w w w . L a w y e r S e r v i c e s . i n



Tuli International Through it is Partner, Neeraj Tuli v/s New India Assurance Co. Ltd. Through Sh. A.K. Longai, Manager, Duly Contituted Attorney & Another


Company & Directors' Information:- THE NEW INDIA ASSURANCE COMPANY LIMITED [Active] CIN = L66000MH1919GOI000526

Company & Directors' Information:- THE NEW INDIA ASSURANCE COMPANY LIMITED [Active] CIN = L99999MH1919GOI000526

Company & Directors' Information:- THE NEW INDIA ASSURANCE COMPANY LIMITED [Active] CIN = U99999MH1919GOI000526

Company & Directors' Information:- K N INTERNATIONAL LIMITED [Active] CIN = U45201UP2002PLC026841

Company & Directors' Information:- V AND S INTERNATIONAL PVT LTD [Active] CIN = U74899DL1992PTC049964

Company & Directors' Information:- S S A INTERNATIONAL LTD [Active] CIN = U15122DL1995PLC068186

Company & Directors' Information:- A T N INTERNATIONAL LIMITED [Active] CIN = L65993WB1983PLC080793

Company & Directors' Information:- D D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB1995PTC016929

Company & Directors' Information:- T K INTERNATIONAL LIMITED [Active] CIN = U55101OR1982PLC001092

Company & Directors' Information:- N R INTERNATIONAL LIMITED [Active] CIN = L74999WB1991PLC051738

Company & Directors' Information:- K J INTERNATIONAL LIMITED [Active] CIN = L15142PB1993PLC011274

Company & Directors' Information:- A K S INTERNATIONAL LIMITED [Active] CIN = U74899DL1996PLC076327

Company & Directors' Information:- S P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70100WB1994PTC063228

Company & Directors' Information:- B. K. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999DL2006PTC157013

Company & Directors' Information:- R S C INTERNATIONAL LIMITED [Active] CIN = L17124RJ1993PLC007136

Company & Directors' Information:- J C INTERNATIONAL LIMITED [Active] CIN = U51109WB1999PLC089037

Company & Directors' Information:- M T L INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U24219UP2001PTC025965

Company & Directors' Information:- T C N S INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U51311DL1996PTC080096

Company & Directors' Information:- K V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL2003PTC120770

Company & Directors' Information:- G N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2001PTC110766

Company & Directors' Information:- S H A M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U45200MH1994PTC079867

Company & Directors' Information:- M K INTERNATIONAL LIMITED [Active] CIN = U51909DL1996PLC083430

Company & Directors' Information:- V. G. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101DL2007PTC162540

Company & Directors' Information:- D R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24132DL1996PTC079867

Company & Directors' Information:- R H INTERNATIONAL LIMITED [Active] CIN = U72900DL2007PLC159452

Company & Directors' Information:- G & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17120DL2012PTC234047

Company & Directors' Information:- A & D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U36109RJ2007PTC024176

Company & Directors' Information:- K A I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U13100OR2007PTC009647

Company & Directors' Information:- C G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U99999MH1996PTC097577

Company & Directors' Information:- K C INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060402

Company & Directors' Information:- M P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29130MH1997PTC107943

Company & Directors' Information:- A S INTERNATIONAL LIMITED [Strike Off] CIN = U74899DL1993PLC056158

Company & Directors' Information:- S. D. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UP2008PTC036047

Company & Directors' Information:- S AND I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1995PTC072210

Company & Directors' Information:- L T INTERNATIONAL LIMITED [Active] CIN = U74899DL1999PLC097892

Company & Directors' Information:- A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51102GJ2008PTC053840

Company & Directors' Information:- S J M INTERNATIONAL LIMITED [Active] CIN = U52110DL1987PLC028571

Company & Directors' Information:- S B S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL1997PTC085878

Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- R. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51225DL2008PTC177405

Company & Directors' Information:- B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50300PB2014PTC038889

Company & Directors' Information:- S F INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999PB2000PTC023654

Company & Directors' Information:- I K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066267

Company & Directors' Information:- C K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1991PTC045625

Company & Directors' Information:- L A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB2010PTC033683

Company & Directors' Information:- H R V INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899UP1993PTC057665

Company & Directors' Information:- K P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24110GJ2007PTC050026

Company & Directors' Information:- V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U85100MH1997PTC109647

Company & Directors' Information:- N N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL1999PTC099094

Company & Directors' Information:- S R V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74140DL2012PTC243060

Company & Directors' Information:- TULI INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29253DL2006PTC157021

Company & Directors' Information:- A. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51900MH2010PTC228539

Company & Directors' Information:- B R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1993PTC055562

Company & Directors' Information:- M J INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899DL1982PTC013231

Company & Directors' Information:- D N INTERNATIONAL LIMITED [Active] CIN = U36911TN1996PLC034205

