ORDER

29.05.2024

Sh. Sanjay Kumar, President

1. Brief facts of the present case are that complainant is running a business of chemical and had been taking Marine Cargo Open Policy no.366003211810000105 from OP Insurance company w.e.f 02.07.2018 to 02.07.2019 and paid premium of Rs.94,000/-. It is stated that on 18.04.2019 complainant has purchased dispatched from Kandela Gujarat, vide GR no.3266 dated 18.04.2019 in tanker no. GJ12AW0847 having goods as per invoice no. M000959 dated 18.04.2019 issued by R.R. Innovative Pvt. Ltd. in favour of complainant.
2. It is stated that on 20.04.2019 at about 5 am tanker met with an accident and over turned about 30km from Jodhpur at Jodhpur Nagpur Road. It is further stated that according to tanker driver in the process of saving a car which was overtaking the tanker suddenly turned to its left side due to which sudden brake applied by car and tanker driver also steered his vehicle towards left side to avoid mishap with the car and in this tanker become unbalanced and went beyond control. It is further stated that the road side was sandy with small builders/stones/pits and the tanker was capsized on its left side and the chemical which is a liquid started flowing through top filing cover of all five compartments and also from compartment no.3 due to piercing of compartment sheet and material started flowing with full flow and valves of the tanker also broken. It is further stated that due to this reason the chemical had flowing out through tanker on the road and photographs are filed on record.
3. It is stated that the transporter had informed the complainant and complainant also  informed the branch manager Mr. Vishal Jain of OP in the early morning and loss was also intimated. It is stated that Mr. Vishal Jain advised to intimate the claim in writing, thereafter via mail claim was intimated to OP on the same day. It is further stated that the driver and transporter of the tanker informed the police and police came after three four hours but FIR was not registered as there was no injury due to the accident. It is stated that driver was instructed by transported to take the photographs of the tanker. It is stated that complainant instructed the transporter to uplift the tanker as early as possible to minimize the loss.
4. It is stated that on 20.04.2019 at about 11.30am the tranporter had called cranes for uplifting of the capcized tanker to minimize the loss and lifted the tanker and placed it at proper position. It is further stated that the accidental tanker sustained major damages and was not in position to move onwards journey, therefore, transporter arranged another MT tanker no.GJ-12-AV-9451 on 21.04.2019 and the carrier informed that they will manage pump and other items to transfer the left over material from the accidental tanker by the next morning. It is stated that on the same day weight of the empty tanker GJ12AU9451 at a nearby electronic weight bridge and then return back to Jodhpur. It is stated that due to mishap the delivery valvues (outlet valve five no) were got detached from the pipleline of individual compartment and the compartment stopped coverseals five no., one at shut off value and one at delivery valve were got broken. It is stated that chemical was flow from the valve of tanker and the seals were collected and there nos were matched with as started in the delivery challan no. 18329 dated 18.04.2019.
5. It  is stated that the accidental tanker lifted at approx,. 11.30 am  as informed by the driver to Surveyor Mr. O.P Sharda, appointed by  Jodhpur office of National Insurance Co. Ltd. on 21.04.2019 in the last evening hours. It is further stated that on 21-22.04.2019, the surveyor was visited on accident took place and met the driver Mr. Gordhan. It is stated that the surveyor has discussed about the detail of accident from the tanker driver. It is further stated that the surveyor has again contacted next day on 22.04.2019 at about 9 am, It is stated that it was learnt that they are still in process of arranging the requisites. It is further stated that about 3 pm, they received call from them, that offer long search, they were able to manage pipe for transfer, as same got melted when are in contact with this chemical. It is stated that again proceed to the site and started transferring the material with the help of diesel aperated engine and pump. It is stated that also some volume was transferred manually, then again weighment of transferred material into tanker no. GJ-12/AU-9451 was done to find out the shortage taken place and prepared a surveyor report.
