Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 21/31.01.2018
M/s Rathi Bars Limited
HO- A24/7 Mohan Cooperative Industrial Estate
New Delhi-110044
Also at - SPI-7 RIICO Industrial Area, Khushkhera
District Alwar Rajasthan - 310029 …Complainant
Versus
National Insurance Company Limited
(through its Director/Principal Officer)
Division No.XXII 4th floor, Pal Mohan House,
5/67 Padam Singh Road, Karol Bagh, New Delhi-110005 ...Opposite Party
Date of filing: 31.01.2018
Coram: Date of Order: 07.06.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
ORDER
Inder Jeet Singh , President
The case is scheduled today for Final Order (item no. 14).
1.1. (Introduction to case of parties) –The complainant has grievances of deficiency of services against the OP that the iron bars/goods were sent to the customer after loading on the truck, however, the goods had not reached to the customer as the same were stolen, the claim was lodged within the tenure and terms of policy but it was not settled, that is why the complaint for entire invoice claim of Rs. 6,58,288/- with interest at the rate of 18% besides compensation of Rs.5 lakh in lieu of mental tension, agony, harassment and humiliation suffered, cost of proceedings and other relief.
1.2. The OP/insurer opposed the complaint that neither there is any deficiency of services nor any claim is made out since there is material contradiction in the claim as well as conflict of registration number of vehicle took the goods. The claim is without any cause of action besides delay of 16 days in reporting the matter to police. There is violation of terms and conditions of the policy. The complaint is liable to be dismissed.
1.3 It is material to mention here the parties' pleadings comprises the complaint, the written statement and the replication. Moreover, the pleadings are supported by documents. However, some facts and figures are not appearing in the pleading but the same are in the documents. Therefore, in order to maintain the symmetry with the pleading of the parties, it is being felt appropriate to narrate the case of the parties as mentioned in the pleading and the documents separately.
2.1. (Case of complainant) –The complainant is a registered company and Shri Rajender Kumar Sharma is its AR to sign, verify, institute and file the complaint by virtue of Board Resolution dated 02.06.2017 vis-à-vis he is well conversant with the facts and features of the case. On the other side, the OP is also a registered company and it offers insurance policy for various risks cover inclusive of industrial risks insurance and commercial risks insurance.
2.2. The complainant took insurance of its consignment under Marine Cargo Open Policy no. 354500/21/15/4400000022 [in brief insurance policy ]from OP in respect of risk, damage, theft of goods etc. covered under the policy.
On 11.01.2016 at about 6:30 pm a consignment of about 20 tons TMT bars was loaded on the truck from the office of the complainant to deliver the consignment at Udaipur. But the truck did not reach Udaipur and consignment was stolen. On 27.01.2016 formal FIR bearing no. 17/2016 was registered u/s 407/420/120B IPC at PS Khushkhera District Alwar, Rajasthan against the driver of the truck and other persons. Lateron, final report no. 93/2016 was filed by the police on 04.07.2016 after detailed investigation, while concluding that the cargo was stolen by the accused/driver of the truck after loading it from the office of complainant by presenting forged documents. The complainant had already informed the police on 14.01.2016 about non-delivery of consignment at Udaipur but police did not take any action, consequently on 18.01.2016 Sh. Iliyas Khan (who was transport broker) filed an application u/s 156(3) CrPC in the court of Judicial Magistrate, Tijara, District Alwar, Rajasthan, the said Iliyas Khan made statement regarding theft of the said consigment and then police registered the FIR on receipt of direction from the court. Moreover, the complainant immediately informed the OP of episode by lodging claim no. 35450021/15/90130915, the complainant requested the OP to settle the claim of Rs. 6,58,288/-on account of theft and non-delivery of consignment.
2.3 OP’s surveyor M/s Active Claim Consultant conducted the survey and they email dated 09.12.2016 to the complainant to clarify as in the FIR the registration number of the vehicle was mentioned as HR 56 5814 but in the challan cum invoice no. 2630 dated 11.01.2016 (issued by the complainant) and GR no. 2372 dated 11.01.2016 (issued by Baba Mohan Ram Transport Company) the registration number of vehicle mentioned was HR 56 5814. The complainant sent clarifying letter that there was inadvertent mistake on the part of transporter, while mentioning wrong vehicle number as well as the transporter has corrected that mistake in GR and also issued clarification letter dated 12.01.2017 to this effect. The complainant requested the OP that since clarification stand sufficiently made and let the claim be settled. The police has also sufficiently established through investigation that consignment was stolen in a pre-planned manner by the driver of the truck vis-à-vis confusion regarding registration number of the truck was clarified by the transporter.
