Delhi

North

CC/25/2019

M/S. J B TRADERS - Complainant(s)

Versus

M/S. UNITED INDIA INSURANCE CO. LTD. - Opp.Party(s)

VED V TRIPATHI & VIDISHA KANORIA

03 Aug 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

CC No.25/2019

In the matter of

(As per Amended Memo of Parties)

M/s J B Traders    

Through proprietor Sh. Ankit Aggarwal

S/o Late Jai Bhagwan Aggarwal

R/o B-506, Shri Sai Baba Apartment, Plot No.4

Sector-9, Rohini, North Rohini Zone MCD

NCT of Delhi-110085                                                                                                           …Complainant

Versus

M/s United India Insurance Co. ltd.

Kanchenjunga building, 18, 8^th floor,

Barakhamba Road,

New Delhi-110001                                                                                                               …Opposite Party

                                                    

ORDER
03/08/2023

Ms.Harpreet Kaur Charya, Member

The present complaint has been filed in the name of M/s JB Traders, by  Sh. Jai Bhagwan Aggarwal, sole proprietor, against M/s United India Insurance Co. Ltd. as OP. During the pendency of the complaint, Sh. Jai Bhagwan Aggarwal expired. Thereafter, his son, Sh. Ankit Aggarwal was substituted as the sole proprietor/ Authorized Representative of the complainant firm.

1. Facts in brief are that the complainant, being the sole proprietor of the M/s JB Traders, purchases pulses from various other traders from Delhi and nearby areas and further sells it to the traders in different parts of country.
2. On 14/06/2016, the complainant obtained a purchase order of                     Rs.18,14,835/- for delivery of different varieties of Pulses/Dal from Shri Bhawani Enterprises (consignee) Naya Bazar, Siliguri, West Bengal for which an invoice for Rs.18,58,695/- was raised.
3. As per the complaint, the consignment was insured under Marine Cargo Open policy vide policy number 1112022115P107714985 for a period 05/10/2015 to 04/10/2016. The goods were booked to be transported through M/S GTC Freight Carrier, having their office at 59, IInd Floor, Transportation Centre, Azadpur, Delhi-110033 vide GR No. 3378 on 14/06/2016 for a freight of       Rs. 67,460/-. The consignment was loaded on truck bearing registration number HR55Q5508.
4. On 22/06/2016, when the consignment reached its destination, it was found while unloading that most of the packages had stained due to rainwater. Immediately, claim was lodged with OP and Mr. Nimai Saha, surveyor bearing license number SLA-21904 was appointed to assess the loss.
5. It has been stated by the complainant that the Surveyor assessed the losses over a period of six days i.e. on 22/06/2016, 23/06/2016, 26/06/2016, 30/06/2016, 02/07/2016 and 03/07/2016 at the consignee’s godown situated at Paribahan Nagar, Matigara, West Bengal. As per the surveyor report, the packages got wet due to heavy rain during transit due to negligence of the truck driver. The surveyor assessed a loss as follows:

a.	23 bags of Arhar Dal	Rs.58,843.92/-
b.	352 bags of Moong Dal	Rs.5,80,192.56/-.
	TOTAL	Rs.6,39,036.48

 

