Haryana

StateCommission

CC/76/2019

M/S BALDEV WOLLEN INTERNATIONAL - Complainant(s)

Versus

UNITED INDIA INSURANCE COMPANY LTD. - Opp.Party(s)

VISHAL AGGARWAL

24 May 2023

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.76 of  2019

Date of the Institution:05.10.2020

Order reserved on:24.05.2023

Date of pronouncement: 01.06.2023

 

M/s Baldev Woolen International through its partner Sh.Kailash Kumar Lakhina aged about 53 years, S/o Sh.Kishan Chand Lakhina office at Baba Gangapuri Road, Sanoli Road, Neta Ji Colony, Panipat, Haryana.

                                                                   .….Complainant

Versus

 

1.      United India Insurance Co. Limited, Divisional office at 375-378, Sector 35-B, Chandigarh through its Divisional Manager.

2.      United India Insurance Company Ltd. Having its Branch Office at 801, G.T. Road, above Indian Bank, Panipat through its Branch Manager.

3.      M/s Alfa Logistics Services Pvt. Ltd., Opposite Apollo Hospital, Sarita Vihar, New Delhi through its Director.

                                                .….Opposite Parties

CORAM:    S.P.Sood, Judicial Member

 

Present:-    Mr.Vishal Aggarwal, Advocate alongwith Mr.Ayush Goel, Advocate for the complainant.

Mr.Rohit Hatwal, Advocate alongwith Mr. Nitin Sood, counsel for the opposite party Nos.1 and 2.

Mr. Gauravdeep Goel, Advocate for the opposite party No.3.

 

O R D E R

S.P.SOOD, JUDICIAL MEMBER:

 

          The brief facts given rise for the disposal of the present complaint are that  the complainant’s firm deals in Export business of various types of blankets and other articles like for earning its livelihood. The complainant firm obtained marine policy No.112001/21/13/02/00000070  from the opposite parties for the period from 10.10.2014 to 09.10.2015 for the insured amount of Rs.five crores in respect of their products/goods to be supplied to the opposite party. The complainant has been regularly paying premium to the OP. In the month of October 20014, the complainant was asked to supply 2625 bales of 100% polyester polar fleece blankets to M/s UNHCR Bartoua ware house, Cameroon vide invoice No.BW1/2014-15/040 dated 06.10.2014 worth USD252393.75. The complainant collected and prepared entire consignment material and kept the same ready for dispatch. The inspection of all these goods was carried out by Baltic India and the same was also loaded under the supervision of the same agency.  This entire material was loaded in 7 containers which was to be transported from the premises of the complainant/insured at Panipat to the designated place from ICD TKD. The goods  to be exported were also cleared by the inspecting authority and were stuffed into containers which were sealed in the presence of various agencies. This development was also duly intimated to OPs vide letter dated 03.11.2014 and it also included invoice No.BW1/2014-15/040 dated 06.10.2014. The consignment was duly  dispatched and after custom clearance from ICD TKD, these were dispatched to JNPT, Mumbai by the custom authorities/CFS through Railways. The consignment were further dispatched through the shipping line to Bertoua, Cameroon vide bill of lading No.CPHCT0072892 dated 11.11.2014. Another consignment was also sent by the sister concerns of the complainant i.e. M/s Krishna Overseas wherein it had exported kitchen sets to the buyer from Kenya who inturn was to supply it further to UN Agencies. The containers reached Kenya however the buyers informed the complainant in November 2014 about shortage  of the dispatched goods in the containers.  After investigation, it was found that theft took place when the goods were dispatched from the premises of the insured but before it had reached ICD TKD.  OP No.3 lodged FIR No.789 dated 17.11.2014 at police station Sarita Vihar Distt South East, New Delhi.  The police carried out due investigation and arrested one of the truck driver in December 2014.  Some raids were also conducted at the disclosed places and police got recovered some of the articles exported by M/s Krishna Overseas.  During the said recovery, the police also managed to lay its hands on to stolen bales of thermal blankets which were exported by the complainant to UNHCR.  Upon intimation, the owners of complainant firm reached the spot and discovered that the said gang members had also stolen the blankets and other articles exported by the complainant to UNHCR. The complainant immediately intimated the importer agency the UNHCR about the theft of the blankets. The complainant immediately intimated the importer agency about the theft of the blankets.  It also asked the agency to inspect and intimate about the shortage of material because of theft. The agency also responded to the emails intimated to the  complainant that containers had not yet reached the destination and would intimate the shortage on receiving the said consignments. The agency intimated to complainant that there had been a theft of articles from container No.MSKU8113945 wherein 5625 blankets were stolen from the container in question.  Out of the same only 67 blankets were recovered from the accused persons in India and therefore the loss remained qua  5558 blankets.  The value of the same was assessed at USD 35626.78 alongwith custom charges of USD 1154.543 and transportation charges of USD 8072.   In the communication by UNHCR it was clearly stated that when the said container was opened it did not contain any blankets rather it contained mud and stone only.  The said containers were opened in the presence of Master Njankouo Aboubakar, Bailiff at the court of appeal alongwith Mr.Ahmadou Deoua and thereafter complainant notified of the same. The complainant immediately informed the opposite parties about the loss by way of theft.  After this development surveyor was appointed, who assessed the loss to the tune of Rs.21,75,015/-.  The insurance company  appointed second surveyor, who submitted his report on 06.11.2017, whereas the initial surveyor had  submitted his report on 16.08.2016.   Based on the report of second surveyor, the insurance company repudiated the claim lodged by complainant vide letter dated 09.10.2018 despite  the deficiency in service writ large from the fact that the OP i.e.  insurance company took 3 ½ years to adjudicate and repudiate the claim. The complainant requested the OPs to pay the loss assessed by the first surveyor, but to no avail. The opposite parties were grossly deficient in its service and has also indulged into unfair trade practice by depriving the complainant of his valuable right to property. Hence under these circumstances the complainant firm had no option but to file the present complaint with a prayer that the appropriate direction may be issued to the O.Ps. to pay Rs.21,75,015/- alongwith interest @ 18% p.a. from the date of lodging the complaint till realization, Rs.10,00,000/- for compensation on account of harassment and the amount of Rs.1,00,000/- as litigation expenses.

