BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.185 of 2017
Date of Instt. 13.06.2017
Date of Decision: 14.01.2019
M/s Kakkar Complex Steels Pvt. Ltd., 7km, Jalandhar Road, Hoshiarpur, Punjab.
..........Complainant
Versus
1. HDFC Ergo General Insurance Co. Ltd., 3rd Floor, Eminent Mall, 261, Lajpat Nagar, Jalandhar, Punjab.
2. HDFC Ergo General Insurance Co. Ltd., 5th Floor, Surya Tower, 88 Mall Road, Ludhiana, Punjab.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna Thatai (Member)
Present: Sh. Nakul Kapoor, Adv Counsel for the Complainant.
Sh. R. K. Sharma, Adv Counsel for the OP No.1 and 2.
Order
Karnail Singh (President)
1. The instant complaint has been filed by the complainant, wherein stated that the complainant is running a private limited company under the banner of Kakkar Complex Steels Pvt. Ltd. and they are engaged in manufacturing and exports of Alloy Steels such as High Speed Steel, High Carbon, High Chromium Steel, Hot Die Steel, Valve Steel and Chipper Knife Steel. The complainant has insured their goods for the purpose of export from OPs under “Marine Insurance Policy No.2412201150481300000”, of which premium were made from complainant's HDFC Bank against cheque No.003945 dated 26.08.2016, which was paid to defendant No.1 at their office at Jalandhar.
2. That the complainant has exported the goods under their export Invoice No.10 dated 23.07.2016. The shipment of the said consignment was made on 25.07.2016 under the Bill of lading No.SUDUI6666AOHKLX9 dated 12.08.2016 to the Antwerp, Belgium Port and Marine insurance certificate, which has been issued by the OP against the said invoice, but unfortunately the fire incident took place at Hamburg Port, Germany, while the goods were very much in transit and the said incident was came to the notice of the complainant on 07.09.2016, which was further informed to the OPs on 08.09.2016. That the complainant was informed by their foreign buyer on 12.09.2016 that the goods will be released only after the submission of the GA Bond and Surety formalities and it was further informed to OPs on the same date without any delay. An average bond and other supporting documents were completed and the same were sent to OPs on 16.09.2016. Furthermore, in an email conversation on 24.09.2016, OP admitted that the claim has been registered with them under the claim number “C241216007594/1 against the continued marine insurance policy and they also admitted in the same email that they do have full knowledge of the said incident of fire since 08.09.2016 and mentioned that they will ask for further documents, which were duly provided to them without any delay. However, several telephonic reminders and emails regarding the status of required documents, OP on 29.09.2016 finally asked for some more documents from complainant and all the required documents were also sent to OPs without any delay on 29.09.2016.
3. That after several reminders to OPs from complainant, on 19.10.2016, OPs confirmed that they have arranged for 5% cash deposit and also sought a GA counter guarantee. At last on 21.10.2016, the GA guarantee and salvage guarantee was submitted to the loss adjuster by WKW. After submission of the above said guarantees the goods were finally released on 26.10.2016 and further complainant's foreign buyer confirmed them that they had paid an amount of 3378.41 Euro and 397.46 Euro to the German Port authorities for the storage charges against the said container. The said amount has been deducted from complainant's invoice from the value of 42,258.22 Euro. That the delay of release of goods were done after a long gap of about 50 days. Since, the OPs had failed miserably to discharge its duty and responsibility towards complainant, and only because of poor service and unprofessional behaviour of OPs, complainant had to bear a huge amount of financial loss of 3775.87 Euro (Rs.2,60,000/- approximately). As per “The Marine Open Declaration Policy”, the complainant is entitled to get his amount refunded and get his loss claimed under the forwarding charges clause 12 of the said policy, but the OP has rejected the complainant's claim by stating exclusion clause 4.5 of The Marine Open Declaration Policy, on 16.11.2016, whereas the complainant never fall under that particular category. Despite repeated request of the complainant, the OP did not bother to consider the request and thus, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay compensation for negligence and deficiency in service, to the tune of Rs.1,00,000/- and litigation expenses of Rs.1,00,000/- and further OPs be directed to also pay the loss amount of Rs.2,60,000/- along with interest @ 24% per annum.
