Tamil Nadu

South Chennai

180/2007

K.T.V.Oil Mills - Complainant(s)

Versus

United India Insurance Co.Ltd - Opp.Party(s)

M/s Sampathkumar

04 Apr 2018

ORDER

                                                                                                                           Date of Filing  : 26.12.2006

                                                                          Date of Order : 04.04.2018

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNA (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L,                    : PRESIDENT

                 TMT. K. AMALA, M.A. L.L.B.                                :  MEMBER-I

              DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

                                                                                          CC. NO.180 /2007

WEDNESDAY THE 4^TH DAY OF APRIL 2018

                                              

M/s. K.T.V. Oil Mills,

Rep. by its Authorized Signatory,

Mr.S.Durai Babu,

7/3, Arul Nagar Salai,

R.V. Nagar P.O. Kodungaiyur,

Chennai 600 118.                                            .. Complainant

                                     ..Vs..

 

1.M/s. United India Insurance Co. Ltd.,

Rep. by its Chairman & Managing Director,

No.24, Whites Road,

Chennai 600 014.

 

2. M/s.  United India Insurance Co. Ltd.,

Rep. by its Divisional Manager-I,

Tarapore Towers, VII Floor,

No.826, Anna Salai,

Chennai 600 002.                                         ..  Opposite parties.

 

 

Counsel for complainant           :  M/s. Sampathkumar & Associates       

Counsel for opposite parties     :  M/s. Nageswaran & Narichania

 

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section  12 of the Consumer Protection Act 1986 seeking direction to claim amount of Rs.5,17,581/- towards shortage of vegetable oil with interest  and also to pay a sum of Rs.1,00,000/- towards compensation for mental agony and to pay cost of the complaint.

1. The averments of the complaint in brief are as follows:

          The complainant submit that the complainant’s  M/s. K.T.V. Oil Mills, is partnership firm registered under the Indian Partnership Act and is represented by its Authorized signatory Mr.S.Durai Babu. The complainant further state that he  insured the import of vegetable oil under All Risk Marine Policy bearing No.010100/21/04/00147 dated 7.10.2004 for 3005 mts with warehouse for a sum of Rs.6,70,48,762/.  The load reached the destination at Tuticorin factory.  The vegetable oil was imported from M/s. Kuok Oils and Grains Pvt. Ltd Singapore by the vessel M/T Ocean Sky.  There was a shortage of 30.696 mts of vegetable oil and after allowing the policy excess clause of 0.25% % on bill of lading; the value of loss is assessed at Rs.5,17,581/-.  As per the original bill of lading shipped by the above exporter was 2999.796 mts  as certified by the surveyor at Load Port and invoice raised by supplier.   The surveyor after due verification and investigation report about the shortage of vegetable oil  submitted his report that there is shortage of 30.696 mts.  On 10.12.2004 the complainant submitted claim form with all details including original insurance policy and surveyor report to claim the actual loss.  Even after repeated requests and letters the opposite parties delayed the claim and finally informed that the claim is not settled.   As such the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.  

2. The brief averments in the written version filed by the opposite parties is as follows:

The opposite parties deny each and every allegations except those that are specifically admitted herein.   The opposite parties submit that the complainant  has insured the import of vegetable oil under all risk marine policy with the 2^nd opposite party.   The said policy was issued subject to the terms and conditions of the policy.   The claim was received from the complainant for shortage of 23.197 mts of vegetable oil.  Immediately after receipt of the claim from the complainant, the opposite party appointed M/s. MAR Tech Surveyors independent licensed surveyor to assess the actual loss under Section 64 Um of the Insurance Act.     The opposite parties further state that the said surveyors issued their report on 20.10.2004 which is in conformity with the finding of the surveyors appointed by the opposite parties.   The complainant has no valid cause of action and the cause of action pleaded is illegal in the absence of proof of loss on account of a peril insured under the policy of insurance.   Hence there is no deficiency in service on the part of the opposite  parties and the complaint is liable to be dismissed.

3.   In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A29 marked.  Proof affidavit of the opposite party filed and Ex.B1 to Ex.B7  marked on the side of the  opposite party.

4.      The points for consideration is :

          1. Whether the complaint is maintainable before this forum as prayed for?

          2. Whether the complainant is entitled to a sum of Rs.5,17,581/- towards shortage of vegetable oil with interest as prayed for ?

          3. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony with cost as prayed for?

