Punjab

Ludhiana

CC/19/376

M/s Raj Impex - Complainant(s)

Versus

Tata AIG Gen.Insurance Co.Ltd. - Opp.Party(s)

Rajan Kumar Adv.

05 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:376 dated 06.08.2019.                                                        Date of decision: 05.04.2023.

 

M/s. Raj Impex, Plot No.284,  New Agar Nagar, Ferozepur Road, Ludhiana-141012 through its partner Sh. Rajvinder Singh Bath.                 

……Complainant

                                                Versus

1. Tata AIG General Insurance Company Limited, 1/F, Ist Floor, Dashmesh Complex, SCO-668, Pakhowal Road, Ludhiana.

IInd Address: Unite No.810-816, 8^th Floor, World Trade Tower, Plot No.C-001, Sector 16, Noida (UP).

2. Tata AIG General Insurance Ltd., having its regd. Office at Peninsula Business Park, Tower-A, 15^th Floor, G.K. Marg, Lower Parel, Mumbai-400014

…….Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. R.K. Chand, Advocate. 

For OPs                         :         Sh. Rajeev Abhi, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant is a registered partnership firm and Sh. Rajvinder Singh Bath is one of its partner who is carrying on business of manufacturing of bicycle and trading of cycle parts after importing the same from China or other countries. The complainant submitted that it purchased cycle parts from M/s Guangzong Feixiang Bicycle Co. Ltd, No.6 Lutun Industrial Area, Fengzhai Country, Hebei P.R, China through Invoice No. FX-206-R1819-003 dated 31-05-2018. The complainant also purchased cycle parts from M/s Guangfeng Fine Ind'I Company Ltd No.001 Gaongzong Country, Xingtai City Hebei, China through Invoice No.1819-03 dated 30/05/2018 and total value of the said goods was 46138 USD i.e Rs.32,15,818.60p. M/s Guangzong Feixiang Bicycle Co. Ltd dispatched the said goods/cycle parts from China through sea. M/s Guangfeng Fine Ind'I Company Ltd also dispatched said goods/bicycle parts from China through sea. The said good/bicycle parts were duly insured with the opposite party Tata AIG General Insurance Company Limited vide Marine Cargo Open Policy No. 0865000548 w.e.f 09.03.2018 to 09.03.2019 and all risks were covered in the said policy. The said policy was covering all risk of goods covered in the said policy from anywhere in the world to anywhere to India. The said policy was covering bicycle parts, hardware, tyre, tubes, machines, complete bicycle, auto parts, hand tools, scaffolding, tractor parts and other engineering goods. The above said consignment/goods were shipped on board on 04.06.2018 through carrier M/s Regional Container Lines (RCL) as per bill of lading No.TSNCB18004934 dated 04/06/2018. The goods were consigned in 20 feet container No.FCIU3580772. The said goods reached in India in the said container. Bill of entry No.7159811.dated 10.07.2018 of Indian Custom EDI System, ICD Concor, Dhandari Kalan, Ludhiana was issued. The said consignment reached at Ludhiana and after getting clearance of the consignment from custom department from ICD Dhandari Kalan, Ludhiana. The complainant received container at grain market Ludhiana for the shifting of the consignment in their local vehicle as the said container could not be entered in the godown premises directly due to narrow street and congested area. After opening the container and while shifting consignment from container to local lorries, it was found that some material which was lying below/at bottom was in drenched condition due to ingress of the water in the container. The cause wet condition of spare parts items was due to entry of water from the small corners of container due to inundation from the bottom side of the storage. The complainant had suffered loss of Rs.5,91,441/- due to damage of the consignment. In fact some material out of the total imported material such as break wire, inner cable, nylon bush etc. were found in wet condition. The complainant also shoot video and clicked photographs of the goods while unloading from the container in wet condition which clearly shows that the bags/sacks in which goods were packed in wet condition and water was dripping from the bags.

