District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. .434/2019.
Date of Institution:05.09.2019.
Date of Order:.08.06.2023.
M/s. Sahil Graphics through its prop. Mr. Shafiq Ahmed, Situate at Plot NO. 62, Sector -59, HSIDC Industrial Estate, Ballabgarh, District Faridabad.
…….Complainant……..
Versus
1. M/s. Oriental Insurance Company Limited through its General manager, 5B/4 B.P. IInd floor, Railway Road, NIT, Faridabad.
2. The Sr. Divisional Manager, M/s. Oriental Insurance Company Limited, 5B/4B.P. IInd floor, Railway Road.
3. M/s. Santosh Crane, At Kapleshwar, Choudhar Cuttack, Pin Code:754071, Kapaleswar Post Office,, Choudwar, Cuttack, Odisha.
4. Mr. Prammanand Behra, Operator of M/s. Santosh Crane, At Kapleshwar, Choudhar Cuttack, Pin Code – 754071, Kapaleswar Post Office, Choudwar, Cuttack, Odisha.
5. Universal Freight Cariers, Shop NO. 110, Mittal Complex, NIT-5, NIT, Faridabad.
…Opposite parties
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Azam Ali, counsel for the complainant.
Sh. Rakesh Dabaas, counsel for opposite parties Nos.1 & 2.
Opposite party No.3 & 4 given up.
Opposite party No.5 ex-parte vide order dated 22.12.2021.
ORDER:
The facts in brief of the complaint are that on 31.05.2018 the complainant purchased a Marine Policy vide Insurance Policy No. 272400/21/2019/15-Invoice SGT/286/2018-2019 dated 05.10.2018 for the period fr
om 01.06.2018 to midnight 31.05.2019 covering all type of risks covered Inland Transit (SRCC) Clauses (cover) and Institute Transit (Rail/Road) Clauses ‘A’ therein and for the same the complainant had paid Rs.31861/- as premium to the opposite parties Nos1 & 2. The total value of sum insured of Rs.3,00,00,000/-. On 05.10.2018 vide invoice No. SGT/286/18-19 the complainant transported Two Colour (Satellite model) Offset Printing Machine with other accessories through Universal Freight Carriers vide GR No. 1483 dated 05.10.2018 covered in respect of declaration No. 72 of the said Marine Cargo Open Policy vide insurance policy NO. 272400/21/2019/15 from Faridabad to M/s. Sai Laxmi Bag Making firm situate at Cuttack Tareni Vihar, Near Choudhar, Municipality Kalinga Chaka, State of Odisha, India. On 11.10.2018 the said machines were reached at destination M/s. Sai Laxmi Bag Making firm situate at Cuttak Tareni Vihar, near Choudhar, Municipality Kalinga Chaka, State of Odisha but during the process of unloading by opposite parties Nos.3 & 4 of the machines from the vehicle of opposite party No.5 in front of the premises of the consignee, the said machines were damaged and immediately on the same day without any delay the intimation was sent to opposite parties Nos.1 & 2 vide letter dated 11.10.2018 and 12.10.2018. On receiving the information a surveyor was appointed by the opposite parties Nos. 1 & 2 and after investigation/survey, the said surveyor prepared his report on 22.10.2018 of total value of loss of Rs.6,28,000/- and submitted his report to the opposite party No.1 on 22.10.2018. Thereafter the damaged machines were returned back to the premises of complainant and vide letter dated 02.11.2018 the complainant further reported to opposite parties Nos.1 & 2 regarding actual assessment of losses caused and informed about lying the said damaged machine in the premises of the complainant at Faridabad and on 15.11.2018 joint inspection report was prepared. After that the opposite party No.1 and further appointed a new surveyor for assessment actual of damaged caused to the complainant after adjusting the salvage and again after investigation, the second surveyor submitted his final report No. 18/4543 on 04.12.2018 and assessed net loss of Rs.4,95,816 to the complainant. On 6.12.2018 the complainant submitted claim of Rs.574926/- including net loss assessed by second surveyor, survey fees, freight charges of both side and crane expenses. After receiving the said claim letter, the opposite parties Nos.1 & 2 required another documents i.e. claim bill (3 copies), claim form, copy of consignment note, survey fee bill and reports and intimation letter which were submitted on 14.12.2018 by the complainant with opposite parties Nos.1 & 2. The complainant was utter shocked when the complainant received a letter dated 28.03.2019 sent by opposite party No.2 thereby repudiating the claim of the complainant and claim file of the complainant had been closed on the basis of false and fabricated grounds that “the loading and unloading was not covered in the terms and conditions of the policy. However, in spite of having the well knowledge that under the said policy all type of risks were covered under Inland Transit Clauses and Institute Transit (Rail/Road) Clauses “A” . Whereas repudiating the claim by opposite parties Nos.1 & 2 was totally illegal and unlawful and against the interest of natural justice which was not tenable in law. However, the meaning of Inland Transit Clauses Cover was in the world of insurance to protect the goods in transit for any type of damages from man made or any natural disasters, man handling or damages in loading and unloading from the source of its destination and also as per Marine Policy of opposite parties Nos.1 & 2 that “the land transit was a convenient mode of covering the risk of cargo while in transit on land and it covers loading and offloading, transportation and storage of goods.” The complainant sent legal notice dated 26.04.2019 to the opposite parties through registered post but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay the total loss amount of Rs.5,74,926/- alongwith interest @ 18% p.a. in favour of the complainant against the opposite parties.
