DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.148/2012
Esson Furnishing Pvt. Ltd.
Through its Director
D- 193, Lajpat Nagar- I,
New Delhi- 110024
….Complainant
Versus
Future Generali India Insurance Co. Ltd.
Through its Director
303-310, Kailash Building,
26, Kasturba Gandhi Marg,
New Delhi- 110001
….Opposite Party
Date of Institution : 11.04.2012
Date of Order : 28.03.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U. K. Tyagi
Complainant has requested to pass an order (i) to pay the insurance claims of Rs.76,412/- and Rs.1,38,770/- alongwith interest @18% p.a. from the date of claim to date of actual payment; to pay a sum of Rs.1,00,000/- towards compensation for mental agony, harassment etc.; and to pay a sum of Rs.20,000/- as litigation charges etc.
The facts leading to the case are that the complainant has taken an open insurance policy bearing No.2011-C0076330-MIO with M/s Future Generali India Insurance Co. Ltd. (hereinafter referred as to OP) for the insured sum of Rs.1,00,00,000/-. The copy of the said policy is annexed as annexure-‘A’ (colly). It is also stated that as per terms of said insurance, the Complainant was required to pay the insurance premium as and when a consignment was booked for delivery to the Complainant and OP shall issue a certificate of Marine Insurance. Since the Complainant booked the Ist consignment to be imported, for which a certificate of Marine was issued and a premium of Rs.11,031.50/- was paid. The Complainant was to be indemnified, in case, a loss occurred in transit “From anywhere in the world any where in India”. Consignor M/s IVM Chemicals SEI, Italy dispatched a consignment of chemical to the insured on 25.05.2011. The said consignment was received on Complainant’s premises on 16.07.2011. It was found that out of total consignment, 21 buckets containing chemical were found pressed/punctured condition and contents were spilled/leaked out.
The Complainant reported the loss amounting to the tune of Rs.76,412/- to OP, and duly filled claim form was sent to OP. OP appointed M/s Cunningham Lindsey Surveyors for survey of the claim. The claim of the Complainant was rejected for the reason that loss-leakage occurred due to jerk and jolt during the transit. Copy of rejection of claim is annexed at
Annexure – A-‘3A’.
The consignor, M/s IVM Chemicals, SEI, Italy dispatched another consignment of chemicals for different types of lacquers and sealers to the Complainant on 12.10.2011. It was received in the premises of the Complainant on 01.12.2011. It was found that out of total consignments,
21 buckets were found pressed/punctured condition and contents were spilled/leaked out. The Complainant immediately reported the loss to OP with the request to take early action. The copy of claim amounting Rs.1,38,770/- is annexed at Anneurue-A/4. OP appointed M/s Puri Crawford and Associates for the survey of the claim. The OP rejected the claim of Complainant for the reason that loss occurred due to jerk and jolt during the transit and also noted that there were 17 buckets of Lacquer and Sealer in leaked/empty condition. Copy of the repudiation letter dated 14.02.2012 is exhibited at annexure-A/5. The Complainant also noted that the policy exclude the leakage of the consignment unless caused by ICC-B (Basis Cover) which cover the loss and damages. The Complainant also laid emphasis on this fact that his consignor i.e. M/s IVM Chemical uses standard drums of highest quality. Leakage of the chemical from the punctured/pressed drums is not possible in these high quality standard drums having thickness of 0.4mm in the normal jerk and jolt. It was averred that the material had been received short due to damage/injury caused to the drums by collision etc. Therefore it cannot be considered as “Leakage due to jerk and jolt”. Normal jerks and jolts would have been absorbed by these drums of high quality. Photographs of damaged drums prove that these are not result of normal Jerk and Jolts. The Complainant also exhorted the legal maxim “res ipsa loquitor” which is squarely applicable in this case.
On the other hand, the OP submitted that the loss caused to the Complainant is due to the jerk and jolt. The same is not covered under the insurance policy taken by the Complainant. The OP also took the stand that the repudiation of the claim is based entirely on the reports of 3rd party i.e. Surveyors. The insurance policy issued to the Complainant contains inter-alia the following warranties:- (a) to (e)……………………..
(b) Excluding leakage unless caused by ITC (b) Perils - meaning thereby, the normal jerk and jolts are not covered by the said policy. The OP alleged that the Complainant did not disclose the cause of loss apart from those observed by the Surveyors.
The OP also took defence on the ground that the Complainant did not submit the required documents to the Surveyors and copy of letter dated 26.07.2011 is exhibited at Ex. RW-1/3. The OP also referred the survey Report. Relevant paras of Survey Report are reproduced below for ease of reference.
- Insured had imported a consignment of lacquers and sealers.
- During survey, we have found that, 16 buckets of Lacquer “LGA” and 1 bucket of sealer “KHAI” was present in empty condition. The buckets were found dented/cracked and chemicals leaked out.
- The consignee had recovered few liters of chemicals from the above that they reported to be no usable.
- The consignment was transported to consignee premises and damage was found after opening the container. The damage had occurred due to jerk and jolt in transit resulting in leakage and not due to ITC (b) Peril.
The OP also further placed reliance on the case i.e. Ankur Surana V/s Limited India Insurance Co. Ltd. as held by Hon’ble National Commission. “The survey report supplied by the independent Surveyor is a prime evidence while adjudication the claim”.
Both the parties have filed written submissions and evidence in affidavits. Rejoinder is also on record so is the written statement. Arguments were heard and concluded.
The Commission has gone into the entire gamut of issues placed on record. The evidence so produced was also examined in detail. The spilling of the chemical in damaged drums occurred twice. It is also noticed that the OP appointed the Surveyors i.e. M/s Cunningham Lindsey and M/s Puri Crawford and Associates. Both the surveyors had arrived at the conclusion by invoking the specific clause which is not covered under the policy and the specific circumstances of the case.
After considering the facts and circumstances of the case, this Commission finds force in the stand taken by the OP by laying the emphasis on the conclusion as adduced by the independent surveyors. And further, this Commission also intends to place reliance on the ratio decidendi of the Hon’ble National Commission in the case of Ankur Surana V/s Limited India Insurance Co. Ltd. where the primacy of the evidence as contains in Survey Report by the Independent Surveyors, was held. Accordingly the claims of the Complainant are rejected. No order as to costs.
File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.