                   The complainant further submitted that it lodged the claim with the opposite parties immediately on the same day when the goods were received in wet condition and water was dripping from the bags in which goods were packed. The opposite parties registered the claim and deputed M/s. Proclaim Insurance Surveyors and Loss Assessors Private Limited for assessment of the loss. M/s. Proclaim through its representative inspected the spot and inspected the consignment and they also found that material of cycle parts wet and affected due to the ingress of water from outwardly inside container and the also found that said material is not suitable for fresh sale as same has been affected due to water. The surveyor had collected documents and obtained photographs of drenched bags and they assessed the gross loss of Rs.5,43,654/- and assessed Rs.1,06,707/- as value of salvage. After deducting salvage and less excess clause, the said surveyor has assessed net loss of Rs. 4,30,868/- and submitted final survey report dated 13.12.2018 with the opposite parties. The complainant has completed all the formalities and has submitted all the documents with the opposite parties but they have not paid and settled the genuine claim of the complainant. The opposite parties assured to the complainant that their claim is genuine and they promised to pay the claim at the earliest. But the complainant surprised to receive repudiation letter dated 28/02/2019 from the opposite parties, main contents of which are reproduced as under:-

 

Reg:     Claim reported regarding loss/damage to cargo(bicycle spare parts) under Policy No.0865000548; Claim No.0820914540A This has reference to your above mentioned claim intimate to us on 30-july-2018 regarding loss/damage of cargo at the time of taking delivery.

  The loss was surveyed by independent IRDA licensed surveyor M/S. Proclaim Insurance Surveyor and loss Assessors and survey was conducted at Insured's Premises, Ludhiana, Punjab. We are in receipt of the survey report on careful perusal of the same we understand bicycle's spare parts i.e break cable etc. were received in rusted condition due to water ingress in container.

Please reference below mentioned exclusion mentioned on policy:-

Excluding Rust, oxidisation, discoloration and corrosion unless caused by ITC(B)/ICC(B) perils

In the light of the above facts, there is no ICC/ITC-B peril operated during transit hence reported loss does not fall under policy purview. The same has already been informed to you by vide our email dt: 31-Jan-2019 & 12 Feb-2019.

The foregoing declination of insurer's liability is issued based on the facts as presently known. We reserve the right to extend or modify this declination, should additional facts or circumstances become known to us.

Should you believe that we have overlook any material fact or circumstances or should you wish to present an alternative interpretation of any relevant policy provision, please draw the same to our attention for our further consideration within 15 days if receipt of this letter.

If no representation/ clarification is received by us within 15 days of receipt of this letter, the claim will be finally treated as repudiated on the ground clearly mentioned in the letter. In case you need any further clarification or assistance, please feel free to contact us

 

 

The complainant further submitted it lodged the claim on same day when the goods were received in drenched condition on 27.07.2018 but the surveyor visited and inspected the goods on 30.07.2018 and after that the said surveyor visited on 24.08.2018 and lastly he visited on 06.11.2018. The surveyor of opposite parties has intentionally delayed the matter and submitted the report on dated 13.12.2018 and the surveyor has taken four months time to submit his survey report. It is natural that the iron goods would be get rusted during the said long period. The goods/spare parts were not in rusted condition when the same were received at Ludhiana by the complainant, however the bags/sacks in which said goods were packed were in drenched condition. It is clear that matter has been intentionally delayed by the surveyor at the instance of the opposite parties with motive to bring the claim under the said vague exclusion clause and with motive to repudiate the genuine claim of the complainant which is deficiency in service and unfair trade practice on the part of the opposite parties. The claim of the complainant has been repudiated illegally and arbitrarily. It is admitted fact by the opposite parties and surveyor that cycle parts etc. were received in wet condition due to water ingress in container. The said photographs also reveal that water was dripping from the bags in which said items were packed. So there is no dispute at all regarding damage of consignment during transit and within the validity of said insurance policy. The opposite parties never disclosed and explained the alleged exclusion clause referred in the repudiation letter. The said clause cannot be binding upon the complainant as same is against the law of nature. Rust is the common name for iron oxide. Iron oxide is formed when iron and oxygen react in the presence of water or moisture in the air. When the spare parts drenched with water in the container then it is natural that said spare parts would be affected with rust due to iron and oxygen reaction in the presence of water. The said policy covered all types of losses. What type of loss could be suffered to the iron items i.e. rust if the iron items drenched in water during transit. It is not the case that cycle spare parts items were not in sound conditions. In fact the goods were transported and sent in sound conditions but the same were affected with water during transit due to entering of water into the container. It is natural course that if the iron items would drenched in water then it would be rusted after coming into contact with the oxygen present in the air. It is settled principle of law that no terms or conditions can be entered in agreement if the same is against the law of nature. Purpose of insurance of iron items would be defeated if there is vague exclusion clause that company is not liable if iron items got rusted in transit. In the present case goods were received in wet condition and same were rusted due to entry of water in the container, so the opposite parties are liable to pay the claim to the complainant. The complainant has paid a sum of Rs.23,001/- as premium for getting the insurance policy. At the time of issuance of the policy no terms and conditions of the policy were explained to the complainant, so the said terms and conditions are not binding upon the complainant. The opposite parties has repudiated the genuine claim of the complainant which shows that the insurance company is only interested in earning premiums and find ways and means to decline the genuine claims. When the premium was received by the agent of the insurance company, he did not disclose any terms and conditions of the policy and no terms conditions were read over or explained or supplied to the complainant. The insured items are of iron and why the opposite parties underwrite the policy. The said policy was not supplied by the opposite parties to the complainant and the complainant only came to know about the said illegal exclusion clause when the claim of the complainant was repudiated by them due to which the complainant has suffered mental tension and agony which amounts to deficiency in service for which the complainant is entitled to amount of Rs.5,91,441/- along with custom duty, GST and freight etc. paid by the complainant on the said goods which comes to Rs.8,23,599/- and after deducting salvage of Rs.1,06,707/- assessed by the surveyor, balance amount comes to Rs.7,16,892/-  which is recoverable from the opposite parties. In the end, the complainant has prayed for issuing directions to the opposite parties to pay Rs.71,16,892/- along with interest @24% per annum along with compensation of rs.2,00,000/- and litigation expenses of Rs.33,000/-.

2.                Upon notice, the opposite parties appeared and filed written statement and took preliminary objections that the compliant is barred under Section 26 of Consumer Protection Act; this Commission has no territorial jurisdiction to try and decide the complaint; the complaint is bad for non-joinder and mis-joinder of parties; the complainant is estopped by his own act and conduct from filing the complaint and has concealed the material facts. The opposite parties averred that the perusal of the Marine Cargo Open Policy No.0865000548 00 produced by the complainant on the record depicts that the policy has been issued on 09.03.2017 from the office of Tata AIG General Insurance Co. Ltd., Mumbai and from the repudiation letter dated 28.02.2019 produced by the complainant on the record, it is evident that the claim has been intimated on 30.07.2018, processed and repudiated vide letter dated 28.02.2019 by Tata AIG General Insurance Co. Ltd., Plot No. C-001, Unit No.810-816, 8th Floor, World Trade Tower, Sector 16, Noida (UP). Even the complainant has made Tata AIG General Insurance Co. Ltd., Plot No.C-001, Unit No.810-816, 8th Floor, World Trade Tower, Sector 16, Noida (UP) as party to the present complaint but intentionally in order to bring the complaint within the territorial jurisdiction of this Commission impleaded Ludhiana Branch of Tata AIG General Insurance Co. Ltd. as party whereas Tata AIG General Insurance Co. Ltd., 1/F, First Floor, Dashmesh Complex, SCO 668, Pakhowal Road, Ludhiana has never dealt with the claim file and has wrongly been impleaded as party to the present complaint and the complaint bad for mis-joinder and non-joinder of parties. The policy was issued by Tata AIG General Insurance Co. Ltd., Mumbai, the claim was lodged, processed and repudiated by Tata AIG General Insurance Co. Ltd., Noida (UP) and as such, this Commission has no territorial jurisdiction to try and decide the present complaint.  The opposite parties stated that the complainant obtained Marine Cargo Open Policy bearing No. 0865000548 to cover bicycle parts, hardware, tyre, tubes, machine, complete bicycle, auto parts, hand tools, scaffolding, tractor parts and other engineering goods for the period incepting from dated 09.03.2018 and expiring on dated 08.03.2019 (or any date prior to expiry date on which the sum insured/premium is exhausted by shipments/declarations or until cancelled as provided for in terms of the cancellation condition of the policy). The policy was issued subject to terms, condition, exclusions mentioned in policy and Institute Cargo Clauses (A & B) and Inland Transit Clauses (A & B) besides other clauses as mentioned in policy. The complainant registered claim under the said policy on 30.07.2018 regarding the alleged loss/ damage of cargo of bicycle parts at the time of taking the delivery. The on receipt of intimation, the opposite parties deputed M/s. Proclaim Insurance Surveyors & Loss Assessors Pvt. Ltd., 2nd Floor, Fortune Chambers, SCO 16-17, Feroze Gandhi Market, Ludhiana, an IRDAI licensed surveyor and loss assessor to assess the loss caused to the consignment in question. The said surveyor had personally assessed the consignment, took the photographs and documents and thereafter prepared his report dated 13.12.2018 under his signatures assessing the loss to Rs.4,30,868/-. Summary of loss assessment is re-produced as under:

