Delhi

North East

CC/343/2012

M/s GSC GLASS Ltd. - Complainant(s)

Versus

National Insurance Co. Ltd. - Opp.Party(s)

21 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 343/12

 

 

In the matter of:

 

 

	M/s GSC Glass Ltd. (Earlier M/s GSC Toughened Glass Pvt. Ltd.)( A Limited company through its authorized person Shri Pankaj Kumar Sharma) Having Regional Office at:- 802,Arjun Nagar, Kotla Mubarakpur, New Delhi-110003	Complainant
	Versus
	National Insurance Company Ltd. Scope Minar,11th Floor, Core-2, Laxmi Nagar, Delhi-110092	Opposite Party

 

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:                           DATE OF ORDER:

01.09.12 27.03.23 21.04.23

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

Adarsh Nain, Member

ORDER

Ms. Adarsh Nain, Member

The Complainant is the limited company and filed the present complaint through its authorized representative Shri Pankaj Sharma under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The case of the Complainant is that the Complainant company is engaged in the manufacture of toughened glass and had taken a Marine Cargo Transit Open running policy from Opposite Party vide policy bearing no. 361701/21/07/4400000045. The Complainant had sent goods against invoice no. 3571 and 3573 dated 12.09. 2008 for Rs. 16,16,199.60/- to the consignee M/s Sai Alutek Pvt. Ltd, Bangalore. It is stated that the consignment was received by the consignee in damaged condition and immediately same was reported to Opposite Party and the claim was lodged. The survey was conducted by the V.Gururaja who calculated the loss to Rs. 90,971/- and submitted report on 31.10.2008 and recommended payment. Since the said consignment was duly insured, the claim was lodged for Rs. 1,07,592/- which also included the cost of survey and other expenses. The Complainant submitted all required documents to Opposite Party. The Complainant alleged that in spite of the report of said surveyor and submission of all the required documents along with the claim bill on 18.11.2008, Opposite Party had not settled the claim and delaying the processing without any cause. The Complainant stated to have written many letters to Opposite Party but Opposite Party failed to consider the claim of Complainant. On 19.04.11 a meeting was held between both the parties and Opposite Party assured to consider the claim but  repudiated the claim vide letter dated 08.02.12 on false and frivolous grounds that the claim had been withdrawn and on the ground of “Non-disclosure of material information”. The Complainant had also given reply to grounds of rejection of Opposite Party. The Complainant replied that the Complainant had never withdrawn the claim and he had submitted all required documents and Opposite Party had never mentioned as to which material information had not been disclosed. Hence, it is alleged that the plea taken for rejection was very vague and baseless.
2. The Complainant had also served a legal notice to Opposite Party dated 27.07.12 demanding the payment of Rs. 1,07,592/-  but Opposite Party failed to pay the said amount. It is submitted that the Opposite Party had not even given any reply, hence the present complaint. This shows deficiency on the part of Opposite Party. Complainant has prayed for Rs. 1,07,592/- with interest @ 12% till realisation.
3. Notice was issued to Opposite Party on 28.09.2012 and the Opposite Party entered appearance on 30.10.2012.
4.  On 30.11.2012, Opposite Party filed an application taking preliminary objection of non-maintainability of the complaint on grounds of limitation, territorial jurisdiction and complaint being within domain of Civil Court. On limitation, the Opposite Party urged that the loss occurred 4 years ago i.e. on 12.09.2008, therefore, was barred u/s 24A of Consumer Protection Act, 1986. On territorial jurisdiction Opposite Party submitted that its office is located at Laxmi Nagar, New Delhi which falls within the jurisdiction of DCDRF-IX, Saini enclave Delhi and not this Forum. Further Opposite Party raised objection that the present complaint requires recording of detailed oral and documentary evidence in a civil court which cannot be undertaken by this Forum and also stated in the application as well as its written statement that the Complainant has already filed two civil suits against Opposite Party in the court of Civil Judge and ADJ Karkardooma Court Delhi in May 2012-August 2012 before filing the present complaint before this Forum and for all such grounds taken, Opposite Party  prayed for dismissal of the complaint.

