and OP vide this mail informed complainant company that the claim was settled and approved and they asked complainant to submit some documents for the completion of formalities for the release of the claimed amount and the complainant company vide its covering letter dated 10.02.2014 submitted all the required documents again as was asked for and requested for the release of the payment. Thereafter, the complainant further alleged that the complainant has written several letters and visited the office of OP several times and held various meetings with their officers at their Delhi office but without any result on the settlement of the complainant’s claim and further the complainant company again wrote to OP vide its mail dated 14.04.2014 and requested OP for the release of the amount claimed towards the loss caused under the insurance coverage. The complainant further alleged that to the utter shock and surprise of the complainant, OP vide its letter dated 14.04.2014 repudiated the claim of the complainant citing trivial and frivolous reasonswith
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ulterior motive for the purpose of denying the legitimate claim of the complainant. Further the complainant submitted that the consignment was duly packed and the Airways bill specifically contained the condition that the goods are to be kept in cool temperature and it was also mentioned in the Airways bill that the importer be informed immediately after the arrival of the cargo. The very fact that the consignment was in good condition till the time it reached Angola Airport on 21.04.2013 shows that the complainant took all reasonable care and safeguard as required under the policy conditions and the complainant apart from loading the goods in safe cool condition and getting the said condition mentioned in the airways bill as required for keeping the medicine safe, could not have done anything more for the safe keepage of the goods during the transit and keeping the goods in required temperature was the duty of other agencies and if any agency did not do its duty in keeping the medicine in safe temperature, the complainant cannot be faulted for that, moreover, the goods during transit were insured to cover the risks only and it was covered for all these losses which could have happened during the transit and further the said action of OP amount to deficiency in service and unfair trade practice.
2. On these allegations the complainant has filed the complaintpraying for direction to OP to pay compensation to the tune of Rs.19,57,927/- which includes Rs.13,31,550/- towards loss assessed, Rs.2,16,377/- towards interest @ 15 % p.a. from
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12.05.2013till the date of filing the complaint i.e. 04.06.2014, Rs.1,00,000/- towards mental shock, agony, tension, negligence, Rs.1,10,000/- towards compensation/cost incurred by the complainant in pursuing the claim and Rs.2,00,000/- towards financial loss on account of carelessness and negligent attitude in rendering services by OP and loss in its business and the complainant has also claimed from OP interest @ 15% p.a. w.e.f. 05.06.2014 as well as pendent-lite and future interest till the claim is satisfied and has also sought cost of litigation.
3. OP has been contesting the complaint and has filed written statement wherein OP submitted that there is no deficiency in service on the part of OP and the complaint is not maintainable and is liable to be dismissed. OP further submitted that the complainant had taken the Marine certificate under open cover no. 2219001200012 and certificate bearing no. 221900/21/13/10 /70000003 dated 14.08.2012 voyage from anywhere in India to any wherein in Angola and the risk under the present Marine Policy ceased when the cargo landed at Air Port which landed in the safe and sound condition i.e. no loss up to the point of destination and accordingly cover as issued by OP had lapsed, therefore, the present claim is not covered under the terms and conditions of the policy. OP further submitted that the importer M/s. Hospimed Group Limited had informed vide their letter dated 10.05.2013 that the exporter is required to maintain the temperature 2.8 degree Celsius
