- Kinjal Bearing Company,
510, Shreemanta Market,
A.T. Road, Guwahati 781001, Assam and
Represented by Sri Alip Roy, Proprietor,
7/A, Priyanath Chakraborty Lane,
Kolkata-35. _________ Complainant
____Versus____
- American Home Assurance Co.- Singapore,
22, Martin Road, Singapore 239 058.
- TATA AIG General Insurance Co. Ltd.,
4th Floor, Ahura Centre, 82, Mahakli Caves Road,
Andhe4ri (E), Mumbai 400 093 and
TATA Centre, 1st Floor, 43, Jawahar Lal Nehru
Road, Chowringhee, Kolkata-71, P.S. Park Street.
- The Chairman,
The Board of Trustees for the Port of Kolkata,
15, Strand Road, Kolkata-1, P.S. Hare Street. ________ Opposite Parties
Present : Sri Sankar Nath Das, Hon’ble President
Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 64 Dated 05-09-2014.
The case of the complainant in short is that complainant is proprietorship firm and is engaged import business and deals with bearing and other allied goods to earn livelihood. O.p. no.1 is an insurance company having its office at Singapore which is outside jurisdiction of this Forum and said o.p. also carrying on business in India through o.p. no.2 whose address is within the jurisdiction of this Forum. O.p. no.3 at all material time used to own, control and mange and still owns, controls and mange the Docks, in and around kolkata including Khiderpore Dock now know as Netaji Suibhas Dock. O.p. no.3 provides, keeps and maintains sufficient servants and apparatus for the expeditious and convenient landing and shipment of goods from all sea going vessels from the Docks, wharves, quays, jetties or piers erected by them and carried on and still carries on business interalia at its Head Office at 15, Strand Road, Kolkata-1 within the jurisdiction of this Court. O.p. no.4 is a supplier / shipper and is terms as consignor in this case.
In or about Oct. 2004 complainant in course of business placed an order of 15 packages STC Bearing to o.p. no.4. O.p. no.4 the consignor / shipper as a foreign seller agreed to sale 15 packages of bearing vide their invoice no.210395 dt.20.10.04 valued Euro 13711.66 to the complainant and accordingly the said consignor / shipper sent to ordered goods from Port of Singapore to Port of Kolkata through vessel ‘KOTA RATNA, VOY-RNA-459’.
At the time of loading of the said consignment o.p. no.4 obtained insurance policy bearing no.AHA/407/89, certificate no.1768 on 28.10.04 covering “All Risks” from o.p. no.1. The said goods were landed at Kolkata Port in good and sound condition and after discharging the said goods ex vessel ‘Kota Ratna’ the said cargo was kept in 4 N S Dock under the control of o.p. no.3 pending for delivery to the complainant. After compliance of all necessary formalities the said goods were under custody of Calcutta Port Trust. The said goods were under custody of Shed No.4, Netaji Subhas Dock, of o.p. no.3, the said goods were gutted at midnight on 16.11.04 and missing. After getting information of the said incident, complainant informed the matter to the insurance company. O.p. no.1. On receipt of the application from complainant regarding loss of the aforesaid goods under custody of o.p. no.3, o.p. no.1 through their Kolkata office appointed their nominated surveyor namely Meridian Survey Network, Kolkata. The aid surveyor so appointed by o.p. no.1 carried out their inspection ad submitted survey report mentioning in details accordingly for the loss of entire consignment valued sum insured of Euro 15,082.83.
O.p. no.1 however considering all aspects offered 75% of the claim amount of the complainant under the policy as non standard basis on the ground of non submission of Damage Certificate and settled 75% out of the total insured amount. O.p. no.1 on that ground cannot offer 75% but they are liable to pay total loss. Complainant however received 75% of the claim on the basis of the assurance of o.p. no.1 that they would settle 25% balance amount upon receipt of Damage / Shortage Certificate from Kolkata Port. Hence, the case was filed by the complainant with the prayers contained in the petition of complaint.
Decision with reasons:
O.p. nos.1, 2 and 3 had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. Ld. lawyer of o.ps. in the course of argument submitted that the case has got no merit and the same is liable to be dismissed.
We have gone through the pleadings of the parties, evidence and documents in particular and we find that o.ps. paid 75% of the claim to the complainant on non standard basis on the ground of non submission of damage certificate an settled 75% out of the total insured amount. From the record we find that complainant has no lapse on the part of complainant regarding submission of damage certificate and there was no claim provision that insurance company cannot pay total amount of claim unless the damage certificate is produced.
In view of the findings above and on perusal of the entire materials on record we are of the views that Kolkata Port Trust ought to have issued damage certificate which they neglected to issue despite several requests. We find clear deficiency of service on the part of o.ps. being service provider to the complainant / consumer and complainant has been able to substantiate to prove his case and is entitled to relief.
Hence, ordered,
That the case is allowed on contest with cost against the o.p. nos.1, 2 and 3. O.p. nos.1, 2 and 3 are jointly and/or severally directed to pay the claim of Rs.1,96,529/- (Rupees one lakh ninety six thousand five hundred twenty nine) only to the complainant and are further directed to pay compensation of Rs.15,000/- (Rupees fifteen thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