Company & Directors' Information:- M. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70102DL2007PTC164267

Company & Directors' Information:- M G M INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC013580

Company & Directors' Information:- J J INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51109DL1992PTC047657

Company & Directors' Information:- H D INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060720

Company & Directors' Information:- K. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2012PTC049338

Company & Directors' Information:- J & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18109DL2012PTC238392

Company & Directors' Information:- K R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17291DL2008PTC172188

Company & Directors' Information:- S P INTERNATIONAL PVT LTD [Strike Off] CIN = U99999UP1965PTC003091

Company & Directors' Information:- B M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048736

Company & Directors' Information:- S G INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1998PTC086547

Company & Directors' Information:- B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15412WB1999PTC089316

Company & Directors' Information:- V A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL2000PTC104712

Company & Directors' Information:- S. J. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U27310DL2007PTC169438

Company & Directors' Information:- G. S. C. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29120MH1994PTC080380

Company & Directors' Information:- A J INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1994PTC060818

Company & Directors' Information:- J S M INTERNATIONAL LIMITED [Active] CIN = U85110KA1996PLC020046

Company & Directors' Information:- N M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74120MH2012PTC234492

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- S S M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC089876

Company & Directors' Information:- A P J INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909HR2010PTC040304

Company & Directors' Information:- T. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72900DL1997PTC091049

Company & Directors' Information:- V R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2011PTC043952

Company & Directors' Information:- M E C INTERNATIONAL PRIVATE LIMITED [Active] CIN = U33111GJ1963PTC082423

Company & Directors' Information:- J K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01100MH2004PTC144492

Company & Directors' Information:- D. S. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2010PTC039954

Company & Directors' Information:- R B INTERNATIONAL LTD [Strike Off] CIN = U18101WB1993PLC059515

Company & Directors' Information:- P Y INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U51102RJ1995PTC010133

Company & Directors' Information:- R C INTERNATIONAL LIMITED [Strike Off] CIN = U51909TG1991PLC012477

Company & Directors' Information:- I AND A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72200TG1995PTC019936

Company & Directors' Information:- P V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1998PTC094598

Company & Directors' Information:- I B INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200DL2000PTC105735

Company & Directors' Information:- A M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066228

Company & Directors' Information:- Z. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U21098MH2010PTC210735

Company & Directors' Information:- J R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909TN2002PTC048744

Company & Directors' Information:- L S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74999DL2009PTC193390

Company & Directors' Information:- M B INTERNATIONAL PVT LTD [Strike Off] CIN = U52190DL2001PTC110572

Company & Directors' Information:- O K R INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900DL1996PTC077152

Company & Directors' Information:- B B C INTERNATIONAL PVT LTD [Strike Off] CIN = U25209WB1984PTC037383

Company & Directors' Information:- K S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909MH2001PTC134345

Company & Directors' Information:- A TO Z INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51101TN1992PTC022507

Company & Directors' Information:- C & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900MH1982PTC026718

Company & Directors' Information:- J S INTERNATIONAL PVT LTD [Strike Off] CIN = U51900MH1982PTC027604

Company & Directors' Information:- A C INDIA INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1989PTC034784

Company & Directors' Information:- INDIA INTERNATIONAL COMPANY PRIVATE LIMITED [Active] CIN = U51228MH1955PTC009483

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- R K INTERNATIONAL PVT LTD [Strike Off] CIN = U63040PB1982PTC004926

Company & Directors' Information:- L & P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52100DL2016PTC292025

Company & Directors' Information:- R B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52300DL2012PTC243998

Company & Directors' Information:- P AND P INTERNATIONAL PRIVATE LIMITED. [Strike Off] CIN = U24100OR1993PTC003244

Company & Directors' Information:- E C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1982PTC013146

Company & Directors' Information:- M M INTERNATIONAL PVT LTD [Converted to LLP] CIN = U51312DL1977PTC008583

Company & Directors' Information:- A K INDIA INTERNATIONAL PRIVATE LTD [Strike Off] CIN = U45201DL1981PTC012389

Company & Directors' Information:- O P INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U55101PB2013PTC037499

Company & Directors' Information:- J & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900PB2013PTC037302

Company & Directors' Information:- Y. A. INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900RJ2012PTC040431

Company & Directors' Information:- SH CORPORATION PRIVATE LIMITED [Active] CIN = U70200PN2013PTC147847

Company & Directors' Information:- D & A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262713

Company & Directors' Information:- R L INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18204UP2016PTC076344

Company & Directors' Information:- V P S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U93030UP2014PTC066242

Company & Directors' Information:- J V INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51102DL2012PTC240197

Company & Directors' Information:- S R L INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U20296AP2013PTC085533

Company & Directors' Information:- M D INTERNATIONAL LIMITED [Active] CIN = U74140MH1981PTC025007

Company & Directors' Information:- D C M INTERNATIONAL LTD. [Strike Off] CIN = U99999DL2000PTC004208

    Revision Petition No. 1401 of 2011

    Decided On, 06 December 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT & THE HONOURABLE MR. DINESH SINGH
    By, MEMBER

    For the Petitioner: Suresh K. Jindal, Advocate. For the Respondents: R1, Kapil Chawla, Advocate, R2, Deleted.