2.                The complaint was resisted by the O.Ps.- The United India Insurance Co. Ltd., by filing a written version raising various preliminary objections about maintainability of complaint, concealment of material facts,  for want of cause of action, etc. and requested to dismiss the complaint.  It was alleged that  the complainant had taken Marine open policy effective from 10.10.2014 till 09.10.2015 from Panipat to any Indian Port Under FOB. The consignment of blankets in the shape of 2625 Bales (15 Blankets Per bale) vide invoice No. BWA/2014-15/040 dated 06.10.2014 were stuffed in 7 containers provided by opposite party No.3-M/s Alpha Logistics Co. New Delhi which all were dispatched under Gate Passes bearing No.959, 960, 962 and 963 dated 21.10.2014 and 964, 965 and 966 dated 22.10.2014 for further shipment to M/s UNHCR Bertoua Warehouse, Cameroon. The consignments were further dispatched from  JNPT, Mumbai to Bertoua Cameroon vide bill of lading NO.cPHCT0072892 dated 11.11.2014. The another incidence of skilful pilferage related to M/s Krishna Overseas was relevant to the insured firm M/s Baldev Woolen International. The complainant has alleged that in a consignment of kitchen sets and utensils etc. of M/s Krisha Overseas, Panipat ( a sister concern M/s Baldev Woolen International) sent to Nairobi, Kenya a similar skilful  pilferage was made by two drivers and their accomplice.  On 17.11.2014 FIR was registered. The proprietor of Krishna overseas Panipat at its own had also filed a FIR No.1216 dated 11.12.2014. The Delhi police nabbed some of the culprits and gathered some information and during raids  some of pilfered kitchen items, few blankets belonging to Baldev Woolen International were also recovered. The recovered cash and items of utensils and blankets were released to prop. Of M/s Krishna Overseas, Panipat by the court order dated 02.02.2015.  After theft, surveyor was appointed, who assessed the loss of Rs.21,75,015/-. The opposite party again got it investigated from another surveyor of Bharat Associates who recommended for repudiation of the claim of the complainant vide report dated 09.10.2018.   It was submitted that FIR was got registered by M/s Alpha Logistics in respect of the theft occurred in response to the goods of M/s Krishna Overseas and that FIR had nothing to do with the present case.  The surveyor has only assessed the loss on the basis of documents submitted before them by the complainant.  OPs got the alleged loss of the complainant investigated from another investigator, who after detailed investigation submitted their report dated 06.11.2017 to the OPs by mentioning the claim of the complainant to be “NO Claim” and on the basis of said report and legal opinion, the OPs repudiated the claim of the complainant  vide their repudiation letter dated 09.10.2018. Therefore the complainant firm was not entitled for any claim. Thus there was no deficiency in service on the part of the answering OPs.

