IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 30th day of September, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member-I)
Smt. Sheela Jacob (Member-II)
COMMON ORDER IN
C.C.Nos.18/2014, 19/2014 & 20/2014
1. C.C.No.18/2014
Between:
K.S. Thomas,
Managing Director,
M/s. Tag Chemicals India Pvt. Ltd.,
P.O.Box No.26, Edakulam.P.O.,
Ranni, Pathanamthitta,
Rep. by P.T. Kuriakose,
Manager,
M/s. Tag Chemicals India Pvt. Ltd.
(By Adv.S. Manoj) …. Complainant
And:
- Branch Manager,
Oriental Insurance Co. Ltd.,
Branch Office, Neduvelil Building,
Pazhavangadi.P.O., Ranni.
- The Divisional Manager,
Oriental Insurance Co. Ltd.,
Divisional Office, Thiruvalla.
(By Adv. P.D. Varghese for OP’s 1 & 2)
- Branch Manager,
M/s. Safe Express Pvt. Ltd.
Door No.911 E,
ML Road, Kottayam – 1 …. Opposite parties
2. C.C.No.19/2014
Between:
K.S. Thomas,
Managing Director,
M/s. Tag Chemicals India Pvt. Ltd.,
P.O.Box No.26, Edakulam.P.O.,
Ranni, Pathanamthitta,
Rep. by P.T. Kuriakose,
Manager,
M/s. Tag Chemicals India Pvt. Ltd.
(By Adv.S. Manoj) …. Complainant
And:
- Branch Manager,
Oriental Insurance Co. Ltd.,
Branch Office, Neduvelil Building,
Pazhavangadi.P.O., Ranni.
- The Divisional Manager,
Oriental Insurance Co. Ltd.,
Divisional Office, Thiruvalla.
(By Adv. P.D. Varghese for OP’s 1 & 2)
- Branch Manager,
Kerala Transport Co. (Regd.),
Branch Office, Ranni. …. Opposite parties
3. C.C.No.20/2014
Between:
K.S. Thomas,
Managing Director,
M/s. Tag Chemicals India Pvt. Ltd.,
P.O.Box No.26, Edakulam.P.O.,
Ranni, Pathanamthitta,
Rep. by P.T. Kuriakose,
Manager,
M/s. Tag Chemicals India Pvt. Ltd.
(By Adv.S. Manoj) …. Complainant
And:
- Branch Manager,
Oriental Insurance Co. Ltd.,
Branch Office, Neduvelil Building,
Pazhavangadi.P.O., Ranni.
- The Divisional Manager,
Oriental Insurance Co. Ltd.,
Divisional Office, Thiruvalla.
(By Adv. P.D. Varghese for OP’s 1 & 2)
- Branch Manager,
M/s. Safe Express Pvt. Ltd.
Door No.911 E,
ML Road, Kottayam – 1 …. Opposite parties
COMMON ORDER
Sri. Jacob Stephen (President):
Complainant has filed these complaints against the opposite parties for getting a relief from the Forum.
2. In all the above cases complainants are same and 1st and 2nd opposite parties are same. The 3rd opposite party in C.C.No.18/2014 and 19/2014 are same and the 3rd opposite party in C.C.No.20/2014 is different. However, the dispute and evidence in all the cases are one and the same. Hence this common order.
3. The complainant company is engaged in the business of supply of Mold Release Agents to firms in India and abroad. The above business is the sole source of income of the Managing Director of the complainant company. This complaint is filed by the manager of the company being the representative of the managing director of the complainant company.
4. C.C.No.18/2014:- The brief facts in C.C.No.18/2014 is as follows: The complainant has obtained a Marine Cargo open policy of the 1st opposite party which is valid from 01.09.2012 to 14.06.2013. The said policy is obtained for the specific purpose of covering the loss if any to the consignment of 500 Kg/Ltrs. of commodity, Code No.SR-61/T/P packed in 5 barrels of 100 Lrs. each, sent by the complainant from Kottayam through the 3rd opposite party to M/s. J.K.Tyre Industries Ltd., Gwalior, Madhya Pradesh. The total value of the consignment is Rs.5,10,214/-. The consignment was made on 01.09.2012. The said consignment was delivered to the consignee on 17.09.2012. On inspection it is seen that there occurred leakage of 80 Kg. in one barrel and 70 Kg. in another barrel in the transit. The said leakages was brought to the notice of the driver of the 3rd opposite party who had issued a certificate of facts on 10.10.2012 stating the loss of 150 Kg. of chemicals delivered to the consignee due to the leakage. The matter was intimated to the 1st opposite party who in turn arranged a spot surveyor through their Divisional Office Gwalior for assessing the loss. The surveyor visited the premises on 29.09.2012 who had taken statements from the persons concerned and took the photograph of the leaked barrels. He also submitted his report dated 15.10.2012 assessing the loss as Rs.1,53,065/-. The surveyor also charged an amount of Rs.7,230/- from the complainant as his fees and other expenses. Thereafter, the 1st opposite party issued a claim form on 10.04.2013 and the complainant submitted his claim form on 27.04.2013 stating the actual loss and expenses along with other relevant documents. The consignee had paid only an amount of Rs.3,57,149/- out of the total invoice an amount of Rs.5,10,214/- after deducting Rs.1,53,065/- which is the value of lost chemicals. Later, the complainant’s claim was repudiated by the 1st opposite party vide letter dated 11.11.2013 stating some lame excuses. The entire consignment was properly packed before delivering it to the 3rd opposite party. The policy in question is taken solely for covering the loss and damages in transit. So the repudiation of the complainant’s claim is a deficiency in service from the part of the insurance company, which caused financial loss and mental agony to the complainant. Hence this complainant for the realization of a total amount of Rs.1,85,295/- being the actual loss, surveyors charges and compensation. The complainant also prays for the cost of these proceedings.
5. C.C.NO.19/2014:- The brief facts in C.C.No.19/2014 is as follows: In this case also the complainant had a Marine Cargo open policy of the 1st opposite party which is valid from 03.10.2012 to 14.06.2013. In this case, out of the 150 lr. Chemicals consigned on 03.10.2012 through the 3rd opposite party to M/s. J.K. Tyres Industries Ltd., Gwalior, Madhya Pradesh, there was a leakage of 12 Kg. costing Rs.12,245/-. In this case also the surveyor assessed the loss as Rs.12,245/- and after complying all the required formalities, as done in C.C.No.18/14, the complainant filed the claim form before the 1st opposite party. But they have repudiated the claim vide their letter dated 11.11.2013 in spite of the policy, which is a clear deficiency in service which caused a financial loss and mental agony to the complainant. In this case also surveyor charged Rs.5,562/- and the consignee paid only Rs.1,40,025/- out of the total invoice amount of Rs.1,53,065/- after deducting price of the lost chemical. Hence this complaint for the total realization of an amount of Rs.42,807/- being the actual loss, surveyors charges and compensation. In this case also, complainant prays for allowing the cost of this proceedings.
6. C.C.No.20/2014:- In this case complainant sent 16 barrels of chemicals containing 50 kgs. in one barrel on 27.06.2012 to M/s. UNI Products, Hariana through the 3rd opposite party. The consignment reached at the destination 31.10.2012 and in this consignment a total quantity of 94 kg. was lost in transit due to the leakage of 50 kg. from one barrel and 44 kg. from another barrel. In this case also there is a valid policy of the 1st and 2nd opposite parties. On the strength of the said policy the complainant intimated the matter to the 1st opposite party who in turn arranged a spot survey through their Divisional Office, Rohtak. The surveyor assessed the loss as Rs.21,007/- and he charged an amount of Rs.1,740/- as the fees and other expenses of the surveyor from the complainant. Thereafter the 1st opposite party issued a claim form with a covering letter dated 10.04.2013 and the complainant submitted a claim form with a covering letter dated 27.04.2013. The consignee paid only an amount of Rs.1,57,780/- out of the total invoice amount of Rs.1,78,787/- after deducting an amount of Rs.21,007/-, the value of 94 kg. of chemicals which was lost in transit. But the 1st opposite party vide their letter dated 11.11.2013 repudiated the complainant’s claim. Since there is a valid policy, opposite parties are liable to indemnify the loss sustained to the complainant and the repudiation of the complainant’s claim is a clear deficiency in service. Hence this complaint for the realization of a total amount of Rs.47,747/- being the cost of the chemicals, survey charges and compensation. Complainant also prays for the cost o this proceedings.
7. In all the above cases, opposite parties 1 and 2 entered appearance and filed separate versions for each cases. The contention raised in their versions is one and the same. The main contention raised by the opposite parties is as follows: According to the opposite parties, they have admitted the policy in question and admitted the receipt of the surveyors report. But according to them, the surveyor had mentioned in his report that he is not in a position to comment on the exact shortage of the chemicals as the consignees showed the empty barrels only by saying that they have already used the remaining chemicals found in the barrels in which shortage was found and the surveyor further stated that he had relied the statement of the persons in charge of the store to assess the loss. Further, it is contented that the loss of chemicals is either due to ordinary leakage, ordinary loss in weight or volume, or ordinary wear and tear of the insured item which is not covered as per the terms and conditions of the policy. Moreover, as per the terms and conditions of the policy the complainant has to lodge a claim against the 3rd opposite party and a short delivery certificate is to be obtained and produced to the insurer. But in this case, the complainant neither lodged a claim to the carrier nor produced the delivery certificate. Apart from the above contentions they also raised the contention that the complainant’s claim is also belated. With the above common contentions, 1st and 2nd opposite parties prays for the dismissal of the above 3 complaints as there is no cause of action to the complainant or deficiency in service from their part.
8. In all the above cases, 3rd opposite party is exparte.
9. On the basis of the pleadings of the parties, the only point to be considered is whether these complaints are allowable or not?
10. The evidence in C.C.18/2014 consists of the oral depositions of PW1, DW1 and Exts.A1 to A9, B1 and B2 series. The evidence in C.C.No.19/2014 consists of the oral depositions of PW1 and DW1 and Exts.A1 to A8, B1 and B2 series. The evidence in C.C.20/2014 consists of the oral depositions of PW1, DW1 and Exts.A1 to A8, B1 and B2 series. After closure of evidence, opposite parties filed argument note in 3 cases. Thereafter, both sides were heard.
11. The Point:- The complainant’s case is that they are the manufacturers of Mold Release Agents and they have got valid insurance policy of the 1st and 2nd opposite parties which was taken for the purpose of indemnifying their loss that may occur during the transit of the chemicals to the purchasers of the chemicals. During the policy was in force the complainant had sent 3 consignments to their purchasers and during the transit some chemicals has been lost due to the leakage of the barrels contained chemicals. On getting the intimation of the leakage from the consignees, complainant intimated about the leakage to the 1st opposite party who arranged surveyors to asses the loss. Thereafter the 1st and 2nd opposite parties issued claim forms to the complainant and the complainant submitted their claim forms separately for the 3 consignments along with the required documents to the 1st opposite party. But they have repudiated the complainant’s claim. Because of the above said repudiation, the complainant had lost a total amount of Rs.2,00,849/- in the said 3 consignments and the complainant had also sustained mental agony. Therefore, the complainant prays for allowing the 3 complaints filed by him.
12. In order to prove the above 3 cases of the complainant, the complainant adduced the following evidences in each cases.
13. C.C.No.18/2014:- In this case, the authorized representative of the complainant filed a proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit, he was examined as PW1 and the documents produced were marked as Exts.A1 to A9. Ext.A1 is the authorization given by the complainant in favour of PW1. Ext.A2 is the policy in question in respect of the above case. Ext.A3 is the copy of the invoice issued to the 3rd opposite party, the transporting company, in connection with the consignment in this case. Ext.A4 is the way bill issued by the 3rd opposite party in connection with the consignment in this case. Ext.A5 is the certificate of facts showing the quantity of chemicals lost in respect of this consignment. Ext.A6 is the copy of the surveyors report in respect of this consignment. Ext.A6(a) is the surveyors bill for Rs.7,230/- in respect of this consignment. Ext.A7 is the copy of the repudiation letter issued by the 1st opposite party in respect of the claim connected with this consignment. Ext.A8 is the copy of the statement of the consignee showing loss of the chemicals. Ext.A9 is the e-mail letter dated 20.09.2012 sent to the opposite party by the complainant in respect of this consignment and the reply of the opposite party thereon.
14. C.C.N0.19/2014:- In this case, the authorized representative of the complainant filed a proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A8. Ext.A1 is the authorization given by the complainant in favour of PW1. Ext.A2 is the policy in question in respect of the above case. Ext.A3 is the copy of the invoice issued to the 3rd opposite party transporting company in connection with the consignment in this case. Ext.A4 is the way bill issued by the 3rd opposite party in connection with the consignment in this case. Ext.A5 is the certificate of facts showing the quantity of chemicals lost in respect of this consignment. Ext.A5(a) is the surveyors bill for Rs.5,562/- in respect of this consignment. Ext.A6 is the copy of the surveyors report in respect of this consignment. Ext.A7 and Ext.A8 are the e-mail letter dated 12.10.2012 sent to the opposite party by the complainant and the reply of the opposite party thereon in connection with this consignment.
15. C.C.No.20/2014:- In this case, the authorized representative of the complainant filed a proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A8. Ext.A1 is the authorization given by the complainant in favour of PW1. Ext.A2 is the policy in question in respect of the above case. Ext.A3 is the copy of the invoice issued to the 3rd opposite party transporting company in connection with the consignment in this case. Ext.A4 is the way bill issued by the 3rd opposite party in connection with the consignment in this case. Ext.A5 is the surveyors bill dated 31.12.2012 for Rs.1,740/- issued by the surveyor to the complainant. Ext.A5(a) is the Marine Cargo survey report dated 31.12.2012 issued by the surveyor. Ext.A6 is the copy of the repudiation letter issued by the 1st opposite party in respect of the claim connected with this consignment. Ext.A7 is the registered letter dated 01.11.2012 sent by the complainant to 3rd opposite party. Ext.A8 is the e-mail letters dated 01.11.2012 and 31.10.2014 in between the consignee and the complainant.
16. On the other hand, the contention raised by the opposite party in the above 3 cases are one and the same which is as follows: According to the opposite parties, the 1st opposite party has issued a Marine Cargo open policy and in the said policy the insured will take a policy for an anticipated amount of transit which will be transacted in a year and an open policy will be incepted and the insured will have to make specific declaration of transit when each consignment is dispatched to various destinations. For that particular consignment a policy certificate with conditions will be issued. Opposite party admitted the filing of 3 claim forms in respect of the 3 consignments referred in the above cases based on the surveyor’s assessment. But according to the opposite parties, the surveyors report is based on the information of the employees of the consignees as the consignees employees produced only the empty barrels by saying that the balance materials found in the damaged barrels are used by them. Further, the so called leakage is either ordinary leakage, ordinary loss in weight or volume or ordinary wear and tear of the subject matter and such type of loss is not covered in the policy. Moreover, as per the terms and conditions of the policy the consigner has to make a claim from the carrier at the first instance and also they have to obtain the short delivery certificate from the carriers which was not done by the complainant. Therefore, they argued that there is no deficiency in service from their part and the complainant is not entitled to get their claim. With the above contentions, the opposite parties argued for dismissing the complaints.
17. In order to prove the contentions of the 1st and 2nd opposite parties, the administrative officer of the opposite parties filed separate proof affidavits and separate documents in all the above cases. On the basis of the proof affidavit, he was examined as DW1 in all cases and the documents produced by him are marked as Exts.B1 and B2 series in all cases. Ext.B1 and B2 series all cases are similar documents. Ext.B1 is the certified copy of the Marine Cargo open policy issued to the complainant in connection with the complainant’s 3 consignments. Ext.B2 is the policy and certificate issued for the 3 consignments. Ext.B2(a) is Clause No.2.2 and Ext.B2(b) is Clause No.8.2 in Ext.B2.
18. On the basis of the contentions and arguments of the parties, we have perused the available materials on record and found that the parties have no dispute with regard to the policy in question. The only dispute of the opposite parties is that the complainant had violated certain policy conditions. But from the available materials on record, it is found that the complainant intimated the above the loss in transit to the 1st opposite party as and when they got the information regarding the loss in transit from the consignees and the complainant complied all the required formalities as directed by the opposite parties. Opposite party also admitted the receipt of the surveyors report. But they are not accepting the surveyors report by saying that the surveyors report is based only on the information collected by the surveyor and it is not based on the visible assessment. However, the surveyor is deputed by the opposite parties through their Divisional Offices situated at the destinations. In the surveyors report the surveyors clearly stated that they have conducted enquiry and verified the photographs of the damaged barrels taken at the time of reaching the consignment. It is also stated in the surveyors report that they have verified the relevant documents in connection with the consignment. Thus it is clear that the surveyors reports can be accepted in the circumstances of this case. Further, it is evident that the complainant had submitted the relevant documents before the opposite parties that are required for processing the complainant’s claim. It is a fact that some delay has been occurred in this case in complying the required formalities immediately. It cannot be said to be a laches from the part of the complainant when considering the distance from the place where the consignment was sent and the place of destination of the consignment. With regard to the contentions based on the exclusion clauses, this Forum is of the view that the policies in question was taken solely for the purpose of indemnifying the loss in transit and it is an undisputed fact that the complainant’s loss is during the course of transit. In the absence of any case, that the claims in question are for defrauding the insurance company, the contentions raised for disallowing the complainant’s claims is not sustainable and hence the repudiation cannot be justified. In the circumstances, the repudiation of the complainant’s claims will not stand legally or factually and hence the repudiation is found to be a deficiency in service. Therefore, these complaints are allowable against opposite parties 1 and 2 only as we find no deficiency in service from the part of 3rd opposite party.
19. In the result, these complaints are allowed as follows:
- The 1st and 2nd opposite parties in C.C.No.18/14 is directed to pay an amount of Rs.1,60,295/- (Rupees One Lakh Sixty Thousand two hundred and ninety five only) the value of lost chemicals and surveyors fees with interest at the rate of 8% from the date of filing of this complaint along with cost of Rs.2,500/- (Rupees Two Thousand five hundred only) to the complainant.
- The 1st and 2nd opposite parties in C.C.No.19/14 is directed to pay an amount of Rs.17,807/- (Rupees Seventeen Thousand eight hundred and seven only) the value of lost chemicals and surveyors fees with interest at the rate of 8% from the date of filing of this complaint along with cost of Rs.2,500/- (Rupees Two Thousand five hundred only) to the complainant.
- The 1st and 2nd opposite parties in C.C.No.20/14 is directed to pay an amount of Rs.22,747/- (Rupees Twenty Two Thousand seven hundred and forty seven only) the value of lost chemicals and surveyors fees with interest at the rate of 8% from the date of filing of this complaint along with cost of Rs.2,500/- (Rupees Two Thousand five hundred only) to the complainant.
- Opposite parties 1 and 2 are directed to comply this order within 20 days from the date of receipt of this order failing which the complainant is allowed to realize the whole amount ordered herein above in all cases with 10% interest from today till the realization of the whole amount.
Since interest is allowed no orders for separate compensation.
Declared in the Open Forum on this the 30th day of September, 2014.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member – I) : (Sd/-)
Smt. Sheela Jacob (Member – II) : (Sd/-)
Appendix:
C.C.No.18/2014
Witness examined on the side of the complainant:
PW1 : P.T. Kuriakose
Exhibits marked on the side of the complainant:
A1 : Authorization dated 20.06.2014 given by the complainant.
A2 : Policy in question in respect of the above case.
A3 : Copy of the invoice issued to the 3rd opposite party
transporting company.
A4 : Way bill issued by the 3rd opposite party.
A5 : Certificate of facts showing the quantity of chemicals lost. A6 : Copy of the surveyors report.
A6(a) : Surveyors bill for Rs.7,230/-.
A7 : Copy of the repudiation letter dated 11.11.2013 issued by
the 1st opposite party.
A8 : Copy of the statement of the consignee showing loss of the
chemicals.
A9 : E-mail letter dated 20.09.2012 sent to the opposite party
by the complainant and the reply of the opposite party.
Witness examined on the side of the opposite parties:
DW1 : Krishna Moorthy
Exhibits marked on the side of the opposite parties:
B1 : Certified copy of the Marine Cargo open policy issued to
the complainant.
B2 : Policy and certificate issued for the 3 consignments.
B2(a): Clause No.2.2 in Ext.B2
B2(b): Clause No.8.2 in Ext.B2.
C.C.No.19/2014
Witness examined on the side of the complainant:
PW1 : P.T. Kuriakose
Exhibits marked on the side of the complainant:
A1 : Authorization dated 20.06.2014 given by the complainant.
A2 : Policy in question in respect of the above case.
A3 : Copy of the invoice issued to the 3rd opposite party
transporting company.
A4 : Way bill issued by the 3rd opposite party.
A5 : Certificate of facts showing the quantity of chemicals lost. A5(a): Surveyors bill for Rs.5,562/-.
A6 : Copy of the surveyors report.
A7 & A8 : E-mail letter dated 12.10.2012 sent to the opposite
party by the complainant and the reply of the
opposite party.
Witness examined on the side of the opposite parties:
DW1 : Krishna Moorthy
Exhibits marked on the side of the opposite parties:
B1 : Certified copy of the Marine Cargo open policy issued to
the complainant.
B2 : Policy and certificate issued for the 3 consignments.
B2(a): Clause No.2.2 in Ext.B2
B2(b): Clause No.8.2 in Ext.B2.
C.C.No.20/2014
Witness examined on the side of the complainant:
PW1 : P.T. Kuriakose
Exhibits marked on the side of the complainant:
A1 : Authorization dated 20.06.2014 given by the complainant.
A2 : Policy in question in respect of the above case.
A3 : Copy of the invoice issued to the 3rd opposite party
transporting company.
A4 : Way bill issued by the 3rd opposite party.
A5 : Surveyors bill dated 31.12.2012 for Rs.1,740/- issued by
the surveyor to the complainant.
A5(a) : Marine Cargo survey report dated 31.12.2012 issued by
the surveyor.
A6 : Copy of the repudiation letter dated 11.11.2013 issued by
the 1st opposite party.
A7 : Registered letter dated 01.11.2012 sent by the
complainant to 3rd opposite party.
A8 : E-mail letters dated 01.11.2012 and 31.10.14.
Witness examined on the side of the opposite parties:
DW1 : Krishna Moorthy
Exhibits marked on the side of the opposite parties:
B1 : Certified copy of the Marine Cargo open policy issued to
the complainant.
B2 : Policy and certificate issued for the 3 consignments.
B2(a): Clause No.2.2 in Ext.B2
B2(b): Clause No.8.2 in Ext.B2.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) P.T. Kuriakose, Manager,
M/s. Tag Chemicals India Pvt. Ltd., P.O.Box No.26,
Edakulam.P.O., Ranni, Pathanamthitta,
- Branch Manager, Oriental Insurance Co. Ltd.,
Branch Office, Neduvelil Building,
Pazhavangadi.P.O., Ranni.
- The Divisional Manager, Oriental Insurance Co. Ltd.,
Divisional Office, Thiruvalla.
- Branch Manager, M/s. Safe Express Pvt. Ltd.
Door No.911 E, ML Road, Kottayam – 1.
(5) Branch Manager, Kerala Transport Co. (Regd.),
Branch Office, Ranni.
(6) The Stock File.
