The complainant company P.P. Industries Pvt. Ltd., (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against United India Insurance Company Limited and another (here-in-after referred to as opposite parties).
Briefly stated the case of the complainant company is that this company has authorised Mr. Dumpy Kumar Garg, Senior Manager of the Company to file present complaint. The complainant purchased a marine cargo open policy No. 200401/21/14/02/00000038 for the period 23.08.2014 to 22.08.2015 from the opposite parties against payment of premium of Rs.38,203/-. The opposite parties never supplied detailed terms and conditions of the policy.
It is alleged that complainant sent 30 transformers to EEL/Central Store/Putki Dhanbad, JBVNL Ranchi Jharkhand which were sold to JBVNL Ranchi Jharkhand vide invoice No.PP-1005 dated 15.09.2014, through M/s G.S. Trailer Services Ludhiana vide GR No.233 dated 15.09.2014. The pre-inspection of above transformers was done on 04.09.2014. The consignment reached the consignee on 25.09.2014 but when it was delivered, it was found that loss had occurred to 16 transformers during transit. The loss was detected on a joint inspection by authorities of consignee which was carried out on the date of delivery i.e. 25.09.2014 itself.
It is alleged that on receipt of intimation regarding the loss, the complainant gave intimation to Police Station, Bathinda vide letter dated 28.09.2014. The complainant even tried to lodge DDR/FIR even at the destination at Dhanbad but no report was lodged by the police officials on the pretext that the place of loss could not be ascertained as the loss took place during transit. Before start of delivery/journey on 15.09.2014 the complainant took confirmation from the driver of the vehicle of transporter that the transformers were in good conditions i.e. without any leakage and transformer oil level was above the required mark. The loss was intimated even in local press at Dhanbad. The complainant gave intimation to the opposite parties. The opposite parties appointed Mr. R.N.S Kushwaha surveyor and loss assessor who conducted the survey and assessed the loss to the tune of Rs. 9,37,264/- vide survey report dated 28.08.2015. The survey was conducted on 08.10.2014 and 09.10.2014 whereas the survey report is dated 28.08.2015 and submitted with opposite parties on 21.09.2015.
It is alleged that after receipt of survey report the opposite parties deputed M/s G.S. Associates for getting the formalities completed for payment of claim. The complainant submitted all the documents in their possession to said surveyor as well as to the earlier surveyor Mr. R.N.S. Kushwaha who assured the complainant that the claim will be processed and paid at the earliest. The complainant lodged the claim with the opposite parties in time and completed all the legal formalities but the opposite parties have repudiated the claim vide letter dated 28.03.2016 after about 1½ years of loss on false and flimsy grounds. The repudiation letter is illegal, null and void and is not binding on the rights of the complainant. The opposite parties have falsely alleged that the complainant has not supplied the required documents to the surveyor rather the complainant supplied all the documents in its possession and the surveyor has also assessed the loss on the basis of said documents. The opposite parties have illegally held that no remarks were given on the GR by the consignee regarding any sign of damage or tempering of goods as the said loss could only be ascertained by way of inspection by competent officials which was done on a joint inspection of authorities on 25.09.2014 itself. The said inspection report has also been called for by the opposite parties from the consignee who has supplied the copy of report to opposite parties vide letter dated 05.04.2016. Since the loss was detected only on the inspection of consignment, there was no question of any intimation to the opposite parties at the time of taking of delivery. The opposite parties have illegally held that no spot information was given to the police authorities as the representative of complainant intimated the police at Dhanbad and tried to lodge the DDR/FIR but the police did not lodge any DDR/FIR on the pretext that the exact location of loss could not be detected as the loss has occurred during transit from Bathinda to Dhanbad. Thereafter the complainant intimated P.S. Bathinda Vide letter dated 28.09.2014 about the loss i.e. at the place from where the goods were dispatched. The opposite parties have held that there is delay of three days as the loss was reported vide letter dated 27.09.2014. The complainant also intimated the transporter about the loss vide letter dated 27.09.2014. The opposite parties have illegally held that risk under marine policy terminates on unloading the goods but the loss has occurred during transit and not after unloading of goods. The loss was duly established to have taken place during transit but the opposite parties have illegally repudiated the same. The complainant is taking the insurance coverage from opposite parties for long time of 7 years.
It is also alleged that the repudiation letter dated 28.03.2016 is illegal, null and avoid and is not binding on the rights of the complainant. Due to non payment of genuine claim of complainant, he is suffering from financial loss, harassment, botheration, mental agony, loss of business etc. for which he claims compensation to the tune of Rs.2,00,000/-.
On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay insurance claim amount of Rs. 9,37,264/- alongwith interest @ 12% p.a. from the date of loss till realization in addition to compensation to the tune of Rs.2,00,000/- besides litigation expenses of Rs.22,000/-.