3.                OP No.3 filed separate written statement.  It was admitted that theft took place and loss has occurred.  It was admitted that both the utensils and the blankets which were part of different consignments were stolen.  No liability can be fastened on the answering respondent who was merely the transporter. The goods were duly insured with OP No.1 and 2 who were liable to pay compensation.  Therefore, the complaint qua the answering OP be dismissed with costs.

4.      In evidence, Mr.Vishal Aggarwal counsel for the complainant tendered affidavit Ex.CA of Shri Kailash Kumar Lakhina S/o Sh.Kishan Chand Lakhina and also tendered  documents Ex. C-1 to C-21 and closed its evidence.

5.      On behalf of opposite party Nos.1 and 2, Sh.Nitin Sood counsel for the opposite party Nos.1 and 2 tendered in evidence affidavit (Ex.OP-A) of Sh.Mukesh Soni, Authorized signatory-cum-Sr.Divisional manager, UIIC Ltd. and also tendered the documents Ex.OP-1 to Ex.OP-9 and closed the evidence on behalf of OP Nos.1 and 2.

6.      On behalf of opposite party No.3, Mr. Gauravdeep Goel counsel for the opposite party No.3 also tendered in evidence affidavit (Ex. OPW 3/A) of Mr. Punit Sharma, Director M/s Alpha Logistics Services Private Limited and closed the evidence on behalf of OP No.3.

7.                The arguments were advanced by Sh.Vishal Aggarwal, Advocate alongwith Mr. Ankit Aggarwal, Advocate for the complainant as well as Mr.Nitin Soood, Advocate alongwith Mr. Rohit Hatwal, Advocate for the opposite party Nos.1 and 2 and Mr. Gauravdeep Goel, Advocate for the opposite party No.3.  With their kind assistance the entire record including voluminous documentary evidence as well as whatever evidence has been led during the proceedings of the complaint was properly perused and examined.

8.                It is not disputed that the complainant’s firm had purchased marine insurance policy from the opposite party Nos.1 and 2.  It is also not disputed that OP No.3 was the transporter, who was detailed to send the consignment of blankets to port.  It is also not disputed that during the subsistence of the policy, blankets got stolen.  It is also not disputed that surveyor was appointed, who assessed the loss of Rs.21,75,015/-.  It is also not disputed that insurance company  appointed second investigator, who after taking legal opinion repudiated the claim of the complainant vide letter dated 09.10.2018. It is not disputed that the premium was charged by the insurance company. 

