DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.388/2016
M/s Cardiomed India Ltd.
Through its Authorized Representative
108, 28-29, Link Road, Feroze Gandhi Marg,
Lajpat Nagar- III, New Delhi- 110024
….Complainant
Versus
IFFCO-TOKIO General Ins. Co. Ltd.
Through its Director
IFFCO Sadan, C-1, District Centre,
Saket, New Delhi- 110017
….Opposite Party
Date of Institution : 23.11.2016
Date of Order : 09.12.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
ORDER
President: Ms. Monika A Srivastava
- The complainant in the present complaint has sought for directions to the OPs to pay a sum of Rs.7,02,000/- towards repair charges incurred by the complainant along with 18% interest from the date of filing insurance claim i.e. 30.07.2015. The complainant has also prayed for a compensation of Rs.2,000/- for mental and physical harassment suffered by the complainant on account of the callous and arbitrary attitude of the OP and litigation cost of Rs.1,10,000/-.
- It is the case of the complainant that he had taken insurance against the shipment imported from China on 25.07.2015. The shipment contained 26 racing rowing boats generally known as single scull, double scull and quadruple sculls against order from MP Sports and Youth Welfare.
- It is stated by the complainant that initially the shipment was insured for transit from China to Bhopal. The shipment was received in Delhi and for further transit from Delhi to Bhopal. Another insurance policy marine claim number 21138846 against specific voyage policy number 21959535 with terms of cover IRR (A) SRCC, operative from 25.07.2015 covering domestic transit of cargo was taken by the complainant from the OP. The insured value of the said policy was Rs.8,704,520/- upon which the complainant had paid the premium of Rs.11,909/-.
- The shipment came from China to Delhi in 2 carriages of 40 containers each of which one carriage was only partially loaded, thereafter the complainant availed the services of transporter namely Pooja Road Carriers and was provided with a carrier of much bigger size than the carriers which came from China.
- It is further stated that the complainant prepared a particular stack to be fixed on iron frame and packed the consignment in proper manner and fix the same on the carrier thereby making much more space for carriage of shipment. Accordingly, all the imported boats work properly loaded with the said carrier and fixed with stack on iron frame specifically designed for the same so that it would not move during transit. It is further stated by the complainant that the consignment was properly done without opening its packaging and the boats were placed in the carriage as it were in the frame itself.
- It is stated by the complainant that while transporting the said goods due care and caution was taken in terms of packaging and loading the goods in truck /carriage.
- It is further stated that the complainant took additional precautions by equipping the carriage with special stack made on iron frame which was fitted and welded at truck chassis. The boats/goods were placed and affixed to the iron frame ensuring that their movement is restricted during the transit from Delhi to Bhopal.
- It is further stated by the complainant that the shipment reached Bhopal on 30.07.2015 and he was informed that the shipment is found damaged, accordingly, the complainant informed the OP about the damage and claimed insurance. Copy of the letter from the carriers to the complainant informing about the damage of shipment is attached as Annexure CW 4 and copy of claim raised by the complainant to the OP is attached as Annexure CW 5.
- The OP appointed a surveyor and a survey was conducted and it was informed by the JC Gupta surveyor on 17.08.2015 that as no pre inspection of the shipment was done hence, the transit cover will be restricted to ITC ‘B only.
- It is stated by the complainant that being the service provider and insurer, it is the duty of the OP to carry out the process of pre inspection and in fact the complainant himself in good faith had sent the photographs to the OP of the goods loaded in the carriage by email dated 17.09.2015.
- It is stated by the complainant that he fulfilled all the requirements and provided all the requisite documents to the OP vide email dated 18.08.2015 which is annexed as Annexure CW/ 8.
- It is stated by the complainant he had various communication with the OP’s agent and surveyor and was enquired in detail about the shipment how it was loaded in one truck. It is further stated that the complainant informed the surveyor telephonically that out of 26 boats 5 can be used and 3 boats can be repaired and the estimate boat repair charges would amount to Rs.60,000/-. Copy of bill data 11.09.2015 from Chauhan sports indicating the estimate cost of repairing of boats is attached as Annexure CW 9.
