1. Heard Mr. Manoj Ranjan Sinha, Advocate, for the complainants and Mr. Ramesh Kumar, Advocate, for the opposite party.
2. This complaint has been filed for directing Bajaj Allianz General Insurance Company Ltd. (the Insurer) to pay (i) Rs.20379745.68/- with interest @24% per annum, under Policy No. OG-07-1103-1001-00000016 (ii) Rs.25/- lacs as compensation for mental torture and harassment (iii) Rs.5/- lacs as the cost of litigation and (iv) any other relief which may deemed fit and proper in the circumstances of the case.
3. The facts, as stated in the complaint and emerged from the documents attached with the complaint, are as follows:-
(a) M/s. Mauria Udyog Ltd. (the Insured) was dealing in import of various Ferrous and Non-Ferrous metals for last four decades and importing all kinds of metals from all over the world. He enjoyed very good reputation in the market. The Insured and M/s. Jotindra Steel & Tubes Ltd. entered into purchase contracts on 09.05.2006 with an overseas supplier, namely M/s. Global Steel Philippines (SPV-AMC) Inc. for supply of 5502.251 MTs of steel, including CR Coils, CR Sheets, HR Sheets, Hot Rolled Non-Alloy Steel Plates and Heavy Melting Steel Scrap. Above named supplier issued 11 numbers of Invoices, relating 5502.251 MTs of steel on 30.05.2006.
(b) Bajaj Allianz General Insurance Company Ltd. (for short the Insurer) is an Insurance Company, engaged in the business of providing insurance services of different nature. M/s. Mauria Udyog Ltd. (the Insured) obtained Marine Cargo Import Sea Voyage Policy i.e. Policy No. OG-07-1103-1001-00000016, of the aforementioned consignments, on the basis of 11 Invoices bearing Nos.513 to 523, on 02.06.2006. Every invoice contained (i) Description of the goods, (ii) Quantity in metric tonnes, (iii) Number of pieces, (iv) Net price and (v) Total price. The Insurer charged premium of Rs.123465/- on the basis of price mentioned in the invoices and insured the cargos in transit from Philippines to Faridabad, India (warehouse to warehouse) against loss, damage, liability or expenses, for sum of Rs.100000204/-. A chart, giving details of consignments was attached with Insurance Policy, which included 499.775 MTs. and 499.940 MTs. Heavy Melting Steel Scrap of M/s. Jotindra Steel & Tubes Ltd.
(c) Above cargos were securely packed and loaded on the vessel MV THANH SON VOY 06-10 during 14.06.2006 to 26.06.2006, at sea port GSPI Private Port, Iligan City, Philippines, on the basis of Bill of Lading Nos. SPS-06-38/2006 to SPS-06-48/2006. Every Bill of lading contained (i) Description of the goods, (ii) Quantity in metric tonnes, (iii) Number of pieces. M/s. Mauria Udyog Ltd. (the Insured) entered into high sea sale agreement dated 11.07.2006, for selling 499.835 MTs, 499.935 MTs., 499.845 MTs CR sheets and 460.616 MTs. Heavy Melting Steel Scrap and 499.956 MTs Hot Rolled Non Alloy Steel Plates to M/s. R.K.G. International Pvt. Ltd. M/s. Jotindra Steel & Tubes Ltd. also entered into high sea sale agreement dated 11.07.2006, for selling 499.775 MTs. and 499.940 MTs. Heavy Melting Steel Scrap to M/s. Mathura Udyog Ltd.
(d) The vessel reached to Kandla Port, Kutch, Gujarat on 18.07.2006. The Insured appointed M/s. Flamingo Shipping & Forwarder Pvt. Ltd. Gandhidham as his Clearing and Forwarding Agent, who engaged Gupta & Associates (Assessors) Pvt. Ltd. to supervise and tally the packages of steel cargo, discharged from the vessel. During discharge of the cargos from the vessel, they noticed that some of the cargos were damaged. On information, the Insured vide email dated 21.07.2006, requested the Insurer to appoint a Surveyor, for survey of the damaged consignment. The Insurer appointed G.P. Dave & Sons, Jamnagar, on 22.07.2006, for survey and assessment of the loss. The Surveyor inspected Kandla Port on 22.07.2006. On 25.07.2006, the Surveyor directed the Clearing and Forwarding Agent to segregate of damaged cargos, at the port.
