NEW INDIA ASSURANCE CO. LTD v. M-S HIRA LAL RAMESH CHAND & ORS

Citation: [2008] 9 S.C.R. 1198

Court: Supreme Court of India

Bench: B.N. AGRAWAL, P.P. NAOLEKAR, R.V. RAVEENDRAN

Case summary

NEW INDIA ASSURANCE CO. LTD v. M-S HIRA LAL RAMESH CHAND & ORS.pdf

Judgment text

[2008] 9 S. C. R 1198 NEW INDIA ASSURANCE CO. LTD. v MIS HIRA LAL RAMESH CHAND & ORS. (Civil Appeal No. 4306-4307 of 2003) JUNE, 13, 2008 (8. N. AGRAWAL, P. P. NAOLEKAR AND R. V. RAVEENDRAN, JJ] MARINE INSURANCE Acr, 1963: ss. 3 and 4 - Marine insurance - Consignments "covered against: All risks (ICC), war. and SRCC from consignor's warehouse to consignee's warehouse" - Consignors telephonically informing insurer about non-realization of bills, and claiming value of consignments - Insurer repudiating claims - Complaints of consignors by National Consumer Disputes .

' Redressal Commission - Partly allowed - HELD: Failure of buyer to make payment and take delivery is not a 'loss' of consignment covered by Insurance Policy-Absence of averment or proof that consignments did not reach the destination or the goods were not taken delivery by the consignee - No overment as to whether holders of the documents applied for or attempted to take delivery of consignments to store the same in a bonded warehouse or whether they were refused delivery - Complainants have failed to plead and make out a case of loss of consignments during transit or within 60 days of the consignment being discharged from the ship - Consequently, claims of complainants against insurer are liable to be rejected - Order of National Commission set aside - Consumer Protection Act, 1986 - Deficiency in service - Connotation of Marine Insurance - 'Loss' of consignment - Connotation of , The complainants-respondent no. 1 in both the ap- , NEW INDIAASSURANCE CO. LTD.

v MIS HIRA 1199 LAL RAMESH CHAND peals, who were engaged in the business of manufac- . ture and export of rugs and durries at Mirzapur, U. P. , filed I two separate complaints against the appellant-Insurer before the National Consumer Disputes Redressal Commission under the Consumer Protection Act, 1986. Their case was that they, in pursuance of the orders placed by s , a buyer at Atlanta in USA, namely, Atlanta Rugs Inc. , dispatched consignments of rugs and durries between 23. 8. 1994 and 4. 7. 1995. All the consignments were insured with the appellant insurer and were "covered under: All risks (1 CC), war and SRCC from consignor's warehouse to consignee's warehouse", and were entrusted to the forwarding agent at Mumbai, namely, Overseas Container Line Inc.

(OCL) which was a Non-Vessel Owning Common Carrier (NVOCC) registered in USA; that the Bill of , Lading issued by 'OCL' in regard to each consignment 0 · showed the consignee as "unto order" and the buyer as the party to be notified; that the complainants had a foreign Out Bill Purchase Account with their Bankers and, therefore, endorsed the Bill of Lading in favour of the said Bankers and the latter in turn endorsed the negotiable copy of the Bill of Lading in favour of its foreign correspondent Bank (the collecting Bank). On 25. 1. 1996 the collecting Bank informed the Bankers of the complainants that the drawee did not make the payment nor did it obtain release of the documents of title; that thereafter the complainants made efforts to contact the buyer and the forwarding agent 'OCL', but they could not be located. Ultimately, the complainants telephonically informed the Insurer on 2. 2. 1996 about the non-realization of the Bills and claimed value of the consignments.

As the Insurer did not settle the claims, the complainants filed petitions before the Commission on 25. 2. 1997, a'lleging that the \ conduct of the Insurer in not settling the claim amounted to deficiency in service. They claimed compensation from the Insurer in regard to the value of the consignments and other losses. 1200 [2008] 9S. C. R. ... _ The stand of Insurer was that the claims were not J maintainable as none of the consignments were lost or damaged in transit; that it had got the matter investigated through the surveyors and the investigation report disclosed that the shipping agent OCL and the buyer were headed by a common President, namely, 'KC' who had • admitted to the surveyors that the consignments had all been received by the buyer. There was thus no loss of the consignments and, consequently, no deficiency in service.