Upon notice, the opposite parties appeared through counsel and contested the complaint by filing joint written reply raising legal objections that present complaint is not maintainable. That complainant carries on commercial activities on large scale to earn huge profits and has employed many persons for the same, and as such complainant is not consumer as defined under the 'Act'.
It has been pleaded that the consignee can take open delivery of the consignment in case of any doubt and as per record, consignment has been received by the consignee/representative without any objection at the destination, and as such risk of insurance terminates immediately as per Clause-5(1) of Marine Cargo Open Policy, obtained by the complainant. While taking delivery of the consignment, no remark has been given by the consignee on the GR, which proves that consignment has been reached at the destination of the consignee in a same condition, in which the same was transported by the consignor, and as such the opposite parties are not liable to make any reimbursement.
Futher legal objections are that no intimation was given to the Insurance Company immediately for spot survey either by the consignor or by the consignee at the time of delivery of consignment and consignment has been delivered to the consignee in the absence of any officials of the opposite parties, and as such the opposite parties are not liable to pay any amount.
It has also been pleaded that only grudge of the consignee and consignor is that oil has been removed by the carrier from transformers but no weighing slip of transformers filled with oil before start of journey for onward delivery to the consignee has been produced before the opposite parties nor any weighment of the consignment was done after the same reached to the consignee which could prove that there is no loss of oil in the aforesaid consignment. As per provisions of Section 10 of Carrier Act, notice shall be given immediately to the transporter/carrier for any loss suffered by the consignor or consignee but no notice was given by the insured consignor consignee to the transporter within stipulated period, as such the opposite patties are not liable to pay any amount as claimed in the present complaint.
The other legal objections are that even as per the aforesaid Marine Cargo Policy Clause-4, notice in writing to the consignor/bailee shall be given within 3 days of delivery for the loss damages. However, neither the consignor nor the consignee gave any notice within stipulated period, and as such insured has violated the terms and conditions of the insurance policy. That as per record, submitted by the insured with opposite parties, consignment has been duly received by the consignee and after receipt of consignment, liability of the insurance company ceases and after receipt of consignment, consignor has no locus-standi to the the present complaint. That there is a clause in the aforesaid Marine Cargo Cover that while transporting the consignment, wagon/vehicle in which goods are to be transported, shall be covered with trampoline and if the consignment was transported in fully covered condition and the same has been received by the consignee in the covered condition, then there is no risk for any loss to the aforesaid consignment nor is there any endorsement on G.R. that consignment has been received in open condition or there was any damages to the consignment. Moreover, there is no iota of evidence that vehicle carrying transport met with accident at any place or consignment was de-shipped at any place during transit, so no question of loss of consignment in transit took birth. That it has been mentioned in Clause-8 of the aforesaid policy that in the event of any loss, it may give rise the claim under this policy, immediately notice thereof in writing should be given to the insurance company, whose address is duly mentioned in the insurance policy, but no such notice was given immediately. That per declaration clause of the aforesaid policy, it warrants that during the currency of this open policy, insured will declare to the company within 48 hours from the time risk attaches or shipment, failing which company has no option except to render the aforesaid open policy void and no declaration form was submitted within stipulated period. That since complainant has violated the terms and conditions of the aforesaid Marine Cargo policy, so claim of the complainant has rightly been repudiated vide letter dated 28.03.2016 by the opposite parties, due to the details mentioned in the aforesaid repudiation letter and the aforesaid repudiation is perfectly legal and valid as per terms and conditions of the insurance policy.
Further legal objections are that the complainant has failed to submit the required documents inspite of repeated requests and reminders to the opposite parties as well as to the surveyor, due to which opposite parties could not finalize/decide the claim of the complainant within stipulated period. That the presrnt complaint is false, frivolous and vexatious to the knowledge of the complainant and as such the same is liable to be dismissed with special costs.
On merits, the opposite party has admitted that complainant obtained Marine Cargo Open Policy bearing No:200401/21/14/02/00000038 for the period from 23.08.2014 to 22.08.2015 against premium, but it is denied that Terms and conditions of the insurance policy were not supplied to the complainant.
It has been pleaded that complainant has not issued declaration regarding the dispatch of the aforesaid consignment as required under declaration clause to the opposite parties within stipulated period of 48 hours from the time of shipment, and as such the complainant has violated the terms and conditions of the insurance policy. As per record, submitted by the complainant, consignment reached to the consignee on 25.09.2014 and was actually delivered to the consignee on the same day. As per terms and conditions of the insurance policy, consignment has to be shipped in fully packed condition and if consignment has been sent in duly packed condition and no accident to the vehicle carrying the aforesaid consignment has occurred, no question of damaging the aforesaid transformer during transit takes birth. No reason has been mentioned in the complaint or in the claim that how the loss has occurred to the aforesaid 16 transformers during transit. The aforesaid test and physical verification report dated 25.09.2014 is forged and fabricated document.
