Bharatkumar Pandya, Presiding Member

Heard Mr. Shivam Singh, Advocate for the Complainants and Mr. Ashok Mathur, Advocate, for OP-1 & 2 and Mr. Vartul Vishnoi, Advocate for OP-4. OP-3 is Ex parte vide order dated 24.05.2024. In IA No. 14986 of 2024, filed by Opposite Party No. 4 -M/s Arihant Trailer Services, the applicant sought recall of order dated 13.11.2014 the ex-parte proceedings by contending that it could not appear earlier as it had no knowledge of the pendency of the consumer complaint and the proceedings before this Commission. It was pleaded that the non-appearance was not intentional or deliberate, and that Opposite Party No. 4 came to know about the case only at a later stage, whereafter the present application was filed seeking an opportunity to contest the matter on merits. This Commission, by order dated 21.10.2024, considered the said explanation and examined the record of service. The Commission noted that Opposite Party No. 4 had already been duly served earlier and was proceeded ex-parte on 13.11.2014, and that the explanation offered in the application did not disclose any sufficient or convincing cause for non-appearance over such a prolonged period. The Commission further observed that the proceedings had substantially progressed and that merely stating lack of knowledge, without substantiating circumstances preventing appearance, was insufficient to recall the ex-parte order. Accordingly, finding no merit in the explanation furnished, IA No. 14986 of 2024 was dismissed, and the ex-parte proceedings against Opposite Party No. 4 were directed to continue as such.

2. This Commission had earlier, by order dated 11.08.2016, dismissed the present consumer complaint at the threshold on the ground of maintainability, holding that the complainants did not fall within the definition of "consumer" under the Consumer Protection Act, 1986. Aggrieved by the said order, the complainants preferred an appeal before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court, by order dated 09.08.2023, set aside the order passed by this Commission, held that the complaint is maintainable, and restored Consumer Complaint No. 397 of 2013 to the file of this Commission for adjudication on merits, with all issues kept open. The order dated 09.08.2023 passed by the Hon'ble Supreme Court is reproduced hereinbelow:

                          "ORDER

                          In the instant case the appellant is before this Court assailing the judgment dated 11.08.2016 passed by the National Consumer Disputes Redressal Commission, New Delhi (For short 'NCDRC')

                          A perusal of the said judgment would indicate that it is held therein that a complaint in a matter of the present nature would not be maintainable since the appellant cannot be held to be a consumer under Section 2(1 )(d) of the Act.

                          This issue is no more Consumer Protection res-integra in view of the decision of this Court in the case of National Insurance Company Ltd. Versus Harsolia Motors & Ors., reported in 2023 SCC Online SC 409. In that view, without adverting to any other aspect of the matter and on holding that the complaint filed by the appellant would be maintainable, we deem it appropriate to set aside the order dated 11.08.2016 passed by the NCDRC Consumer Case No. 397 of 2013 and restore the to the NCDRC for consideration of the matter on its merits and in accordance with law.

                          Since the parties are represented by their learned they shall appear before the National Commission counsel, on 15.09.2023 as the first date for appearance. The National Commission shall thereupon regulate the which the learned proceedings and indicate the date on counsel for the parties would decide the matter on its merits and i be heard and in accordance with law.

                          All contentions in that regard are left open to be the proceedings.

                          The appeal is, accordingly, disposed of."

