District Consumer Disputes Redressal Forum, Faridabad.
Consumer Complaint No.115/2018.
Date of Institution: .16.3.2018.
Date of Order: 31.10.2022.
M/s. MKS Pharma Limited, 633, SRS Tower, 14/5, Mathura Road, Faridabad – 121003 through its Director Sanjay Gupta.
…….Complainant……..
Versus
1. M/s. United India Insurance Co. Ltd., Regional Office No. 2, Scope Minar, Core-11092, Laxmi Nagar, Delhi – 110 092 through its Senior Divisional Manager.
2. M/s. United India Insurance Co.Ltd., # 21, SOC-106, Sector-16, Faridabad, Haryana- 121001 through its Senior Manager.
3. M/s. Fright Carrier (India) Pvt. Ltd., 47A Zakaria Street, Kolkata through its Director (service effected through Faridabad branch).
…Opposite parties.
Complaint under section-12 of
Consumer Protection Act, 1986.
BEFORE: Amit Arora……………..President
Mukesh Sharma,.………Member.
Indira Bhadana…………Member.
PRESENT: Sh. Rakesh Kumar Taneja, counsel for the complainant.
Sh. D.K.Gosain, counsel for opposite parties Nos.1 & 2.
Opposite party No.3 ex-parte vide order dated 10.2.2020.
ORDER:
The facts in brief of the complaint are that the complainant company was a consumer who had bought a Marine policy No. 222100/21/14/02/00000010 valid from 13.4.2014 to 12.4.2015 from opposite party No.2. The complainant had sent the goods covered under the policy mentioned above through M/s. M.S.Freight Carriers (India) Ltd. from Faridabad to Guwahati vide invoice No. B/0985 dated 08.07.2014 amounting to Rs.15,30,088/- by truck No. UP 57 Y 4323. When the said truck reached near Khat Khati 7 Kilometer from District Dharbanga on 12.7.2014 suddenly met with an accident due to jam of steering and the loaded goods medicine had been totally destroyed as the truck had slipped down in to 15 feet dip ditch. The incident was firstly informed to the local police by the driver of the said truck on 11.07.2014.. Opposite parties were informed by the transporter on 15.07.2014 whereupon opposite parties appointed a surveyor who obtained the photograph from the spot of accident analyze the damage of the goods and consequently tendered his detail report dated 24.08.2014 and distraction certificate dated 28.08.2014 vide which the surveyor assessed/analyzed/surveyed and submitted that the stock of consignment Sr. No. C 6000 dated 08.7.2014 and invoice No. B/0985 had been properly destroyed by the consignee in his presence on 27.07.2014, the photograph were also obtained by surveyor. The complainant submitted claim against policy no. mentioned above
alongwith the all necessary documents without any delay with opposite party No.1 but the opposite party No.1 vide its letter dated 18.12.2014 repudiated the claim of complainant without any justifiable reason unlawfully and without any valid reason thereof. The complainant himself as well as his insurance broker communicated to opposite party No.1 several time but opposite party No.1 always tried to linger on the matter by one pretext or the another. The complainant contacted him through his insurance broker and sent an email dated 10.5.2016 as well as letter dated 10.5.2016. The complainant sent legal notice dated 06.10.2017 to the opposite parties 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 an amount of Rs.7,05,047/- alongwith interest for the delayed period.
b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 22,000 /-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 the complaint of the complainant was time barred. After receipt of the damage claim, in respect of the consignment the same was got processed and investigated and loss assessed by appointing independent surveyor, loss assessor and valuer, who assessed the loss to the extent of Rs.6,87,880/- less policy excess 0.5% of invoice value, however, the same was not found admissible and was repudiated vide repudiation letter dated 18.12.2014 . As per written statement given by Jasbir Singh – representative of transporter to police that the accident of vehicle No. UP57-T-4234 had not caused any loss of property, injury/death. After receipt of repudiation letter dated 18.12.2014, complainant made representation vide letter dated 10.01.2015 to Grievance Department of opposite party and the opposite party re-opened the claim file of the complainant and sought clarification from insured vide letter dated 28.07.2015. However, the same was not received by the opposite party , therefore, claim was repudiated due to non submission of claim documents videa letter dated 25.09.2014. From the perusal of complaint and in view of the investigation, it had been observed that the driver of truck NO. UP57-T-4234 of M/s. Freight Carrier (I) Private Limited was negligent while carrying the consignment in question and the loss if any to the consignment was caused due to his negligence. Further it was pertinent to mention that the transporter M/s. M.S.Freight (India) Private Limited, while carrying the consignment of the complainant had loaded another consignment comprising of lubricant oil in small plastic jars and after the accident, the oil spilled from the affected jars which compounded the loss, hence the opposite party was not liable to compensate the loss to the complainant. Opposite parties Nos.1 & 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Registered notice sent to opposite party No.3 on dated 31.01.2020 not received back served or unserved. Tracking details also filed in which it had been mentioned that item delivery confirmed. Case called several times since morning. But none appeared on behalf of opposite party No.3. More than one month had elapsed. Therefore, Opposite Party No.3 was proceeded against ex-parte vide order dated 10.02.2020.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties – United India & Ors. with the prayer to a) pay an amount of Rs.7,05,047/- alongwith interest for the delayed period. b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment. c) pay Rs. 22,000 /-as litigation expenses.