4. Notice of the complaint was given to the OPs, who appeared through its counsel and filed joint reply, whereby contested the complaint by taking preliminary objections that the complaint is not maintainable against the OPs and the same is liable to be dismissed. It is further averred that the claim of the complainant stands repudiated as the same fell under the Exclusion Clause 4.5 of the Marine Open Declaration Insurance Policy and further submitted that the Clause 12 of the said policy is not applicable in the case of the complainant, no doubt the insured consignment was in transit, but the same was not terminated at a port or place other than that to which the subject matter is covered under the insurance rather the delay is only due to fire incident which took place at Hamburg Port, Germany. It is further submitted that Clause 12 of the policy does not apply to General Average or Salvage Charges, shall be subject to the exclusion contained in Clauses 4, 5, 6 and 7. As the claim of the complainant fell under the Exclusion Clause 4.5 of The Marine Open Declaration Policy and thus, the claim of the complainant has been rightly repudiated and further alleged that the liability of the insurance company is always subject to terms and conditions of the insurance policy. It is further alleged that there is neither any deficiency in service nor negligence or unfair trade practice on the part of the OPs, therefore, complaint of the complainant is not maintainable, the same may be dismissed. On merits, the factum in regard to purchase of insurance policy and rejection of the insurance claim of the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of Dipan Kumar as Ex.CA and affidavit of Kulwant Sharma as Ex.CB along with some documents Ex.C-1 to Ex.C-15 and closed the evidence.
6. Similarly, counsel for the OPs tendered into evidence affidavit of Pankaj Kumar as Ex.OA along with some documents Ex.O-1 and Ex.O-2 and then closed the evidence.
7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
8. There is no dispute in regard to get insured the goods for purpose of export by way of getting Marine Insurance Policy from OP No.1 after paying the premium of the same and it is also not disputed that while the goods were in transit, an incident of fire was took place at Hamburg Port, Germany, but the goods of the complainant were very much save and no loss was caused due to fire to the insured goods of the complainant and further the claim of the complainant is also admittedly repudiated by the OP, vide repudiation letter dated 15.11.2016, Ex.O-2.
9. Now question remains whether the insurance claim of the complainant has been rightly repudiated by the OPs or not or further whether exclusion clause 4.5 of the insurance policy is applicable in the case of the complainant or not. These are the main points for consideration.
10. First of all, we are going to take an opportunity to discuss the aforesaid points jointly because both are co-related and inter-linked. The complainant itself alleged in Para No.3 of the complaint that the complainant was informed by their foreign buyer on 12.09.2016 that the goods will be released only after the submission of the GA Bond and Surety formalities and it is also admitted that the delay for delivery of the said goods was caused due to fire incident, which took place at Hamburg Port, Germany, while the goods were in transit. Though, the complainant gave much stress upon completion of the formalities in regard to sending GA Bond and Surety Formalities, but here the question is not so whether the formalities, whatsoever demanded or required at Hamburg Port, Germany, were completed by the complainant immediately or not. The question is only whether as per the terms and conditions of the insurance policy, if there was any delay for delivery of the goods i.e. covered under the insurance policy or not, this is the mute question which required deep consideration and accordingly, we have gone through the exclusion clause alleged by the OP in the terms and conditions of the insurance policy, which is also placed on the file by the complainant, which is Ex.C-1 and same is placed on the file by the OP as Ex.O-1 and as per Clause 4.5, any loss or expenses approximately caused by delay, is not covered under the terms and conditions of the policy i.e. Exclusion Clause 4.5. It is not the case of the complainant that the said terms and conditions were not explained or delivered to the complainant at the time of purchase of the policy rather the said terms and conditions itself produced on the file by the complainant and therefore, we can construe that the complainant is very much aware about the said exclusion clause 4.5. If we analyze the case of the complainant under the aforesaid provision of 4.5, then we can say without any hesitation that the complainant is not entitled for the insurance claim, for any damages and loss caused due to any type of delay. So, with these observations, we find no force in the argument of learned counsel for the complainant, therefore, complaint of the complainant is dismissed being without merits with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Thatai Karnail Singh
14.01.2019 Member President
