{"id":119309,"date":"2006-08-28T00:00:00","date_gmt":"2006-08-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/unichem-laboratories-ltd-mr-s-vs-new-india-assurance-co-ltd-mr-on-28-august-2006-2"},"modified":"2017-12-09T02:13:26","modified_gmt":"2017-12-08T20:43:26","slug":"unichem-laboratories-ltd-mr-s-vs-new-india-assurance-co-ltd-mr-on-28-august-2006-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/unichem-laboratories-ltd-mr-s-vs-new-india-assurance-co-ltd-mr-on-28-august-2006-2","title":{"rendered":"Unichem Laboratories Ltd., Mr. S. … vs New India Assurance Co. Ltd., Mr. … on 28 August, 2006"},"content":{"rendered":"
National Consumer Disputes Redressal<\/div>\n
Unichem Laboratories Ltd., Mr. S. … vs New India Assurance Co. Ltd., Mr. … on 28 August, 2006<\/div>\n
  \n \n \n \n \n \n NCDRC\n  \n \n \n\n\n\n\n\n\n\n \n\n\n\n \n\nNATIONAL\nCONSUMER DISPUTES REDRESSALCOMMISSION,   NEW DELHI \n\n \n\n \u00a0\n\n \n\n \u00a0\n\n ORIGINAL\nPETITION NO. 84 OF 1997\n\n \n\n  \u00a0\n\n \n\nUnichem Laboratories Ltd. \n\n \n\nC-31 & 32, Industrial Area, \n\n \n\nMeerut Road, Ghaziabad-201003  Complainant \n\n \n\n \u00a0\n\n \n\nVersus \n\n \n\n \u00a0\n\n \n\n1. New India Assurance Co. Ltd.  \n\n \n\n 39, Navyug\nMarket, Ghaziabad-201 001 \n\n \n\n \u00a0\n\n \n\n2. Patel Roadways Limited \n\n \n\n 95, New Arya\nNagar, \n\n \n\n Meerut\nRoad, Ghaziabad-201 003  Opposite Parties \n\n \n\n \u00a0\n\n \n\n \u00a0\n\n \n\n BEFORE : \n\n \n\n \u00a0\n\n \n\n HONBLE MR.\nJUSTICE M.B. SHAH, PRESIDENT \n\n \n\nMRS. RAJYALAKSHMI RAO,\nMEMBER \n\n \n\n \u00a0\n\n \n\n \u00a0\n\n \n\nFor the Complainant : Mr.\nS. Raghawan, Advocate with \n\n \n\n Mr. Nikhlesh R. , Adbvocate \n\n \n\n \u00a0\n\n \n\nFor the Opposite Party\nNo.1 : Mr. Kishore Rawat, Advocate \n\n \n\nFor the Opposite Party\nNo.2 : Mr.\nRanjeet Kumar, Advocate \n\n \n\n  \u00a0\n\n  28th August, 2006\n\n \n\n \u00a0\n\n O R D E R\n<\/pre>\n
 \u00a0<\/p>\n
 M.B. SHAH, J. PRESIDENT <\/p>\n
 \u00a0<\/p>\n
  The main question involved in this case
\nis : in case of loss of insured goods or merchandise
\nwhether the Insurance Company is bound to reimburse on the basis of the cost of
\nproduction or on the basis of sale price
\nor by taking into account cost of
\nproduction plus profit.\n<\/p>\n
 \u00a0<\/p>\n
 In our view, in the case of unvalued policy, the
\nInsurance Company is required to reimburse on the basis of cost of production
\nof the goods or merchandise and not on the basis of sale price of the goods or
\ncost of production plus loss of profit.\n<\/p>\n
  \u00a0<\/p>\n
 Facts:\n<\/p>\n
  \u00a0<\/p>\n
  M\/s.Unichem Laboratories Ltd., Complainant herein, has filed
\nthis Original Petition contending that due to fire goods worth Rs.23 lakhs were destroyed during
\ntransit in the godown (at Gaziabad) of
\ncarrier, M\/s. Patel Roadways Ltd. (Opposite Party No.2), on 23.3.1993. It is contended that the Complainant has
\ntaken an All India Marine Insurance (Cargo) Special Declaration Policy for
\nthe period between 1.11.1992 and 31.10.1993. It was an open Marine Insurance
\npolicy for a sum of Rs.8 crores. It is their say that on 24.2.1993, Akin
\nLaboratories, Hyderabad, at the instance
\nof the Complainant (Ghaziabad Unit), despatched a consignment of 209 C.Boxes