(e) The cargos were discharged from vessel during 18.07.2006 to 23.07.2006. Clearing and Forwarding Agent informed that there was shortage of 10 pieces of the cargos and Kandla Port Trust had issued a certificate in this respect. On examination of the papers relating to discharge of the cargos, it transpired that there were shortage of 98.325 MTs. of Heavy Steel Scrap, 44.376 MTs of Hot Rolled Non Alloy Steel Plates and 7.193 MTs of CR Sheets, total value of which was Rs.2414856/-. Insured vide email dated 24.07.2006 informed the Insurer about this shortage and requested to instruct the Surveyor to cover the shortage also in his survey and report. The Insured submitted a provisional claim for Rs.69870210/- on 27.07.2006.
(f) Clearing and Forwarding Agent engaged a local porter for shorting, cutting, processing and segregating of the damaged cargos, which took long time and continued till 21.10.2006. Due to which, the cargos remained at the Port till 27.10.2006. Kandla Port Trust charged Rs.5667391/- as storage and demurrage charges. Clearing and Forwarding Agent charged Rs.6366252/- as segregation charges and Rs.1094523/- as cutting & processing charges. The Insured submitted Final Claim Bill of the Shortage and the Damages on 23.11.2006 for Rs.20379745.68/-.
(g) The Insured requested the Insurer and the Surveyor to survey the damaged cargo, lying at the Kandla Port. The Surveyor inspected the damaged cargo on the Port on 16.10.2006 and on subsequent dates. The Insured started transportation of the cargos to his warehouse at Faridabad, from 17.08.2006. After, inspection of the Surveyor, the damaged cargo were also transported. All the cargos were weighed at the warehouse of the Insured and aforementioned shortage was confirmed. Gupta & Associates (Assessors) Pvt. Ltd. gave his Discharge and Delivery Supervision Report dated 01.02.2007, in which, he had mentioned that 10 pieces of HR Steel Plates and HMS scrap of total weight of 98.325 MTs. were short. By an addendum dated 01.01.2008, Gupta & Associates (Assessors) Pvt. Ltd. informed that total weight of the shortage was 99.735 MTs.
(h) However, the Surveyor G.P. Dave & Sons did not submit his report at that time. The Insurer, therefore, appointed Cunningham Lindsey International Pvt. Ltd., Delhi on 05.12.2006, for survey and assessment of loss. The Surveyor G.P. Dave & Sons then submitted his preliminary report dated 29.11.2006, on the basis of his visual inspection dated 22.07.2006, without disclosing his inspection dated 16.10.2006 and on subsequent dates. He submitted his final report dated 28.03.2007, in which, he had noted attending the Kandla Port on 16.10.2006 and subsequently but has stated that Clearing & Forwarding Agent informed him that no cargo was left for inspection at the Port. Although all the required papers were supplied to G.P. Dave & Sons on 14.09.2006, for which, written receipt was given but in the Final Report, he had denied of receiving the documents.
(i) The Surveyor Cunningham Lindsey International Pvt. Ltd., Delhi inspected the warehouses of the Insured and Jotindra Steel & Tubes Ltd., Mathura on 06.12.2006 and submitted his preliminary report dated 15.12.2006 that in Short Landing Certificate only 10 numbers of cargos were mentioned as short, from which, it is not possible to give its weight. Cause of shortage was not given. Some of the damaged cargos have been disposed of, as such, loss in this respect cannot be assessed. Cunningham Lindsey International Pvt. Ltd. submitted his final report dated 03.07.2007, in which, he reiterated his earlier report.
(j) The Insurer vide letter dated 04.07.2007, repudiated the claim of the Insured, on the ground that no document has been given to prove shortage. From Shortage Certificate issued by Kandla Port Trust, quantity of shortage was not established. Mr. Dave was not given any opportunity to verify the damaged cargo, after its segregation at Kandla Port. In the absence of weight of the damaged cargos, actual loss cannot be established on the basis of Shortage Certificate. On percentage basis loss comes to Rs.4.20 lacs only, which falls within excess clause. This complaint was filed on 24.11.2008, on the allegations that the claim was wrongly repudiated. Therefore, there was deficiency in service.
