BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.241 of 2017
Date of Instt. 20.07.2017
Date of Decision: 26.02.2020
Karan Shoor Prop. M/s Karan Packages, Basti Danishmandan Road, Jalandhar, Punjab, India.
..........Complainant
Versus
1. HDFC ERGO General Insurance Company Ltd., 6th Floor, Leela Business Park, Andheri Kurla Road, Andheri (East) Mumbai 400059 through its Managing Director,
2. The Branch Manager, HDFC ERGO General Insurance Company Ltd., 3rd Floor, Eminent Mall, 261, Lajpat Nagar, Near Guru Nanak Mission Chowk, Jalandhar, Punjab.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Rajneesh Dev, Adv. Counsel for the Complainant.
Sh. R. K. Sharma, Adv. Counsel for the OPs.
Order
Karnail Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the complainant is the proprietorship concern, carrying on the business of knitted garments by the name and style of M/s Karan Packages. Sh. Karan Shoor son of Sh. Chand Shoor is the proprietor of said firm, who is fully conversant with the facts of the present complaint.
2. That the OPs are carrying the business of insurance of goods-cargo by the name and style of HDFC ERGO General Insurance Company Ltd., having its head office at Mumbai and branch office throughout India and one of the branch at Jalandhar, Punjab for gains. The complainant purchased Marine Specific Voyage Policy No.2411201490376700000 against bill No.KP018 dated 23.08.2016 BL No.957825410 2016 voyages from Jalandhar to Luanda for the export of the knitted garment (T-Shirts) as per invoice mentioned above to be delivered to sema comercio geral Ida Luanda/Angola consignee for the period 26.08.2016 till the completion of journey as per duration of inland transit Clause A-2010 Institute Cargo Clause (a) 1/1/82 CL-252. On insurance of cover note, the complainant paid insurance premium as per terms and conditions of the insurance policy. As per terms and conditions of the policy, the OPs were under the liability to cover risk of consignment of bill No.18 dated 23.08.2016 of Rs.50,64,416/-. The complainant had a right to recover insurable interest for loss suffered, OPs are liable to indemnify loss as per terms and conditions of the policy. Under the aforesaid policy, consigner/complainant sent consignment of 159 cartoons of knitted T-shirts of different colors for the delivery at Luanda to consignee sema comercio geral Ida Luanda/Angola of bill No.KP/018/2016 dated 23.08.2016 for Rs.50,64,416/- as per insurance cover, vide shipping bill for export No.9870829 dated 04.09.2016 having custom seal No.349519 of custom Delhi and bill of lading No.957825410, Container No.MSKU3430119 of Mearsk Line. The buyer sema comercio geral Ida Luanda/Angola informed the complainant on telephone and email in November 2016 that port authority at Luanda/Angola gave 30 cartoons short at the time of delivery at Luanda/Angola. The authority informed him that there is a shortage of 30 cartoons. The said buyer informed that he actually received 129 cartoons out of 159 cartoons of T-Shirts and there is loss of 30 cartoons. The said importer gave the details of lost 30 cartoons through emails. The value of 30 lost cartoons of T-Shirts is Rs.12,48,301.62/- + 10% CIF Rs.1,24,830.16/-, in total loss caused to the complainant Rs.13,73,131.78/-. Coming to know about the loss of 30 cartoons of T-shirts under the said policy, the complainant immediately lodged insurance claim in November, 2016 with the OP and further all the relevant documents and necessary information was provided to the OP and contact number of the buyer sema comercio geral Ida Luanda/Angola etc. was also supplied to the complainant. Even Port Authorities of Luanda/Angola issued shortage certificate regarding loss of 30 cartoons. The complainant time to time requested the OPs to settle the claim, but the OPs did not bother to consider the insurance claim of the complainant and as such, 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 the amount of Rs.13,73,131.78/- as values of 30 cartoons insured, Rs.2,00,000/- as compensation and Rs.40,000/- as legal expenses alongwith interest @ 18% per annum till realization of amount.
3. Notice of the complaint was given to the OPs, who appeared through its counsel and filed a joint written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable qua the answering OPs and the same is liable to be dismissed. It is further averred that the complainant cannot take advantage of his own wrongs. On intimation of loss, the insurance company deputes Surveyor and Loss Assessor to assess the Loss and investigate the matter in case survey is not possible. In the present case, the complainant failed to supply the requisite information, correct contact numbers and documents to enable the insurer to conduct Survey or Investigation as the case may be, as the contact numbers of the consignee provided were not working and the complainant failed to supply the alternative contact numbers of the consignee. When the OPs asked for the alternate contact numbers of the consignee, the reply on the part of the complainant was that whatever the details and information was with the complainant the same has been supplied, but the contact numbers of the consignee were not working for contacting them for the purpose of survey and investigation leads to closure of the claim by the OP, vide email dated 31.03.2017. It is further averred that the insurance claim of the complainant becomes payable only after due survey and investigation so as to verify the genuineness of loss and quantify the same. The complainant has grossly failed to abide by the insurance policy terms and conditions by completely disabling the OP to conduct necessary enquiry on the alleged loss and further alleged that there is neither any deficiency in service nor negligence nor any unfair trade practice on the part of the OPs. Closing the claim on account of non furnishing of the requisite details for processing the claim as per terms and conditions of the insurance policy does not amount to any deficiency in service nor negligence or any unfair trade practice, as such, the complaint is liable to be dismissed. On merits, it is admitted that the complainant purchased the services of insurance company after paying the premium and it is also admitted that the complainant filed insurance claim and accordingly, the Surveyor/Investigator was invited, but to whom the complainant did not provide the contact number of the consignee and as such, the case of the complainant was closed as no claim. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. In order to prove his case, the complainant alongwith his counsel tendered into evidence his own affidavits i.e. Ex.CA and Ex.CB alongwith some documents Ex.C-1 to Ex.C-30 and then closed the evidence.
5. Similarly, counsel for the OPs tendered into evidence affidavit of Sh. Pankaj Kumar as Ex.OA alongwith some documents Ex.O-1 to Ex.O-4 and closed the evidence.
6. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.
7. From the pleadings of the parties, one thing is undisputedly established on the file that the complainant got insurance policy qua bill No.KP/018/2016 dated 23.08.2016 for an amount of Rs.50,64,416/-, whereby 159 cartoons having T-Shirts of different colors sent to buyer sema comercio geral Ida Luanda/Angola through shipment and even after clearing customs, the consignment was sent to the buyer and after reaching the said consignment at its destination, the buyer informed the complainant that 30 cartoons are less in the said container and accordingly, the complainant submitted a claim with the OP qua 30 cartoons of T-Shirts amounting to Rs.13,73,131.78/-, in the month of November, 2016, but the said insurance claim of the complainant have been lingering on by the OP on one pretext or the other and ultimately, the same was closed as ‘No Claim’ for want of correct address of the buyer/consigner or telephone number of the said consigner in order to complete the investigation qua loss of the 30 cartoons and accordingly, the instant complaint filed by the complainant.
8. We have considered the version of the OPs, wherein submitted that the complainant did not adhere the terms and conditions nor he co-operate with the Surveyor and Loss Assessor to assess the actually loss or to investigate whether the loss is virtually genuine. The main allegation of the OPs is only that the complainant miserably failed to disclose the contact number of the buyer/consigner and simply upon this ground, the OPs has filed the complaint of the complainant as ‘No Claim’. This act of the OPs itself established that the OPs are negligent and deficient in service, being reason, when the policy was obtained by the complainant, at that time, the OP has taken all the relevant documents i.e. Invoice, Custom Papers, Complete Address of the buyer/consigner as well as the name and complete address of the port authority, where-from the consignment was to be delivered to the buyer. From the aforesaid documents, the OP can easily locate the exact location and address of the buyer/consigner as well as address of the port authority. In our view, the investigation/loss assessment is to be made from the port authority, who delivered the less cartoons to the buyer/consigner. The buyer/consigner also sent an e-mail Ex.C-8 on 19.11.2016 that he received 30 cartoons less from the total cartoons i.e. 159 cartoons and similarly, the buyer/consigner again sent another email to the complainant, which is Ex.C-9. Whenever the complainant received the aforesaid e-mails, then he must further transit the same to the insurance company for settlement of the insurance claim. Even the port authority also issued a certificate, copy of the same is available on the file Ex.C-24 and Ex.C-25, whereby they informed that there is a shortage of 30 cartoons and remaining 129 cartoons were delivered. So, one thing is established from the certificate that there was a loss of 30 cartoons and if any enquiry is required to be made by the OP, then he can easily get the contact number of the port authority from internet. Apart from that one document showing particular furnished by the shipper is Ex.C-7, which admittedly was supplied to the insurance company and insurance company can easily get the complete address as well as telephone number, fax number, e-mail ID from the said documents and easily can make enquiry regarding loss, but for the best known reason, the OP did not made any efforts to conduct investigation/enquiry from its Surveyor just to lingering on the insurance claim of the complainant, which is tantamount to deficiency in service as well as negligence on the part of the OPs and moreover, it has been established on the file that 30 cartoons of T-Shirts was lost during transit and its actually value as alleged by the complainant and the same is not denied by the OPs is Rs.12,48,301.62/-, for which the complainant is entitled alongwith compensation and litigation expenses.
9. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to pay insurance claim of Rs.12,48,301.62/- to the complainant with interest @ 12% per annum from the date of filing complaint i.e. 20.07.2017, till realization and further, OPs are directed to pay compensation to the complainant, to the tune of Rs.30,000/- and litigation expenses of Rs.15,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
10. 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 Karnail Singh
26.02.2020 Member President