\ncontaining 49,820 jars of Unienzyme tablets worth
\nRs.23,23,064\/- as per two transfer
\ninvoices (Rs.12,35,493\/- and Rs.10,88,111\/-) through M\/s. Patel Roadways
\nLtd. The consignment was booked upto   Ghaziabad as the destination\/delivery point, since the Complainants office and
\ngodown are in   Ghaziabad city and that the Carriers godown is also situated in   Ghaziabad. It is stated that the goods reached at the
\nCarriers godown on 4.3.1993, as per the information received by the
\ncomplainant. Thereafter,
\nan incident of fire took place at the godown of the Carrier on
\n23.3.1993 and the consignment was completely destroyed and the complainant was informed
\naccordingly.\n<\/p>\n
 \u00a0<\/p>\n
 The Complainant made enquiries with the Carrier. From the Carrier, they came to know that the Carrier had
\nalso taken an insurance policy from the National Insurance Co. Ltd. for the
\ngoods lying in its godown. For the loss
\nsuffered by the Carrier, survey was carried out and loss and damage was
\nassessed. Yet, the claim made by the
\nComplainant was not settled by the Carrier.\n<\/p>\n
 \u00a0<\/p>\n
  In the meantime, the Complainant also informed
\nthe Opposite Party  M\/s. New India Assurance Co. Ltd. (hereinafter
\nreferred to as the Insurance Company) from whom it
\nhas taken Insurance coverage.\n<\/p>\n
The Insurance Company appointed M.\/s. Agrawal & Sons ,   New
\n  Delhi as surveyors and information was also sent to the Carrier with
\na request to cooperate. The Complainant claimed Rs.23,23,604\/-. The
\nSurveyors after completing the survey, submitted their report on  27th July, 1993. Thereafter, the insurer sought information about the payment of
\nfreight of Rs.8,820\/- . The information
\nsought was submitted, but the claim was not settled by the Carrier.\n<\/p>\n
 \u00a0<\/p>\n
 It
\nis also stated that
\nthe Complainant requested the Carrier to make good the loss by
\nletters dated  12th
\n June, 1993, 27th August, 1994,  21st May, 1996,  25th
\n May, 1996 and  27th March, 1997.\n<\/p>\n
 \u00a0<\/p>\n
 Subsequently, the Insurance Company deputed Lt. Col. Khairat
\nLal Sharma, Surveyor, Loss Assessor & Investigator. Again, the Surveyor sought
\nadditional information. As the
\nclaim was not settled, hence this complaint against the Insurance Company as
\nwell as the Carrier claiming a sum of Rs.23,23,604\/-
\nwith interest @ 18% and costs of
\nRs.50,000\/- was filed on  31st March, 1997. However,
\nthe prayer is made that
\nthe Insurance Company be directed to pay the amount as stated and no specific
\nprayer is made against the Carrier.\n<\/p>\n
 \u00a0<\/p>\n
  It
\nis not disputed that the Complainant had sent the raw material for
\nmanufacturing of Unienzyme & MPS tablets to Akin Laboratories (P) Ltd,   Hyderabad. After the tablets were manufactured, they were sent though the Carrier, Opposite
\nParty No.2 vide two
\nInvoice Nos. R142 dt. 24.2.93 and R143 dt. 24.2.93 wherein there is a note to the following
\neffect:\n<\/p>\n
Note – APPROX COST OF R.M +
\nP.M. ETC. OF THIS
\nINVOICE = Rs. 11,89,135.90. APPROX. COST OF TOTAL CONSIGNMENT INCL. LABOUR CHARGES RS.12,35,493.40 and<\/p>\n
 \u00a0<\/p>\n
Note  APPROX COST OF R.M&P.M. ETC. OF THIS INVOICE IS Rs.