4. The insurer filed its written reply on 11.08.2009, in which, the material facts have not been denied. It has been stated that after receipt of the information, regarding the damages, the Insurer appointed G.P. Dave & Sons, Jamnagar, on 22.07.2006, for survey of the damaged cargos and assess the loss. The Surveyor inspected the cargos on 22.07.2006 and vide letter dated 25.07.2006, requested the Clearing & Forwarding Agent to segregate the sound and damaged cargos. He called for various documents from the complainants and also gave reminder emails dated 28.07.2006, 14.08.2006, 09.09.2006 and 12.12.2006, for those papers. But the complainants did not supply the requisite papers. The complainants, without knowledge and permission of the Surveyor/the Insurer, transported entire consignments from Kandla Port to Faridabad. The complainants, vide email dated 11.10.2006, informed that there was shortage of 44.476 Mts of the materials. The Surveyor, G.P. Dave & Sons submitted his preliminary report dated 29.11.2006, stating therein that he had visited the Cargo Jetty on 22.07.2006. By that time, most of the discharge from the ship was completed and only very small quantity of consignment was remained in the ship, which were in damaged and scattered condition. After segregation of the damaged consignments, he was not informed for its verification at Kandla Port. The complainants did not supply the required papers to him although some of the papers were of utmost importance for determining the liability. The Surveyor, G.P. Dave & Sons submitted his final report dated 28.03.2007, in same terms. He has also mentioned that weights were mentioned in the weighment slips and not the shortage. Many of the weighment slips were unsigned and unstamped. In Shortage Certificate issued by Kandla Port Trust, quantity of shortage was not mentioned only number of the consignments were mentioned. This certificate was not produced before him. After transportation of entire materials to Faridabad, the Insurer appointed Cunningham Lindsey International Pvt. Ltd., Delhi a second Surveyor, on 05.12.2007, who inspected the warehouses of the Insured and Jotindra Steel & Tubes Ltd., Mathura on 06.12.2006. Second Surveyor also vide email dated 08.12.2006, demanded various papers from complainant-2 and also the details of damaged materials already sold. He submitted his preliminary report dated 15.12.2006, mentioning that in Short Landing Certificate only 10 numbers of cargos were shown as short and on its basis, it was not possible to give its weight. Cause of shortage was not given. Some of the damaged cargos have been disposed of, as such, loss in this respect cannot be assessed. Second Surveyor, vide letter dated 29.12.2006, again demanded evidence in respect of damaged goods. But no evidence has been supplied. The complainants held a meeting with Cunningham Lindsey International Pvt. Ltd. on 04.04.2007, in which, various aspects were discussed. The complainants were informed that there was no documentary evidence of shortage in weight and supply of the damaged materials. The damaged materials were transported from Kandla Port without examination by G.P. Dave & Sons and were sold without its examination by second Surveyor. The complainants were called upon to prove the shortage but they did not turn up. Cunningham Lindsey International Pvt. Ltd. submitted his final report dated 03.07.2007, in which, he reiterated his earlier report and has also mentioned that net weight in the two holds of the vessel fully matched with the quantity mentioned in the invoices and bills of lading, as such, shortage was not proved. M/s. Gupta & Associates (Assessor) Pvt. Ltd., in his report dated 01.02.2007 has mentioned that some of the cargos were weighed on the Kandla Port Weighbridge while others were shifted from wharf to the dumping plot without weighment. The materials were sold on ‘As is where is’ basis and no complaint will be entertained. It was also agreed that any short weight/overweight less than .3% of the total consignment will not be considered. The Insurer, thereafter, processed the claim of the Insured and for the reasons recorded in the letter dated 04.07.2007, the claim was repudiated. The damages caused due to rusting, denting, scratching, cutting etc. fall in exception clause of the Policy. There was no deficiency in service on the part of the Insurer. The complaint raises complicated questions of fact, which cannot be decided in summary proceeding of Consumer Protection Act, 1986.
5. The Insured filed his rejoinder reply on 10.11.2009 in which the material facts contrary to the complaint have been denied and the facts stated in the complaint were reiterated. The Insured filed Affidavit of Evidence of Akhil Kumar Sureka. The Insurer filed Affidavits of Evidence of Ms. Sunanda Nimisha, Pankaj A. Dave and Anil Kumar Dhingra. Both the parties have filed documentary evidence and written arguments.
6. I have considered the arguments of the counsel for the parties and examined the record. The Insured, vide his email dated 24.07.2006 (Annexxure-A-7) has stated that discharge of vessel had been completed and they found shortage of 99.735 MTs of Heavy Melting Scrap. Complainant-1, in his email dated 11.10.2006 (Annexure-R-5), has stated that that despatch of Hot Rolled Non Alloy Steel Plates had been completed and shortage of 44.476 MTs (10 in numbers) was found. The Insured filed his Final Claim Bill (Annexure-A-14) on 23.11.2006, in which he claimed the damages for (i) short delivery of the cargos, (ii) damages caused to the consignment during voyage and (iii) Mitigation charges. Short delivery of the cargos have been bifurcated in five heads, namely (a) Shortage of CR Sheet (Mul), (b) Shortage of HMS (Mul), (c) Shortage of CR Sheet (RKG), (d) Shortage of HMS (RKG) and (e) Shortage of HR Plates (RKG). In the calculation sheets of the shortage, attached to the Final Claim Bill, shortage of HMS Scrap was shown as 56.375 MTs. and shortage of CR Sheet was shown as 5.968 MTs. Thus there was no consistency in respect of shortage of the materials.
7. Second Surveyor, vide email dated 20.03.2007 (Annexure-R-11) confronted the Insured that Discharge and Delivery Supervision Report mentioned that the manifested quantity of four different items in packages was 924 + 906 +262 +120 and the HM Scrap was in bulk. Quantity landed at Kandla was therefore not short, when discharged. The Insured in his reply email dated 13.04.2007 (Annexure-R-12) stated that shortage has been projected for the consignment of CR Sheets, CR Coils and HR Plates as the difference of number of pieces mentioned in the manifest and received on discharge from the vessel and for bulk consignment of HM Scrap as weighment difference between the quantity discharges and quantity removed from the storage site. There is no documentary evidence confirming the short landing in terms of weight of the consignment, received from Kandla Port Trust. In the Certificate of Kandla Port Trust (Annexure-A-11), shortage of 10 Steel Plates has been shown. Some of the Weighment Certificates (Annexure-A-11) are unsigned and unstamped. In the absence of any certificate that how many weighment certificates were issued for the whole cargos, shortage cannot be determined on its basis. In the report of Gupta & Associates (Assessors) Pvt. Ltd. dated 01.02.2007 (Annexure-A-15) shortage of 10 HR Steel Plates and 98.325 MTs of HMS Scrap were shown. In Addendum dated 01.01.2008, quantity of HMS Scrap was shown as 99.735 MTs. In Bill of Lading [Annexure-A-3 (page-29)], HMS Scrap was shown in bulk and not in number. As such certificate of Kandla Port Trust dated 05.04.2007, does not corroborate with the report of Gupta & Associates (Assessors) Pvt. Ltd. in which it has been mentioned that there was short landing of HMS Scrap. The findings of the Surveyors and the Insurer that the shortage of the material as claimed by the Insured was not proved does not suffer from any illegality.
8. The Insured in his final claim bill has bifurcated the damaged materials in two heads i.e. (a) damage claim bill of CR sheets (MUL) and (b) ‘damage claim bill of CR sheets (RKG). Three separate calculation sheets are attached i.e. one relates to 1.225 MT and other of 49.980 MT relates to RKG and third relates to 375.455 MT of MUL. P. Dave & Sons, in their report dated 28.03.2007, mentioned that the damaged materials were transported from Kandla Port before his verification. This statement is being challenged on the ground that in the report dated 28.03.2007 it has been admitted by the surveyor that he had attended the Port on 16.10.2006 and subsequently. In the report dated 28.03.2007, it has been mentioned that after receiving instructions to carry o
Please Login To View The Full Judgment!
ut survey on 16.10.2006, he immediately contacted Clearing & Forwarding Agent for arranging survey/ inspection. At that time they were given to understand that the cargo had already been transported and no cargo was left at the port. From the demurrage charges paid by the complainants it appears that the consignments were stored till 27.10.2006 at Kandla. Mr. Pankaj A Dave filed his Affidavit of Evidence in which he had stated that after segregation of the damaged material, further inspection of the consignment could not be carried out. The report of G.P.Dave and Sons does not throw any light to assess the loss of the damaged materials. When the consignments were brought to Faridabad second Surveyor was appointed to verify and assess the loss of the damaged materials. The Insured in his letter dated 14.03.2007 (Annexure R-10) written to second surveyor has admitted that damage materials were sold before verification of second surveyor. The Insured have not brought on record, the papers relating to the amount realised from the sale of damaged materials. In the circumstances, the report of second Surveyor that he was not permitted to verify the damaged materials, cannot be held to be illegal. Before this Commission also the complainants have not filed any paper showing the sale price realised from the damage materials. In such circumstances, the quantity of damaged material is not proved nor is it proved that any CR sheet were sold for lesser price to prove that it were damaged than its actual price in market. Therefore, from the evidence on record it is also not proved that any CR sheet was damaged and what was the actual quantity of the damaged sheets. Claim mitigation charges are also not payable inasmuch as the damaged material is not proved. ORDER In view of aforesaid discussions, I do not find any illegality in the repudiation letter. The complaint is dismissed.