DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I U.T. CHANDIGARH

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Anoop Singh s/o Ramesh Kumar, R/o H.No.443, Sector 10, Panchkula.

…..Complainant

                 V E R S U S

1]  New India Assurance Company Ltd., Divisional Office-IV, SCO 58, Sector 26-C, Chandigarh, through its Manager.

2]  M/s. Hazi Fruit Company, Shop No.A-35, APMC Yard Market, Hasur road, Bangalore,

                      ……Opposite Parties

CORAM:   SH.P.D.GOEL                PRESIDENT

         SH.RAJINDER SINGH GILL         MEMBER

         DR.(MRS) MADANJIT KAUR SAHOTA  MEMBER

Argued by:    Sh.Gautam Bhardwaj, Counsel for complainant.

Sh.Raj Kumar Bashamboo, Counsel for OP     No.1.

        OP No.2 already exparte.

PER P.D.GOEL,PRESIDENT

1.      Briefly stated, the complainant, who deals in purchase & sale of fruits, to earn his livelihood, had obtained a Marine Insurance Policy of Rs.50.00 lacs, subject to the limit of Rs.7.00 lacs from OP, which covered all type of risks and losses/damage.

         The complainant sent a consignment containing various varieties of apple consisting of 655 boxes from Chandigarh to Bangalore (Karnataka) vide GR No.704, dated 6.8.2010 (Ann.C-2) through M/s Haryana Golden roadway, Plot nO.45, New Timber Market, Sector 26, Chandigarh through Truck No.HR-56-6616.  The declaration with regard to sending of said consignment was sent to OP-1 vide Annexure C-3. 

         It is averred that on 10.8.2010 at about 6.00 AM, the aforesaid truck loaded with said consignment of apple, when reached at Village Sayyad Warvade on Mohol-Mandrup Bypass Road, one Maruti Car being driven rashly & negligently, came from the Opposite Side and the driver of the truck while saving the said car, turned the truck towards left side and lost control over it, as such the truck turned turtle towards its left side.  It is also averred that due to the said accident, loss was caused to the apple boxes and upon seeing the accident, mob of about 50 people of nearby villages gathered and took away the apples in gunny bags, chadars and boxes. 

         The accident was reported to P.S.Mohol, and an F.I.R. No.60, dated 11.8.2010, U/s 279 & 427 IPC and 184 of M.V.Act was lodged. The intimation of said accident was also given to OP No.1 in writing, whereupon Srikant J. Madur was appointed as Surveyor for assessing the loss.  The Surveyor went to the spot on the same day and inspected the spot, recorded the statement of Rakesh Kumar, Cleaner and also made enquiries from nearby villagers, who confirmed the looting of apples after the accident.  The Surveyor had also confirmed that the cause of loss was due to theft.  However, the truck driver, being illiterate person, unaware about the value of the consignment, wrongly mentioned the loss of apples to the tune of Rs.3.00 lacs only instead of Rs.5.00 lacs.  The value of the consignment had already been declared to OP No.1 as Rs.5.00 lacs. 

         It is pleaded that the Surveyor, after thorough enquiry declared it a case of total loss due to looting and recommended the claim to be payable on the basis of invoice cost or sum declared (Annexure C-4).  The policy was ‘Value Agreed Policy’, thus there cannot be any dispute regarding value of the consignment.  But even then, the OP Company, instead of paying the claim, illegally & arbitrarily, closed the claim case of the complainant as NO Claim (Ann.C-5 & C-6).  Hence, this complaint.