The Commission held that the complainants had valid marine insurance cargo policies which gave insurance cover against all risks of loss; that even if the buyer had managed to receive the consignments by fraudulent means without legitimate endorsement or transfer of the original documents of title which were in custody of the collecting Bank, that amounted to loss of goods; that as the consignee was shown as "unto order" in the bills of lading, the complainants had lien and control over the consignments and, consequently, property in goods did not pass to the buyer and in such circumstances delivery to buyer would still amount to loss of goods, and insurer was liable to indemnify the complainants and failure to do so was a deficiency in service. The Commission, accordingly, allowed both the complaints in part. Aggrieved, the Insurer filed the appeals.

The questions for consideration before the Court were: "(i) What is the scope of the policies of insurance issued by the Insurer to the insured; (ii) Whether the complainants had proved that there has been loss of consignments falling within the risks covered by the Marine insurance policies; and (iii) Whether the Commission was • justified in holding the insurer liable ? " Allowing the appeals, the Court HELD: 1. 1 Section 4 of Marine Insurance Act, 1963 NEW INDIAASSURANCE CO. LTD. v MIS HIRA 1201 LAL RAMESH CHAND makes it clear that a contract of 'marine insurance', as defined in s. 3, may, by its express terms or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage. The provisions of the Act are, therefore, subject to the terms of the policy of insurance. [para 13. 2] [1218-C & D] 1.

2 In the instant case, in view of the insurance cover extending 'warehouse to warehouse'; the consignments are covered by insurance not only during the sea journey, but beyond, as stated in the policy. Therefore, it may not be correct to say that the insurance cover is available only in regard to maritime perils. Having regard to section 4 of the Act and the terms of the policy undertaking insurance cover against wider risks, the policy of insurance would cover the loss not only while goods are navigating the sea but also any loss or damage during transit from the time it leaves the consignor's warehouse till it reaches the consignee's warehouse. The cover against risks will however cease, as stipulated in clause (8) of Institute Cargo Clause (A), on the expiry of 60 days after discharge of the consignment from the vessel at the final port of discharge, if the goods do not reach the consignee's warehouse or place of storage for any reason within the said 60 days.

[para 17] [1222-B,C & D] Hulsbury's Law of England, 4th Edition, Vol. 25 paras 216 and 218 - referred to. 1. 3 There is a difference between marine insurance policies which extend cover only against marine losses or maritime perils and marine 'extra' insurance policies which extend cover against all risks from consignor's warehouse to consignee's warehouse which include not only the sea journey but also the land journey at either end. [para 19] [1223-A & B] Bihar Supply Syndicate v. Asiatic Navigation 1993 (2) SCC 639; and Concord of India Insurance Co. vs. Ravi Thokassaria ILR 1974 Kerala 649 - held inapplicable. Peacock Plywood (P) Ltd. v Oriental Insurance Co. Ltd. 2006 (12) sec 673 - referred to. 2. 1 Failure of the buyer to make payment and take delivery is not a 'loss' of consignment which is covered by the Insurance Policy.

The complainant should make out a case of actual 'loss' of the consignment covered by the contract of insurance or non-delivery of the consignment that is refusal to meet a demand for delivery. [para 33] [1234-A & B] 2. 2 A claimant insured in a marine insurance claim has to plead and prove: (i) his position - whether he is the assured or an assigneti; (ii) his insurable interest; {tii) the type or kind of the insurance policy and its relevant terms; (iv) the duration of the cover; (v) the nature of risk/loss; and (vi) the risk/loss is covered by the policy. In the absence of necessary averments and evidence to establish a marine insurance claim, a claim against the insurer is liable to be rejected. [para 37] [1236-D,E & F] 2.

3 It is no doubt true that the complainants had booked the consignments showing the consignee as 'unto order' thereby indicating that the goods should be delivered only to the holderlendorsee of the Bills of Lading; that the original documents were not cleared/retired by the buyer and were ultimately returned by the foreign correspondent Bank to Punjab National Bank (Bankers of complainants); and that the consignments were insured against all risks of loss and damage. But, the basic and fundamental averment and proof required in a case of this nature is that the consignments had been lost or damaged in transit or that when the holder of the documents applied for delivery, the goods were not delivered on account of the same being irretrievably lost, that is, having been pilfered, stolen, lost or mis-delivered. But NEW INDIAASSURANCE CO. LTD. v MIS HIRA 1203 LAL RAMESH CHAND there is no such averment or evidence that the consignments were lost or damaged.