3. The case of the complainants is that Complainant No. 2, Maruti Suzuki India Limited, imported high-value and specialised manufacturing machinery from Japan for installation in its automobile manufacturing facility in India. For this purpose, Complainant No. 2 engaged Opposite Party No. 1, M/s Nippon Yusen Kabushiki Kaisha (NYK Line), an international shipping line, for ocean transportation of the machinery from Nagoya Seaport, Japan to Nhava Sheva Port, India. The shipment was duly covered under Marine Cargo Open Insurance Policies issued by Complainant No. 1, IFFCO-Tokio General Insurance Company Ltd., including Policy Nos. 21618709, 21618722 and 21618724, valid for the period 01.04.2011 to 31.03.2012 (Annexures C-1, C-2 and C-3, page 28 to 50). Prior to dispatch, the machinery was inspected by the foreign seller/manufacturer, and a Precision Inspection Report dated 31.10.2011 was issued certifying the condition of the machinery (Annexure C-4, page 51-58). The cargo was shipped under a Bill of Lading dated 25.11.2011 issued by Opposite Party No. 1 (Annexure C-5, page 59), accompanied by the Commercial Invoice dated 01.12.2011 and Packing List dated 01.12.2011 (Annexures C-6 and C-7, page 61-64). Upon arrival in India, the goods were cleared through customs vide Bill of Entry dated 06.12.2011 (Annexure C-8, page 65). After discharge at Nhava Sheva Port, the cargo was entrusted by Opposite Parties No. 1 and 2 to Opposite Party No. 3, M/s SRK Multimodal Solutions Pvt. Ltd., for inland transportation to the Container Freight Station of M/s Balmer Lawrie & Co. Ltd., who in turn sub-contracted the actual transportation to Opposite Party No. 4, M/s Arihant Trailer Services. During this inland transportation, on or about 17.12.2011, the trailer carrying the machinery met with a serious accident and overturned, resulting in extensive damage to the imported machinery. The incident was immediately reported to the local police at P.S. Nhava Sheva, Mumbai, vide report dated 17.12.2011 (Annexure C-9, page 67), and an Incident Report dated 19.12.2011 was issued by Opposite Party No. 2 acknowledging the occurrence (Annexure C-10, page 69). A preliminary survey was conducted by M/s TRCC Surveyors & Assessors Pvt. Ltd., who issued a "Joint Survey Report" dated 21.12.2011 confirming the damage (Annexure C-11, page 70). Subsequently, a Delivery Order dated 23.12.2011 was issued by OP-2 to the CFS M/s Balmer Lawrie & Co for delivery to Shri Radhakrishana Shipping Pvt. Ltd. for and shifting the damaged cargo (Annexure C-12, page 74). Further detailed inspection was also carried out by the surveyor Intertek India Pvt. Ltd., appointed by M/s Intertek culminating in a Survey Report dated 10.01.2012 (Annexure C-14, page 76), which recorded the nature and extent of damage and confirmed that the machinery had become unfit for use without replacement. Consequent upon the accident, Complainant No. 2 lodged an insurance claim under the aforesaid marine policies, supported by declarations dated 04.01.2012 (Annexure C-13, page 75) and subsequent incident reports dated 06.02.2012 (Annexure C-15). Since the damaged machinery had to be replaced, fresh imports were undertaken, evidenced by Bill of Entry Checklist dated 09.06.2012 (Annexure C-16) and Goods Receipt dated 14.06.2012 for transportation of replacement machinery (Annexure C-17). A Monetary Claim Bill dated 17.07.2012 was raised by Complainant No. 2 upon Complainant No. 1 (Annexure C-18), followed by a formal Monetary Claim dated 18.07.2012 lodged with Opposite Party No. 2 (Annexure C-19). After a comprehensive final assessment, M/s J.B. Boda Surveyors Pvt. Ltd. issued a Final Survey Report dated 11.07.2013, assessing the loss at Rs.2,68,83,576/- (Annexure C-21). Accordingly, IFFCO-Tokio (Complainant No. 1) settled the claim and paid Rs.2,68,83,576/- to Maruti Suzuki India Limited, whereafter a Letter of Subrogation dated 26.08.2013 (Annexure C-22) and Discharge Voucher dated 30.08.2013 (Annexure C-24) were executed, subrogating all rights against the Opposite Parties in favour of the insurer. Despite repeated demands, the Opposite Parties failed to compensate the loss caused due to negligent handling and transportation, compelling the complainants to file the present consumer complaint seeking recovery of Rs.2,68,83,576/- along with interest @ 18% per annum and costs, alleging clear deficiency in service and negligence on the part of the Opposite Parties throughout the logistics chain.

