Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-245/16.10.2017
Murti Udyog Limited, (through its Director Ms Murti Rani Goel)
10,133-36 Model Basti Katra Chajju Pandit, East Park Road,
Filmistan, New Delhi-110005 …Complainant
Versus
OP1. United India Insurance co. (through its Regional Manager)
Regional Office – at 8th Floor, Kanchanchunga Building,
18th Barakhamba Road, New Delhi-110001,.
Also at:
United India Insurance Co. Ltd.,
2216, 3rd floor, Hardhiyan Singh Road, Karol Bagh,
New Delhi-110005.
OP2. Puran Bharat Road Carriers,
Having its office at: 90-91, CharaMandi,
Zikhra, Delhi-110015. ...Opposite Parties
Date of filing: 16.10.2017
Date of Order: 01.08.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh, President
1.1. (Introduction to case of parties) –The complainant alleges deficiency of services that despite having valid marine policy and incident of theft/ embezzlement of the goods took place in transit by Road through carrier, the OP1 failed to reimburse the valid claim of Rs.10,10,662/-, which was covered in the policy. The genuine claim of complainant was not considered despite repeated requests, correspondence and visits vis-à-vis verification of all aspects by the surveyor of OP1, the claim was declined/reputed. That is why, complaint for recovery of amount of stolen goods with interest at the rate of 24%, apart from compensation of Rs. 5,00,000/-, costs and other relief.
1.2. The OP1 denies claim of complainant as well as allegations of deficiency of services, since the claim lodged was not falling within the parameter of policy issued as well as the transit of goods was beyond the scOP1e and extent of physical territory of risk.
1.3. Complainant Murti Udyog Limited is insured, the complaint was filed through its one of the Directors Smt. Murti Rani Goel. OP2 M/s Puran Bharat Road Carrier is transporter/carrier through whom goods were consigned by Road and OP1 is Insurer under the policy in favour of complainant. The OP2 was served with the complaint, however, it remained absent and it was proceeded as ex-parte vide order dated 21.02.2018.
2.1. (Case of complainant) – The complainant is in the business of manufacturing of aluminum wires, rods, ingots and she has been earning her livelihood by means of self-employment. The paragraph no. 1 of the complaint gives detail about the status and nature of business of complainant with its antecedents.
2.2. In order to purchase goods by the complainant from outside Biwadi and sale of goods outside Bhiwadi, the complainant took a marine insurance policy no. 042500/211/11/02/00000182 with effect from 19.12.2011 to 18.12.2012 from OP1. The complainant has been furnishing monthly declaration of sales made outside Bhiwadi and purchases made from outside Bhiwadi from time to time to OP1. However, the amount insured under the policy was liquidated prior to 18.12.2012. Then another policy was got issued, as and when amount under the policy exhausts. So the complainant was issued another policy no. 042500/21/12/02/00000120 w.e.f. from 09.10.2012 to 08.10.2013 for sum insured of Rs.15,00,00,000/- and fresh premium was paid, which was accepted by the OP1.
The complainant had requirement of policy "for sale and purchase made from outside Bhiwadi" and 'not from Bhiwadi to Bhiwadi', since local suppliers within Bhiwadi were delivering material at the door steps of complainant and local sale made from Bhiwadi to Bhiwadi was also from door step of complainant. That is why no insurance policy risk cover was required.
2.3. However, the OP1 has mentioned special condition-“local sale Bhiwadi to Bhiwadi not declared” in the policy. whereas as a matter of fact it ought to be “local purchase and local sale Bhiwadi to Bhiwadi not declared”. Therefore, immediately complainant wrote request letter dated 18.10.2018 to the OP1 that complainant had never declared any 'local sale Bhiwadi to Bhiwadi' and let it be be rectified forthwith in the policy and at the earliest.
2.4. During 11.10.2012 to 31.12.2012 the complainant made sales outside Bhiwadi and purchases from outside Bhiwadi. There was balance of Rs. 12,03,46,196/- under the policy and complainant submitted the required statement to OP1, it was duly received by the OP1, which are also with the complaint. However, the local sale and purchase was not required to be declared, that is why, the same were not declared to OP1.