Nor is there any averment that the holder of the documents of title applied for delivery of the consignments, and was denied or refused delivery on account of non- availability of the consignments due to pilferage, loss or mis-delivery. When there is no allegation or proof of foreign corresponden~ Bank having applied for delivery and refusal of delivery, the complainants cannot maintain a claim against the insurer. [para 32) [1233-F,G & H; 1234-A] 2. 4 Admittedly, Overseas Containers was only a nonvessel owning common carrier (NVOCC) and not the actual shipping line. Necessarily, therefore, Overseas Containers had to entrust the consignment to an actual shipping line for transportation and the Master Bill of Lading given by the shipping line would show the Overseas Containers as the consignee entitled to receive the delivery.

The very fact that the Master Bill of Lading is not given to the consignors/complainants and the fact that the complainants did not demand for the same shows that they did not intend to apply for delivery directly from the shipping line that carried the consignments but only intended that delivery should be from Overseas Containers which had issued the Bill of lading. [para 34) [1234-E,F & G] 2. 5 As the contract for carriage was between complainants and Overseas Containers and the Bills of· Lading issued by the Overseas Container showed that the consignments were deliverable to the order of the complainants, necessarily Overseas Containers were expected to take delivery of the consignment at Atlanta from the shipping line which actually transported the consignments and then deliver it to the holder of the documents of title who seeks delivery.

Overseas Containers were, thus, entitled to take delivery from the shipping line which transported the consignment and there was nothing collusive, clandestine or irregular about delivery of consign- 1204 [2008] 9 S. C. R. ments being taken by Overseas Containers from the shipping line, as it had entrusted the consignment to the shipping line for transportation. [para 34] [1234-G,H; 1235-A & BJ 2. 6 The insurance cover was in regard to all risks from consignor's warehouse to consignee's warehouse. 8 There is no dispute as to what is the consignor's warehouse as the complainant is clearly shown as the consignor. As regards the consignee's warehouse, if the consignee is treated as Atlanta Rugs Inc. , on delivery to Atlanta Rugs Inc. , the insurer is discharged of any liability for risks.

If the consignee is shown as 'unto order', it does not obviously refer to complainants' warehouse as admittedly the complainants were not having any warehouse in Atlanta (USA), nor were they the holders of the documents. The 'consignee' at the relevant time could only be the collecting Bank in whose favour the documents had been endorsed. But it is not the case of the complainant that the collecting Bank as the holder of the documents of title sought delivery of the consignments from the custom's warehouse or steam ship line or from Overseas Containers. [para 36] [1235-D,E,F & G] 2. 7 Where there is no effort on the part of the 'consignee' to take delivery from the shipping line/customs warehouse, the duration of insurance cover cannot be infinite or indefinite.

In such circumstances the risk cover would terminate on the expiry of 60 days after completion of discharge overside of the insured shipment from the overseas vessel at the final port of discharge at Atlanta having regard to clause 8 of Institute Cargo clause. [para 36] [1235-G & H; 1236-A & BJ 2. 8 It is not the case of the complainant that within that time (of 60 days), delivery was sought by the holder • of the documents and that such delivery was refused. It is also not the case of the complainants that the consignments were unauthorizedly delivered to Atlanta Rugs or NEW INDIA ASSURANCE CO. LTD. v M/S HIRA 1205 LAL RAMESH CHAND that such delivery was within 60 days of landing of the consignments at Atlanta.

In the absence of any averment or evidence as to when the consignments were discharged from the ship at Atlanta and an averment that within 60 days of landing of the consignments at Atlanta the holder sought delivery and delivery was refused, the question of the Insurer being made liable for non-delivery does not arise. After 60 days of the landing of a consignment even if the consignment is destroyed, lost or mis-delivered, it is no concern of the Insurer. [para 36] [1236-B,C & D] 2. 9 Besides, the consignments were being continuously sent from August, 1994 to July, 1995 by the complain- -·. ants without making any effort to ascertain the fate of the earlier consignments. They merely gave the oral intimation to the insurer that too on 2. 2. 1996. No claim was lodged with the insurer in writing. The allegation that orally a claim for 'loss of goods' was made on 2. 2.

