Delhi

North East

CC/512/2015

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

Versus

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

05 Jan 2024

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. 512/15

 

 

 

 

 

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 Mubarjakpur, 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:

31.12.15 04.10.23 05.01.24

 

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. 361701/21/04/4400000081. The Complainant had sent goods as per order against invoice no.756dated 30.08.2005 for Rs. 06,60,784.84 to the consignee M/s Alif Enterprises, Mumbai. 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  authorised surveyor who calculated the loss to Rs. 90,626/- and submitted report and recommended payment. Since the said consignment was duly insured,the claim was lodged for Rs. 1,03,367/-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 for Rs. 1,03,367/- on 28.10.2005, 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 pending claims including the present claim.
2. The Complainant had also served a legal notice to Opposite Party dated 09.08.12 demanding the payment of Rs. 1,03,367/- but Opposite Party failed to pay the said amount. The Opposite Party has given false and frivolous reply taking the stand that the claim file has been destroyed/ not traceable and is time barred. It is submitted that the plea of the Opposite Party is wrong as the claim cannot become time barred until repudiated and the claim has not been repudiated till date.
3. It is further submitted that the Complainant had filed a complaint before this Commission which was dismissed by this commission vide its order dated 17.10.2013 as pre-mature with liberty to file afresh as and when the claim of the Complainant is rejected.
4. It is further submitted that the Complainant filed an appeal against the above order before Hon’ble State Commission and during the pendency of appeal, the Opposite Party had rejected the claim of the Complainant vide letter dated 29.01.2015 and thereafter, vide order dated 16.09.2015, Hon’ble State Commission held that as the claim has been repudiated, the Complainant is entitled to file the fresh complaint. Hence the present complaint has been filed. It is alleged that the repudiation letter issued by the Opposite Party is wrong and illegal and the Complainant has replied the same vide his letter dated 07.09.2015. The Complainant submits that the Complainant received the letter dated 1.07.2013 from the surveyor namely Alka Gupta and Associates demanding required documents. The Complainant submits that he had duly complied the letter dated 1.07.2013 and handed over all the required documents vide letter dated 02.08.2015 which was duly acknowledged by the surveyor on 05.08.2015. The Complainant had already submitted all the required documents and despite that Opposite Party was demanding documents which were illegal. It is also submitted that Opposite Party had also demanded GR verification while the GR verification could be done by the concerned transporter and not from the Complainant and same was communicated to the Opposite Party also. It is also alleged that the GR verification was already done by the surveyor and the same was not even mentioned in the letter dated 1.07.2013. The repudiation of the claim is wrong and illegal and the Opposite Party is illegally retaining the aforesaid amount. This shows deficiency on the part of Opposite Party. Complainant has prayed for Rs. 1,03,367/-  with interest @ 12% p.a from the due date of Sept,2005 till the actual payment.
5. Notice was issued to the Opposite Party on 03.02.2016 and the Opposite Party  entered appearance on 15.03.2016.

Case of the Opposite Party

6. The Opposite Party contested the case and filed written statement. In the written statement, Opposite Party has taken preliminary objection on the ground of limitation as the loss has been stated to have occurred in the year 2005 and more than 11 years have elapsed. The Opposite Party has also raised preliminary objections on the ground of territorial jurisdiction and on the ground of Complainant carrying commercial activities. Apart from raising the aforementioned preliminary objections, the Opposite Party has resisted the complaint on merits. While admitting the factum of insurance cover, the Opposite Party contends that the subject loss was reported to Opposite Party with a delay of 9 days from the date of arrival and the Complainant did not reply the letter dated 27.02.2006 asking the reason for delay.  It is alleged that again the letter dated 11.07.2013 was sent from the surveyor asking for clarifications but no reply was given. It is submitted that the Opposite Party being a public sector undertaking, is bound to ensure that only genuine claims are paid. Hence, no deficiency on their part and complaint merits dismissal.

