DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

==================

Punjab State Cooperative Milk Producers Federation Limited [MILKFED], Milk Plant, Industrial Area, Phase-I, Chandigarh, through its General Manager.

                                                        ---Complainant

V E R S U S

M/s National Insurance Company Limited, SCO 4-5, 2^nd Floor, Sector 9-D (above Yo China), Chandigarh – 160 017, through its Branch Manager.

        ---Opposite Party

BEFORE:          SH.LAKSHMAN SHARMA               PRESIDENT

MRS.MADHU MUTNEJA                        MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:    Sh. Manjit Singh, Adv. for Complainant.

Sh. R.C. Kapoor, Adv. for Opposite Party.

PER MADHU MUTNEJA, MEMBER

1.             The Complainant had obtained an open Marine Policy for Rs.15,00,00,000/- from the Opposite Party valid from 21.06.2009 to midnight of 20.06.2010, for transportation of Verka Milk Products to various parts of India.  In terms of the said open Marine Policy the Opposite Party was to be informed about the total clearance of milk products from time to time. As per the specific conditions of the policy, it also included the clearance of other processed/ manufactured products like Rasila and Sweets. On 17.02.2010 stocks/goods containing 64 cases (1X12) of double toned milk and 100 trays (1x27) of Rasila were dispatched from Chandigarh to Jammu in Vehicle  No.JK-02R-0779. Unfortunately, this vehicle met with an accident near Dina Nagar on Gurdaspur-Pathankot Road on 18.02.2010.

                On intimation being given to the Opposite Party, a Surveyor was deputed to inspect the site and to assess the loss. The Surveyor inspected the site of the accident in the presence of the officials of the Complainant.  The Complainant had made a claim of total loss of Rs.3,03,756/-. At the time of filing claim the Complainant had also sent a copy of the policy, consignment bill, photocopy of the G.R. and all other necessary documents required for passing the claim.

                After exchange of lengthy correspondence between the Parties, a Surveyor M/s Duggal Gupta Surveyors Pvt. Ltd. was appointed by the Opposite Party. When this Surveyor visited the Plant, the detailed position about the ledger account from 21.06.2009 to 26.6.2010 as well as the sale account for supply of the milk products to local Verka Milk Booths and the distribution of supplies to the Distributors/ local parties of Chandigarh was also supplied to him.  Request was made to the Opposite Party to settle the claim at the earliest. However, unfortunately, the Opposite Party vide letter dated 16.02.2011 repudiated the claim on the basis of the report of M/s Duggal Gupta Surveyors Pvt. Ltd. by stating that the Plant had already exhausted Rs.15,00,00,000/- on 16.02.2010, whereas the date of loss in the present case was 17.02.2010. The Opposite Party had expressed its inability to meet with the compensation claim, as there was no balance of sum insured in the books of the Opposite Party on the date of loss.

                The Complainant thereafter approached the Opposite Party by stating that the report of the Surveyor did not properly appreciate the issue on the basis of documents supplied to them. As per the statement of accounts supplied to the Surveyor the clearance of goods was worth Rs.25,12,84,365.36 out of which goods worth Rs.12,22,96,680.76 Ps were not covered under the Policy, as these pertained to the sales to Distributors at Chandigarh, Mohali and Panchkula and were not transported through private transporters. After taking the total open Marine insurance of Rs.15,00,00,000/-, a balance of more than Rs.2,00,00,000/- still remained.

                The Complainant has, thus, filed this complaint with a prayer that Opposite Party be directed to release the payment of Rs.3,03,756/- along with interest @24% p.a. till the release of the same and cost of litigation.        

2.             After admission of the complaint, notice was sent to the Opposite Party.

3.             Opposite Party in reply has taken the preliminary objection that the present complaint is not maintainable, as the Complainant has already availed/ exhausted the remedy of redressal of the claim before the Insurance Ombudsman, Chandigarh, which was rightly rejected vide order dated 3.5.2011 (Annexure C-8). Further, it has been pleaded that the Complainant has misrepresented the entire facts and also not appreciated the Declaration Verification Report of M/s Duggal Gupta Surveyors (P) Ltd.

                On merits, the Opposite Party has pleaded that as per the report of the surveyor as there was no unutilized balance in the Open Marine Policy, no amount was payable to the Complainant. The Complainant had made wrong calculations while assessing the value of the declared goods as per the Declaration Verification Report dated 27.01.2011 (Annexure R-1) by M/s Duggal Gupta Surveyors (P) Ltd. The declared balance should have been Rs.17,13,66,707.72P against the insured amount of Rs.15,00,00,000/-. Hence, according to these calculations the sum insured had already been exhausted by the insured till 16.2.2010. The Complainant while calculating the amount of Rs.12,22,96,680.76P with respect to goods not covered, had not been able to appreciate that the Surveyor could not include the value of the alleged uncovered goods. As per Opposite Party, Annexure R-1 conclusively establishes that out of the total sale of Rs.25,19,84,274.99P after deducting the value of Raseela Sales and sales to the local parties (who have confirmed that they used to take the products from the plant at their own risk in their own transport) i.e. Rs.2,22,96,825.00P and Rs.5,83,20,709.27P respectively, the balance sales which should have been declared comes to Rs.17,13,66,707.72P and not Rs.12,89,74,684.50P as calculated by the Complainant.

