Jammu and Kashmir

Jammu

CC/371/2017

SARVESHWAR ORGANIC - Complainant(s)

Versus

NEW INDIA ASSURANCE - Opp.Party(s)

MK SHARMA

08 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                   305/DFJ           

 Date of  Institution   :     12-12-2014

 Date of Decision      :       30 -08-2018

 

M/S Sarveshwar Organic Food Ltd.

Seora Bishnah Kunjwani Road,Jammu

Through its Manager(Commercial)

Sahil Sharma,S/O S.K.Sharma,

R/O 135/2 Channi Himmat,Jammu.

                                                                                                                                    Complainant

                   V/S

The New India Assurance Co.Ltd.

Branch Gandhi Nagar,Jammu.

                                                                                                                                    Opposite party

CORAM

                  Khalil Choudhary              (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

 Mr.M.K.Sharma,Advocate for complainant, present.

Mr.Jugal Kishore Gupta,Advocate for OP,present.

 

                                                           ORDER

 

                      Briefly stated facts of the case as per averments of the complaint are that Sh.Sahil Sharma,Commercial Manager M/S Sarveshwar Organic Food Ltd.is hereby severally authorized to perform and execute all or any of the following matters, deeds and things in relation to the legal cases by or against the company(Copy of Authority letter is annexed with the complaint as annexure-A).Complainant further submitted that OP is a limited Insurance Company engaged in the insurance business and complainant is a Sarveshwar Organic Food Ltd.Company formerly Sarveshwar Overseas situated at Village Seora,Bishnah Kunjwani Road, through its Manager(Commercial) and the complainant company deals in selling of Basmati Rice under the Brand name Sarveshwar Rice. Complainant further submitted that he took Marine Open Policy No.002000006 dated 21-10-2002 from OP and the terms and conditions of the policy was to indemnify the insured in case of damage of goods in transit till the time they reach their destination from the place of their dispatch,copy of policy documents are annexed as Annexure-B). According to complainant a consignment of rice through Avtar Goods Carrier from Jammu to Tamil Nadu through carrier L.R.No.2342 dated 08-09-2011 in Truck No.HR 38M 9266,the consignment was received at Delhi on and around 10-09-2011 at ICD Delhi in wet and damaged condition due to rain and the transporters had issued a damaged certificate dated 03-10-2011 stating that rice bags got damaged due to heavy rain in transit and total of Rs.88114/-worth material got damaged due to rain water,( copy of damage certificate is annexed as Annexure-C). Complaint further submitted that on request, an independent surveyor has been appointed by OP company for the assessment of damage, who conducted survey and furnished report vide survey No.INS/RMK/4/12,797 dated 23-06-2012 and as per report total 96 bags were damaged out of total 5490 bags dispatched and net value of the 96 bags of rice including insurance  (25%) is Rs.85,359.11/- Further allegation of complainant is that he also paid a sum of Rs.19,190/-to the independent surveyor (copy of payment receipt is annexed as Annexure-D) and the details of marine survey report prepared by independent surveyor is as under:

Sr.	Description	No.of Bags	Gross Weight	Rate	Invoice No.	Date	Value Rs.
01	B-127-Sr.Maya (O)25 Kg(S)	95	23.75Qtl= 2375.00	3260.00/Qtl	C-779	08-09-2011	77.425.00
02	(B-126)Sr.Magic Basmati rice	445	111.25 Qtls=11125.00 Kg.	3585.00/Qtl	C-779	08-09-2011	3,98,831.25

Total No.of bags in the said consignment                                   540

Total net weight of 540 bags-                                                        13500.00 Kg

Invoice detail-Inv.No.C-779 dated 08-09-2011 for Rs.4,77,447.00/-for 540 bags

(Copy of the marine survey report is enclosed as Annexure-E).

Complainant further submitted that despite repeated requests and receipt of surveyor report, the OP neither rejected the claim nor sanctioned the claim. Constrained by the act of OP,complainant served legal notice to OP,but nothing fruitful has been done by the Op and this act of OP constitutes deficiency in service and un-fair trade practice, hence the complaint. In the final analysis, complainant prays for indemnification of loss to the tune of Rs.85,359.11/-alongwith interest @ 15% p.a.and in addition, prays for compensation under different heads to the tune of Rs.75,000/-.