6. It is stated that on 22.04.2019 another tanker and equipment to transfer the chemical in another tanker were arranged and balance chemical was shifted to another tanker  bearing no.GJ-12-AU-9451 weighment of tanker was due to near the spot of accident to find out the exact amount of shortage, by insurance company Surveyor Mr. O.P. Sharda 13150 kgs was noted on the spot. It is further stated that in the tanker had five chamber-4 x 5000 ltrs and 1 x 4000 ltrs (last one). It is stated that the transporter  had informed to the complainant that two chambers of 5000 ltrs each were absolutely empty when the tanker was lifted up because of broken valves, which are visible from photographs as tyre of truck had struck the valves and one chambers of 5000 ltrs was almost 60% empty because of hole in the tanker sheet. It is stated that the chemical has spilled from the upper lids of the tanker and major spillage has occurred from the valves of the tanker and two valves of which were broken, valves are the parts of the tanker which are used to take the liquid/chemical out of tanker. Same weighment was done  in front of your surveyor and weighment slip confirms our narration and same was confirmed by your Surveyor also in his report dated 03.05.2019.
7. It is stated that the company surveyor Sh. O.P Sharda has assessed loss and submitted his Surveyor report. It is further stated that as per surveyor report dated 03.05.2019, amount of loss due to shortage taken place with GST (Rs.130.90 x 13080.000 kgs), Rs.17,13,218.00 and add 10% Rs.1,71,321.00 as per terms of policy. Total loss amount Rs.18,84,539/-. It is further stated that the complainant has agreed for settlement on claim amount of Rs.18,84,539/- according to the Surveyor report, but OP had not given claim amount as per surveyor report dated 03.05.2019.
8. It is stated that the respondent has amended surveyor report without informing the complainant, just on the basis of a fictious and defective investigation report and when the complainant objected to the same than surveyor was called in a closed door meeting without involving the complainant and surveyor report was changed to suit the insurers. It is stated that the amendment of the investigation report is totally based on assumptions without any fact. It is further stated that complainant gave clarification and proof to the respondent that owner of the tanker bearing no. GJ 12AW 0847 has received claim amount for his damaged tanker alongwith safety valve to be replaced due to the accident and also provided loss document of the tanker which clearly established that valves of the tanker were damaged and have been replaced.
9. It is stated that complainant had submitted all documents with the claim at the office of respondent and thereafter innumberable mails and letters were sent to respondent raising same queries time and again and complainant also given reply to respondents mail time to time. It is further stated that on 13.02.2020 the respondent has sent a letter to complainant and demanded some documents within seven days and also given directions that if the complainant will not submit documents than the file be closed as “No Claim”.
10. It is stated that complainant covered all material as per policy under Inland Transit Clauses-A (All Risks). It is stated that loss has occurred transit due to a covered peril and quantum is proved with the help of written documents given to two different parties i.e Surveyor and Transporter. It is stated that complainant has requested to respondent for look into the facts and get the genuine claim of Rs.18,94,626/-. It is further stated that the complainant had been paying the premium to enjoy the benefits of the policy. It is further stated that respondent is liable for deficiency of service and complainant also suffered grave mental physical and financial harassment and loss on account of highly arbitrary and unreasonable action in disallowing the legitimate claim of the complainant.
11. It is stated that complainant had sent a legal notice through his counsel and respondent has not given any reply. The complainant is seeking claim of Rs.18,94,626/- alongwith 18% interest per annum from the date of accident till the date of actual payment, compensation of Rs.2,00,000/- for causing severe mental strain, damages, mental harassment suffering and humiliation as well as irrepairable loss due to acts of respondent and to pay Rs.1,00,000/- towards the legal expenditure.
