PRESENT: Sh.Dinesh Kumar Gupta, Adv. for Complainant.

Sh.Rajneesh Malhotra, Adv. for OPs.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, the Complainant by virtue of being engaged in the business of exporting of Bathroom Fittings and Components, took a Marine Cargo covered insurance policy from the OPs bearing No. 110201/21/03/00017 for a value of Rs.22.00 lacs on 02.06.2003, wherein it was specifically mentioned that in the event of the loss or damage, the claim would be settled in Ireland claim and would be payable by M/s CTBOWRHIG Co. (Insurance) Ltd., the bowring Building, P.O. Box 125 Tower Place, London ECTT 3BP, copies of the Insurance and the Cover Note are at Annexure A-1 & A-1B respectively. The cover note was issued from Chandigarh to Keeling Heating Ltd., U.K. for transporting of Bathroom Fittings namely Multi Rail Warmers and Towel Warmers, for coverage of the value of the invoice plus 10% on warehouse to warehouse basis. The goods were transported from Chandigarh through M/s M.S. Road Lines, vide GR No. 7053 (Annexure A-2) and was loaded in Truck No. HR-12A-1855. The Invoice dated 9.6.2003 bearing No. E05 and E06 is at Annexure A-3. The L-6 and Order is at Annexure A-4A. The stuffing was done and the inspection was duly carried out by the Department of Central Excise Range 3(i) Chandigarh and stuffed in Container No. CAXU 4055685 which bore Seal No. 19/89-CE-CHD dated 09.06.2003. A copy of the Examination Report dated 09.06.2003 and LC & the order is at Annexure A-4B and A-4A respectively. The packing list dated 9.6.2003 is at Annexure A-5A and the certificate of origin duly issued by the P.H.D. Chamber of Commerce & Industries is at Annexure A-5B. It was averred that the said vehicle after due stuffing and sealing left the premises of the Complainant on 09.06.2003 and the Complainant had appointed M/s Hema Marine Services Pvt. Ltd. for the purposes of Export of the goods and they have in turn utilized the service of M.S. Road Lines, 301/6, Concor Building, Tuglakabad, New Delhi, for transporting the empty container to Chandigarh for the purpose of stuffing and then taking it back to International Container Depot at New Delhi. The said container was picked by M/s M.S. Roadlines on 06.06.2003 and was moved to Chandigarh where it was stuffed on 09.06.2003 and the container should have reached ICD Tuglakabad by 10.06.2003, but the same did not arrive till 12.06.2003, when the forwarding agent contacted the M.S. Roadlines that the truck might have been broken down. It was only on 12.06.2003, that the container along with the truck was found by M.S. Roadlines with the concerned Police Authority at Welcome Police Station, Delhi. The same had been found abandoned in Seelampur by the Police and was taken into the custody. The said truck and container was got released by M.S. Roadline Clearing and Forwarding Agent on 13.06.2003 and was taken to International Container Depot Tuglakabad on 14.06.2003. That information was given by the Forwarding Agent to the Complainant insured on 16.6.2003 vide their letter dated 16.6.2003 (Annexure 6A). The container and the truck was got weighed by the clearing and handling agent after off loading the container at ICD, both before and after loading of the same. It was then found that there was variation in the weight of the container and the weight as per the Packing List and since the same had been sealed by the Custom Excise Officer, no person was authorized to open the said container and could only be opened in the presence of the Custom/Excise Officer, who were duly informed (Annexure 6B). The Complainant was informed about the loss on 16.6.2003 by the Clearing and Forwarding Agent and the under writer was also informed on 16.6.2003 (Annexure A7). The Complainant insured requested the Custom Authority on 16.6.2003 to open the Excise Seal. The said request made by M/s Anapurna Cargo Movers vide their letter dated 17.6.2003 and the permission was also granted by the Custom Department on 17.6.2003 and the container was opened on 17.6.2003 by the Custom Department and the goods were found short for a value of Rs.13.00 lacs (Annexure 8).