It is further pleaded that no intimation was given either by the consignor or by the consignee to the police within stipulated period nor any DDR/FIR has been lodged. Driver of the vehicle who took the vehicle for delivery to consignee on 15.09.2014 is not an expert in the field of manufacturing and maintaining the transformers, so the alleged confirmation taken from the aforesaid driver regarding the aforesaid transporter is of no value. After receipt or intimation regarding the alleged loss, Mr. Khushwaha, Surveyor & Loss Assessor was deputed to inspect the consignment and to submit the report, who submitted his report dated 28.08.2015. The complainant has failed to supply all the required documents to the opposite parties as well as to the surveyor. M/s G.S. Associates, Surveyor & Loss Assessor was also deputed. The opposite parties have rightly repudiated the claim of the complainant as per terms and conditions of the insurance policy.
In further reply, the opposite parties have reiterated their version as pleaded in legal objections and detailed above. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence Affidavit of Dumpy Kumar Garg, Senior Manager dated 18-06-2018 (Ex. C-26), Affifavit of Mukesh Kumar, Managing Director dated 22-06-2018 (Ex. C-27) and the documents (Ex. C-1 to Ex. C-25 & Ex. C-28 to Ex. C-34).
In order to rebut the evidence of complainant, the opposite parties tendered into evidence Affidavit of Baldev Singh dated 23.10.2018 (Ex.OP-1/1) and the documents (Ex.OP-1/2 & Ex.OP-1/3).
The learned counsel for the parties reiterated their stand as taken in their respective pleadings.
We have heard learned counsel for the parties and gone through the record.
In the case in hand, the opposite parties have repudiated the claim of the complainant vide letter dated 28-3-2016 (Ex. C-3) raising objections that no remarks were given on the GR by the consignee regading any sign of damage as well as tampering of goods; No damage certificate was given by the Carrier; Neither consignee nor complainant informed the opposite parties for any loss at the time of delivery or for open delivery for checking the consignment, if there is any loss. No spot information was given to the police and news was published in new paper after 14 days. At the end of this letter, the opposite parties have mentioned that as the loss is reported after three days of the safe delivery of transformers, it is not maintainable under the policy as per Clause No. 5(1) of Marine Policy. However, the opposite parties have admitted in the said repudiation letter that Sh. R N Khushwaha, Surveyor has assessed the loss and advised the opposite parties to settle the claim as per policy terms and conditions.
Ex. C-19 is the Insurance Cover Note in question for the period from 23-8-2014 to 22-8-2015 which shows that it is Marine Cargo Cover Note which covers Basic Risk + All Risks+TPND+SRCC of Electric Transformer. The opposite parties have repudiated the claim of the complainant under Clause 5(i) which reads as under :-
This insurance attaches from the time the goods leave the warehouse and/or the store at the place named in the policy for the commencement of transit and continues during the ordinary course of transit including customary transhipments, if any : (i) Untill delivery to the final warehouse at the destination named in the policy.
A perusal of policy reveals that Clause 5 (iii) shows – In respect of transit by road only untill expiry of 7 days after arrival of the vehicle at the destination town named in the policy.
Therefore, as discussed above, the goods/items were covered for all risks and as per clause 5(iii) of the policy this coverage by road is untill 7 days after arrival of the vehicle at the destination town. Admittedly complainant intimated the loss to the opposite parties on 27-9-2014 i.e. After 3 days of arrival at destination town.
Ex. C-34 is the Marine Survey Report of Sh R N S Kushwaha, Surveyor, Loss Assessor & Valuer. The said surveyor inspected spot and physically verified the loss. He submitted his detailed report with the opposite parties. Some of the facts mentioned in the survey report are :-
Date and time of loss - During transit (In between 15-9-2014 to 25-9-2014).
Cause of loss/Damage – Due to pilferage of Transformer Oil (T Oil) and pouring water in to the Transformers. It caused due to contamination of water/humidity, the Transfomrer Cores, HT & LT Coils, Press Board etc., are got affected and leaded to immediate Electrical Shortage of the said Transformer.
Nature of Extent of Loss/Damage – After unloading of the consignment and during the Testing, it is observed that from our of 30 Pacs of 100 KVA 3 Ph 3 Star AI Wound Transformer 16 Pcs of Transformers were affected due to Pilferage of T Oil. As T Oil was poured out from the said Transformers and Water was poured in to Transformers to balance the weight.
