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Dujodwala Products Ltd v/s National Insurance Co. Ltd


Company & Directors' Information:- P P PRODUCTS PVT LTD [Active] CIN = U32305WB1991PTC051091

Company & Directors' Information:- K K PRODUCTS LIMITED [Active] CIN = U31300DL1991PLC045521

Company & Directors' Information:- K B PRODUCTS PRIVATE LIMITED [Active] CIN = U51909MH2007PTC169627

Company & Directors' Information:- K G PRODUCTS PRIVATE LIMITED [Active] CIN = U51909PB2007PTC031201

Company & Directors' Information:- S S P PRODUCTS PRIVATE LIMITED [Active] CIN = U22110WB1974PTC210201

Company & Directors' Information:- M L B PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC040990

Company & Directors' Information:- M M PRODUCTS LIMITED [Strike Off] CIN = U28994DL1992PLC050955

Company & Directors' Information:- M P K PRODUCTS PVT LTD [Active] CIN = U26919AS1994PTC004183

Company & Directors' Information:- G K PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC043260

Company & Directors' Information:- N R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51109AS1998PTC005561

Company & Directors' Information:- C L PRODUCTS INDIA LIMITED [Active] CIN = U51909DL2002PLC116975

Company & Directors' Information:- K. S. A. PRODUCTS PRIVATE LIMITED [Active] CIN = U51220PB2014PTC039023

Company & Directors' Information:- D. R. PRODUCTS PRIVATE LIMITED [Active] CIN = U52320DL2011PTC213508

Company & Directors' Information:- R S PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036603

Company & Directors' Information:- R R PRODUCTS PRIVATE LIMITED [Active] CIN = U24249HR1999PTC034291

Company & Directors' Information:- I G PRODUCTS PRIVATE LIMITED [Active] CIN = U74999WB2012PTC183503

Company & Directors' Information:- J S R PRODUCTS PRIVATE LIMITED [Active] CIN = U31908DL2007PTC170841

Company & Directors' Information:- C F C PRODUCTS PRIVATE LIMITED [Active] CIN = U28129DL1998PTC095531

Company & Directors' Information:- M S PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC055125

Company & Directors' Information:- B R PRODUCTS PRIVATE LIMITED [Active] CIN = U31909DL1999PTC100727

Company & Directors' Information:- S P B PRODUCTS LIMITED [Active] CIN = U51909DL1996PLC082631

Company & Directors' Information:- G K D PRODUCTS PRIVATE LIMITED [Active] CIN = U15431WB1998PTC086840

Company & Directors' Information:- M B R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U17111WB1993PTC060806

Company & Directors' Information:- P D PRODUCTS PRIVATE LIMITED [Active] CIN = U23201DL2000PTC108462

Company & Directors' Information:- S K M PRODUCTS PRIVATE LIMITED [Active] CIN = U18101DL1998PTC093415

Company & Directors' Information:- H R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1978PTC009183

Company & Directors' Information:- V S PRODUCTS PRIVATE LIMITED [Active] CIN = U36900DL2008PTC185445

Company & Directors' Information:- H K PRODUCTS LIMITED [Active] CIN = U51900GJ2015PLC085457

Company & Directors' Information:- S R K PRODUCTS PRIVATE LIMITED [Active] CIN = U51221KA1989PTC010032

Company & Directors' Information:- G M PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC044687

Company & Directors' Information:- V T N PRODUCTS PVT LTD [Active] CIN = U51109WB1996PTC080094

Company & Directors' Information:- W S T Q PRODUCTS PRIVATE LIMITED [Active] CIN = U31300DL1999PTC102655

Company & Directors' Information:- J M K PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24246OR2005PTC008446

Company & Directors' Information:- G S T PRODUCTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U31909TN2006PTC059575

Company & Directors' Information:- S M P PRODUCTS PRIVATE LIMITED [Active] CIN = U25200DL2009PTC190965

Company & Directors' Information:- S N S PRODUCTS PRIVATE LIMITED [Active] CIN = U15490DL2005PTC142749