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on medicine are imported to Hospimed and it is due to the fault of the Enana (Angola Govt. Airport Authority) that the goods were not put in the refrigerator container and has been spoiled and even despite that the importer had not lodged any claim on Enana. OP further submitted that the cargo had reached in the safe and sound condition as per the report of the Republic of Angola Ministry of Finance and 14 volumes of different kinds of medicine in good conversation condition and it has been very clearly specified by them in their letter dated 16.05.2013 that the medicines which were imported and reached their country on 21.04.2013 covering the medicine were not properly stored by Enana and therefore, they have deteriorated. OP further submitted that on filing of the claim OP had appointed the surveyor Mr. W.K. Webster (M/s. Seven Seas & Co.) through their higher authorities who had also given their report and clarified the status of the finding that the goods had been landed safe and in sound condition on 14.04.2013 and had been stored in one of warehouse of Enana without temperature control until on 06.05.2013 and cargo was stayed for about 15 days at ambient temperature of about 20 degree and it had been fault of the warehouse keeper that the goods had been kept in the warehouse is without any provisions of the refrigeration as per the temperature requirement of the medicines as required and the cargo was seen by the customs on 06.05.2013 and condemned by the customs on 16.05.2013 and Health Authorities and the
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authorities and custom department had considered that the cargo is not fit to be used for its intended purposes and cargo was destroyed/burnt on 20.06.2013 and as per the declaration report dated 16.05.2013 of the surveyor it was clarified that regarding the customs, theimporter would be responsible to create the conditions for destructions of the merchandises, therefore, he should inform its pretension, through a document addressed to the airport/customs delegation, with the knowledge to the general health inspection office and federal police and he could be responsible in case of its non-compliance and the insured was duty bound to the nature of the goods which had tried to export to the other country and its existence and nature of its destructive strength, the packaging of the medicine in the 14 number of volumes did not maintain the nature of the goods which had been packed and in what manner they are required to kept and stored in the warehouse, indication on the packing that the goods require conditions of refrigeration on it, so in the absence of the same that a particular relief at the time of the loss of the goods could be determined and warehouse keeper could be made party for recovery rights against the loss. OP further submitted that the complainant could have lodged the claim as against the warehouse keeper Enana and on the basis of which OP could have moved further to lodge the recovery rights which in the absence of the same had now prejudiced because no claim whatsoever in nature had been lodged
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on Enana (warehouse). OP further submitted that the claim of the complainant had been repudiated by OP on 14.04.2014 and the intimation of the same had been given to the complainant.
4. The complainant filed replication/rejoinder and denied the contentions of OP.
5. In order to prove the case,Sh. Rakesh Gupta, Manager (Authorized Representative/Signatory) of the complainant filed his affidavit in evidence and also filed written arguments. The complainant also placed on record copy of Board Resolution in favour of Sh. Rakesh Gupta, copy of bill dated 10.02.2013 of Rs.13,31,550/- issued by complainant to OP, copy of policy no. 221900/21/13/10/70000003 issued by OP, copy of Marine Certificate under open cover no. 2219001200012 issued by OP, copy of Marine Endorsement copy issued by OP, copy of A.P.D. Advice issued by OP, copy of invoice no. H-428/13/2013-14 dated 04.04.2013 for a sum of Rs.24,210/-, copy of receipt dated 12.04.2013, copy of note of customs clearance of merchandise dated 05.02.2013 issued by The Republic of Angola, Ministry of Finance (National Customs Services), copy of Nota De Desalfandegamento De Mercadoria issued by The Republic of Angola, Ministry of Finance (National Customs Services), copy of letter dated 10.05.2013 sent by Hospimed Grupo Limitada to the complainant, copy of mail dated 11.05.2013 sent by Hospimed Grupo Limitada to the complainant, copy of declarations report dated 16.05.2013 sent by The Republic of Angola, Ministry of
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Finance, copy of Auto de Declaracoes dated 16.05.2013, copy of letter dated 13.05.2013 sent by the complainant to OP, copy of e-mail dated 20.05.2013 sent by Prem Singh Dy. Manager of OP to Ms. Manju Kajla, copy of letter dated 31.05.2013 sent by the complainant to OP, copy of letter dated 17.07.2013 sent by the complainant to OP, copy of Marine Claim Form dated 10.02.2014, copies of letter dated 10.02.2014 and 21.04.2014 sent by the complainant to OP regarding settlement of claim and copy of letter dated 14.04.2014 sent by OP to the complainant.
