Date of Filing : 26.06.2004
Date of Order : 16.02.2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
Dr. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.691/2004
WEDNESDAY THIS 16TH DAY OF MARCH 2016
Mr. S.Sivasekar,
M/s. The Maritime Claim Settling Agent,
No.12, Sai Nagar, 2nd Street,
Jawahar Nagar Post,
Chennai 600 082. ..Complainant
..Vs..
1. The General Manager,
M/s. Sampo Japan Commercial Line,
Services Inc. (Formally known as
M/s. Yasuda Fire & Marine Insurance Co. Ltd.),
Head Office 26-1, Nishi – Shinijuku,
Tokyo, Japan.
2. The Manager,
M/s. W.K.Webster (Intni) P. Ltd.,
139, Cevil Street,
Cecil House,
Singapore 069 539.
3. The Director,
M/s. Wlison & Co., (P) Ltd.,
Chordia Mansion (P.B.No.393),
739 Anna Salai,
Chennai 600 002. ..Opposite parties.
For the Complainant : M/s. N.S.Kishorekumar & others
For the Opposite parties : M/s. Sarvabhauman Associates.
Complaint under section 12 of the Consumer Protection Act 1986. Complaint is filed seeking direction against the opposite parties to pay a sum of Rs.30334.8 US $ and also to pay a sum of Rs.13,65,066/- as damages for mental agony and also Rs.5,000/- as cost of the complaint to the complainant.
ORDER
THIRU. T.PAUL RAJASEKARAN :: MEMBER-II
1.The case of the complainant is briefly as follows:
The complainant submit that the consignee M/s. Fabtitex Export Pvt. Ltd had insured his consignment 265 sets of Juki Brand Industrial Sewing Machine for sum of 206,805 U.S. $, policy No.H94/ 0003606 dated 28.6.1994 in the concern of the 1st opposite party for the transportation of the said goods from Hongkong to Madras by sea and from Madras Port to Bangalore by Road, the name of the consigner is M/s. Juki Ltd., Hongkong. The goods were sent by vessel namely M.V. Hoechst Express V.15325, TPD M.V. “Tiger Bridge” V.297 which arrived at Madras Port on 17th July 1994. The goods transported were in two containers, one is FCL container which contained 549 packages and another are is LCL container which contained 29 packages of the consignee. The goods landed at Madras Port on 21st July 1994. At the time of taking delivery after completion of customs formalities, it was found that Febtitex Madras C/No.522 one wooden case said to contain 4 sets Hitachi Motors and 1 lot essential maintenance spares completely torn and content lying in loose conditions and one lot essential maintenance spares completely missing. Immediately that was informed to Madras Port Trust carrier Agency and to the 1st opposite party. The Madras Port Trust and carrier agency had given their reply in written stating that the said damaged box was in FCL container for FCL container the Madras Port Trust and carrier Agency were not liable for loss / damages, when the container seal was intact at the time of goods arrived at Madras Port on 17th July 1994. The complainant also states that on the information given by them the opposite party appointed Lloyd’s surveyor to assess the loss at consignee godown at Bangalore on 14.9.1994 and submitted his report on 27.9.1994. The consignee asked one M/s. South India Surveyors Chennai to carry out the survey, and they also submitted their report on 30.9.1994. As per the reports submitted by the surveyors which establishes the genuineness of loss. The complainant claimed a loss of Rs.10,730 Us $ which includes the survey fees also. Since there is no response from the opposite parties the complainant issued legal notice to the opposite parties on 10.2.2003 which was acknowledged by them on 25.2.2003. The opposite parties have not settled the claim amount. As such the act of the opposite parties amounts to deficiency of service. As such the complainant sought for claim for a sum of Rs.30334.8 US $ and also to pay a sum of Rs.13,65,066/- as damages for mental agony and also Rs.5,000/- as cost of the complaint to the complainant. Hence the complaint.