4. The Opposite Parties No. 1 and 2, namely M/s Nippon Yusen Kabushiki Kaisha (NYK Line) and their local shipping agents NYK Line (India) Limited, filed their joint Written Statement on 07.10.2014, contesting the complaint both on facts and law. At the outset, OP Nos. 1 and 2 admitted that they were engaged as ocean carriers for transportation of machinery belonging to Maruti Suzuki India Limited (Complainant No. 2) from Nagoya Seaport, Japan to Nhava Sheva Port, India, under a Bill of Lading dated 25.11.2011 (Annexure C-5 relied upon by the complainants). However, it was categorically pleaded that their contractual obligation was strictly limited to sea carriage, governed by the terms and conditions of the Bill of Lading and applicable maritime law. According to OP Nos. 1 and 2, the shipment was duly carried and discharged safely at Nhava Sheva Port in sound condition, and no damage whatsoever occurred during the sea voyage or at the time of discharge from the vessel and thus denying any liability in law. They asserted that the goods were handed over intact to the port authorities and thereafter to the inland logistics chain, thereby fully discharging their contractual responsibility. OP Nos. 1 and 2 specifically pleaded that after discharge at Nhava Sheva, the cargo was entrusted to Opposite Party No. 3, M/s SRK Multimodal Solutions Pvt. Ltd., for inland transportation, and that any subsequent handling, movement, or transportation of the cargo was beyond the control, supervision, and contractual responsibility of OP Nos. 1 and 2. It was stated that OP No. 3 independently arranged inland movement and, in turn, engaged Opposite Party No. 4, M/s Arihant Trailer Services, as the road transporter. The alleged accident involving overturning of the trailer, as claimed by the complainants to have occurred around 17.12.2011, was thus pleaded to be an event entirely outside the maritime leg of transportation. OP Nos. 1 and 2 emphasized that they neither appointed OP No. 4 nor supervised the inland transportation and therefore cannot be held vicariously liable for any negligence or accident occurring during road transport.

                          4.1 In their Written Statement, OP Nos. 1 and 2 also disputed the alleged incident reports and survey documents relied upon by the complainants, including the police report dated 17.12.2011, the Incident Reports dated 19.12.2011 and 06.02.2012, and the various survey reports (Annexures C-9 to C-15). It was pleaded that these documents were unilateral, post-incident records, prepared without notice to or participation of OP Nos. 1 and 2, and hence not binding upon them. They specifically denied any admission of liability in the so-called incident reports and asserted that mere acknowledgment of an accident by downstream parties cannot fasten liability on the shipping line. It was further contended that the surveys conducted by TRCC Surveyors, Intertek India Pvt. Ltd., and J.B. Boda Surveyors Pvt. Ltd. were insurance-driven assessments meant solely for settlement between the insurer and insured and do not establish negligence or liability on the part of OP Nos. 1 and 2. With regard to the quantum of loss, OP Nos. 1 and 2 strongly disputed the claim of Rs.2,68,83,576/-, contending that the amount claimed is highly exaggerated, inflated, and unsupported by independent proof of actual loss attributable to them. They pleaded that the Final Survey Report dated 11.07.2013 (Annexure C-21, P-98) of M/s J B Boda Surveyors Pvt. Ltd was prepared nearly one and a half years after the alleged accident, was based on internal insurance documents, and did not assess liability under the carriage contract or maritime law. It was further pleaded that replacement imports undertaken by the complainant, supported by documents dated 09.06.2012 and 14.06.2012 (Annexures C-16 and C-17), were commercial decisions of the complainant, for which OP Nos. 1 and 2 cannot be made liable. The claim for interest @ 18% per annum was described as arbitrary, punitive, and contrary to contractual terms. Most importantly, OP Nos. 1 and 2 raised a specific and emphatic objection to the maintainability of the consumer complaint, asserting that Maruti Suzuki India Limited is not a "consumer" under Section 2(1 )(d) of the Consumer Protection Act, 1986, as the services of carriage were availed for a purely commercial purpose, namely import of capital machinery for manufacturing motor vehicles for profit. It was pleaded that the transportation of machinery forms an integral part of the complainant's commercial manufacturing activity, and therefore the complaint is excluded from the definition of "consumer". It is also raised a preliminary issue that the complaint filed on 12.11.2013 (factually complaint was filed on 29.11.2013) is barred by limitation in as much as under the terms of Article III Rule 6 of The Indian Carriage of Goods by Sea Act, 1925, the complaint should have been filed not beyond 15 months from the date of the delivery of the Goods. It was further asserted that IFFCO-Tokio (Complainant No. 1), having paid the insurance claim and obtained a Letter of Subrogation dated 26.08.2013 and Discharge Voucher dated 30.08.2013 (Annexures C-22 and C-24), merely steps into the shoes of the insured and cannot acquire a better legal status than Maruti Suzuki. On these grounds, OP Nos. 1 and 2 prayed for dismissal of the complaint in limine, denying deficiency in service, negligence, or any joint and several liability upon them. No written versions was filed by OP-3 and OP-4.