\n10,47, 283.60. APPROX. COST OF TOTAL
\nCONSIGNMENT INCLUDING LABOUR CHARGES IS RS.10,88,111.10.\n<\/p>\n
 \u00a0<\/p>\n
 In
\nboth the invoices labour charges are mentioned as Rs.46,357.50
\nand Rs.40,827.50.\n<\/p>\n
 \u00a0<\/p>\n
 For
\nthe claim made by the Complainant, the Insurance Company has produced on record
\nsurvey report dated 27.7.1993 of Agarwal &
\nSons. While assessing the loss,
\nSurveyors have discussed the same in detail
\nand have observed as under:\n<\/p>\n
 \u00a0<\/p>\n
The tablets
\nwere manufactured by M\/s. Akin Laboratories (P) Ltd. on job work basis. The raw material and packing material was
\nsupplied by the insured. The invoices
\nindicate the labour charges and also the total value of the invoice. The excise duty is included in the
\ninvoice. The declaration to the sales
\ntax authorities as is evident from the Form 31 is the total Invoice value. The carrier has also given a Non Delivery
\nCertificate for the total consignment.
\nBased on these facts the Insured claimed as under:\n<\/p>\n
a) Value of Invoice
\nNo.R142 Rs.12,35,493.40<\/p>\n
b) Value of Invoice
\nNo.R143 Rs.10,88,111.10<\/p>\n
 ———————-\n<\/p>\n
c) Sub Total Rs.23,23,604.50<\/p>\n
d) Less: Salvage NIL<\/p>\n
 ———————-\n<\/p>\n
e) Total Amount claimed Rs.23,23,604.50<\/p>\n
 ———————-\n<\/p>\n
  \u00a0<\/p>\n
 Note: (i) We have observed that the limit per sending as per
\nthe insurance policy is Rs.20,00,000\/-.\n<\/p>\n
 \u00a0<\/p>\n
(ii) We observed from the Invoices that Invoices consist of two parts
\nnamely (a) manufacturing and labour charges (b) approximate cost of raw
\nmaterial and packing material and total of the two has been described as cost of total consignment.\n<\/p>\n
 \u00a0<\/p>\n
Similarly in
\nG.P.I. issued by AKIN laboratories Private Limited, the assessable value of the
\nconsignments has been taken as Rs.19,81,840\/-
\non which excise duty amounting to Rs.3,41,867.40 is stated to have been paid. Total comes to Rs.23,23,707\/-.\n<\/p>\n
 \u00a0<\/p>\n
During our
\ndiscussions we requested the insured to clarify the words Approximate cost of
\nRaw Material. As the same is supplied
\nby the Insured, we wanted to have correct position as this invoice was not a
\nSale Invoice but a stock transfer invoice only. Moreover, on checking the
\ndeclarations for Raw Material despatch we found only one entry for Rs.5,14,467\/- (Despatch date 28.11.92). The policy does not mention basis of
\nvaluation and as per Marine Insurance Act, the Insured can claim on the
\nbasis of actual cost whereas the Transfer Invoice has been made on the basis of Insureds own
\nsale price as clarified by the Insured during discussions.\n<\/p>\n
 \u00a0<\/p>\n
After our
\nclarifications that the actual cost of Raw Material + manufacturing and labour
\ncharges + Both way freight and all other expenses including excise
\nduty paid can be the only maximum liability, the
\ninsured has now given the total basis of cost (copy enclosed). Insured has included interest of Rs.41,694\/- and Administrative overheads of Rs.35,557\/-. Since the Interest as well as Administrative
\noverheads are included based on actual working  it can be taken as part of cost.