12. WS filed by OP and taken preliminary objections that complainant is a company and doing commercial activities, therefore, does not come under the definition of consumer. It is stated that there is no deficiency of service on the part of OP. It is further stated that upon intimation of the claim Sh. O.P Sharda surveyor deputed to survey and assessment of loss. It is stated that initially loss was intimated as per mail addressed to Sh. Vishal Jain Branch Manager Shahdara to the tune of Rs.2,00,000/- only supported by the photographs taken by the driver on 20.04.2019. The surveyor given his report dated 26.10.2019.
13. It is stated that the investigator M/s Utmost also given the report. It is further stated that based upon the surveyor report the loss was assessed as Rs.9,19,860/- and the same including basis of evaluation and excess amounting to Rs.9,76,089/- and same was communicated to complainant on 22.12.2019 with a request to complete post claim approval formalities which was not accepted by the insured. It is further stated that on the request of insured a meeting was arranged in the office in the presence of investigator Mr. Rajneesh Kohli care of Utmost Investigator on 20.01.2020 in order to discuss the quantum of loss. It is stated that as per advise of the insured in the meeting the matter was referred for expert opinion on oil leakage/spillage from the two broken valves of the said tanker with all the documents and photographs submitted by insured with the claim and the opinion was immediately communicated vide mail 27.01.2020 to the insured.
14. It is stated that after the expert opinion and other facts and circumstances of the loss the insurance company stood by its earlier decision already communicated to the insured vide mails dated 22.11.2019 and 27.01.2020 and once again requested to furnish post approval formalities to settle the claim at the earliest. It is further stated that despite repeated reminders dated 22.11.2019, 13.12.2019, 19.12.2019, 27.01.2020 and 13.02.2020 the insured did not furnish the post approval formalities and OP had no option but to close the file as “No Claim”. It is stated that there is no deficiency on the part of OP. The OP has filed on record copy of insurance policy alongwith terms and conditions of the policy, report dated 03.05.2019 of surveyor sh. O.P Sharda, investigation report of M/s Utmost Investigator dated 20.08.2019, report of Sh. O.P Sharda surveyor dated 26.10.2019, expert opinion dated 24.01.2020 and pre repudiation letters and reminders. The repudiation letter is also filed on record.
15. On merit all the allegations made in the complaint are denied and contents of preliminary objections are reiterated. It is stated that complainant is not entitled for any relief claimed in the complaint.
16. As  per record no rejoinder filed by complainant to the WS.
17. Complainant filed evidence by way of affidavit of Sh. Satish Garg, Director. In the affidavit contents of complaint reiterated. The complainant relied on photographs  filed on record. In the affidavit complainant stated that he relied all the documents filed on record but not specifically exhibited any document.
18. OP filed evidence by way of affidavit of Sh. Karushna Negi Administrative Officer. In the affidavit contents of WS reiterated. OP relied on copy of insurance policy alongwith terms and conditions of the policy Annexure A, report dated 03.05.2019 of surveyor sh. O.P Sharda Annexure B, investigation report of M/s Utmost Investigator dated 20.08.2019 Annexure C, report of Sh. O.P Sharda surveyor dated 26.10.2019 Annexure D, pre repudiation letters and reminders Annexure E, repudiation letter Annexure F.
19. Complainant filed written arguments as well as OP.
20. We have heard Sh. Sahil counsel for complainant. The counsel for OP Sh. Vijay Gupta did not appear despite given opportunities. We have gone through the written arguments filed by OP.
21. It is admitted case of the parties that complainant got issued Marine Cargo Open Policy from OP Ins. Co. effective from 02.07.2018 to 01.07.2019 and paid premium Rs. 94,400/-. As per case of the complainant on 18.04.2019 Cyclohexanone 24780 kg purchased  and dispatched from Kandla, Gujarat while GR No. 3266 dated 18.04.2019 in a tanker GJ-12-AW-0847 and on 20.04.2019 at about 05:00 AM met with an accident on Jodhpur-Nagpur road at about 30 kms from Jodhpur. It is admitted by OP that after receiving intimation surveyor Sh. O.P. Sharda was deputed to assess the loss. The photographs were also taken. Sh. O.P Sharda submitted details loss assessment report dated 03.05.2019. As per which report the total amount of loss was assessed to Rs. 18,84,539/-. However OP another report of utmost  about the claim investigation it does not bear any date and signed by one Sh. Rajnish Kohli. The surveyor Sh. O.P. Sharda filed clarification dated 26.10.2019. In this report the value was reassessed of the leaked material of Rs.9,16,860/-.