2.5. On 19.03.2013, the complainant had given/entrusted goods with bills bearing no. 0390, 002 and 004 to OP2 for transportation to Bhiwadi, OP2 had issued GR No. KAM 46020 dated 19.03.2013. However, the goods did not reach its destination at Bhiwadi. The complainant contacted OP2 and on inquiry it was revealed that goods given/entrusted to OP2 were stolen and OP2 had lodged FIR dated 23.03.2013 against its driver Shri Ramji s/o Shri Ram Seva. The OP2 had transported the goods in its truck bearing no. HR55K5362. During police investigation the truck was found near Muradnagar Canal, U.P. but the loaded Aluminum sili were not found in the truck and driver was also absconding. The material recovered was 9300 kg but the remaining material 6212 kg consisting of Aluminum Sili were not recovered. The complainant has written various letters to OP2, one of the letters dated 23.03.2023 is filed with the complaint.
2.6. Since the police registered FIR No. 46/23.03.2013, the police had recovered the goods partly, the same was released by the concerned Court to the complainant on furnishing supurdaginama but the driver of the truck had not been arrested, the police charge-sheeted driver Ramji u/s 408 IPC, which is pending in the same Court. The total value of goods were Rs. 23,05,000/- out of which goods worth Rs. 12,00,000/- were recovered and the Aluminum Sili (ingot) value Rs. 10,10,662/- were not recovered.
The complainant lodged claim of Rs.10,10,662/- with OP1 under the insurance policy. OP1 appointed M/s Ravi K. Singhal and Associates Pvt. Ltd. as Surveyor. The complainant cooperated and provided all information sought by the Surveyor from time to time. However, the Surveyor unilaterally and arbitrarily included figure of local Sales to Bhiwadi, in computing the amount, then concluded that complainant has over utilized policy by an amount of Rs. 10,89,06926/-. The OP1 declined genuine and valid claim by letter dated 14.10.2013 of complainant by adopting unfair trade practice.
Thus, complainant wrote letter dated 11.11.2013 to Regional Manager of OP1 by reiterating its genuine claim, followed by another letter dated 12.09.2014 to the Nodal Customer Care Officer of OP1. The OP1 did not pay any heed to such various letters. Thereafter, the complainant received a letter dated 09.10.2015, from Regional Office, another letter dated 13.10.2015 from OP1, however, the contents of those letters are false. The complainant had not requested nor required policy risk cover for local purchase and local sale and there is mala-fide on the part of OP1 in repudiating the claim. The complainant has also provided various letters of supplier that in local sale, the purchasers take delivery of goods from the office of complainant. Similarly, in the local purchases by complainant, the suppliers supplies the goods at the doorstep of the complainant or otherwise the purchases were covered by the supplier through their policy at the doorstep of the complainant. There was no need for complainant to take policy for such practice/ transactions.
The goods were stolen on 19.03.2013. The local sale during 14.03.2013 to 19.03.2013 was of Rs. 18,58,478.00. The local purchase from 14.03.2013 to 19.03.2013 was of Rs. 1,15,891.00. The purchases made from outside Bhiwadi were to the tune of Rs. 3,72,05,478.00 and sales made outside Bhiwadi were to the tune of Rs. 1,59,30,351.00. The OP1 rejected the claim with mala-fide and complainant is entitled for reimbursement of loss of Rs. 10,10,662/- along with interest @ 24% besides compensation of Rs. 5,00,000/- apart from costs and other relief.
2.7 The is complaint is accompanied with copy of Board resolution by complainant in favour of author of complaint, insurance policy, subsequent insurance policy, copy of letters, monthly declarations, purchase bills and GR copy of FIR, the correspondence exchanged.
3.1 (Case of OP1)- The OP1 opposes the complaint that it without cause of action and it is liable to be dismissed. The Complainant was issued a marine cargo policy no. 042500/21/12/02/00000120 w.e.f. from 09.10.2012 to 08.10.2013 for sum insured of Rs. 15,00,00,000/- covering aluminum ignots, rods, GI wire rods, aluminum conductors from anywhere in India to anywhere in India under special condition “local sale Bhiwadi to Bhiwadi not declared (basic. 0125+SRCC.0075) monthly declaration given in every month. Basis of valuation 110%'.
3.2. The written statement also gives details of consignment sent by the complainant as well as the further circumstances of its hijacked of truck in the way at Mandoli, Delhi, registration of the FIR in police station and lodging of the claim by the complainant for shortage of 6212 kg., since police could recovered 9370 kg of material out of 15582 kg. The paragraphs of preliminary objections depict detail that there was excess utilized amount of Rs. 10,89,06,926/-. There was open policy clause, which stipulates 'Local sales Bhiwadi to Bhiwadi not declared' and in terms thereof OP1 is not liable to pay any amount, OP1 repudiated the claim as 'No claim', which was informed to the complainant by letter dated 14.14.2013.
