INDIAN ACRYLICS LTD Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) The brief facts of the case are that complainant took two marine insurance policies from the opposite party for Acrylo Nitrile which is used in the manufacture of the acrylic fibre. These two polices relate to the goods and also for custom duty. The policy for the custom duty was endorsed to the custom authorities Kandla port. Two imported consignments arrived at Kandla on 13.12.2000 and 14.01.2001 and were kept in the storage tank JRE 14 under the supervision of M/s J.B Boda Surveyors Pvt. Ltd. First consignment which arrived on 13.12.2000 was surveyed on 24.12.2000 and second consignment arrived on 14.01.2001 was surveyed by the surveyor on 24.01.2001. A severe earthquake hit the port of Kandla Gujarat on 26.01.2001 and it had caused massive destruction. As a result of the earthquake, there was a leakage in storage tanks, storing materials of the complainant. The complainant informed the opposite party about this leakage on 29.01.2001 and also of the loss caused to it and also filed its claim. The surveyor M/s J B Boda Surveyors Pvt. Ltd. was also informed. The leakage was confirmed on 30.01.2001. On 31.01.2001, a formal claim was lodged with the insurer. Case of the complainant is that it also intimated the opposite party about the requirement of fresh import of the material for running its plant and requested for the release of 75% of the insured amount for such payment and for establishing another Letter of Credit. His contention was that material which was weighing 2064.946 metric tonnes had approximate value of Rs.13.63 crores, got destroyed. The preliminary survey report was submitted by deputing surveyor of the opposite party on 05.02.2001. The final survey report was submitted by the surveyor on 26.02.2001 wherein surveyor had assessed the cargo loss of Rs.9,88,49,500/- and Rs.3,64,36,923/- for custom duty. The claim was approved by the opposite party vide letter dated 21.05.2001 for a sum of Rs.9,79,12,152/- for the loss of cargo and intimated the same to the complainant. The complainant, thereafter, signed the discharge voucher in full and final settlement of claim for cargo and money was released to him on 23.05.2001.

(2.) The complaint was filed by the complainant on the ground that since the claim was settled after a delay of three months, the complainant had to procure 610 MT of Acrylo Nitrile from IPCL ( Indian manufacturer) at a higher price of Rs.45 lakhs and contended that it amounted to deficiency in service and claimed a sum of Rs.5,38,66,787/- towards interest due to delay and also sought directions to pay sum of Rs.3,65,00,000/- directly to the Custom Authorities. On these contentions, the complaint was filed.

(3.) The claim was contested by the opposite party. It is contended that complaint was not maintainable since complainant had settled its claim full and final with them and, therefore, had no cause of action. He voluntarily signed the discharge voucher. It is also contended that there is no averment in the complaint that said discharge voucher was signed by the complainant under any undue force, coercion or pressure. It is further submitted that claim had been settled speedily and whatever delay had occurred, it occurred due to lack of response on the part of the complainant. It is submitted that claim intimation was received by the opposite party on 29.01.2001 and, thereafter on 30.01.2001, the complainant wrote a letter to M/s J B Boda Surveyors Pvt. Ltd. stating that he was not in a position to reach their Kandla Office and requested them to do the spot survey on its behalf. M/s J B Boda Surveyors, Mumbai on 31.01.2001 had shown their inability to contact their counter part at Kandla and their inability to depute their surveyor from Mumbai at such a short notice. On 31.01.2001, however, the opposite party responded to the complainant and certain documents were also sent by the complainant to them. The opposite party promptly appointed a surveyor on 05.02.2001 who conducted preliminary survey and submitted its report on the same day. The officials of the opposite party also accompanied the team to Kandla. Vide letter dated 12.02.2001, the surveyor requested the complainant to provide certain documents to finalize the survey report, list of which was given in the said letter. Those documents were furnished by the complainant on 15.02.2001. The surveyor submitted its final survey report on 26.02.2001. Vide letter dated 23.03.2001, certain clarifications were sought from the surveyor after perusing survey report and related documents. The surveyor after telephonic discussion with the insurers gave written clarification to the points raised on 26.03.2001. As the matter involved huge amount which was around 13.00 crores, the mater had to go right up to the Head Office at Calcutta, which remained in constant touch and coordinated with the Regional Office as well as other offices, for processing the claim. Certain other documents including copy of the contract with the supplier and mode of payment were needed for perusal before approval of claim and, therefore, a letter dated 09.05.2001 was written to the complainant to provide the same. On 21.05.2001, an approval of Rs.9,79,12,152/- was given and the complainant signed the discharge voucher and settled all his claims for loss of cargo fully and finally. On 23.05.2001, the money was released to the complainant. It is contended that opposite party had acted with due diligence and at the earliest approved the claim amount to the satisfaction of the complainant. As regards the payments of the custom duty is concerned, it is contended that so far no custom duty has been paid by the complainant and he should take up the matter with the custom authorities regarding remission of duty as per Section 23 of the Customs Act, 1962.