Judgment Text


Dinesh Singh, Member

1. This Revision Petition has been filed under Section 21(b) of The Consumer Protection Act, 1986, hereinafter referred to as the 'Act', challenging the Order dated 10.01.2011 of The State Consumer Disputes Redressal Commission, Haryana, hereinafter referred to as the ‘State Commission’, passed in Appeal No. 2655 of 2006 arising from the Order dated 10.10.2006 in Complaint Case No. 367 of 2004 passed by The District Consumer Disputes Redressal Forum, Panipat, hereinafter referred to as the ‘District Forum’.

2. The Petitioner herein, Tuli International, a Partnership Firm, was the Complainant before the District Forum and the Opposite Party No. 1 before the State Commission, and is hereinafter being referred to as the ‘Complainant Firm’.

The Respondent No. 1 herein, The New India Assurance Company Ltd., was the Opposite Party No. 1 before the District Forum and the Appellant before the State Commission, and is hereinafter being referred to as the ‘Insurance Company’.

The Respondent No. 2 herein, Miracle Textile Pvt. Ltd., Johannesburg, South Africa, was the Opposite Party No. 2 before the District Forum and the Opposite Party No. 2 before the State Commission, and is hereinafter being referred to as the ‘Consignee Company’.

3. In respect of the Consignee Company, this Commission, vide its Order dated 04.04.2014, had directed that:

“Learned counsel for petitioner states that since respondent no. 2 is a proforma respondent, petitioner does not claim any relief against respondent no. 2.

“In view of the above statement made by learned counsel for petitioner, since respondent no. 2 is stated to be a proforma respondent, petition against respondent no. 2 stand dismissed. Name of respondent no. 2 be deleted from the array of the parties.”.

4. It is pertinent that the Insurance Company was represented on the said date, i.e. 04.04.2014, through Mr. R.B. Shami, Advocate. Its objection is not recorded.

It is also pertinent that the Insurance Company did not subsequently seek review / re-call of the Order of 04.04.2014.

5. Brief facts, succinctly put, are that the Complainant Firm, the Exporter, raised an Invoice on 03.01.2003 for export of 180 Bales of Dyed Blended Fabric to the Consignee Company, the Importer.

The Complainant Firm took a “Marine Cargo Specific Voyage Policy”, hereinafter being referred to as the ‘Policy’, from the Insurance Company on 07.01.2003 in respect of the said consignment of 180 Bales of Dyed Blended Fabric, from “Panipat” to “Anywhere in South Africa”, by “Vessel / Road / Rail”. Premium of Rs. 3077/- was paid. The sum assured was Rs. 11,98,782/-.

On the Consignee Company intimating at Johannesburg on 11.02.2003 that 80 Bales were short, the Surveyor undertook its initial inspection at the Consignee Company’s premises on 11.02.2003 (itself). The Surveyor then made its report on 04.03.2003 at Johannesburg.

The Insurance Company kept the claim pending, it did not take a decision thereon, either to allow it, or to repudiate it.

The Complainant Firm filed a Complaint before the District Forum on 28.09.2004. The District Forum vide its Order dated 10.10.2006 allowed the Complaint. The Insurance Company appealed in the State Commission. The State Commission vide its impugned Order dated 10.01.2011 allowed the Appeal and dismissed the Complaint. The instant Revision Petition was filed by the Complainant Firm before this Commission on 28.04.2011.

6. We heard arguments from the learned Counsel for both sides, and perused the entire material on record including inter alia specifically the Order dated 10.10.2006 of the District Forum and the impugned Order dated 10.01.2011 of the State Commission.

7. We may, first, see the salient chronology of the case:

[a] The Complainant Firm raised an Invoice on 03.01.2003 for export of 180 Bales of Dyed Blended Fabric to the Consignee Company. The “Pre-Carriage” was by “Rail”, “Port of Loading” was “Mumbai”, “Port of Discharge” was “Durban” and “Final Destination” was “Johannesburg, South Africa”.

[b] The Containerization was undertaken on 07.01.2003 at Panipat, India in the presence of an agent of the Insurance Company and of officials of the Customs & Central Excise Department.

[c] The Insurance Company issued the subject Policy on 07.01.2003 for a consignment of “180 Bales” of “Dyed Blended Fabric”, from “Panipat” to “Anywhere in South Africa”, by “Vessel / Road / Rail” for an assured sum of “Rs. 11,98,782/-”. Receipt of the Premium of “Rs. 3077/-” was also issued on 07.01.2003.