\nTherefore, the Assessment of loss works out as follows:\n<\/p>\n
 \u00a0<\/p>\n
 Cost
\nof Raw material Rs.4,34,430.00<\/p>\n
 Cost of packaging material Rs.1,00,138.00<\/p>\n
 Manufacturing charges<\/p>\n
 For both Invoices Rs. 87,185.00<\/p>\n
 \u00a0<\/p>\n
 Excise
\nduty paid Rs.3,41,765.00<\/p>\n
 Insurance
\ncost Rs. 4,226.00<\/p>\n
 Interest
\ncost Rs,
\n41,694.00<\/p>\n
 Cost
\nof Administrative overhead Rs. 35,557.00<\/p>\n
 Inward
\nFreight Rs.\n<\/p>\n
8,820.00<\/p>\n
 (  Hyderabad to   Ghaziabad)<\/p>\n
 \u00a0<\/p>\n
 Outward
\nFreight Rs. 20,334.00<\/p>\n
 (  Ghaziabad to   Hyderabad)<\/p>\n
  ——————\n<\/p>\n
 Rs.10,74,149.00<\/p>\n
 ——————–\n<\/p>\n
 \u00a0<\/p>\n
Note: In case of total loss freight paid is not
\npayable but insured has paid it as transporters insisted at the time of taking
\nof non-delivery certificate.\n<\/p>\n
 \u00a0<\/p>\n
In our opinion
\nalthough the insured has a right to make the agreed value basis which may be
\nthe Transfer Invoice (Sale Price), but in the absence of any basis of
\nvaluation, in our opinion, only cost including all expenses
\nshould be the basis for claim settlement as per Marine Insurance
\nAct. Hence, our assessment is for Rs.10,74,149\/- and the same has been calculated as per insureds own records.\n<\/p>\n
 \u00a0<\/p>\n
 Despite
\nSurvey Report, the loss assessed by the Insurance Company was not paid.\n<\/p>\n
 \u00a0<\/p>\n
  Hence, during the pendency of the
\ncomplaint, by an interim order dated 1.12.2005, we have directed the Insurance
\nCompany to pay the admitted amount of Rs.8,05,611\/- as per the assessment made
\nby the surveyor with interest at the rate of 9%
\nper annum from 1.12.1997 till 31.12.2005. Admittedly, the said amount is
\npaid by the insurance Company to the Complainant.\n<\/p>\n
  \u00a0<\/p>\n
 Submissions:\n<\/p>\n
 \u00a0<\/p>\n
  Learned
\nCounsel Mr.Raghavan, appearing on behalf of the
\nComplainant submitted that the Complainant is required to be reimbursed by a
\nsum of Rs.23,23,604\/- on the basis of the transfer
\ninvoices. It is his submission that in preparing the medicine research and
\ndevelopment costs as well as the goodwill is required to be added or taken into
\naccount. On that basis, transfer invoices are prepared which would be the
\napproximate value of the consignment. He has also referred to Section 29 of the
\nMarine Insurance Act, 1963 (hereinafter referred to as the M.I. Act) which
\nprovides for valued policy.\n<\/p>\n
 \u00a0<\/p>\n
 As against this, learned Counsel for the Insurance
\nCompany submitted that the Insurance Company is required to reimburse loss
\nsuffered by the insured. He referred to Section 18(3) of the M.I.Act, which provides that in case of insurance on goods
\nor merchandise, the insurable value is the prime cost of the property insured,
\nplus the expenses of and incidental to shipping and the charges of insurance
\nupon the whole. He pointed out that in
\nthe present case the insurance policy is not a valued policy.\n<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
 Findings:\n<\/p>\n
  In
\nour view, there is no substance in the contention of the learned Counsel for
\nthe Complainant that the policy taken by the Complainant was a valued
\npolicy. Section 29 of the M.I.Act provides that a policy may be either valued or
\nunvalued; a valued policy is a policy which specifies the agreed value of the
\nsubject matter insured; and, in case of valued policy, in the absence of fraud,
\nthe value fixed by the policy is, the sum as is agreed between the insurer and
\nthe assured. In the present case, there
\nis nothing on record to establish that the policy taken by the Complainant is
\nvalued policy. There is no agreed
\nvaluation by the
\ninsured and the insurer.\n<\/p>\n
It is an Open Marine Insurance Policy with a specific condition that in
\ncase of one trip limit for sending goods would be Rs.20 lakhs
\nand the sum insured for the entire period of one year was Rs.8 Crores.\n<\/p>\n
 \u00a0<\/p>\n
  Further,
\nSection 30 defines Unvalued policy, to mean, a policy which does not specify
\nthe value of the subject matter insured, but is subject to the limit of the sum
\ninsured, and leaves the insurable value to be subsequently ascertained, in the
\nmanner provided under the Act. For ascertaining the insurable value Sub-section
\n(3) of Section 18, inter alia, provides that in
\ninsurance of goods or merchandise, the insurable value is the prime cost of the property insured, plus the expenses of and incidental to shipping an
\nthe charges of insurance upon the whole. That has been worked out by the
\nsurveyors.\n<\/p>\n
 \u00a0<\/p>\n
  The
\nSurveyors have rightly discussed this aspect and have arrived at the conclusion
\nthat only prime cost including all expenses could be the basis for claim settlement as per the
\nM.I.Act. For assessing the loss, they have relied
\nupon undisputed document, Annexure R-3, dated  28th July, 1993, given by the Complainant wherein the cost is
\nworked out as under:\n<\/p>\n
 \u00a0<\/p>\n
 Summary <\/p>\n
 \u00a0<\/p>\n
 Working of Cost of 49,820 Jars of Loot Unienzyme<\/p>\n
 \u00a0<\/p>\n
Sl. No. <\/p>\n
   Particulars<\/p>\n
Amt. In Rs.\n<\/p>\n
1. <\/p>\n
Rawmaterials cost @ 8.72 per jar <\/p>\n
4,34,430.00 <\/p>\n
2. <\/p>\n
Pkg. Material
\n  cost @ 2.01 per jar <\/p>\n
1,00,138.00 <\/p>\n
3. <\/p>\n
Mfg. Charges
\n  paid @ 1.75 per jar <\/p>\n
87,185.00 <\/p>\n
4. <\/p>\n
Excise duty
\n  paid @ 6.86 per jar <\/p>\n
3,41,765.00 <\/p>\n
5. <\/p>\n
Insurance
\n  cost involved (working enclosed) <\/p>\n
4,226.00 <\/p>\n
6. <\/p>\n
Interest cost
\n  involved (working enclosed) <\/p>\n
41,694.00 <\/p>\n
7. <\/p>\n
Adm. Overhead
\n  cost involved (working enclosed) <\/p>\n
35,557.00 <\/p>\n
8. <\/p>\n
Freight
\n  inward (proof enclosed) <\/p>\n
8,820.00 <\/p>\n
9. <\/p>\n
Freight outward
\n  (proof enclosed) <\/p>\n
20,334.00 <\/p>\n
 \u00a0<\/p>\n
Grant total <\/p>\n
10,74,149.00 <\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
  Relying
\nupon the loss assessed by the Surveyors,
\nas the Complainant has not protected the recovery rights against the
\nCarrier by initiating legal action, the Insurance Company treated the case as
\nnon-standard claim and reduced the loss by 25%
\nand offered to pay Rs.8,05,611\/-\n<\/p>\n
vide its letter dated 28.11.1997 which was not accepted by the Complainant.\n<\/p>\n
 \u00a0<\/p>\n
 From the aforesaid discussion, it can be held that
\nthe total loss suffered by the complainant is
\nfor a sum of Rs.10.74,149\/-, which in case of default by the carrier, Insurance Company is required to reimburse to
\nthe Complainant.\n<\/p>\n
 \u00a0<\/p>\n
 Carriers liability:\n<\/p>\n
  The
\nnext question is with regard to carriers liability. As per the
\nsettled law, primary liability to reimburse the Complainant is that of the
\ncarrier.\n<\/p>\n
 \u00a0<\/p>\n
  In
\nthe present case, carrier has not disputed the fact of fire at the godown and the loss suffered by the Complainant. Evidence by way of affidavit is filed by one Arun
\nK. Singh, Assistant Manager (Legal) of the Carrier Company. In the said
\naffidavit, it has been pointed out that the carrier was not negligent in
\ndischarge of its duties and the damage caused to the consignments was beyond
\ntheir control. It is also pointed out that on 3.4.1993, the Complainant was
\nasked, requested and advised to lodge the claim with their underwriters
\nimmediately to avail the maximum and speedy compensation. The Complainant was
\nalso requested to submit an affidavit stating that the consignment was insured
\nfor transit risk with their respective underwriters and that the insurance
\ncover was valid and in existence with the underwriters, along with the copy of
\nthe original invoices, insurance policy cover note and consignees copy. It is
\nalso contended that
\nconsignment of the Complainant was at owners risk and carrier was not
\nresponsible for the loss caused to the consignment. Hence, within 3 months of
\nthe loss of consignment by fire, the certificate with the remark consignment
\nnot delivered was issued to enable the Complainant to lodge the claim with
\ntheir underwriters.\n<\/p>\n
 \u00a0<\/p>\n
 It is also pointed out that the Insurance Company
\nof the Carrier has appointed M\/s.Mehta & Padamsey Surveyors Pvt. Ltd. and the claims were divided
\ninto three heads, namely, (i) consignments which were
\ndeclared to have not been covered by separate marine insurance covers by the
\nconcerned consignors-consignees; (ii) consignment initially as covered under
\nseparate marine insurance covers by consignors-consignees but later found to have
\nexpired and\/or not valid at the time of fire; and, (iii) consignments which
\nwere declared to have been covered by separate marine insurance covers by the
\nconcerned consignors-consignees.\n<\/p>\n
 \u00a0<\/p>\n
  On
\nthat basis, the loss was assessed by the Surveyors. As per the Surveyors
\nreport, they have not assessed the loss with regard to consignments for which marine insurance cover
\nwere taken by the consignors\/consignees separately and to that effect survey
\nreport dated 4th April, 1997 given by M\/s. Mehta and Padamsey Surveyors Pvt. Ltd. is produced on record.\n<\/p>\n
 \u00a0<\/p>\n
  In
\nconclusion, they have stated as under:\n<\/p>\n
 The
\ninsurers liability arises only when the insured makes payment to their customers, in their capacity as bailees. Documentary evidence