                         The OP in the written version resisted the claim of complainant on the ground that complainant has no locus standi to file the present complaint, as the complaint has not been filed by a competent person,Mr.Sahil Sharma having not been authorised by the complainant to file the present complaint. That the claim of complainant could not be settled on account of non-compliance of formalities and non-furnishing of necessary documents by the complainant itself,therefore,the present complaint under Consumer Protection Act is not maintainable and deserves to be dismissed. The OP further submitted that OP Company had issued Marine Cargo Open Policy No.35250021100200200006 valid for the period from 30-03-2011 to 29-03-2012 in the name of M/S Sarveshwar Overseas and it is denied that the said policy was issued in the name of complainant M/S Sarveshwar Oganic Foods. At no point of time any intimation was given by the complainant regarding the change of the name of the insured Sarveshwar Overseas to Sarveshwar Organic Foods Ltd.nor any endorsement to that effect was got effected by the insured in the policy in question, therefore, the complainant has no right to file the instant complaint against the OP.It is submitted that an intimation was received by the OP company from complainant that the consignment consisting of 450 bags of rice which was consigned from Jammu on,08-09-2011 for delivery to Kamal Traders Chennai had been damaged enroute due to rain water.The OP company after the receipt of claim intimation letter deputed Mr.R.M.Kaul an IRDA approved surveyor for assessing the loss to the consignment. The surveyor after making inspection of the damaged rice bags submitted his report dated 23-06-2012 to OP company wherein the net  loss to the tune of Rs.70,959.11np/-was assessed. The OP company after the receipt of surveyor report sought certain clarification from the surveyor and simultaneously also requested the insured vide its letter dated 25-02-2013 and 14-03-2013 for submitting certain documents which included claim bill in duplicate. Copy of declaration, copy of claim letter to the carrier and original copy of G.R.etc.The insured despite the receipt of aforesaid letters failed to submit the desired documents to the company and therefore, claim of complainant could not be processed further for want of necessary documents from the insured and the insured however vide its letter dated 20-04-2014 after more than one year of the closure of the claim file requested the Op company for reopening of the claim file and also submitted certain documents. The OP  company has not taken any decision on the reopening of claim file of the insured so far. The Op further submitted that there has been no deficiency of service on the part of OP  company in settling the claim of complainant. Lastly, it has been prayed that complaint be dismissed with costs.

                     The complainant adduced evidence by way of duly sworn his own affidavit and the affidavit of Radhey Kant Sharma,Manager M/S Sarveshwar Organic Food Ltd.The complainant has placed  on record copy of authority letter, copy of Marine Cargo Open Policy, copy of certificate issued by Avtar Goods Carriers, copy of survey report and copy of legal notice.

                    On the other hand OP adduced evidence by way of duly sworn affidavit of Mr.Kapil Dev Sharma Divisional Manager New India Assurance Company Ltd.

             We have perused case file and heard L/Cs appearing for the parties at length.

                      Briefly stated facts of the case as per averments of the complaint are that Sh.Sahil Sharma,Commercial Manager M/S Sarveshwar Organic Food Ltd.is hereby severally authorized to perform and execute all or any of the following matters, deeds and things in relation to the legal cases by or against the company,(Copy of Authority letter is annexed with the complaint as annexure-A).Complainant further submitted that the OP is a limited Insurance Company engaged in the insurance business and complainant is a Sarveshwar Organic Food Ltd.Company formerly Sarveshwar Overseas situated at Village Seora,Bishnah Kunjwani Road, through its Manager(Commercial) and the complainant company deals in selling of Basmati Rice under the Brand name Sarveshwar Rice. Complainant further submitted that he took Marine Open Policy No.002000006 dated 21-10-2002 from Op and the terms and conditions of the policy was to indemnify the insured in case of damage of goods in transit till the time they reach their destination from the place of their dispatch,(copy of policy documents are annexed as Annexure-B). According to complainant a consignment of rice through Avtar Goods Carrier from Jammu to Tamil Nadu through carrier L.R.No.2342 dated 08-09-2011 in Truck No.HR 38M 9266,the consignment was received at Delhi on and around 10-09-2011 at ICD Delhi in wet and damaged condition due to rain and the transporters has issued a damaged certificate dated 03-10-2011 stating that rice bags got damaged due to heavy rain in transit and total of Rs.88114/-worth material got damaged due to rain water,(copy of damage certificate is annexed as Annexure-C). Complaint further submitted that on request of complainant an independent surveyor has been appointed by the OP company for the assessment of damage, who conducted survey and furnished report vide survey No.INS/RMK/4/12,797 dated 23-06-2012 and as per report total 96 bags were damaged out of total 5490 bags dispatched and the net value of the 96 bags of rice including insurance @ (25%)is Rs.85,359.11/-. Further allegation of complainant is that he also paid a sum of Rs.19,190/-to the independent surveyor, Complainant further submitted that despite repeated requests and receipt of surveyor report, the OP neither rejected the claim nor sanctioned the claim. Constrained by the act of OP,complainant served legal notice to OP,but nothing fruitful has been done by the Op and this act of OP constitutes deficiency in service and un fair trade practice.