Company & Directors' Information:- U B PRODUCTS PRIVATE LIMITED [Active] CIN = U51224DL2002PTC116457

Company & Directors' Information:- A AND A PRODUCTS PRIVATE LIMITED [Active] CIN = U21098MP2004PTC017128

Company & Directors' Information:- V J PRODUCTS PRIVATE LIMITED [Active] CIN = U36900GJ2011PTC065252

Company & Directors' Information:- S AND A PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51311DL1991PTC042938

Company & Directors' Information:- S AND G PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909DL1982PTC014843

Company & Directors' Information:- B P PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24241WB1999PTC089499

Company & Directors' Information:- D AND P PRODUCTS LIMITED [Amalgamated] CIN = U99999MH1951PTC008422

Company & Directors' Information:- S D H PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U55204KA2006PTC040734

Company & Directors' Information:- V M PRODUCTS PRIVATE LIMITED [Active] CIN = U24100DL2014PTC266679

Company & Directors' Information:- E C A PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U27209TN1987PTC014022

Company & Directors' Information:- G S PRODUCTS LIMITED [Strike Off] CIN = U25191UP1989PLC010483

Company & Directors' Information:- A R K PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24231UP1978PTC004606

Company & Directors' Information:- S. M. PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U17299DL1966PTC004634

Company & Directors' Information:- R. M. R. PRODUCTS PRIVATE LIMITED [Active] CIN = U74999MH2017PTC298120

Company & Directors' Information:- P & Q PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909DL2014PTC269162

Company & Directors' Information:- H T PRODUCTS PVT LTD [Strike Off] CIN = U29266WB1981PTC033424

Company & Directors' Information:- PRODUCTS (INDIA) LTD [Strike Off] CIN = U31901WB1961PLC024991

Company & Directors' Information:- NATIONAL PRODUCTS CORPORATION PRIVATE LIMITED [Strike Off] CIN = U74999TN1945PTC001782

Company & Directors' Information:- M PRODUCTS & CO PVT LTD [Strike Off] CIN = U51909WB1956PTC023215

    Revision Petition No. 2803 of 2018 against in Appeal No. 313 of 2015

    Decided On, 31 August 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT & THE HONOURABLE DR. S.M. KANTIKAR
    By, MEMBER

    For the Petitioner: Karan Mehra, Advocate. For the Respondent: Kishore Rawat, Advocate.