[d] On 11.02.2003 the Consignee Company intimated shortage of 80 Bales at Johannesburg.

[e] The South African agent of the Insurance Company, one M/s W.K. Webster & Co. Ltd., appointed a Surveyor, one M/s Rennie Murray & Co. Ltd.

[f] The Surveyor made its report on 04.03.2003 at Johannesburg.

[g] On its claim not being settled, the Complainant Firm filed a Complaint before the District Forum on 28.09.2004.

[h] The District Forum vide its Order dated 10.10.2006 allowed the Complaint.

[i] The State Commission vide its impugned Order dated 10.01.2011 allowed the Appeal and dismissed the Complaint.

8. We note that two substantive grounds were raised by the Insurance Company in its Written Version:

[a] “That the complainant has not submitted the original policy bearing no. 353900/21/02/00410 before the Insurance Co. or before the Hon’ble Forum. The original insurance policy in the marine claim is negotiable and transferable in case of export and import” and

[b] “That the complainant has not submitted the proof of loss before the Insurance Company which is very much necessary for the proper decision/settlement of the claim”.

9. The District Forum has dealt with both these grounds in paras 6 and 7 of its Order dated 10.10.2006:

“6. After hearing both the sides at length and having gone through the case file very carefully we are of the view that the respondents are negligent in their services. This is because, so far as the submission of original policy is concerned, it is stated by the Ops that the original insurance policy in the marine claim is negotiable and transferable in case of export and import. Earlier the OPs had moved an application during the pendency of the case. The application for production of original marine policy moved by the Ops was dismissed vide order 13.09.2005 with cost of rs. 1000/- The Ops never preferred any appeal or revision against that order. Further, the copy of the original marine policy is exhibited as Ex. C27 on the file and the same was not OBJECTED TO by the respondents. Further more, during the pendency of the arguments of this case the Ld. counsel for the petitioner had produced the original policy before this forum but as the copy thereof has already been on the file duly exhibited, so there was no need to retain the original on the file and the same was returned. As the copy of the original policy was supplied by the petitioner to the Ops as the time of submission of the claim form and the same is the document issued by the OPs, so the complaint in hand cannot be said to be pre mature and the petitioner has already supplied the desired document to the OPs and in such circumstances, the contention of the OPs that the complaint is pre mature is devoid of any force and is hereby reject. Even if the theft was committed in the year of 2003 and till date the policy is not misused so, the contention of the OPs is devoid and at this stage there are no chances of the policy for any negotiation or transferable purposes.”

“7. The second submission of the Ops that proof of theft is not furnished is also devoid of any force. This is because from the report of surveyor W.K. Webster and Co. Ltd. he has stated the cause of loss “the cause of loss can be attributed to theft by person and / or person unknown at some stage during the course of transit which resulted in the shortages as described herein”. Thus, the cause of theft is not disputed and whatever may; it is the duty of the OPs to know the cause of theft especially when in this case in the case bearing FIR No. 357 dated 29.9.2003 u/s 406/420/411 IPC the thief were apprehended it also came to the notice of the police that the goods so stolen from the container was sold by the thieves, so, from the report of WK Webster surveyor and police action the cause of theft was amply clear but the OPs kept lingering on the matter for the reasons known to them. Further, so far as the letter dated 15.8.2003 written by W.K. Webster and Co. Ltd (Surveyour) to Rannie Murry and Co. Pvt. Ltd. South Africa the contents that “bearing in mind the container arrived with the original seals as specified on the ocean Abill of lading intact, a shipper’s load Stow and Count Container is involved and as there is no formal Indian pre shipment containersation, report; establishing that the full shipment was loaded to the container in India, we do not believe underwriters liability has been established” …….. is concerned, to disbelieve this thing there are several reason i.e. firstly, as and when any premises, goods or vehicle is insured the Officers of the Insurance companies do inspect the goods, premises or vehicle and assess or verify the things are insured and only then the things are insured. And secondly the goods at the time of loading at Panipat was inspected by the Central Excise Department, as well Insurance Company and second, it was checked by the Custom Department at Delhi and Ports and as such the question of loading of less bundles at Panipat doesnot arises at all and further more, when the goods to the required quality is despatched from Panipat and for any of the reason it may be less in the way by way of theft or for any reason, then in our opinion the Insurance company is liable to compensate the petitioner because the Insurance company is getting premium for compensating the petitioner for theft or otherwise or any incident as specified in the policy.”

10. In passing its impugned Order dated 10.01.2011, the State Commission agreed with the contentions of the Insurance Company.

The State Commission [a] relied principally on the Surveyor’s report, [b] observed that the Complainant Firm did not provide original documents and [c] in effect based its findings on the premise that the onus was on the Complainant Firm to establish that the theft / loss did not occur at its end.

