BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 376/2005 Filed on 17/11/2005 Dated: 17..08..2009 Complainant: MOM Traders, Sabavathi Coil Street, Chalai, Thiruvananthapuram. Represented by its Proprietor M. Meeran Shafy.
(By Adv. S. Sreekumaran Nair)
Opposite parties:
United India Insurance Company Ltd., Divisional Office, Rothak, Haryana, represented by its Divisional Manager. United India Insurance Company Ltd., Divisional Office, LMS Compound, Thiruvananthapuram, represented by its Divisional Manager. United India Insurance Company Ltd., Head Office, Whites Road, Chennai, represented by its Chairman.
(By Adv. R. Jagadish Kumar)
This O.P having been heard on 30..06.2009, the Forum on 17..08..2009 delivered the following:
ORDER SMT. S.K.SREELA, MEMBER: The facts of the case are the following: The complainant is a policy holder of the opposite parties. The complainant is a small trader and self employed youth dealing with rice distributorship in a small scale basis and his supplier M/s. Satnam Overseas Ltd had dispatched one lorry truck consignment of rice, that the same was received on 6/6/2000, the consignment had insurance coverage with the opposite parties. Due to the heavy rain 285 packages weighing 5750kg of rice was drenched in heavy water because of heavy continuous rain at Mysore to Thiruvananthapuram. When the goods reached Thiruvananthapuram, immediately the matter was reported to the 2nd opposite party and a senior surveyor was appointed by the 2nd opposite party to assess the loss to the goods and he assessed the loss at Rs.1,64,268/-. The surveyor gave instructions to the complainant to destroy the rice after inspection, that the damaged rice created foul smell in all surrounding areas and the same was removed and disposed in the dumping yard at Kuryathi, Thiruvananthapuram controlled by the Corporation of Thiruvananthapuram. But till date the claim of the complainant has not been settled and hence this complaint has been necessitated. 2. Opposite parties 1 to 3 filed joint version contending as follows: The complainant is not a consumer as defined in Section 2(d) of the Consumer Protection Act, that the dispute is with regard to the quantum of the claim amount as per the contract of insurance and the same will come within the ambit of civil dispute and that the dispute has to be adjudicated with voluminous evidence and the same can be maintained only before a Civil Court. Opposite parties are liable to indemnify the complainant subject to the terms and conditions of the Insurance Policy. As soon as the claim was launched by the complainant a surveyor was appointed to assess the loss of goods, that the report submitted by the surveyor is also admitted. The surveyor asked the complainant to dispose drenched goods after contacting the carriers representative, since the same would create bad smell and fungus which will affect the other stocks, destruction certificate of the damaged rice from the City Corporation, Thiruvananthapuram is yet to be produced by the complainant and the opposite party can compensate only when the same is received. There is no deficiency in service on the part of opposite parties. The total consignment seems not damaged and hence the entire amount cannot be claimed. Hence opposite parties pray for dismissal of the complaint with compensatory costs.
3. Both parties filed affidavit and Exts. P1 to P11 and D1 were marked on the part of the complainant and the opposite parties respectively. 4. From the facts of the case following issues arise for trial:
Whether there is any deficiency in service on the part of the opposite parties? Whether the complainant is entitled for any of the reliefs claimed in the complaint?
5. Point (i) & (ii): The policy has been admitted. Survey report which has been marked as Ext.P1 & D1, has been prepared by the surveyor after examining the alleged consignment. As per the survey report, the nature of packing of the consignment has been mentioned as 'deemed sufficient for the trade and packed in Gunny/Jute bags covered with polythelene lamination. Also internal polythelene lining in the kohinoor brand rice bags'. Furthermore it has been stated that goods were covered with Tarpaulin to prevent entering of water into the board. The condition of the goods has been mentioned by the surveyor as 'Basmati Rice and other varieties of raw rice as detailed in the Table 1 were drenched in water due to rain. Bags were found wet and fungous'. As per Ext.P2/D1, the surveyor has segregated 70 bags from the damaged goods and considered for partial loss and which can be sold in the market for a low price and surveyor has directed the consignee to contact the carrier/rep. of the carriers immediately to dispose the drenched goods which eminates bad smell/fungous which will effect the other stock also. The survey report is dated 10/6/2000 and the date of arrival of the consignment is 6/6/2000. Accordingly, there is no dispute with regard to the damage to the consignment as alleged in the complaint. The complainant has informed the opposite party and has made a claim on 6/6/2000 itself.