        It was further averred that the Welcome Police Station, Selampur, Delhi lodged a Report No. 70B dated 10/11.6.2003 (as contained in the Survey Report of R.K. Singal and Company Pvt. Ltd.) Ann.9 that the vehicle was found abandoned by them, opposite SDM Office, G.T. Road Area Selampur Police Station and that on the request of the Vehicle Owner/ Representative Mr. Jasmal made to the Police Station, Nandnagari, New Delhi, the vehicle was released along with container on 13.6.2003 (Annexure A-10). An intimation was also given by the Complainant’s representative to P.S. Okhla, Phase-I, New Delhi on 18.6.2003, as well as to Police Station, Industrial Area, Phase-I, Chandigarh on 24.6.2003. The same also finds mention in the Surveyor Report (Ann. A-11 and A-12). The said vehicle while transporting goods from Chandigarh to the International Container Depot at Tuglakabad in Delhi for the purposes of further transporting the same for export, was however found abandoned by Welcome Police Station Delhi on 10.6.2003/ 11.6.2003 on the road side (Annexure A-9). An FIR was lodged by the Police Station, Industrial Area, Phase-I, Chandigarh under Sr. No. 156 (Annexure A-13). CONCOR issued Cargo unloading Telesheet dated 21.06.2003 that only 181 packages were unloaded from the Container (A-14). A Survey was carried out on 18.6.2003 and 19.6.2003 and the container was opened in the presence of the Surveyor after getting permission from the Custom Authority and it was found that out of 390 boxes only 181 boxes were available and net loss of Rs.10,54,311/- was found. The formal claim after due inspection by the Surveyor was lodged as per Annexure A-8. The copy of the FAX received from M/s Hema Marine Services Pvt. Ltd. dated 16.6.2003 at 12.56 PM informing the Complainant about the loss in the statement is at Annexure A-15. Immediately information was given to the OP vide Annexure A-16. The intimation given to the Custom Authority seeking information to cut the Central Excise Seal is at Annexure A-19, while the letter dated 18.6.2003 issued by M/s Hema Marine Services Pvt. Ltd., to SHO Police Station, New Delhi dated 18.6.2003 is at Annexure A-17. It was submitted that vide letter dated 18.6.2003, the OP was again requested to carry out the necessary inspection for ascertaining the loss, copy of which is at Annexure A-18. Vide letter dated 20.6.2003, several documents were asked for by the Surveyor appointed by the OPs, copy of which is at Annexure A-20. The claim was placed by the Complainant with M/s M.S. Roadlines on 27.6.2003, copy of which is at Annexure A-21. Vide letter dated 30.6.2003/ 7.7.2003, addressed by the Complainant, the particulars as demanded by the Surveyor were duly provided (Annexure A-22 and A-23). That vide letter dated 7.7.2003, the CHA confirmed that the Complainant was informed about the loss of the container on 16.6.2003 (A-24).

        It was further averred that vide letter dated 7.7.2003, the OPs were informed about the intention of the Complainant to bring the goods back from the ICD Tuglakabad/Custom Ware House back to Chandigarh for the purposes of inspection. Detailed invoice and packages and national permit was provided to the Surveyor vide letter dated July 7, 2003 (Annexure A-17). Besides this, copy of the driving license, letter received from M/s Hema Marine Services Pvt. Ltd., explaining the relationship of Hema Marine and Anapurna Cargo Movers, as contained in letter dated 15.7.2003 (Annexure A-25A) was also provided to the Surveyor. Further, vide letter dated 11.8.2003, other documents were also provided to the Surveyor (Annexure 25B). The above said documents were so provided on the basis of demands raised by the Surveyor from time to time. Certain other clarifications were also required by the Surveyor vide letter dated 20.8.2003, which was duly replied to vide letter dated 26.8.2003 (A-26 and A-27). The damage certificate was provided to the Surveyor vide letter dated 29.8.2003 (A-28). The marine survey report was submitted by R.K. Singal Company dated 20.10.2003 and a professional fee bill of Rs.23,980/- + Rs.13,950/- (Total Rs.37,930/-) was raised by the Surveyor which was also duly paid by the Complainant, copy of which is at Annexure A-29. The status of Anapurna Cargo Movers, which was the authorized handling agent, carrying out handling of custom clearance job, was explained in the letter dated 16.3.2004 (Annexure A-30). It was submitted that vide letter dated 19.4.2004 (Annexure A-31), the OPs requested for some more documents to be submitted to them. Vide letter dated 28.7.2004, the Complainant submitted letter received from P.S Industrial Area, Chandigarh declaring Manoj Kumar, Driver of the vehicle as P.O. to the OPs. The same was replied vide letter dated 5.5.2004 (Annexure A-32). The OPs further appointed Shri M.Kumar as Investigator to conduct the enquiry of the said loss and the Complainant received the letter dated 10.7.2004 from the said Investigator, asking for certain information. The same is at Annexure A-33, to which the Complainant replied vide his letter dated 29.12.2004 (A-34). That vide letter dated 28.7.2004, the Complainant had submitted letter to the as OP issued by the Police Station, Industrial Area, Phase-I, Chandigarh, regarding declaration of Driver as Proclaimed Offender (A-35). The Complainant continued to follow up with the OPs to settle the claim and wrote several letters dated 25.03.2004, 28.07.2004, 01.11.2004, 06.06.2005, 12.09.2005, 15.12.2005, 08.03.2006, 22.05.2006 (Annexure A-36 to A-43). However, the claim was not settled and was illegally repudiated on false and frivolous grounds vide letter dated 28.6.2006 (Annexure A-44).   Hence this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed for the following reliefs:-

    a]    insurance claim of Rs.13.00 lacs.

b]  interest on Rs.13.00 lacs @ 14% from 3 months from the date of loss till payment i.e. from 16.6.2003 till payment.

c]  Surveyor fee of Rs.23,980/- + Rs.13,590/- (Total Rs.37,570/-).

d]  Rs.1.00 lac towards compensation for harassment and mental agony.