5. On 16.10.2024, the Complainant no.1 filed their evidence by way of affidavit, Mr. Yogesh Kumar, General Manager of IFFCO-Tokio General Insurance Co. Ltd., states that he is the authorised representative of Complainant No. 1 and is competent to depose on the basis of official records. He affirms that the complaint was originally filed through Ms. Sadhna Trehan, Vice President, who is no longer in service. He denies the allegations made by Opposite Parties No. 1 and 2 except those specifically admitted. It is stated that Complainant No. 2 imported Hemming Press and Hemming Press spares from M/s SC Machinery and Service Co. Ltd., Japan, which were entrusted to Opposite Party No. 1 for sea transportation. The goods were insured under Marine Cargo Open Policies Nos. 21618709, 21618722 and 21618724 for the period 01.04.2011 to 31.03.2012 (Annexures C-1 to C-3), and declarations dated 04.01.2012 were filed (Annexure C-13). Prior inspection was carried out vide Inspection Report dated 31.10.2011 (Annexure C-4). The goods were shipped from Nagoya Seaport, Japan under Bill of Lading dated 25.11.2011 (Annexure C-5) and were found in sound condition as per Commercial Invoice and Packing List dated 01.12.2011 (Annexures C-6 & C-7) and Bill of Entry dated 06.12.2011 (Annexure C-8). After discharge at Nhava Sheva Port, the goods were entrusted by Opposite Party No. 2 to Opposite Party No. 3, who further subcontracted Opposite Party No. 4. On 17.12.2011, the trailer of Opposite Party No. 4 met with an accident and overturned, causing the goods to detach and fall. A police report dated 17.12.2011 was lodged (Annexure C-9) and an Incident Report dated 19.12.2011 was issued by Opposite Party No. 2 (Annexure C-10). A preliminary joint survey was conducted on 19.12.2011, followed by a survey report dated 21.12.2011 by M/s TCRC Surveyors & Assessors Pvt. Ltd. (Annexure C-11). A Delivery Note dated 23.12.2011 was issued (Annexure C-12) and the goods were transported to the Gurgaon plant. A detailed joint survey was conducted on 05.01.2012 at Gurgaon by IM/s J.B. Boda Surveyors & Assessors Pvt. Ltd. and M/s Intertek India Pvt. Ltd. On 10.01.2012, Intertek India Pvt. Ltd. issued a survey report attributing damage solely to the trailer accident (Annexure C-14). A further Incident Report dated 06.02.2012 was issued by Opposite Party No. 2 (Annexure C-15). The goods were treated as constructive total loss and disposed of as salvage for Rs.6,23,000. Replacement goods were imported vide Bill of Entry dated 09.06.2012 (Annexure C-16) and delivered on 14.06.2012 (Annexure C-17). An initial Claim Bill dated 17.07.2012 for Rs.2,57,90,078 was submitted (Annexure C-18) and notice dated 18.07.2012 was issued to Opposite Party No. 2 (Annexure C-19). A Revised Claim Bill for Rs.2,68,83,576 was issued after salvage auction on 18.03.2013 (Annexure C-20). A Final Survey Report dated 11.07.2013 assessed the loss at Rs.2,68,83,576 and attributed the damage to the accident involving Opposite Party No. 4 (Annexure C-21). The claim amount of Rs.2,68,83,576 was paid by Complainant No. 1 vide cheque dated 27.08.2013 (Annexure C-23) and a Discharge Voucher dated 30.08.2013 was executed (Annexure C-24). It is stated that the goods were admitted to be in sound condition at the port and that the damage occurred due to the roadside accident during inland transportation. Negligence and deficiency in service on the part of the Opposite Parties and their agents is asserted. The deponent states that Complainant No. 2 is a consumer, that Complainant No. 1 is entitled to recovery by subrogation, that the Opposite Parties are jointly and severally liable, and that the complaint is within limitation.

