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CC/14/492
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
COMPLAINT NO.CC/14/492
1. NISAN EXPORT,
Situated at Vadodara – Halol Highway,
Komtabi, Vadodara,
Gujarat – 391 510.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO.
LTD.,
Having their head office at:
GE Plaza, Airport Road,
Yerwarda, Pune 411 006, Maharashtra.
.......Complainant(s)
Versus
MAERSK LINE INDIA PVT. LTD.,
Having its corporate office at:
Urmi Estate, Building A, 12th Floor,
Ganpat Rao Kadam Marg, Lower Parel,
Mumbai 400 013.
………opponent(s)
BEFORE:
Mr.D.R. Shirasao – Presiding Judicial Member
For the Complainant(s) : Advocate Mr.Sanjeet Shenoy
For the Opponent(s) : None.
ORDER
Per Hon’ble Mr.D.R. Shirasao – Presiding Judicial Member:
(1)
Complainants have filed this complaint for getting damages from
opponent.
CC/14/492
(2)
Brief facts of the case are as under:
Complainant no.1 entrusted their cargo to the custody of opponent
containing 260 Bales of Cotton printed fabrics worth USD 1,45,357/- for
carrying the same to Ex-Mundra to Lome, Togo (Gulf of Guniea) under
the copy of invoice no.NE/086/2013-14 dated 16/08/2013. The packing
list and examination report in respect of the goods were issued by the
Superintendent of Central Excise, Rajkot. The said cargo was loaded and
carried in MV ‘MAERSK KAMPALA’ Voyage No.1312 for its onward
sea voyage to Lome, Togo. The cargo of complainant no.1 was damaged
during the course of voyage when it was in the custody of opponent.
Opponent had informed about the same to complainant no.1 by e-mail.
The cargo of complainant no.1 arrived in damaged condition in Malaga
on 16/09/2013. The complainant no.1 had insured the consignment with
complainant no.2. Complainant no.1 had obtained a marine insurance
policy in that respect from complainant no.2. Complainant no.1 had
informed about the loss of cargo to complainant no.2. Accordingly,
second complainant had appointed Thomas Wilson, Marine Surveyor to
conduct the survey at NOATUM Container Terminal, Port of Malaga.
The said surveyor had carried out the joint inspection of damage of cargo
on 03/12/2013 in presence of surveyor of opponent and the staff of
NOATUM Container Terminal. By submitting survey report dated
10/12/2013 surveyor had assessed loss to the tune of Rs.95,93,580/-. The
complainant no.2 had paid this amount to complainant no.1 and settled
the claim with complainant no.1. In view of the same complainant no.1
had subrogated all their rights to complainant no.2 and in that respect
executed a Letter of Subrogation and Special Power of Attorney in favour
of complainant no.2. it is the contention of complainant no.2 that the loss
CC/14/492
and damage to the consignment of complainant no.2 was caused due to
the gross negligence on the part of the opponent and hence, opponent is
liable to pay the damages about the same to complainant no.1. However,
as complainant no.2 has paid the claim in respect of damages in respect of
those goods of complainant no.1 complainant no.2 is entitled to recover
the amount of damages from opponent under the Letter of Subrogation.
In view of the same the complainants have filed this complaint against
opponent claiming amount of Rs.94,97,644/- from opponent directing
them to pay the same to complainant no.2 along with interest on that
amount along with survey fees.
(3)
Opponent contested the complaint by filing their written version on
record. They submitted that as per Clause 26 of Bill of Lading the
exclusive jurisdiction of the dispute vests in the English High Court of
Justice in London. Parties have decided this jurisdiction and hence, this
Commission has no jurisdiction to try this consumer complaint and
decide the same. It is also their submission that the opponent was
working as Agent of principal carrier and hence, he cannot be held
responsible for the damages. It is their further submission that the
transaction was the
