BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.443 of 2018
Date of Instt. 22.10.2018
Date of Decision: 01.06.2021
M/s Amsu Sports International, Model House Road, Basti Sheikh, Jalandhar District Jalandhar through its Proprietor Sh. Yash Pal Mahajan.
..........Complainant
Versus
1. M/s United India Insurance Co. Ltd., having registered office at, 24, Whites Road Chennai 600014.
2. M/s United India Insurance Co. Ltd., Feroze Gandhi Market, Ferozepur Road, Ludhiana.
3. M/s United India Insurance Co. Ltd., Lajpat Rai Nagar Market, Syal House, Jalandhar 144001
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Vikas Kumar Gupta, Adv. Counsel for Complainant.
Sh. R. S. Arora, Adv. Counsel for the OPs.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the complainant/M/s Amsu Sports International is a proprietorship concern and Mr. Yash Mahajan is the proprietor of the firm and he is running this concern for earning his livelihood. The OP No.1 is the insurance company duly incorporated under the Companies Act and OP No.2 is the regional office and OP No.3 is the local office of OP No.1. That the OP No.1 to 3 deals in the business of general insurance and approached complainant for sale of Marine Cargo Open Insurance Policy and represented that complainant will be provided immediate reimbursement in case any of the goods lost/damaged in transit during the continuation of the insurance policy. That on the basis of representation, assurances, guarantees and allurements given by OP No.1 to 3 complainant agreed to purchase the Marine Cargo Open Policy from OPs No.1 to 3, bearing No.201301215P115126850 and the same was valid from 09.03.2016 to 08.03.2017 and the sum assured was Rs.11,000,000. It is submitted that at the time of taking the insurance policy complete set of terms and conditions of the insurance policy was not supplied to the complainant however complainant was just intimated that as per terms of policy any goods booked from Jalandhar to any location in India in case is sent through Road or by Rail is duly insured with OP upto insured amount. It is made clear at the time of taking the insurance policy the detailed terms and conditions of the insurance policy were not provided to complainant but it was conveyed/assured that in case any loss of goods occurred in transit during the period of insurance, then the loss amount will be immediately paid to complainant by OP. That complainant booked one consignment for Gauhati vide docket number 48121314 on 11.10.2016 through M/s Safexpress Pvt. Limited to M/s D. P. Enterprises, Dr. B. BaruahUllubari, Guwahati, Intimation to this effect was given to OP by complainant. However, during transit eight cartoons out of said consignment were lost in transit and intimation to this effect was given to the complainant by M/s D. P. Enterprises and said firm has taken the delivery of remaining goods after making an endorsement on delivery receipt of docket no.48121314, and detail of lost goods were also intimated by said dealer to the complainant vide letter dated 02.11.2016. Thereafter complainant immediately intimated OP regarding loss and claim was logged for Rs.5,18,180 with OP No.3 by complainant on 16.12.2016, Later as per instruction of the OP loss certificate dated 28.12.2016 issued by M/s Safeexpress Pvt. Limited is also provided by the complainant to the OP. That thereafter, despite repeated request and reminders from complainant claim of the complainant was not settled by OP in utter violation of the guidelines issued by IRDA from time to time. It is important to mention here that thereafter complainant has issued number of letter for the settlement of claim but no response. Thereafter complainant served a legal notice to the OP, but all in vain and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the claim of the complainant amounting to Rs.5,18,180/- alongwith interest @ 24% per annum for the delay and further OPs be directed to pay a sum of Rs.50,000/- for causing mental tension and harassment to the complainant and Rs.50,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the liability to indemnify the loss to the complainant is of the Carriers M/s Safeexpress Pvt. Limited with whom the complainant booked the goods for transportation from Jalandhar to Guwahati on 11.10.2016 and the Carriers admitted the shortage due to its neglect in transportation. It is further alleged that the complainant has no claim on the OP by its breach of the terms and conditions of the insurance policy, the principle liability is that of the Carriers. That the complaint against the OP is not maintainable by superseding the Carriers. That the complainant has concealed amount other having made the claim over the carriers and the subsequent action thereon, so is coming to the Forum with unclean hands. That the complaint is vexatious. On merits, the factum in regard to running a business by the complainant for earning his livelihood is admitted and further the factum in regard to giving insurance facility is also admitted and further submitted that the insurance company provides reimbursement to the loss of the goods in transit on the insured following the terms and conditions of the insurance policy and not otherwise. No representation as alleged was made by the insurance company to make good the loss without immediate intimation and without allowing the survey of the loss to occur at the time of receiving the consignment by the consignee. It is further alleged by the complainant that the consignee at Guwahati took the delivery of the goods short by 8 cartons on 02.11.2017. This allegation of short delivery could not be admitted by the OPs for the reason:
a) That in the event of the loss which may give rise to a claim under this open policy, immediate notice thereof in writing ought to have been made to the office of the company at Branch Office 1, Syal House, 3rd Floor, Lajpat Nagar Market, Jalandhar- Punjab 144001 and also the company’s divisional office nearest to the destination or the place of loss for holding a survey’s which was not made at the given address in bold letters in the policy itself.