\nof the insured having paid out an aggregate amount of Rs.29,03,145\/- has been produced before us and verified. Based on the above On Account
\nPayment not exceeding Rs.21,94,423\/- as worked out
\nabove, can be made to the insured.\n<\/p>\n
 \u00a0<\/p>\n
 Additional
\nreimbursements can be made to the insured as and when they make further payments to the various consignors\/consignees; subject to their producing documentary evidence thereof, for which we will issue supplementary reports from time to time.\n<\/p>\n
 \u00a0<\/p>\n
  Along
\nwith the survey report there are various annexures
\nincluding Annexure D-1, which is a
\nstatement giving details of affected consignments in
\nbooking-cum-delivery-cum-transhipment godown declared to have been covered under the separate
\nmarine insurance cover is produced wherein the goods transported by the
\nComplainant is also mentioned.\n<\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
  The
\nsaid survey report dated 4th April, 1997 leaves no doubt that the
\nInsurance Company of the carrier has kept the question open with regard to payment of damages to be reimbursed by the
\ncarrier to those other consignors\/consignees to whom their Insurance Company
\nhas not reimbursed the damages.\n<\/p>\n
 \u00a0<\/p>\n
  To
\nthe same effect, on behalf of the Carrier (Opposite Party No.2), written
\nsubmissions are filed on 17.8.2006 wherein it is, inter alia,
\ncontended that:\n<\/p>\n
(i)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nthat the fire was serious in nature, and there was no fault on
\ntheir part as they have taken necessary precautions to prevent the fire in the godown;\n<\/p>\n
(ii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nnon-delivery certificate was also issued to the
\nComplainant to enable them to lodge their claim with their underwriters
\n(Respondent No.1);\n<\/p>\n
(iii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nno relief is sought in the prayer clause against
\nthe carrier;\n<\/p>\n
(iv)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nthe claim of the Carrier Company against its
\nInsurance Company was assessed by the Surveyor by dividing into three parts:\n<\/p>\n
(a). 539
\nconsignments declared to have not been covered by separate marine insurance;\n<\/p>\n
(b). 239 consignments covered
\nunder separate marine insurance by the consignors\/consignees but later
\nfound to have been expired and\/or not valid at the time of fire;\n<\/p>\n
(c). 202 consignments covered by
\nseparate marine insurance cover taken by the consignors\/consignees and on that
\nbasis the Complainant was asked to lodge claim against their underwriters;\n<\/p>\n
 (v). Insurance Company (RespondentNo.1) is not a
\nconsumer;\n<\/p>\n
 (vi). the claim is
\nbarred under Section 24-A.\n<\/p>\n
 In
\nour view, the aforesaid submissions are without any substance. Firstly, law is
\nsettled on the subject. It is the primary liability of the carrier to reimburse
\nthe plaintiff\/Complainant in case of loss\/damage for non-delivery of the goods
\nentrusted to them for carriage. For this Sections 8 and 9 of the Carriers Act,
\n1865, are very clear and the same are interpreted by the Apex Court in Nath Bros. Exim International
\nLtd. Vs. Best Roadways Ltd. (2000) 4 SCC 553, wherein the Court has held that
\nthe liability of the carrier to whom the goods are entrusted for carriage is
\nthat of the insurer and is absolute in terms, in the sense that the carrier has
\nto deliver the goods safely, undamaged and without loss at the destination,
\nindicated by the consignor. So long as the goods are in custody of the carrier,
\nit is the duty of the carrier to take due care as he would have taken of his
\nown goods and he would be liable if any loss or damage was caused to the goods
\non account of his own negligence or criminal act or that of his agent and
\nservants. The Court has also observed that the carrier can escape his liability
\nonly if it is established that the loss or damage was due to an act of God or
\nenemies of the State. The Court has also observed that the expression at owners
\nrisk does not exempt the carrier from his own negligence or negligence of his
\nservants or agents.\n<\/p>\n
 \u00a0<\/p>\n
  Secondly,
\nthe contention that the claim is barred under Sec.24-A of the Consumer
\nProtection Act, 1986, is without any substance. The Carrier has not settled the claim made
\nby the parties till the Surveyors of the Insurance Company of the Carrier
\nsubmitted their report. The report, as stated above, was submitted only on  4th April, 1997. Further,
\nthe Complainant has also written letters to the Carrier to settle their claims.
\nTheir letters are dated 12.6.1993; 27.8.1994; 21.5.1996; 25.5.1996; and,
\n27.3.1997. At no point of time the carrier has denied its liability. However,
\nthe Carrier had asked the Complainant to lodge its claim with the underwriters.
\nOn that basis, claim was lodged with Opposite Party No.1. But, as the claim was
\nnot settled, complaint was filed before this Commission on  31st March, 1997. Therefore, the
\ncontention that the claim is time barred is without any basis.\n<\/p>\n
 \u00a0<\/p>\n
 The
\nnext contention is with regard to prayer clause. In the complaint which is
\nfiled before this Commission, the Carrier is a party Respondent. All the
\nnecessary facts are stated with regard to the Carriers liability. It is stated
\nthat documents pertaining to the loss and resultant claim was furnished to the
\nCarrier. Thereafter, the Complainant wrote a letter to the Carrier to make good
\nthe loss to the tune of Rs.23,23,604\/-. Another
\ncommunication was sent. Repeated letters were sent. But, there was no response.
\nThereafter, an inquiry was made as to whether the Insurance Company of the
\nCarrier has settled the claim of the Complainant or nor. However, the
\nComplainant had not received any information. Therefore, at the initial stage,
\nNational Insurance Company Ltd. which had insured the Carrier was also made as
\nparty Respondent. However, as the
\nInsurance Company of the Carrier was not necessary party it was required to
\nbe deleted.  Further, before the Consumer Forum, inquiry is inquisitorial one and
\nnot adversary. Therefore, not claiming specifically against the Carrier in the
\nprayer clause would not defeat the right of the Complainant to receive the
\nreimbursement from the Carrier which is primarily liable to reimburse the
\nComplainant for the loss suffered by it.\n<\/p>\n
  \u00a0<\/p>\n
 Conclusion:\n<\/p>\n
 In
\nview of the foregoing discussion, the complaint is partly allowed. It is held
\nthat the Respondent No.2  Carrier shall pay a sum of Rs.10,74,149\/- with
\ninterest at the rate of 9% p.a. from 23.9.1993 (i.e. after six months from the
\ndate of the incident of fire). The Carrier is directed to pay the said sum
\nwithin a period of three months from today.
\nIf the amount is not
\npaid by the carrier within the stipulated time, it would be open to the Complainant to
\nrecover the remaining amount from the Insurance Company. In case the Carrier pays the amount as stated
\nabove, Complainant shall refund the amount paid by the Insurance Company as per our
\ninterim order dated 1.12.2005. In any
\ncase, if there is failure on the part of the Carrier to pay the amount, it
\nwould be open to
\nthe complainant to recover the same by filing execution petition and refund
\nthe amount paid
\nby the Insurance Company.\n<\/p>\n
 \u00a0<\/p>\n
  Sd\/-\n<\/p>\n
 J.\n<\/p>\n
 (M.B.SHAH) <\/p>\n
 PRESIDENT <\/p>\n
 \u00a0<\/p>\n
Sd\/-\n<\/p>\n
 \u00a0<\/p>\n
 .\n<\/p>\n
 (RAJYALAKSHMI
\nRAO) <\/p>\n
 MEMBER <\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"
National Consumer Disputes Redressal Unichem Laboratories Ltd., Mr. S. … vs New India Assurance Co. Ltd., Mr. … on 28 August, 2006 NCDRC NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION, NEW DELHI \u00a0 \u00a0 ORIGINAL PETITION NO. 84 OF 1997 \u00a0 Unichem Laboratories Ltd. C-31 & 32, Industrial Area, Meerut Road, Ghaziabad-201003 Complainant \u00a0 Versus \u00a0 1. New […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-119309","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nUnichem Laboratories Ltd., Mr. S. ... vs New India Assurance Co. 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