JUDGEMENT
1. Aggrieved by the orders dated 27.04.2012 passed by the District Consumer Disputes Redressal Forum (East) in CC-550/1998 in the matter of M/s Overseas Trading Corporation versus M/s Tata Tea Limited and another, dismissing the complaint, the M/s Overseas Trading Corporation has preferred an appeal before this Commission, (for short appellant) under Section 15 of the Consumer Protection Act 1986, the Act, against M/s Tata Tea Limited, hereinafter referred to as OPs, alleging that the impugned order has been passed without appreciating the facts and the law and praying for the relief as under:
a. To set aside the impugned order dated 27.04.2012 passed by the District Forum in Case No. 550/98 b. Grant decree in favor of appellant as prayed for in the complaint. c. Pass such other and further orders as the Hon'ble Commission may deem fit and proper in the facts and circumstances of the case.
2. Facts of the case necessary for the adjudication of the appeal are these.
3. The complainant/respondent had purchased 27.02 copper cathodes from M/s Metal Distributors limited, London on 26.05.1996. The consignment was packed in two containers which were dispatched from Jebel Ali, Zambia to Mumbai vide Bills of Lading No. DUB/BOM 0083 and 0084. The consignment was insured by the supplier with the Zambia State Insurance Corporation Limited and the insurance covered all risks from Jebel Ali to the complainant's factory at Rewari via Mumbai Port. As per the Insurance Certificate following provisions were indicated:
"SETTLEMENT. In the event of any claim arising under this Insurance request for settlement should be made to the Corporation's CLAIMS SETTLING AGENTS: JOHNSON & HIGGINS LTD., ALDGATE HOUSE, 33 ALDGATE HIGH STREET, LONDON EC3N LAQ or to their appointed representatives:
Tata Tea Ltd.,
Standard Chartered Bank Building,
Mahatama Gandhi Road,
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(P.O. Box 73,) Bombay 4000001." Both the containers arrived intact at International Container Depot, Tughlakabad, Delhi on 12.06.96 and after completing the formalities their delivery was taken by the complainant on 15.06.96. On 15.06.96 during Custom's inspection the seals of both the containers were found intact and the contents were also in order. After taking delivery from the Customs the complainant locked the containers with his pad-locks and secured the same with piece of cloth and sealed it with sealing wax. Sealed containers were handed over to respondent No. 1 for carrying from Tughlakabad, Delhi to Rewari vide their Goods Receipts No. 2825 and 2826 dated 02.06.96. When the containers arrived at Rewari on 03.08.96 the seals from the pad-locks were found broken and on checking it was found that the packing strips of one bundle in each of the containers were broken. Complainant took delivery under protest from Respondent No. 1 and recorded on the back of the Receipt No. 2825 "Seal of the container found broken, packing of one bundle was broken in which shortage found app. 1110 kg. Short" and Receipt No. 2826 "Seal of the container found broken packing of one packet found open and shortage of 610kg. Found in the container." The total shortage in one container was 1110kg and in another it was 610kg. A notice was served upon OP-1 claiming compensation and request was made to OP-2 to arrange the survey of the consignment which survey was appointed and the surveyor so appointed had carried out the surveyor on 12.08.96. This has resulted in delay in the use of material causing heavy loss in production. The surveyor confirmed the total shortage of 1709kg and a claim was lodged with the OP-2 on 03.09.96. A lot of correspondence was done, but the claim was not settled. The complainant consequent upon the loss, has claimed 4370.83 US dollars and Rs. 25,000/- as damage and Rs. 10,000/- cost of litigation.
4. The claim having not been accepted, a complaint was filed before the District Forum which complaint was disposed of with a direction that the loss which has accrued due to the M/s Satya Priya Roadlines Ltd. cannot be attributed to M/s Tata Tea Ltd. which means the loss cannot be claimed from the Insurance Company. The District Forum further held that the claim against M/s Tata Tea Ltd. cannot be allowed since the complainant had put his own lock. The said order of the District Forum has been assailed before this Commission by way of an appeal, praying for a decree in their favour.