Relevant extracts of the appraisal made by the State Commission are reproduced below:

“We find force in the contention raised on behalf of the appellant-opposite party No. 1. It is a case wherein the complainant has failed to prove its claim of shortage of 80 bales alleging not reached at the destination. The perusal of the report of the surveyor reveals that the container was received at the destination intact and there was no tampering with it and the shortage, if any, was due to the non-supply of eighty bales by the complainant for sending it to the destination and thereafter lodged a false claim with the Company. When the requisite original documents were sought by the surveyor, the complainant failed to supply these documents. We are sorry to observe here that in Panipat whenever the goods are exported to a foreign country and shortage of the transported goods is reported, thereafter false and fabricated claim is lodged by the claimant with the Insurance Company. The complainant preferred to file a claim before the District Consumer Forum avoiding its responsibility to cooperate with the surveyor. In the instant case an independent surveyor was appointed who submitted his report but the same has not been taken into consideration by the District Consumer Forum in its true perspective. It has been settled in a catena of judgments by this Commission, Hon’ble National Commission and the Hon’ble Apex Court of the Country that the surveyor report is an important document unless it is proved contrary by leading cogent and convincing evidence which is the case of the complainant. On behalf of the complainant, there is nothing on record to prove the surveyor report is ambiguous and for that reason this report cannot be disbelieved. The District Forum has failed to appreciate the cogent and convincing evidence produced by the opposite parties and as such the impugned order passed by the District Forum is not sustainable in the eyes of law.

“Before parting with the order it is pertinent to mention here that Panipat is an industrial town and export several items to various countries, and there is hardly any case in the town with respect to the industrial units exporting items to abroad where some kind of shortage is not reported. In the instant case, as the complainant has failed to furnish the required original documents to the Company with respect to the shortage of 80 bales during transit, except the correspondence which itself is not sufficient to hold the Company liable deficient in service.

“As a sequel to our aforesaid discussion, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.”

11. To have fair appreciation of the Surveyor’s report, we may reproduce, verbatim, relevant extracts therefrom:

SHIPMENT HISTORY:

The subject shipment consisting of 180 packages of fabric was stuffed into a 40 FCL container number FBLU 4091070 which came forward from Mumbai to Nhava Sheva on board the vessel “P & O Nedlloyd Everest” Voyage No. 249 at which port it was transshipped on board the vessel “Astor” voyage No. S249 to Johannesburg via Durban, South Africa against Bill of Lading No. LNLUNDL1360 dated 10 January 2003 at Mumbai, India.

The copy House Bill of Lading No. DEL/JHN/0860 dated 10 January 2003 at New Delhi, India provided to us appears free from any endorsement relevant to the condition of the cargo.

INLAND TRANSIT:

Following arrival of the vessel at Durban Harbour on or about the 3 February 2003, the container under discussion was uplifted by Spoornet and railed to their terminal at City Deep, Johannesburg.

Subsequently, the container was collected by Cross Country Containers and road hauled to consignees premises, final delivery taking place on the 11 February 2003.

On consignees removing the two seals namely a ZZZ red bolt seal number 876200 and a New Delhi customs while bolt seal number 305488 (noted as the manifested seal) and opening the container doors, a large area adjacent to the doors was seen to be vacant, indicating the possibility that theft had occurred.

Interested parties were notified and survey was requested.

ATTENDANCE REPORT:

On our attendance at consignees on the 11 February 2003, we were shown container number FBLC 4091070, which had been placed to one side awaiting our inspection.

Inspection of which revealed that the two seals namely ZZZ red bolt seal number 876200 and a New Delhi customs seal number 305488 had been broken and the container doors opened prior to our attendance.

PACKING:

The bales of fabric were individually packed within polypropylene woven bags, metal strapping bands were utilized for added protection.

The overall method of packing appeared adequate to withstand the normal hazards of transit.

CAUSE OF LOSS:

The cause of loss can be attributed to theft by person and/or person unknown at some stage during the course of transit, which resulted in the shortage as described herein.

On contacting Portnet, Durban, we were advised by their personnel that container number FBLC 4091070 was discharged from the vessel and despatched from the terminal bearing seal number 305488 the manifested seal).

On contacting Spoornet we were advised by their personnel that the container arrived and was despatched from their terminal bearing ZZZ red bold seal number 876200, no other seal number was noted.

As mentioned previously, we were advised by consignees that upon their personnel attempting to break the New Delhi customs white bolt seal number 305488 (the manifested seal), the seal slipped through the locking ring. Inspection of the seal however revealed that same had been subjected to a large amount of damage whilst consignees attempted to break the seal, which we believe led to same being able to slip through the locking ring (see attached photocopy of seals).

We therefore believe that the theft took place at some stage prior to and/or during containerization.

