M/S. UNITED INDIA INSURANCE CO. LTD. V/S M/S. J.B. TRADERS - Consumer Court Case

Delhi

North

CC/27/2019

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

Versus

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

VED V. TRIPATHI

01 Sep 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

Phone: 011-23969372; 011-23912675 Email: confo-nt-dl@nic.in

Consumer Complaint No.27/2019

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
01/09/2023

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.

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.
On 21/05/2016, the complainant obtained a purchase order of Rs.21,98,158/- for delivery of different varieties of Pulses/Dal from Jay Shree Trading Co. Mal Godown, Alipurdwar, West Bengal (consignee) having their office situated at Naya Bazar, Siliguri, West Bengal.
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. 3327 on 21/05/2016 for a freight of Rs.72,344/-. The consignment was loaded on truck bearing registration number NL-01L-9328.
On 24/05/2016, the truck carrying the consignment met with an accident at Sant Kabeer Nagar, Uttar Pradesh and the truck turned turtle, which was reported to PS: Khalilabad District, Sant Kabeer Nagar. Upon receiving the information, immediately a claim was lodged with OP and Mr. Pranay Pal, surveyor bearing license number SLA-34063 was appointed to assess the loss.
Complainant has stated that on 01/06/2016, the Surveyor assessed the loss of Rs. 6,66,792/- at the consignee’s place of business, situated at Alipurdwar, West Bengal.
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.
The Complainant has further stated by 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.
The complainant has alleged 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.6,66,792/-along with interest @18% from the date of institution of the claim till realization; Rs. 50,000/- towards cost of litigation and Rs. 1,00,000/- on account of compensation for mental agony and pain.
Complainant has annexed the policy schedule for the period 05/10/2015 to 04/10/2016 as Annexure-1 (colly), Transit Claim Report dated 19/06/2016 as Annexure-2; emails and repudiation Intimation dated 04/04/2017 as Annexure-3, statutory notice as required under The Carrier Act, 1865 dated 11/02/2017 as Annexure-4, certificate of facts issued by M/s GTC Freight carrier dated 25/11/2016 as Annexure-5, registration certificate of the complainant proprietorship firm as Annexure-6.
Notice of the present complaint was served to OP.
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.
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.
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.
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 dated 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.
It was denied that declaration was either sent to the OP or any of its agents. Rest of the contents of the complaint have 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.
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.
The complainant has filed evidence by way of affidavit. He has repeated the contents of the complaint and 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. Pranay Pal, assessing the loss to the tune of Rs.6,66,792 /- as Ex.CW1/2 and statutory notice to the M/s.GTC Freight Carrier as Ex.CW1/3. He has got exhibited the copy of the repudiation letter as Ex.CW1/4.
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.
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.
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. The complainant is aggrieved by the repudiation letter dated 03/04/2017. As per said letter, the claim has been rejected on two grounds.

You have violated Marine Cargo Open Policy “Declaration clause” which reads as- It is hereby agreed that insured will record full particulars of each despatch in Declaration Statement in the chronological order assigning declaration number for each such dispatch. A copy of statement so completed, should be posted to the Company every fortnight/month, preferably during the first week of the following fortnight/month.

In this particular claim you have despatched the statement through mail on dated 08/07/2016.

First and foremost, we would like to mention that no policy terms and conditions have been filed. As far as first ground of repudiation is concerned, the complainant has filed an affidavit of the agent of OP, Mr. Dinesh Goel, who has deposed in para 3 and para 4 of his affidavit as here under :-

Para3. That the deponent has acted as a channel of communication between the complainant and the OP for the purpose of issuance of policy as well as for the purpose of claims of the complainant.

Para4.That the complainant M/s J.B Traders through its proprietor Mr.Jai Bhagwan Aggarwal has been providing all such declaration as required under the policy on regular basis to the deponent and the same was further provided to the concerned branch of the OP for the purpose of their records.