6. Things being so, the complainant has alleged that, after a long gap of one year, he has been asked to produce the destruction certificate from City Corporation and Laboratory Certificate from Public Health Laboratory and further alleges that the surveyor did not request him to collect the certificate before destroying the damaged rice. Here the very pertinent aspect to be looked into is that the incident happened on 6/6/2000 and Ext.P1 is dated 10/7/2003 which is seen sent to the opposite party by the complainant regarding the pending of insurance claim. The above said Ext.P1 is seen received by the opposite party on 7/7/2005 ie., after 2 years from the date of Ext.P1. Hence there is a shadow of doubt cast upon the authenticity of the date in the said document though the opposite party has never challenged the said date.
7. As per Ext.P7 dated 5/11/2002, the complainant has sent a lawyer's notice regarding the claim for which there is no document or record to show that the opposite party had sent reply to the same.
8. After a long lapse of about three years from the date of the 1st lawyer's notice ie., Ext.P7, another legal notice dated 15/8/2005 has been sent on behalf of the complainant to the opposite party regarding settlement of complainant's claim. For the above the opposite party has sent the reply dated 6/9/2005 wherein they have informed the complainant that the opposite party will try for a settlement out of court and has requested to grand 30 days time for getting back to them in respect of the entire claim.
9. The important point for consideration at this juncture is that the opposite party has nowhere whispered the reason for the delay of 5 years caused for settling the claim. Both parties have not produced the terms and conditions pertaining to this policy. Moreover, the complainant has not even produced the policy but the opposite party has admitted the policy and has not objected the same. If at all the destruction certificate of the damaged rice from the City Corporation, Thiruvananthapuram was necessary, the insurance company ought have produced the terms and conditions and proved the basis for their demand. The burden is on the opposite party to prove that the destruction certificate is a necessary document and they have demanded the same as per rules. The surveyor has also not specified the production of destruction certificate but instead has directed the complainant to dispose the drenched goods after contacting the carrier or representative of the carrier. The opposite party has never raised the objection regarding the issue of limitation. Though the complainant had issued the lawyer's notice after the period of limitation, the opposite party has not raised any objection regarding that but they have admitted the transaction and were willing to settle the matter. As per Ext.P11the opposite party has no objection in settling the issue inspite of the long delay on the part of the complainant.
10. In the above circumstance, we find that the opposite party has miserably failed to substantiate their contention in the version that destruction certificate from the Corporation, Thiruvananthapuram is a necessary document though there is a direction by the Surveyor to dispose the drenched goods. In the light of the above discussion we hereby allow the complaint. The complainant is found entitled for refund of Rs.1,60,188/- the amount assessed by the surveyor.
In the result, the opposite parties shall pay Rs.1,60,188/- along with a compensation of Rs.5000/- and cost of Rs.1,500/- to the complainant within a period of two months from the date of receipt of the order failing which the entire amount shall carry interest @ 9%.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 17th day of August, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.376/2005 APPENDIX 1. Complainant's witness : NIL II. Complainant's documents: P1 : Letter (Reminder IV) dated 10/7/2003 P2 : Copy of Survey Report P3 : Copy of voucher cash receipt No.349 dt. 10/6/2000 P4 : Photocopy of invoice dated 26/5/2000 for Rs.5,04,062/-. P5 : Photocopy of Marine Claim Form dated 6/6/2000 issued by opposite party. P6 : Photocopy of description of accident occurance dated 6/6/2000. P7 : Copy of advocate notice dated 5/11/2002 issued by complainant. P8 : Copy of 2nd lawyer's notice dated 15/8/2005 P9 : Postal receipt dated 15/8/2005 P10 : Acknowledgment card dated 16/8/2005 signed by the 2nd opposite party P11 : Copy of reply legal notice dated 6/9/2005 issued by the opposite party.
III. Opposite parties' witness : NIL
IV. Opposite parties' documents :
D1 : Copy of Survey Report.
PRESIDENT ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 376/2005 Filed on 17/11/2005 Dated: 17..08..2009 Complainant: MOM Traders, Sabavathi Coil Street, Chalai, Thiruvananthapuram. Represented by its Proprietor M. Meeran Shafy.
(By Adv. S. Sreekumaran Nair)
Opposite parties:
United India Insurance Company Ltd., Divisional Office, Rothak, Haryana, represented by its Divisional Manager. United India Insurance Company Ltd., Divisional Office, LMS Compound, Thiruvananthapuram, represented by its Divisional Manager. United India Insurance Company Ltd., Head Office, Whites Road, Chennai, represented by its Chairman.
(By Adv. R. Jagadish Kumar)
This O.P having been heard on 30..06.2009, the Forum on 17..08..2009 delivered the following:
ORDER SMT. S.K.SREELA, MEMBER: The facts of the case are the following: The complainant is a policy holder of the opposite parties. The complainant is a small trader and self employed youth dealing with rice distributorship in a small scale basis and his supplier M/s. Satnam Overseas Ltd had dispatched one lorry truck consignment of rice, that the same was received on 6/6/2000, the consignment had insurance coverage with the opposite parties. Due to the heavy rain 285 packages weighing 5750kg of rice was drenched in heavy water because of heavy continuous rain at Mysore to Thiruvananthapuram. When the goods reached Thiruvananthapuram, immediately the matter was reported to the 2nd opposite party and a senior surveyor was appointed by the 2nd opposite party to assess the loss to the goods and he assessed the loss at Rs.1,64,268/-. The surveyor gave instructions to the complainant to destroy the rice after inspection, that the damaged rice created foul smell in all surrounding areas and the same was removed and disposed in the dumping yard at Kuryathi, Thiruvananthapuram controlled by the Corporation of Thiruvananthapuram. But till date the claim of the complainant has not been settled and hence this complaint has been necessitated. 2. Opposite parties 1 to 3 filed joint version contending as follows: The complainant is not a consumer as defined in Section 2(d) of the Consumer Protection Act, that the dispute is with regard to the quantum of the claim amount as per the contract of insurance and the same will come within the ambit of civil dispute and that the dispute has to be adjudicated with voluminous evidence and the same can be maintained only before a Civil Court. Opposite parties are liable to indemnify the complainant subject to the terms and conditions of the Insurance Policy. As soon as the claim was launched by the complainant a surveyor was appointed to assess the loss of goods, that the report submitted by the surveyor is also admitted. The surveyor asked the complainant to dispose drenched goods after contacting the carriers representative, since the same would create bad smell and fungus which will affect the other stocks, destruction certificate of the damaged rice from the City Corporation, Thiruvananthapuram is yet to be produced by the complainant and the opposite party can compensate only when the same is received. There is no deficiency in service on the part of opposite parties. The total consignment seems not damaged and hence the entire amount cannot be claimed. Hence opposite parties pray for dismissal of the complaint with compensatory costs.
3. Both parties filed affidavit and Exts. P1 to P11 and D1 were marked on the part of the complainant and the opposite parties respectively. 4. From the facts of the case following issues arise for trial:
Whether there is any deficiency in service on the part of the opposite parties? Whether the complainant is entitled for any of the reliefs claimed in the complaint?
5. Point (i) & (ii): The policy has been admitted. Survey report which has been marked as Ext.P1 & D1, has been prepared by the surveyor after examining the alleged consignment. As per the survey report, the nature of packing of the consignment has been mentioned as 'deemed sufficient for the trade and packed in Gunny/Jute bags covered with polythelene lamination. Also internal polythelene lining in the kohinoor brand rice bags'. Furthermore it has been stated that goods were covered with Tarpaulin to prevent entering of water into the board. The condition of the goods has been mentioned by the surveyor as 'Basmati Rice and other varieties of raw rice as detailed in the Table 1 were drenched in water due to rain. Bags were found wet and fungous'. As per Ext.P2/D1, the surveyor has segregated 70 bags from the damaged goods and considered for partial loss and which can be sold in the market for a low price and surveyor has directed the consignee to contact the carrier/rep. of the carriers immediately to dispose the drenched goods which eminates bad smell/fungous which will effect the other stock also. The survey report is dated 10/6/2000 and the date of arrival of the consignment is 6/6/2000. Accordingly, there is no dispute with regard to the damage to the consignment as alleged in the complaint. The complainant has informed the opposite party and has made a claim on 6/6/2000 itself.
