Date of Filing:13.08.2009<br /> Date of Order: 24.06.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 24TH DAY OF JUNE 2010<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 1930 OF 2009 <br /> <br /> <br /> Mr.S.K. Murthy,<br /> R/at No.504, 8th Cross,<br /> 7th Block, West, <br /> Jayanagar,<br /> Bangalore-82. Complainant<br /> <br /> V/S<br /> <br /> M/s. ICICI Lombard General <br /> Insurance Company Ltd.,<br /> No.62/2, 2nd Floor, <br /> Richmond Road,<br /> Bangalore-25.<br /> Rep. by its Manager Opposite Party<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.<br /> The brief facts of the case are that, the complainant is a Civil Contractor. The Krishna Roadways transported a consignment on 30-8-2008 from Mehsana, Gujarat State to Bangalore. The consignment of goods valued at Rs.29,17,710/-. R.T. Burners with fixing plate is one of the item which was a part and parcel of the consignment. The entire consignment was insured with the opposite party covering the period from 28-8-2008 to 18-11-2008. The Krishna Roadways delivered the consignment on 22-9-2008 at the place of destination in a missing condition of R.T. Burner with fixing plate. The Krishna Roadways had issued an open delivery certificate on 26-9-2008 admitting the short delivery of the consignment. The R.T. Burner with fixing plate is valued at Rs.2,30,000/-. The complaint was given to the Police. The claim was put up with the op for Rs.2,34,600/-. The opposite party settled the claim only for Rs.50,000/-. The amount was accepted without prejudice to his rights. The legal notice issued to opposite party calling upon the opposite party for remaining amount of Rs.1,80,000/-. Hence, the complaint was direction to opposite party Rs.180,000/- with interest and compensation. <br /> 2. The opposite party has filed defense version stating that, the liability of the opposite party is limited to the terms and conditions of the policy. The opposite party appointed surveyor after inspection of the consignment report submitted to the company. The consignment was loaded without any proper packing, which is in contravention of the policy condition. The opposite party is not liable to pay any compensation. The opposite party settled the claim for Rs.50,000/- on non standard basis, even though the violation of warranty clause. Hence, the opposite party prayed to dismiss the complaint. <br /> <br /> 3. The respective parties have filed affidavit evidence and documents. I have gone through the pleadings, documents and affidavit evidence. Heard, the arguments on both the sides. <br /> 4. In the light of the arguments advanced by the learned Advocates for the respective parties, the following points arise for consideration:-<br /> <br /> <br /> <br /> <br /> 1. Whether the complainant has proved deficiency of service on the part of the opposite party?<br /> 2. Whether the repudiation of claim by the opposite party is justified?<br /> 3. Whether the complainant is entitled relief?<br /> 4. What order and relief?<br /> <br /> REASONS<br /> 5. It is an admitted case that, the complainant has taken a policy called “Marine Single Transit Inland Cover note” which was valid for 30 days. The opposite party paid Rs.50,000/- through cheque. Though the complainant has put up the claim for Rs.2,30,000/- As per the complainant case there is short delivery of consignment. R.T. burner with fixing plate was missing in the consignment. The Sri Krishna Roadways had given certificate on 26-9-2008, stating that R.T.Burnr with fixing plate was found short delivery. The complainant has produced that letter. The complainant has also produced FIR copy and also copy of complaint given to the police. In the complaint also it has been stated that R.T. Burner with fixing plate was missing in the consignment. The total value of consignment was Rs.29,17,710/- The missing item is valued at Rs.2,30,000/- to prove this fact the complainant has produced invoice of that item, the invoice was given by Apollo Earthmovers Ltd., Gujarat. The opposite party has settled the claim for Rs.50,000/- and sent a cheque to the complainant. This fact is also admitted. The complainant has accepted the cheque under protest. Therefore, acceptance of cheque for Rs.50,000/- is no bar to file the present complaint to claim balance amount. The opposite party in version submitted that it had appointed surveyor for inspection and investigation and to assess the loss and surveyor had submitted report also to the company. But, unfortunately the opposite party has not produced the surveyor report before this Fora. It appears that survey report is against the opposite party that is why the opposite party purposely withheld the said vital document. Therefore, the case put up by the complainant that R.T. Burner with fixing plate costs Rs.2,30,000/- shall have to be accepted as true and correct. The only defense taken by the opposite party is that the consignment was not properly packed and any damage or loss caused by insufficiency or unsuitability of packing the company is not liable. But, to prove this exclusion clause the opposite party has not produced any evidence either by way of affidavit or documents. The surveyor report and evidence could have been the best evidence on behalf of the opposite party, but the opposite party has failed to submit survey report or the evidence of surveyor. Therefore, the opposite party has failed to prove the defense taken by them. Under these circumstances the claim put up by the complainant shall have to be accepted and the opposite party shall have to be directed to pay Rs.1,80,000/- to the complainant. Not accepting the claim of the complainant in full amounts to deficiency of service on the part of the opposite party. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> <br /> 6. The complaint is allowed. The opposite party is directed to pay Rs.1,80,000/- to the complainant. The opposite party is directed to comply the order within 60 days from the date of this order. In the event non compliance of the order within 60 days the above amount carries interest @ 6% p.a. from the date of order till payment / realization. <br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> 8. Pronounced in the Open Forum on this 24TH DAY OF JUNE 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings<br /> <br /> MEMBER MEMBER <br /> <br />