Written version 1st opposite party in brief is as follows:
2. It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The 1st opposite party submit that they asked the complainant to provide documentary evidence such as out turn report, tally sheets, port landing condition certificate and the consignees’ written notification to the carriers and freight forwards holding them responsible for the loss. The port authorities had stated that the seal of the FCL container was intact at the time of arrival at Madras Port on 17th July 1994 and hence they have stated that they are not responsible for missing goods/damages. Further it is the bounden duty of consignee to provide all necessary documents to the underwriter to process its claim for insurance monies. The non – production of landing certificate and any proof to establish that loss occurred in transit, only establishes that the claim is frivolous and baseless. Further the complaint is time barred. Merely exchange of letters and communications even after lapse of limitation does not give rise to a fresh cause of action. Hence the complaint is liable to be dismissed.
3. Even after receipt of the notice from this forum in this proceeding, the 2nd opposite party did not appear before this Forum and did not file any written version. Hence the 2nd opposite party was set exparte on 23.12.2004.
4. Written version of 3rd opposite party in brief is as follows:
The 3rd opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The 3rd opposite party is an authorized agent for Lloyds Surveyors in India. At the direction of the 2nd opposite party the complainant made an application to survey the loss / damages to the 3rd opposite party being the authorized agent of M/s. Lloyds Surveyors in India on 8.9.1994. Based on that application the 3rd opposite party made on survey on 14.9.2004 at Bangalore at the premises of the complainant and submitted the survey report on 24.9.1994. In this case, the scope and role of the 3rd opposite party is only to make an appraisal and submit a survey report to M/s. W.K.Webster International Pvt. Ltd., Singapore as to the nature and extent of damage or loss, circumstances which lead to the loss or damage, point of transit when the loss could have occurred and the probable cause of loss or damage.
5. There is no privity of contract either between the 1st opposite party and the 3rd opposite party and between the complainant and the 3rd opposite party. The complainant did not substantiate his claim that loss has occurred during the transit by producing any independent proof like landing certificate, out turn report or de-stuffing certificate. Hence this complaint is liable to be dismissed.
6. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A51 were marked on the side of the complainant. Proof affidavit of Opposite parties filed and no document were marked on the side of the opposite parties.
6. The points that arise for consideration are as follows:-
1) Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to the reliefs asked for?.
7. POINTS 1 & 2 :
Perused the complaint filed by the complainant and his proof affidavit and documents Ex.A1 to Ex.A51 were marked on the side of the complainant. Written version and proof affidavit filed by the opposite parties 1 & 3 and no document was marked on the side of the opposite parties 1 & 3 and also considered the both side arguments.
8. The complainant filed a complaint on behalf of Fabritex Export Private Limited who was an importer in Bangalore and the imported consignment was sent through Sea voyage and the seller had taken a Specific Marine Insurance Policy with a Foreign insurance company, coined as the “M/s. Yasuda Fire and Marine Insurance Company Limited, Jappan” where the policy states it contains 578 cases of Juki Brand Industrial Sewing Machine with standard accessories [520 curtains and 58 cases] loaded into the vessels “Hoechst Express” sailing on or about 13th June 1994 with conditions covering “all risks” Marine Cargo Insurance with ICC A Clause including unlimited transshipment risk with warehouse to warehouse clause for an amount of Rs.206,805 U.S dollar from Hongkong to Chennai and the policy was issued on 28th June 1994, mentioning the claim settling agent of the insurer in India, “M/s Wilson and company private Limited, Madras” (Ex.A1). The Bill of lading No.MOLU 3152100025 dated 29.6.1994 shows the recipient of the consignment in India M/s Fabtitex Export Private Limited, Bangalore i.e. (Ex.A2). The invoice No.JVE0628/94 submitted by the complainant along with the packing list