b) pay Rs. 3,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 20,000 /-as litigation expenses.
2. Opposite parties Nos.1 & 2 put in appearance through counsel and filed written statement wherein Opposite parties Nos.1 & 2 refuted claim of the complainant and submitted that at the very threshold of the allegations contained in the complaint, from the pleading & relied upon documents by the complainant, it was established that the claim of the complainant was not tenable/payable because cause of loss was excluded under the insurance policy i.e. loss due to loading & unloading was not covered as per the terms & conditions of the insurance policy”, hence, the claim of the complainant, claiming the cost of repair of 2 offset printing machines, so damaged, as Rs.574926/-, was not payable under the insurance policy so issued in this regard. The complainant had neither any cause of action nor locus standi in lodging of the present complaint before this forum, reason being, as a matter of record. On 11.102018 the complainant had intimated the insurance company vide letter of even date regarding damage of two offset printing machines, so damaged on 11.01.2018, which were supplied under invoice No. SGT/286/2018-19 dated 05.10.2018 and at the same time requested to depute surveyor to conduct spot survey & assess the loss. Upon which the insurance company had deputed an independent IRDA licensed surveyor viz. S. Brahma, so as to ascertain/assess the loss of the damaged consignment. After conducting spot survey/inspection the said surveyor had assessed the loss as Rs.628000/- & prepared his survey report dated 22.10.2018 and same was submitted the insurance company. Thereafter on 02.11.2018 the complainant had again intimated the insurance company vide letter of even date regarding presence of said two damaged offset printing machines in his office which were returned back and at the same time requested to depute surveyor to conduct final survey & assess the net loss/assessment. Upon which the insurance company had deputed another independent IRDA licensed surveyor Viz, R.L.Aggarwal, so as to ascertain/asses the net loss of the damaged consignment. After conducting final survey/inspection the said surveyor had prepared ‘ Joint Inspection Report’ vide dated 15.11.2018 in the presence of the complainant and he had acknowledged the same by putting his signatures thereon. After concluding the final survey the said surveyor had prepared his survey report dated 04.12.2018 and the same was submitted the insurance company. Thereafter, while processing the said claim by the insurance company then it was found that the claim of the complainant was not tenable/payable because cause of loss was not covered under the insurance policy i.e “Loss due to loading & unloading was not covered as per terns & conditions of the insurance policy, hence, the claim of the complainant, claiming the cost of repair of 2offset printing machines, so damaged as Rs.574926/-, was not payable under the insurance policy so issued in this regard, Hence, the said claim was rejected in view of non coverage of the insurance policy vide “letter of intimation” dated 28.03.2019, which decision cannot be termed unconscionable at all. Opposite parties Nos.1 & 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. On 31.08.2022, counsel for the complainant has made a statement that I give up opposite Party No.3 i.e M/s. Santosh Crane At Kapleshwar, Choudhar Cuttak & opposite party No.4 i.e. Mr. Pramanand Behra operator of M/s. Santosh Crane being unnecessary parties. Accordingly, opposite parties Nos.3 & 4 are given up from the array of the opposite parties vide order dated 31.08.2022.
4. Case had been called several times since morning but none appeared on behalf of opposite party No.5 after availing several opportunities. Hence, opposite party No.5 was proceeded against ex-parte vide order 22.12.2021.