                          5.1 Along with the complainants' affidavit, the Surveyor also filed his evidence by way of a sworn affidavit on 16.10.2021, affirming the correctness and authenticity of the survey and loss assessment reports prepared in the present case. It is stated that the Joint Final Survey Report dated 11.07.2013 was prepared by M/s J.B. Boda Insurance Surveyors & Loss Assessors Pvt. Ltd. in the usual course of business, and that the contents thereof are true and correct as per the records maintained by the said surveyor, faithfully depicting the survey and assessment exercise undertaken. A copy of the said Final Survey Report dated 11.07.2013 is already on record and forms part of the complaint as Annexure C-21.

6. The Opposite Parties No. 1 and 2 filed their evidence by way of affidavit on 17.10.2024,the affidavit is sworn by Shri Sandeep Chawla, working as Managing Director, NYK India Private Limited, Mumbai, who states that he is the Constituted Attorney of Respondent No. 1 and authorized representative of Respondent No. 2. He clarifies that the reply was earlier filed through Mr. Naoya Tazawa, Representative Director, Senior Manager, Corporate Office, Tokyo, who is no longer working with Respondent No. 1. It is stated that the complaint has been filed jointly by Complainant No. 1 (IFFCO Tokio General Insurance Co. Ltd.) and Complainant No. 2 (M/s Maruti Suzuki India Ltd.) on the basis of a Letter of Subrogation dated 26.08.2013, issued after settlement of the insurance claim. Respondent No. 1 is described as a shipping company, and the subject goods were shipped on its vessel M.V. "ACX Rafflesia" on 01.12.2011 in Container No. NYKU SO36182-5, under Bill of Lading dated 25.11.2011, from Nagoya Port, Japan, with Nhava Sheva Port, Mumbai as the port of discharge on 17.12.2011. The affidavit records that the goods, namely Hemming Press and Hemming Press spares, were imported by Complainant No. 2 from M/s SC Machinery and Service Co. Ltd., Japan, and upon discharge at Nhava Sheva Port were to be transported to the Container Freight Station (CFS) of M/s Balmer Lawrie & Co. for storage and onward delivery to Gurgaon. It is admitted that while the goods were being transported after discharge by Trailer No. MH-06-AQ-8742, belonging to Respondent No. 4 and appointed by M/s Balmer Lawrie & Co., an accident occurred on 17.12.2011, resulting in damage to a part of the consignment. It is further stated that after assessment of damage by surveyors appointed by both sides, Complainant No. 2 lodged an insurance claim, which was settled by Complainant No. 1, whereafter the Letter of Subrogation dated 26.08.2013 was issued, forming the basis of the present complaint. Respondent No. 1 & 2, however, dispute their liability, contending that their responsibility ended upon discharge of the goods at Nhava Sheva Port and that any damage occurring thereafter during road transportation is attributable to Respondent No. 3 and Respondent No. 4 and/or M/s Balmer Lawrie & Co. In support of this contention, reliance is placed on the driver's report dated 17.12.2011, Incident Report dated 19.12.2011, Survey Report dated 21.12.2011 by M/s TCRC Surveyors & Assessors, Survey Report dated 10.01.2012 by M/s Intertek India Pvt. Ltd., Detailed Incident Report dated 06.02.2012, and the Final Survey Report dated 11.07.2013, all of which, according to Respondent No. 1 & 2, attribute the cause of damage to the accident of the trailer operated by Respondent No. 4. It is specifically pleaded that as per the terms and conditions of the Bill of Lading dated 25.11.2011, Respondent No. 1 & 2 were only required to discharge the goods at the port of discharge, and that it is an undisputed position that the goods were in perfect condition at the time of discharge. Consequently, they assert that they cannot be held liable for any damage caused thereafter during inland transportation. An objection is also raised that since M/s Balmer Lawrie & Co. has not been impleaded, the complaint is bad for mis-joinder. The affidavit further raises a limitation objection, stating that the complaint is barred under the Indian Carriage of Goods by Sea Act, 1925, which prescribes a one-year limitation period, contending that the complaint was instituted on or about 28.11.2013, whereas the accident took place on 17.12.2011. On these grounds, Respondent No. 1 & 2 pray for dismissal of the complaint.

