Ex- PA R T E O R D E R
PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1)This is complaint regarding the deficiency in service on the part of Opposite Party as Opposite Party has repudiated the insurance claim of the Complainant without giving any plausible reason.
2) The facts of this complaint as stated by Complainant are that the Complainant has obtained a Marine Transit and Errection Insurance Policy bearing No.2002/000-4666, dtd.04/03/2004, (2) 2002/000-5010, dtd.24/03/2004, (3) Errection Policy 5006/0000506, dtd.08/05/04 (4) 5006/0000502, dtd.08/05/04. The Complainant had imported 40 second hand Sulzer Looms (cloth weaving machines) from Nigeria on 22/03/04 by ship (32 Machines in Complainant’s name and 8 machines in the name of M/s. Rapier Machinery Mfg. Co. (India) Pvt. Ltd. The consignment was transported by ship from Nigeria to Nhava Sheva and form Nhava Sheva to Silvasa by Road.
3) It is further contended by the Complainant that, before dispatch of above machines, they are properly checked by its engineers. They were in working condition.
4) The Complainant has further stated that they took the delivery of the above said 40 machines at JNPT Nhava Sheva and took the said machinery to its factory at Silvasa by trucks.
5) The Complainant has further submitted that, when the machines were placed on their foundations, the Complainant found that many parts of the machines were broken/damaged.
6) The Complainant stated that the Opposite Party was immediately informed vide its letter dtd.19/05/04. [The Complainant has not mentioned as to when the machinery arrived at Silvasa and when it was placed on their foundation]. The Opposite Party appointed surveyor M/s. Cunningham Lindsay International Pvt. Ltd. who surveyed the loss on the spot. Thereafter the Opposite Party rejected the claim of the Complainant vide letter of the Opposite Party dtd.12/04/05. The Opposite Party has not mentioned the dates on which the surveyor inspected the loss. It is alleged by the Complainant that since there were no reasonable grounds for the rejection of the claim, the Complainant appointed another surveyor who checked the machines/broken parts and assessed the loss for Rs.8,53,189/- vide its report dtd.01/07/05. The Complainant sent this report to the Opposite Party for settlement of its claim. However, there is no response from the Opposite Party. Therefore, the Complainant has requested for the relief that the Opposite Party be directed to reimburse the amount of Rs.8,53,189/- towards its insurance claim.
7) The Complainant has attached the xerox copies of the following documents in support of its complaint. Letter dtd.02/02/06, 22/08/05, 08/07/05, 12/05/05 from the Complainant to Opposite Party, Letter dtd.12/04/05 from the Opposite Party, Survey report of Surveyor Uni Lab (India) dtd.Nil, Policies, P & O, Invoice, Letter dtd.24/06/05, Certificate dtd.18/03/04, Certificate from Kosmas B. Katrakis M-Sc- stating no date of inspection.
8) The complaint was admitted and notice was served on the Opposite Party. Inspite of service of the notice, the Opposite Party did not appear before this Forum. Hence, an ex-parte order was passed against the Opposite Party and matter was proceeded ex-parte. The Complainant filed its affidavit of evidence and a written argument wherein it reiterated the facts mentioned in the complaint. After hearing the Ld.Advocate for the Complainant and perusing the papers submitted by the Complainant the Forum passed its order vide SMF/MUM/267/2006, dtd.24/03/08 and this complaint was allowed directing the Opposite Party to reimburse an amount of Rs.8,53,189/- to the Complainant towards his insurance claim alongwith interest of 9% p.a. from 04/05/06 till the realization of this amount. Opposite Party was also directed to pay a compensation of Rs.10,000/- causing mental agony.