                         The stand of OP is that complainant has no locus standi to file the present complaint, as the complaint has not been filed by a competent person,Mr.Sahil Sharma having not been authorised by the complainant to file the present complaint. That the claim of complainant could not be settled on account of non-compliance of formalities and non-furnishing of necessary documents by the complainant itself,therefore,the present complaint under Consumer Protection Act is not maintainable and deserves to be dismissed. The OP further submitted that OP Company had issued Marine Cargo Open Policy No.35250021100200200006 valid for the period from 30-03-2011 to 29-03-2012 in the name of M/S Sarveshwar Overseas and it is denied that the said policy was issued in the name of complainant M/S Sarveshwar Oganic Foods. At no pinto f time any intimation was given by the complainant regarding the change of the name of the insured Sarveshwar Overseas to Sarveshwar Organic Foods Ltd.nor any endorsement to that effect was got effected by the insured in the policy in question, therefore, the complainant has no right to file instant complaint against the OP. It is submitted that an intimation was received by the OP company from complainant that the consignment consisting of 450 bags of rice which was consigned from Jammu on,08-09-2011 for delivery to Kamal Traders Chennai had been damaged enroute due to rain water. The OP company after the receipt of claim intimation letter deputed Mr.R.M.Kaul an IRDA approved surveyor for assessing the loss to the consignment. The surveyor after making inspection of the damaged rice bags submitted his report dated 23-06-2012 to OP company wherein the net loss to the tune of Rs.70,959.11np/-was assessed. The OP company after the receipt of surveyor report sought certain clarification from the surveyor and simultaneously also requested the insured vide its letter dated 25-02-2013 and 14-03-2013 for submitting certain documents which included claim bill in duplicate. Copy of declaration, copy of claim letter to the carrier and original copy of G.R.etc.The insured despite the receipt of aforesaid letters failed to submit the desired documents to the company and therefore, claim of complainant could not be processed further for want of necessary documents from the insured and the insured however vide its letter dated 20-04-2014 after more than one year of the closure of the claim file requested the Op company for reopening of the claim file and also submitted certain documents. The OP Company has not taken any decision on the reopening of claim file of the insured so far.

                 While noticing the insurance policy and cover note enclosed with the complaint, the name of insured person is M/S Sarveshwar Oversea and not M/S Sarveshwar Organic Foods.The complaint was not lodged before this Forum by proper person who insured the same, thus instant complaint is not maintainable on this count.

                              The complaint is to be decided on the basis of averments made in the complaint and this Forum is not authorized to travel beyond the pleadings made in the complaint.

                 Here we would like to refer the judgment of National Commission in case titled Vinod Kumar V/S Punjab State Electricity Board and Others,III(2011) CPJ 194(NC)

     .It is well settled, that pleadings are not to flow from the evidence but evidence is to be confined to the pleadings. In the absence of pleadings,evidence,if any,produced by the parties cannot be considered.

                     As this Forum in matter of jurisdiction and its functioning has a very limited scope involving summary procedure to conduct enquiry in the case involving the matter simplicitor relating to the consumers.

                            The law is well settled where there is such a situation as found existent in a case involving complicated question of law and fact, the case could be heard by any other appropriate Forum.

                       To lend support in the case reliance can be placed on the judgment of National Consumer Disputes Redressal Commission,New Delhi in case titled Niwas Spinning Mills Ltd.and others V/S Canbank Mutual Fund and another reported in 2002(1)CLT 113,wherein it has been held as:

       Consumer Protection Act,1986 ,Section 12-Complex issue of law and fact-Complaint filed claiming damages worth Rs.4.68 crores with interest @ 18%-Held that the complaint raises various complex issues both of law and facts-There are numerous documents which have to be proved to sustain the claim made in the complaint-Such type of complaint requires tremendous amount of time for recording evidence and hearing arguments-The Commission has to decide a complaint within a set time schedule and exercises summary jurisdiction .the complaint is not fit to be entertained-Complaint dismissed and complainant left to seek his remedy before appropriate Forum.

                        This Forum indeed drives its powers and is clothed with the jurisdiction merely under the provisions of Consumer Protection Act, which is a complete legislation in its working and procedure and manner of conducting the enquiry in a summary way not so exhaustively and in an elaborate manner as is done by the other Forums.

                        Further also to make it more clear, as for as the terms of the policy are concerned reliance can be had to judgment in case titled Indraprastha Gas Ltd.V/S New India Assurance Co.Ltd.& Ors. reported in 1(2015)CPJ 279(NC)wherein the relevant para it is laid down:

        The court has to give material meaning to the document. It is not open to the court to make any addition to or subtraction from the terms and conditions contained in Insurance Policy.

                      So in view of above said legal position of law and further the complainant has no locus standi to file the present complaint. As per insurance policy and cover note annexed with the complaint, the name of the insured person is M/S Sarveshwar Overseas,therefore,complaint filed by the complainant  is not maintainable.

                     In afore quoted back drop, complaint is accordingly, dismissed.However,complainant is at liberty to seek appropriate remedy, if so advised.However,in the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records

Order per President                                              Khalil Choudhary

 

Announced                                                            (Distt.& Sessions Judge)

30-08-2018                                                                 President

                                                                              District Consumer Forum

                                                                                    Jammu

Agreed by                                                  

                                                             

                                                        

Ms.Vijay Angral                                                .

Member                              

 

Mr.Ghulam Sarwar Chauhan

Member