Case of the Opposite Party

5. The Opposite Party contested the case and filed written statement. In the written statement, Opposite Party, apart from raising the aforementioned preliminary objections as in its application, resisted the complaint on merits. While admitting the factum of insurance cover, the Opposite Party submitted that on receipt of the claim intimation, the investigator namely Active Claims Consultants was appointed to investigate and to give the report regarding genuineness of the claim lodged. The said investigator submitted their report dated 14.03.2009 with the finding that the carriers address found fake. It is contended that since the address of the transporter i.e. M/s Kapoor Freight Carrier and damage certificate said to have been issued by them were found to be fake, the question of payment of alleged loss does not arise. It has been alleged that the Complainant had played fraud with the Opposite Party. It is further submitted that the Opposite Party had informed the Complainant about the fact of fake damage certificate issued by a fake transporter and thus, the Opposite Party is not liable to make any payment. It is also averred that the Complainant did not press the claim under the circumstances that they were informed of facing criminal action for fraudulent claim. In view of above, the Opposite Party prayed for dismissal of the complaint.

 

 

Rejoinder to the written statement of Opposite Party

6. Rejoinder was filed by the Complainant wherein the Complainant has denied the pleas raised by the Opposite Party and has reiterated the assertion made in the complaint.

Evidence of the Complainant

7. The Complainant in support of his complaint filed his Evidence by way of affidavit through its accountant / AR wherein he has supported the averments made in the complaint

Evidence of the Opposite Party

8. In order to prove its case, Opposite Party has filed affidavit of Shri V.K Bhatia, Assistant Manager of Opposite Party, wherein the averments made in the written statement of Opposite Party have been supported.

Arguments & Conclusion

9. We have heard the Ld. Counsels for the Complainant and Opposite Party. We have also perused the file and the written arguments filed by parties.
10.  The case of the Complainant is that the complainant booked dispatch of consignment in question which was insured with Opposite Party. It is stated that the consignment was received by the consignee in damaged condition and the matter was immediately reported and the survey was conducted by the V.Gururaja who calculated the loss to Rs. 90,971/- and submitted report on 31.10.2008 and recommended payment. Since the said consignment was duly insured, the claim was lodged for Rs. 1,07,592/- which also included the cost of survey and other expenses. The Complainant alleged that in spite of the report of said surveyor and submission of all the required documents along with the claim bill on 18.11.2008, the Opposite Party failed to consider the claim of Complainant. On 19.04.11 a meeting was held between both the parties and Opposite Party assured to consider the claim but  repudiated the claim vide letter dated 08.02.12 on false and frivolous grounds that the claim had been withdrawn and on the ground of “Non-disclosure of material information”. It is submitted that the Complainant had submitted all required documents and Opposite Party had never mentioned as to which material information had not been disclosed. The Complainant has alleged illegal retention of legitimate claim by Opposite Party and prayed for payment of claim amount with interest. 
11. On the other hand, the Opposite Party, apart from raising the aforementioned preliminary objections as in its application, resisted the complaint on merits. While admitting the factum of insurance cover, the Opposite Party submitted that on receipt of the claim intimation, they appointed their investigator namely Active Claims Consultants to investigate the genuineness of the claim lodged. The said investigator submitted their report dated 14.03.2009 with the finding that the Carrier’s address found fake. It is contended that since the address of the transporter i.e. M/s Kapoor Freight Carrier and damage certificate said to have been issued by them were found to be fake, the question of payment of alleged loss did not arise. It has been alleged that the Complainant had played fraud with the Opposite Party. It is further submitted that the Opposite Party had informed the Complainant about the fact of fake damage certificate issued by a fake transporter and thus, the Opposite Party was not liable to make any payment. It is also averred that since, the Complainant were informed of facing criminal action for such fraudulent claim, Complainant did not press the claim under those circumstances. Therefore, the Opposite Party prayed for dismissal of the complaint.
12.  It is pertinent to mention here that the aforementioned preliminary objections raised in the application have been decided by the predecessor bench of this Commission vide order dated 24.06.2020 in a similar matter between the same parties. The copy of said order on application is attached in concerned Court file bearing no. CC/301/2012.
13.  Coming to the merits of the complaint, the contention of the Complainant is that upon intimation of the claim, the survey was conducted by the surveyor Mr.V.Gururaja who calculated the loss to Rs. 90,971/- and submitted report on 31.10.2008 and recommended payment. The complainant has filed survey report by Mr.V.Gururaja in support of his contention. It is also evident from the record that the claim bill along with other relevant documents was received by the Opposite Party on 27.11.2008. On the other hand, the contention of the Opposite Party is that on receipt of the claim intimation, they appointed their investigator namely Active Claims Consultants to investigate the genuineness of the claim lodged who submitted their report dated 14.03.2009 with the finding that the Carrier’s address found fake. The Opposite Party also alleged that the Complainant had played fraud. The Complainant has denied the allegation and asserted that the transporter was genuine transporter and is registered with service tax dept. It is also alleged by the Complainant that the plea that transporter was fake has been raised for the first time and said report dated 14.03.2009 had never been part of any record. 
14. The perusal of the material on record reveals that the Opposite Party in their pleadings has neither denied to have deputed the said surveyor Mr.V.Gururaja upon intimation of claim nor have they disputed his report or findings. The opposite party has nowhere acknowledged this fact that initially the survey was done by the surveyor Mr.V.Gururaja and preferred to ignore this fact completely. The Opposite Party has not been able to explain satisfactorily as to why they had to appoint an investigator to check genuineness of the claim at later stage after the surveyor Mr.V.Gururaja had submitted his report and recommended payment, nor have they proved the said investigator’s findings. The Opposite Party has also failed to show that the Complainant was informed about the said development regarding appointment of investigator, hence, the whole exercise of deputing the investigator namely Active Claims Consultants seems to be one-sided affair which makes the contention unworthy of reliance.
15. Further, the perusal of the repudiation letter dated 08.02.2012 shows that the claim has been repudiated on the ground “Non-disclosure of material information”, not on the ground of “Carrier was found fake” as is contended by the Opposite Party in the pleadings. The Opposite Party has also failed to show as to which material information had not been disclosed by the Complainant making the repudiation of the claim questionable.
16.  In this context, we would like to refer the judgement by Hon’ble Supreme Court in the matter titled Saurashtra Chemicals Ltd.  vs.  National   Insurance Co.  Ltd. [(2019) 19 SCC 70] wherein it was held:
    •  

 

17.   Again, confirming the above settled position, Hon’ble Supreme Court also held in the matter JSK Industries Pvt. Ltd. v. Oriental Insurance Company Limited SLP (Civil) No. 21524 of 2018 as follows;
    •  
18.  In view thereof, we are of the considered view that Opposite Party was not justified in repudiating the claim of the Complainant, hence, committed deficiency in services to the Complainant.
19. It is to be noted that the Complainant has prayed for the claim amount Rs. 1,07,592/- which includes Rs. 90,971/- (Damage assessed), Rs. 5,476/- (Freight charges) plus 10% of the sum under the policy plus the surveyor fee. We are inclined to disallow the freight charges as only part of the consignment was found damaged and the charges pertained to whole consignment. Secondly, the amount on account of surveyor fee cannot be considered in absence of any proof of payment placed on record by the Complainant in that regards.
20. Thus, we partly allow the complaint and direct the Opposite Party to pay to the Complainant Rs. 90,971/- (Rs. Ninety Thousand, nine hundred and seventy one only) plus 10% i.e. Rs. 9,097/- (Rs. Nine thousand and ninety seven only) alongwith @ 6% interest p.a. from the date of filing the complaint. The Opposite Party is further directed to pay Rs.7,000/- (Rs. Seven thousand only)towards compensation and the litigation cost. The Opposite Party is liable to pay the same within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks Opposite Party will be liable to pay interest @ 6% p.a. for the delayed period
21. Order announced on 21.04.23.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room.

(Anil Kumar Bamba)           Member

(Adarsh Nain) Member

(Surinder Kumar Sharma) President