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Metcalfe & Hodgkinson Pvt. Ltd. vs. Peace Trade Concern dated 2014-09-09

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

REVISION PETITION NO.  2473 OF 2013

(Against the order dated  12.02.2013 in S.C. Case No. FA/201/2012

of the State Consumer Disputes Redressal Commission, West Bengal, Kolkata)

WITH

IA/4122/2013

IA/4750/2013

(STAY &  CONDONATION OF DELAY)

 

Metcalfe & Hodgkinson Pvt. Ltd.

Flat No. 412 A, 4th Floor, Mansarovar,

90, Nehru Place,

New Delhi-110019                                                        ........ Petitioner

   

Versus

 

1. Peace Trade Concern

    Office: Pashupati Adarshnagar,

    Birgunj,

    Nepal

 

Representative Office : C/o Universal Agency,

6, Old Post Office Street,

2nd Floor, P.S. Hare Street,

Kolkata-700001

 

2. Tirupati Carrying Corporation,

   34 A, Maharshi Debendra Road,

   P.S. Joransanko,

   Kolkata- 700006

 

3. Ping An Property & Casulty

    Insurance Company of China Ltd.,

    Integrated Operation Centre,

   B 1 Area, 4th Floor, Building No. 1158,

   Shanfeng Road, Pudong District,

    Shanghai City,

   China- ZIP 201201

                                                                                   ……. Respondents

 

BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

 

For the Petitioner                   :  Mr. Prem Anand, Advocate

 

For the Respondents            :  NEMO  

 

Pronounced on :  9th September, 2014

 

 

 

ORDER

 

 

 

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      The complainant, Peace Trade Concern, filed this case against two Opposite Parties, which are mentioned in detail as follows:-

    “1.Ping An Property Insurance Company of China Ltd.

         Integrated Operation Centre,

        B 1 Area, 4th Floor, 1 Building No. 1158 of

        Shanfeng Road, Pudong,

         Shanghai City,

        China- ZIP 201201

        And also carrying on business in India through

        Metcalfe & Hodgkinson Pvt. Ltd.

        Flat No. 412 A, 4th Floor, Mansarovar,

        90, Nehru Place, New Delhi-110019

 

      2. Tirupati Carrying Corporation,

         34 A, Maharshi Debendra Road,

         P.S. Joransanko,

         Kolkata- 700006”

2.      Peace Trade Concern, the complainant in this case placed an order with the Suppliers/Shippers, M/s Beijing Xinyiborui Chemical Plant, China  and 98 drums containing 19800kgs. Of Calcium Carbide was dispatched by ship from Xingang, China to Kolkata Port. Such goods were transported from Kolkata Port to Nepal by Tirupati Carrying Corporation-OP-2, which is a road carrier and for that an insurance from OP-I, of goods detailed above was obtained by the complainant. On 20.07.2007, in Nepal, it transpired that the drums were in variously damaged condition and a survey was conducted by M/s Marine Commercial Claims (Nepal) on two days i.e.  20.07.2007 and 21.07.2007 at Birganj Customs Premises, Nepal.  It also came to light that 98 drums were in damaged condition and the quantity damaged was 5987 kgs out of 9800 Kgs. 

3.      The OPs did not respond to their requests and legal notices dated 10.06.2010 and 11.09.2010. The complainant made claim of the above said loss with OPs-1 & 2 in the sum of USD 3531.64 before the District Forum.   OP-1 contested this case and OP-2 was proceeded  against ex-parte before the District Forum. The District Forum passed the following order:-

“That the petitioner of complaint is allowed on contest against O.P. No.1 and ex parte against O.P. No. 2 with cost. OPs are jointly and severally directed to pay a sum of Rs. 1,65,988/- (Rupees one lakh sixty five thousand nine hundred eighty eight) only to complainant together with interest @ 9% p.a. from the date of consignment till the date of realization and are further directed to pay compensation of Rs. 10,000/- (Rupees then thousand) only for his harassment and mental agony and litigation cost of Rs. 5000/- (Rupees five thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.”

4.      It is interesting to note that the appeal as well as this Revision Petition was filed by Metacalfe & Hodgkingson Pvt. Ltd. against Peace Trade Concern, Tirupati Carrying Corporation  and Ping An Property and Casualty Insurance Co. of China, who were arrayed as OPs-1, 2 & 3.

5.      We have heard the counsel for the petitioner Metacalfe & Hodgkingson Pvt. Ltd.  He contended that he is a Surveyor/Simpliciter. His name also appears in the policy, wherein it has been shown that survey was to be conducted only by Metcalfe & Hodgkingson Pvt. Ltd. Learned counsel for the petitioner submitted that the Survey dated 20.07.2007 and 21.07.2007 was done by the available competent surveyor and not by them.  He stressed that petitioner did not conduct any survey in this case.  He contended that he is not an agent of Insurance Policy. 

6.      All these arguments are bereft of force.  The main thing is that the OP-1 as arrayed before the District Forum, appeared before the District Forum.  The petitioner took the objection that case was bad for mis-joinder and non-joinder of parties.  This is a mere objection which was never explained.  It was also mentioned that the OP-1 in no material point of time had taken part in any service or deficiency in services in the settlement of Insurance claim of the complainant as surveyor had been done by some other Company or Firm instead of OP-1.

7.      I have gone through the entire written version filed by the OP-1 for himself as well as for Ping An Proper & Casualty Insurance Co. Limited, China. Before the State Commission, he represented both the Companies including itself.  Even in the District Forum, it acted as an agent of the main OP-1. The State Commission has rightly held:-

“It is the normal procedure to appoint an Indian agent by such foreign Insurance Company in the matter, and the Appellant is such a person, who also provides surveying. Cause of action related to the Kolkata Port from where the OP No. 2 is also situate and transported the consignment of the destination.  As such, considering all the aspects involved in the matter, it found that the finding of the Ld. District Forum is a proper one and there needs no interference to it and the order passed therein.”

8.      Above all, the petitioner has suppressed the agreement between it and Ping An Property Insurance Company of China Ltd.  The production of that document would have gone a long way to elicit the true position of the parties.  There is no inkling in the evidence on the record that the petitioner clarified that Ping An Property Insurance Co. of China Ltd. is a different entity.  It has no concern with it and it should be sued separately.  However, on the contrary, he went on to represent it till the decree was passed by the District Forum.

9.      The Revision Petition is vexatious and frivolous.  It has wasted the precious time of this Commission and the Fora below. Consequently, I dismiss the same with costs of Rs. 10,000/- , which will be paid to Peace Trade Concern-the complainant alongwith other amount, within a period of 45 days from the receipt of the order of this Commission, otherwise it will carry interest on both the amounts @ 12% p.a. till its realization.

 

 

 

.…..…………………………

(J. M. MALIK, J)

                       PRESIDING MEMBER

 

Jr/8

 


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