also shows the recipient Fabtitex Export Private Limited, Bangalore i.e. (Ex.A3). The bill of entry shows O/c of voucher express /TS through MV Tiger Bridge V.297 carried the said consignment and landed at Madras Port and the value assessed under sec.14 of Customs Act 1962 as Rs.59,90,813/- which was endorsed by the Port Authority / Madras Customs authority on 17th August 1994 (Ex.A4). The complainant states that the consignment was brought by two containers one is FCL container and other one is LCL container and the goods landed at Madras Port on 21st July 1994. The complainant also states that one wooden case said to contain four sets Hitachi Motors and one lot essential maintenance spares completely torned and contents lying in loose condition and one lot essential maintenance spares completely missing which he states it was informed to Madras Port Carrier Agency and opposite party-1, in response Port authority replied that the damaged box was in FCL container and confirms the container seal was intact at the time of arrival of the ship at Madras Port on 17th July 1994 and for which they are not liable for any loss of damage. The complainant himself confirms the BL was carrying and endorsement of shippers load and found the carrier would not be liable. The complainant also states that on the information given by them the opposite party appointed Lloyd’s surveyor to assess the loss at consignee godown at Bangalore on 14.9.1994 and submitted his report on 27.9.1994 the consignee asked one M/s. South India Surveyors Chennai to carry out the survey, and they also submitted the report on 30.9.1994. As per the reports submitted by the surveyors it establishes the genuineness of loss. The complainant claimed a loss of Rs.10,730 Us $ which includes the survey fees also. Since there is no positive response the complainant issued legal notice to the opposite party on 10.2.2003 which was acknowledged by them on 25.2.2003. The complainant filed a deficiency of service u/s 2 (1) (g) of COPRA 1986 claiming Rs.13,65,066/- (Rs.9462.12 US $ @ of INR 31.55) which comprises claim amount interest accrued upto August 2003 and mental agony.
9. The complainant states that the cause action arose in Hongkong on 28.6.1994 and reference Sec.24A of COPRA for limitation. He approached this Forum for “deficiency of services” on the part of the opposite parties.
10. The insurer Sompo Japan Commercial Line services Inc, (formerly known as M/s Yasutha Marine Insurance limited )gave a power of attorney to S.Senthilkumar residing in Chennai to perform the function jointly and severally in this case by their power of attorney dated 24.3.2010 for opposite party-2. The opposite parties in the complaint the insurer is opposite party-1 the W.K.Webster (Inter ) P Ltd opposite party2 M/s Wlison & Co Limited opposite party-3. The opposite parties have submitted their written arguments and proof affidavit with power of attorney and contended the allegations made by the complainant not disputing the imports made from Hongkong to Madras on dates specified in the bill of lading and bill of entry and the consignments sent by the exporter from Hongkong sailed on or around 30.6.1994 and reached Chennai Port on 17.7.1994 and the said consignment was lying for one month in Madras Port before clearance. The consignments were de-stuffed and assessed for the purpose of customs duty as one lot and the complainant had not produced the landing certificate to indicate the short loading of the shipment. The complainant’s surveyor M/s South India surveyor surveyed on 17.8.1994 as per the Insurance policy condition clearly stipulates the survey ought to be conducted by the accredited surveyor on the noticing of damage the complainant had lifted the consignment from the Port, after paying the duty and without lodging any protest before taking delivery of the shortage and the shipment was sent by road from Madras Port to Bangalore on 20.8.1994 with the Private transport and not produced LR / delivery challan to ascertain the packing and any mishandling notification which was not endorsed about the losses sustained during transshipment on 21st August 1994. The insured surveyor visited complainant’s warehouse on 10th September 1994 as instructed by opposite party-1 and the survey was conducted on 14.9.1994 at insured address at Bangalore. The opposite parties brought to the notice on this forum the complainant lodged his complaint after the lapse of nine years i.e. on 10.2.2003 which is untenable under limitation and pleading this forum to be dismissed this case.