b) That complainant did not approach either the Divisional Office, Guwahati of the OP informing about the alleged loss.
c) That complainant informed about the alleged loss for the first time on 16.12.2016 when the consignee of the complainant had already taken the delivery of the alleged short goods on 02.11.2016 i.e. one and a half month back.
d) There was no practical sense in holding the survey of a loss when the surveyor of the company was not joined in the survey at the time of receiving of the consignment by the consignee.
e) The surveyor appointed gave his report to the company on the details given and the relative papers produced by Mr.Ashish of the consignee and the surveyor was given to understand that:
i) Carrier’s representative Meter reader. BhardreswarBoro arrived at consignee’s place on 25.10.2016 in open and loose condition with shortage.
ii) Seeing the consignment in open, loose and short condition, Consignee refused to take delivery and the Carrier’s representative took back the consignment.
iii) Consignment was loaded from Jalandhar in Truck No.PB19C 7354 uptoAmbala on 13.10.2016 and reloaded on board of Truck No. HR 65 A 2904 on 14.10.2016.
iv) On seeing the consignment in open, loose and short condition, the consignee refused to accept the material on 25.10.2016.
v) The same open, loose and short material was brought again to the consignee by the same representative of the Carriers to the same representative of the consignee after 25.10.2016 but was accepted by the consignee in consultation with the complainant on 02.11.2016.
vi) The details of the matter what transpired between the complainant, consignee and the carriers is not known as the consignee accepted the delivery of short material on 02.11.2016 in short condition.
vii) If not 25.10.2016, on 02.11.2016 the consignor/consignee could have approached to the underwrites at Jalandhar or through Guwahati Office for joint inspection and verification.
viii) The complainant informed about the alleged loss of the goods on 16.12.2016 when the complainant had already taken the delivery of the short goods on 02.11.2016.
ix) There was no practical sense in appointing the surveyor by the company to assess the loss when everything had been settled between the complainant and its Carriers and the consignee.
f) The alleged loss was due to the negligence of the Carriers.
g) The complainant lodged the claim with the Carriers.
h) The carriers admitted to the complainant the loss of the goods to the tune of Rs.5,18,100/-.
i) That without ifs and buts, under Section 8 of the Carriers Act, 1865, the Common Carrier is liable for loss or by neglect or fraud of himself or his agent. Under Section 9 of the Carriers Act, the principle liability is that of the carriers and the liability under the law is absolute.
j) The liability of the company is only to succeed and not in any way to supersede any claim which the insured may be entitled to make upon the carriers who are primarily liable for the loss.
k) The complainant has malafide (i) not made the Carriers a party in the complaint (ii) has concealed the claim made on it and (iii) also concealing the statutory notice served on the Carriers and (iv) civil action taken against it. Either of the consignor and consignee could file a suit against the Carriers for the admitted loss. But the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied those of the written statement.
4. In order to prove their respective versions, both the parties produced on the file their respective evidence.
5. We have heard the argument from learned counsel for the respective parties and also gone through the case file as well as written arguments submitted by counsel for the OPs, very minutely.
6. The glance of evidence is required for settlement of the case. The complainant has tendered in evidence his affidavit Ex.C-A on the record. Ex.C-1 is copy of terms and conditions of the policy. Ex.C-2 is copy of courier receipt. Ex.C-3 is copy of policy dated 11.10.2016. Ex.C-4 is copy of retail invoice dated 11.10.2016. Similarly, we have also examined other documents Ex.C-5 to Ex.C-27 on the record.
7. To counter this evidence of the complainant, OP has relied upon affidavit of Rakesh Sharma as Divisional Manager OPs as Ex.O-A on the record. This witness stated that the insurance company provides reimbursement to the loss of the goods in transit on the insured following terms and conditions of the policy and not otherwise. Ex.O-1 is copy of letter dated 16.12.2016. Ex.O-2 is copy of marine survey report. Ex.O-3 is copy of marine claim form.
8. It is an established fact that the complainant company namely M/s Amsu Sports International is a proprietor concern and Yash Mahajan is proprietor of the Firm. The complainant company purchased Marine Cargo Open Policy from OPs no.1 to 3 bearing no.2013012115P1126850 and same was valid from 09.03.2016 to 08.03.2017. The complainant alleged that at the time of purchase of the policy in question insurance policy was not supplied to the complainant. The complainant booked one consignment for Gauhati vide docket number 48121314 on 11.10.2016 through M/s Safexpress Pvt. Limited to M/s DP Enterprises and intimation to this effect was given to OP by him. During transit eight cartoons out of said consignment were lost in transit and intimation to this effect was given to complainant by M/s DP Enterprises and said firm has taken the delivery of remaining goods after making an endorsement on delivery receipt of docket no. 48121314 and detail of lost goods were also intimated by said dealer to complainant vide letter dated 2.11.2016. Thereafter, despite repeated requests and reminders from complainant his claim was not settled by OPs in utter violation of the guidelines issued by IRDA from time to time.
