KUNDAN KUMAR KUMAI

This is an Appeal u/s 15 of the Consumer Protection Act, 1986, preferred against the Order dated 26/07/2022, passed by the Ld. DCDRF, Raiganj, Uttar Dinajpur in CC/15/2019.

Brief fact of the Appellant/Complainant’s Case is that, he had purchased one Insurance Policy from the Respondent No.2, through the local Agent/Respondent No.3, by paying premium of Rs.35,572/- (Rupees thirty-five thousand five hundred seventy two) only, in respect of one Marine Insurance Policy, subject to the condition, that the warrantied load is within the approved carrying capacity of the vehicle. The said coverage was from 04/10/2017 to 03/10/2018. The Appellant/Complainant was ferrying 420 bags of rice by a truck, being no.NL-02/L 2524 on 16/10/2017, from Tungidighi towards Meghalaya on 20/10/2017. The above vehicle met with an accident at Shillong, on National Highway under PS Deingpasoh, Shillong, Meghalaya. From the said accident, the Appellant suffered loss, as the 420 bags of rice were fully damaged, due to heavy rainfall and bad weather. The vehicle had been booked by Ajoy Biswas, the representative of the Appellant/Complainant and who lodged a complaint before the OC, Deingpasoh, Shillong, Meghalaya on 20/10/2017 at 4:30 PM and a GDE was registered being GDE No.07 dated 20/10/2017. A claim was also lodged before the Respondent/Insurance Co. for Rs.4,50,000/- (Rupees four lakhs fifty thousand) only, as the entire rice had been fully damaged, being the insured amount. On receipt of the claim, the Respondent/Insurance Co. deputed one IRDA approved Surveyor/Loss assessor to survey the spot and the actual damage caused by the accident, as well as the rainy weather and the survey had been conducted on 23/10/2017. After the Survey Report had been submitted, confirming that the vehicle had met with an accident and the vehicle had been covered with tarpaulin and had found only 54 bags had been damaged out of the 420 bags. After the report a letter had been issued on 28/03/2018, requesting for some documents for reimbursement of the 54 bags of rice amounting to Rs.50,480/- (Rupees fifty thousand four hundred eight) only. The Appellant/Complainant did not agree with the amount of compensation offered by the Respondent/Insurance Co. and lodged a complaint before the Ld. DCDRF with necessary prayers.

The Respondent/Insurance Co. 1 & 2 appeared to contest the claim by filing written version wherein they admitted the accident of 20/10/2017 and also submitted that the Surveyor had submitted a Report wherein only 54 bags of rice had been found to be fully damaged out of the 420 bags and Rs.50,480/- (Rupees fifty thousand four hundred eighty) only had been offered to the Appellant/Complainant, but as the Appellant/Complainant failed to submit the documents, the claim could not be processed. It was further mentioned that the liability of the Respondent/Insurance Co. was Rs.50,480/- (Rupees fifty thousand four hundred eighty) only and the claim should not be allowed beyond that.

The Respondent No.3/Local Agent did not appear to contest the claim and the Case had been heard ex-parte.

After going through the evidence on record, the Ld. DCDRF below, passed the impugned order directing the Respondent Nos. 1 & 2/Insurance Co. to pay Rs.57,857.14 paise (Rupees fifty-seven thousand eight hundred fifty-seven and point fourteen paise) only, along with litigation cost of Rs.10,000/- (Rupees ten thousand) only, totaling to Rs.67,857.14 paise (Rupees fifty-seven thousand eight hundred fifty-seven and point fourteen paise) only.

Being aggrieved by the impugned order the instant appeal was preferred on the ground that the Ld. DCDRF, Raiganj, Uttar Dinajpur erred in law and facts while passing the impugned order.

                                                           Decisions with Reasons

Ld. Advocate for the Appellant at the time final hearing had submitted that the Ld. Lower Forum had laid reliance upon the erroneous report submitted by the IRDA Surveyor/Loss Assessor, stating that only 54 bags of rice had been damaged instead of the total 420 bags of rice and therefore the impugned order suffered from such erroneous decision. He also prayed that the entire amount of Rs.4,50,000/- (Rupees four lakhs fifty thousand) only may be allowed.

Ld. Advocate for the Respondent Nos. 1 & 2/Insurance Co. submitted that the Surveyor’s Report had established that the damage of 54 bags of rice and the Ld. DCDRF, Raiganj, Uttar Dinajpur had rightly relied on the Surveyor’s Report and passed the impugned order which should be upheld.

None appeared on behalf of the Respondent No.3, for which reason, the appeal was heard ex-parte against her.

The short question that needs to be decided is, whether the Ld. DCDRF, Raiganj, Uttar Dinajpur was correct in interpreting the Surveyor’s Report dated 20/01/2018. From the Survey Report dated 20/01/2018, it becomes clear that only 54 bags of rice could be located at the spot out of the total 420 bags of rice and the contents were totally spoiled, smelled obnoxious with fungi formation. Further in the general remarks column it was also submitted that 345 bags of rice had been scattered on the road and got spoiled as per the Police Report. That apart the video report also showed that the contents of the truck had been unloaded and stacked by the roadside and only 54 bags of rice in damaged condition had been found and the rest had been missing. Therefore, from the above findings it becomes clear that only 54 bags of rice could be found at the site and the rest were missing. Hence, when the report itself suggests that the rest of the bags were missing and only 54 bags of rice that also in damaged condition could be located, indicates that the rest of the bags of rice had been removed, but there is no evidence forthcoming from the report that the Appellant or his representatives had been involved in the missing of the bags of rice. On the other hand, there is no allegation of violation of the warranty clauses. Under the circumstance, to presume that the Appellant and his representatives had been involved in the missing of the bags, which had been brought to the precincts of the PS Deingpasoh, Shillong, Meghalaya, would be fictional in the absence of any concrete evidence. That apart, there is a theft pilferage non-delivery clause for which the Respondent/Insurance Co. would be required to make good. For this reason, the impugned order suffers being erroneous. Hence when the facts are not disputed, the Appellant/Complainant is entitled to the claim of Rs.4,50,000/- (Rupees four lakhs fifty thousand) only with interest @ 8% from 20/10/2017 till date of payment along with Rs.10,000/- (Rupees ten thousand) only as litigation cost. As a result, the instant appeal succeeds.

                                                             It is therefore

                                                            ORDERED

That the instant appeal be and the same is allowed on contest, but without cost.

The impugned order is hereby set aside.

The Respondent Nos. 1 & 2 are directed to pay the amount mentioned above jointly and severally, as directed in the body of the judgement.

Copy of the order be sent to the parties free of cost.

Copy of the order be sent to the Ld. DCDRF, Raiganj, Uttar Dinajpur for necessary information.