Complainant’s case in short is that his business is proprietorship business and for which complainant used to purchase edible oil from whole sellers from various states of India who used to send those edible oils through transporter to the consignee complainant and after that complainant uses to sell said goods to the local market but during transportation there are always risk and chance of damage of goods on transit for which several insurance companies issue insurance coverage to cover the risk of damage involved during transit and as such complainant took such insurance to cover the risk of such damage.

          In fact, M/S Sarada Agro Oils Ltd. Survey No. 655 of Andhra Pradesh one of the supplier of the complainant dispatched 600 Tins each of 15 Litres (net) Sun Flower Refined Oil Rs. 2,47,700/- under consignment note No.358 dated 09.08.2001 by road from Hyderabad to Kolkata through Carrier namely M/S. AVADH ROAD LINES.

          Said consignment reached Kolkata on 18.08.2000 while unloading the consignment leakage in the tins were detected and same was endorsed on the side of the consignment Note No.358 dated 09.08.2001 by the driver of the Lorry who brought the goods and a letter i.e. Notice of damage was sent on 09.08.2001 and notice to issue certificate of damage or leakage dated 28.02.2001 was posted by Registered with A/D complainant was insured under Marine Inland Transit Policy with National Insurance Company Ltd issued by Kolkata Division-IX under Hare Street P.S.

          The complainant deposited Marine Declaration cum Certificate on 16.08.2000 vide M.D.C. No. 004/2000/01 dated 14.08.2000.

          Complainant by a letter dated 18.08.2000 intimated the matter and requested the op to depute surveyor to assess the Loss and op informed vide letter dated 21.08.2000 about appointment of loss assessor surveyor.  Thereafter complainant took initiative for settlement and surveyor was appointed to assess loss and thereafter on 21.08.2000 Surveyor visited the spot (godown) and prepared report and sent it to the op and said report was received by op on 31.07.2001 and thereafter claim was submitted on 28.08.2000 but op did not process the matter and settle the claim though complainant submitted claim on 15.11.2000 but then op did not respond in respect of claimed amount of Rs.29,924/- but ultimately on 25.08.2006 op informed that as matter is old one please bear with them and further as per requirement of the op, complainant submitted further documents in the office of the op on 31.08.2006 but even then his claim has not been settled as yet and in the premises complainant has prayed for redressal and relief.

          On the other hand op by filing written version has alleged that complainant had no insurable interest at the time of alleged damage of the consignment and the complainant did not disclose it at the time of taking insurance policy that he is only commission agent of M/S Sarda Agro Oils Ltd. and so complainant is not entitled to allege damage claim of the consignment.

          Further the cause of action arose in the year 2000 whereas the present case was filed in the year 2008 long after seven years and so the complainant is barred u/s 24 A of C.P. Act 1986 and mere correspondence does not extends the period of limitation as laid down by law.

          Moreover the surveyor observed that since the consignee was unable to produce the cartoons which were sold by them prior to their inspection the loss for the same was not considered by them.  Further consignment was not released and unloaded in the presence of surveyor because the reason cannot be as claimed how and when tins were damaged and so the complainant has failed to prove that same was delivered in damaged condition and so the complainant has violated mandatory provision of policy condition and for that present complaint is not tenable in Law.

                                            Decision with reasons

          On indepth study of the entire claim of the complainant and defence as disclosed by the op and also considering the arguments of Ld. Lawyers of both the parties it is found that no doubt it is crystal clear that the articles which were alleged to have been damaged on transit was insured under the valid insurance policy that has been admitted by the op no.1.