e]  Litigation expenses Rs.33,000/- towards lawyers fees.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OPs No. 1 & 2 in their joint reply, while admitting the factual matrix of the case, pleaded that the Complainant obtained a Marine Cargo Policy No. 110201/21/03/00017 for a sum of Rs.22.00 lacs (Annexure R-1). The said policy covers the goods as mentioned in the Schedule (Annexure R-2). The Complainant had failed to make the Transporter M/s M.S. Roadlines a party in the present case, hence, the complaint is liable to be dismissed on this ground alone. It was submitted that the Complainant informed the OPs vide letter dated 16.6.2003 (R-3) that the consignment dispatched on 9.6.2003 did not arrive at ICD. TKD till 12.6.2003 afternoon and there was weight difference in the cargo as in the packing list. Immediately, on receipt of information on 17.6.2003, letter dated 18.6.2003 (R-4) was written to M/s R.K. Singal and Co. Pvt. Ltd., Surveyors and Loss Assessors to survey and assess the loss. The excise seal was got opened on 17.6.2003 by the insured without the presence of any representative of the OP Company and without informing the Company. It was denied that the goods were found short for the value of Rs.13.00 lacs. The request regarding the opening of the excise seal was made by M/s Annapurna Cargo Movers, who had no role to play, as the consignment was booked through M/s Hema Marine Cargo Services only. The Surveyor in his report dated 20.10.2003 had clearly mentioned that M/s Hema Marine Cargo Services seems to be an unauthorized CHA as it was not known why the insured had been dealing with the same; whereas, M/s Hema Marine Cargo Services was not an authorized CHA. It was also submitted that as per the information provided by M/s Hema Marine vide their letter dated 7.7.2003, the container was stuffed on 9.6.2003 and left the factory on the same evening which should have reached the ICD Tuglakabad, Delhi by 10.6.2003, but the same did not arrive there till 12.6.2003. The said Truck was got released by the Transporter M/s M.S. Roadlines on 14.6.2003 and taken back to ICD/TKD on 14.6.2003, but the Transporter failed to give information to the Complainant uptill 16.6.2003. The loss in question was discovered on 10.6.2003/ 11.6.2003 and the FIR has been lodged belatedly on 1.8.2003. It was denied that the container was opened in the presence of the Surveyor/ any authorized representative of OP . It was also submitted that the intimation regarding the loss was given to OPs only on 17.6.2003. Thus, the container could not have been opened in the presence of the Surveyor. The copy of the Surveyor Report dated 20.10.2003 is at Annexure R-5. As per the Survey Report, M/s Annapurna Cargo Movers sought the permission from the Custom Department to open the excise seal vide their letter dated 17.6.2003. On 17.6.2003, the container was opened without the presence of any representative of the OP Company. The Custom Department granted permission for the same on 17.6.2003. The existing seals were not intact. It has been specifically mentioned by the Surveyor that on 18.6.2003 at the time of inspection by the Surveyor, the container was having one local lock and the other door was tied with two wires. The container was again opened on 19.6.2003 and out of 389 boxes as per Packing list only 181 boxes were available. It was further mentioned by the Surveyor in the report that the net assessment of loss was Rs.10,54,311/- but the mere assessment by the Surveyor did not mean that the losses were recoverable from the insurer/underwriter. The same was dependent upon the terms, conditions and warranties of the insurance cover. The Surveyor in his report opined that there was gross negligence on the part of the insured on the basis of the reasons given in the report.  Furthermore, permission to get the excise seal removed from the container was sought by M/s Annapurna Cargo Movers and not by the Transporter M/s M.S. Roadlines through which the consignment was sent.

        It was also pleaded that the intimation regarding the loss was given to OPs for the first time on 17.6.2003 and the Surveyor was appointed on 18.6.2003 itself. Prior to the said date, the Complainant had got container opened on 17.6.2003,  without the presence of the representative of the OPs. It was asserted that the Surveyor wrote letter dated 20.6.2003 to the Complainant to provide the copies of the documents mentioned in the said letter. A perusal of Annexure A-21 shows that the said claim was lodged by the Complainant to M/s M.S. Roadlines whereas as per the claim of the Complainant the shipment was transported to Hema Marine Services Pvt. Ltd. No claim was lodged by the Complainant against M/s Hema Marine Services Pvt. Ltd. It was denied that all the particulars as demanded by the Surveyor were provided by the Complainant. However, the copy of the national permit, invoice, packing list, D.L.s were provided later i.e. after 7.7.2003.  The consignment was sent from Chandigarh to Delhi, which would have reached there within a period of few hours. The same did not reach uptil 16.6.2003, but the Complainant took no steps to enquire about the same. It was submitted that in the letter dated 15.7.2003 and 7.7.2003 of M/s Hema Marine Services Pvt. Ltd., there was no explanation explaining the relationship of M/s Hema Marine Services Pvt. Ltd. and M/s Annapurna Cargo Movers Services. The Surveyor vide letter dated 20.6.2003 had asked the Complainant to inform the reasons for late information to the underwriter, damage certificate received from the transporter, detailed seals of the different agencies, salvage value etc. The Complainant replied to the said letter vide letter dated 26.8.2008 in which he informed that the damage certificate was not given by the transporter. It has been admitted by the Complainant that the written information was given to the underwriter/ insurance company for the first time only on 17.6.2003 and request letter for appointment of Surveyor was given on 18.6.2003. It was denied that any verbal information was given to any local office of the answering Respondent on 16.6.2003. The salvage value of the goods was not provided even in the letter dated 26.8.2003.  It was admitted that the Surveyor M/s R.K. Singal and OP Company gave its report dated 20.10.2003. It was denied that the professional fee of the Surveyor was duly paid by the Complainant. It was further averred that the Surveyor clearly stated in his survey report dated 20.10.2003 that the Complainant was dealing with M/s Hema Marine Services Pvt. Ltd., considering it as CHA whereas it did not seem to be a CHA. The explanation regarding the role of M/s Annapurna Cargo Movers was not found to be satisfactory. Moreover, it was also stated by the Surveyor that the insured has failed to produce any weighment receipt or evidence at the time of loading/ dispatch. Thus, it was not known as to what was the weight of the consignment at the time of the dispatch. In the copy of the G.R., there was no reference of the weight of consignment as well as the Complainant did not submit any weighment of empty container with the tractor trailer loaded with the consignment. Copy of the Surveyor Report dated 20.10.2003 was sent by the Complainant to the OPs vide letter dated 25.3.2004. Thus, there was apparent negligence on the part of the Complainant in not ensuring the weighment of the goods as well as that of the empty container at the time of the dispatch. It was not possible to ascertain as to what was the weight of the goods at the time of the dispatch.