2.       OP-1 filed reply and admitted the issuance of marine policy Ann.R-1, subject to terms and conditions.  It is submitted that the invoice of the consignment in question showing the value of the consignment as Rs.5.00 lacs was neither produced by the complainant before the Surveyor nor supplied to the Company. It is submitted that there was looting of apples by the villagers. The total loss was Rs.3.00 lacs only, which is clear from Panchnama and F.I.R.  The complainant is intentionally not supplying the invoice as the goods value is not more than Rs.3.00 lacs.  Moreover, every insured is required to prove the value of the goods by producing the invoice. It is submitted that after receipt of Surveyor’s Report, the claim of the complainant was processed and it was found that since it is a case of looting, thus the said loss did not fall within the ambit/scope of terms & conditions of the Policy. Accordingly, the claim was rightly repudiated vide letter dated 27.4.2011. There is no deficiency on the part of OP. Rest of the allegations denied and it is prayed that the complaint be dismissed.

3.       OP No.2 did not turn up despite service of notice. Hence it was proceeded against exparte vide order dated 15.2.2012.

4.      Parties led evidence in support of their contentions.

5.       We have heard the learned Counsel for the complainant and learned Counsel for OP No.1 and have also perused the record.

6.       The learned Counsel for the complainant contended that the complainant obtained a Marine Insurance Policy of Rs.50.00 lacs, subject to the limit of Rs.7.00 lacs – Annexure C-1 from OP No.1, which covered all type of risks and losses/damage.  The complainant sent a consignment containing 655 boxes of apple from Chandigarh to Bangalore (Karnataka) vide GR No.704, dated 6.8.2010 – Annexure C-2 through M/s Haryana Golden Roadways, Chandigarh through Truck No.HR-56-6616. 

         It was further argued that on 10.8.2010 when the said truck reached at Village Sayyad Warvade on Mohol-Mandrup Bypass Road, one Maruti Car being driven rashly & negligently, came from the opposite side, consequently, the driver of the truck while saving Maruti Car lost the control over the truck, with the result, it turned turtle.  It was further argued that in the accident, loss was caused to the apple boxes and upon seeing the accident, mob of about 50 people gathered and took away the apples in gunny bags etc. The accident was reported to P.S.Mohol and F.I.R. No.60, dated 11.8.2010, U/s 279 & 427 IPC and 184 of M.V.Act was lodged (Page No.30 of the reply). The intimation with regard to the accident was also given to OP No.1, whereupon, Srikant J. Madur was appointed as Surveyor for assessing the loss, who in turn, confirmed the looting of apples after the accident. It was further argued that the driver of the truck, being illiterate wrongly mentioned the loss of apples to the tune of Rs.3.00 lacs instead of Rs.5.00 lacs.  The value of the consignment had already been declared to OP No.1 as Rs.5.00 lacs.  It was lastly argued that the policy was ‘Value Agreed Policy’, thus there cannot be any dispute regarding value of the consignment.  The repudiation of the claim is stated to be illegal.

7.       The learned Counsel for OP No.1 very fairly and squarely conceded with regard to the issuance of Marine Policy – Annexure R-1, subject to terms and conditions.  It was argued that the invoice of the consignment in question showing the value of the consignment as Rs.5.00 lacs was neither produced by the complainant before the Surveyor nor supplied to the Insurance Company. He further argued that the loss to the consignment was Rs.3.00 lacs only, which is clear from Panchnama and F.I.R. The complainant is not intentionally supplying the invoice. It was lastly argued that after the receipt of the surveyor’s report, the claim of the complainant was processed and it was found that since it is a case of looting, thus the said loss did not fall within the ambit/scope of terms & conditions of the Policy. The repudiation of the claim vide letter dated 27.4.2011 is stated to be legal.

8.       The repudiation letter is dated 27.4.2011 – Annexure C-5, wherein, it has been recorded that since it is a case of looting of consignment, so does not fall within the scope of marine open policy covering the risk.

9.       The OP No.1 had placed on record the extract of Exclusion Clause at page No.12 of the reply and its careful scrutiny makes it clear that the incident of looting is not covered by it. Thus, it is held that the repudiation of the claim by the Insurance Company on the ground that it is a case of looting of consignment, is illegal and bad in the eyes of law.