9. On the other hand, OPs refuted the allegations of the complainant leveled in the complaint. The complainant informed about the alleged loss for the first time on 16.12.2016 when the consignee of the complainant had already taken the delivery on 2.11.2016.
10. The complainant booked one consignment on 11.10.2016 and during transit eight cartoons out of said consignment were lost in transit. The policy was valid from 09.03.2016 to 08.03.2017, so it is clear that the loss occurred during the currency period of the policy. The number of boxes as 14 but out of this eight cartoon received by the complainant. The amount of shortage goods is Rs.518180/- vide claim of shortage letter dated 16.12.2016 Ex.C-7 on the record. From perusal of this letter, it clear that the complainant intimated to OPs regarding loss of cartoons on 16.12.2016 and loss occurred is also took place on 16.12.2016. The short value of goods is Rs.518180/- this fact is clear from Ex.C-8 on the record. The complainant intimated about this incident to OPs from time to time, this is clear from copies of letter regarding claim of shortage under Marine Cargo Open Policy, dated 02.01.2017 Ex.C-9, letter dated 04.01.2017 Ex.C-10, letter dated 17.04.2017 Ex.C-12, letter dated 22.05.2017 Ex.C-13. In letter Ex.C-15 addressed to Ops by complainant company that no such objection was raised by OPs regarding late intimation of loss at the later stage. From perusal of Circular Ex.C-23 issued by IRDA this fact is clear that delay in claim intimation/documents submissions certified that this is binding on the insurers. The claim regarding loss of the article is genuine, this fact is clear from survey report Ex.O-2 dated 04.06.2018 on the record. This is survey report assessed by the surveyor and in this report the cause of loss as Transit Hazard, Mishandling of consignment. The surveyor assessed the loss as Rs.5,08,215/- .
11. This fact is clear that the goods of the complainant has been lost in the transit and now the main controversy involved in this case is whether OPs are liable to pay the claim or not? As per IRDA the OPs are liable to pay the claim. The OPs rejected the claim of the complainant on the ground that late intimation given to insurer but this is not a genuine ground to discard the claim of the complainant. The complainant submitted that even if no such notice is served on OPs, in facts and circumstances of this case, where a survey was duly conducted by competent surveyor and report submitted along with claim, the said claim could not have been rejected outright without proper application of mind, which was clearly not done in this case. The OPs not entitled to repudiate the claim without any valid basis. Where the breach is material to the loss and amount determined to be payable up to maximum of 75% of the assessed amount of loss is found to be higher than what would be payable had the claim been dealt with as on where the breach is of a technical nature, the compromise settlement should be made only for the lower amount. The learned counsel for the complainant relied upon judgment titled as Nobel Grain India Pvt. Ltd versus New India Assurance Co. Ltd reported in CPJ 350 2008(2) NC that loss of insured goods in transit while carried by rail, an authorized carrier, shortage of goods occurred during currency of the policy. But immediate notice not given to insurer. Repudiation of claim, dismissal of complaint. Appeal filed- Held admittedly, approved surveyor conducted surveyor at the time of loading and unloading goods. Since complainant took delivery to avoid demurrages, otherwise losses would have been huge. Delayed intimation to insurer cannot be a cause of repudiation. As guidelines for settlement of non-standard claim followed thus 75% claim allowed.
12. From perusal of entire record on the file, it has been established that this fact is correct that loss occurred on 16.12.2016 and intimation to this effect was given to OPs on the same day. The articles in the transit number as 13, this fact is clear from retail invoice Ex.C-4 on the record. The total cost of the articles mentioned in this document as Rs.6,82,291.00 and out of this eight cartoon has been lost in the transit for amount of Rs.518180.00. The OPs repudiated the claim of the complainant on the ground of delayed intimation by the complainant. But as per the guidelines of IRDA insurers must not repudiated such claims unless and until the reasons of delay are specifically ascertained, recorded and insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time. As per guidelines for settlement of non-standard claim followed, thus, 75% claim allowed.
13. In view of facts and circumstances of the case, we partly accepted the complaint of the complainant and OPs are directed to pay 75% of claim amount i.e. Rs.518180-00 to the complainant as per guidelines for settlement of non-standard claim. This amount shall not carry any interest, if paid within 45 days of receipt of copy of this order by OPs. Thereafter, it will carry an interest @ 6% p.a from the date of order till actual realization.
14. The complaint could not be decided within the stipulated time frame, due to heavy pendency of the court cases and spread of Covid-19.
15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
1st Day of June 2021
(Kuljit Singh)
President
(Jyotsna)
Member