                          6.1 The OP-4 has filed written arguments on 30.12.2025. It is stated that OP-4 is a sole proprietary concern engaged in the inland transportation of goods. It is stated that the Vehicle trailer MH06AQ8742 which is reported in the incident report dated 17.12.2011 does not belong to the OP-4 and even in the FIR (Page -68) the driver has stated the owner of the vehicle to be one M/s Saroj Logistics. As such the truck no. RJ09GB2175 was used by the OP-4 for transporting the damaged packets on 14.06.2012 and not on 17.12.2011. No evidence has been placed on record by any of the parties to even remotely establish that the alleged trailer MH06AQ8742 belong to the OP-4 or that OP-4 is connected with the transportation or accident or that any negligence attributable to the OP-4 on account of the accident. No survey report anywhere has also investigated or reported about the involvement of OP-4. Further It is submitted that in any case there is no privity of contract existing or alleged between the complainants and OP-4. Further, It is contended that pursuit of this complaint by the insurance company is substantially for its commercial purposes and that there is no evidence of any evidence of any nature of OP-4. And therefore complaint qua OP-4 needs to be dismissed.

7. The relevant extract from the surveyor's report of J. B. Boda Surveyors Pvt. Ltd.dated 11.07.2013 on page no. 120 (Annx. C-21) dealing with the Right of Recovery and Assessment of Loss, along with the supporting documentary details, is reproduced hereinbelow:

                          12.00 RIGHT OF RECOVERY

                          The insured M/S. MSIL had lodged a monetary claim on the shipping line M/S NYK Line (India) Ltd. Mumbai vide letter no MSIL/SC (1CL)/MT11/01 dated 18.07.2012 under registered Post (receipt attached in original) amounting to Rs. 2,57,90,078.00 and requested for damage certificate. (Annex-L &L1).

                          The shipping lines has issued an incident report vide report no. NYK/MSIL/2011/01 dated 06.02.2012 where in the accident of carrying Motor Trailer no. MH06AQ 8742 had been mentioned. (Please refer to Annex 'E).

                          Further, the shipping line has issued another report no. NYK/MSIL/2011/01 dated 06.02.2012 they have although mentioned about the incident and place of accident under their custody.

                          However, they have not admitted their liability of the loss due to the accident in the captioned letter. (The Insured lodged lesser amount on the shipping line than final claim amount)

                          14.00 ASSESSMENT OF LOSS:

                          Based on the original procurement of affected 02 Press and re-imports of replacement under purchase order, Invoice Bill of entries vis-a-vis Policies involved. We have computed the loss as under:

                          Note : We had reservation about the sound components which were not connected with alignment of the main body/operation, and started pursuing MSIL as well as supplier to accept the components as sound and not to import these parts. The re import price JPY=3,05,03,000.00 is less than the original procurement price JPY=3,60,00,000.00, as some of the components which were sound had been re-used, hence, the difference of IPY=54,97,000.00 (converted to INR 38,67,140.00)

                          13.10 Details of re-import / Replacement documents:

                          Purchase order no. & date : 241514 dated 11.02.2012

                          (Refer Annex-'P')

                          Basic supply of 02 nos. Hemming Press

                   JPYS,05,03,000.00 (FOB Nagoya seaport, Japan.

                   Quotation of M/S. SS Machinery(annex - Q) & Service Co. Ltd. (The original supplier) no. & date : Q1100106 dated 01.02.2012