9) The Opposite Party preferred an appeal against the above said order before the Hon’ble State Commission vide First Appeal No.923/2008. The Hon’ble State Commission quashed the order of this Forum and remanded the complaint back for giving opportunity to the appellant (The Original Opposite Party) to file written statement and documents and to contest the case. The operative order of the Hon’ble State Commission is as follows –
i) Appeal allowed. The impugned order passed by the Dist. Consumer Forum in Consumer Complaint No.267/07 is quashed and set aside.
ii) Complaint is remitted back to the Dist. Consumer Forum who is directed to permit Insurance Co. to file written Statement, affidavits and documents and then to dispose of the consumer complaint on merits afresh after giving due opportunity to both parties to present their case.
iii) Both the parties are directed to appear before the Forum below on 17/02/2010 in South Mumbai Dist. Consumer Forum on which date the Appellant/Insurance Co. shall file written statement, affidavits and documents if any.
iv) Appeal is allowed subject to cost of Rs.5,000/- payable by Appellant/Insurance Co. to the Respondent/Org. Complainant on the 1st date of appearance in the Dist. Consumer Forum.
v) The amount deposited by the Appellant/Insurance Co. while filing appeal be given back to it.
vi) Copies of the order be furnished to the parties free of cost.
10) Accordingly the case was again kept for hearing before this Forum on 17/02/2010. The Complainant appeared before this Forum through its advocate. However, the Opposite Party remained absent. On 17/03/2010 and 12/05/2010, the Opposite Party failed to file its written statement. Hence, again an ex-parte order was passed against the Opposite Party vide Roznama dtd.12/05/2010.
11) We heard the Ld.Advocate for the Complainant and perused the papers submitted by it and our findings are as follows.
12) The Complainant has obtained the necessary insurance policies to cover the losses during transit from Nigeria to Silvasa (India). The Complainant has imported 40 secondhand Sulzer 100 ms (weaving machines) from Nigeria. The consignment of these machines was transported by ships and trucks. (From Nigeria to JNPT–Mumbai by sea and from JNPT Nhava Sheva to Dadra Silvasa by Road, (trucks). There are two types of insurance policies obtained by the Complainant i.e. one is Marine Import Insurance Policy and another is Erection Policy appropriately covering the loss due to damage to machinery during the transit from Nigeria to Silvasa.
13) As per the papers, the machinery was delivered to the Complainant at Silvasa on 06/05/04, 12/05/04 and 13/05/04. Though the consignment arrived on the dates stated above the actual unloading was done after all the containers are received. However, the Complainant has not mentioned exact time or date on which the Complainant knew that the machines were damaged during the transit. From the report of the surveyor of the Opposite Party it appears that the Complainant has requested for appointment of surveyor on 19/05/04 i.e. the Complainant has informed the Opposite Party regarding the damage after 6 days of the receipt of the all consignment. Immediately, the Opposite Party has appointed a Surveyor Cunningham Lindsey who visited the place and inspected the machinery. The surveyor in it letter dtd.20/05/04 has confirmed that he inspected the arrived machinery on 19/05/04 and found superficial damage to various Sulzer machines. The said surveyor has relied on the say of the representative of the Complainant. Actually it was his duty to assess the loss immediately on 19/05/04 only and to give his report to the Opposite Party for settling the claim. Further he has asked some 22 documents to the Complainant. Actually it is the surveyor who should inspect the machinery and give his report on the parts damaged. But here in this case the surveyor has failed to do his duty. As per the Insurance Act, it is the Opposite Party who should appoint a licensed/authorized surveyor and the surveyor should give his report to the Opposite Party and Opposite Party after duly considering this report and after application of his mind, settle the claim of the insured.
14) Thereafter (after preliminary inspection by the surveyor) the Complainant has given the certificate of inspection dtd.18/03/04, inspection done by Mr. Farokh Homi Engineer and the report of Kosmas B. Katrakis and they have certified that the machines were in working condition. This has established that, the machinery was in working condition before it was loaded in the ship at Nigeria.
15) We carefully went through the report of the Surveyor appointed by the Opposite Party dtd.07/04/2005. The surveyor has specifically mentioned that the “various parts of the subject machineries got damaged”.