          But very crucial question is whether complainant complied the terms and conditions of the insurance policy and fact remains that in this case M/S. Sarada Agro Oil Ltd., Andhra Pradesh dispatched 600 tins (15 Ltrs. Nett each) Sun Flower Refined Oil under consignment Note no. 358 dated 09.08.2000 on road from Hyderabad to Kolkata through the carrier namely M/S. AVADH ROAD LINES and the said consignment as per complaint reached at Kolkata on 18.08.2000 and on that date same was received by the complainant as it was unloaded.  But complainant tried to convince that he received the articles from the driver of the said track with objection note that out of total 600 tins, 88 tins were empty or damaged or with leakage.  But peculiarities is that driver did not endorse the matter and moreover complainant at the time of unloading did not report the matter to the present op no.1 and another factor is that when it was reported, the matter was informed by the op no.1 to the complainant about the time of surveyor for of loss assessment and practically complainant did not allow the surveyor to visit the godown where the requests were made on the date fixed.  But subsequently he again prayed for sending surveyor and that was considered and that surveyor went to the said godown and surveyed the same by putting his remarks against each tin and that report was submitted on 28.08.2000 and the inspection was held on 21.08.2000.  But actually the article was received by the complainant on 17.02.2001 and it was reported to the insurance company on 18.08.2000 and forthwith insurance company appointed surveyor to assess the loss and it was reported.  But complainant did not arrange for that for which matter was closed.  Thereafter as per prayer of the complainant surveyor was appointed again and survey was held on 21.08.2000 and in the mean time 12 days expired and it was found that most of the tins in which there are oils which was sent by the oil manufacturer of Andhra Pradesh, it was detected by the surveyor that tins were not up to the mark and it was submitted on behalf of the Ld. Lawyer for the op that after delivery if the said oils were exchanged to fresh tins the loss ought to have been very meagre and at the same time submitted that as per condition of insurance policy complainant did not take any safety in respect of the packing and sealing the tins at the time of dispatching from Andhra Pradesh but it is mandatory on the part of the complainant to show that articles which was dispatched from Andhra Pradesh were sent in packed condition with all safeties, so that the tins may not be damaged.  But in this case complainant is silent in this regard for which insurance company failed to consider the present claim and in fact the incident was of the year 2001 loss assessment was assessed on 21.08.2000 and thereafter complainant was asked to produce original invoices of the claims but that was not supplied and thereafter that invoices were submitted on 31.08.2006.  Another argument was advanced by the Ld. Lawyer for the op that practically complainant collected damage receipt and for which it is specifically mentioned in that letter that as required by the complainant the damaged receipt was issued by their authority.  Further it was argued that the consignment was not delivered in their presence to determine reasons how the damage was caused could not be ascertained and moreover the claim was repudiated on 06.07.2004 stating that loss did not occur during the transit for which it was not tenable.

          On the other hand on behalf of the complainant it was submitted that it is undisputed fact that the article was consigned from Andhra Pradesh and loss assessor saw the condition of the tins.  But he did not assess actual loss because it was not unloaded in the presence of the assessors.  But factual position is that complainant suffered a loss in respect of 657.4 Kgs but that was also not considered and in fact op illegally repudiated the same.  Thereafter in the year 2006 again complainant submitted original invoices which were received by the op no.1 for processing and thereafter complainant went to the office of the op no.1 and ultimately it was informed that as because the matter is very old, it will take sometime.   Thereafter there was no answer for which complainant waited for result and there was no latches on the part of the complainant.

          Considering the entire fact and circumstances and undisputed fact is that complainant had his fault for which he did not report the matter to the insurance company before unloading.  But as per insurance conditions the complainant ought not to have taken delivery of the article in damaged conditions but it was his duty to inform the insurance company before delivery of the same for loss assessment.  But that was not done.  Not only that complainant reported the matter on 18.08.2000 and op was deputed a surveyor to assess loss on 21.08.2000 and that was reported to the complainant and complainant did not answer.  Again they contacted to the complainant but complainant did not answer and for which op no.1 the insurance company reported in writing to the complainant on 23.02.2001 that he had no interest regarding survey and they have their no alternative to drop the claim.

