ORAL ORDER
Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member
Heard Adv. S. R. Singh on behalf of the Appellant/Opponent – The New India Assurance Company Ltd. (hereinafter referred to as ‘the Insurance Company’ for the sake of brevity) and Mr. A. M. Mascarenhas, authorized representative on behalf of the Respondent/Complainant – M/s. Pancharatna Traders (hereinafter referred to as ‘the Complainant Company’ for the sake of brevity).
[2] This appeal takes an exception to an order dated 9/1/2003 passed by the South Mumbai District Consumer Disputes Redressal Forum (hereinafter referred to as ‘the Forum’ for the sake of brevity) in Consumer Complaint No.71 of 1998, M/s. Pancharatna Traders Vs. The New India Assurance Company Ltd. It is a consumer complaint pertaining to alleged deficiency in service on the part of the Insurance Company for repudiating the insurance claim regarding pilferage/short-fall of beer cans, lodged by the Complainant Company under the insurance policy known as Marine Policy (Cargo) valid for the period 13/8/1996 to 12/8/1997.
[3] It is the case of the Complainant Company that during the period August-1996 to November-1996 there is a total pilferage/shortage of 1386 dozens of beer cans of 500 ml. valued at `2,32,748/-. Insurance cover enjoyed was for transportation of these beer cans from M/s. Rajasthan Breweries Ltd., at Shahjahanpur, Rajasthan to Mumbai. Claim stood repudiated by the Insurance Company pointing out that as per the terms of the insurance policy the Complainant was bound to disclose each and every dispatch covered under the scope of the policy without any exception within a period of 24 hours (of each dispatch and issue of transport receipt) and obtain an acknowledgement/certificate of insurance from the Insurance Company’s office at Mumbai. At the outset it could be pointed out that alleged short-fall on each occasion was not notified and as such could be get verified. The repudiation is witnessed by a letter dated 15/9/1997. Feeling aggrieved thereby this consumer complaint was filed.
[4] The Forum accepting the case of the Complainant partly allowed the complaint and directed the Insurance Company to indemnify/compensate the Complainant with an amount of `1,91,792.35ps. together with interest thereon @ 9% p.a. with effect from 25/8/1997 till its realization besides costs of `3,000/-. Feeling aggrieved by the impugned order, Insurance Company has preferred this appeal.
[5] Relationship between the parties is governed by the contract of insurance for Marine Policy (Cargo) [a copy of which is produced on the record at Exhibit-A of the appeal compilation]. It is not in dispute that initial insurance cover was for an amount of `50,00,000/- which was further enhanced to an amount of `1,00,00,000/- with effect from 13/11/1996 (As per Marine Extra Endorsement). As per the conditions of the insurance policy in the event of loss or damage which may result in a claim under the Insurance, immediate notice was required to be given and thereupon Insurance Company’s agent at the port of discharge may examine the goods and issue a survey report and where the Insurance Company has no agent, the notice is to be given to Lloyed’s Agents at Mumbai. It is also specifically endorsed and attached to the insurance policy stipulating as under:-
“It is condition of this insurance that the assured is bound and will declare each and every dispatch covering under the scope of the policy without any exception within 24 hours from the time of the issue of the Railway/Lorry/Postal &/or Airway receipt in the Company’s declaration form and obtain the acknowledgement/certificate of Insurance from the Company’s office at Bombay.”
[6] It is an undisputed fact that in compliance of the above-referred condition neither every dispatch falling within the scope of insurance risk/policy was intimated and got certified from the Insurance Company and also at the port of discharge viz. Mumbai every instance of pilferage/short-fall was neither intimated to the Insurance Company nor got it surveyed and the necessary certificate upon delivery certifying the losses at the time of each delivery of the consignment were not obtained. Against this, only a consolidated claim was made at a latter point of time for the losses during the period August-1996 to November-1996 covering fourteen consignments and making insurance claim of `1,91,792.35ps. for the loss suffered after deducting salvage value of `13,058.28ps. and adding `3,800/- for the survey fees and the report. A surveyor was appointed who had filed his survey report. This survey report was objected by the Insurance Company. Referring to the above-referred clauses and the omissions on the part of the Complainant, we find that Insurance Company was justified in not accepting the survey report in the above-referred circumstances. We further find that since the Complainant Company itself violated the terms and conditions of the insurance policy to which reference is made earlier, the ultimate repudiation of the insurance claim by the Insurance Company cannot be faulted with vis-à-vis no deficiency in service on the part of the Insurance Company can be assumed or said to have been established. The Forum did not assess properly the evidence and material placed on the record before it ignoring above-referred aspects of the insurance policy and arrived at a wrong conclusion. As such, impugned order cannot be supported in the eyes of law. We hold accordingly and pass the following order:-
ORDER
Impugned order dated 09th January, 2003 passed by the South Mumbai District Consumer Disputes Redressal Forum in Consumer Complaint No.71 of 1998 is hereby set aside. Consequently, the consumer complaint stands dismissed.
In the given circumstances, the parties to bear their own costs.
Pronounced on 19th July, 2013