Description	Amount (Rs)
Gross Loss	534654
Less: Salvage	106707
Net Loss Assessed	446947
Less Excess	16079
Net Adjusted Loss	430868

The surveyor submitted his report with the following remarks:

REMARKS

Policy is covering losses as per coverage of ITC - A. However, nature and type of damage is found correlated with following exclusion listed, as per policy, which we are re-presenting to insurers for their necessary decision.

Excluding Rust, oxidization, discoloration and corrosion unless caused by ITC (B)/ICC(B) perils.

The above report is issued without prejudice to the rights of the insurers. The payment of the claim is subject to the terms and conditions of the policy under which the claim has been preferred.

On receipt of report of M/s Proclaim Insurance Surveyors & Loss Assessors Pvt. Ltd. dated 13.12.2018, it was noted that the consignment of bicycle parts were being imported from China to India and after getting clearance from custom department from ICD Dhandari Kalan, Ludhiana, the complainant received the container at Grain Market, Ludhiana for shifting the consignment in their local lorries to their godown premises. The surveyor was shown the consignment which was already unloaded at the complainant's premises and it was found that the cargo of bicycle parts were wet and in rusted condition due to water ingress in the container. The complainant vide letter dated 24.12.2018 confirmed that no pre-dispatch and pre-delivery inspection was done. Further, the complainant had rejected the goods on account of rusting/oxidation. The opposite parties further alleged that the insurance policy is a contract in itself and the parties are bound by the terms and conditions of the insurance policy. It is well settled law that nothing can be added or subtracted out of it. The complainant had registered claim for damage to the consignment on account of rusting/oxidation and the said cause of loss is excluded under the policy exclusions as reproduced hereunder:-

"Excluding rust, oxidization, discoloration and corrosion unless caused by ITC(B)/ICC(B) perils.

As the consignment was delivered by sea, risk covered under ICC-B clause is referred and reproduced below for reference:

INSTITUTE CARGO CLAUSES (B)

RISKS COVERED

1. This insurance covers, except as provided in Clauses 4, 5, 6 and 7 below,

1.1 loss of or damage to the subject-matter insured reasonably attributable to

1.1.1 fire or explosion

1.1.2 vessel or craft being stranded grounded sunk or capsized

1.1.3 overturning or derailment of land conveyance

1.1.4 collision or contact of vessel craft or conveyance with any external object other than water

1.1.5 discharge of cargo at a port of distress

1.1.6 earthquake volcanic eruption or lightning,

1.2 loss of or damage to the subject-matter Insured caused by

1.2.1 general average sacrifice 1.2.2 jettison or washing overboard

1.2.3 entry of sea lake or river water into vessel craft hold conveyance container liftvan or place of storage,

1.3 total loss of any package lost overboard or dropped whilst loading on to, or unloading from, vessel or craft.

As per the available facts and records, no ICC-B perils operated during voyage and as such the claim of complainant did not fall under the policy purview. The complainant was informed about above observations and requested to give his comments vide e-mail dated 31.01.2019 to which complainant replied vide e-mail dated 31.01.2019 and 01.02.2019 clarifying that the goods were damaged since rainwater entered in the packages. On receipt of reply, the claim of the complainant was reviewed again and the complainant was informed vide e-mail dated 06.02.2019 that it was observed that the goods were affected due to corrosion, which formed due to coming in contact with rainwater as such loss/rejection of material on account of rusting/oxidation is excluded unless caused by ITC-B perils. Further, the survey report was also shared with the complainant vide e-mail dated 12.02.2019 for perusal of the complainant. According to the opposite parties, under ICC- B clause damage due to entry of sea lake or river water into vessel craft hold conveyance container liftvan or place of storage is covered under policy however as clearly stated by complainant, the damage in instant case has been caused due to ingress of rain water which is not mentioned in ICC-B clause hence excluded from the policy. ICC-B is specific named perils clause hence no interpretation beyond the risks mentioned under the ICC-B can be drawn to include damage due to rain water. On the basis the above facts and observations, the claim of the complainant was sent letter dated 28.02.2019 declining the claim of the complainant while inviting his comments within 15 days of receipt of letter failing which the claim was finally treated as repudiated as mentioned in the said letter. The claim of the complainant has rightly been repudiated as no claim. The grounds of repudiation are legal, valid and enforceable and are in accordance with terms and conditions of the policy. There is as such no deficiency in service or negligence on the part of the them and they have never adopted any unfair trade practices as alleged.

