Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 383.
Instituted on : 17.10.2014.
Decided on : 29.03.2016.
M/s Ahaar Feeds, Building No.3289, Urban Estate, Block-C, Jind, through its Partner Sh. Ashok Kumar.
………..Complainant.
Vs.
M/s Future Generali India Insurance Co. Ltd., 1st Floor, Shahnai Banquet Hall, 98-101, Civil Road, Opp. Mansarovar Park, Rohtak-124001 through its Manager.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER
.
Present: Sh.Gulshan Chawla, Advocate for the complainant.
Sh. Sameer Gambhir, Advocate for the opposite party.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he deals in Poultry eggs and for this purpose and to cover the risk of eggs had purchased insurance cover by making the payment of Rs.18002/- w.e.f. 24.05.2014 to 23.05.2015 from the opposite party vide policy No.2014-CO788068 MLO. It is averred that at the time of selling the policy the opposite party had assured that in case of any damage to the eggs during transit and till delivery to the consignee loss to the extent of Rs.2,00,00,000/- will be covered and paid by it. It is averred that on dated 15.07.2014 the complainant hired vehicle No.MH-15CK-4121 for transportation of eggs to M/s Hamid Eggs, U.P. and the eggs were loaded and transported vide GR No.1483 dated 15.07.2014 and the value of eggs was approximately Rs.550560/- vide bill no.304 dated 15.07.2014. It is averred that on 21.07.2014 when the eggs were near to the place of its destination then the vehicle turned turtle due to appearing of a Neelcow in front of vehicle resulting damage of the eggs to the value of Rs.497310/- occurred. It is averred that after the said damage and loss the nearest office of the opposite party was informed and police was also informed. But the opposite party has repudiated the claim of the complainant on dated 11.08.2014 on the ground that policy is having condition for overloading which is read as “it is a condition of policy that weight of cargo should not exceed registered capacity of vehicle”. It is averred that the opposite party while repudiating the claim of the complainant has not considered that they have received the premium to risk the coverage of goods and not of vehicle. The goods has not played or caused any roll in damage. It is averred that the act of opposite party is illegal and amounts to deficiency in service. As such it is prayed that opposite party may kindly be directed to pay a sum of Rs.497310/- on account of damages to the goods/eggs, a sum of Rs.100000/- on account of mental pain and agony and Rs.22000/- on account of litigation expenses alongwith interest to the complainant.
2. On notice, opposite party appeared and filed its written reply submitting therein that it is denied that the damage of the eggs to the value of Rs.497310/-. The answering opposite party immediately on receipt of intimation of loss had appointed a duly licenced independent IRDA approved agent for assessment of loss. The surveyor assessed the loss at Rs.491804/- but also informed regarding overloading of the carrying vehicle which is a named exclusion under the policy. It is averred that the claim of the complainant has been repudiated as weight of cargo was exceeded than the registered carrying capacity of carrying vehicle. That as per RC the weight of carrying vehicle comes out to 7110Kg. whereas total weight of captioned consignment as per LR comes out 12702 Kg. Therefore the carrying vehicle was overloaded and the same is breach and violation of terms & conditions of insurance policy. It is averred that the opposite party is not liable to pay the claim amount on the basis of violation of terms and conditions of policy. It is averred that there is no deficiency in service on the part of opposite party. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of the complaint with cost.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence tendered his affidavit Ex.CW1/A, documents Ex.C1 to Ex.C9 and has closed his evidence. Ld. counsel for the opposite party in his evidence has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R4 and has closed his evidence.
5. We have heard ld. counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case insurance and damage to the goods is not disputed. It is also not disputed that the surveyor as per his report Ex.R3 has assessed the loss amounting to Rs.491804/- but the same has been repudiated by the opposite party vide its e-mail Ex.R5 on the ground that there was overloading in the subject loaded consignment vehicle. The contention of ld. Counsel for the opposite party is that as per policy condition it is submitted that: “The weight of cargo should not exceed registered capacity of vehicle”. Ld. Counsel has also placed reliance upon the judgment dated 06.07.2012 in revision petition No.762 of 2012 titled as S.R.Muralidharan Vs. New India Ass. Co. Ltd. and revision petition no.2636 of 2010 decided on 13.07.2011 titled as National Ins.Co. Ltd. Vs. Ms. Usha Devi.
7. On the other hand, contention of ld. Counsel for the complainant is that there is no nexus between the damaged eggs and loaded eggs and manner of accident or alleged overloading. It is further contended that at the time of transportation of eggs the opposite party was duly informed about the Registration No. and other particulars relating to the vehicle, about the weight of eggs, place of loading and destination of unloading of the eggs, beside all other information whichever was required by the opposite party to cover the risk of the loaded eggs. It is contended that the premium was paid to risk the coverage of goods and not of vehicle and goods have not played or caused any roll in damage. Ld. Counsel has also placed reliance upon the law cited in 2015(3)CLT 612 titled as Chief Regional Manager, New India Assurance Co. Vs. TTS Transport Services whereby Hon’ble Tamil Nadu State Commission, Chennai has upheld the findings of District Forum whereby it was held that: “Accident was an independent event and it was unconnected with the overloading-Therefore, even assuming that there was some overloading, that fact had not contributed to the accident-Only where it is cause of the accident, then alone the breach of permit conditions viz., the fact of overloading would become material and fundamental as to affect the very contract between the parties since it is not so in this case, the overloading is neither a fundamental breach nor a material fact”.
8. After going through the file and hearing the parties it is observed that the claim of the complainant has only been repudiated by the opposite party on the ground that at the time of accident the weight of cargo was more than the registered capacity of vehicle. In this regard it is observed that as per document/declaration Ex.C9 earlier also the complainant had sent the more weight of cargo through the same vehicle with prior intimation to the opposite party but no objection was taken by the opposite party. It is also observed that as per declaration Ex.C9, earlier also the complainant had sent the consignment of more than the disputed weight with prior intimation to the company and no objection was taken by the opposite party. Moreover the cause of accident is appearing of Neelgai in front of the carrying vehicle which has no nexus with the overloading of vehicle. In this regard we have placed reliance upon the law cited in III(2010)CPJ 39 titled as United India Insurance Co. Ltd. Vs. Soma Dey & Ors. Hon’ble West Bengal Kolkata State Commission has held that: “No evidence produced by appellants regarding overloaded vehicle-Expert report states that accident due to tyre burst-Repudiation of claim not justified-Deficiency in service proved-Forum’s order upheld”. The law cited above by ld. Counsel for the complainant titled Chief Regional Manager(Supra) is also fully applicable on the facts and circumstances of the case as in that case it was held that “Overloading is neither a fundamental breach nor a material factor”. On the other hand, law cited above by ld. Counsel for the opposite party titled S.R.Muralidharan(Supra) and National Ins.Co. Ltd.(Supra) are not fully applicable on the facts and circumstances of the case as in the present case it is not established that the cause of accident was overloading. In view of the facts and circumstances of the case it is observed that the repudiation of claim by the opposite party is illegal and unjustified and the complainant is entitled for the claim amount as assessed by the surveyor as per his report Ex.R3 amounting to Rs.491804/-.
9. As such, it is directed that opposite party shall pay the claim amount as assessed by the surveyor i.e. Rs. 491804/-(Rupees four lac ninety one thousand eight hundred four only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 17.10.2014 till its realization and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of decision. Complaint is allowed accordingly.
10. Copy of this order be supplied to both the parties free of costs.
11. File be consigned to the record room after due compliance.
Announced in open court:
29.03.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