Notwithstanding the above, it is possible that the shortage was due to short shipment by the supplier however, we have been advised that customs do not seal the container until the manifested quantity is packed within the container.

RECOVERY:

In order to protect Underwriters rights of recovery, we have requested that claims be lodged against the appropriate carriers, however, same have not come to hand to date, as soon as same are forthcoming. We shall forward same to your goodselves.

(emphasis supplied)

12. We agree with the State Commission that “- - - the Surveyor report is an important document unless it is proved contrary by leading cogent and convincing evidence - - -”.

13. However, a perusal of the extracts from the Surveyor’s report, quoted in para 11 above, makes it clear that the State Commission has relied only on selected excerpts, and, apparently, principally on the excerpt “- - - it is possible that the shortage was due to short shipment by the supplier - - -”, with eyes closed to the rest of the report as also to the other relevant and material evidence on record.

14. Selected excerpts from the Surveyor’s report, or one particular excerpt therein, cannot be read in isolation, either of the entire report or of the other relevant and material evidence available on record.

15. It is seen that the Surveyor, in its report, has also observed that “Following arrival of the vessel at Durban Harbour on or about the 3 February 2003, the container under discussion was uplifted by Spoornet and railed to their terminal at City Deep, Johannesburg.”

and “Subsequently, the container was collected by Cross Country Containers and road hauled to consignees premises, final delivery taking place on the 11 February 2003.”

and “On consignees removing the two seals namely a ZZZ red bolt seal number 876200 and a New Delhi customs while bolt seal number 305488 (noted as the manifested seal) and opening the container doors, a large area adjacent to the doors was seen to be vacant, indicating the possibility that theft had occurred.”

and “Interested parties were notified and survey was requested.”

and “On our attendance at consignees on the 11 February 2003, we were shown container number FBLC 4091070, which had been placed to one side awaiting our inspection.”

and “Inspection of which revealed that the two seals namely ZZZ red bolt seal number 876200 and a New Delhi customs seal number 305488 had been broken and the container doors opened prior to our attendance.”

and “The overall method of packing appeared adequate to withstand the normal hazards of transit.”

and “The cause of loss can be attributed to theft by person and/or person unknown at some stage during the course of transit, which resulted in the shortage as described herein.”

and “We therefore believe that the theft took place at some stage prior to and/or during containerization.”

and “Notwithstanding the above, it is possible that the shortage was due to short shipment by the supplier however, we have been advised that customs do not seal the container until the manifested quantity is packed within the container.”

and recommended that “In order to protect Underwriters rights of recovery, we have requested that claims be lodged against the appropriate carriers, however, same have not come to hand to date, as soon as same are forthcoming. We shall forward same to your goodselves.”.

16. No fact or reason to make the assertion that “We therefore believe that the theft took place at some stage prior to and/or during containerization.” is visible, in the entire report of the Surveyor.

17. A perusal of the Surveyor’s report shows that it suffers from inner-inconsistencies.

One example being that, on the one hand, it first states “- - - The cause of loss can be attributed to theft by person and/or person unknown at some stage during the course of transit, which resulted in the shortage as described herein.- - -” and, on the other hand, it then goes on to state “- - - We therefore believe that the theft took place at some stage prior to and/or during containerization.- - -”.

Another example being that, on the one hand, it first states “Notwithstanding the above, it is possible that the shortage was due to short shipment by the supplier - - -” and, on the other hand, it then goes on to state “- - - however, we have been advised that customs do not seal the container until the manifested quantity is packed within the container.”; and thereafter it recommends that “In order to protect Underwriters rights of recovery, we have requested that claims be lodged against the appropriate carriers- - -”.

18. The Surveyor in its report inter alia states that after arrival at Durban harbour, the Container was uplifted and railed to Johannesburg, then collected and road hauled to the Consignee Company’s premises, where the Consignee Company removed two seals, and, on opening the Container doors, intimated that it found a large area adjacent to the doors to be vacant, indicating possibility that theft had happened, thereafter interested parties were informed and survey requested, the Surveyor first inspected the consignment on 11.02.2003 at the Consignee Company’s premises, where the Container had been placed on one side to await its inspection.

The eventuality of theft / loss having occurred post arrival, at Durban harbour, in rail transit or in road transit, or in the Consignee Company’s premises, cannot be ruled out. This has, but, not been investigated by the Surveyor.

19. The Insurance Company took no action to resolve, with its South African Agent / Surveyor, the out-and-out incongruities, inner-inconsistencies and gaps in the Surveyor’s report.

20. The Insurance Company has failed to explain that even when a copy of the Policy was placed as evidence before the District Forum, and its original was produced before the District Forum, what prevented it, the Insurance Company, from proceeding further with its examination and decision on the claim, which was its fundamental duty, without taking continuous recourse, for about one and a half decades of litigation, behind a ground that the original Policy was not produced by the Complainant Firm.