1996 cannot be true as, according to complainants themselves, till that date they had no knowledge that the consignments had been either lost or wrongfully delivered. In fact the complainants have not produced even a single document making a claim on the insurer on the ground that the goods had been lost or not delivered. [para 38] [1236-G & H; 1237-A & B] 3. 1 The complainants have failed to plead and make out a case of loss in respect of each and every consignment, either during transit or within 60 days of the consignments being discharged from the ship at Atlanta Port. They merely proceed on the assumption that the Insurer is liable when the documents are not retired by the buyer, which, to say the least, is untenable.

As there is no averment or proof that the consignor or the foreign correspondent Bank holding the documents of title or any person authorized by the ' said Bank applied for delivery within 60 days of the goods being discharged, and as there is no averment or proof that the consignments were lost or wrongly delivered within the said period of 60 days, the liability and responsibility of the insurer under the policy of insurance came to an end with reference to each of those consignments. Consequently, the claim of the complainants against the insurer is liable to be rejected. [para 40] [1239-E,F,G & H] 3. 2 The National Consumer Disputes Redressal Commission has referred to the delay of nine months on the part of the Insurer in repudiating the claim after receiving the surveyor's Report and the failure to furnish a copy of the reports to the complainants, as deficiency in service. But, the fact that the complainants did not lodge any claim in writing has been overlooked.

At all events, they did not produce any document to show the lodging of claim. It was on a mere oral intimation on 2. 2. 1996, the investigation by surveyor was set in motion. Further, the contents of the report had already been notified to the complainants by the surveyor in the telexes dated 4. 3. 1996 and 1. 4. 1996. Therefore, the finding of deficiency in service was not warranted. [para 41] [1240-A,B & C] 3. 3 National Consumer Disputes Redressal Commission did not address itself to the relevant issues. It disposed of the matter without examining the terms of the policy and obligations undertaken by the insurer. In fact, having regard to the nature of issues involved, this was more appropriately a matter for civil court. The order of the National Consumer Disputes Redressal Commission is set aside and the claim petitions before the Commission stand dismissed. [para 31,37 and 43] [1233-C; 1236-F & G 1240-E] CIVIL APPELLATE JURISDICTION : Civil Appeal No.

4306-4307 of 2003 From the final Judgment and order dated 31. 1. 2003 of the National Consumer Disputes Redressal Commission in 1 Original Pentition Nos. 45 &49 of 1997 Raju Ramachandran, M. K. Dua, Kishofe Rawat, Debasis NEW INDIAASSURANCE CO. LTD. v MIS HIRA 1207 LAL RAMESH CHAND [R. V. RAVEENGRAN, J. ] Misra for the Appellant. Nagendra Rai, Harish Chander and Viivek Krishna Tankha, M. T. George, N. Ganpathy, Subramonium Prasad, lmtiaz Ahmed, Naghma lmtaiz, Farukh Rashid, V. N. Raghupathy, J. R. Midha, Pranab Kumar Mullick, S. K. Pattnaik and Anshul Raj (for M/s. Equity Lex Associates) for the Respondents. The Judgment of the Court was delivered by R. V. RAVEENDRAN, J. These appeals under section 23 of the Consumer Protection Act, 1986, are filed against the common order dated 31. 1. 2003 passed by the National Consumer Disputes Redressal Commission, New Delhi ('Commission' for short) allowing in part OP No. 45 of 1997 and OP No. 49 of 1997. OP No.

45 of 1997 was filed by M/s Hira Lal Ramesh Chand and its partner Rajender Kumar Jain (respondents 1 and 2 in CA No. 4306/ 2003). OP No. 49of1997 was filed by Mis Ratan Chand Deep Chand and its two partners (respondents 1 to 3 in CA No. 4307/2003). 2. As the ranks of parties differ in the two appeals and as some parties were given up before the Commission, for convenience, we will also refer to the parties as follows : New India Assurance Co. Ltd. , as 'Appellant' or 'Insurer'; Mis Hira Lal Ramesh Chand and its partners (Respondents 1 & 2 in the first matter) and M/s Ratan Chand Deep Chand and its partners (Respondents 1to3 in the second matter) as the 'complainants'; M/ s Niranjan Shipping Agency Pvt. Ltd. , (third Respondent in the first matter and fourth Respondent in the second matter) as ·Niranjan Shipping'; Punjab National Bank (fourth Respondent in the first matter and fifth Responaent in the second matter), and Bank o.