It is admitted case that the claim was closed by OP on the ground that complainant failed to submit requisite documents. It is pertinent to mention here that the complainant sent a letter dated 08.01.2020 in response to mail of OP dated 19.12.2019 wherein strong objection taken to the claim of Rs. 9,76,089/-. However OP vide email dated 07.02.2020 again reiterated the claim of Rs.9,16,860/-.

22. We have gone thorough the report dated 03.05.2019 of surveyor of Sh. O.P. Sharda. The report discussed in detail the accident and the site. The surveyor also filed several photographs of the tanker and some photographs shown the damage to the body specially the tanker’s wall from where the liquid was spilled over after accident. The surveyor also collected the invoices. As per this report the initial weight of the chemical Cyclohexanone mentioned to be 24780 kg and weight of recovered material in reference to weighment slip is 11590 kg therefore the calculated the total loss of material is 13190 kg. The clarification report dated 26.10.2019 it is specifically mentioned that on 03.10.2019 a discussion took place in the presence of Sh. Naresh Kumar RM, Ms. Anita Poddar ARM, Sh. Dinesh Kumar Sharma Dy. Manager, Ms. Surbhi Thapliyal AO and investigator Sh. Rajnish Kohli. They all gone through the surveyors report dated 03.05.2019 and concluded as under:

1. The compartment no.3 having the capacity 4 kl, which got sheared and the cut was facing the bottom side (soil side) got completely empty and therefore loss of 4 kl of material can be considered towards this particular compartment.
2. As the left side of the tanker shell is became flatten. The internal partision between the all other compartment welding joints were broken or cracked & created a passage for flow of material to the other compartments depending upon the slope and flown out through the compartment no.3 which may be to the tune of at the rate of 15% maximum. The material in compartment 1,2,4 & 5 was 20 kl (each comp. of 5 kl capacity). Therefore, the loss of material from compartment no. 1,2,4 & 5 may be considered as 20 kl x 15% = 3.0 kl
3. There for the total liability in terms of volume may be considered as 4 kl + 3 kl =  7 kl.

23. It is pertinent to mention here that this clarification report prepared on the expert advise of one Mr. Rajnish Kohli. As per record no document filed on record by OP Insurance co. at any point of time Mr. Rajnish Kohli visited the site and inspected the accidental truck specially its compartments and valves and he has prepared his report on the basis of the documents supplied by Sh. OP Sharda alongwith report dated 03.05.2019. Sh. Rajnish Kohli did not taken into consideration the weight measurement of material loaded at the starting point at Kandla Gujarat and weight of material at the time of conducting the survey by Sh. O.P Sharda. The comparison of photographs without examination of the site clearly establish that the observation and opinion of Sh. Rajnish Kohli based upon assumptions, presumptions, conjectures and secondary evidence without examining the condition of the truck at the site of accident physically. It is also not out of place to mention that after five months of the report dated 03.05.2019 Sh. Naresh Kumar Aryan conveyed a meeting on 03.10.2019 without explaining the cogent and plausible reasons of pointing out the agenda of discussion after five months. The report dated 03.10.2019 does not mention any material evidence or substantial cogent reasons for clarifications to the initial report dated 03.05.2019. This report is prepared while sitting in a room based on assumptions, presumptions or theoretical thoughts  and ignoring the basic fundamental guidelines. There is no scientific reason mentioned with regard to arriving at conclusion about evaporation rate of the chemical carried by the tanker. The clarification dated 26.10.2019 is errorneous, wrong and based  upon hypothetical theory  about the loss of material after the accident. It established on record that senior officials of Insurance company due to reasons best known to them influences the surveyor Sh. O P Sharda on the pretext of clarification to prepare a report which favours the OP insurance company. This report is unjust, unfair and prepared only to defeat the legitimate claim of the insured.
24. It is pertinent to mention here that the report dated 03.05.2019 mentioned all the details of the site of accident, physical verification, physical condition of the accidental truck and leakage of chemical at site. The surveyor also taken all the precautions while inspecting and assessing the net loss of the chemical due to spillage after accident. The surveyor categorically mentioned the weight slips and correctly calculated the loss of material. The photographs taken on the site by surveyor also corroborates his report. The surveyor fairly, justly and applying the correct methods prepared the report dated 03.05.2019. This report established the total amount of loss of Rs.18,84,539/-.
25. On the basis of above observation and discussion the complainant established that the closure of file of complainant as “ No Claim” is unfair, unjust, arbitrary and illegal. The complainant also established the deficiency of service against the OP  Insurance company. We direct OP Insurance company-

1. To pay the claim of Rs.18,94,626/- alongwith interest @ 6% per annum from date of filing of complaint till realization.
2. To pay  compensation of Rs.2,00,000/- for causing mental harassment and sufferings to complainant.
3. To pay litigation expenses of Rs.35,000/-.

26. OP is directed to pay abovesaid all amounts within 30 days from the receipt of the copy of order. In case of default directed to  pay 9% per annum interest on all abovesaid amounts till realization.

27. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  29.05.2024.

    SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER