PASUPATI KHADYA TEL UDYOG PVT. LTD. vs EAGLE STAR INSURANCE CO. LTD.

THIS is a complaint filed by M/s. Pasupati Khadya Tel Udyog Pvt. Ltd. (hereinafter referred to as the petitioner) under Section 12 of the Consumer Protection Act, 1986, against the Eagle Star Insurance Company Ltd. (OP-1) and M/s. Gillanders Arbuthnot and Co. Ltd. (OP-2) praying for an order granting compensation to it to the extent of Rs. 19,35,677/- on account of loss suffered by it and also for interest pendente lite @ 24% p.a. from the date of filing of the claim and further for an order allowing compensation for mental anguish and harassment to the tune of Rs. 10,000/-. The case of the petitioner in short is as follows.

THE petitioner carrying on business and having its office of Nepal, placed an order for supply of 963 Drums of Crude Degummed Soyabean Oil containing 182.97 MT with Devon Industries, Singapore which on receipt of payment through Letter of Credit dated 18.5.1990 through Rashtriya Banijya Bank , Biratnagar, Nepal, arranged for shipment of the consignment of the said Soyabean Oil packed in 963 Drums in good order and sound condition from the Port of Singapore to be delivered at Calcutta on 20.6.1990 and thereafter to be transported to the final destination at Biratnagar, Nepal. THE consignment was insured with the O.P. 1 under Marine Insurance Policy No. 88/10/C, Certificate No. CL 430768 dated 11.6.1990 covering all risks as per the institute cargo Clause ''A'' upto the final destination. THE O.P.-2 being the Agents of the OP-1 have been impleaded in this complaint because under the settled position of law an Agent is liable for payment on behalf of the Principals (vide order dated 11.11.1992 passed in S.C. Case No. 877/0/82 between P.N.D. International Trade v. Eagle Star Insurance Co. Ltd.). After the arrival of the said Cargo and discharge of all the goods at the Port of Calcutta some Drums of Soyabean were found in damaged and some in empty condition. Immediately, an assessment was held jointly by the Steamer Surveyor M/s. Inspection Survey and Surveillance (India) Pvt. Ltd. alongwith the Surveyors appointed by the O.Ps. viz., Boda Surveyors Pvt. Ltd. On such assessment it was found that out of 963 Drums, 244 Drums were in leaky condition, and 34 Drums in empty condition and on weighment of the above Drums containing the goods shortage of 24,540.8 Kgs. was detected. The above-mentioned Surveyors submitted their reports dated 11.7.1990 and 19.7.1990 respectively. Thereafter, the said consignment was arranged for transportation to final destination at Biratnagar, Nepal. On arrival of that consignment they were taken to the premises of the petitioner''s warehouse and it was again found that some Drums were damaged being in leaky condition. Again there was a survey by a Surveyor appointed by respondent-2. A shortage was found to be by 48,812 kgs. of Soyabean Oil. Thus, in the result, the petitioner suffered a loss to the extent of $ 50,938.87 equivalent to Rs. 19,35,677.00. Hence, this claim under the Consumer Protection Act.

Both the O.Ps. have contested the case by filing separate written statements wherein they have denied all the material allegations of the complaint. Their positive case is that this Commission has no territorial jurisdiction to try this matter since the Insurance Company is a foreign one having its office at London under the United Kingdom. Secondly, the complainant having not impleaded the Ship-owners who was a necessary party to such a complaint, the case is liable to be dismissed for non-joinder of necessary party. Thirdly, the claim of the complainant is barred by limitation in view of the reason that the complaint has been filed after the expiry of two years from the date on which the cause of action arose. Fourthly, on merits also the complaint is liable to be dismissed for the reason that the petitioner failed to arrange for a joint-survey of the alleged damages and loss to the goods i.e. survey by the Insurance Company as well as the Ship-owner.

MR. A.K. Seal, learned Advocate appearing on behalf of the O.Ps. has contended that the complaint is not strictly legally maintainable in view of the fact that the petitioner cannot be termed a consumer from any point of view. According to him, in order to succeed in getting compensation in a case before a Consumer Court the complainant has to establish that he is a consumer within the meaning of the definition given by the Act, but, here, by no stretch of logic, the petitioner can be taken as a person who is in any way concerned with the services to be rendered by the Insurance Company in respect of the consignment in question. MR. Seal draws our attention to Annexure ''A'', the Bill of Lading wherein it is found that one M/s. Devon Industries was the consignor of the goods in question and the Rashtriya Banijya Bank was the consignee and the name of the petitioner M/s. Pasupati Khadya Tel Udyog Pvt. Ltd. occurs in this document only in the column meant for those who are to be notified only. This means that this juridical person is to be notified about the arrival of the consignment. The further contention of MR. Seal is that thereby such a person does not acquire any right of interest in the consignment in question. It is not understood by him why the Devon Industries at whose instance the goods were consigned and with whom the Insurance Company entered into the contract of insurance (vide Annexure ''B'') did not lodge any such claim. It has been then pointed out by MR. Seal that had this petitioner any interest as regards the consignment, its name would have been recorded in this insurance policy, but actually its name is conspicuous by absence. The contention of MR. Seal is that the petitioner has miserably failed to establish his locus standi in the matter of filing of such a complaint. MR. Das, learned Counsel for the petitioner, has strenuously tried to bring home the point that his client was a beneficiary, if not the owner, being a user of the commodities. As against this, MR. Seal argues that there is absolutely no material forthcoming from his side in support of such a claim that the petitioner was by any means a beneficiary or a user of the goods in question and they have totally failed to establish any link between the petitioner and the consignment. Another point urged by Mr. Seal is that the Shipowner of the concerned Ship which was the scene of the alleged loss or damage of the goods having not been made a party, the case suffers from non-joinder of parties and on that score also it is liable to be dismissed.

BUT these points, in our considered view, are not at all required to be gone into as we need not enter into the merits of the matter since we are at one with the contention of Mr. Seal that complaint is barred by limitation. According to him, the claim of the petitioner was rejected by the O.P.-1 on 24.3.1995 for the first time (vide Annexure ''O'') while the complaint has been filed in June 1998, that is long after the expiry of two years which is the period of limitation for filing of such a case. To this, Mr. Das has not been able to give a fitting reply. At the time of argument he showed us a letter dated 3.6.1998 purportedly written by the OP-2 to the Claims Corporation containing repetition of their earlier stand. BUT curiously enough, such a letter was nor either produced or mentioned in the affidavit of the complainant at an earlier stage when evidence was being adduced or affidavits and counter-affidavits were being affirmed and thus the OP was deprived of the opportunity of subjecting it to cross-examination or scrutiny and hence it would be against the principles of natural justice to rely upon such a unilaterally and belatedly filed scrap of paper. The result is that the delay for a period of one year and three months in the matter of filing of the complaint remains totally unexplained and the complaint becomes hopelessly time-barred and on that score alone it attracts an order of dismissal being not entertainable. Accordingly the complaint be dismissed. Complaint dismissed.