5. The parties led evidence in support of their respective versions.
6. We have heard learned counsel for the parties and have gone through the record on the file.
7. In this case the complaint was filed by the complainant against opposite parties–Oriental Insurance Company Ltd. with the prayer to: a) pay the total loss amount of Rs.5,74,926/- alongwith interest @ 18% p.a. in favour of the complainant against the opposite parties. b) pay Rs. 3,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 20,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Shafiq Ahmed,, Ex.C-1 insurance policy, Ex.C-2 – Tax invoice, Ex.C-3 – Courier receipt, Ex.C-4 – declaration JNHO. 72 dated 05.10.2018, Ex.C-5 – letter dated 10.11.2018, Ex.C-6 – letter dated 11.0.2018, Ex.C-7 – bill No.27 , Ex.C-8 – postal receipt, Ex.C-9 – letter dated 12.10.2018, Ex.C-10 – letter dated 14.10.2018, Ex.C-11A – Money Receipt, Ex.C-12 – letter dated 02.11.2018, Ex.C-13 – Joint Inspection Report, Ex.C-13A - email , Ex.C-13B – Proforma survey fee bill, Ex.C-14 – final survey report,, Ex.C-15 – receipt, Ex.C-15A – Survey fee bill Ex.C-16 Claim bill, Ex.C-17 – letter dated 14.12.2018 regarding submission of necessary documents in respect of claim, Ex.C-18 – bill, Ex.C-19 NO claim letter dated 28.03.2019, Ex.C-20 – Marine Insurance Protecting your assets while on the move, Ex.C-20A – Marine Inland Policy, Ex.C-21 & 22 – postal receipts,Ex.C-23 – legal notice, Ex.C-24 & 24A– track consignments.
On the other hand counsel for the opposite parties Nos.1 & 2 strongly agitated and opposed. As per the evidence of the opposite parties Nos.1 & 2 Ex.RW1/A – affidavit of Ramesh Kumar, Divisional Manager, M/s. Oriental Insurance Co. Ltd., Divisional Office, 5B/14, NIT, Faridabad, Ex.R-1 – insurance policy, Ex.R-2 – letter dated 11.10.2018,, Ex.R-3 – survey report dated 22.10.2018, Ex.R-4 – letter dated 0211.2018 – Final Survey report dated 4.12.2018 by R.L.Aggarwal, Ex.R-6 – Tax Invoice dated 5.10.2018 , Ex,R-7 – Joint Inspection report dated 15.11.2018, Ex.R-8 letter dated 14.12.2018 regarding submission of necessary documents in respect of claim,Ex.R-9 – claim form, Ex.R-10 – Claim bill, Ex.R-11 - NO claim letter dated 28.03.2019.
8. In this complaint, the complaint was filed by the complainant with the prayer to pay the total loss amount of Rs.5,74,926/- alongwith interest @ 18% p.a. in favour of the complainant against the opposite parties
9. During the course of arguments, counsel for the complainant has given Study Material on Marine Insurance vide Anxx. X in which Inland Transit (Rail/Road/Air) Clause – A Column No.6 Duration Transit Clause No. 6.1.1 “On completion of unloading from the carrying vehicle or other conveyance in or at the final warehouse or place of storage at the destination named in the contract of insurance, or.
6.1.2 – On completion of unloading from the carrying vehicle or other conveyance in or at any other warehouse or p
lace of storage, whether price to or at the destination named in the contract of insurance, which the Assured or their employees elect to use either for storage other than in the ordinary course of transit or for allocation or distribution, or.
On the other hand, opposite party has repudiated the claim of the complainant vide letter dated 28.03.2019 (Ex.C-19) on the ground of “ Loading/Unloading is not covered as per terms & conditions of the policy.”
10. Keeping in view of the Study Material on Marine Insurance vide Anxx. X, the Commission is of the opinion that as per Clause 6.1.1 & 6.1.2 that the loading and unloading is covered in the terms and conditions of the policy. Hence, the complaint is allowed
11. Opposite parties Nos.1 & 2 jointly & severally, are directed to pay the total loss amount of Rs.5,74,926/- alongwith intrest @ 6% .a. from the date of filing of complaint till its realization. Opposite parties Nos.1 & 2 are also directed to pay Rs.5500/- as compensation for causing mental agony & harassment alognwith Rs.5500/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 08.06.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