In such facts and situation, when a copy of the Policy was placed as evidence before the District Forum, and its original was produced before the District Forum, it is difficult to understand the Insurance Company’s contention in its Written Version that “the complainant has not submitted the original policy bearing no. 353900/21/02/00410 before the Insurance Co. or before the Hon’ble Forum.”.

21. The State Commission has also overlooked that a copy of the Policy was placed in evidence before the District Forum and its original was produced before the District Forum, and as such nothing prevented the Insurance Company from discharging its fundamental duty of examining and deciding the claim.

22. The theft / loss is an admitted fact, it is acknowledged by the Surveyor in its report, it is admitted to by the Insurance Company in its Written Version.

The State Commission has overlooked that theft / loss is an admitted fact, it does not need to be “proved”.

23. The State Commission has also overlooked a pertinent material and fundamental factum that without inspection by an agent of the Insurance Company during the Containerization, and without the agent being satisfied with the quantity and the safety in packing, the Policy would not (and should not) have been issued. The Policy was issued (only) after the satisfaction of the agent of the Insurance Company.

Similarly, without inspection by officials of the Customs & Central Excise Department during the Containerization, and without the officials of the Customs & Central Excise Department being satisfied with the quantity in the consignment being as manifested, the Customs & Central Excise Department would not (and should not) have allowed transportation of the consignment.

24. There is nothing on record to suggest that the Insurance Company took action against its agent(s), who were present during the Containerization at Panipat, for being negligent / having connived with the Complainant Firm etc. in passing scrutiny during Containerization, or that it made any complaint with the Customs & Central Excise Department in respect of its official(s) who cleared the Containerization at Panipat.

25. If that be so, we fail to understand the basis on which the Insurance Company has, in effect, put the onus on the Complainant Firm to show that the theft / loss was not due to under-supply in its consignment by the Complainant Firm. The State Commission, too, has overlooked this aspect.

26. With self-apparent incongruities, inner-inconsistencies and gaps in the Surveyor’s report, the Insurance Company was expected and required to get to the root of the theft / loss, covering the whole spectrum, from Containerization at Panipat, to theft / loss being averred to by the Consignee Company at its premises in Johannesburg. It was its responsibility, and not of the Complainant Firm, to get to the root of the theft / loss, and it had the wherewithal and the agencies therefor.

27. Rather than undertaking a fair and complete investigation, it put the onus on the Complainant Firm, the insured, to show as to how the theft / loss occurred, to prove that the theft / loss was not due to under-supply in its consignment by the Complainant Firm.

28. If that be the way, the whole purpose of taking an insurance policy is defeated.

The District Forum has rightly observed in para 8 of its Order that:

“8. Further the Insurance company’s plea that the claim is lodged at the later stage is also devoid of any force. This is because till 15.8.2003 the matter remained pending with the M/S W.K. Webster and Company Limited who deputed Johanaaes Burg to conduct the survey and the said Agent vide letter 15.8.2003 also took the stand that the goods was supplied less at India. For raising such objection the OPs are estopped by their act and conduct at this stage. As discussed above, the officers of the Insurance companies do inspect the premises, goods or vehicles personally before insuring the same and secondly the export goods is always inspected and sealed at the place of departure and arrival and as also in the middle at Delhi and ports. They do open the goods and can check it and do put their seals. If the goods for any of the reason is reduced in the way then the petitioner is not blamed for the same. And if even when the loss is proved which is even not denied by the OPs and even then the OPs deny the claim of the petitioner, then there will be no use; for obtaining the policy by the insurer, rather the insurer must do the duty of a guard to save his goods, instead of obtaining an insurance policy.

“On the one hand the Surveyour W.K. Webster is stating that the supply was short from Panipat and on the other hand in his report under the head CAUSE OF LOSS he has stated that “Notwithstanding the above, it is possible that the shortage was due to short shipment by the supplier. However, we have been advised that customs do not seal the container until the manifest quality is packed within the container.

“As is clear from the above discussion the surveyour M/S W.K. Webster, whose report is on the file, on the one hand is stating that the loss of goods may be from Indian supplier and on the other hand said Agency M/S W.K. Webster Pvt. Ltd. has clearly stated in his report that “We have been advised that customs do not seal the container until the manifested quality is packed within the container. When the customs do not seal the container until the; manifested quality is packed, within the container, then how the Indian supplier can be held liable for supply of less quality. So, we think that the report of Surveyour W.K. Webster Pvt. Ltd. is full of surmises and conjectures and from his own report cause of theft is amply clear and the OPs for not paying the amount of compensation to the petitioner are proved to be gross negligent in their services and are liable to pay the compensation to the petitioner from the date of bill 8.4.2003 till realization because the bill is dated 8.1.2003 and three months time was sufficient for the OPs to settle the claim of the petitioner but the same has not yet been settled or repudiated knowingly when the petitioner furnished all the required documents well in time to the OPs.”

