Haryana

Karnal

CC/224/2018

M/s Indo Arab Grain Supplier - Complainant(s)

Versus

The New India Insurance Company Limited - Opp.Party(s)

N.D. Sharma

05 Mar 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 224 of 2018

                                                          Date of instt.05.09.2018

                                                          Date of Decision 05.03.2020

 

M/s Indo Arab Grain Supplier 59 1^st floor, New Anaj Mandi, Gharaunda, District Karnal-132114 through its partners Sandeep Kumar and Anuradha Gupta.

                                                 …….Complainant.

                                              Versus

 

1. The New India Insurance Company Limited G.T. Road Panipat-132 103 through its Manager.

2. The New India Insurance Company Limited Regd. and Head Office: New India Assurance Building, 87 M.G. Road, Fort Mumbai- 400 001 through its Manager.

3. The New India Insurance Company Limited G.T. Road Gharaunda through its Branch Manager.

                                                                        …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri N.D. Sharma Advocate for complainant.

                   Shri Naveen Khaterpal Advocate for opposite parties.

                                              

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant is a partnership firm and doing the business of processing marketing of rice for export as well as domestic market under the name and style of M/s Indo Arab Grain Supplier 59 1^st floor, New Anaj Mandi, Gharaunda, District Karnal. The said firm of the complainant obtained the Marine Gargo Oper Cover (Cargo) Insurance policy through Micro office Gharaunda, Karnal, vide policy no.35390221160300000001 on 04.06.2016, the period of insurance was from 06.04.2016 to 05.04.2017 and as per policy all types of Indian Rice of the complainant anywhere in India and Anywhere in the World were insured. On 28.09.2016, complainant was lodged 734 bags of Pusa Steam Rice (35 kg each) of value of Rs.13,87,260/- in truck/tralla bearing registration no.HR63A-5450, vide invoice/Delivery challans no.121 dated 29.09.2016 and this consignment was sent by complainant from Gharaunda to Mundra Port Gujrat to the consignee Tiger Logistics India Limited office no.206, Mundra Port, Gujrat, vide GR no.4013 dated 28.09.2016. On 01.10.2016, the abovesaid truck/tralla was goint to Mundra Port with the abovesaid consignment and when reached near village Dhakla, District Jhhajjar, a truck was going ahead and suddenly the driver of the ahead going truck applied his truck breaks. The driver of truck/tralla of the petitioner also applied breaks but during this process the truck of the petitioner hit with the ahead going truck and during this process the petitioner truck/tralla caught fire. Immediately, the driver informed to the Fire Brigade office Jhajjar and Fire Brigade services came there and controlled the fire but in the meantime the entire rice and truck/tralla were damaged completely and burnt into ashes. The local police was also informed and DDR no.19, dated 01.10.2019 was got registered in Police Station Jhajjar regarding the abovesaid incident. The complainant was also informed the OPs in this regard and on the instruction of the OPs, a surveyor namely Shri Sanjay Rustagi conducted the survey on the same day i.e. 01.10.2016 and prepared his report dated 03.10.2016. The photographs of burnt rice and burnt truck/tralla were also taken at the spot. Thereafter, on the instruction of the OPs, the complainant brought the burnt rice in Gharaunda and as per instruction of the OPs and loss was got assessed by the complainant from recognized surveyor of OPs namely C.A. Surender K.Singla Surveyor, Loss Assessor & Investigator, Panipat. Thereafter, complainant lodged the claim with the OPs regarding damage of abovesaid rice and all the concerned photos, reports and other required documents were provided to the OPs and completed all the formalities. Inspite of completed all the formalities, the claim of the complainant has not been settled by the OPs till now. Complainant requested the OPs so many times to settle the claim of the complainant and to release the price of rice amounting to Rs.13,87,260/- plus damages for harassment and mental agony to the tune of Rs.5,00,000/- but OPs did not pay any heed to the request of the complainant. In this way there was deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, who appeared and filed written version raising preliminary objections with regard to maintainability; cause of action; complainant is estopped by his own act and conduct for filing the present complaint and concealment of true and material facts. On merits, it is pleaded that the complainant got issued Marine Cargo Open Cover (Cargo) Insurance policy tghorugh Micro office Gharaunda, vide policy no.35390221160300000001 date d06.04.2016, valid from 05.04.2016 to 04.04.2017 as per the terms and conditions of the policy the insured as to declare each and every shipment/consignment immediately upon receipt of shipment/consignment documents and the insured is bound to declare to insurance company each and every shipment/consignment whether arrived or not failing which the insurance policy becomes null and void. The insured failed to send the regular declaration as per the terms and conditions of policy. So, he is not entitled to claim the damages covered under the policy. It is further denied that the complainant brought burnt rice at Gharaunda and as per the instruction of the OPs loss was got assessed by the complainant from by recognized surveyor of OP namely CA Surender Singla. The report if any of the surveyor is wrong and denied and cannot be considered for assessment of loss by the company. In case of payment of claim the OP company has got assessed the loss from its surveyor, but in this case the complainant was not covered under the terms and conditions of policy for want of furnish regular declaration. So, the assessment of loss by the company or by the surveyor self deputed by the complainant does not arise. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence his affidavit Ex.CA and documents Ex.P1 to Ex.P107 and closed the evidence on 16.10.2019.