11. In pursuant of the complaint, written version, proof affidavit, documents and written arguments filed by complainant and the opposite parties it is observed that there is no privity of contract in the said case between the complainant and the opposite parties. The Marine Insurance Act sec.7 (2) 1963 states that
“a person is interested in a marine adventure where he stand in any legal or equitable relation to the adventure or to any insurable property at risk therein , in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof or may incur liability in respect thereof”.
In this complaint the complainant though he had submitted a letter of authorization under Ex.A7 it does not holds good he has insurable interest in the subject matter insured.
12. The Marine insurance the exported had taken a specific voyage policy with “ICC A clause “which stipules the conditions under exclusion “Proximately caused by delay even though delay be caused by a risk insured against”. As per the bill of entry the said consignment reached Chennai through sealed containers two numbers and the assistant collector of customs house imports sealed on 12.8.1994 and the Port Authority (Madras customs House) received the duty on 17th August 1994 and return to the importer on the same day. There is no specific endorsement in bill of entry that there was short landing or a pilferage confirming the loss of consignment has claimed by the complainant there should be an evidence the substantiate the actual loss suffered at the time of taking delivery which will be an evidence to put of the recovery rights to the opposite parties to recover from the carrier. Once the complainant found there was a loss whether there is pilferage or short landing they should have got a certificate from the Port authority and should have informed to the claim settling agent of the opposite party who had their office in Chennai which would have made them who inspect and ascertain the actual loss incurred to the importer but the opposite parties has called to effect the survey only after the loss of two months i.e. in September 1994.
13. The complainant statement of appointing South India Surveyor to inspect the damaged consignment on 17.8.1994 when the ship had reached destination on 21st July 1994, where the loss could have accredited. The bill of entry states that the ship arrived on 12.7.1994. wherein the complainants states the ship arrived on 17.7.1994. The complainant’s surveyor the application was surveyed by the complainant on 17.8.1994 and the place of survey made by him at Madras Port on 17.8.1994 and final survey on 29.8.1994 at Consignees godown at Bangalore. It is stated that the consignment was transported through their own carrier under (Ex.A8) and the complainants states that delay in short shipment ExA9, it is the case of pilferage under Ex.A10.
14. The Port’s authorities reply to the complainant the consignment was FCL consignment seal was intact at the time of arrival. The complainant had not taken any letter of protest from the master of the vessel which will Exhibit any discrepancy in the BL quantity, load port quantity, quantity on board arrival, and if that be a case they would have issued a shortage certificate which would have been an evidence from the master of the ship. As an importer if they would have informed the opposite parties in time with short landing certificate or informing the opposite parties about the loss which the binding as per the terms of Insurance Contract and failing to maintained the contractual application of Sec.23 of Indian Contract Act which states that the object an agreement is lawful unless “A” it is forbidden by law, (be is of such nature that, if permitted, it would defect the provision of any law or his fraudulent involves or implies injury to the person or property an another or ) the port import or public policy. By failing in adhering to this the contact has become vide.
15. The conditions implied in the policy issued there is no subrogation by the complainant to the opposite parties and no delegation of authority to the complainant as done by opposite party-1 by giving a power of attorney to act and execute on behalf of the complainant.
16. It is barred by limitation of the complaint there was an ordered by this forum of condonation of delay of 3190 days was set aside by this forum on 27.8.2014 under CMP No.30/2014 the cost of Rs.2,500/- was imposed and to be paid on or before 10.9.2015 which was compiled by the complainant and there is no scope for making the limitation clause to be imposed on filing the petition. The question of barred by limitation will not arise at this juncture.
17. The complainant himself raised the cause of action arose in Hangkong the transaction and representatives of the opposite parties are effected in Madras which does not affect a question of jurisdiction hence the accepting of this case in forum is an order.