f Baroda (sixth Respondent in the second matter) by their names; Atlanta Rugs Inc. as the· Buyer'; and Overseas Container Lines Inc. (the Non-Vessel Owning Common Carrier acting as shipping Agent) as 'NVOCC' or 'Overseas Container'. 3. The case of the complainants, in brief, is as follows : Complainants are manufacturers of Rugs and Durries, carrying on business at Mirzapur, UP. In pursuance of orders placed by Atlanta Rugs Inc. , Atlanta (for short the 'buyer'), M/s. Hira Lal Ramesh Chand dispatched 17 consignments of rugs and durries of the value of US$ 4,06,096 between 15. 3. 1995 and 29. 6. 1995; and M/s. Ratan Chand Deep Chand dispatched 38 consignments of the value of US$ 8,87,973 between 23. 8. 1994 and 4. 7. 1995. The consignments were entrusted to M/s Overseas Container Line Inc. , a non- vessel owning shipping Agent represented by its Agent Niranjant Shipping Agency (P) Ltd. , for transhipment from Mumbai to Atlanda (USA).

The Bill of Lading issued by Overseas Container in regard to each of the consignment showed the consignee as "Unto order'' and party to be notified as "Atlanta Rugs Inc. ". All the consignments were insured by the consignors, with the New India Assurance Co. Ltd. The original documents relating to the consignments were forwarded by Niranjan Shipping to the Bankers of complainant- Punjab National Bank. The complainants obtained credit facilities from Punjab National Bank by discounting the Bills and endorsed the Bill of Lading in favour of the said Bank. The said Bank, in turn, forwarded the original documents of title to its agent Sun Trust Bank (earlier known as Trust Company Bank) Atlanta, for collection, by endorsing the documents in their favour. The buyer (Atlanta Rugs Inc. ) did not make payment and obtain release of the documents of title. They therefore made efforts to contact the buyer and the shipping Agent- Overseas Container. They were also not able to locate them.

Nor were they able to find out the whereabouts ofthe consignments. Therefore they telephonically lodged an oral claim with the insurer on 2. 2. 1996 seeking payment of the value of the consignments. The insurer directed them to get in touch with their Surveyor-cum-Claim Settlement Agent atAtlanda -- M/s. Toplis and Hoarding Inc. They accordingly requested the said Surveyor to inquire and investigate the matter and issue necessary certificates. The surveyor submitted their reports to the Insurer, but failed to furnish copies thereof to the complainants. Their claim was not settled by the Insurer for more than a year in spite of reminders. Such failure amounted to deficiency in 1 service and consequently the insurer became liable to pay the value of the consignments and the other amounts claimed, as compensation. NEW INDIA ASSURANCE CO. LTD.

v M/S HIRA 1209 we're insured against all risks; that the buyer did not retire the documents by making payment; that they do not know what happens to the consignments and that therefore the Insurer ought to have paid them the value of the consignment and failure to do so amounted to deficiency in service as contemplated under the Consumer Protection Act, 1986.. We are afraid that these are not allegations or proof of loss or nondelivery sufficient to foist any liability on the insurer. 34. Another question that arises for consideration is who was responsible for transshipment and delivery. Admittedly Overseas Containers was only a non-vessel owning common carrier (NVOCC) and not the actual shipping line. Necessarily therefore Overseas Container had to entrust the consignment to an actual shipping line for transportation and the Master Bill of Lading given by the shipping line would show the Overseas Containers as the consignee entitled to receive the delivery.

The very fact that the Master Bill of Lading is not given to the consignors/complainants and the fact that the complainants did not demand for the same shows that they did not intend to apply for delivery directly from the shipping line that carried the consignments but only intended that delivery should be from Overseas Containers which had issued the Bill of lading. As the contract for carriage was between complainants and Overseas Containers and as the Bills of Lading issued by the Overseas Container showed that the consignments were deliver- NEW INDIA ASSURANCE CO. LTD. v M/S HIRA 1235 / able to the order of the complainants, necessarily Overseas Containers were expected to take delivery of the consignment at Atlanta from the shipping line which actually transported the consignments and then deliver it to the holder of the documents of title who seeks delivery.

If that is so, the Overseas Containers were entitled to take delivery from the shipping line which transported the consignment and there was nothing collusive, clan- _. , destine or irregular about delivery of consignments being taken by Overseas Containers from the shipping line, as it had entrusted the consignment to the shipping line for transportation. 35. There is no averment or proof that the consignments did not reach the destination namely the Port at Atlanta or that the goods were not taken delivery by the Overseas Containers. There is no averment as to whether the holders of the documents namely the Sun Trust Bank applied for delivery or at- 1 tempted to take delivery of the consignment and store them in a bonded warehouse and whether they were refused delivery within the insurance cover period. 36. The insurance cover was in regard to all risks from consignor's warehouse to consignee's warehouse.