However, it shocked the complainant on receipt of OP’s reply dated 02.06.2017 that claim was arbitrarily rejected on the ground that complainant has committed negligence for mentioning the registration number of the vehicle in which consignment was loaded by the complainant and also there was delay of 16 days in registration of FIR. Whereas, there was no negligence on the part of complainant besides the police investigation, transporter and the complainant had sufficiently clarified that registration number of the vehicle was HR 56 5814 and every situation to the official of respondent. It seems the intention of OP has become mala-fide and it is refusing to release the claim amount. Since there was no heed paid to the request of complainant, therefore, the complainant served legal notice dated 08.11.2017 upon the OP to pay and settle the claim of Rs. 6,58,288/- with interest, the notice was not complied but a false and frivolous reply was given to deny the legitimate claim of complainant. The complainant suffered great mental shock, agony, torture and harassment at the ends of OP. There is deficiency of services and complainant was left with no option but to file the complaint.
The complaint is accompanied with copies of – Board Resolution dated 02.09.2017, insurance policy, invoice-cum-challan dated 11.01.2016, bilty, the FIR & police report, claim form, clarification letter dated 12.01.2017 by the transporter, OP’s letter dated 02.06.2017 while declining the claim, legal notice dated 08.11.2017 and its reply by OP.
3.1 (Case of OP)-The complaint is opposed by the OP that complainant came before the Commission without clean hands and it has not divulged real facts but concealed the material facts. As per record - the GR and the invoice- the registration number of truck used for transportation of iron bars is HR 55 5814 but in the police paers the registration number of the truck is mentioned as HR 56 5814. Moreover, Sh. Iliyas Khan in his statement dated 25.04.2016 before the Magistrate mentions truck registration no. HR 55 5814, which is a glaring contradiction. As per statement of Sanjay, who is stated to be a registered owner of truck no. HR 56 5814, mentions that documents of truck were stolen from the truck on 26.12.2015, the said truck was never sent to the factory site of the insured. Moreover, the OP during scrutinizing the entire documents has found contradictions on number of occasions. There is every likelihood that documents of truck having registration no. HR 56 5814 would have been misused by the offenders named in the criminal record.
In addition, the staff/official of complainant seem to be negligent and careless since the registration number of the truck was fed into the invoice and GR, without physical verification. There was no reasonable care has been taken by the insured. There are also number of loopholes in the entire transaction. The said loss is the result of negligence, collusion and conspiracy among the transporter and the employees of the insured.
3.2. There is also delay of 16 days in lodging the FIR, it is inordinate and unexplained delay. The delay of 16 days in lodging the FIR and intimation to the OP are violation of terms and conditions of the policy.
3.3 The OP has rightly closed the claim file as 'no claim' since there is negligence on the part of complainant/insured and its employees. Thus, no liability can be fastened against the OP. The complainant cannot take benefit of their own wrongs. The complaint is liable to be dismissed.
4. (Replication of complainant) - The complainant files detailed replication while explaining the circumstances as well as denying the allegations of written statement. The complainant has not suppressed or concealed any fact. There was inadvertent mistake on the part of transporter by mentioning registration no. HR 55 5814 in place of HR 56 5814 besides the transporter has also issued clarification. The correction was made before filing the FIR; the FIR and report of the police also mentions correct registration no. HR 56 5814. The complainant denies that Sh. Iliyas Khan in his statement dated 25.04.2016 mentions registration no. HR 55 5814 but he mentions HR 56 5814. Sh. Sanjay is one of the accused in the said FIR. There are no contradiction or glaring contradictions regarding registration number since the same was rectified in the record immediately. The police was informed in time, however, the police had not take any action, then application u/s 156(3) CrPC was filed on 18.01.2016 and FIR was registered on 27.01.2016, on receipt of order of the court. There was also no negligence on the part of complainant or its staff and the claim was wrongly closed. The complaint is correct.