18. The important notice of the policy condition for Ocean shipment it is clearly stated that “it is the duty of the assured and their agents, in all cases, to take such measures as may be reasonable for the purpose averting or minimizing a loss and to insure that all rights against Carriers, Bailees or other thirty party’s or properly preserved exercised. In particular, the assured or their agents are required, 1) to claim immediately on the carrier Port authorities or other Bailees for any missing package. 2) to apply immediately for survey by carriers or other Bailees representative if any loss or damage be apparent and claim on the carrier or other Bailees for any actual loss or damage found at such survey. 3) when delivery is made by container, to ensure that the container and it seals or examine immediately by the responsible official. If the container is delivered, damaged or with seals broken or missing or with seals other than as stated in the shipping document to clause the delivery receipt accordingly and retain all defective or irregular seal for subsequent identifications. 4) In no circumstances, except under written protest, to give clean receipts were goods or in doubtful conditions 5) to give notice in writing to the carriers or other Bailees within three days of delivery if the loss or damage was not apparent at the time of taking delivery. All these things are not adhered by the complainant / the importer.
19. ICC Clause-A No.11.1 states that “ in order to recover under this insurance the assured must have an insurable interest in the subject matter insured at the time of loss. Condition No.11.2, subject to 11.1 of ICC A, the assured shall be entitled to recover of the insured loss occurring during the period of cover by this insurance not withstanding that the loss occurred before the contract of the insurance was concluded unless the assured were aware of the loss and underwriters were not. The institute strike clauses Cargo condition 8.1, & 8.2 stipulates the same reasoning and the duration clause also stipulates under condition No.15 stipulates not to inure clause states this insurance shall not inure to the benefit of the carrier or other bailee the duty of the assured clause states under condition No.16, the duty of the assured and their servant and agents in respect of loss recoverable here under 16.1 to take such measures as may be reasonable for the purpose of averting or minimizing such loss and 16.2 to ensure that all rights against bailee or other 3rd parties are preserved and exercised and the underwriters will, in addition to any loss recoverable hereunder, reimburse the assured for any charges properly and reasonably incurred in pursuant of these duties. As such the complainant / importer have not taken note of the stipulation of ICC-A clause, and the policy conditions.
20. In view of the forgoing observation there is no privity of contract between the complainant and the insurer, the claim lodged by Mr.Sivasekar, where he does not produced any power of attorney to act as a power agent legally. Complainant cannot make a claim by loss incurred in voyage undertaken on the consignment sent from Hangkong to Madras by sea and the complainant / importer had not given an opportunity to inspect and ascertain the actual loss sustained when the FCL container which was sealed intact and upon opening, completing customs formalities where the complainant neither got the certificate of short landing nor informing the opposite parties to ascertain the loss sustained.
21. Hence we are of the considered view that based on the facts and figure found in the document submitted to this forum and there is no legality to claim the monitory loss sustained by the importer by the complainant and he could not establish the actual loss incurred by providing proper document to the insurer / claim settling agent and the repudiation on the part of opposite parties stands in order and the complaint is liable to be dismissed. Considering the facts and circumstances of the case the parties are ordered to bear their own costs. Accordingly the points 1 and 2 are answered.
In the result, the complaint is dismissed. No cost.
Dictated directly by the Member-II to the Assistant, transcribed and computerized by her, corrected by the Member-II and pronounced by us in the open Forum on this the 16th day of March 2016.
MEMBER-II PRESIDENT.
Complainant’s side documents :
Ex.A1- 28.6.1994 - Copy of Insurance policy.
Ex.A2- 29.6.1994 - Copy of Bill of lading.
Ex.A3- 4.7.1994 - Copy of invoice and packing list.
Ex.A4- 12.8.1994 - Copy of bill of entry.
Ex.A5- 27.9.1994 - Copy of M/s. Lloyds Agent Survey report with photographs.
Ex.A6- 30.9.1994 - Copy of M/s.South India Surveyor Survey report.
Ex.A7- 21.3.1995 - Copy of M/s. Maritime claim Settling agent to
M/s. W.K.Webster.
Ex.A8- 28.3.1994- Copy of reply given by the M/s.W.K.Webston to complainant.
Ex.A9- 18.4.1995 - Copy of reply given by M/s. W.K.Webston to complainant.