3.3. Some of the paragraphs of reply partly admits the complaint and others partly denies the claim, however, the OP1 denies its liability while resting upon the 'special condition' in the policy. Moreover, the complainant failed to furnish monthly declaration required under the policy. The Surveyor had been appointed and he accordingly verified the accounts, the excess utilized amount is based on his verification, the complainant’s claim is not tenable, it is liable to be dismissed.
4.1 (Replication of complainant) – The complainant filed detailed rejoinder, it reconfirms the contents of complaint as correct. The complainant denies all allegations of the written statement, by explaining that neither there was excess utilized amount nor the special clause stated in the policy with mala-fide will be read since the complainant applied in writing without any delay for appropriate correction. The complainant has been furnishing monthly declaration, which were never objected by the OP1.
5.1. (Evidence) -The complainant led its evidence through its Director Smt. Murti Rani Goel and affidavit of evidence is replica of complaint supported with documents filed with complaint.
5.2. OP1 led its evidence through Sh. Subodh Sharma, Senior Divisional Manager and the affidavit is appended with marine surveyor report dated 27.06.2013 and letters, which were never filed earlier nor with the written statement nor the OP1 had not taken permission from the Forum to file such document at later stage with the affidavit, since the rule of pleading is the documents ought to be filed with the complaint and evidence cannot be led beyond the pleadings.
6. (Final hearing)- Both the parties filed their respective written arguments. Both the parties were given to opportunity to make oral submissions and Ms. Renu Gupta, Advocate for the complainant and & Sh. Amarnath Mishra, Advocate for Ms. Neeru Garg, Advocate for OP1 made the submissions orally.
7.1 (Findings)- The rival contentions of both the sides are considered. The contentions need not to be reproduced here, since the case of each party has been detailed hereinabove.
7.2. It is manifest that complainant is Insured and OP1 is Insurer, the tenure of the policy and the sum insured are not disputed. The core issue surrounds 'whether or not special condition (as mentioned in the policy) is part of contract and on its determination, the other allied issues will be determined consequently.
7.3. By taking into account stock pleading, evidence, all other circumstances and rival plea, the following conclusions are drawn:-
(i) The first marine policy no. 042500/211/11/02/00000182 was issued with effect from 19.12.2011 to 18.12.2012. There was no special condition in that policy as it was not declared or requested by the complainant (the policy is proved by the complainant is at page-17-18 of the paper book). However, the amount insured under the policy was liquidated prior to 18.12.2012.
(ii) Then, Policy no. 042500/21/12/02/00000120 w.e.f. from 09.10.2012 to 08.10.2013 was got issued against fresh premium, however, there was 'special condition local sale Bhiwadi to Bhiwadi not declared', was introduced (the policy is proved by the complainant is at page-20-21 of the paper book).
(iii) The complainant has proved letter dated 18.10.2012 (at page-22 of the paper book) immediately after receipt of policy that complainant had not opted ' local sale Bhiwadi to Bhiwadi not declared'' and that was to be corrected in the policy no. 042500/21/12/02/00000120 forthwith/at the earliest.
This letter dated 18.10.2012 has been received and acknowledged under the official seal of OP1, confirming this letter was received by OP1. Moreover, this letter dated 18.10.2012 is also referred in the paragraph no. 5 of complaint (as Annexure-C4) but there is no reply by OP1 either in para 5 of written statement or throughout in the written statement about this letter dated 18.10.2012. Thus for want of reply to this letter or want of denial of letter in written statement, it amounts to admission by OP1 about the request for correction as well as it is deemed to admitted by OP1 that there is commission or negligence on its part for not rectifying the clause.
Further, the complainant has also proved this letter dated 18.10.2012 in its evidence but there is no rebuttal evidence on behalf of OP1 to disprove or counter the letter dated 18.10.2012. It establishes that special clause as mentioned in the policy was never the part of contract, as it not so in the previous police for same risk cover, which exhausted prior to maturity date.
(iv) When complainant received the policy containing a special condition, immediately it reported to OP1. When this kind of situation happens, the only best course with the complainant was to inform the author of document and complainant being insured had immediately informed OP1 for necessary correction/rectification/endorsement. After information, the rest of the duty or acts of correction was to be done by the OP1. The OP1 does not dispute receipt of this letter dated 18.10.2012 and the OP1 intentionally did not reply paragraph 5 in this regard, since OP1 is conscious that letter was received by it for appropriate rectification but it was not done. As a matter of fact want of correction in the policy, despite bringing the fault at notice of OP1, is also deficiency of services.