                Opposite Party has further stated that the representation dated 18.2.2011 by the insured could not be properly relied upon for want of additional information/ documents which were received by the Opposite Party only after 25.7.2011 and forwarded to the Surveyor on 26.7.2011. Accordingly, a Final Verification Report dated 1.8.2011 (Annexure R-2) was received from the Surveyor.  As per this report, the Complainant had already utilized Rs.15,10,19,513.17P against the sum insured of Rs.15,00,00,000/-. So there was no balance in the Open Marine Policy on the date of alleged accident.  Opposite Party has therefore prayed for dismissal of the complaint. 

4.             Parties led evidence in support of their contentions.

5.             We have heard the learned counsel for the parties and have perused the record.

6.             A perusal of the documents clearly show that the Policy issued by the Opposite Party in favour of the Complainant was for an amount of Rs.15,00,00,000/-. As per the version of the Complainant, the Policy covered milk, milk products and ice-cream only. However, at the time of clearance of goods details of other products being transported was also required to be given. At the time of accident the loss was with regard to Milk bags as well as Raseela (non-milk product). The Opposite Party has repudiated the claim by relying on Surveyor’s Repot (Annexure R-2). As per this report, various reminders had been given to the Complainant to supply information and documents. As per this report while calculating the amount of Rs.12,45,03,164.46P, representatives of the insured had taken the value of Raseela at Rs.2,22,96,825.00. The insured had also been asked to provide confirmation from the local distributors whether the distributors took the stock from the factory at their own risk. The complete information regarding these details were not provided by the insured. Hence, no documentary evidence was provided by the insured to the Surveyor regarding the sales to the local dealers i.e. CITCO, Local Milk Bars. The Surveyor had observed that while calculating the total amount of sales the insured had taken the value of sales to local Milk Bars also. However, these sales have not been declared by the insured against the Policy. The local sales have been valued by the insured at Rs.1,13,67,259.88P and sweets have been valued at Rs.1,67,52,620.63P. When details of this were demanded from the insured, the insured had explained that these were included in the calculation of sales but were not required to be declared because the major portion of the sweets was without milk. In the opinion of the Surveyor Rs.47,47,059.05P  being milk sweets should have been declared. Also there was a discrepancy in the value of the total sales as per the ledger accounts provided by the insured, which the representative of the insured explained as over sight and computer error.   The Surveyor had calculated the value of unutilized amount based on all the above observations and had come to the figure of Rs.15,10,19,513.17P  against the insured sum of Rs.15.00 crores.  The Surveyor has thus held that as the sum insured had already been exhausted by the insured till 16.2.2010 and  no enhancement of the sum insured had been taken by the insured, hence no amount was payable to them against the claim.       

7.             The Opposite Party has also taken objection that as the Complainant had sought relief from the Insurance Ombudsman, Chandigarh, he could not approach the Consumer Forum. In the rejoinder/ affidavit filed by the Complainant, the Complainant has taken the plea by citing the judgment IDBI Bank Versus Pardeep Tayal & Anr., 2011(1) CLT 456, that Section 3 of the Consumer Protection Act, 1986 provides for alternate remedy. In our opinion, by resorting to the remedy before the Ombudsman, the Complainant is not debarred to file the complaint in the Consumer Forum in view of the express provision of Section 3 of the Act.   Otherwise also, the Ombudsman has not dealt with the claim. The order/letter dated 03 May, 2011 of the Insurance Ombudsman, Chandigarh reads as under:-

“We refer to your letter on the above subject which was received in this office on 29 Apr. 2011. From the perusal of the documents it becomes evident that the policy is in the name of M/s Punjab State Co-op. Milk Producers Fed. Ltd.

In this regard we are reproducing below the rules 4-(i) and 4-K of Redressal of Public Grievances Rules, 1998, the contents of which are self-explanatory.

4-i) “insured person” means an individual by whom or on whose behalf an insurance policy has been taken on personal lines.

4-K) “personal lines” means an insurance policy taken or given in an individual capacity.

In view of the above, as your policy has been issued in the name of a Firm, your complaint will fall outside the jurisdiction of Insurance Ombudsman.”

8.             Further, the Complainant has also submitted that the Surveyor has submitted a self-contradictory finding by declaring that the stock should have been declared to the value of Rs.17,13,66,707.72P against the insured value of Rs.15,00,00,000/-, but in the subsequent figures submitted as per the policy terms the items prepared without Milk and also without transportation were considered and the Surveyor revised his findings by stating that the Complainant had only utilized Rs.15,10,19,513.17P against the insured sum of Rs.15,00,00,000/-. According to the Complainant, the balance amount yet to be consumed comes to Rs.2,25,22,922.46P and after deducting the sweets in which milk is used valuing at Rs.30,17,604.76P, a net balance of Rs.1,95,05,317.70P is yet to be consumed as per the terms of the Policy. This is in terms of the amended details provided by the Complainant while submitting Declaration Verification Report on 1.8.2011 (Annexure R-2). Hence as per the Complainant the claimed amount is payable as per the terms of the Policy. However, this averment of the Complainant is not justified, as the Surveyor has even discussed the amended details provided by it. No information provided by the Complainant has been ignored.

9.             Hence, we cannot in this light out rightly reject the report of the Surveyor, which has been relied upon by the Opposite Party while refusing the claim filed by the Complainant.  It is obvious that the maximum limit of claim payable to the Complainant as per terms of the policy was Rs.15,00,00,000/- only. This amount has been exhausted before the date of accident.

10.           In view of this, we do not think we need to interfere with the investigations of the Surveyor and pass orders allowing this complaint. The complaint is accordingly dismissed, with no order as to cost.

11.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

25^th January, 2012.                                                       

Sd/-

 (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER