CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.
Present
Sri. Santhosh Kesavanath P. President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC No.256/06
Tuesday the 26th day of April, 2011
Petitioner : Thomson Rubbers(India) Pvt.Ltd.,
Rep.by its Managing Director,
M.T, Thomas,
IX, 18C,Kurisingal Junction,
Kanjirappally.
(Adv. K.Jidheesh & Jobin Mathew)
Vs.
Opposite party : Branch Manager,
Oriental Insurance Co.Ltd.,
Kanjirappally Branch,
Kanjirappally, Kottayam.
(Adv.Anie C.Kuruvilla)
ORDER
Smt. Bindhu M. Thomas, Member
The complainant’s case is as follows.
The complainant has entered into a contract of insurance with the opposite party. The name of the said policy is Marine Cargo-Inland Transit-cover type B (Rail Road) open policy. The policy number of the said policy is No.441305/2004/10. The said policy is valid from 2-6-2003 to 1-6-2004 midnight. As per the said policy the opposite party has to compensate the loss if any caused to the complainant whole in transit of the centrifuged latex and creamed latex in barrels and skim crepe during the voyage of the said goods from Karuvamoozhy to any where in India. For marine policy a premium of 36,000/- and for fire a premium of 7,00,000/- and for motor coverage an amount of Rs.2,25,000/- is collected and thus an amount of Rs.9,61,000/- rupees is paid yearly premium.
On 24-12-03 the complainant has consigned 48238.4 liters of 60% DRC centrifuged rubber latex in 2 containers from Karuvamoozhy to Kochi port. One of the said containers bearing No.FSCU 739929 mounted on a vehicle bearing registration no.KL-7AP 9196, carried by the transport belonging to M/s. Sajimon Transport, Plot No.29, got overturned and met by an accident at Appanchira near Kaduthuruthy on 24-12-03 at 4.30 PM. As a result of the said accident the entire latex got leaked off from the said container and the entire latex has been lost. The said accident was entered in the general diary, which was kept in Kaduthuruthy Police station at 10.55 pm by head constable 3958. The complainant has intimated the matter of accident to the office of the opposite party and the Regional Officer, Kochi has appointed Dr. A.V. Varghese C. Eng. M.I. Mar.E (India) a licensed surveyor/loss assessor for inspection and for assessing the loss sustained to the complainant. The said surveyor assessed the loss of
Rs.7,84,027.30 rupees and the report alongwith necessary documents were submitted to the opposite party on 12-02-04 for settling the claim. A thorough investigation with regard to the complainant’s claim is done by one Chandrachooden and another tim Ashraff, MSI(MAR) TECH, FISTA and they all submitted a report recommending sanction of the claim. But the opposite party on 1-02-06 has repudiated the claim and closed the file as “NO CLAIM”. The reasons put forward by the company for repudiating the claim are listed below.
i) There is no declaration on the part of the complainant with regard to FOB and CF contracts
ii) The declaration in respect of the loss was made only 2 days after occurrence
iii) There is no premium balance in the amount of the complainant to cover the declaration.
The aforementioned reasons are not sustainable either on law or on facts.
The first ground for repudiation of the claim on the ground that there is no declaration on the part of the petitioner with regard to FOB and CF contract is not sustainable because the petitioner has to declare only those consignments which buyers have not covered by any policy. The consignment which was lost is one FOB and CIF basis as per the said contract, being the supplier the petitioners is to do the entire insurance until the final point of discharge or the final destination. But in the FOR basic contract the petitioner need not include declarations for such consignment because the buyers themselves have their own open policies. Here the insured one is a consignment under FOB and CIF basis and which was lost and the other undeclared one is for FOR basis contract consignment. So it is not to be declared. The second ground for repudiation of the claim that the declaration in respect of the one of which loss has occurred has been mailed after 2 days after the occurrence of loss is also not sustainable because as per 5.30 of the marine insurance act the omission/erroneous declarations may be rectified on that ground is also baseless. The contention that there is no premium balance is also not sustainable because the per bottom limit noted in the policy is Rs.3,50,000/-. The petitioner has informed the company to enhance the limit to Rs. 60 lakhs prior to the occurrence of the loss but the opposite party has forgotten to make endorsement in that effect and also the claim reported policy was issued in 2-6-03 after adjusting the undeclared balance of the previous policy but that endorsement was also not mentioned by the mistake done by the opposite parties. The complainant alleged that the repudiation amounts to deficiency in service and filed this complaint praying to direct the opposite party to pay an amount of Rs.7,84,027.30 with interest 18% to indemnify the damage sustained by him and litigation cost.