5.1.(Evidence) -Complainant led evidence by filing affidavit of evidence of Shri Rajender Kumar Sharma, AR (who also authored the written statement), affidavit is on the tune of complaint with documents.
5.2. OP led evidence by filing affidavit of Shri Raghunath Pawar, AO (Legal), in the form of his affidavit coupled with documents, which is replica of the reply. The affidavit of evidence is supported with document of commercial vehicle package policy valid from 04.01.2016 to 03.01.2017, no claim letter dated 02.06.2017.
6.1 (Final hearing)- The complainant and the OP have filed their written submissions, which is blend of pleadings and evidence, the facts in issue and relevant facts have already been referred in the case of parties, it does not require to reproduce them again.
6.2. The parties were given opportunity to make oral submissions, therefore, Sh. Shobit Trehan, Advocate along-with Ms Renuka Permanand, Advocate for complainant and Sh. Sandeep Kumar Advocate for OP presented their oral submissions.
Ld. Counsel for complainant, in order to fortify its contention, relies upon Smt. Susheelamma & Ors Vs. Eshwaraiah & Anr. M.F.A No. 4949/2016 (MV) dod 04.11.2020 by Hon’ble High Court of Karnataka, wherein the issue of mistake/typographical error in the recording the vehicle number in the petition was considered but by taking into account other surroundings circumstances of registration number in FIR, the same was considered that the Tribunal shall not go with hyper technical to defeat the legal entitlement of the claim.
7.1 (Findings)-The contentions of both the sides are considered, keeping in view the pleadings and evidence of the parties, the written arguments, oral submissions and case law presented .
7.2. By taking into account stock of all the material on record, there are some undisputed facts but many rival plea of the parties, the same are culled out as follows:-
(i) There is no dispute that the complainant had insurance policy and date of episode of theft on 11.01.2016 is during the currency of policy. There is also no dispute that formal FIR was registered and police had investigated the matter but of delayed FIR.
(ii) At the outset, by looking at the dates at glance that episode was of 11.01.2016 but the FIR was registered on 27.01.2016 but there are other intervening circumstances that matter was reported to the police when the carrier had not reached with goods. When it was reported to police on 14.01.20216, the local police had not registered the case. Thence other legal remedy was availed, an application was filed u/s 156(3) CrPC thence on the direction of court of Judicial Magistrate, the FIR was recorded on 27.01.2016 on the receipt of order from the court. In addition, matter was reported to police but the formal registration of FIR was in the hands of police, who declined it and court orders were applied. Therefore, the intervening delay stand explained and the OP cannot derive any benefit by saying that there is breach of condition of insurance policy.
(iii) It is matter of documentary record that in the invoice and GR receipt, the vehicle number mentioned is HR 55 5814 but in investigation by the police it stand surfaced, which is also the case of the complainant, that registration number was HR 56 5814, that too after furnishing of record of RC and PAN card of owner of the vehicle.
The FIR and the other report mentions registration number of the vehicle as HR 56 5814 and not HR 55 5814 as claimed by the OP, although the police has investigated facts of both the trucks.
(iv) The complainant has proved the police report to the effect of investigation that the driver of vehicle had presented forged document of vehicle no. HR 56 5814 in the office of complainant to get loaded the Iron bars/goods and the same was taken away.
(v) As per the report of police proved, Shri Iliyas Khan is proprietor of Bishnoi Transport Bhiwadi and he deploys the vehicle for transportation for goods and on 11.01.2016 it had sent vehicle bearing registration no. HR 56 5814 through Baba Mohan Ram Transporter to the complainant and the said vehicle belongs to Sh. Sanjay.
There is no fact stated by either of the parties, whether the surveyor was appointed by OP nor any fact that when the truck/carrier arrived at the complex of the factory of the complainant, what was the number plate it was bearing or whether it remained unnoticed at that material time when GR was presented at the counter to load the goods that physical number appearing on the nameplate was or not different from the said receipt.
However, the OP acclaims that there was statement of Shri Illiyas and of Sanjay by reciting registration number HR 55 5814. OP has not proved such statement but the police report talks about registration number HR 56 5814. The report of police does not decipher any negligence or conspiracy angle against complainant. But police report is against driver of the vehicle and others that papers of vehicle no.HR56 5814 were forged and misused; this is also so stated by the OP in its case [paragraph 4 of preliminary objections and paragraph 5 of affidavit of evidence].
