K.M. AHMED KOYA And SONS vs UNITED INDIA INSURANCE COMPANY LTD

- THE complainant which claims to be a registered firm of partnership has filed this complaint against the United India Insurance Company Ltd., hereinafter referred to as the insurer claiming compensation in the sum of Rs. 8,40,800/- being the value of the goods alleged to be lost in transit. THE complainant has taken out an Open Transit Risk Marine Insurance Policy with the insurer at its Calicut branch. In November 1988, the Complainant entrusted several consignments of black pepper and arecanut with one M/s. Shaheen Roadlines Corporation hereinafter referred to as the Carrier from transport to and delivery at Bombay to M/s. Hemal Enterprises hereinafter referred to as the consignee. THE Lorry Receipt was discounted by the Complainant with its bank at Calicut and the same was sent to the bank at Bombay to be retired by the consignee on payment, and thereafter the consignee has to take delivery of the goods from the carrier. THE consignee in the instant case did not retire the documents from the bank with the result the bank dishonored the documents and returned the same to the complainant''s bank at Calicut which in turn claimed from the complainant the value already paid. THE consignee informed the Complainant that the consignment were not delivered by the carrier. THE Complainant thereupon lodged its claim with the insurer and also issued the Statutory Notice to the carrier under Section 10 of the Carrierr''s Act. THE insurer after much delay by its letter dated 28.11.1990 repudiated and rejected the Complainant'' s claim on the ground that the Complainant acted in the transaction with extreme bad faith in total violation of the terms and conditions of the contract and that on enquires, the insurer came to know that the Complainant concluded with the carrier and the consignee and the consignment was delivered to the consignee with the knowledge of the Complainant without the Lorry Receipt and that on the whole the Complainant had been playing round on its bank colluding with the carrier and the buyers in order to defraud the insurer. Hence this complaint.

THE Opposite Party, insurer raised three legal objections namely, (i) This Commission has no territorial jurisdiction to entertain this claim, (ii) THE Complainant is not a registered firm of partnership, and, (iii) THE Complainant is not a consumer.

On merits it is contended by the Opposite Party that as per the reports of its investigator, the carrier through its agent Rahi Transport Company has delivered the consignments in question to the consignee Hemal Enterprises without the consignee retiring or producing the negotiable copy of Lorry Receipt from the bank with the consent and knowledge of the Complainant and the Complainant has also received the value thereof. The report of the investigator is produced along with the counter and is sought to be read as part of the counter.

The legal objections raised by the Opposite Party are totally untenable. Though no part of the cause of action has arisen within the jurisdiction of this Commission, the fact that the head-office of the Opposite Party is situated in Madras affords jurisdiction to this Commission to entertain this complaint. Though it is avered in the complaint that the Complainant is a registered firm of partnership, the Opposite Party would deny the same. But this question is not of any relevance. Under Section 2(m)(i) of the Consumer Protection Act, a person includes a firm whether registered or not. Hence an unregistered firm is also a person within the meaning of the Act. The third objection that the Complainant is not a consumer is again without sabstance. The Complainant has taken an Open Transit Risk Marine Insurance Policy with the Opposite Party and has paid premium therefor. It has therefore hired the services of the Opposite Party within the meaning of Section 2(d)(ii) of the Consumer Protection Act and is therefore a consumer entitled to maintain this action for alleged deficiency of service.

IT is the case of the Complainant that the consignments delivered to the carrier M/s. Shaheen Roadlines Corporation to be transported to and delivery at Bombay to the consignee M/s. Hemal Enterprises have not been delivered and the insurer is that the consignments have been delivered with the knowledge and consent of the Complainant without the consignee retiring the original Lorry Receipt from the bank and producing them to the carrier and this complaint is laid only to defraud the insurer. The insurer has engaged the services of the investigator who after a thorough investigation and enquiry with the carrier''s representative Rahi Transport Company and the consignee at Bombay has come to the conclusion that the goods have in fact been delivered to the consignee, but without retiring and producing the negotiable copy of the Lorry Receipt and the Complainant has been paid the proceeds thereof and the claim has therefore been rejected as false. This is not therefore a case where the insurer has been dragging on the matter without settling the claim or rejecting the claim in a haphazard manner. This is not therefore, a case where the Insurance Company did not take prompt and necessary steps for deciding the claim under the policy of Insurance or that there has been any deficiency of service. In the circumstances the remedy of the Complainant is to file a regular suit in court of competent civil jurisdiction disputing to conclusion of the insurer and claiming compensation. An almost identical case came up before the National Consumer Disputes Redressal Commission in Janta Machine Tools v. Oriental Insurance Company Ltd., I (1991) C.P.J 234 (NC) The Commission has observed as follows : "From the facts disclosed by the record and particularly the avernments contained in the counter affidavit filed by the first respondent, it is seen that the Insurance Company had fully investigated into the claim put forward by the complainant, got survey conducted and had finally come to the conclusion that the claim put forward by the complainant was false and accordingly informed the complainant that his claim was rejected. Thus this is not a case where the Insurance Company did not take prompt and necessary steps for deciding the claim under the Policy of Insurance. IT may be that the Complainant is not satisfied with the said rejection of his claim by the Insurance Company. Having regard to the facts and circumstances of this case and the nature of the controversy between the parties, we consider that this is a matter that should be adjudicated before a civil Court, where the Complainant as well as the respondent will have ample opportunities to examine witnesses at length, take out Commission for local investigation etc., and have an elaborate trial of the case. Without prejudice to the right of the Complainant to take resort to the remedy by way of civil suit before the proper court, we dismiss the petition."

In the light of the above decision we hold that the proper Forum for adjudication of the matter in issue is the civil Court. The points that are in issue in this matter are whether the goods have really been delivered to the consignee without the production of the negotiable copy of the Lorry Receipt from the bank, whether this delivery has been effected with the knowledge and consent of the consignor, whether the consignor has received payments for the goods and whether this claim is a false and fraudulent one. For a proper and satisfactory adjudication of these issues, the carrier who is primarily responsible to the Complainant for the delivery of the goods is an absolutely necessary party. Significantly it has not impleaded in this complaint. The consignee is also a necessary party, at any rate, a proper party in view of the stand taken by the insurer that the consignment had infact been delivered to the consignee. The questions involved requires the taking of elaborate evidence oral and documentary and witnesses from Bombay have to be examined. In Sankara Venkatadhri v. A.P.S.E.B. 1991 C.P.R. 378. The State Consumer Disputes Redressal Commission of Andhra Pradesh pointed out that, "Where a case requires an elaborate enquiry into the facts the same is not permissible in the exercise of the summary jurisdiction under the provisions of the Consumer Protection Act and the proper course open to the Complainant is to file a suit and seek proper relief."

WE respectfully agree with the said view. In M/s . Special Machines, Karnal v. Punjab National Bank I (1991) CPJ 78 (NC) The National Commission has also pointed out that though the Forums constituted under the Act are vested with the powers to examine witnesses on oath and to order discovery and production of documents, such powers are to be exercised in cases where issued involved are simple such as defective quality of anything purchased or any short-coming or inadequacy in the quality, nature and manner of the performance of the service and even in such cases if it appears to the concerned Forum under the Act that the issues raised cannot be determined without taking elaborate oral and documentary evidence, it is open to the Forum to decline to exercise jurisdiction and refer the party to its ordinary remedy by way of suit. The case before us in our view is one which requires taking of elaborate evidence and the proper remedy for the Complainant is by way of regular suit, impleading the carrier and the consignee as parties. It is only in such a suit the rights and liabilities of all the parties concerned can be properly determined. If it is found that the consignments have in fact been delivered to the consignee, a decree can straight-away be passed against the consignee. If it is held that the default was on the part of the carrier, a decree may be passed against the carrier or against the insurer, or against both. The insurer in such an action will have the right to seek contribution or indemnity against the carrier under Order VIII-A of the Code of Civil Procedure. This will avoid multiplicity of proceedings. On a consideration of all the aforesaid facts and circumstances we hold that the proper remedy for the Complainant is to file a regular suit in a court of competent civil jurisdiction and without prejudice to such right, we dismiss the complaint No costs. Complaint dismissed.