        It was further pleaded that in view of the report of the Surveyor opining that there was a gross negligence on the part of the insurer, Sh. M. Kumar was deputed by the OPs to investigate the claim, who gave his report dated 17.1.2005 (R-11). As per the said report, the seal and lock was intact at the time of handover of the truck and container to the transporter-cum-truck owner by the police. The vehicle remained under the possession of the truck owner/transporter and other beneficiary for 18-20 hours in between exit from the police station and lodging the vehicle inside the ICD/Custom custody. During such period, the misappropriation of the goods had taken place and afterwards, the matter has been fabricated and tried to be established through paper formalities in a malafide intention. The claim file was sent to the Regional Office by OPs for consideration vide letter dated 10.3.2005.  As the claim of the Complainant was not payable as per the terms and conditions of the policy and the surveyor report, hence, the claim was rightly repudiated by the OPs vide letter dated 28.6.2006. Further more, as the Complainant provided the required information in bits and pieces, it took time to process the claim. Furthermore, the goods were manipulated by the insured and its transport and the loss/damage was prima facie attributed to the willful negligence of the Complainant and the same falls within the exclusion clause No.4.1 of the Policy. As such, the claim was rightly repudiated by the OPs and no cause of action had arisen to the Complainant to file the present complaint. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]      Parties led evidence in support of their contentions.

5]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsel for the Complainant and OP No. 1 & 2. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/ arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having obtained a Marine Cargo covered insurance policy from the OPs bearing No. 110201/21/03/00017 for a value of Rs.22.00 lacs on 02.06.2003 and that in the event of loss or damage, the claim would be settled in Ireland claim, payable by M/s CTBOWRHIG Co. (Insurance) Ltd., the bowring Building, P.O. Box 125 Tower Place, London ECTT 3BP, issued from Chandigarh to Keeling Heating Ltd., U.K. for transporting of Bathroom Fittings namely Multi Rail Warmers and Towel Warmers, for coverage of the value of the invoice plus 10% on warehouse to warehouse basis, have all been admitted. It is also a fact that the goods in question were transported from Chandigarh to through M/s M.S. Road Lines, vide GR No. 7053 and loaded in Truck No. HR-12A-1855. All other formalities in respect of documentation for export purposes were also completed by the Complainant in June, 2003. As per the Plan, the empty container was to be sent to Chandigarh by M/s Hema Marine Services Pvt. Ltd., which was done by M/s M.S. Roadlines at the request of Hema Marine Services Pvt. Ltd. The container was sent to Chandigarh for the purpose of stuffing the export material and then, it was to be sent back to International Container Depot (I.C.D.) at New Delhi. The needful was done by M/s M.S. Roadlines on 6.6.2003. The container was stuffed on 9.6.2003 and it was sent to I.C.D. Tuglakabad, New Delhi. As per the Complainant, the fully stuffed container, which was dispatched from Chandigarh on 9.6.2003, should have reached I.C.D. Tuglakabad by 10.06.2003, but the same did not reach its destination till 12.6.2003. On inquiry by the Forwarding Agent from M/s M.S. Roadlines on the apprehension that the container might have broken down somewhere on the way, it was found that the Truck in question was with the concerned Police Authority at Welcome Police Station, Delhi, due to the fact that the same had been found abandoned in Seelampur by the Police and hence, the same was taken into custody. The said Truck and the container were got released by M/s M.S. Roadlines, the Clearing and Forwarding Agent on 13.6.2003 and the same was taken by them to I.C.D. Tuglakabad on 14.6.2003. The Forwarding Agent informed the Complainant about this incident on 16.6.2003. The container in the Truck was got weighed by the Clearing and Forwarding Agency after offloading the container at the I.C.D. both before and after loading the same. At that point of time, it was found that the weight in the container and its weight, as per the packing list, was different. This variation of weight was duly conveyed to the Complainant by the Clearing & Forwarding Agent and also the underwriter was informed on the same date. Accordingly, on 17.6.2003, a request was made by M/s Anapurna Cargo Movers to the Custom Department, who had earlier sealed the container, for its opening and the same was granted by the Custom Department and finally, as per the Complainant the goods were found short for a value of Rs.13.00 Lacs.

