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2013 Supreme(Cal) 247
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, WEST BENGAL
Debasis Bhattacharya and Jagannath Bag, JJ.
INDIAN CARBON LIMITED - Complainant
Versus
THE NEW INDIA ASSURANCE CO. LTD. & ANR. - Opposite Parties
S.C. Case No. CC/09/2010
Decided on: 15th May, 2013
Prabir Basu ....for the Complainant
Prasanta Banerjee, Pratik Kr. Basu and Sujib Kr. Chakraborty ....for the Opposite Parties
An insurance company is deficient in service if it does not consider the reports of the first appointed surveyors and appoints a second surveyor without giving reasons, and if it violates the provisions of Section 64 UM(3) of the Insurance Act by not specifying the reasons for non-acceptance of the report of the first surveyor.
Headnote:
INSURANCE - Cargo Insurance - Shortage Claim - Surveyor's Report - Appointment of Second Surveyor - Deficiency in Service - Consumer Protection Act, 1986 - Section 2(1)(g) and Section 64 UM(3) of the Insurance Act, 1938.
Fact of the Case:
The Complainant, an importer of raw petroleum coke, filed a complaint against the OPs, insurance companies, for deficiency in service in settling a claim for shortage in two consignments of raw petroleum coke imported from China. The Complainant appointed surveyors to assess the shortage, who submitted reports showing a total shortage of 503.555 MT and 365.818 MT, respectively. The OPs appointed another surveyor, who recommended a lower settlement amount. The Complainant initially accepted the reduced amount but later protested and demanded the balance amount.
Finding of the Court:
The Commission held that the OPs were deficient in service in not considering the reports of the first appointed surveyors and in appointing a second surveyor without giving reasons. The Commission also held that the OPs violated the provisions of Section 64 UM(3) of the Insurance Act by not specifying the reasons for non-acceptance of the report of the first surveyor.
Issues: 1. Whether the complaint case is maintainable? 2. Whether the complaint case is barred by territorial jurisdiction? 3. Whether the Complainant is entitled to the award as prayed for?
Ratio Decidendi: 1. The cause of action arose within the territorial jurisdiction of the Commission as the cargoes were discharged at Sandheads and Haldia. 2. The Complainant is a consumer as the insurance policy was taken to cover envisaged risks and not for commercial purposes. 3. The OPs were deficient in service in not considering the reports of the first appointed surveyors and in appointing a second surveyor without giving reasons. 4. The OPs violated the provisions of Section 64 UM(3) of the Insurance Act by not specifying the reasons for non-acceptance of the report of the first surveyor.
Final Decision: The complaint was allowed, and the Complainant was awarded Rs. 37,82,123.00 along with interest @ 12% p.a. till realization and a litigation cost of Rs. 10,000/-.
The Order of the Commission was delivered by :
Bhattacharya, Member.––The factual matrix of the Complaint's case is that it is an importer of raw petroleum coke from China for its plant in Budge Budge, done through ocean going vessels discharged at Sand heads or Haldia, depending upon the quantity, in the former for heavy shipment, and in the latter for moderate tonnage. As such, in the course of normal business activity, it ordered for two consignments of raw petroleum coke from suppliers in China, being No (1) Invoice Nos. 05SIHLVO421A, 05SIHLVO421B, 051HLVO421BA & 05SIHL421BB all dated 12.05.2005. Total quantity 13150.20 MT Suppliers: Sinoway International Holdings Ltd., 118, Cannaught Road West, Hongkong, and No. (2), Invoice Nos. NC-F-692-1 & NC-F-692-2 both dated 29.10.2005. Total quantity: 8577.71 MT : Suppliers : Mitsubishi Corporation, 6-3, Marunouchi, 2-Chome Chiyoda-KU, Tokyo-100-86, Japan. Out of them, Item No.1 was shipped per vessel M.V. Glyfada to be discharged at Sandheads and Item No.2 was shipped per M.V. Chennai Polivu to be discharged at Haldia Port. Accordingly, the Complainant approached the OP No. 1 with proposals for insurance on such shipments being based on Cost & Freight (C&F) terms and the insurance to be arranged by the buyer, i.e., the Complainant, which were accepted by the OP No.1, who issued Policy No.530/05/21/05/00004 dated 29.04.2005 covering 13150.200 MT per MV Glyfada, and the sum insured inclusive of enhancement of sum insured by endorsement is Rs.8,27,088.00 and Policy No.530705/21/05/00015 dated 07.09.2005 covering 8577.71 MT per MV Chennai Polivu, and the sum insured inclusive of enhancement of sum insured by enhancement is Rs.5,40,77,712.00. The transit clause was from Warehouse to Warehouse. Upon arrival of the vessels at the respective Ports/places of discharge, the Complainant intimated the same to the OP No.1, who appointed M/s. A.B. Thange and Anuj Dutta Roy as Surveyors, in respect of M.V. Glyfada and M.V. Chennai Polivu, respectively, to supervise the discharges of the cargoes and also to assess the shortage or damage, if any, to the cargoes. In their reports, M/s. A.B. Thange shows a total shortage of 503.555 MT vide Survey Report No. Synerg RCP/02 dated 17.06.2005 and Anuj Dutta Roy shows a total shortage of 365.818 MT vide Survey Report No. ADR/Marine/NIA/4238/2005 dated 22.12.2005. Accordingly, the Complainant submitted a detailed claim as per Surveyor's assessment of Rs. 27,54,897.00 in respect of M. V. Glyfada and Rs.20,52,936.00 in respect of M. V. Chennai Polivu, aggregating to Rs.84,07,833.00. After many reminders, the OP NO.3 admitted the claim for Rs. 1,41,925.00 under Policy No.530705/21/00004, M. V. Glyfada and Rs.8,83,785.00 under Policy No.530705/21/00015, M.V. Chennai Polivu vide their letter ref. NERO/Tech/2007 dated 23.11.2007, but it took another four weeks to send the claim vouchers dated 19.12.2007. Since submission of the claim, as the Complainant suffered financial loss due to blockage of capital and/or money for the shortage in consignments and was financially hard hit and in dire need of money, it was compelled to accept the settlement as partial settlement because of the unusual delaying tactics of the OPs. But, soon after receipt of the cheques, the Complainant lodged a protest with the OP vide letter No. Corp/INACL/2/07-08 dated 20.02.2008 demanding the balance amount of the claim, which was replied by the OP No.3 vide letter No. NERO/TECH/MR.CL/FBJ/5755 dated 20.02.2008. The adjustments shown by the OP No.3 in the letter is void, being in violation of policy conditions and Survey Report, baseless, unilateral, coercive, mala fide, etc., in order to deprive the Complainant of the legitimate claim, and thus guilty of deficiency in service. So, the Complainant is entitled to the balance amount of Rs. 37,82,123.00. Accordingly, the complaint case.
2. On the other hand, the case of the OP in the W.V. is that the case is not maintainable either in la