The opposite party entered appearance and filed version with the following main contentions.
i) The petitioner stated that on 24-12-03, he has consigned 48238.4 liters of 60% DRC Centrifuged rubber latex in 2 containers from Karuvamoozhy to Kochi as per invoice no.381 dated 24-12-03. But the declaration in respect of the one in which loss has occurred has been mailed by the complainant to this opposite party only on 26-12-03 ie two days after the occurrence of loss wherein as per the policy conditions it should have been informed to the opposite party immediately on issue of the LR ie on 24-12-03. so there is clear violation of policy condition
ii) On 24-12-03, the petitioner has consigned 48238.4 liters of 60% DRC centrifuged rubber latex in two containers from Karuvamoozhy to Kochi port as per invoice No.381 dated
24-12-03 and as per letter dated 24-12-03 is false. The averment that two container covered by supplying bill no.1220616 dated
12-12-03 and export invoice no. Ex/087/2003-04 dated 2-10-03 was to be shipped by feeder vessel M.T. Tiger Cloud V 1421 from Cochin Port to Colombo under bill of lading no. CHN-329 of December 30, 2003 through M/s Reliance Shipping Pvt. Ltd. etc has to be strictly proved by the petitioner.
iii) The petitioner has not declared any despatches made by him under FOB and C&F contracts where the risk rests with the complainant till the cargo is loaded with the vessel prior to the occurrence of loss. The one under which the claim, has occurred was the first despatch for export which has been declared by the petitioner under a C and F contract. It is also seen that there were two invoices for despatches to Cochin port on the relevant day that the complainant has declared only one, under which the claim has occurred. It was also understood that out of the 296 sendings made by the complainant during the aforesaid policy period only 21 alone were declared. Thereby the complainant violated the terms and conditions of the policy.
iv) The per bottom limit of the aforesaid policy is Rs. 3,50,000/- per sending. Whereas the claim raised is for more than that and as such the opposite party can entertain the claim, if it is allowable as per the policy conditions, only upto the extent of Rs. 3,50,000/- and not above that. In the present case the request made by the complainant to enhance the per bottom limit was not accepted b y the insurer.
According to the opposite party there is no deficiency in service on the part of their part and requested to dismiss the complaint with compensatory costs to them.
Points for consideration are:
i) Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
ii) Reliefs and costs?
Evidence consists of affidavits filed by both parties and exhibits A1 to A2 and B1
Point No.1
Heard the counsels for both parties and perused the documents placed on record. There is no dispute with regard to the accident and loss. The complainant averred that the fact of accident was reported to the opposite party and that its Regional Officer at Cochin appointed a licensed Surveyor/Loss Assessor for assessing the loss sustained to the complainant. The report submitted by the above said statutory surveyor is filed before the forum and it is marked as Ext.X1. As per Ext.X1, the surveyor assessed a loss of Rs. 7, 84,027.30ps to the complainant due to the accident. The said surveyor is of the opinion to allow the insurance claim. The opposite party averred that the per bottom limit of the policy under dispute is Rs. 3,50,000/- per sending. The opposite party further averred that the claim raised by the complainant is more than that. In our view as the per bottom limit is Rs. 3,50,000/-, the opposite party company is only liable to allow the said amount of Rs. 3,50,000/- even though the surveyor opined to allow the claim. Point no.1 is found accordingly.
Point no.2
In view of the findings in point no.1, the complaint is allowed.
In the result, the complaint is ordered as follows.
The opposite party will give the per bottom limit amount of Rs. 3,50,000/- with interest @ 9% per annum from the date of repudiation till payment. As interest is allowed, no cost and compensation is ordered.
This order will be complied with within one month of receipt of the order.
. Smt. Bindhu M. Thomas, Member Sd/-
Sri. Santhosh Kesavanath P. President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
Appendix
Documents of the complainant
Ext.A1-copy of policy
Ext.A2-Repudiation letter dtd 1-2-06 sent to the complainant by the opposite party
Documents of the opposite party
Ext.B1-Certified true copy of policy with its terms and conditions.
Report filed by the statutory surveyor is produced before the forum and it is marked as Ext.X1.
By Order,
Senior Superintendent.