ii] The Welcome Police Station, Seelampur, Delhi, lodged a report on 10/11.6.2003, as per Survey Report of R.K. Singal and Company Pvt. Ltd. The vehicle was got released along with the container on 13.6.2003, under intimation to the Complainant’s representative. After the loss of goods, a survey was carried out on 18.6.2003 and 19.6.2003, with the permission of the Custom Authority and it was found that out of 390 boxes, only 181 boxes were available and the net loss, as assessed by the Surveyor was Rs.10,54,311/- and accordingly, a formal insurance claim for the loss of goods was lodged with the OPs. The OPs were then requested to carry out the necessary inspection for ascertaining the loss and several documents asked for by the Surveyor appointed by the OPs, were supplied by the Complainant from time to time and finally, the Marine Survey report was submitted by R.K. Singal and Company Pvt. Ltd. on 20.10.2003 and a professional fee bill of Rs.23,980/- + Rs.13,950/- = Rs.37,930/-, was paid by the Complainant to the Surveyor. The OPs also later on appointed Mr. M. Kumar as Investigator to conduct the inquiry of the said loss and the required information was also supplied to him by the Complainant. Subsequently, there has been a lot of correspondence and exchange of letters between the Complainant and the OPs, but the claim in question has not been settled and was eventually repudiated by the OP and hence, the present complaint.

iii] The OPs in their reply have admitted to the basic facts of the case and at the same time, raising some technical objections, for example, the OPs say that the Complainant had failed to make Transporter M/s M.S. Roadlines a party in the present case and secondly, the consignment in question had been dispatched on 9.6.2003 from Chandigarh and it did not reach Delhi even till 12.6.2003; whereas, the same should have reached the ICD Delhi by 10.6.2003. The Transporter in question got the Truck released from the Police Authority at Delhi on 14.6.2003 and the same was taken back to ICD Tuglakabad on the same day, but he failed to give information to the Complainant till 16.6.2003. Further, the loss in question was discovered on 10.6.2003/ 11.6.2003; whereas, the FIR was lodged as late as on 1.8.2003. The Excise seal was got opened by insured without the presence of any representative of the OP-Company, as the Company was not informed by that time. Another, objection taken by the OPs is that the request for opening the Excise seal was made by M/s Anapurna Cargo Movers, who had no role to play, as the consignment was booked to M/s Hema Marine Cargo. Thus, it is very clear that the container was not opened in the presence of the Surveyor or any authorized representative of the OP. It is further alleged that at the time of the opening of the container, the exiting seals were not found intact and that the container was having one local lock and the other door was tied with two wires, which finds mention in the Survey Report, on the basis of the survey done on 18.6.2003. The container was again opened on 19.6.2003 and out of 389 boxes, as per the packing list, only 181 boxes were available and the net loss assessed by the Surveyor was Rs.10,54,311/-. The plea of the OPs is that the mere assessment of the loss does not mean that the same is recoverable from the insurer/ underwriter, as it will depend upon the terms, conditions and warranty of the Insurance Company. Even the Surveyor, in his report, has said that there was gross negligence on the part of the insured for the reasons given in the report. As per the Surveyor, one major act of gross negligence on the part of the Complainant has been that whereas, the intimation regarding loss was given to the OPs for the first time on 17.6.2003, the Surveyor was appointed on 18.6.2003; whereas, prior to these dates, the Complainant insured had got the container opened on 16.6.2003, without the presence of representative of the OPs/ Surveyor. Another discrepancy pointed out by the OPs has been that the claim was lodged by the Complainant with M/s M.S. Roadlines; whereas, as per the claim papers, the shipment was transported to Hema Marine Services (P) Ltd., against whom no claim for the loss of goods has been made. Further, all the required documents, as demanded by the Surveyor, were not provided by the Complainant and only some of the documents like copy of the permit, invoice, packing list and DLs were provided subsequently on 7.7.2003. As per the OPs, even the Complainant has admitted that for the first time, the written information was given to the underwriter/insurer on 17.6.2003. Till date, salvage value of the goods was not provided to the OPs/Surveyor. As per the Surveyor, the insured had failed to produce any weighment receipt or evidence at the time of loading/dispatch. Therefore, the weight of the goods at the time of dispatch is not known. Even the G.R. does not show the weight of the consignment. On the same lines, the Complainant did not submit any weighment of the empty container with the tractor trailer loaded with the consignment. As per the OPs, all this shows gross negligence on the part of the Complainant, which is further proved by the report of the Surveyor dated 20.10.2003. Further, the OPs had also appointed Sh. M. Kumar to further investigate the claim, who gave his report on 17.1.2005. As per this report, the seal and lock of the container were intact at the time of handing over of the Truck and the container to the Transporter-cum-Truck Owner by the Delhi Police. The vehicle remained under the custody of the Truck Owner/ Transporter for 18-20 hrs. after getting it released from the Police Station and loading the same inside the ICD/ Custom custody. As per the OPs, it is only during this period that misappropriation of goods had taken place and afterwards, the Complainant tried to fabricate the paper formalities with a view to extract money from the OPs illegally. Finally, the OPs say that the claim of the Complainant was rightly repudiated on 28.6.2006 and it took quite sometime for the OP to decide the case, as the information was provided by the Complainant in bits and pieces and therefore, the OPs have prayed for dismissal of the Complainant.

iv]  The basic dispute between the parties arose on account of letter of repudiation issued by the OPs on 28 June, 2006 (A-44), through which the OPs rejected the claim of the Complainant on the following ground:-

“As per clause 4.1 of Marine Cargo (specific voyage policy) attached to Policy No. 110201/21/03/00017:

“Loss Damage or expenses attributable to willful misconduct of assured.”