                   On merits, the opposite parties reiterated the crux mentioned in the preliminary objections. The opposite parties admitted that the surveyor has visited the godown premises and inspected the affected consignment on 30.07.2018 and this fact is clearly stated by the surveyor in his report under the head date of delivery, date of application for survey and date of place of survey, which is reproduced as under:-

Date of deliver	Insured to provide details
Date of application for survey	We were appointed by insurers on 30th July 2018 for survey and loss assessment
Date and place of survey	In compliance of intimation, we contacted with concerned persons of consignee (insured) and visited at their godown premises on same day i.e. 30th July, 2018 when we examined the affected consignment. Later, we visited on 24th August, 2018 and 6th November, 2018 for final quantification and verification.

 

The report is submitted within one month seven days from the last visit of the surveyor. The consignment was inspected by the surveyor on the day when the complainant has intimated the claim and requested for appointment of surveyor for assessment of loss i.e. 30.07.2018 so there is no question that the iron goods would have been rusted on the same day. Rather the goods were found rusted at the time of inspection of the consignment for the first time on 30.07.2018 and nature and type of the damage as per the survey report is found correlated with the exclusions listed as per policy i.e. excluding rust, oxidization, discoloration and corrosion unless caused by ITC(B)/ICC(B) peril. According to the opposite parties the goods were not transported in a sound condition and no proof to that effect is submitted. There is no pre-inspection of the goods before dispatch and as such the opposite parties do not know the status of goods at the time of dispatch/loading. The purpose of the insurance would not be defeated on account of exclusion clause mentioned in the policy and the opposite parties are not liable for the goods which falls within the exclusion clause which is not against law of nature and the complainant is not entitled to any amount. The terms and conditions of the policy were explained to the complainant at the time of obtaining the policy and as such, they are binding upon the complainant. The exclusion clause is mentioned in the policy itself. The partners of the complainant are the learned persons who till date have never written any letter for demanding any terms and conditions of the policy or that the exclusion clause is vague or against law of nature. Moreover, the firm cannot suffer mental tension and agony as it is not an individual as it does not come within the definition of “individual”. The claim of the complainant has rightly been repudiated as no claim and grounds of repudiation are legal, valid and enforceable and are in accordance with the terms and conditions of the policy. The opposite parties denied any deficiency in service on their part and in the end, a prayer for dismissal of the complaint has been made.

3.                During the pendency of the complaint, an application for impleading Tata AIG General Insurance company Limited, having its registered office at Peninsula Business Park, Tower-Am, 15^th Floor, G.K. Marg, Lower Parel, Mumba-400013 as opposite party No.2 was moved which was allowed vide order dated 26.08.2021.

4.                In support of his claim, Sh. Rajvinder Singh Bath, Partner of the complainant M/s. Raj Impex tendered his affidavit Ex. CW1/A in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of letter dated 28.02.2019 of opposite parties, Ex. C2 is the copy of final report of surveyor dated 13.12.2018, Ex. C3 is the copy of e-way bill dated 28.07.2018, Ex. C4 is the  copy of GR No.655 dated 27.07.2018, Ex. C5 is the copy of  letter dated 13.09.2018 written by the complainant, Ex. C6 is the copy of letter dated 19.09.2018 of RCL Agencies, Ex. C7 is the copy of details of loss occurred, Ex. C8 is the copy of certificate of insurance, Ex. C9 to Ex. C17 are the copies of photographs, Ex. C18 is the copy of e-payment transaction status receipt, Ex. C19 is the copy of bill dated 04.06.2018, Ex. C20 is the copy of  bill dated 04.06.2018 of Regional Container Lines, Ex. C21 is the copy of packing list dated 30.05.2018, Ex. C22 is the copy of commercial invoice dated 30.05.2018, Ex. C23 is the copy of packing sheet dated 31.05.2018, Ex. C24 is the copy of commercial invoice dated 31.05.2018, Ex. C25 is the copy of Marine Cargo Open Policy, Ex. C26 is the copy of order  at Indian Customs EDI system, Ex. C27 is the copy of special observation of Superintendent EDI system, Ex. C28 is the copy of order of Indian Customs EDI system, Ex. C29 is the copy of examination order dated 26.07.2018, Ex. C30 is the pen drive, Ex. C31 to Ex. C40 are the photographs and closed the evidence.

