JUDGMENT The Order of the Commission was delivered by : Bhattacharya, Member.––The factual matrix of the Complaint's case is that it is an importer of raw petroleum coke from China for its plant in Budge Budge, done through ocean going vessels discharged at Sand heads or Haldia, depending upon the quantity, in the former for heavy shipment, and in the latter for moderate tonnage. As such, in the course of normal business activity, it ordered for two consignments of raw petroleum coke from suppliers in China, being No (1) Invoice Nos. 05SIHLVO421A, 05SIHLVO421B, 051HLVO421BA & 05SIHL421BB all dated 12.05.2005. Total quantity 13150.20 MT Suppliers: Sinoway International Holdings Ltd., 118, Cannaught Road West, Hongkong, and No. (2), Invoice Nos. NC-F-692-1 & NC-F-692-2 both dated 29.10.2005. Total quantity: 8577.71 MT : Suppliers : Mitsubishi Corporation, 6-3, Marunouchi, 2-Chome Chiyoda-KU, Tokyo-100-86, Japan. Out of them, Item No.1 was shipped per vessel M.V. Glyfada to be discharged at Sandheads and Item No.2 was shipped per M.V. Chennai Polivu to be discharged at Haldia Port. Accordingly, the Complainant approached the OP No. 1 with proposals for insurance on such shipments being based on Cost & Freight (C&F) terms and the insurance to be arranged by the buyer, i.e., the Complainant, which were accepted by the OP No.1, who issued Policy No.530/05/21/05/00004 dated 29.04.2005 covering 13150.200 MT per MV Glyfada, and the sum insured inclusive of enhancement of sum insured by endorsement is Rs.8,27,088.00 and Policy No.530705/21/05/00015 dated 07.09.2005 covering 8577.71 MT per MV Chennai Polivu, and the sum insured inclusive of enhancement of sum insured by enhancement is Rs.5,40,77,712.00. The transit clause was from Warehouse to Warehouse. Upon arrival of the vessels at the respective Ports/places of discharge, the Complainant intimated the same to the OP No.1, who appointed M/s. A.B. Thange and Anuj Dutta Roy as Surveyors, in respect of M.V. Glyfada and M.V. Chennai Polivu, respectively, to supervise the discharges of the cargoes and also to assess the shortage or damage, if any, to the cargoes. In their reports, M/s. A.B. Thange shows a total shortage of 503.555 MT vide Survey Report No. Synerg RCP/02 dated 17.06.2005 and Anuj Dutta Roy shows a total shortage of 365.818 MT vide Survey Report No. ADR/Marine/NIA/4238/2005 dated 22.12.2005. Accordingly, the Complainant submitted a detailed claim as per Surveyor's assessment of Rs. In their reports, M/s. A.B. Thange shows a total shortage of 503.555 MT vide Survey Report No. Synerg RCP/02 dated 17.06.2005 and Anuj Dutta Roy shows a total shortage of 365.818 MT vide Survey Report No. ADR/Marine/NIA/4238/2005 dated 22.12.2005. Accordingly, the Complainant submitted a detailed claim as per Surveyor's assessment of Rs. 27,54,897.00 in respect of M. V. Glyfada and Rs.20,52,936.00 in respect of M. V. Chennai Polivu, aggregating to Rs.84,07,833.00. After many reminders, the OP NO.3 admitted the claim for Rs. 1,41,925.00 under Policy No.530705/21/00004, M. V. Glyfada and Rs.8,83,785.00 under Policy No.530705/21/00015, M.V. Chennai Polivu vide their letter ref. NERO/Tech/2007 dated 23.11.2007, but it took another four weeks to send the claim vouchers dated 19.12.2007. Since submission of the claim, as the Complainant suffered financial loss due to blockage of capital and/or money for the shortage in consignments and was financially hard hit and in dire need of money, it was compelled to accept the settlement as partial settlement because of the unusual delaying tactics of the OPs. But, soon after receipt of the cheques, the Complainant lodged a protest with the OP vide letter No. Corp/INACL/2/07-08 dated 20.02.2008 demanding the balance amount of the claim, which was replied by the OP No.3 vide letter No. NERO/TECH/MR.CL/FBJ/5755 dated 20.02.2008. The adjustments shown by the OP No.3 in the letter is void, being in violation of policy conditions and Survey Report, baseless, unilateral, coercive, mala fide, etc., in order to deprive the Complainant of the legitimate claim, and thus guilty of deficiency in service. So, the Complainant is entitled to the balance amount of Rs. 37,82,123.00. Accordingly, the complaint case. 2. On the other hand, the case of the OP in the W.V. is that the case is not maintainable either in law or in facts and barred by territorial jurisdiction. Further, the Complainant has accepted and encashed the amount offered by the OP. The Complainant did not submit documents as demanded by the Insurer and its Surveyor. The claim was considered at 60% as per recommendation of Mr. Saumitra Gupta, Surveyor & Loss Assessor dated 08.03.2006, etc. Accordingly, the OP has prayed for dismissal of the case. 3. The following points are necessary to be adjudicated in this case:- (a) Is the complaint case maintainable? (b) Is the complaint case barred by territorial jurisdiction? (c) Is the Complainant entitled to the award as prayed for? Decision with reasons. Saumitra Gupta, Surveyor & Loss Assessor dated 08.03.2006, etc. Accordingly, the OP has prayed for dismissal of the case. 3. The following points are necessary to be adjudicated in this case:- (a) Is the complaint case maintainable? (b) Is the complaint case barred by territorial jurisdiction? (c) Is the Complainant entitled to the award as prayed for? Decision with reasons. Points (a) & (b) 4. Both these points are taken up together for discussion for their interconnectedness. 