Order-8.
Date-21/03/2016.
Complainant M/s. National Plywood Industries Ltd. by filing this complaint has submitted that complainant in the year 2012, firstly obtained a Marine Inland Transit Insurance Policy of Rs.2,50,00,000/- from the op no.2 and thereafter the said policy was renewed year to year and lastly the said policy was renewed for the period from 30.07.2014 to 29.07.2015 being insurance policy no. 100100/21/14/4400000062 through op no.3.
Complainant on 23.06.2014 vide Invoice no. 030 and 031 imported three number of press plates valued at Rs.6,48,212/-used for lamination manufacturing through Kamdar Brothers, having its office at 7, Tirupati Apartment, Nehru Road, Vila Parle East, Mumbai – 400057 and the said consignment is covered with insurance from op no.2.
But the said consignment of three number of imported press plated valued at Rs.6,48,212/- weighing 300 Kg. was transported in Steel Frame Crate on 24.06.2015 from Bhiwandi to Hosur through Manoj Cargo Carriers, having its office at 81, 1st Main, 3rd Cross, New Timber Layout, Mysore Road, Bangalore – 26, vide GC No.3140710 dated 24.06.2014 and the said consignment was delivered by the said Manoj Cargo Carriers at Hosur on 28.06.2014 and on inspection before the receiving of the consignment it was found the material of consignment of all three plates was damaged in transit.
Complainant obtained a quality control and testing report from Manager Quality Control of complainant and obtained the certificate of fact from the transporter M/s. Manoj Cargo Carriers dated 12.08.2014. But complainant thereafter on 21.08.2014 complainant lodged a claim of Rs.7,13,033/- with op no.1 along with all requisites.
That on 08.12.2014 op no.1 repudiated the claim of the complainant stating two reasons – (1) In spite of letters/reminders sent to complainant, complainant has not complied with the required papers/documents and (2) Peril/Cause of Loss not covered in the Policy.
On receipt of the said repudiation letter dated 08.12.2014, complainant vide a email dated 11.12.2014 requested the op no.1 to share the copy of the entire survey report for perusal and in reply to the said email dated 11.12.2014, op no.1 vide email dated 12.12.2014 requested to send the representative of complainant to collect the same and on receipt of the said impugned letter dated 08.12.2014 and the survey report dated 16.10.2014, complainant vide letter dated 18.12.2014 lodged a complaint with the grievance cell of op no.2 stating that the Cause of Loss is due to Jolts and jerks in transit, and the said is covered under the said Marine Insurance Policy.
The said letter was duly acknowledged by op no.2 being Ref. No. GRI – 140116473 dated 31.12.2014 intimating the complainant that the Kolkata Division – I, of op no.2 shall be taken up the matter and the same was received by the complainant on 20.01.2015.
That vide letter dated 19.01.2015 op no.1 after review further repudiated the claim of the complainant and closed the claim stating the policy does not constitute a tenable claim under the terms of the policy. Complainant on 16.04.2015 through Ld. Advocate sent a legal notice to the Chairman, Grievance Cell and legal Cell of op no.1 and the said legal notice is self-explanatory and op no.1 by a letter dated 21.05.2015 in reply to the legal notice dated 16.04.2015 refused to settle the claim amount of complainant under clause 12 of the subject policy schedule.
Against that complainant’s Ld. Advocate sent replies vide letters dated 03.06.2015 and 31.08.2015 but the dispute arising between complainant and the ops is a consumer dispute within the meaning, scope and import of C.P. Act 1986. But the background of the case clearly shows that op nos. 1 & 2 deliberately mis-interpreted the policy wording for the sole purpose of repudiating a valid, genuine and admissible claim of complainant and in the above circumstances, complainant has prayed for redressal.
On the other hand op by filing written statement submitted that claim of the complainant is under Marine Insurance Open Policy being No.100121134400000071 which was lodged on 30.03.2014 against reported loss/damage in transit of the subject matter i.e. three numbers of steel press plates which were being transported from Bhiwandi to Hospur, Tamilnadu by the Transporter M/s. Manoj Cargo Carriers and on receiving the intimation of loss, M/s. Mack Insurance Surveyors and Loss Assessors Pvt. Ltd., an IRDA licensed survey firm was appointed on 01.07.2014 to survey the reported loss.
