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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
J.M. Malik, Presiding Member, S.M. Kantikar, Member
Gladstone Agencies Ltd. - Petitioner
Versus
Dugar Brothers Concern & Ors. - Respondents
Revision Petition Nos. 3425, 3434, 3426 of 2014
Decided On : 13-11-2014
For the Petitioner:Ms. Ambika Mehta, Advocate.
For the Respondent:Mr. Prashanth Banerjee and Mr. Pawan Kumar Ray, Advocates.
The court established the liability of the surveyor and the insurance company based on their collaboration and the surveyor's report, interpreting the insurance policy to support its decision.
Headnote:
Insurance - Marine Insurance - Survey and Claims Payable Agent - Marine Insurance Policy modelled after the English Marine Insurance Policy (MAR Form) - Open Cover - [Certificate of Marine Insurance, Survey and claims payable agent, Survey Report]
Fact of the Case:
The complainant ordered goods from Australia, which were damaged during transportation to Nepal. The insurance company repudiated the claim, leading to complaints filed by the complainant. The District Forum held the surveyor and others liable for the losses and awarded compensation.
Finding of the Court:
The court found that the surveyor and the insurance company were working together, and the surveyor's report favored the complainant. The court dismissed the revision petitions, stating that the defenses presented were useless.
Issues: Liability of surveyor and insurance company, Jurisdiction of the Commission, Interpretation of insurance policy
Ratio Decidendi: The court held that the surveyor and the insurance company were working in collaboration, and the surveyor's report favored the complainant, indicating their liability. The court also interpreted the insurance policy to establish liability.
Final Decision: The court dismissed the revision petitions, upholding the liability of the surveyor and the insurance company for the losses and awarding compensation to the complainant.
ORDER :
J.M. Malik, Presiding Member
This common judgment regarding the above said three revision petitions will dispose of all these cases which entail similar question of facts and law.
2. We have taken the facts from the revision petition No. 3426. During the course of its business Dugar Brothers Concern, the complainant, stationed at Nepal, placed an order with M/s. OzE Pulse Pty. Ltd., Australia, for supply of 3085 bags, weighing 136.553 Metric Tonnes of Oriental Mustard Seed in ‘6 x 40’ standard container, which was executed under Invoice No. 1198 dated 9.7.2004, valued at USD 49,648.86 and Bill of Lading No. ZIMUNVK 8310 dated 26.7.2004 from the port of Novorossiysk, Port of Russia to the Port of Kolkata per vessel S.S. LIGURIA V-026. Accordingly, the goods landed at Kolkata Port and, thereafter despatched to Nepal, which was ultimate destination, by Hanuman Roadway, OP No. 4.
3. When the goods arrived at Nepal, damage was detected, it was brought to the notice of the carriers on delivery, and immediately a survey was conducted by the nominated Surveyor, M/s. Gladstone Ltd., Kathmandu, Nepal, which had Office at 17, Dover Road, Kolkata – 700 019 and in their report, it was reported that 1612 bags containing 71.412 Metric Tonnes of Master Seeds was found as damaged condition. At the time of loading by the Consignor, M/s. OzE Pulse Pty. Ltd., Australia, one Marine Insurance Policy, under ‘All Risks’, of Tokio Marine Insurance (Malatsia) Berhad, carrying business in India at 17, Dover Road, Kolkata – 700 019, of OP1, being Open Cover No. W-MA-2-AG-00183, dated 10.7.2004 for a sum assured of USD 55,000.00 from Warehouse to Warehouse up to destination at Nepal, was obtained. Accordingly, the complainant submitted the claim to the OPs on 29.5.2005 for payment of the loss sustained by it. However, OP1 repudiated the claim that such loss hits Clause Nos. 3.4 and 3.5.
4. Thereafter, complaints were filed by the District Forum. All the OPs denied these allegations. OP1 did not contest the case and OPs 2 and 5 denied all the material allegations. Both the Fora below have come to the conclusion that M/s. Gladstone Agencies Ltd. is liable for the above said losses. OP1 is the insurer in which the OP2/the petitioner and main contestant in the original case, was to act as Surveyor as well as Claims Payable Agent, as per the policy issued in this respect.
5. The District Forum saddled the OP2 and others, with liability and passed the following order:
“That the case is allowed on contest with cost against OP Nos. 2 to 5 and ex parte with cost against OP No. 1. OPs are jointly and/or severally directed to pay to the complainant a sum of Rs. 10,65,175.50 (Rupees ten lakhs sixty-five thousand one hundred seventy-five and paise fifty only) only being the claimed amount and are further directed to pay compensation of Rs. 10,000 (Rupees ten thousand only) for harassment and mental agony and litigation cost of Rs. 5,000 (Rupees five thousand only) within 45 days’ from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.
Complainant is at liberty to file execution case before this Forum in case of non-execution of the aforesaid order in its entirety within the stipulated period under the provision of the COPRA, 1986.
Supply certified copy of this order to the parties free of cost.”
6. Similar orders were passed in the remaining two complaints.
7. Appeals were filed by M/s. Gladstone Agencies Ltd., OP2 before the State Commission which were also dismissed.
8. We have heard the Counsel for the petitioner, M/s. Gladstone Agencies Ltd. The Counsel for the petitioner vehemently argued that M/s. Gladstone Agencies Ltd., is a Surveyor simpliciter. It has nothing to do with the insurance as such. He contended that there is no privity of contract between the complainant and the petitioner. He contended that this Commission has no jurisdiction to try this case and