It is not out of context to mention that the OP had appointed M/s Active Claim Consultant, who had conducted the survey but the OP has not placed on record the copy of surveyor report nor proved it. Moreover, the OP had not filed any document with the reply, the appropriate stage for filing of document was with the pleading. The OP filed them with the affidavit of evidence, that too without permission but subsequently, it was discovered that wrong terms and conditions were filed, then actual terms and conditions were replaced m 30.11.2023.
(vi) At the stage of final arguments, the OP had realised that relevant terms and condition of policy were not filed but commercial vehicle package policy was filed. It was filed with the permission vide order dated 30.11.2023. The OP refers terms and conditions of inland transit (Rail or Road) clause-A (all risks) to emphasis the exclusion clause no. 2.1 that when the loss or damage or expenses are attributable to willful conduct of the assured, there will be no liability of insurance company.
However, there is no proof of such fact by OP that there was willful misconduct of the assured in respect of mentioning of wrong registration number of the vehicle vis-à-vis the mistake had occurred in the office of transporter for consigner since the bilty GR was generated by the transporter for the consigner and the invoice is prepared subsequently. Therefore, the mistake occurred in writing the registration no. HR 55 5814 happened in the office of transporter, which was repeated in the invoice subsequently but immediately it came to notice the transporter had issued clarification letter to all concerned. The police was also reported and the formal FIR is after few days, it takes into account and mentions registration no. HR 56 5814 in FIR as well as in report of police. To say, the circumstances do not prove that there was willful act or any misconduct on the part of complainant for mentioning wrong registration number of the truck, therefore, the exclusion clause no. 2 of terms and conditions of insurance policy would not be applicable. It is situation of human error and the case law presented on behalf of complainant support its case.
(vii) The complainant has proved a copy of invoice/bill that the goods were worth of Rs. 6,58,288/- which were loaded in the truck for Udaipur Rajasthan, the truck never reached there.
(viii) The aforementioned conclusions and circumstances established the case of complainant that the goods were loaded in the truck for Udaipur Rajasthan but the truck had not reached Udaipur Rajasthan, the goods loaded were stolen and case was registered, it was also investigated by the police. There is nothing in that investigation that the complainant was at fault. Therefore, the complainant has lodged a valid claim of Rs. 6,58,288/- but it was declined by the OP; the OP was confronted with situation what to be believed or to act upon.
Now, the complainant is held entitled for this valid claim of Rs. 6,58,288/-.
7.3. Another aspect of the case is that the OP had treated the claim file as of “no claim” and it was closed so vide letter dated 02.06.2017; it was not a repudiation of the claim. Further, the OP has invoked the exclusion clause no.2, while opposing the claim and in fact OP has formed final opinion to decline the claim, it is also so mentioned in evidence (paragraph no.7 of the affidavit), the OP refers it repudiation letter.
Therefore, in view of the conclusion drawn in paragraph 7.2 above, the consumer dispute stand determined in this complaint, there is no scope for remanding of matter for reconsideration to Insurer just because of claim file was treated by it was ‘no-claim’ case.
7.4. The complainant claims interest at the rate of 18%pa from the date of complaint till realization of amount, whereas, there is no agreed rate of interest vis a vis issues involved and determined, does not make out case of interest in favour of complainant and against OP. This request of complainant is declined.
7.5 The complainant also claims Rs.5,00,000/- as compensation in lieu of all trauma and agony faced besides costs of litigation. Since after exhausting the remedy with OPs, then complainant was constrained to file complaint for claimed amount, therefore, the compensation of Rs. 10,000/-, to the situation of this case, is determined and is allowed in favour of complainant and against OP besides cost of Rs. 5,000/-.
7.6. Accordingly, the complaint is allowed in favour of complainant and against the OP while directing the OP to pay a sum of Rs.6,58,288/- alongwith compensation of Rs.10,000/- and costs of Rs.5,000/- payable within 45 days from the date of this order. In case the OP does not pay the amount within stipulated period, then there will be interest of 4%pa. The OP may also deposit the amount in the form of valid instrument in the name of complainant in the Registry of this Commission.
8. Announced on this 7th day of June 2024 [ज्येष्ठ 17, साका 1946].. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
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