In this case, this condition is not met with, since the subject consignment which was reportedly lost along with the vehicle carrying the same on the night intervening 11/12.6.2003. The truck was later on found and was got released by its owner on 13.6.2003. The said truck was in running condition, locks and seals put by Excise Department, Chandigarh were intact when released from Police Station and after getting the same released, the consignment and truck were not taken directly to ICD, Tuglakabad, New Delhi on 13.6.2003 itself whereas the same was taken on 14.6.2003 afternoon where the locks and seals were found not intact and the goods forming part of the aforesaid consignment were found missing. You have thus shown lack of good faith which is the foremost condition in Marine Insurance and prima facie the loss/damage is attributable to willful misconduct on your part.

In this way by non-disclosure of material fact by making fraudulent misrepresentation with regard to the actual facts you have failed to disclose the material facts related to the loss/ damage and have failed to maintain high degree of good faith and have thus also breached the duty of utmost good faith on your part. The claim made with the said breach is liable to be rejected on this ground.

In the light of foregoing, we regret our inability to consider the claim and treat as an opportunity lost of serve you. Your claim therefore stands repudiated by the Competent Authority.

The inconvenience caused is regretted.”

The above said repudiation of the claim by the OPs has been based on two important documents; the one – the Survey Report, submitted by M/s R.K. Singal and Company Pvt. Ltd., New Delhi, who submitted its report on 18.06.2003 and the second, the detailed Investigation Report, prepared by Sh.M. Kumar, Surveyor and Investigator, appointed later on by the OPs. In both these documents i.e. one prepared by the Surveyor and the second prepared by the Investigator, the Complainant has been shown to be misconducting himself alleging utter breach of faith on his part and not taking due care of the export consignment and also not taking the OPs into confidence at all stages of the export process. As per the OPs, the non-disclosure of material facts by making fraudulent misrepresentation constitutes breach of duty of utmost good faith on the part of the Complainant.  

v] All the above contentions of the OPs based on the two reports, have been contradicted by the Complainant, by saying it has taken all possible due care and caution in transporting the goods from Chandigarh to Delhi, when the truck in question was waylaid and found subsequently, abandoned and taken into possession by the Welcome Police Station, New Delhi. The same was got released from there by the authorized transporter on 13.6.2003 and taken to International Container Depot (ICD), Tuglakabad, Delhi on 14.6.2003. It has denied that the seals of the container were intact at the time it was released by the Welcome Police Station to M.S. Roadlines, Clearing & Forwarding Agent on 13.06.2003 and subsequently, it was taken to the ICD Tuglakabad on 14.6.2003. The Investigator – Sh. M. Kumar has based his report stating that the seals were intact at the time of its release by the Police to M.S. Roadlines on a certificate obtained by him from the Welcome Police Station, New Delhi, which shows that the truck, along with the container was handed over to the concerned person in good condition.  The Investigator further says that the seal and lock were intact at the time of handing over of the truck and container to the Transporter-cum-Truck Owner by the Police and that this is based on the Police Report, as well as other evidence. But later, the vehicle remained under the possession of the Truck Owner/ Transporter and other beneficiaries for 18-20 hours, in between its exit from the Police Station and loading the vehicle inside the ICD/ Custom Custody. As per the Investigator, during such period, misappropriation of goods has taken place and the entire matter was fabricated by the Complainant later.

vi] In support of its contentions, the OPs have also quoted the report of the Surveyor – R.K. Singal & Company Pvt. Ltd., who have assessed the net loss as Rs.10,54,311/-, as per detailed damages and assessment sheet prepared by them.  The findings and observations of the Surveyor, as per his report dated 18.6.2003, are as under:-

Our findings: On going through the above we could not get any satisfactory answer of the following either from insured’s representative Mr. Salil Gupta or CHA Officials:

1. When truck was found abandoned at P.S. Seelampur, why the vehicle was taken delivery without intimation to underwriters. Secondly, even after taking delivery when transporter found gross weight short at M/s New Light Weigh Bridge Okhla Industrial Area, New Delhi on 14.6.03, why the same was not informed to underwriters, particularly there was no point to take the truck to ICD Tuglakabad in such a condition.

2. The underwriters were informed only on 18.6.03 at Delhi and we inspected on the same day. Though insured says that he had informed on 16.6.2003 at Chandigarh for which Chandigarh Office may check up from their records.

Observation: We asked insured regarding role of M/s Annapurna Cargo Movers who sought permission from Custom Deptt. for which insured enclosed a letter dated 17.2.04 from M/s Hema Marine Services Pvt. Ltd. vide letter No. 20P, dated 21.2.2004 as under:-

“Please be advised that all customs clearance is being undertaken by M/s Annapurana Cargo (CHA) on our behalf which is why the Shipping bills bear their name.”

The above explanation is not satisfactory and we are not convinced. As per M/s Annapurna Cargo Movers letter dated 17.6.03 to D.C. Custom, it appears that M/s Annapurna Cargo Movers are official CHA. It indicates that Insured was dealing with M/s Hema Marine considering as CHA whereas M/s Hema Marine seems to be a unauthorized CHA.

1. The material was loaded on 9.6.03 at Chandigarh and Delhi is less than 300 Kms and road is also National Highway where a container tractor trailer takes few hours; why insured or their representative/CHA had not searched when the material could not reach Delhi even till 10.6.03.