Judgment Text

R.K. Agrawal, President1. M/s. Dujodwala Products Ltd., Raigad (hereinafter referred to as the Complainant) has filed the present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act), against the Impugned Order dated 4.9.2018 passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission) in Appeal No. A/15/313, whereby the State Commission had allowed the Appeal filed by the National Insurance Company Ltd. (hereinafter referred to as Opposite Party Insurance Company) and had set aside the Order dated 14.10.2014 passed by the Raigad District Consumer Disputes Redressal Forum, Alibagh (hereinafter referred to as the District Forum) and dismissed the Complaint filed by M/s. Dujodwala Products Ltd., the Complainant.2. Brief facts as narrated in the Complaint are that the Complainant Company is engaged in the business of manufacturing of Chemicals, having their factory at Kumbhivali, Taluka-Khalapur, Dist. Raigad. The Complainant Company sells their products within and outside India. The Complainant Company was required to supply their products to M/s. Saudi Rook Wool Factory at Riyadh. As the product was sensitive in nature and the temperature was required to be maintained at 5o C or less to save the product from damage, they hired a Container bearing No. MWCU6037091, having inbuilt refrigeration system from M/s. MAERSK India Pvt. Ltd. The products were packed in 109 metal drums and were stuffed in the Container and then the Container was loaded on a motor vehicle for taking the same to JNPT, Nhava Sheva on 14.10.2006 for onward transportation to Riyadh. The Complainant had insured that Container with Opposite Party Insurance Company by obtaining Insurance Policy No. 26500/21.6.4600000/647 covering all risks. Before the products were packed in the Container, temperature of the Container was checked and found that it was at the requisite level. On 18.10.2006 at about 12.38 p.m. the Complainant Company received message from M/s. MAERSK India Pvt. Ltd. informing that the Container could not be shipped Overseas as the Container did not maintain requisite temperature due to technical problem in the refrigeration system. Complainant had taken immediate action as the products were sensitive to temperature and they had brought back the Container to their factory on 19.10.2006. Due to rising of temperature in Container, quality of products suffered. The Complainant Company lodged Insurance claim with Opposite Party Insurance Company for getting the cost of the Products. The Opposite Party Insurance Company deputed M/s. A & Shaikh Co. (hereinafter referred to as Surveyor) to assess the loss.The Surveyor verified the Container by visiting factory on 19.10.2006 and assessed the loss to the tune of 12,22,869 after deducting 5% of total value of the products towards salvage value. However, the Opposite Party Insurance Company vide letter dated 26.12.2006 repudiated the Claim on the ground that the damage to the Products was caused due to change in temperature because of improper packing which resulted into change in temperature and the same was not covered under the Policy. Alleging deficiency in service on the part of the Opposite Party Insurance Company, the Complainant Company filed a Consumer Complaint before the District Forum seeking the following reliefs:“(a) The Opponent may please be ordered to pay the Complainant a sum of 12,94,731 along with the interest at the rate of 13% and including notice charges of 1,500 and other expenses, as the Hon. Court may deem fit.(b) The Opponent may please be ordered to pay the Complainant a sum of 1,00,000 being damages and compensation for hardship, harassment and mental agony.(c) And cost of proceedings.”3. The Opposite Party Insurance Company contested the claim by filing their Written Version. They took a preliminary objection that the cause of action had arisen on 18.10.2006 when the product was destroyed due to rising of temperature. However, Complaint has not filed within two years from the same. The Container was provided by M/s. MAERSK India Pvt. Ltd., which is a necessary Party and they have not been made a Party in this Complaint, therefore, the Complaint is liable to be dismissed for non-joinder of the Party. They submitted that during the transport of Container neither any accident had taken place nor any damage was caused to the Container. It was submitted that due to defective packing of the goods in the Container the refrigeration system failed and the temperature in the container increased resulting in damage to the goods. They submitted that the Products kept in the Container were required to be kept at a temperature below 5C. For that purpose, there was inbuilt refrigeration system in the Container. The Container was supplied by M/s. MAERSK India Pvt. Ltd. and the Products kept in the Container were damaged due to failure of refrigeration system of the Container. The Opposite Party has no concern with the same and this part has been specifically excluded in the Insurance Policy. They also submitted that the Container was insured covering all the risks which may occur during transport of the Container but any loss caused due to change in temperature due to failure of the refrigeration system is not covered in the Policy. They were, therefore, not liable to pay Insurance Claim to the Complainant. There is no deficiency in service on their part. They prayed that the Consumer Complaint be dismissed.4. After hearing the learned Counsel for the Complainant and Opposite Party Insurance Company, perusing the pleadings and evidence on record, the District Forum had held as under:“No convincing evidence brought on record by the Opposite Party to support its case that due to defective packing of the goods in the Container the refrigeration system failed and the temperature in the container increased causing damage to the goods. The evidence tendered by the complainant is not rebutted and therefore, the case tried to be made out by the Opposite Party cannot be accepted. If the insurance policy referred to above is minutely perused, it is seen that it covers all risks. In our opinion the damage caused to the goods of the Complainant in a manner stated is also covered under the said policy and the Opposite Party cannot take benefit of exclusion Clause 2.3 thereof.It is established by the evidence tendered by the Complainant that the loss caused to its goods is covered under the above mentioned Insurance Policy and the Opposite Party is liable to compensate the loss. In spite of this the Opposite Party repudiated the claim of the Complainant under the exclusion Clause 2.3 of the Policy which in our opinion is deficiency in service on the part of the Opposite Party. The Complainant is therefore, entitled to entire damage from the Opposite Party. After having considered the material on record we arrived at the conclusion that there is deficiency in service on the part of the opposite party and hence the complainant is entitled to relief claimed.FINAL ORDER1. Complaint No. 143/08 is allowed.2. It is hereby declared that there is deficiency in service rendered by the opposite party to the Complainant.3. The Opposite Party shall pay to the Complainant a sum of 12,94,731 (Rupees twelve lakh ninety four thousand seven hundred thirty one only) towards loss with interest @12% p.a. from the date of filing the Complaint, i.e., 10.2.2008 till realization.4. The Opposite Party shall also pay to the Complainant 50,000 (Rupees Fifty thousand only) towards compensation and 5,000 (Rupees Five thousand only) towards cost of the proceedings.”5. Aggrieved by