- (1.) This appeal is directed against order dated 17.11.2003 passed by the National Consumer Disputes Redressal Commission (for short/'the National Commission') whereby the order passed by the State Consumer Disputes Redressal Commission, Maharashtra (for short, 'the State Commission') holding the insurer i.e. the Oriental Insurance Company Limited and the carrier i.e. M/s. Greenways Shipping Agencies Private Limited jointly and severely liable to pay Rs. 11,45,000 to the appellant with 15% interest from the date of complaint till payment and cost of Rs. 30,000 in lieu of the loss allegedly suffered by it was set aside.
(2.) The appellant entered into an agreement with M/s.Allchem Industries Inc., Florida, USA for the supply of Diphenyl Oxide. The goods were to be shipped from Bombay to Norfolk (USA). For this purpose, the appellant obtained Marine Cargo Policy. The container containing the barrels of Diphenyl Oxide were loaded by the carrier in MV "Aken" some time in November, 1993. When the ship reached the Port at Colombo, the container containing Diphenyl Oxide was discharged and was positioned at Jaya Container Terminal awaiting shipment to the destination. During the course of inspection at the Container Terminal, it was noticed that there was leakage of chemical from the container. Thereupon, the carrier appointed SGF Marine Surveyors to undertake the survey. The surveyor submitted repor dated 16.12.1993, the relevant portions of which are extracted below: "Survey Findings The said container was discharged from MV 'Aken' on 20th November, 1993 and was positioned at the Jaya Contained Terminal awaiting shipment to the destination. However, prior to arranging formalities for shipment representative from the agents of the carried (M/s. Greenlanka Shipping) had observed leakage of chemicals from the container who in turn applied for the survey. On opening the container at the said yard at about 1445 hrs. (Local Time) the cargo of chemical barrels appeared well stowed in the container. Subsequently all barrels were pulled out from the container and on close examination it was found that some barrels were leaking. The liquid was leaking from small holes at the bottom beam and plate joints on the sides of the barrels. It was further observed that the chemical was oozing out in bubble from the holes giving a gaseous odour. All leaking barrels were separated and a count was made where 43 barrels were found leaking and rest in good condition. The same container was reloaded with all the barrels with leaking barrels placed horizontally on top of the non-leaking barrels in order to avoid further leakage. The container was released finally with seal No.2664431. Conclusion The cause of leak may be attributed to sub-standard barrels being used for gaseous chemical (name unknown) where due to accumulation of gas the barrel would have ruptured emanating the gas followed up with the liquid. Few photographs taken at the time of survey form part of this survey report."
(3.) Immediately after receiving the surveyor's report, the carrier sent letter dated 18.12.1993 to the appellant and informed it about the leakage of chemical from the barrels. This was followed by some correspondence between the appellant and the carrier, perusal of which reveal that the container was not reloaded for further shipment. After about 3 months, the petitioner sent communication dated 14.3.1994 to the insurer enclosing therewith letter received from the carrier about leakage of the cargo and the fact that the same was lying at Colombo Port.;