4.             On the other hand, OPs tendered into evidence affidavit of Anil Kumar Bhola Ex.OP1/A and documents Ex.OP1 and Ex.OP2 and closed the evidence on 06.02.2020.

5.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

6.             Admittedly, the firm of the complainant obtained the Marine Cargo Open Cover (Cargo) Insurance policy from the OPs company. As per version of the complainant on 28.09.2016 the complainant has lodged 734 bags of Rice of value of Rs.13,87,260/- in the truck/tralla bearing registration no.HR-63A-5450. On 01.10.2016 abovesaid truck/tralla was going to Mundra Port, Gujrat with abovesaid consignment , when reached near village Dhakla, District Jhhajjar, said vehicle met with an accident and caught fire. Due to accident, entire rice and vehicle were damaged completely and burnt into ashes.

7.             The claim of the complainant has been repudiated by the OPs on the ground that “as per the terms and conditions of policy, the insured as to declare each and every shipment/consignment immediately upon receipt of shipment/consignment documents and the insured is bound to declare to insurance company each and every shipment/consignment whether arrived or not.”  The insured failed to sent the regular declaration as per the terms and conditions of the policy.

8.             Legal notice Ex.P105 served upon to the OPs and OPs replied the said notice as Ex.P106 in which OPs had taken the plea that insured has sent declaration from 30.04.2016 till 29.07.2016 but no declaration have been sent by the insured from 29.07.2016 till 29.09.2016. There is nothing on the file to prove that the complainant firm has sent a consignment from 29.07.2016 to 29.09.2016. Complainant has failed to lead any evidence to prove the facts that complainant has sent the consignments between 29.07.2016 to 29.09.2016 and did not submit declaration in this regard. Without any cogent, convincing and concrete evidence, it cannot be held that complainant firm has failed to submit the declaration of the consignment.

9.             Upon the intimation, fire Brigade came at the spot. This fact has been proved from the DDR Ex.P102 and payment receipt Ex.P103 issued by the fire Brigade office. Local Police also informed by the complainant and DDR Ex.P101 dated 01.10.2016 i.e. on the same day of accident in the police station.

10.            The complainant also informed the OPs immediately regarding the said accident. This fact has not been denied by the OPs.

11.            From the document Ex.P1 i.e. copy of statement of accounts and shipment premium, Ex.P2 to Ex.P96 i.e. commercial invoice with its bills of loading with deduction of premium by insurance company. Policy/certificates, it is evident that the complainant has given the declaration of all the consignments. In the present case that declaration was to be submitted to insurance company on receipt of consignment on reaching the destination but loaded truck met with accident during transit. So question for submitting the declaration does not arise.  So, plea taken by the OPs are not tenable, as the OPs have failed to lead any cogent evidence to prove their own version. It becomes a trend of the insurance companies to repudiate the genuine claims of their customers on the unreasonable grounds.

12.            In case New India Assurance Company Limited Versus Smt. Usha Yadav & others 2008(3) R.C.R. (Civil) 111, the Hon’ble Punjab and Haryana High Court expressed its anguish and observed as follows:-

        “It seems that the Insurance Companies are only interested in earning the premiums, which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance Companies make the effected people to fight for getting their genuine claims. The insurance companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus, pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy.”

13.            Further, the learned counsel of complainant replied upon the judgment of Hon’ble Supreme Court in case titled as United India Insurance Co. Ltd. Vs. Leisure Wear Exports Ltd. in civil appeal no.1016 of 2006 decided on 29.06.2016 in which it is held that Consumer Protection Act, 1986 Section 12 Marine Insurance Act, 1963, Sections 17 and 52-Dispatch of goods out of country which were duly insured under Marine policy assigned to consignee-Loss of goods in transit-Insured is legally entitled to claim compensation and file complaint under Consumer Protection Act. In terms of Section 17, even after making an assignment by the insured of their contract of insurance policy, the rights of insured under the contract of insurance policy are not assigned in favour of assignee by deed of assignment but they are continued to remain with the insured.

Keeping in view the ratio of the law laid down above, facts and circumstances of the case, we are of the considered view that the act of the OP amounts to deficiency in service and unfair trade practice.

14.            The complainant brought the burnt rice in Gharaunda and loss was assessed by the surveyor of the OPs namely CA Surender K. Singla Surveyor and Loss Assessor & Investigator, Panipat, who prepared survey report Ex.P104 and assessed the loss of Rs.13,60,980/-. The consignment has been totally brunt has also proved from the photographs attached with the surveyor report Ex.P104.

15.            As per delivery challans Ex.P99, the price of the burnt rice was Rs.13,87,260/- but surveyor of OPs has assessed the loss to the tune of Rs.13,60,980/-. Hence the complainant is entitled for the amount of Rs.13,60,980/- as the loss assessed by the surveyor.

 

16.            In this regard we can rely upon the authority 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, we are of the considered view that the OPs are liable to pay the loss assessed by the surveyor alongwith compensation for harassment and litigation expenses.

17.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.13,60,980/- to the complainant with interest @ 9% per annum from the date of repudiation of claim till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense  This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 05.03.2020                                                                      

                                                                      President,

                                                              District Consumer Disputes

                                                               Redressal Forum, Karnal.      

 

 

         (Vineet Kaushik)         (Dr. Rekha Chaudhary)

            Member                         Member