the Order dated 14.10.2014 passed by the District Forum, the Opposite Party Insurance Company preferred an Appeal before the State Commission.6. The Opposite Party Insurance Company submitted before the State Commission that the damage to the Product kept in the Container was caused only because the temperature of the Container could not be maintained at 5oC or below due to defect in refrigeration system and the Container with inbuilt refrigeration system was provided by M/s. MAERSK India Pvt. Ltd. The refrigeration system of the Container and work of keeping the temperature of the Container below 5oC was strictly with M/s. MAERSK India Pvt. Ltd. and Opposite Party Insurance Company has no concern with the same. It was further submitted that damage was not caused due to accident to the vehicle or damage to the Container. All risks in respect of transportation of Container was covered in the Insurance Policy but damage to the products due to failure of refrigeration system was certainly not included in the Insurance Policy.The Opposite Party Insurance Company relied upon judgment passed by this Commission in New India Assurance Co. Ltd. & Ors. v. Deepak Anand, reported in III (2014) CPJ 373 (NC) and Future Generali India Insurance Co. Ltd. v. Micron Precision Screws Ltd., reported in II (2015) CPJ 88 (NC).7. After hearing the learned Counsel for the parties and perusal of material on record and the judgments relied upon by the learned Counsel for the Appellant, the State Commission had allowed the Appeal by observing as under:“We are of the opinion that opponent cannot have any concern about the same and cannot be held responsible for the same although in Insurance Policy it has been mentioned that they are covering all the risks. It means the risk covered is in respect of transport of container and not about technical problem of refrigeration system of container. On perusal of terms and conditions, it has become clear that if loss or damage was caused due to packing then the same was not covered under the insurance policy and specifically excluded from the policy. We are of the opinion that as packing of product in the container was not proper, it affected the refrigeration system of the container to maintain temperature of container below 5 C. Hence, it is strictly between complainant and M/s. MAERSK India Pvt. Ltd. who supplied container to the complainant and opponent cannot be held responsible for the same. In view of rulings on which the learned Advocate for appellant has relied it has become clear that when it is specifically excluded from the insurance policy, Insurance Company cannot be held liable to pay insurance claim to the complainant. Hence, we are of the opinion that the learned District Forum had not considered this fact properly and had wrongly come to conclusion that opponent has given deficiency in service to complainant by not giving insurance claim to complainant and directed opponent to pay amount of Rs. 12,94,731 to complainant together with interest on that amount along with costs and compensation. Hence, we are of the opinion that the Order passed by the learned District Forum in that respect is to be set aside by allowing this appeal and complaint filed by the complainant is to be dismissed. We are of the opinion that complainant can recover the claim from M/s. MAERSK India Pvt. Ltd, who had not supplied proper container to them.”8. Aggrieved by the Order dated 4.9.2018 passed by the State Commission, the Complainant Company, has filed the present Revision Petition before this Commission.9. We have heard the learned Counsel for the Parties and perused the Memorandum of Revision and the Orders passed by the State Commission and the District Forum as also the material on record.10. The learned Counsel for the Petitioner submitted that even though in the Insurance Policy issued by the Opposite Party Insurance Company loss damage or expenses caused by insufficiency or unsuitability of packing or preparation of the subject matter insured is excluded and in the deeming provision it has been mentioned that the packing shall deem to stowage in a container or liftvan but only when such stowage is carried out prior to attachment of this Insurance or by the Assured or their servants, it cannot be invoked in the present case for repudiating the Claim made by the Complainant Company for the reason that the Products were packed in 109 metal drums and there was no defect, insufficiency or unsuitability of packing or preparation of the Products. After checking the temperature of the refrigeration system of the Container which was at the desired level, i.e., less than 50C, it was loaded in the Container fully stuffed for taking the same to JNPT, Nhava Sheva and because of some failure in the refrigeration mechanism of the Container, it cannot be said that there was insufficiency or unsuitability of packing or preparation of the Products. According to him the learned State Commission has erred in law in allowing the Appeal filed by the Insurance Company and dismissing the Complaint. The Complainant Company is entitled for a sum of Rs. 12,94,731 along with interest @12% p.a. from the date of filing of Complaint till realization as ordered by the District Forum and the Order passed by the District Forum should be restored and the Complaint be allowed.11. The learned Counsel for the Respondent, however, submitted that it is not in dispute that because of the defect/failure in the refrigeration of the Container, the Products got damaged which is specifically covered in Clause 2.3 of the Exclusions mentioned in the Insurance Policy. According to him, the Order passed by the State Commission does not suffer from any illegality and calls for no interference.12. We have given our thoughtful consideration to the various plea raised by the learned Counsel for the Parties. It is not in dispute that the Complainant Company had taken the Insurance Policy from the Opposite Party Insurance Company insuring the Container by which 109 metal drums of Products were being sent to M/s. Saudi Rook Wool Factory at Riyadh. The Container had an inbuilt refrigeration system. Before the Products were packed in the Container, the temperature of the Container was checked and it was found that it was at the requisite level, i.e., 5oC or less. Due to technical problem in the refrigeration system, the Container could not be shipped Overseas and was brought back to the factory of the Complainant Company. The quality of Products suffered because the requisite temperature could not be maintained in the Container. The only question is as to whether there was any insufficiency or unsuitability of packing or preparation of the Product as mentioned in Clause 2.3 of the Exclusions in the Insurance Policy. For ready reference Clause 2.3 of the Exclusions Clause is reproduced below:“EXCLUSIONS2. In no case shall this insurance cover…..2.3 Loss damage or expenses caused by insufficiency or unsuitability of packing or preparation of the subject matter insured (for the purpose of this Clause 2.3 “packing” shall be deemed to include stowage in a container or liftvan but only when such stowage is carried out prior to attachment of this Insurance or by the Assured or their servants)”13. From a perusal of the aforesaid Exclusion Clause it is clear that the loss, damage or expenses caused by insufficiency or unsuitability of packing or preparation of the subject matter insured is excluded. There is a deeming provision as to what should ‘Packing’ mean. It deems to include stowage in a container or liftvan but only when such stow