2. Secondly, the story that M/s Hema Marine had known about mishap only on 14.6.03, but being holiday they could not inform the Complainant till 16.6.03 is neither convincing nor logical, particularly now a days when insured and M/s Hema Marine Sr. Executives are knowing mobile nos. of each other.

3. Further, if we go through G.R., there is no reference of weight of consignment, as well as insured also has not submitted any weighment of empty container with tractor trailer and loaded with consignment. Thus, there is no perfect evidence of weight of consignment at the time of dispatch.

4. We could not understand why transporter has not given Damage Certificate.

5. Insured was dealing with M/s Hema Marine considering as CHA; whereas, M/s Hema Marine does not seem to be a CHA.

In view of all above, in our opinion, it appears to be gross negligence on insured’s part.”

vii]  In its reply/written statement, the OPs have pointed out that at the time of opening of the container at ICD, Tuglakabad, the container was having one local lock and the other door was tied with two wires, which has been confirmed by the Surveyor in his Survey Report, dated 18.6.2003. Since the work of checking and inspection of the container could not be completed on 18.6.2003, the same was again opened on 19.6.2003 and then, it was found that out of 389 boxes, as per the packing list, only 181 boxes were found available and the net loss assessed by the Surveyor was Rs.10,54,311/-. The contention of the OPs is that mere assessment of the loss does not mean that the same is recoverable from the insurer/ underwriter, as it will depend upon the terms, conditions and warranty of the Insurance Company.

viii]   The detailed analysis of the entire case based upon the foregoings shows that the main issue and bone of contention between the Parties is only one i.e. that whereas, the truck and container containing the export consignment was found abandoned on its way from Chandigarh to Delhi and taken to the Police Station at Selampur, Delhi; the seals on the container were intact and the same was delivered to the authorized representative of M/s M.S. Roadlines in a proper condition, this truck, along with the container was not directly taken to the I.C.D. Tuglakabad on the same day i.e. 13.6.2003 and instead, it remained in the custody of the Transporter for 18 to 20 hours and only thereafter, it was taken to the I.C.D. Tuglakabad, seals were taken out and the container was opened for inspection and verification. It was at that stage, when it was found that instead of 389 boxes, which were originally loaded in the container at Chandigarh i.e. point of origin, only 181 boxes were found available in the container, resulting into loss of 208 boxes. Both the Surveyor M/s R.K. Singal & Company, as well as the Investigator – Sh. M. Kumar, have laid the entire blame for the huge loss on the Complainant, saying that there has been a gross negligence on the part of the insured Complainant and also that there is breach of duty of utmost good faith on their part. On that ground and using Clause 4.1 of the Marine Cargo Specific Voyage Policy, the OPs have rejected the claim. As per Clause 4.1, if the loss, damage or expense are attributable to willful misconduct of the insured, the same is not payable by the Insurance Company. 

    ix] Contrary to the stand taken by the OPs, the Complainant says that he had taken all precautions and followed proper procedures for the export of the consignment in question and there has been no negligence or breach of duty on its part. So far as the allegation of delay in informing the OPs or the Surveyor about the loss and breaking of seals of the container etc. is concerned, the Complainant says that the Forwarding Agent informed the Complainant only on 16.6.2003 and immediately, thereafter, the Complainant informed the OPs only on 17.6.2003 and subsequently, on 18.6.2003, the OPs were also informed in writing with a request to carry out the necessary inspection of the consignment for ascertaining the loss. Further, all documents required by the OP for settlement of insurance claim were supplied to them as and when demanded. As far as the question of weighment of the consignment is concerned, in the Packing list, a mention has been made about the weight of each box forming part of the consignment separately. Further, instead of giving the gross weight of the whole consignment, the details available in all these documents are that the consignment contains 388+1=389 boxes and each box has also been described stating its packing specifications and weight. In respect of the delay of 18-20 hours in shifting the consignment from Police Station Selampur to I.C.D. Tuglakabad by the authorized Transporter i.e. M/s M.S. Roadlines is concerned, it is quite an accepted fact and there are no two opinions on that. The contention of the OPs is that in between the exit of the consignment from the Police Station and loading the vehicle/ container inside the I.C.D./Custom Custody, the misappropriation of goods has taken place and that the entire matter was fabricated by the Complainant later, The document, on which the OPs are relying is the letter signed by the representative of the Clearing and Forwarding Agent i.e. M/s M.S. Roadlines, while taking the delivery of the truck and container from Police Station Selampur on Supardari on 13.6.2003, saying that he had received the truck and container in a proper condition. Therefore, the statement of the Driver/ Representative of M/s M.S. Roadlines is an important piece of evidence in respect of the condition of seals/ locks on the container. At the same time, it is a hard fact that there has been loss of goods as instead of originally packed 389 boxes, only 181 boxes were eventually found, in the consignment resulting into loss of 208 boxes, when the container was finally opened at the I.C.D. Tuglakabad on 19.6.2003 for verification of its contents. The only question of dispute which remains is the responsibility and liability for the loss caused to the export consignment during transit period from 9.3.2006 to 14.3.2006. The Complainant on its part has also lodged a complaint against the Transporter with the Incharge, Police Station, Industrial Area, Phase-I, Chandigarh on 24.6.2003, with a request that an F.I.R. be lodged against the Transporter and the Driver, the matter be investigated, the lost goods be recovered and handed over to it. As per the documents on record in the file, the lost goods have not been recovered by the Police so far and the case is still pending with the Police.  