5.      ON POINTS 1 to 3 :

          Heard both sides.  Perused the records (viz.) complaint, written version, proof affidavit and documents.   The complainant contented that  the complainant’s  M/s. K.T.V. Oil Mills, is a partnership firm registered under the Indian Partnership Act and it is represented by its Authorized signatory Mr.S. Durai Babu.   But as per law all the partners shall be added as parties.  Further the contention of the complainant is that admittedly the complainant insured the import of vegetable oil under All Risk Marine Policy bearing No.010100/21/04/00147 dated 7.10.2004 for 3005 mts with warehouse for a sum of Rs.6,70,48,762/.  Admittedly the load reached the destination at Tuticorin factory.  The vegetable oil was imported from M/s. Kuok Oils and Grains Pvt. Ltd Singapore by the vessel M/T Ocean Sky.  There was a shortage of 30.696 mts of vegetable oil and after allowing the policy excess clause of 0.25% on bill of lading; the value of loss is assessed at Rs.5,17,581/-.  As per the original bill of lading shipped by the above exporter was 2999.796 mts  as certified by the surveyor at Load Port and invoice raised by supplier as per Ex.A4.   The surveyor after due verification and investigation report about the shortage of vegetable oil submitted his report that there is shortage of 30.696 mts.  On 10.12.2004 the complainant submitted claim form with all details including original insurance policy and surveyor report claiming the actual loss.  Even after repeated requests and letters the opposite parties delayed the claim and finally informed that the claim is not admissible and it falls within the excess limit.  Hence the complainant is constrained to file this case.

6.     The contention of the opposite parties is that admittedly the complainant is a partnership firm as per the Partnership Act all the partners shall be added as  parties to the proceedings.  In this case only Durai Babu representing the complainant partner alone added as a party filed this case.  Hence this Forum has no jurisdiction.

Further the opposite parties contented that the transaction in this case is apparently commercial purpose.  No question of livelihood also arise.   The learned counsel cited a decision reported in

II (2017) CPJ 52 (NC)

BANK OF INDIA

..VS..

PUNDAB HIDE CO. & ORS.

Held that

  Consumer Protection Act 1986 – Sections 2 (1) (d), 21(a) (1) – Consumer Partnership firm – No evidence produced in support of revised version of appellants that five partners of complainant  firm were engaged in affairs of firm exclusively for purpose of earning their livelihood by means of self-employment – Bank cannot be stated to be a service provider for them – Complainant not consumer.

IV (2016) CPJ 67 (NC)

MAHINDRA & MAHINDRA LTD.,

VS..

SRI SAI INDUSTRIES & ORS.

Held that

        Consumer Protection Act, 1986 – Sections 2(1)(d)(ii), 21(b) – Consumer – Partnership firm – Purchase of vehicle – Commercial purpose – Complainant had purchased one min-truck, open body, in order to promote its business – Title of petition itself mentions “Sri Sai Industries’ through its partner “PA” – Question of a partner earning his livelihood by means of self-employment does not arise – This is a commercial transaction – Complainant not consumer.  

I (2010) CPJ 4 (SC)

ECONOMIC TRANSPORT ORGANIZATION

..VS..

CHARAN SPINNING MILLS (P) LTD & ANR.

Held that  

1. Consumer Protection Act 1986 – Sections 2(1) (c ), 2 (1) (d), 2 (1) (g) 14(1)(d) – Contract Act 1872 – Section 140 – Carriers Act, 1865 – Section 9 – Transfer of Property Act 1882, - Sections 3,6,130 – Complaint – Maintainability of – Consignment damaged during transportation – Loss paid to insured by insurer – Consumer complaint filed by insurer on basis of letter of subrogation – Complaint allowd by District Forum – order upheld by State and National Commissions – Civil appeal filed – Insurer, as subrogee held entitled to tile complaint under Consumer Protection Act in name of assured or in joint names – Contention regarding non-availability of presumption under Section 9, Carriers Act, rejected – Loss of consignment and settlement of claim by insurer proved – Complainant not liable to prove negligence on part of carrier in view of Section 9, Carriers Act – Presumption regarding negligence, not rebutted – Order of Consumer forum upheld – No interference required in appeal (para 19, 24, 27, 29, 30)

7.     Further the contention of the opposite parties is that admittedly the complainant partnership firm duly insured under All Risk Marine Policy to warehouse covering all risks.   Such claim cannot be maintained in this forum.  The complainant can maintain the case only before the Civil Court. 

The learned counsel cited a decision reported in

(2008) 10 Supreme Court Cases 626

NEW INDIA ASSURANCE COMPANY LIMITED

.. Vs..

HIRA LAL RAMESH CHAND AND OTHERS

RATAN CHAND DEEP CHAND AND OHTERS

(2011)  I Supreme Court Cases 525

BIRLA TECHNOLOGIES LIMITED

..Vs..