It was also clarified by the surveyor that the Complainant’s men who unloaded the machinery from the container, had no knowledge about the damage at the time of taking delivery. But subsequently after carrying out the machine wise checking, they found damages to various parts of the machines. The damage was reported to the higher authorities & then intimation was given to the Opposite Party. Thereafter the surveyor received a final call from the Opposite Party and the Surveyor Cunningham Lindsey carried out his final survey. In this report he has specifically again confirmed the damages caused to the machineries.
16) The Opposite Party has appointed the surveyor on 19/05/04. The Surveyor has prepared his detailed survey report on 07/04/05. On receipt of the surveyor’s report the Opposite Party has rejected the claim on the following grounds -
i) The subject machinery was received by the Complainant on 11/05/04 & 13/05/04. The Complainant has applied for survey on 19/05/04. When the surveyors visited the site, they found that the machinery was already destuffed (unloaded) from the containers and shifted in to the premises and the containers were released. Surveyors were unable to inspect the external and internal condition of the containers and the condition of the packing materials used for the consignment.
ii) It is further stated by the Opposite Party in its letter of repudiation that, the L.R. copy was not endorsed for any damages at the time of taking the delivery as required by important notice clauses” of the policy which states that, “In no circumstances except under written protest to give clean receipts when goods are doubtful condition” and “that the notice in writing is to be given within 3 days of delivery to the carriers or other bailers if the loss or damage was not apparent at the time of taking delivery. Therefore, it proves that the said machines were delivered in a sound condition”. In this connection the Complainant has explained to the Opposite Party in its letter dtd.12/05/05 that, the factory persons did not notice any damage to the consignment at the time unloading and therefore, L.R. copies were not endorsed. The Opposite Party has itself mentioned in the rejection letter that “It proves that the said machines were delivered in a sound condition.” Though the machines were delivered in sound condition, the report of the surveyor appointed by the Complainant has specifically stated in its cause column that “Damage to the parts of Sulzer machine was caused during unloading and erection operation. This surveyor has visited the site on 19/04/2004 and thereafter at intervals in the course of erection. This surveyor has made the list of the parts damaged during the erection.
iii) Therefore, it appears that the Opposite Party has considered only the import policy which covers the machinery during the transit. But the Complainant has taken the erection policy which covers the loss during erection storage & of the machinery. (Erection all Risks insurance policy No.5006/0000506, the sum insured is 1,95,00,000/-. Therefore, the loss during errection and storage is also covered under these policies.
17) Thirdly the Opposite Party has given the reason for rejection that, the surveyor had asked for pre-dispatch survey report to confirm whether the machines were dispatched in sound condition. In this connection the Complainant has already furnished the letters of the concerned engineers certifying that the machines were in working condition before loading on the ship. In addition to this, there is no such provision or any term or condition which stipulates in the policy that the pre-dispatch survey is necessary and further more, in light of the fact as stated in a previous para, as the parts were damaged during erection of machinery at the site at Silvasa, the question of damage before loading in Nigeria does not arise.
18) Therefore, the reasons given by the Opposite Party for repudiating the claim were not plausible and Opposite Party cannot repudiate the claim on the above said grounds mentioned in its letter dtd.12/04/05 as stated above.
19) Therefore, taking into consideration the above observations and survey report of the M/s. Uni-Lab (India) it is just and proper that claim of Rs.8,53,189/- which was recommend by the said surveyor is reasonable and Opposite Party should allow this claim of the Complainant in order to indemnify the loss sustained by the Complainant at the time of erection of the machinery at village Dadra, Silvasa.
In view of the prayer of the Complainant, we pass the following order -
O R D E R
i. Complaint No.267/2006 is allowed.
ii. Opposite Party is directed to pay an amount of Rs.8,53,189/- (Rs.Eight Lac Fifty Three Thousand One Hundred
Eighty Nine Only) to the Complainant towards the insurance claim of the Complainant.
iii.Opposite Party is directed to comply with the above order within 30 days from the receipt of this order.
iv.Certified copies of this order be furnished to the parties free of cost.