6]      From the above stated foregoings, it is quite clear and has been well established, as also admitted by the respective parties, as well as Surveyor and the Investigator that there has been definitely loss of goods to the extent of Rs.10,54,311/-. The case of loss of goods and its recovery thereof is also pending with the Police Station, Industrial Area, Phase-I, Chandigarh but the Police has not been able to recover the lost goods so far. The Driver and the Conductor of the truck with the container are also not traceable and the Truck Driver, along with the Transporter Company have been booked with the Police for causing the loss of goods valued at about Rs.13.00 lacs, which the Surveyor of the OP has assessed to be of Rs.10,54,311/-.

7]      From the detailed discussion of the entire case, it is revealed that no doubt there has been loss of goods resulting in financial loss to the Complainant, yet the said loss has occurred solely on account of the mishandling of the export consignment by the transporter i.e. M/s M.S. Roadlines appointed by the Complainant itself. Not only the said Transporter mishandled the said export consignment, but also did not inform the Complainant about the developments, which took place between 9.6.2003 and 16.6.2003 at the proper time. As a matter of fact, when the goods were transported from Chandigarh to Delhi and the truck along with the container started off from Chandigarh on 9.6.2003, and the goods did not reach Delhi by 10.6.2003, the transporter should have got in touch with the Complainant immediately and informed the Complainant the various developments taking place in respect of the missing consignment from day-to-day or even hour-to-hour basis. This has clearly not been done by the said Transporter. Further, even the Complainant did not take any steps to ascertain the factual position from the Transporter for a long time and it is also negligent on that account. Since the consignment was valued at about Rs.22.00 lacs, it was the duty of the Complainant/ Consignor to take care of goods in question at every step/ stage, right from the loading of the consignment on 9.6.2003, till the end. It is an admitted case of the Complainant that after the truck started off from Chandigarh on 9.6.2003 and till 16.6.2003 the Complainant did not make any effort to trace and track the misplaced goods and it was only on 16.6.2003 that the Transporter informed him about the missing truck and container and subsequent release of the same from police and eventually taking the same to ICD Tuglakabad. All through, the Complainant remained effortless and ignorant on the significant issues, which the OPs call as willful misconduct on the part of the Complainant, emanating from the breach of duty of utmost faith on the part of the Complainant. The Complainant himself has admitted having later filed a police complaint against the driver as well as the transporter, alleging the loss of goods by them. It is quite another matter that nothing has come out from that complaint so far. Therefore, admittedly, there is deficiency of service and gross negligence on the part of the transporter – M/s M.S. Roadlines, but it has not been impleaded as a party in the present case.

8]      The Insurance Company, had insured the export consignment in question, subject to certain terms and conditions. One of the conditions in the insurance policy is Clause 4.1 of Marine Cargo (Specific Voyage Policy) attached to the main Policy, which clearly excludes any claim of loss, damage or expenses, attributable to willful misconduct of the assured. It is only on this ground that the claim of the Complainant has been repudiated by the OPs.

9]      In nutshell, the entire case of the Complainant is the loss of goods to the extent of 208 boxes valued at about Rs.13.00 lacs by the Complainant and Rs.10,54,311/- as assessed by the Surveyor, has taken place. But this loss has not occurred on account of any deficiency of service or indulgence in any unfair trade practice on the part of the OPs. On the contrary, the said loss has occurred on account of the gross negligence and carelessness on the part of the road transporter was well as Complainant themselves. The basic facts of the case have already been documented in details for e.g. the goods were transported from Chandigarh to Delhi through M/s M.S. Roadlines on 9.6.2003. These were expected to reach Delhi latest by 10.6.2003. The goods somehow did not reach Delhi, as the truck and the container in question were allegedly waylaid and subsequently, found abandoned by the Delhi Police during intervening night of 11/12.6.2003 and subsequently, the Transporter took delivery of the truck and the container from the Police on 13.6.2003 and eventually, the truck and the container landed up at the ICD Tuglakabad on 14.6.2003. The loss was finally detected and assessed on 19.6.2003, when the container was opened at the ICD Tuglakabad. The Complainant has not been able to establish any steps taken by him or efforts made by him from 9.6.2003, till 16.6.2003, to trace or track the missing truck/lost goods, which were valued as high as Rs.22.00 lacs. Finally, even on 16.6.2003, it was only the Transporter, who informed the Complainant about the incident of loss of truck and container/goods; whereas, even on that day the Complainant had not tried to ascertain the fate of the export consignment from any source. All this has been termed by the OPs as willful misconduct and according to the OPs, as per Clause 4.1 of the Marine Cargo (Specific Voyage Policy) attached to the main Policy, clearly excludes any claim of loss, damage or expense attributable to such willful misconduct of the insured. Further, since the Transporter M/s M.S. Roadlines has not been made a party in the present complaint, no case can be made out against this company as it is not a party. 

10]     Keeping in view the foregoings, it is our considered view that the Complainant has not been able to establish and prove its case against the OPs conclusively as it has not been able to prove any deficiency in service, lapse or negligence or indulgence in an unfair trade practice on the part of the OPs. We, therefore, dismiss the complaint against the OPs. However, parties shall bear their own costs.  

11]    Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record