NEUTRAL GLASS AND ALLIED INDUSTIRES LIMITED

Held that

A Consumer Protection – Consumer / Consumer dispute / Locus standi – “Commercial purpose” – Deficiency in service in respect of goods purchased for commercial purpose – Non-maintainability of complaint after 2002 amendment – Prior to Amendment Act, 2002, services availed of for any commercial purpose not excluded from purview of Act – However; respondent conceded that complaint was filed on 26-6-2003, much after amendment – Hence, complaint not maintainable – Respondent complainant given liberty to file suit for relief claimed taking benefit of S.14 Limitation Act – Consumer Protection Act 1986 Ss.2(1)(d)(i) & (ii) – Limitation Act 1963 Sc.14.

8.     Further the contention of the opposite parties is that the claim is barred by limitation; since admittedly the shortage of vegetable oil was found on 18.10.2004.  this case is filed only on 26.12.2007.  But the complainant made claim on 10.12.2004 and the opposite parties insurance company sent letter dated 22.6.2005.   Hence the claim is barred by limitation.

        In the result, the complaint is dismissed.  No cost.

Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 4^th   day of April 2018. 

 

MEMBER –I                       MEMBER-II                              PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	06.10.2004	Letter from the complainant the opposite party	Xerox copy
Ex.A2	07.10.2004	Policy No.010100/21/04/00147 issued by the opposite party	Xerox copy
Ex.A3	04.08.2004	Sale Contract of Kuok Oils and Grains Pte Ltd.	Xerox copy
Ex.A4	11.10.2004	Certificate of Analysis	Xerox copy
Ex.A5	15.10.2004	Letter from the complainant to the opposite party	Xerox copy
Ex.A6	10.12.2004	Letter from the complainant to the opposite party along with enclosures	Xerox copy
Ex.A7	22.02.2005	Letter from the complainant to the opposite party	Xerox copy
Ex.A8	26.04.2005	Letter from the complainant to the opposite party	Xerox copy
Ex.A9	22.06.2005	Letter from the opposite party to the complainant	Xerox copy
Ex.A10	04.07.2005	Letter from the complainant to the opposite party	Xerox copy
Ex.A11	20.07.2005	Letter from the complainant to the opposite party	Xerox copy
Ex.A12	16.08.2005	Letter from the complainant to the opposite party	Xerox copy
Ex.A13	31.10.2005	Letter from the complainant to the Chairman & Managing Director of Opposite party	Xerox copy
Ex.A14	15.11.2005	Letter from the opposite party to the complainant	Xerox copy
Ex.A15	01.12.2005	Letter from the opposite party to the complainant	Xerox copy
Ex.A16	02.12.2005	Letter from the complainant to the opposite party	Xerox copy
Ex.A17	24.05.2006	Letter from the complainant to the opposite party	Xerox copy
Ex.A18	29.05.2006	Letter from the opposite party to the complainant	Xerox copy
Ex.A19	12.06.2006	Letter from the complainant to the opposite party	Xerox copy
Ex.A20	14.07.2006	Letter from the complainant to the Insurance Regulatory and Development Authority	Xerox copy
Ex.A21	28.07.2006	Letter from the Opposite party to M/s. KOG-KTV Food Products (India) Ltd	Xerox copy
Ex.A22	10.08.2006	Receipt issued by the opposite party	Xerox copy
Ex.A23	24.08.2006	Letter from the opposite party to the complainant	Xerox copy
Ex.A24	08.09.2006	Letter from the opposite party to the complainant	Xerox copy
Ex.A25	14.09.2006	Letter from the complainant to the opposite party	Xerox copy
Ex.A26	15.09.2006	Receipt issued by the opposite party	Xerox copy
Ex.A27	14.09.2006	Letter from the opposite party to the complainant	Xerox copy
Ex.A28	11.09.2006	E-mail Correspondences	Xerox copy
Ex.A29	21.08.2006	Letter from the Insurance Regulatory and Development Authority to the complainant	Xerox copy

 

OPPOSITE  PARTIES SIDE DOCUMENTS:  

Ex.B1		Policy Terms & Conditions	Xerox copy
Ex.B2	07.10.2004	Policy Schedule	Xerox copy
Ex.B3	25.10.2004	Survey report	Xerox copy
Ex.B4	10.11.2001	Surveyor’s reply	Xerox copy
Ex.B5	26.04.2005	Surveyor’s Clarifications	Xerox copy
Ex.B6	01.12.2005	Letter by the opposite party	Xerox copy
Ex.B7	22.06.2005	Letter by the opposite party	Xerox copy

 

 

MEMBER –I                       MEMBER-II                              PRESIDENT