NATIONAL INSURANCE CO LTD Vs. APEX TRADING COMPANY
NATIONAL INSURANCE CO LTD
APEX TRADING COMPANY
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(1.) The present Appeal is filed by the Appellant under Section 19 of the Consumer Protection Act, 1986 against Order passed by the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the "State Commission") in Complaint No. 9/2006 dated 30.01.2009.
(2.) In the Complaint Case, it was stated that on 23.06.2003, Respondent No.1/Complainant entered into a contract with Respondent No.2 /Opposite Party No.2 on High Seas Sale basis, who in turn placed an order for supply of coal in bulk from Australia with Respondent No.3/Opposite Party No.3. Respondent No.2 entered into a contract of insurance with the Appellant/Opposite Party No.1, being Marine Insurance Policy Certificates. The consignment was a total of 39037 M.T. of Riverside Hard Coking Coal, out of which 22000 M.T. was to be discharged at Paradip Port and balance was to be discharged at Haldia Port. Vessels loaded with Riverside Hard Coking Coal from the Port at Australia arrived at Paradip Port at 12.30 hrs. on 27.06.2003 and thereafter berthed at CQ-III, Paradip at 16:40 hrs. on the same day. The said consignment was discharged from the vessels between 27.06.2003 to 29.06.2003 at Paradip Port and the consignment was stored inside the Paradip Port at stack. The clearing of the above consignment commenced on and from 03.07.2003 and continued till 24.08.2003. Approximately 9583.511 M.T. of the consignment was cleared from the dock, but no delivery was effected on 25.08.2003 and 26.08.2003 due to non-availability of trucks and the balance quantity of approximately 12416 M.T. was still to be cleared from the Port as on 27.08.2003. On 27.08.2003, the said consignment, however, was washed away due to heavy rain and cyclonic storm at Paradip Port. Respondent No.1 informed the incident to the Insurance Company, vide letter dated 02.09.2003 and submitted claim to the Appellant/Opposite Party No.1, dated 12.07.2004 for reimbursement of loss for shortage of 1094.640 M.T. The Appellant appointed M/s J.B. Boda Surveyors Private Limited for survey, who submitted their report on 23.04.2004, wherein they found that the claim made by Respondent No.1 was admissible and affirmed a net loss of Rs. 22,76,713/- for shortage of 1094.640 M.T. However, inspite of the surveyors report, the Appellant kept the matter pending without giving any reason. Thereafter, the Appellant appointed Merchant Marine Surveyors and Assessors for further enquiry, but the second surveyor had not submitted any report till the date of filing the Complaint.
(3.) The Appellant/Opposite Party No.1 contested the case that Respondent No.1 failed to establish insurable interest at the time of alleged loss due to heavy rain and cyclonic storm at Paradip Port on 27.08.2003. It was contended by the Appellant that the policy in question was issued in the name of PEC Limited i.e. Respondent No.2 and the alleged loss was reported on 02.09.2003 to the Appellant by PEC Limited. According to the Appellant, Respondent No.1 failed to prove that the policy was assigned on High Sea Sale in their name before the alleged reported loss and also failed to produce documents to the investigator in support of their insurable interest. The Policy should have been assigned prior to the alleged occurrence of loss in favour of Respondent No.1. The information of loss should have been given by Respondent No.1and not by Respondent No.2, PEC Limited. According to the Appellant, the Complaint petition was not maintainable as the allegations made by Respondent No.1 are baseless, had no locus-standi, devoid of merit and was liable to be dismissed. Respondent No.2 submitted that as Respondent No.1 had made no allegation against him in the Complaint, therefore no objection in writing was filed against the Complaint petition.;
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