29. The critical elements in this case are, one, whether the Complainant Firm had duly undertaken the requisite documentation apropos export of its subject consignment and, two, whether the Complainant Firm had discharged its duty at the time of Containerization of its consignment at Panipat.

30. In respect of the first element, it is an undisputed and admitted fact that there was no flaw or lacuna in the entire gamut of documentation, either with the Insurance Company, or with the Customs & Central Excise Department, or with any other authority.

31. In respect of the second element, it is an undisputed and irrefutable fact that the Complainant Firm, after paying the Premium, discharged its duty of passing inspections by an agent of the Insurance Company and by officials of the Customs & Central Excise Department during Containerization.

32. The Complainant Firm had taken the Policy to cover its risks, including theft / loss. It was not its duty to establish as to how the theft / loss occurred.

If it was to be so alleged, after the theft / loss was averred to by the Consignee Company at Johannesburg, and the Surveyor’s report being what it was, the onus was on the Insurance Company to investigate and show that the Complainant Firm was guilty of under-supplying or that it in any manner manipulated the inspections of the agent of the Insurance Company or of the officials of the Customs & Central Excise Department at the time of Containerization, which onus the Insurance Company did not discharge, and which onus the Insurance Company (erroneously) shifted on the Complainant Firm.

33. That being so, the dilatory and litigious approach of the Insurance Company in dealing with this claim belies reason.

34. Elements like [a] reading in isolation selected excerpts from the Surveyor’s report, ignoring the other assertions contained therein, ignoring the out-and-out incongruities, inner-inconsistencies and gaps therein, the absence of a fair and complete investigation by the Surveyor / the Insurance Company, [b] ignoring that there was no flaw or lacuna in the entire gamut of documentation, either with the Insurance Company, or with the Customs & Central Excise Department, or with any other authority, [c] igno

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ring that the Complainant Firm, after paying the Premium, discharged its onus of passing inspections by the agent of the Insurance Company and by the officials of the Customs & Central Excise Department during the Containerization at Panipat, [d] putting the onus on the Complainant Firm of establishing that the theft / loss did not occur at its end, thereby negating the whole purpose of taking an insurance policy, are manifest in the case. 35. Further, as things obtain, it is difficult to enter into the arena of the role and responsibility of the Consignee Company, when it has been deleted from the array of the parties, and when the decision was not objected to by the Insurance Company, and when no review / re-call application was moved by the Insurance Company apropos the said decision. At this stage, no benefit can accrue to the Insurance Company regarding the assertion made in its brief of written arguments that “Deletion of Miracle Textiles Respondent No. -2 from the array of parties vide Order dated 04/04/2014 of National Commission was illegal. - - -”. 36. The things being so, the benefit, as the situation obtains on date, in 2019, of an event that occurred in 2003, has to go to the insured, the Complainant Firm. 37. We find that the District Forum has, by and large, passed a well-appraised and well-reasoned Order. We also find the Award made in para 9 of its Order to be just and equitable: “9. For the reasons recorded above, we accept the present complaint and direct the OP No. 1 being insurer of the goods’ to pay the sum of Rs. 4,84,356/- to the petitioner together with interest @ 12% from 8.4.03 till the date of realization together with Rs. 3300/- as litigation expenses within a period of 30 days from the date of receipt of copy of this order. The complaint qua the OP no. 2 stands dismissed.” 38. On the other hand, the State Commission has made a perfunctory appraisal, mechanically endorsing the contentions of the Insurance Company, mechanically accepting selected excerpts from the Surveyor’s report. Neither has the State Commission attempted to refute the detailed reasoning made by the District Forum, nor has it made a de novo comprehensive appraisal of its own based on the entire facts and evidence before it. 39. In the light of the above discussion, we set aside the impugned Order dated 10.01.2011 of the State Commission and uphold and confirm the Award made by the District Forum vide its Order dated 10.10.2006. 40. We may add that the Statement of Objects and Reasons of the Act says of “speedy and simple redressal to consumer disputes”. In the instant case, the dispute, relating to the year 2003, has reached the year 2019. The redressal has been neither speedy, nor simple. 41. We cannot rewind time. We can but direct, and do direct, that the Insurance Company through its Chief Executive shall ensure compliance of the Award made by the District Forum vide its Order dated 10.10.2006 within four weeks of the pronouncement of this Order, and file a report-in-compliance before the District Forum within the same period of four weeks, failing which the District Forum shall undertake execution, both for ‘Enforcement’ under Section 25(b) and for ‘Penalties’ under Section 27 of the Act. 42. A copy of this Order be sent by the Registry to the Chief Executive of the Insurance Company in specific reference to para 41 above, within three days of its pronouncement.
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