Complainant M.M. Exports by filing this complaint has submitted that he entered into an agreement of Indemnity/Insurance vide Insurance Policy No. 101100/21/03/44/00323 under which the op agreed to indemnify the complainant for any loss caused to it on account of inland transit/rail/road covering all risk at an annual premium of Rs.13,231/-.  The said transit policy was an Annual Open Policy.

On or about September 8, 2003, the complainant purchased a consignment of Silk/Cotton sarees made of handloom worth Rs.16,35,975/- from one M/s. Chirag, Kolkata.  The complainant took delivery of the goods from the said seller which comprised of 60 cartons and each carton having 50 pieces of sarees.

On September,8, 2003, the complainant took delivery of goods and in turn sold it to one M/s. Rony Silk Unit of Murshidabad under a contract dated September 11, 2003, who wanted to export the consignment.  The complainant dispatched the goods under Challan No. 1247A and 1248A dated September,12, 2003 and raised two invoices being Nos. 009/03-04 and 010/03-04 both dated September 12, 2003 for Rs.1,69,840/- and Rs.16,99,090/- respectively. 

The said goods were entrusted to M/s. Murshidabad Transport Corporation, Kolkata who issued the T.R. Challan No. 433/03-04 dated September 13, 2003 for transportation from Kolkata to Nagar Murshidabad through Truck No. WB-25-9389.

Thereafter complainant informed the op about movement of goods under the Policy and submitted the declaration being No.MME/TRA/08 dated 15.09.2003.  On September 15, 2003 while in transit, the goods suffered loss and damage as water sipped in the goods because of heavy rain during the transit and as a consequence of which silk sarees got damaged.  Further 942 sarees were found short and two cottons 9 fabric on destination, 6 silk bleached thans were also damaged in rain.

Complainant informed the op authorities on September 15, 2003 about the loss and damages.  The op appointed M/s. Apex Surveyor Pvt. Ltd. as a surveyor.  Further the said surveyor was however carried out inspection on September 21, 2003 i.e. after a lapse of six days from the date of information of loss and in course of survey it was revealed that goods were damaged.

After survey was done, M/s Rony Silk Unit sold the goods in the market in deteriorated condition on the complainant’s instructions and after getting oral permission from the said surveyor M/s. Rony Silk Unit could received Rs.5,03,460/- from said of the goods while cost of the goods actually was Rs.18,68,930/- and further M/s. Rony Silk Unit assigned and authorized the complainant to claim damages from the op.  Accordingly complainant lodged a claim of Rs. 14,18,270/- to the op on account of Indemnity arising out of insurance agreement as the claimant had the insurable interest in the goods.  The complainant also forwarded its claim to the transporter and after the first survey on 8^th, January 2004, the op appointed Mr. Dilip Kumar Saha as an investigating officer.  The complainant submitted all the documents which were required by op and in spite of the claim being filed in accordance with law, the op failed and neglected to dispose of the claim of the complainant.  But on January 28, 2005 the op rejected the claim of the complainant on the ground stated there.  Though the complainant refuted that the allegations against the rejection letter dated 28.01.2005 that was challenged by submitting a letter dated 16.02.2005. Thereafter the complainant took several steps for getting the compensation but op refused to accept it and repudiated the claim.

On the contrary the Insurance Company by filing written statement submitted that practically at the time of dispatch of the sound goods by truck the materials were not properly packed as per contract of insurance between the complainant and op and terms of the contract was not complied.  Further it was submitted that the complainant did not take positive steps to protect the said goods in cartons to protect it from any rain water and regarding theft of some articles no FIR was lodged and further complainant failed to provide payments details against valid commercial invoices, the transaction between Chirag and Shri Dinesh Mehata, if any, towards procurement of materials by the complainant could not be established during surveyor’s investigation and as such in absence of valid payments details between M.M. Exports, Chirag and M/s. Rony Silk, the entire transaction between the parties remained unexplained to the investigator.