5. The appeal has been preferred on various grounds, namely, the reliance of the judgment in the matter of Midland Overseas vs. CMBT Tana, as reported in AIR 1999 Bom 401 is misplaced since overruled. Secondly the goods purchased by the appellant/complainant were packed and dispatched for Rewari via Mumbai from Jebel Ali. The goods consignment of the petitioner were insured by the suppliers with the Zambia State Insurance Corporation Limited as per the Certificates No. ZAM.M003790/96 and ZAM.M00379796 dated 26.05.96, covering these consignments against "All Risks" from Jebel Ali to the appellant/complainant's factory at Rewari via Mumbai Port. Thirdly the claim cannot be disallowed since the surveyor appointed had also confirmed the shortage of the items when delivered at Rewari. Fourthly, the ld. District Forum has failed to appreciate the fact that the insurance was from warehouse to warehouse and such a policy covers all risk commencing from the point of time when the goods leave until it reaches the warehouse at Rewari. Fifthly, the ld. District Forum erred in holding that the shortage which has occurred is after taking delivery by the complainant at Tughlakabad during onward transmission by the carrier/OP-1 and therefore is the liability of Insurance Company.
6. The respondents were noticed and in response thereto they have filed reply resisting the appeal, stating that the contract of insurance was directly entered into with the foreign insurance company and thus there is no privity of contract between the respondent and the appellant. It is an admitted fact that the respondent was merely a survey agent and at the request of the appellant, survey was conducted by the respondent and thus at no point of time the respondent had assumed any liability to pay the alleged claim of the appellant. Therefore, the failure of insurance company to pay the alleged dues/claim of the appellant does not and cannot in any manner make the respondent liable for the alleged dues/claim of the appellant. Their further submission is that as per the proposition of law no personal liability can be attached to a survey Agent nominated by the insurer. The law does not admit of fastening any personal liability on a survey Agent as it is neither carrying on the trade nor soliciting any business on
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behalf of the foreign insurer. Secondly, the respondent is merely the survey agent for the insurance company and their role in the transaction was only to conduct the survey and file the report, which was done. Infact the settled position of law as per Section 230 of the Indian Contract Act, 1872, is that an agent cannot be held liable unless there is a contract to the contrary or which contract is to be presumed only in certain specified circumstances. In the instant case, the Cargo was insured with Zambia State Insurance Corporation (P) Ltd of whom the M/s Johnson & Higgins Ltd was the claim settling agent. The said insurance company was however, not even impleaded as a party in the complaint. This leads to an inevitable conclusion that the answering respondent has not issued the policy which was infact obtained by the consignor in respect of the goods consigned to appellant in India.
7. This appeal was listed before this Commission for final hearing on 08.03.2019 when the counsel for the appellant appeared and advanced his arguments based on the pleadings. None appeared on behalf of the respondents even in the second call. I have perused the records of the case and given a careful consideration to the subject matter.
8. Short question for adjudication in this appeal is whether the appellant is entitled for the relief as prayed for, namely, decree in his favour for an amount of US dollars 4370.83 as against the M/s Tata Tea Limited, Respondent/OP-2, the agent of insurance company. According to the appellant the risk in the transaction was covered under the insurance policy from Jebel Ali to the appellant's factory at Rewari. On the other hand the M/s Tata Tea Limited have taken the plea that they are only agent of the Insurance Company and that there exists no privity of contract between the appellant/complainant and the respondents. No personal liability can be attached to a survey agent nominated by the insurer.
9. It is an undisputed fact that the goods were delivered to the appellant at Delhi where he had put his own lock. To put it differently till goods were delivered at Delhi there was no shortage which means till then there was no deficiency. The shortage could be detected only after the appellant had received the items in which case the liability of the insurance company comes to an end. Had the goods not received by the appellant at Delhi, the Insurance Company would have continued to be responsible and liable for the indemnification of the loss. If that be the case there exists no infirmity in the orders impugned herein.
10. In the facts and circumstances of the case I am of the considered view that the appeal cannot succeed. Accordingly orders passed by the District Forum are upheld leaving the parties to been the cost.
11. Ordered accordingly. A copy of this order be forwarded to both the parties free of cost as statutorily required. A copy of the order be forwarded to the District Forum also for information and records.
12. File be consigned to record.
(ANIL SRIVASTAVA)
Member
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