(v) The insurance policy is a contract of insurance. The proposal form for insurance policy is an offer and acceptance of premium makes the contract. When first policy was issued there was no such special condition but the sum insured exhausted prior to the maturity period of policy. Then, other policy was issued in which special condition was introduced.
Had there been proposal for special condition/stipuation, then OP1 was duty bound to prove that proposal of stipulation/special condition to be incorporated in the policy.
Since, there was no such request or proposal of special condition on behalf of the complainant, that is why immediately on receipt of policy, the complainant wrote letter dated 18.10.2012 to correct/rectify the special condition. That letter was also received by OP1, stand proved by complainant against OP1. Thus, onus was shifted on the OP1 to prove that there was proposal for stipulation/special condition or letter dated 18.10.2012 was contrary to such proposal, however, OP1 failed to discharge such onus.
(vi) The OP1 has appointed surveyor. The surveyor carried the investigation and furnished the report. OP1 had received letter dated 18.10.2012 but OP1 had neither mentioned this letter anywhere nor it finds mentioned in extract of surveyor's report reproduced in the written statement vis a vis surveyor was provided all information by the complainant inclusive of said letter. Is it not unfair on their part to suppressed that letter? Yes, it is.
(vi) The aforementioned conclusion in sub-para-(i) to (vi) by reading them together, clearly makes out the case that complainant had not asked for cover as stipulated in special condition in the marine cargo insurance policy, therefore, this special condition will not be read part of the policy contract. Moreover, the OP1 failed to respond or rectify the policy, it does not mean the unwarranted special condition will perpetuate for want of negligence of OP1 - firstly by inserting the special clause and subsequently for want of rectifying the special clause, when pointed out in writing, which was factually “local purchase and sale Bhiwadi to Bhiwadi not declared”. This a case of unfair trade practice and deficiency in service against OP1.
7.4. The next issue is in respect of excess utilization of amount. The OP1 based its reasons of repudiation on the surveyor report, who computes the amount by invoking the special clause, whereas, the special clause is not applicable nor it can be invoked. The factual clause was “local purchase and local sale Bhiwadi to Bhiwadi not declared”. By not including such transactions, it does not makes out excess utilization, since the monthly statement proved by the complainant are of sale of goods outside Bhiwadi and purchase of goods outside Bhiwadi.
Therefore, the circumstances has proved case of theft of material, out of which material worth of Rs. 10,10,662/- was not recovered and complainant has also proved monthly statements submitted to the OP1, apart from the record of getting registration of FIR by OP2 and then coming into action of State machinery through police, who recovered the goods partly. However, the OP1 failed to reimburse the valid claim of complainant, which complainant has proved. The repudiation letter is not tenable. Therefore, it is held that complainant is entitled for claim amount of Rs. 10,10,662/-, which he had suffered as a theft loss during transit.
7.5 The complainant also claim interest of 24% pa, and it has also quantified interest of Rs. 8,50,000/-, however, there is no agreed date of interest, therefore, interest @ 6% pa from the date of complaint till realization of amount in favour of complainant and against OP1 will meet both ends.
7.6. The complainant has claimed compensation of Rs.5,00,000/-. The compensation has been claimed, as appears, as complainant faced various difficulties, inconvenience and hardship while approaching the OP1 and its higher authorities to reimburse its valid claim, however, no heed was paid. In order of shied own negligence and faults, OP1 failed to rectify the special clause despite pointing out in writing, even OP1 did not bother to reply that letter despite OP1 is a professional Insurance company/entity. Considering this situation and the circumstances happened, which are speaking themselves about the negligence, unfair trade practice and deficiency of services on the part of OP1, the complainant is entitled for compensation of Rs. 30,000/- in its favour and against the OP1. Moreover, cost of Rs. 10,000/- is determined and allowed in its favour and against OP1.
7.8. On plain reading of entire record inclusive of evidence, the complainant had joined OP2/carrier as a party to the complaint, but there is no iota of evidence, by either of parties, of negligence or deficiency of services on the part of OP2, nor specific claim of complainant against OP2, therefore, complaint against OP2 is dismissed.
7.9 Accordingly, the complaint is allowed in favour of complainant and against the OP1 to reimburse/pay loss amount of Rs.10,10,662/- along-with simple interest at the rate of 6% pa from the date of complaint till realization of amount besides compensation /damages of Rs.30,000/- and costs of Rs.10,000/-
OP1 is also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the interest will be at the rate of 8% pa on amount of Rs.10,10,662/-.
8. Announced on this 1st August 2023 [श्र!वण 10, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