5.                On the other hand, the counsel for the opposite parties tendered affidavit Ex. RA of Sh. Sanjay Bhagat, Vice President-Auto Claims of the opposite parties and affidavit Ex. RB of Sh. Pardeep Kumar, Branch Head of Proclaim Insurance Surveyors and Loss Assessors Pvt. Ltd. along with documents Ex. R1 is the copy of Marine Cargo Open Policy, Ex. R2, Ex. R14 are the copies of final report dated 13.12.2018 of the surveyor, Ex. R3 is the copy of letter dated 24.12.2018 of the complainant, Ex. R4 is the copy of  clauses, terms and conditions of the policy, Ex. R5, Ex. R12, Ex. R44, Ex. R46 , Ex. R49, Ex. R53, Ex. 55, Ex. R57 are the copies of email, Ex. R6, Ex. R10 are the copies of letter dated 28.02.2019 of opposite parties, Ex. R7 is the copy of policy schedule of Marine Cargo Open Policy, Ex. R8 is the copy of certificate of insurance, Ex. R9 is the copy of institute cargo clauses (A), Ex. R11 is the copy of consignment track report, Ex. R13 is the copy of Marine Claim Form, Ex. R15 to Ex. R27 are the copies of photographs, Ex. R28 is the copy of commercial invoice dated 30.05.2018, Ex. R29 is the copy of packing list dated 30.05.2018, Ex. R30 is the copy of commercial invoice dated 31.05.2018, Ex. R31 is the copy of packing sheet dated 31.05.2018, Ex. R32 is the copy of details of items, Ex. R33, Ex. R34 are the copies of bill of lading, Ex. R35 is the copy of invoice of Indian Customs EDI system, Ex. R36 is the copy of letter dated 19.09.2018 of RCL Agencies written to the complainant, Ex. R37 is the copy of tax invoice dated 04.07.2018, Ex. R38 is the copy of tax invoice dated 24.07.2018, Ex. R39 is the copy of tax invoice dated 04.07.2018, Ex. R40 is the copy of debit note dated 12.06.2018, Ex. R41 is the e-Payment Transaction status receipt dated 20.07.2018, Ex. R42 is the copy of examination order dated 10.08.2018, Ex. R43 is the copy of special observation of Superintendent, Ex. R45 is the copy of details of loss occurred, Ex. R47 is the copy of damaged goods and repaired items, Ex. R48 is the copy of detail of damaged items, Ex. R50 is the copy of tax invoice dated 05.09.2018, Ex. R51 is the copy of GST invoice dated 02.08.2018, Ex. R52 is the copy of invoice No.367 dated 21.09.2018, Ex. R54, Ex. R56, Ex. R58 are the copies of certificate of insurance and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply, affidavit and documents produced on record by both the parties.

7.                From the perusal of documents and evidence on record, it is admitted that the complainant obtained a Marine Cargo Open Policy incepting from 09.03.2018 till 08.03.2019. A consignment of having goods worth 46138 US$ i.e. Rs.32,15,818.60 was dispatched on 04.06.2018 and reached the ICD Dhandari Kalan, Ludhiana at 10.07.2018 and after taking the necessary clearances, the container was taken to Grain Market, Ludhiana for shifting of the articles of the consignment. During the course of shifting, it was found that the material lying at the bottom of the container was found to be in drenched/wet condition. The complainant initially assessed the loss to be Rs.5,91,441/-. He also clicked the photographs. The complainant lodged the claim on 27.07.2018 with the opposite parties upon which M/s. proclaim Insurance Surveyors and Loss Assessors Private Limited was deputed. The representative of said surveyor conducted the first inspection on 30.07.2018 followed by second inspection on 24.08.2018 and he finally visited on 06.11.2018 and prepared his report on 13.12.2018. In his report, the surveyor assessed the loss as under:-