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age is carried out prior to attachment of this Insurance or by the Assured or their servants. Even though, packing includes stowage in a Container or liftvan but the loss or damage suffered by the Complainant Company cannot be said to be on account of insufficiency or unsuitability of packing or preparation of the Products insured.It is not in dispute that the Product which was to be sent to M/s. Saudi Rook Wool Factory at Riyadh was packed in 109 metal drums and after checking the temperature of the Container which was about 5 0 C or less and after being satisfied, it was stuffed in the Container having refrigeration mechanism. If some defect had occurred in the refrigeration mechanism it cannot be attributed to any of the Terms, Clause or Conditions mentioned in Clause 2.3 of the Exclusionary Clause referred to by the learned Counsel for the Opposite Party Insurance Company which had already been reproduced hereinabove.14. Thus, we are of the considered opinion that the Opposite Party Insurance Company had wrongly repudiated the claim made by the Complainant Company and the State Commission had erred in law in allowing the Appeal and dismissing the Complaint.15. In view of the foregoing discussions, we are of the considered opinion that the Petitioner is entitled to succeed. Consequently the Revision Petition is allowed and the Order dated 4.9.2018 passed by the State Commission in Appeal No. A/15/313 is set aside and the Order dated 14.10.2014 passed by the District Forum in Complaint No. 143/2008 is restored. The Complaint stands allowed.16. However, in view of the peculiar facts and circumstances of the case, the Parties shall bear their own Costs.Revision Petition allowed.
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