Decided on August 31,2020

M/S. Dujodwala Products Ltd Appellant


- (1.) M/S. Dujodwala Products Ltd., Raigad (hereinafter referred to as the Complainant) has filed the present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act), against the Impugned Order dated 04.09.2018 passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission) in Appeal No. A/15/313, whereby the State Commission had allowed the Appeal filed by the National Insurance Company Ltd. (hereinafter referred to as Opposite Party Insurance Company) and had set aside the Order dated 14.10.2014 passed by the Raigad District Consumer Disputes Redressal Forum, Alibagh (hereinafter referred to as the District Forum) and dismissed the Complaint filed by M/s. Dujodwala Products Ltd., the Complainant.
(2.) Brief facts as narrated in the Complaint are that the Complainant Company is engaged in the business of manufacturing of Chemicals, having their factory at Kumbhivali, Taluka-Khalapur, Dist. Raigad. The Complainant Company sells their products within and outside India. The Complainant Company was required to supply their products to M/s. Saudi Rook Wool Factory at Riyadh. As the product was sensitive in nature and the temperature was required to be maintained at 5 ?C or less to save the product from damage, they hired a Container bearing No.MWCU6037091, having inbuilt refrigeration system from M/s. MAERSK India Pvt. Ltd. The products were packed in 109 metal drums and were stuffed in the Container and then the Container was loaded on a motor vehicle for taking the same to JNPT, Nhava Sheva on 14.10.2006 for onward transportation to Riyadh. The Complainant had insured that Container with Opposite Party Insurance Company by obtaining Insurance Policy No. 26500/21/06/4600000/647 covering all risks. Before the products were packed in the Container, temperature of the Container was checked and found that it was at the requisite level. On 18.10.2006 at about 12.38 p.m. the Complainant Company received message from M/s. MAERSK India Pvt. Ltd. informing that the Container could not be shipped Overseas as the Container did not maintain requisite temperature due to technical problem in the refrigeration system. Complainant had taken immediate action as the products were sensitive to temperature and they had brought back the Container to their factory on 19.10.2006. Due to rising of temperature in Container, quality of products suffered.The Complainant Company lodged Insurance claim with Opposite Party Insurance Company for getting the cost of the Products. The Opposite Party Insurance Company deputed M/s. A and Shaikh Co. (hereinafter referred to as Surveyor) to assess the loss.The Surveyor verified the Container by visiting factory on 19.10.2006 and assessed the loss to the tune of Rs.12,22,869/- after deducting 5% of total value of the products towards salvage value. However, the Opposite Party Insurance Company vide letter dated 26.12.2006 repudiated the Claim on the ground that the damage to the Products was caused due to change in temperature because of improper packing which resulted into change in temperature and the same was not covered under the Policy. Alleging deficiency in service on the part of the Opposite Party Insurance Company, the Complainant Company filed a Consumer Complaint before the District Forum seeking the following reliefs:- "a) The Opponent may please be ordered to pay the Complainant a sum of Rs.12,94,731/- alongwith the interest at the rate of 13% and including notice charges of Rs.1500/- and other expenses, as the Hon. Court may deem fit. b) The Opponent may please be ordered to pay the Complainant a sum of Rs.1,00,000/- being damages and compensation for hardship, harassment and mental agony. c) And cost of proceedings"
(3.) The Opposite Party Insurance Company contested the claim by filing their Written Version. They took a preliminary objection that the cause of action had arisen on 18.10.2006 when the product was destroyed due to rising of temperature. However, Complaint has not filed within two years from the same.The Container was provided by M/s. MAERSK India Pvt. Ltd., which is a necessary Party and they have not been made a Party in this Complaint, therefore, the Complaint is liable to be dismissed for non-joinder of the Party.They submitted that during the transport of Container neither any accident had taken place nor any damage was caused to the Container. It was submitted that due to defective packing of the goods in the Container the refrigeration system failed and the temperature in the container increased resulting in damage to the goods. They submitted that the Products kept in the Container were required to be kept at a temperature below 5 ?C. For that purpose, there was inbuilt refrigeration system in the Container. The Container was supplied by M/s. MAERSK India Pvt. Ltd. and the Products kept in the Container were damaged due to failure of refrigeration system of the Container. The Opposite Party has no concern with the same and this part has been specifically excluded in the Insurance Policy. They also submitted that the Container was insured covering all the risks which may occur during transport of the Container but any loss caused due to change in temperature due to failure of the refrigeration system is not covered in the Policy. They were, therefore, not liable to pay Insurance Claim to the Complainant. There is no deficiency in service on their part.They prayed that the Consumer Complaint be dismissed.;

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