Rejoinder to the written statement of Opposite Party

7. 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

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

 

Evidence of the Opposite Party

9. 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

10. 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.
11.  The case of the Complainant is that the subject consignment, insured with Opposite Party, was allegedly received by the consignee in damaged condition and the matter was immediately reported. The survey was conducted by the authorised surveyor who calculated the loss to Rs. 90,626/- and submitted report and recommended payment. Since the said consignment was duly insured, the claim was lodged for Rs. 1,03,367/- 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 for Rs. 1,03,367/- on 28.10.2005, the Opposite Party failed to consider the claim of Complainant. In reply to the legal notice sent by the Complainant in this regards, the Opposite Party initially took the stand that the claim file has been destroyed/ not traceable and is time barred.Later, in compliance of this Commission’s order dated 18.04.2013, the Opposite Party repudiated the claim vide letter dated 29.01.15 on the ground of non-submission of required documents while the Complainant had submitted all required documents. The Complainant has alleged illegal retention of legitimate claim by Opposite Party and prayed for payment of claim amount with interest. 
12. On the other hand, the Opposite Party raised the preliminary objections on the ground of limitation as the loss has been stated to have occurred in the year 2005 and more than 11 years have elapsed, on the ground of territorial jurisdiction and on the ground of Complainant carrying commercial activities. The Opposite Party has also resisted the complaint on merits. While admitting the factum of insurance cover, the Opposite Party contends that the subject loss was reported to Opposite Party with a delay of 9 days from the date of arrival and the Complainant did not reply the letter dated 27.02.2006 asking the reason for delay.  It is also alleged that the Complainant also did not reply the letter dated 11.07.2013 sent from the surveyor asking for clarifications. It is submitted that the Opposite Party being a public sector undertaking, is bound to ensure that only genuine claims are paid. Hence, no deficiency on their part and complaint merits dismissal.
13. It is pertinent to mention here that the preliminary objectionas to territorial jurisdiction raised by the Opposite Party in their reply has been decided by the predecessor bench of this commission vide order dated24.06.2020 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.
14. The Opposite Party has also raised the objection on the ground of limitation as the loss has been stated to have occurred in the year 2005 and more than 11 years have elapsed. The perusal of the record reveals that the present claim was repudiated vide letter dated 29.01.15in compliance of this Commission’s order dated 18.04.2013, and the present complaint was filed on 31.12.2015, hence the contention of the Opposite Party is liable to be rejected.
15.  So far as the objection on the ground of Complainant being a commercial concern is concerned, the law is settled on the point to the effect that commercial enterprise is also a consumer for insurance claims as the dominant intention is such claims is indemnification not the profit generation. In the present matter also, the Complainant had taken a marine policy from the Opposite Party after payment of premium to cover the envisaged risk for indemnification of actual loss and not to generate profits and as such is a consumer under Consumer Act.
16.  Coming to the merits of the complaint, the contention of the Opposite Party isthatthe subject loss was reported to Opposite Party with a delay of 9 days from the date of arrival and the Complainant did not reply the letter dated 27.02.2006 asking the reason for delay. The perusal of the pleadings shows that the Complainant has denied to have received any such letter and asserts that he had reported the matter in time which shifts the onus on the Opposite Party to prove their contention. Since, the Opposite Party has neither produced the said letter nor produced any evidence showing that such letter was received by the Complainant; the contention of the Opposite Party cannot be accepted.
17.  The perusal of the repudiation letter dated 29.01.15 reveals that the Opposite Party rejected the claim on the ground of non-submission of required documents and the contention of the Complainant is that he had duly complied the letter dated 1.07.2013 and handed over all the required documents vide letter dated 02.08.2015 which was duly acknowledged by the surveyor on 05.08.2015. The Complainant has produced the copy of letter dated 1.07.2013 with acknowledgement from the surveyor dated 05.08.2015. The Complainant also contends that Opposite Party had also demanded GR verification while the GR verification could be done by the concerned transporter and not from the Complainant and same was communicated to the Opposite Party also. It is also alleged that the GR verification was already done by the surveyor appointed initially and the same was not even mentioned in the letter dated 1.07.2013.
18.  In view of the fact that the Opposite Party has not rebutted the evidence led by the Complainant and failed to produce any cogent evidence in support of their contentions, we are of the considered view that the Opposite Party has been deficient in services by rejecting the legitimate claim of the Complainant.
19. Thus, we allow the complaint and direct the Opposite Party to pay to the Complainant Rs. 1,03,367/- alongwith 9% interest p.a. from the date of filing the complaint. The Opposite Party is further directed to pay Rs.15,000 towards compensation and the litigation cost with interest @ 9% p.a. for the delayed period.
20. Order announced on 05.01.24.

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