9.      The counsel for the complainant has pointed out various documents in support of the claim. It has been submitted that primarily the claim has been repudiated on the issue that  the FIR regarding the theft of the blankets has not been lodged with the police. However, from perusal of the chargesheet filed by the police which the complainant has annexed along with as Annexure C-17, it is amply clear that the theft of blanket belonging to the complainant and steel utensil belonging to the sister concern of the complainant Krishna Overseas stood duly proved. It was while investigating the theft of utensils belonging to  Krishna Overseas that the police came across the theft of blankets which was also further affirmed by the concerned authorities i.e. UNHCR. The counsel for the complainant has referred to several documents on record to prove the theft and also the loss which was not disputed by the opposite parties i.e. the Insurance Company. Further on reading the chargesheet it is evident that the police investigated both the thefts in the said FIR itself wherein it has been clearly stated that the statement of the manager of complainant firm was duly recorded and the accused who had stolen the blankets were duly arrested.  The chargesheet was filed for the theft of utensils as well as the blankets. The fact that the police investigated both the thefts in one FIR cannot lead to any adverse inference against the complainant who has proved the theft as well as the loss conclusively. It is matter of common knowledge that the police instead of lodging multiple FIRs at times investigates multiple thefts in single FIR which is so in the present case as well. Further the fact that even the accused were caught is sufficient to conclude that the FIR qua the theft was duly lodged and investigated. It may be mentioned here that neither in the written statement nor during arguments the opposite parties could deny or dispute the facts of the chargesheet and therefore it is clear that the stand taken by the insurance company is absolutely unfair and a deliberate attempt just to avoid payment of  claim.

10.    Further the counsel for the complainant has also referred to the report of the surveyor appointed by the Insurance Company annexed as Annexure C-19. On the perusal of the same it is evident that the theft of the blankets is duly proved and in fact there is absolutely no objection qua this aspect. The said report further mentions that the FIR for the theft of blankets was duly lodged and the accused arrested. It is very surprising to see that once the theft of the blanket is duly proved and the claim determined by the surveyor, the Insurance Company instead of accepting the same appoints another investigator after a gap of more than one year. On being specifically asked the counsel for the opposite parties has failed to give any reasonable explanation for the same. Further on perusal of the report dated 06.11.2017 given by the surveyor,  the theft of blankets as well as recovery of few blankets has been  admitted by the said Investigator as well. He does not even dispute the assessment of claim as made by the earlier  surveyor and while referring to the FIR as well as Final Report under Section 173 Cr.P.C. but without discussing its contents has mentioned in one line that no FIR has been registered for the skillful pilferage of 5625 blankets. Thus it is clear that the opposite parties as well as the Investigator has deliberately ignored  the chargesheet. Even during arguments the Ld. Counsel for the opposite parties could not dispute  the factum of the chargesheet being qua the theft of blankets as well. Thus, this commission is in complete agreement with the complainant  that the opposite parties have wrongly repudiated the claim. Though from the perusal of the repudiation letter it is find that the opposite parties have mentioned few more reasons for repudiation but no arguments qua the same have been addressed by the counsel for the opposite parties. Further we find that there are sufficient documents on record including the communication with UNHCR to prove the theft as well as the loss which has occurred before the goods even reached the port. Therefore the grounds for repudiation were invalid.

11.              Keeping in view the abovesaid we allow the present complaint and award a sum of Rs.21,75,015/- as compensation which is assessed by the surveyor of the opposite parties along with interest @ 9% per annum. It may be noted here that the theft had taken place in the year 2014 and the opposite parties were informed immediately but  the first report of the surveyor came on 16.08.2016, the second report of Investigator came on 06.11.2017 and the repudiation letter is dated 09.10.2018. There is nothing on record to show that the delay is in any manner attributable to the complainant and therefore this commission hereby order that the interest on the abovesaid amount shall be payable and calculated from 01.07.2015 i.e. after about 8 months of lodging of FIR till the abovesaid compensation is paid. In case, there is a breach in making payment within the stipulated period  of  45 days from the date of receipt of certified copy of order, failing which, the complainant would further be entitled to get the interest @ 12% per annum, for the defaulting period.   Apart from this seeing the unfair and false stand of the opposite parties while specifically ignoring the documents, it is appropriate to impose costs of Rs.1 lac which shall be payable to the complainant. In addition, the complainant is also entitled of Rs.25,000/-  (Twenty Five Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

12.              Applications pending, if any stand disposed of in terms of the aforesaid order.

13.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

14.              File be consigned to record room.

 

June   1^st 2023                                                           S.P.Sood                                                                                                                               Judicial Member                                                                                                                   Addl.Bench               

S.K.