Further it was submitted that the salvage is the property of the company and the same is not permitted to be disposed of without the permission of the Insurer till confirmation about the settlement of the same is conveyed to the complainant and the sale of the material confirms that M/s. Rony Silk intended to purchase the same from M.M. Exports.  All these illegal irrevalent transaction were recorded by the investigator and accordingly they submitted their report to the company and in the circumstances they repudiated the claim as per law.

                               Decision with reasons

After hearing the argument as advanced by the Ld. Lawyers of both the parties and also considering the fact that complainant was no doubt an insured under the op and op has not denied.  But on in depth study of the complaint and materials produced by the complainant and also the terms and conditions of the Insurance Policy(Page-56 of Evidence in Chief of the op) it is found that the Surveyor M/s. Apex surveyors was appointed for assessing loss and that surveyor reported that consignment was not adequately dispatched with proper protection in view of rainy season since sarees were directly put into card board boxes without protection of at least by polythene rapping and further packing materials were thrown away in a pond as stated by the consignee, M/s. Rony Silk when they were asked to exhibit the packing materials and insufficiency of the packing in the instant case as stated by the surveyors’ along with the photographs, is, therefore, accepted since the packing cases could not be presented before the investigator for their examination.

Further it is found from the report that cartons were externally sound and intact but the materials inside were found wet/torn/water stained and same could not be happened due to rainwater within a short period and the whole consignment of sarees as confirmed by the surveyors alongwith the photographs looked as an old, defective and pre-existing damaged materials particularly presence of some holes in the sarees could not be caused during the transit specially when the cartons were found externally sound and the investigator also confirmed that M/s. Chirag used to deal with defective stock materials and sold out the same in the market.  The necessary invoice issued for the selling of the defective sares was also obtained by the investigator which nullified the statement of Chirag that they never dealt with the defective materials.  The statement of Chirag is therefore, considered as a suppression of the fact.  The investigator could not examine the damaged materials since the same was sold already.

Further investigator reported that alleged damaged stock were disposed off by the consignees immediately after the survey without the concurrence of the surveyors and the underwriters and it is observed that the alleged damage materials were reportedly sold to the unknown buyers.  So the investigator could not find out any records in the books of accounts about the receipt of damaged materials and details of disposal of the same.  The cash memos issued by Rony Silk indicated the disposal of materials, as normal sale to their customers since the cash memos issued by Rony Silk did not qualify the materials as damaged and fact remains that complainant relied upon the report of the surveyor and op also relied upon the surveyors report and op submitted in details to the complainant about claim for damages of silk and thans cottons sarees by Regd. Post with A/D and after considering the report of the surveyor it is palpably proved that insured had dispatched sound sarees to M/s. Rony Silk and same was damaged during the transit and fact remains packing condition of the said materials are not complied with as per insurance contract and for which the claim was turned down under clause 2.1 and 2.3 of Inland Transit (Rule Road Clause-A) all these.  But anyhow the Ld. Lawyer for the complainant submitted by referring one judgement of National Comission, New Delhi passed in Revision Petition No.3545/2007 dated 14.03.2012 and further submitted that on account of rain or rain water the goods were damaged and for which the said ruling is applicable and the complainant should be granted proper relief and there was no fault on the part of complainant.  Practically complainant took all initiatives to protect the materials before dispatch and all materials were submitted to the investigator at the time of investigation and investigator submitted that report.

In this context we have gone through the vital report of Dilip Kumar Saha, the Investigator wherefrom it is found that complainant did not produce details of said challans from 01.04.2003 to 31.09.2003 and no document was filed by the complainant regarding checking up of goods before dispatch to Murshidabad and further complainant on receipt of the same did not supply all relevant documents and at the same time complainant tried to show that he supplied all the documents and in support of that they relied upon one letter dated 13.04.2004 including the document and the report of Dilip Kr. Saha and it is found that fact remains that the complainant failed to produce any such evidence during investigation by the surveyor that the goods were packed in polythene pack.  Thereafter it was placed in cartoons.  Another fact is that about loss (which was lost on the transit) no police case was started and regarding damage, it is found that the investigator found that some sarees were found soaked but no cartoon was there and although sarees were visible as old one with holes on different sarees and further it was detected during investigation that Chirag used to sell old sarees and that is confirmed.  So, considering all the above fact we are convinced to hold that the complainant has not appeared before this Forum with clean hand.