Surveyor submitted their loss report dated 16.10.2014 which was received by the complainant on 21.10.2014 and the cause of loss was identified as Denting and loss has been assessed net of Salvage at Rs.5,64,212/- plus 10 percent. But Denting as a cause of loss stands specifically excluded under the Marine Open Policy and therefore the liability under the policy is not admitted and hence the claim is not payable as per terms and conditions of the policy which the subject claim was preferred and therefore the liability under the policy is not admitted and hence the claim is not payable as per terms and conditions of the policy.
The insured was communicated by complainant vide their letter dated 08.12.2014 about the decision of closing the claim as .No Claim.. Further a scrutiny was madeto the claim file with all relevant documents vis a vis underwriting documents and the whole matter was reviewed and an Independent Surveyor was appointed and in their observation/opinion/recommendation the specific cause of loss i.e. denting and their recommendation was categorical on repudiation of claim as the cause of loss was specifically excluded under policy.
On scrutiny of the policy documents, it was noted that under condition no.12 of the policy schedule, the cause of loss i.e. denting was excluded cause under the policy and therefore the competent authority aptly referred to the terms of the policy and considered to close the file as .No Claim. as .Peril/cause of loss not covered in the Policy..
Practically complainant has relied upon the surveyor report dated 16.10.2014 prepared by Mack Insurance Auxiliary Pvt. Ltd. and they have not challenged the surveyor’s report by any means. But they relied upon that report and prayed for releasing the amount and as per judgement reported in (1966) 3 SCR 500 the Constitution Bench observed – In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.
So, as per policy condition, complainant is not entitled to get any relief. Moreover the Insurance Company on good faith based on materials collected pursuant to enquiries made that there is no deficiency in service on the part of the insurance company. So, the repudiation of claim of complainant is right and is not illegal. In the above circumstances, the present complaint should be dismissed.
Decision with reasons
On overall estimation of the complaint and written version and further considering the argument, it is clear that complainant has admitted that said damage was caused due to Jolt and Jerks and that is the observation of the Surveyor.
Now question is what is the meaning of Jolt and Jerks and whether it covers the exclusion clause of policy condition, denting and in this regard we have gone through the report of another independent surveyor who has stated that the damage was caused due to denting that means jolt and jerks. No doubt it is fact that the loss of the machinery had occurred somewhere during transit and now it is up to insurer to get the matter investigated to find out the exact cause of damage, in that case it has to take shelter under any of the exclusion clauses. The burden of proof is heavily on the insurer to show that the damage was of such a nature that it would not be covered under the terms of the policy issued by the insurer.
No doubt it is quite clear that damage occurred and independent surveyor was appointed by the Insurance Company who submitted report, then it is the responsibility of the insurer to show that damage had occurred at any time prior to the dispatch of the machinery or due to any mishandling or negligence on the part of the insured at the time of the opening the packages at thatplace although the Evidence Act is not strictly applicable in such cases, it is well settled rule of evidence that the onus of proving a fact would rest on a party whose case would fail in the absence of any such evidence. In the present case it has been proved by the complainant that when boxes were opened, the machine was found to be in a damaged condition and the Surveyor determined the damage during transit and the observation of the Surveyor in his report that the damage was due to jerks and jolts during transit are quite significant.
In the present case it is proved that on 28.06.2014, the subject consignment reached at consignee’s premises and at the time of taking delivery, consignee found that the iron cases which were used to pack the steep plates is dented/damaged condition and the materials inside the iron cases was suspected for the damaged to them and thereafter they checked the material and found the same was in dented/damaged condition. Material was kept aside in the premises for further inspection and matter was informed to the consignor and during inspection op found that the steel sheets were kept aside in loose condition and there were three numbers of plates (280 Kg) in the consignment and on checking the materials were found dented and damaged on the corners of the steel plates and on complete checking op found that 2 nos. of plates were dent/damaged and 1 no. of plate had minimal dent/damaged and cause might be occurred due to jolt and jerks on transit.