                   After receipt of the letter complainant sent another letter on 24.02.2001 for further survey and on the basis of that practically loss assessment was assessed on 26.02.2001 and that report was finally submitted on 22.02.2001.  But in between the time the date of receipt of the delivery of the article by the complainant and till the date of survey and in between that period day to day oil was leaked from the leaked tins even on the floor of the godown and tins were placed scatteredly and it was soaked regularly.  It indicates that complainant adopted some unfair practices.  It was his duty to attend the surveyor forthwith on 21.02.2001 but complainant avoided it.

          No prudent man shall believe that complainant took step or care to protect the tins from further leakage and it was kept in such a condition for 12 days.  Moreover, considering the survey report we have gathered that most of the tins which were damaged tins were sent by the manufacturer and it is the duty of purchaser to see that the manufacturer is supplying safe tins for dispatching the oil but that is not at all stated in the complaint that all the tins were safely packed at the time of dispatch and there was no question of leakage etc and apparently safety measures were not taken on transit by the complainant.  But it is the major duty of the complainant to book the articles in the truck on the way from Andhra Pradesh to Kolkata with proper safety but in this regard complainant is silent.

          Further considering the report of the surveyor it is clear some damaged tins are staged inside the godown and that was shown.  But thereafter, loss assessor assessed that only 1276 Kgs was lost from tins and if we accept that loss and the market value of the said oil is considered in the context of the present market price in that case valuation of that loss would be in this time about Rs.70,000/- but not more than that. 

          Further fact is that complainant has alleged appointed surveyor’s report.  So, relying upon the surveyor’s report and also considering no satisfactory answer of the complainant to prove that the articles were booked at Andhra Pradesh with all safety and damage tins were not loaded at the time of dispatch but to that effect there is no certificate issued by the manufacturer company not even the driver issued any such certificate that for some reason otherwise it was damaged and practically the complainant failed to prove the case of damage.  At the same time the complainant did not appear before this Forum with clean hand and only to collect huge compensation he waited for 12 days and avoided surveyor first time because he was preparing the entire drama of damage by collecting damaged tins of oil. 

          Another factor is that complainant failed to show any packed damage tin in which it was kept under safety.  So considering all these, the above fact we are convinced to hold that policy conditions were not complied by the complainant.  But truth is that insurance company was informed after lapse of 12 days and in the mean time complainant was preparing the field so that when the surveyor shall have to appear he shall have to show the damaged tins.

          On overall evaluation of the entire evidence on record and the materials and terms and conditions of the insurance company including the alleged damage we may show mercy to the complainant.  Considering very meagre quantity of loss of 1276 Kgs we find that in fact if complainant would take proper step to avoid further leakage in that case this loss would not be found.  In that case loss of edible oil would be within the range of Rs.50/- to Rs.100/- per Kgs.

          In the above situation and also considering the entire facts and circumstances we are convinced to hold that case is not barred by limitation because in the year 2006 op wrote a letter that it is an old matter.  So it will take time but after that they are silent.  So, cause of action of this case is continuous in nature because op did not dispose of the matter finally and for which the present complaint is not barred by limitation.  But taking a very moral approach and for giving some relief to the complainant considering his loss, though it is not confirmed by the complainant as per terms and conditions of the policy but even then we are allowing Rs.40,000/- to the complainant as final compensation by settling the entire claim and no other amount can be allowed in favour of such complainant for adopting some dramatic approach before appearance of the surveyor and for not reporting them at the time of delivery of the articles.

          In the result, the complaint succeeds in part.

          Hence, it is

                                                      ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.2,000/- against the insurance company op no.1.

          Op no.1 is directed to treat the claim application of the complainant as finally disposed of by issuing a cheque of Rs.40,000/- as compensation within one month from the date of this order in favour of the complainant and op no.1 Insurance Co. is directed to pay the compensation of Rs.40,000/- including Rs.2,000/- i.e. total Rs.42,000/- within one month from the date of this order failing which for each day’s delay punitive damages @ Rs.250/- shall be assessed till full implementation order of this Forum and if it is collected same shall be deposited to the State Consumer Welfare Fund.

          Further if it is not complied within the stipulated period penal action shall be started u/s 27 of C.P. Act 1986.