There is no dispute as to what 1s the consignor's warehouse as the complainant is clearly shown as the consignor. The difticulty arises about the consignee's warehouse. If the consig11ee is treated as Atlanta Rugs Inc , on delivery to Atlanta Rugs Inc , the insurer is discharged of any liability for risks. If the consignee is shown as· unto order' whose warehouse is to be treated as consignee's warehouse? It does not obviously refer to complainants' warehouse as admittedly the complainants were not having any warehouse in Atlanta (USA), nor were they the holders of the documents. The ·consignee' at the relevant time could only be the r Sun Trust Bank in whose favour the documents had been en- '·dorsed. But it is not the case of the complainant that Sun Trust Bank as the holder of the documents of title sought delivery '.

Jf 'I' the consignments from the custom's warehouse or steJm ship line or from Overseas Containers Where there 1::, nc e:;ort 011 the part of the consignee' to t3kP r:! e'1very ;;orn ·h':: ~h1op1 ·. g ri line/customs warehouse, the duration of insurance cover cannot be infinite or indefinite. In such circumstances the risk cover would terminate on the expiry of 60 days after completion of discharge overside of the insured shipment from the Overseas vessel at the final port of discharge at Atlanta having regard to clause 8 of Institute Cargo clause. It is not the case of the complainant that within that time (of 60 days), delivery was sought by the holder of the documents and that such delivery was refused. It is also not the case of the complainants that the consignments were unauthorizedly delivered to Atlanta Rugs or that such delivery was within 60 days of the landing of the consignments at Atlanta.

In the absence of any averment or evidence as to when the consignments were discharged from the ship at Atlanta and an averment that within 60 days of the landing of the consignments at Atlanta the holder sought delivery and delivery was refused, the question of the Insurer being made Ii- . , able for non delivery does not arise. After 60 days of the land- '" ing of a consignment even if the consignment is destroyed, lost or misdelivered, it is no concern of the Insurer. 37. It should be noted that a claimant insured in a marine insurance claim has to plead and prove the following (i) his position - whether he is the assured or an assignee; (ii) his insurable interest; (iii) the type or kind of the insurance policy and its relevant terms; (iv) the duration of the cover; (v) the nature of risk/loss; and (vi) the risk/loss is covered by the policy.

In the absence of necessary averments and evidence to establish a marine insurance claim, aclaim against the insurer is liable to be rejected. It is unfortunate that the Commission disposed of the matter without examining the terms of the policy and obligations undertaken by the insurer. In fact, having regard to the nature of issues involved, this was more appropriately a matter for civil court. Be that as it may. 38. Another significant aspect is that the consignments were being continuously sent from August, 1994 to July, 1995 by Mis. Ratan Chand Deep Chand and from March to June, 1995 by M/ s. Hira Lal Ramesh Chand without making any effort to ascertain the fate of the earlier consignments. Even when they learnt none NEW INDIA ASSURANCE CO. LTD. v M/S HIRA 1237 of the documents relating. to the consignments had been retired· by the buyer, they merely gave the oral intimation to the insurer that too on 2. 2. 1996 about the non-retirement of the documents.

No claim was lodged with the insurer in writing. The allegation that orally a claim for' loss of goods' was made on 2. 2. 1996 cannot be true as according to complainants themselves till that date they had no knowledge that the consignments had been either lost or wrongfully delivered. In fact the complainant have not produced even a single document making a claim on the insurer on 'the ground that the goods had been lost or not delivered. 39.

The complaints, affidavits and the documents are also significantly silent about the following aspects : (i) The particulars of the ships by which the consignments were transported and the dates on which the ships sailed, and whether any loss or damage was caused to any of the consignments while in transit [Though the Xerox copies ofthe ·Shipping Bills for export of goods under claim for dutY drawback' give the name of ship and date of sailing, they are not authenticated or supported by the evidence of the persons who prepared those shipping Bills or the Customs officers who certified them]. (ii) If the consignments were not damaged or lost in transit, when did the ships discharge the consignments in Atlanta Port; on such discharge whether the consignments were with the shipping line or were shifted to a customs warehouse; or whether they were immediately delivered to Overseas Containers and if so when. (iii) In their rejoinder, the complainants stated that by letter dated 15. 8.

1995 they asked their Bankers to take delivery of the consignments and store them in a bonded warehouse duly insured. This assumes that the consignments had arrived safely and soundly at Atlanta Port. The Sun Trust Bank was holding the original documents at that time. There is no averment as to i:vhether they complied with the said instructions and took delivery of the consignment and place them in a warehouse in its control. If they did not do so, the reasons ought to have been given. (iv) Nothing is said as to whether the Bank holding the documents of title apply for delivery by producing them. The complainants did not obviously apply. If no one ever applied or sought delivery and if there was no refusal, there is no question of loss or the question of liability on the part of the Insurer.

(v) There is no averment as to whether the complainants or the holders of documents of title ever complained or reported loss of the consignment, or about any wrong delivery or misdelivery to any one, in writing. (vi) The consignments were entrusted to Niranjan Shipping, who was acting as the forwarding agent of complainants as also the agent of a non- vessel owning shipping agent (NVOCC) namely Overseas container. The Bills of Lading were issued by a NVOCC. In those circumstances the reason as to why the complainants did not demand for the supply of the copies of the Master Bills of Lading issued by the shipping line/vessel which actually transported the consignments. is not disclosed. The failure of complainantsto pursue the matter with NiranJan Shipping to whom they had delivered the consignments, is also strange. (vii) None of the Bills of lading issued by the Overseas Container Lines Inc. , contains their address. The complainants did not care to seek their address. .

, even though it would not have been possible to take delivery without knowing the address. The complainants did not also care to enquire with Niranjan Shipping, about the absence of address in NEW INDIAASSURANCE CO. LTD. v M/S HIRA 1239 the Bills of Lading. It was only long after all the consignments were dispatched, when the documents were not retired by the buyer, the complainants woke up and requested Niranjan Shipping to furnish the address of the Overseas Container and Niranjan Shipping provided the address by communication dated 8. 8. 1995. This strange behaviour is not explained. This indicates either willful negligence or willful misconduct by way of collusion. (viii) In regard to all the consignments, Niranjan Shipping had issued shipping bills for export of goods under claim for duty drawback' showing the complainant as the exporter and the Atlanta Rugs Inc. as the consignee.

If the Bills of lading showed the consignee as "unto order" (that is the endorsee of the documents of title) and if the property in the goods had not passed by the buyer (Atlanta Rugs Inc. ), then the reason why the complainant did not protest against the issue of such shipping bill showing Atlanta Rugs Inc. as the consignee, is riot stated. 40. The complainants have failed to plead and make out a case of loss, in respect of each and every consignment, either during transit or within 60 days of the consignments being discharged from the ship at Atlanta Port. They merely proceed the assumption that the Insurer is liable when the documents are not retired by the buyer, which, to say the least, is untenable.

As there is no averment or proof that the consignor or the foreign correspondent Bank holding the documents of title or any person authorized by the said Bank applied for delivery within 60 days of the goods being discharged, and as there is no averment or proof that the consignments were lost or wrongly deIivered within the said period of 60 days, the liability and responsibility of the insurer under the policy of insurance came to an end with reference to each of those consignments. Consequently the claim of the complainants against the insurer is liable to be rejected. 41. The Commission has referred to the delay of nine months on the part of the Insurer in repudiating the claim, after receiving the surveyor's Report, and the failure to furnish a copy of the reports to the complainants as deficiency in service. But what is overlooked is that the complainants did not lodge any claim in writing. At all events, they did not produce any document showing the lodging of claim.

It was on a mere oral intimation on 2. 2. 1996, the inyestigation by surveyor was set in motion. Further the contents of the report had already been notified to the complainants by the surveyor in the telexes dated 4. 3. 1996 and 1. 4. 1996. Therefore, the finding of deficiency in service was not warranted. 42. In this view of the matter, it is unnecessary to consider the counter claim of the respondents 1 to 3 in CA No. 4307 of 2003. Nor is it necessary to consider whether such counter claim is maintainable in an appeal under section 23 of the Consumer Protection Act, 1996. 43. In view of the foregoing, the appeals are allowed and · the order of the Nationa' Consumer Redressal Commission is set aside and OP No. 45/1997 and 49/1997 before the Commission stand dismissed. Parties to bear their respective costs. RP. Appeals allowed.