Description	Amount (Rs)
Gross Loss	534654
Less: Salvage	106707
Net Loss Assessed	446947
Less Excess	16079
Net Adjusted Loss	430868

 

Based upon the report of the surveyor, the opposite parties repudiated the claim vide letter dated 28.02.2019 Ex. C1, the operative part of which reads as under:-

“The loss was surveyed by independent IRDA licensed surveyor M/S. Proclaim Insurance Surveyor and loss Assessors and survey was conducted at Insured's Premises, Ludhiana, Punjab. We are in receipt of the survey report on careful perusal of the same we understand bicycle's spare parts i.e break cable etc. were received in rusted condition due to water ingress in container.

Please reference below mentioned exclusion mentioned on policy:-

Excluding Rust, oxidisation, discoloration and corrosion unless caused by ITC(B)/ICC(B) perils

In the light of the above facts, there is no ICC/ITC-B peril operated during transit hence reported loss does not fall under policy purview. The same has already been informed to you by vide our email dt: 31-Jan-2019 & 12 Feb-2019.

The foregoing declination of insurer's liability is issued based on the facts as presently known. We reserve the right to extend or modify this declination, should additional facts or circumstances become known to us.

Should you believe that we have overlook any material fact or circumstances or should you wish to present an alternative interpretation of any relevant policy provision, please draw the same to our attention for our further consideration within 15 days if receipt of this letter.

If no representation/ clarification is received by us within 15 days of receipt of this letter, the claim will be finally treated as repudiated on the ground clearly mentioned in the letter.

In case you need any further clarification or assistance, please feel free to contact us.”

8.                Both the parties have adduced in evidence photographs Ex. C9 to Ex. C17 and Ex. C31 to Ex. C40 by the complainant and Ex. R15 to Ex. R27 by the opposite parties. The representative of the surveyor firstly inspected the container in New Grain Market, Ludhiana on 30.07.2018 when the goods were being shifted and he took photographs as well but he did not produce the same. Rather photographs produced by the complainant clearly depicts that bags/sacks lying at the floor of the container containing the goods were dipped in water. The opposite parties have produced the photographs of third and final inspection that took place on 06.11.2018 but withheld the photographs clicked on 30.07.2018 for reasons best known to him. The process of rusting begins as and when the iron soaked in water comes into contact with air and process of oxidation starts. Since on 30.07.2018, the articles were lying in the bags/sacks itself and oxidation process has not yet started by that time. It is during 3-4 months when the representative of the surveyor company took time, the rusting appear to have taken place. So this material aspect takes away the case of the complainant from the purview of exclusion of the policy schedule and makes the reason for repudiation as untenable. There is another important aspect which reflects the bonafide of the complainant in lodging the genuine claim. The entire consignment values to the 46138 US$ i.e. Rs.32,15,818.60 but the complainant lodged a claim of loss which the complainant has actually suffered. So in these circumstances, the opposite parties were not justified in repudiating the claim of the complainant and it would be just and appropriate, if the opposite parties are directed to pay Rs.4,30,868/- to the complainant as assessed by the surveyor in his report dated 13.12.2018 Ex. C2=Ex. R2 and Ex. R14 within 30 days from the date of receipt of copy of order along with composite costs of Rs.10,000/-.

9.                As a result of above discussion, the complaint is partly allowed with direction to the opposite parties to pay the net adjusted loss of Rs.4,30,868/- to the complainant as assessed by the surveyor in his report dated 13.12.2018 Ex. C2=Ex. R2 and Ex. R14 within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled to interest @8% per annum from the date of filing of complaint till its actual payment. The opposite parties shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copies of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:05.04.2023.

Gobind Ram.

 

 

M/s. Raj Impex Vs Tata AIG General Insurance Co.              CC/19/376

Present:       Sh. R.K. Chand, Advocate for the complainant.

                   Sh. Rajeev Abhi, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to the opposite parties to pay the net adjusted loss of Rs.4,30,868/- to the complainant as assessed by the surveyor in his report dated 13.12.2018 Ex. C2=Ex. R2 and Ex. R14 within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled to interest @8% per annum from the date of filing of complaint till its actual payment. The opposite parties shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copies of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:05.04.2023.

Gobind Ram.