Ex.A10- 17.5.1995 - Copy reply to opposite party-2 to complainant.
Ex.A11- 7.6.1995 - Copy of letter by complainant to opposite party-2.
Ex.A12- 19.8.1995 - Copy of letter by written by South India surveyors to the
Complainant.
Ex.A13- 29.2.1996 - Copy of reply by opposite party-2 to complainant.
Ex.A14- 20.9.1996 - Copy of letter by complainant to opposite party-2.
Ex.A15- 18.9.1996 - Copy of reply by opposite party-2 to complainant.
Ex.A16- 7.10.1996 - Copy of letter by complainant to opposite party-1.
Ex.A17- 25.4.1997 - Copy of reply by opposite party-1 to complainant.
Ex.A18- 2.6.1997 - Copy of letter by complainant to opposite party-2.
Ex.A19- 26.6.1997 - Copy of reply by opposite party-1 to complainant.
Ex.A20- 10.7.1997 - Copy of letter by complainant to opposite party-2.
Ex.A21- 16.11.1998- Copy of reply by opposite party-1 to complainant.
Ex.A22- 30.11.1998- Copy of letter by complainant to opposite party-2.
Ex.A23- 14.9.1999 - Copy of letter by complainant to opposite party-1.
Ex.A24- 29.12.1999- Copy of reply by opposite party-2 to complainant.
Ex.A25- 3.2.2000 - Copy of letter by complainant to opposite party-2.
Ex.A26- 17.2.2000 - Copy of reply by opposite party-1 to complainant.
Ex.A27- 27.3.2000 - Copy of letter by complainant to M/s. International Clearing
and shipping Agency.
Ex.A28- 28.3.2000 – Copy of reply by M/s. International Clearing & Shipping
Agency.
Ex.A29- 28.8.2000 - Copy of letter by complainant to opposite party-2.
Ex.A30- 20.9.2000 - Copy of letter by opposite party-2 to complainant.
Ex.A31- 13.10.2000 – Copy of letter by complainant to opposite party-2.
Ex.A32- 1.2.2001 - Copy of reply by opposite party-2 to complainant.
Ex.A33- 7.2.2001 - Copy of letter by opposite party-2 by complainant.
Ex.A34- 22.2.2001 - Copy of letter by complainant to opposite party-2.
Ex.A35- 28.2.2001 - Copy of reply by given by opposite party-3
by complainant.
Ex.A36- 28.2.2001 - Copy of letter to complainant to opposite party-3.
Ex.A37- 26.4.2001 - Copy of reply given by opposite party-3 to complainant.
Ex.A38- 6.6.2001 - Copy of letter written by Chennai Port Trust
to complainant.
Ex.A39- 11.6.2001 - Copy of letter by complainant to opposite party-3.
Ex.A40- 22.6.2001 - Copy of reply given by opposite party-3 to complainant.
Ex.A41- 6.7.2001 - Copy of letter by complainant to opposite party-2.
Ex.A42- 31.12.2001- Copy of reply by the opposite party-2 to complainant.
Ex.A43- 28.1.2002 - Copy of letter by complainant to opposite party-2.
Ex.A44- 21.6.2002 - Copy of letter by complainant to opposite party-3.
Ex.A45- 10.7.2002 - Copy of reply by opposite party-3 to complainant.
Ex.A46- 22.7.2002 - Copy of letter by complainant to opposite party-3.
Ex.A47- 28.10.2002- Copy of letter by complainant to opposite party-1.
Ex.A48- 10.2.2003 - Copy of legal notice by complainant to opposite party-1.
Ex.A49- 25.2.2003 - Copy of reply to legal notice.
Ex.A50- 11.4.2003 - Copy of rejoinder legal notice to opposite parties 1 & 2.
Ex.A51- 9.5.2003 - Copy of reply to rejoinder by opposite party-2.
Opposite parties’ side documents:
.. Nil ..
MEMBER-II PRESIDENT.