10.      Annexure C-4 is a copy of Marine Survey Report dated 15.9.2010, wherein, at page No.14 under the column ‘Assessment of Loss’, the surveyor has stated that “Being a case of Total Loss due to looting, the invoice cost or sum declared is payable subject to policy terms, conditions and approval of insurers.”

11.      The complainant has claimed that the value of consignment had been declared to OP No.1 as Rs.5.00 lacs and on the other hand, the OP No.1 has raised the plea that the invoice of consignment in question showing the value of the consignment as Rs.5.00 lacs was not produced by the complainant. However, the incident of looting of apples by the villagers is admitted by the Insurance Company. The Insurance Company has also taken the plea that the total loss was Rs.3.00 lacs only, which is clear from Panchnama and FIR. The complainant is intentionally not supplying the invoice as the goods value is not more than Rs.3.00 lacs. Moreover, every insured is required to prove the value of the goods by producing the invoice.

12.      Annexure C-4 is the Marine Survey Report, wherein, under the column ‘Invoice Details’, it has been stated that “Total Value of 655 boxes of apples as per Declaration Form is Rs.5,00,000/- only.” In the said survey report under the heading ‘Assessment of Loss’, the surveyor has recorded “Being a case of Total Loss due to looting, the invoice cost or sum declared is payable subject to policy terms, conditions and approval of insurers.” Admittedly, the complainant had taken the insurance policy – Annexure C-1, under which, 655 apple boxes, value of Rs.5.00 lacs were got insured by mentioning the value of consignment in G.R – Annexure C-2. In view of this, it can be concluded without any hesitation that OP No.1 had acknowledged that the declared value of the apples was Rs.5.00 lacs. Similarly, in the Marine Survey Report dated 15.9.2010 – Annexure C-4, the surveyor has also stated that the value of 655 apple boxes was Rs.5.00 lacs, as per declaration form. This being so, the OP No.1 is estopped from raising the plea that the total loss caused to the apple boxes was Rs.3.00 lacs only.

13.      Now, it is proved on record that the insured declared value of the apples in question was Rs.5.00 lacs and as per surveyor, it was a case of total loss due to looting as stated in para supra(s).

14.      So, to decide the present controversy, the insured declared value of the apples is to be taken as value of the commodity. The Insurance Policy – Annexure  C-1 is a ‘Value Agreed Policy’,so in view of this the OP No.1 is not entitled to take the stand that the value of the consignment as per FIR was Rs.3.00 lacs. It will not be out of place to state that the Insurance Company – OP No.1 had also accepted the premium of insured value of Rs.5.00 lacs.

15.      The matter does not rest here. The OP No.1 had also placed on record letter dated 13.8.2010 at page No.21 of the reply from Haryana Golden Roadways, Chandigarh, wherein, it has been categorically stated that the value of the consignment is Rs.5.00 lacs. At page No.23, the OP has placed on record the letter dated 17.8.2010 from the complainant to the Manager, Haryana Golden Roadways, Chandigarh, wherein, the value of the consignment has also been recorded Rs.5.00 lacs. The complainant has also filed the affidavit of Sh.Rajesh Punia, Proprietor of Haryana Golden Roadways, Chandigarh in rebuttal evidence, wherein, it has been stated that the declared value of consignment was Rs.5.00 lacs and the truck was sent by the complainant after the OP agreed to the valuation of Rs.5.00 lacs. Thus, it is held that the complainant had successfully proved on record that the value of the consignment in question was Rs.5.00 lacs and not Rs.3.00 lacs.

16.      As a result of the above discussion,    the complaint is allowed and OP No.1 is directed to pay Rs.5.00 lacs to the complainant. OP No.1 is also directed to pay a sum of Rs.15,000/- to the complainant as compensation for mental agony and harassment and Rs.10,000/- as litigation costs. 

17.      This order be complied with by OP No.1 within one month from the date of receipt of its certified copy, failing which, OP No.1 shall be liable to refund the awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the complaint, till its payment, besides Rs.10,000/- as costs of litigation.

18.      The certified copies of this order be sent to the parties free of charge. The file be consigned.