Hon’ble Mr. Ajeya Matilal, Presiding Member

          Both parties are present through their Ld. Advocates.

       Being aggrieved by and dissatisfied with order dt. 01.08.2016 in CC/528/2016 allowing the complaint case on contest with a direction upon OP nos. 1 and 2 to pay an amount of Rs. 12,78,471/-  the complainant or to the Wipro Limited being the beneficiary of the specific Voyage Insurance Policy along with interest @ 8% p.a. from the date of the order within a month, with litigation cost the appellant / OP preferred this appeal.

          The brief fact of the case is that the complainant sent 22 cartons of electronic goods to the Government of India. The article was sent to Delhi Airport. The boxes were opened in final destination and it was found that one carton out of 22 cartoons was damaged. The matter was reported to the Insurance Company and after long persuasion the OPs approved the matter of survey and surveyor submitted a report. The surveyor engaged by the Insurance Company assessed the damage.

It appears from paragraph 10 of surveyor’s report “The above consignment, dispatched by air from Kolkata to Delhi on 10.04.2014 and after road transport at Delhi, was delivered at consignee’s NDC, Delhi site, on 12.04.2014.

On receipt and opening of the 2 no. gunny bags, out of total 22 no. cartons, 1 no. carton was found in externally damaged condition.

During our visit to site, we inspected the damaged Storage Processor Enclosure (SPE) of VNX – 8000 storage bay, as well its various components, which were stored in different cardboard cartons, for final assembly at site, kept outside the main server room at above facility, in presence of project manager of suppliers M/s Wipro.

The SPE cabinet was found damaged by way of dents / deformity, mainly at one corner, appearing to have been caused due to improper stowage, mishandling during carriage / loading / unloading etc.”

It would reveal from the surveyor’s report in continuing page 101 of the appeal

“ Recovery Rights:-

In view of the captioned policy, arranged by Insured M/s City Courier Service, a courier agency, responsible for transportation of involved consignment from Kolkata to Delhi and their giving clear discharge to M/s Asmi Express Pvt. Ltd, i.e. agency engaged for booking air transport / carrying airlines, we are of the opinion that there are no recovery rights.”

The Ld. Advocate for the respondent submitted that the City Courier accepted the liability of Wipro by consent letter. In reply, the Ld. Advocate for the appellant submitted that consent letter was given after acceptance of policy. The policy holder submitted the proposal form.

The Ld. Advocate for the respondent submitted that he suffered loss to the tune of Rs. 12,78,477/-. He also paid the cost for engaging surveyor. He drew our attention to the surveyor’s report ascertaining the damage.

In course of hearing, we perused the surveyor’s report, policy and consent letter issued by the Wipro. The Ld. Advocate for the appellant submitted that only the Insurance Company had prerogative of appointing any surveyor.

The Ld. Advocate for the appellant referred to a decision of NCDRC reported in 2017 (2) CPR 784 (NC) wherein it was observed that report of surveyor appointed by the Insurance Company should generally form basis for insurance claim.

He also referred to another decision reported in 2012 (4) CPR 48 (NC) wherein it was observed report of surveyor is an important and substantial piece of evidence.

He also referred to another decision reported in 2011 (3) CPR 103 (NC). It appears that the said decision is applicable in such a case where the items were destroyed by fire and not by the electrical short circuiting and the claim was covered under the insurance policy. It was observed in the aforesaid decision that the surveyor’s report was biased and the loss suffered by the respondent was not correctly assessed. However, this decision is not applicable to the facts and circumstances of the present case.

The Ld. Advocate for the appellant submitted that the paragraph 4 of the ordering portion of the impugned judgment giving the complainant / respondent liberty to put the decree into execution and holding the OPs liable to pay penalty of Rs. 3000/- per month to the forum below is not legal.

But we do not find any substance in such argument advanced by the appellant.

The Ld. Forum below framed 3 points for consideration viz.

1. Whether there was deficiency of services on the part of the replying OPs?

2. Whether the replying OPs have rightly repudiated the claim of the complainant?

3. Whether the complainant is entitled to get relief / reliefs as prayed for?

We find that the Forum below rightly decided the points of deficiency in services by the OPs and the other points agitated before the forum below.

So, we do not find any illegality in the impugned judgment. No interference is required.

Accordingly, A/1014/2016 is dismissed on contest. Impugned order is upheld. There shall be no order as to the costs.

          Order of stay, if there is any, stands vacated. Let a copy of this order be sent to the Ld. Forum below for information and necessary action.