6. It has been alleged that all the relevant documents for processing the claim had been supplied to the surveyor. However, on 04/04/2017 the claim was repudiated by OP on the ground of violation of "Declaration Clause" under policy terms and conditions.
7. It has been stated by the Complainant that the policy was obtained through    Mr. Dinesh Goel, the agent of OP and the declaration regarding the consignment was also being sent to Mr. Dinesh Goel regularly as he was Authorized Representative of OP.
8. The complainant has further stated that as the genuine claim was rejected, the rejection of claim caused great economical loss to the complainant, thus resulting in mental agony and harassment. Feeling aggrieved, the complainant has alleged deficiency in service with relief for direction to OP to pay Rs 6,39,036.48( Rupees Six lakh Thirty Nine thousand  thirty six and forty eight paisa only), along with the interest at the rate 18% per annum from the date of institution of the claim till payment; Rs. 50,000/- towards cost of litigation and Rs. 1,00,000/- on account of compensation for mental agony and pain.
9. Complainant has annexed the policy schedule for the period 05/10/2015 to 04/10/2016 as Annexure-1; Marine Survey Report dated 26/04/2016 as Annexure-2; Repudiation Intimation dated 04/04/2017 as Annexure-3; statutory notice as required under The Carrier Act, 1865 dated 11/02/2017, certificate of facts dated 25/11/2016 issued by the Transporter are Annexure-4 and Annexure-5 respectively and Registration Certificate of the complaint is Annexure-6.
10.  Notice of the present complaint was served to OP.
11. Written Statement was filed by OP, upon service of the notice. They have taken several objections in their defense such as: the complainant is not a consumer, the complaint involved complicated question of facts, which could not be decided in summary proceedings; parties to the contract are bound by terms and conditions of the contract.
12.  It has been submitted that the complainant had failed to make declaration as required under "Declaration Clause" of Marine Cargo Policy, which clearly provided that insured shall intimate the insurance company full particulars of every dispatch made in chronological order assigning declaration number for each dispatch. The declaration statement should be intimated to the insurance company preferably during the first week of the following fortnight/month, which has not been done in the present case. Thus, it was violation of Terms and Conditions of the policy terms.
13. Another defense taken by OP is on the ground that, there is also a breach of clause 4 "Liability of Carrier, bailee or other third parties” which stipulates “insured is required to give notice in writing to the carrier or other bailees within the three days of delivery if loss or damage was not apparent at the time of not taking delivery.” They have stated that the loss or damage was apparent upon receipt of the delivery by the complainant and his failure to send the notice to the carrier/bailee amounted to breach of condition.
14. The complainant failed to send the notice to carrier/bailee as stipulated in Section 10, of The Carrier Act. The said notice was sent on 11/02/2017, after a delay of 8 months. The repudiation of the claim vide letter 03/04/2017 and intimation for repudiation on 04/04/2017 through email has been admitted. It was further submitted that as per surveyor, the loss was due to the negligence of the driver of the carrier.
15.  It was denied that declaration was either sent to the OP or any of its agents. Rest of the contents of the complaint has been denied with prayer for dismissal of the complaint. Though, OP in its written statement has mentioned that the repudiation letter has been annexed as Annexure R-1, however, the same has not been filed along with it.
16. Rejoinder to the Written Statement was filed by the complainant. It was submitted that OP had not brought on record the investigator's report where the claim of the complainant was found to be genuine. It was further submitted that the object of insurance was indemnification of loss and not to gain profit. It was denied that complainant was not a consumer. It was admitted that repudiation was informed to the complainant; however grounds for repudiation were denied. The complainant has denied the rest of the contents of Written Statement of OP.
17.  The complainant has filed evidence by way of affidavit. He has stated the facts that are totally different from the complaint. He has deposed that he had obtained purchase order of Rs.21,98,158/- dated 21/05/2015 from Jay Shree Trading Co. Mal Godown, Alipurdwar, West Bengal (consignee). The relevant Paras of the affidavit are being reproduced hereunder:-

Para-5:That the said goods were booked for transportation with M/s GTCFreight Carrier, having their office at 59, IInd floor, transportation Centre, Azadpur, Delhi-110033 vide GR No.3327 on 21/05/2016 and a freight of Rs.72,344/- was paid to the transporter., The consignment was loaded on truck bearing no.NL01L 9328.

 

Para-6: That while the consignment was under transit the truck on which it was loaded met with an accident on 24/05/2016 at Sant Kabeer Nagar, Uttar Pardesh and the truck turned turtled.The accident was reported to PS Khalilabad, Distt: Sant Kabeer Nagar.

 

Para-7: That upon getting information of the accident the insured/deponent lodged a claim with the OP, who appointed Mr. Pranay Pal Surveyor bearing license no. SLA 34063 to assess the losses.

 

18. He has relied upon the Marine Cargo Open policy for period 05.10.2015 to 04.10.2016, which is exhibited as ExCW1/1, survey report dated 26/04/2016 by surveyor, Sh. Nimai Saha, assessing the loss to the tune of Rs.3,59,243/- as Ex.CW1/2 and statutory notice to the GTC Freight Carrier as Ex.CW1/3. He has got exhibited the copy of the repudiation letter as Ex.CW1/4.
19.  The complainant has also got examined Sh. Dinesh Goel, the licensed agent of M/s United India Insurance Company Limited, Branch Office, Bhiwani with agency code AGD0015156. He has deposed that he has acted as a channel of communication for the purposes of issuance of insurance policy as well as for claims. It has been further deposed that the proprietor of the complainant had been providing all such declarations as required under policy on regular basis to him, which was further forwarded to the concerned branch of OP.
20.  OP has also filed evidence by way of affidavit of Ms. Gitanjali Chauhan, Assistant Manager and Authorized Representative. The contents of the written statement have been reiterated. She has submitted that a copy of the repudiation letter is being exhibited as Ex.RW-1/1, however, the same has not been filed along with the affidavit. It has been reaffirmed that no declaration was ever sent either to the OP or any of its agent.
21. We have heard the arguments of Ld. Advocate for the Complainant as well as Ld. Advocate for OP. We have also perused the material placed on record.
22.  It is seen that the facts as mentioned in the complaint are different from those deposed in the evidence by way of affidavit filed by the complainant. The same cannot be taken to be evidence affidavit in support of the complaint.
23. The instant complaint has been filed by a sole proprietorship firm and is being represented by an advocate.  Hence, such discrepancies in the contents of the affidavit from that of the main complaint are not acceptable.  Such discrepancy is not simply negligence but informed a willful error committed by the person, who drafted such an affidavit, the deponent who signed it and the advocate who filed it, without verifying the contents. 
24. Such discrepancies are fatal and cannot be ignored by this Commission.  Accordingly, primarily on the ground of discrepancies in the affidavit and the main complaint, this complaint is liable to be dismissed. As, the complainant has failed to prove his case; the present complaint is dismissed without orders to cost.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

                                        (Harpreet Kaur Charya)                                               (Divya Jyoti Jaipuriar)                                         

                                                 Member                                                                       President