IMPORTANT POINT
Quantity of Metal – there is no evidence available to establish the quantity of metal scrap exported, especially since on the unlocking of the containers which had admittedly not been disturbed until then, the containers were found to be relatively empty.

ORDER

Subhash Chandra, Presiding Member—This appeal under Section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) challenges the order dated 20.10.2016 in Complaint No.130 of 2008 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) allowing the complaint and directing the appellant herein to pay the respondents Rs.42 lakh towards loss of consignment with interest @ 9% per annum till payment along with Rs.10,50,000/- towards expenses incurred, Rs.75 lakh towards surveyor’s fees and Rs.29,281.41 towards payment made as fee to the overseas surveyor. It is prayed to allow the appeal and set aside the impugned order and to pass any other order(s) as deemed fit and proper in the facts and circumstances of the case after calling for the records, if necessary.

2. We have heard the learned counsel for the parties and perused the records carefully.

3. The respondent/complainant no.2 had insured a consignment of heavy melting scrap of approximate 450 MTs to be imported from South Africa to Ludhiana under a Marine Cargo Specific Voyage Policy dated 16.03.2006 obtained from the appellant for Rs.52,25,000/- against a premium of Rs.5759/- (in short, ‘the policy). The consignment reached the Mumbai Port on 25.05.2006 and thereafter to ICD Tuglakabad (Delhi) on 12.06.2006. On 12.06.2006, the respondent informed the appellant that they had not taken the delivery of the consignment since they had reasons to believe that the material received was less and they had suffered an estimated loss of Rs.50 lakh. Appellant appointed M/s R K Singhal and Co. Pvt. Ltd. to assess the loss. The surveyor visited Tuglakabad on 14.06.2006 and 16.06.2006 as well as the site at Faridabad on 17.06.2006. During the inspection it was found that out of the 18 containers, 8 had already been de-stuffed and loaded in trucks and the balance 10 containers which were yet unopened were weighed at the official weight bridge of ICD and found to weight abnormally less than the stated weight. However, the original seals of these containers were found intact as per the Bill of Lading. The sealed containers were transported to the respondent’s premises and de-stuffed in their presence. The surveyor submitted a detailed survey report dated 05.03.2007 wherein it was mentioned that the insured and high sea purchasers were closely associated each other and belonged to the same family. It was also mentioned that (i) insured could not submit any pre-despatch weighment evidence including any weighment details from the supplier or the shipper or pre-dispatch surveyor; (ii) the packing lists prepared by the supplier could not be considered authentic since they recorded the same weight of all the containers which indicated that these had been prepared without inspection or weighment; (iii) the letter of credit dated 06.06.2006 was amended giving the effect from 31.03.2006 which indicated that the amendment was done after the containers were received at ICD Tughlakabad and, in effect, the amendment was applicable from a date that was prior to the date of invoice and dispatch without mentioning the reasons for such amendment; and (iv) the insured had stated during discussion that while they were regularly importing HMS since long they had not been obtaining insurance coverage except in this case since they were dealing for the first time with this party.

4. The respondent approached the State Commission alleging delay in settlement of the claim. Appellant was directed by the State Commission vide order dated 09.04.2008 to decide upon the matter within three months.

5. The appellant repudiated the claim vide letter dated 05.05.2008 on the basis of the surveyor’s report against which a complaint was filed by the respondent before the State Commission alleging that (i) it ffailed to consider the objections in the written version by relying upon this Commission’s judgment in National Insurance Company Ltd., vs Mangalagowri Cashew Indust