Survey Details - The said damaged/affected consignment of Electric Transformers as lying in the Consignee Ware House Campus are physically identified and the physical, chemical and electrical Test of individuals Tranformers are conducted in presence of the consignor and the Consignee representative and observation of each transformers are noted down for assessment of loss.
Thereafter the said surveyor has assessed the loss to the tune of Rs. 9,37,264/- after discussing/mentioning in detail weight, rate, total amount and salvage value i.e. Repair of 16 pcs of damaged/affected transformers @ Rs. 58,579/- each.
Thus, the surveyor was deputed by the opposite parties and he submitted his independent report and this fact has been duly mentioned by the opposite parties in Marine Claim Note (Ex. C-33). This Marine Claim Note further reveals that in the end while recommending the case for repudiation, Sr. Divisional Manager has signed a note wherein it has been specifically mentioned that :
“On going through the claim file, all claim papers found in order. The assessed loss amount Rs. 9,37,264/- but as per BO recommendation claim is not payable.” So, agreed as recommended by Branch Office, Bathinda as repudiation of claim file.
Therefore, policy was all risk policy. Surveyor was deputed by Insurance company/opposite parties who physically verfified the damaged/affected goods and thereafter, after testing the individual transforer as per test report which is part of claim file (Ex OP-1/3) assessed the loss.
The opposite parties also deputed G S Associates for submitting Verification of loss in question. The report of said surveyor is also part of claim file. The surveyor has verified the record and found that each and every dispatch was declared by complainant and there is balance of Rs. 1,00,92,085/- after declaring consignment in question. This report reveals that a note has been given by surveyor wherein it is metioned that “-
“On going through the assessment survey report, I found that there is requirement of Police report, damaged certificate, claim bills, monetary claim notice to carrier, claim form etc.,”
The loss in question took place in transit from Bathinda to Dhanbad. A perusal of record reveals that complainant informed the police but police did not register FIR as exact date and place of accident was not known.
Hon'ble National Commission in the case titled Bajaj Allianz General Insurance Co. Ltd., & Anr. Vs. Karthik Alloys Ltd., cited as 2018 (3) CPJ 213 held :-
“As rightly noted by the State Commission in this regard, if the insurer so desired, it could itself lodge an FIR with the police against the transporter it is suspected the involvement of the transporter in the theft/pilferage of the goods.”
It was also held :-
“The State Commission rightly felt that the complainant could not have any control on the container after the vehicle had left its factory. If the container had been replaced during the transit while in custody of the transporter, such replacement cannot be attributed to the complainant nor it can be said to have been done in connivance with it. Therefore, I find no merit in the second ground on which the claim had been repudiated.” It is also held that :- “Even if this is so and the replacement of the material by slag had taken place with the connivance of the transporter/shipper, complainant cannot be held responsible for the same unless it is shown that such replacement had taken place with its connivance. There is no evidence of the goods having been replaced with the consent or connivance of the complainant.
Hon'ble National Commission in the case titled Tuli International Vs. New India Assurance Co. Ltd., cited a 2020(1) CLT 544 has held :
“Complainant firm had taken policy to cover its risks including theft/loss – It was not the responsibility of complainant firm to get to the roof of the theft/loss occurred – Whole purpose of taking an insurance policy was defeated – Impugned order passed by State Commission set aside – District Forum passed a well appraised and well-reasoned order -Upheld.”
Hon'ble Supreme Court in the case titled Gurmel Singh Vs. Branch Manager, National Insurance Co. cited as 2022 AIR (Supeme Court) 2486 has held :-
“Insurance Claims – While settling claims, insurance company should not be too technical and ask for document which insured is not in a position to produce due to circumstances beyond his control.”
Hon'ble Punjab & Haryana High Court in the case titled as New India Assurance Co. Ltd Vs. Usha Yadav 2008 (3) RCR Civil 111 has observed that: “Cash rich Insurance company indulging in luxury litigation to repudiate claim of the Insured – It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline the claim”.
Hence, keeping in view the facts, circumstances and the evidence placed on file, this Commission is of the considered opinion that there is deficiency in service on the part of the opposite parties in rejecting the claim of the complainant without any basis despite the fact that surveyor deputed by them inspected the loss, got tested each and every transformer and after going through the whole record submitted his independent report and even opposite parties in marine claim note themselves have opined that all the documents found in order. Therefore, complainant is entitled to claim amount as assessed by surveyor with interest from the date of repudiation till payment.
In the result, this complaint is partly allowed with Rs.10,000/- as cost and compensation. The opposite parties are directed to pay Rs.9,37,264/- (as assessed by surveyor) with interest @ 8% p.a. from the date of survey report i.e. dated 28.8.2015.
The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to covid pandemic and heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.
Announced :
14-09-2022
(Kanwar Sandeep Singh)
President
(Shivdev Singh)
Member
