The assured's duty to preserve rights against carriers and third parties in order to protect the insurer's right of subrogation.

Mr. Justice S.A. Kader, President—This is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

2. The complainant is an enterprise manufacturing fire fighting equipments. It placed an order with M/s. Fritz Emde, West Germany for the supply of a Dry Powder Filling and Emptying Machine. The machineries and accessories packed in 2 crates were transported by sea by Vessel ‘Alum Bay’ from Bremen to Madras Port. The complainant had taken up a policy of marine insurance with the first Opposite Party for a sum of Rs. 1,75,000/-. The complainant cleared the consignment through the clearing agents Southern Shipping Services on 27.10.89. When the crates were examined at the premises of the complainant, certain accessories and machineries were missing from the crates. Since the shortage was noticed only when the consignment was opened it could not be notified to the Customs Authorities and no duty remission could be obtained for the shortage. The complainant preferred a claim with the first Opposite Party. The claim was rejected by the first Opposite Party on 10.1.92 on the ground that there was no documentary evidence for supporting this claim. Hence this complaint for payment of the insured amount of Rs. 1.75 lakhs with compensation in the sum of Rs. 2,00,000/- and interest. The second Opposite Party Port Trust of Madras is impleaded only as a formal party and no relief is claimed against it.

3. The claim is resisted by the first Opposite Party. It is denied that there was any deficiency in services. The claim was rejected on 10.1.92 after considering all records and documents on the ground that the loss was not established. It is pointed out that the landing remark indicated at the time of the dicharge of the goods that the planks were broken. But the complainant has not given any notice to the Steamer or asked for steamer survey. The complainant’s clearing agent had opened the consignment in the presence of the Customs Authorities for the purpose of assessment to duty and even at that stage the loss, if any, would have been brought to the notice of the Opposite Party authorities, but nothing has been done. It is then pointed out that if there had been any loss in transit, such loss ought to have occurred while the consignment was in the custody of the carrier or Port Trust. The complainant ought to have immediately notified the carried and arranged for steamer survey. The complainant ought also to have issued a statutory notice to the Port Trust under Major Port Trust Act and taken legal proceedings against the Port Trust. The complainant has thus failed to protect the rights of recovery of the insurer against the carrier and the Port Trust and hence the first Opposite Party is entitled to reject this claim of the complainant.

4. The second Opposite Party has filed a counter that it is an unnecessary party. It is pointed out that while destuffing, the planks of one of the crates were found broken as is evident from the remarks recorded in the destuffing tally receipt issued to and acknowledged by the representative of tine Steamer Agent.

5. Exhs. Al to A18 and Bl to B19 are marked by consent. Proof affidavits are filed. No oral evidence has been let in.

6. The preliminary point which arises for consideration is whether the claim is maintainable.

7. Point:—The complainant has placed an order with M/s. Frite Emde, West Germany for the supply of a Dry Powder Filling and Emptying Machines. The machineries and accessories packed in two crates were transported by sea by vessel ‘Alum Bay’ from Bremen to Madras Port. The complainant has also taken up a policy of Marine Insurance with the first Opposite Party insurer. The consignment was cleared by the complainant through its clearing agent Sourthern Shipping Services on 27.10.89. According to the complainant when the consignments opened at its end, they found some accessories missing and they were

(1) Liquid Feeding Pump

(2) Potentiometer for regulating Pump

(3)