GITANJALI ENTERPRISES Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) This is a complaint under Sec.17 read with Sec.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.