5. Undisputably, the cargoes were discharged by the respective vessels at Sandheads and at Haldia and for the shortage of such consignments, the present complaint case has arisen. So, in any case, the cause of action in part arose within the territorial jurisdiction of this Commission, There is no other flaw in the complaint case. So, it cannot be termed as non-maintainable. Thus, these points are decided in the positive in favour of the Complainant. Point (c) 6. Admittedly, Mr. A.B. Thange, Principal Surveyor of A.B. Thange Surveyors & Assessors made a first-hand survey at Haldia Port, as assigned by the Insurer and to report, namely; 1. To carry out initial & final draft surveys on board the vessel to ascertain quantity of raw petroleum coke brought by the vessel at Haldiya Port (India); 2. To carry out break bulk Inspection of the cargo on arrival upon opening of the hatch covers; 3. To attend continuously on wharf during the period of discharge/delivery of the cargo in order to:- a. Ensure minimization of handling loss to the best exten possible; b. Maintain an accurate record of loaded lorries dispatched from the wharf; c. Check the fare and gross weight of lorries passing through the nominated weighbridge with bulk RPC and ascertain the quantity of cargo delivered from the wharf under weighment & the draft survey for barges. 7. He boarded the vessel which was fully secured alongside. He made draft survey before and after discharge operations to compute quantity brought by the vessel along with the Chief Officer of the vessel. He found shortage of 503.555 MT = 3.829%, The operational losses/handling losses were found on the ground:- 1. Part of loss can be attributed to handling loss effected in various multiple operations like transferring from the hold with the help of grab, transferring to what, unloading on what, loading into trucks etc. involving in discharging operations. 2. He found shortage of 503.555 MT = 3.829%, The operational losses/handling losses were found on the ground:- 1. Part of loss can be attributed to handling loss effected in various multiple operations like transferring from the hold with the help of grab, transferring to what, unloading on what, loading into trucks etc. involving in discharging operations. 2. Some part of cargo is lost in man (skilled & unskilled labourers) and machinery (cranes, forflifts trucks etc) movements. 3. Cargo was transferred to the barges from mother vessel & again some was discharged at BUDGE BUDGE so multi-handling in multiple operation also causes loss of cargo, during transit. 4. Some part gets lost through gaps between barges & whart & can be taken into the consideration at the time of settlement of claim. 5. Moisture is also factor which is attributed to the loss of weight & can be taken into the consideration at the time of settlement or claim. 6. During transit from barges BUDGE BUDGE there are chances of burglary during transit. 8. Accordingly, he recommended for indemnification of the receiver of Rs. 18,60,578.00, subject to admissibility and payability of the claim as per policy terms/conditions. 9. Likewise, Anuj Dutta Roy supervised discharges/unloading/delivery of bulk cargo M.V. Chnnai Polivu at Sand heads and 28 KP Dock and delivery point of Budge Budge at the Complainant Company, upon instruction from the OP No. 1 regarding discharge/delivery supervision survey on consignment of 8577.71 MT raw petroleum coke in bulk shipped per M.V. Chennai Polivu which arrived at Sandheads on 21.11.2005 and he did: (a) Inspect the stowage and condition of cargo in the vessels holds prior to commencement of discharge at sand head near Diamond harbour; (b) Attend initial and final draft survey; (c) Attend continuously discharge of cargo and maintain record of the same at sandhead from the vessel; (d) Attend continuously the discharge of cargo from the Boats/Berze in all shifts, maintained tally records of actual quantity landed; (e) Attend continuously at final destination at India Carbon Ltd., factory at Budge Budge, 24 Parganas. 10. He found the total discharge from the vessel of 8577.71 MT at Sandheads. 10. He found the total discharge from the vessel of 8577.71 MT at Sandheads. However, the quantity delivered from 28 KP Docks to the consignee was 8207.076 MT, thus recording a shortage of 370,634 MT, and the consignee received 8211.895 MT at Budge Budge, thus recording a shortage at Budge Budge of 365,815 MT, and these shortages were on the ground:- 1. Weighting scale difference and some quantity left out in the holds (vessels/Berze) this being a bulk cargo. 2. Sling loss at sandheads and 28 KP Dock, during discharge operation, we could observe quantity of cargo following into water from the slings. Each sling was supposed to hold 3.5 MT and due to unequal distribution of cargo in the slings, there was tilting at the sling resulting in quantities falling into the water. 3. The vessel discharged, the cargo on the following date 21.11.05 to 24.11.05. 11. Accordingly, the claim of the Complainant was made to the Insurance company to the tune of Rs.27,54,897.00 and Rs. 20,52,936.00, respectively, in respect of the losses as regards M.V. Glyfada and M.V. Chennai Polivu. 12. But Insurance company set up another Surveyor in Saumitra Gupta, who made a Marine Cargo Survey Opinion Report on 08.03.2006, basing upon which the Insurance company settled the claim of the Complainant to the tune of Rs. 1,41,925.00 under Policy No.530705/21/00004 in respect of M.V. Glyfada and Rs.8,83,785.00 under Policy No.530705/21/00015 in respect of M.V. Chennai Polivu, by a letter dated 23.11.2007, which was ultimately received by the Complainant on 19.12.2007. Although, there was no word of protest at the time of receipt of the amount by the Complainant, but a protest was made by the Complainant by a letter dated 20.02.2008 demanding full claim amount. It has been submitted by the Ld. Advocate for the Complainant that for the dilly-dallying attitude of the Insurance Company and the prevailing financial loss of the Complainant, it was bound to accept the paltry amount given by the Insurance Company in order to sustain its activities and the same is nothing but an ex gratia payment. Ld. Advocate for the OPs has made out that there was no occasion of duress or coercion applied in this matter by the OPs to accept the money and that the Complainant is not an individual party but a company and there was no compelling situation or pressure or undue influence. Ld. Advocate for the OPs has made out that there was no occasion of duress or coercion applied in this matter by the OPs to accept the money and that the Complainant is not an individual party but a company and there was no compelling situation or pressure or undue influence. There is, thus, no deficiency in service of the OPs. As such, the dispute as raised by the Complainant should be decided in a Court and not before any consumer fora and the dispute cannot be treated as a consumer dispute. 13. Ld. Advocate for the Complainant has relied upon a decision of the Hon'ble National Commission reported in 1 (2005) CPJ 27 (NC), wherein it was held that where goods purchased or services hired in activity which is directly no intended to generate profit, it would not be for commercial purpose and the person who takes insurance policy to cover envisaged risk does not take policy for commercial purpose. He has referred to a decision of this Commission reported in 1996 (3) CPR 164 , in which it was held that arbitrary and unreasonable settlement of claim by the Insurance Company on the basis of the report of the Surveyor amounted to negligence and deficiency in service, He further referred to a decision of the Chandigarh U.T. Commission reported in 1 (2009) CPJ 277, where it was held that hiring of service of Insurance Company for commercial unit is not be held for commercial purposes, as it was for reimbursement of loss suffered by the company. He has placed reliance to a decision of the Hon'ble National. Commission reported in 1 (2003) CPJ 33 (NC), wherein it was held that in view Section 64 UM of the Insurance Act, reasons for non-acceptance of report of first Surveyor must be specified and the insurer is not free to appoint second Surveyor to counter or contradict report of the first Surveyor, and as the report of the first Surveyor is not proved faulty, the direction of the State Commission to the OP to pay the full amount assessed by the first Surveyor with interest @ 12% p.a. was not interfered with and upheld. Further, he has relied upon another judgment of the Hon'ble National Commission reported in 1 (2004) CPJ 10 (NC), wherein it was held that as appointment of the second Surveyor was not explained, and deficiency in service is proved, the report of the first Surveyor was upheld and interest @ 17.5% p.a. awarded. He has again relied upon a decision of the Hon'ble National Commission reported in 2012 (1) CPR 242 (NC), where it was held that the second Surveyor can be appointed only by given reasons and only through the auspicious of the Regulatory Authority (IRDA). Moreover, he placed another judgment of the Hon'ble National Commission reported in 2011 (4) CPR 86 (NC), where it was propounded that the mere execution of discharge voucher would not deprive the consumer from preferring further claim. 14. There was no repudiation or rejection of the first Surveyor's Reports who were appointed and assigned to do the job at the first instance during unloading. There was no earthly reason in not considering these reports by the Insurance Company, which cannot be cancelled abruptly on whims and capriciously. There is also violation of the provisions of Section 64 UM (3) of the-Insurance Act by the Insurance Company. 15. Considering all these aspects in the matter involved vis-a-vis the decisions in this respect, the Complainant is found to be entitled to the claim basing on the report of the first appointed Surveyors of the Insurance Company in the matter. Thus, this issue is disposed of in the positive in favour of the Complainant. 16. In the result, the complaint succeeds. 17. Hence, Ordered That the complaint case be and the same is allowed on contest against the OPs. The Complainant do get an award of Rs. 37,82,123.00 along with an interest @ 12% p.a. till realization and a litigation cost of Rs. 10,000/- against the OPs.