As per evidence led by the complainant, Ex.C-1 (colly) – Memorandum and Articles of Association of MKS Pharma Limited, Ex.C-1 – Resolution letter, Ex.C-3 Marin Claim Form, Ex./C-4 Retail Invoice/Bill dated 30.6.2014, Ex.C-5 written by the truck driver to the Local Police, Dharbanga, Ex.C-6(Colly) letter dated 24.7.2014 by the Divisional Manager to Sri D.Chanda, Surveyor, Guwahati alongwith Marine Cargo Survey report, Physical findings and assessment of loss and Destruction certificate, Ex.C-7 letter dated 18.12.2014 written by Sr. Div. Manager to M/s. MKS Pharma Ltd. regarding transit loss of invoice No. B/0985 at Guwhati, Ex.C-8 the complainant through his insurance broker sent an email dated 10.05.2016 as well as letter dated 10.05.2016 to opposite party No.2,Ex.C-9 legal notice dated 06.10.2017, Ex.C-11(colly) – photographs of truck bearing No. BR-01-GC 9079, Ex.C-12 written by MKS Pharma Ltd to the Divisional Manager.
7. As per the evidence led by the opposite parties, Ex.R1 – Marine Cargo Open Policy valid from 13.4.2014 to 12.04.2015, Ex.R2 repudiation letter dated 18.12.2014. Ex/R3 letter written by the opposite parties to the complainant company regarding providing the details of own damage claim of the truck in question from the transporters, Ex.R4 repudiation letter dated 25.09.2015 due to non submission of claim documents, Ex.R-5 & R-6 – postal receipts, Ex.R-7 & R-8 – photocopies of Desptach register.
8. in this complaint, the complainjt was filed by the complainant with the prayer to pay an amount of Rs.7,05,047/- alongwith interest for the delayed period.
9. As per repudiation letter dated 25.09.2015 vide Ex.R4, the claim of the complainant was closed by the opposite parties due to non submission of the documents. It is evident from letter dated 11.07.2014 vide Ex.C-5 that an intimation was given to the police station. The matter was reported to the police and the surveyor namely Sri D.Chanda was deputed by the opposite parties vide Ex.C-6 and the report is submitted by the surveyor itself. As per Ex.C-9 a legal notice was sent to the opposite parties on 06.10.2017 through registered posts vide Ex.C-10 (colly).
10. After going through the evidence of the opposite parties, there is no reply placed on record of this legal notice and as per the evidence led by the opposite parties the claim was closed by the opposite parties on the ground of non submission of documents. When the surveyor is deputed by the opposite parties and his report is placed on the record, the question of closing the claim of the complainant does not arise. This shwos the deficiency in service on the part of the opposite parties.
Counsel for the complainant has placed on reliance the following authorities:
(i) Sant Partap Singh @ Surbrinder Singh Vs. Hari Singh & Ors
passed by Hon’ble Punjab & Haryana High Court 2016(3) Civil Court Cases 238 (P&H).
(ii) M/s. Satyam Steel Vs. Smt. Sarla and Another passed by the Hon’ble Punjab and Haryana High Court in Civil Revision No. 6190 of 2016 D/d 20.09.2016.
(iii) Neeraj Katyal & Ors. Vs. State & Ors. Passed by the Hon’ble Delhi Court in 2016(3) Civil Court Cases 328(Delhi)
(iv) Darshan Singh Versus Kashmir Singh & Ors. Passed by the Hon’ble Punjab &Haryana High Court in 2016(3) Civil Court Cases 548.
v) National Insurance Company Limited Vs. Sandeep and Others passed by the Hon’ble Punjab and Haryana High Court in Civil Writ Petition No. 26178 of 2016 decided on 17.12.2016.
vi) National Insurance Co. Ltd. Versus Hindustan Safety Glass Works Ltd. Passed by the Hon’ble Supreme Court of India in Civil Appeal No. 3883 of 2007 decided on 07.04.2017.
Ratio of these authorities are applicable to the facts of the present case.
11. Keeping in view of the above, the Commission is of the opinion that the complaint is allowed. Opposite parties Nos. 1 & 2 are directed to process the claim of the complainant, subject to submission of the relevant documents within 30 days from the date of receipt of copy of order. There are no order as to costs. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 31.10.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