6. On the other hand, Sh. Deepak Sarin, Assist. Manager of OP filed his affidavit in evidence. OP also filed copy of insurance policy, copy of letter dated 10.05.2013 sent by Hospimed Grupo Limitada to the complainant, copy of declarations report dated 16.05.2013, copy of survey report dated 06.06.2013, copy of Auto De Declaracoes dated 16.05.2013, copy of declarations report dated 16.05.2013, copy of destructions and copy of letter dated 14.04.2014 sent by OP to the complainant. OP also filed written arguments.
7. This forum has considered the case of the complainant as well asOP in the light of evidence and documents placed on record by the parties. The case of the complainant has remained consistent and there is nothing on record to disbelieve the case of the complainant.
8. During the course of arguments, Counsel for the complainant relied on following authorities/case laws:
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i) In Civil Appeal No.5611 of 1999 in case entitled Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd. & ANR. decided by Hon’ble Supreme Court on 17.02.2010.
ii) AIR 2003 Delhi 419 in case entitled General Commerce Ltd. Vs. National Ins. Co. Ltd. & ANR. decided by Hon’ble High Court of Delhi vide order dated 08.05.2003.
iii) Civil Appeal No. 6289 of 2001 in case entitled Oriental Ins. Co. Ltd. Vs. Ozma Shipping Co. & ANR. decided by Hon’ble Supreme Court vide order dated 25.08.2009.
iv) Civil Appeal No. 6337 & 6975 of 2001 in case entitled United India Ins. Co. Ltd. Vs. Kantika Colour Lab & ORS. decided by Hon’ble Supreme Court vide order dated 06.05.2010.
v) I (2008) CPJ 154 NC in case entitled United India Ins. Co. Ltd. Vs. Savikar Plyboards Ltd. Decided by Hon’ble National Commission.
9. In the above case laws, it has been held that since the insurance premium had been paid by the complainant in terms & conditions of the insurance policy, the complainant is vested with the right to the cover insurable interest from OP in case of loss suffered.
10. The documents and evidence of the parties shows that in the present case, the complainant has already paid insurance premium as per terms & conditions of the policy which fact is not disputed by OP. OP has taken the defence that the risk under the present Marine Policy ceased when the Cargo landed at Airport, which landed in the safe & sound condition i.e. no loss upto the point of destination and accordingly cover as issued by OP had lapsed. We have gone through the submissions of both the parties and we do not find any merits in this defence of OP, as the complainant has taken the Open Marine Insurance Policy for the shipment consisting of goods i.e. medicines and the goods were to be kept in cool
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condition/temperature and the Airway Bill specifically mentions about the same and the Airway Bill also provided that “to inform consignee immediately on arrival of Cargo with contact information”. OP has also taken the defence that the consigned goods contained in 12 boxes got spoiled as the authority did not maintain the temperature required for keeping the goods in safe condition and the concerned authority did not allow the goods to be taken out and the goods were destroyed. It may that there may be a lapse on the part of 3rd party for which the complainant cannot be faulted with and the complainant is entitled to receive/recover claim money from the insurance company and we do not find any merits in the defence of OP. Accordingly, we are of opinion that repudiation of claim by OP amounts to deficiency in service and unfair trade practice.Thus, OP is held guilty of deficiency in service.
11. Thus, holding guilty for the same, we direct the OP:
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ii) To pay to the complainant an amount of Rs.1,00,000/- as compensation for harassment and mental agony suffered.
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12. The above amount shall be paid by OP to the complainant within 30 days from the date of receiving copy of this order failing which OP
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shall be liable to pay interest on the entire awarded amount @ 10% per annum from the date of receiving copy of this order till the dateof payment. If OP fails to comply with the order within 30 days from the date of receiving copy of this order, the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.
13. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this23rdday of September, 2019.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
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UPLOADED BY : SATYENDRA JEET