6. Things being so, the complainant has alleged that, after a long gap of one year, he has been asked to produce the destruction certificate from City Corporation and Laboratory Certificate from Public Health Laboratory and further alleges that the surveyor did not request him to collect the certificate before destroying the damaged rice. Here the very pertinent aspect to be looked into is that the incident happened on 6/6/2000 and Ext.P1 is dated 10/7/2003 which is seen sent to the opposite party by the complainant regarding the pending of insurance claim. The above said Ext.P1 is seen received by the opposite party on 7/7/2005 ie., after 2 years from the date of Ext.P1. Hence there is a shadow of doubt cast upon the authenticity of the date in the said document though the opposite party has never challenged the said date.
7. As per Ext.P7 dated 5/11/2002, the complainant has sent a lawyer's notice regarding the claim for which there is no document or record to show that the opposite party had sent reply to the same.
8. After a long lapse of about three years from the date of the 1st lawyer's notice ie., Ext.P7, another legal notice dated 15/8/2005 has been sent on behalf of the complainant to the opposite party regarding settlement of complainant's claim. For the above the opposite party has sent the reply dated 6/9/2005 wherein they have informed the complainant that the opposite party will try for a settlement out of court and has requested to grand 30 days time for getting back to them in respect of the entire claim.
9. The important point for consideration at this juncture is that the opposite party has nowhere whispered the reason for the delay of 5 years caused for settling the claim. Both parties have not produced the terms and conditions pertaining to this policy. Moreover, the complainant has not even produced the policy but the opposite party has admitted the policy and has not objected the same. If at all the destruction certificate of the damaged rice from the City Corporation, Thiruvananthapuram was necessary, the insurance company ought have produced the terms and conditions and proved the basis for their demand. The burden is on the opposite party to prove that the destruction certificate is a necessary document and they have demanded the same as per rules. The surveyor has also not specified the production of destruction certificate but instead has directed the complainant to dispose the drenched goods after contacting the carrier or representative of the carrier. The opposite party has never raised the objection regarding the issue of limitation. Though the complainant had issued the lawyer's notice after the period of limitation, the opposite party has not raised any objection regarding that but they have admitted the transaction and were willing to settle the matter. As per Ext.P11the opposite party has no objection in settling the issue inspite of the long delay on the part of the complainant.
10. In the above circumstance, we find that the opposite party has miserably failed to substantiate their contention in the version that destruction certificate from the Corporation, Thiruvananthapuram is a necessary document though there is a direction by the Surveyor to dispose the drenched goods. In the light of the above discussion we hereby allow the complaint. The complainant is found entitled for refund of Rs.1,60,188/- the amount assessed by the surveyor.
In the result, the opposite parties shall pay Rs.1,60,188/- along with a compensation of Rs.5000/- and cost of Rs.1,500/- to the complainant within a period of two months from the date of receipt of the order failing which the entire amount shall carry interest @ 9%.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 17th day of August, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.376/2005 APPENDIX 1. Complainant's witness : NIL II. Complainant's documents: P1 : Letter (Reminder IV) dated 10/7/2003 P2 : Copy of Survey Report P3 : Copy of voucher cash receipt No.349 dt. 10/6/2000 P4 : Photocopy of invoice dated 26/5/2000 for Rs.5,04,062/-. P5 : Photocopy of Marine Claim Form dated 6/6/2000 issued by opposite party. P6 : Photocopy of description of accident occurance dated 6/6/2000. P7 : Copy of advocate notice dated 5/11/2002 issued by complainant. P8 : Copy of 2nd lawyer's notice dated 15/8/2005 P9 : Postal receipt dated 15/8/2005 P10 : Acknowledgment card dated 16/8/2005 signed by the 2nd opposite party P11 : Copy of reply legal notice dated 6/9/2005 issued by the opposite party.
III. Opposite parties' witness : NIL
IV. Opposite parties' documents :
D1 : Copy of Survey Report.
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