- Stated by the complainant that he also cooperated with the OP when an independent survey was to be conducted by the OP at ICD in relation to the transportation of shipment and then he received a letter from OP dated 31.12.2015 where in the OP denied complainant’s claim on the ground that the loss suffered by the complainant falls within the exclusion clause 2.3 of the policy which states as under:-
‘Loss/damage or expense caused by insufficiency or unsuitability of packing or preparation of the subject matter insured (for the purpose of this clause 2.3 ‘packing’ shall be deemed to include storage in container or lift van but only when such storage is carried out prior to attachment of this insurance or by the assured or their servants). The letter dated 31.12.2015 is attached as Annexure CW 10.’
- It is further stated by the complainant that since the importer of the said goods was an urgent need of the same and it was not possible for the complainant to arrange new boats or get it imported from China therefore he engaged M/s John Fiber Works firm export for repairs and rectification of such kind of boats and after due rectification, delivered the boats on 26.08.2016 to the importer . It is further stated that for this rectification work the complainant has paid Rs. 7,02,000/- to M/s John Fiber Works and the invoice is annexed as Annexure CW 12.
- Per Contra, the OP in their reply have stated that the complaint ought be dismissed outrightly as there is no deficiency in service on the part of the OP. The OP has not denied providing insurance or the sum of insurance or the appointment of the surveyors and loss assessors.
- It is stated by the OP that reportedly no pre dispatch inspection was arranged by the insured at ICD Tuqhlakabad, Delhi or at the time of transfer at their godown at Sriniwaspuri, New Delhi.
- It is also stated that the surveyor in its report have stated that the packing inside the 2 original container was not known to them however, the packing inside delivery vehicle appear to be sign of bad stowage as each boat was not properly fixed to restrict the movement during transit which resulted in damage to the consignment during transit from New Delhi to Bhopal. The report of the surveyor is annexed as Annexure R 2.
- It is stated by the OP that the rowing boats transported under the above insurance policy were fragile in nature and were originally imported from China to New Delhi in two 40 containers And the complainants official's had stuffed the boats from the 2 containers in to a single container truck and transported it to Bhopal.
- The surveyors have reported that out of the 26 boats that were dispatched 21 boats have suffered extensive damages and are beyond repair. It is stated that insufficient and unsuitable packing have resulted in damage to the cargo.
- The OP has also taken a preliminary objection that the complainant is a corporate entity in the nature of transaction between the parties is also commercial and therefore it ought not to be entertained by the consumer forum.
- The OP has also stated that the complainant did not inform the OP of the specific date of packaging and transferring the goods so that pre inspection could have been conducted.
- In its rejoinder, the complainant has stated that it is the duty of the insurer to inspect and verify the condition of goods before he is issuing insurance policy and once the insurance policy has been issued, the OP cannot wriggle out from their contractual liability arising from the said insurance policy.
- The complainant has also stated that the OP has not supplied the survey report to the complainant on which they have relied and denied the claim.
- It is reiterated that though the shipment came from China to Delhi in 2 carriages of 40 containers each out of which one carriage was only partially loaded however, the carrier to Bhopal provided them with a much bigger size carrier than the one which came from China. It is reiterated that the complainant prepared a particular stack to be fixed on iron frame and packed the consignment in proper manner and fixed the same on the carrier thereby making much more space for carriage of shipment.
- The complainant has placed reliance on the judgement passed by the Hon’ble NCDRC in Harsolia Motors vs National Insurance Company Ltd where it was held that policy is only for indemnification and actual loss and not intended to generate profit.
- Both the parties have filed their respective evidence affidavits as well as written arguments. Oral arguments were also heard. This Commission has gone through the entire material on record and is of the view that the report of the surveyor has to be given due credence. The surveyor in its report has stated “out of the 26 boats that were dispatched 21 boats have suffered extensive damages and are beyond repair, insufficient and unsuitable packing have resulted in damage to the cargo”.
27. It is also seen from the Annexure CW/3 i.e pictures of the packed boats arrived from China and the picture of the packed boats while sent from Delhi to Bhopal, filed on record that there is a vast difference between the two. This Commission is of the view that the complainant has not taken due care and caution while sending the said boats from Delhi to Bhopal and the claim of the complaint has been rightly repudiated by the OP. Therefore, the complaint is dismissed being bereft of any merits.
File be consigned to the record room. Copy of the order be provided to the parties as per rules.