At the same time it is also proved that the goods were sold by the M/s. Rony Silk Unit without the permission of the insurance company or without the permission of the surveyor and no document is produced by the complainant to show that the surveyor gave consent in writing to the complainant for selling the same.  Another factor is that Rony Silk sold away damaged goods but the receipt shows that the goods were not sold as a damage one.

Another factor is that transporter did not intimate the incident to the police authority although it was informed by the consignees that the miscreants removed the tarpaulin by cutting of the same and after making the hole took away two cartoons and practically rainwater also entered through the holes reportedly causing damage to the consignment and to such fact was averred in the claim of the complainant.  Further it was observed by surveyor that same truck carried some other consignment of M/s.Madhab Textile Processors (p) Ltd which was delivered to them in sound condition and in that consignment 70 nos of bales of Madhab Textile were delivered from the same truck.  Then how the materials of Madhab Textile were not damaged and how it can be believed that two cartoons of M.M. Exports were pilfered and balance consignment got damaged due to rain water without disturbing the materials of Madhab Textile which was kept above the consignment of the complainant upper tier on the said truck.

Practically complainant has failed to explain all these irregularities or the situation of the truck carried away consignment of the M/s M.M. Exports and also of Madhab Textile Processor (p) ltd.

In this situation of the fact and considering report of the loss assessor and investigator we find that complainant suppressed the truth.  But in reality truth was searched out by the investigator, it was found that present truck by which consignment of the complainant was transported also carried other consignment of M/s. Madhab Textile Processor (p) Ltd. and in the consignment of the M/s. Madhab Textile Processor (p) ltd. 70 nos of bales of Madhab Textile were there and their consignment was in the same truck above the consignment articles of the complainant.  But peculiarity is that the consignment of M/s Madhab Textile Processor (p) ltd. was not damaged and it was in sound condition and it was delivered to M/s Madhab Textile Processor (p) Ltd.  Then how it can be by believed any prudent person that the consignment of the complainant was damaged due to rain water and how it can be believed that two cartoons were stolen by the miscreants.  But the driver did not report to the nearest police station about stolen of two cartoons when the sarees of Madhab Textile was not pilfered.  So considering all the above fact we are convinced to hold that complainant sold away all the dispatched goods at their wishes without the permission of the complainant and goods were old articles and that was purchased by the complainant and complainant sold to other persons.  Another factor is that complainant failed to prove actually to whom those articles were sold.  In the light of the above findings we are convinced to hold that the entire story about damage of the article was concocted one and for some purposes this complaint was filed and practically complainant suppressed many things in the complaint about supply of consignment to M/s. Madhab Textile which was also in the same truck which was in, though it was in the upper level of the complainant’s consignment and any prudent man cannot believe that upper level articles were not damaged due to rain water though complainant’s consignment was damaged, what is not at all probable.

Considering all the above materials we are convinced to hold that complainant has failed to prove by any cogent and reasonable evidence about damage of the said consignment.  Investigator/loss assessor saw many things and in their view there is doubt about the cause of damage due to rain.  But no action had been done with the help of the driver of the complainant and after arrival of the goods at Murshidabad and thereafter they submitted loss claim before the present op and regarding pilferage so we want to say that it is completely a false and fabricated case because police case was not started and driver also did not issue any damage certificate or any pilferage certificate and driver also did not report to police.  So, the entire claims appear to us a very unfaithful claim for which we find that there is no merit in the complaint.

In the result, the complaint fails.

Hence, it is

                                        ORDERED

That the complaint be and same is dismissed on contest with cost of Rs.10,000/- against complainant which shall be paid by the complainant to the National Insurance Co.