In this regard we have gone through the word Dent means a slight hole in hard even plate surface made by blow or pressure and in the present case it is specifically mentioned by the surveyor that it was dented when that is fact as per dictionary meaning the said damage was caused made by a blow or pressure. When that is the fact, then whatever may be the cause for some damage, invariably such a damage cannot be caused on transit usually and considering the nature of the damage, it is clear that without outer force such a damage cannot be caused. If actually it was within the cover of steel plate, there was no question of causing damage from outside because when apparent external damage of the tin box was found.
Then invariably the said damage comes under the purview of denting. When that is the fact, then invariably it is proved from the report of surveyor that damage was due to jerk and jolts are quite significant and in view of the fact that there was no history of any facing accident by the said vehicle on transit, when the vehicle was carrying the machinery tools from the consignor’s address.
Another factor is that in fact Insurance Company ought to have inspected the matter to find out the exactly how and where the damage occurred. There is no allegation of the Insurance Company that the machinery was not dispatched in good condition. But it is proved that a claim was repudiated on the ground that damage was due to jolt and jerks that is the cause when it comesunder the definition of dent, so, it was repudiated.
But truth is that denting comes under the purview of exclusion clause, when that is the fact, then there is no other alternative but to hold that the entire damage was caused due to outer forcewhen damage was there as per complainant’s claim and plates were inside the tin cover for which such a damage was caused.
But peculiar factor is that complainant has noted that tin package was damaged. But after receipt of the said consignment complainant suspected that damage. If it is fact, in that case, the iron cases which was used to pack the steel plates in dented and damaged condition for which they suspected that the material of steel plates were damaged and truth is that when consignor found that iron cases were dented, in that case complainant must not have to open the same and to intimate to the Insurance Company that outer package of steel cases were damaged. But without waiting for that they removed the iron cases and brought out steel plates and then they found damages. Reasonably if it is believed that there was outer denting in respect of damage, then complainant must not have to open the pack but to inform the Insurance Company but that was not done.
But after removing the cover, they claimed that they found it was dented and for which there is some dispute about the entire fact. At the same time if an article is found dented, in that case as per policy exclusion clause insured is not entitled to get any relief and invariably it was dented, what is proved from the report of the surveyor may be the cause of jolt and jerks.
But due to jolt and jerks inside plates cannot be damaged if the outer package was heavy in nature for safety of the inside plates. Many factors are there for consideration. But anyhow complainant’s Ld. Lawyer referred one ruling reported in Judgement passed by Hon’ble Justice V. BalakrishnaEradi and other by National Commission in FA Case No. 151 of 1991 (Parties. United India Insurance Co. Ltd. - Vs – P.S. Mani).
But considering that judgement it is found that it was not a policy of Marine Inland Transit Insurance Policy and terms and conditions of the policy was otherwise. But in the present case as because it is Marine Inland Transit Insurance Policy and there is a specific clause in Exclusion Clause that damages due to denting, then invariably we must have not to go outside the term and cannot interpret otherwise and when denting is within the exclusion clause, then the present case does not cover by the policy. Already in so many judgment’sNational Commission and Hon’ble Apex Court have observed that Forum cannot go beyond the terms and conditions of the policy and as per present policy condition each of the losses namely rusting, corrosion, pitting, chipping, denting and scratching have been specifically excluded from the cover of the policy vide Clause 12 of the policy. So, same cannot be claimed to be covered irrespective of the cause of such loss and as such, the cause of loss in the instant case reportedly being jolt and jerks. But same also causesunder the purview of definition of denting which is exclusion clause in the policy and in this regard the ruling reported in (1966) 3 SCR 500, Constitution Bench is reliedwhen the policy document is a contract and it has to be read strictly and it is also observed in interpreting the documents relating to contract of insurance the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. So, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it.
Considering all the above ruling we are convinced to hold that no doubt repudiation as made by the op is justified, legal and there is no deficiency and negligence on the part of the op. At the same time there is no deficiency in rendering any service to the complainant because op always reported the matter, supplied all the documents as per requirement and ultimately reported the final decision of repudiation.
In the light of the above observation, the present complaint fails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed on contest without any cost against op.
