Complainants M/s.Aggarwal Rice Mills through its Partner Ashok Kumar through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite party be directed to pay Rs.10,00,000/- as compensation for causing mental harassment by the opposite party on account of withholding of his genuine claim without any sufficient cause and Rs.5,00,000/- be paid on account of Excise Taxes and fee to the surveyor paid by him to the opposite parties alongwith interest @ 12% per annum from the date of filing the claim, in the interest of justice.
2. The case of the complainant in brief is that it is a partnership firm engaged in the business of manufacturers and Exporters of Raw & Streamed Rice at Bath Sahib Road and authorized its partner to sue/pursue case on behalf of M/s.Aggarwal Rice Mills. He availed the services of opposite party no.1 for insurance of Marine Cargo and paid a premium of Rs.8000/- to the opposite party no.1 which was duly received by them after which policy no.401500/21/16/4400000011 was issued to him which was valid from 17.05.2016 to 16.05.2017. He is availing the services of the opposite party no.1 every year and is giving the business of 8 crore to 10 crore for insurance cover on Marine Cargo to the opposite party no.1. It has further pleaded that on 30.6.2016 complainant's company hired the services of opposite party no.2 for sending the consignment of rice of 520 Bags of 50 Kg packing each packed in PP bags/Bardana to LT Foods Ltd 43 Milestone G.T.Road Bahalgarh, Haryana. The opposite party no.2 carried out the consignment and reached on 03.07.2016 at the consignee premises. The consignment reached in a spick and span manner in the consignee premises and an entry to this respect was made by LT Foods Ltd. Unloading/Good receipt voucher No.5001051093. Due to incessant rains 450 gunny bags/bardana were damaged at the consignee premises which were rejected by the consignee and 70 bags were approved. The opposite party no.1 with whom the gunny bags/bardana were insured under Marine Cargo ope policy (Declaration) were informed immediately by him in black and white and claim form duly filled by him was submitted to the opposite party no.1 for the loss suffered by him in the Marine Cargo Consignment. The opposite party no.1 after accepting the claim form deputed the surveyor to assess the loss suffered on the consignment by its firm. The opposite party no.1 kept on dilly dallying his genuine case after which he gave numerous reminders but all in vain. He suffered a loss of Rs.8,44,500/- on account of damage of consignment due to incessant rains. Rs.50,000/- on account of Excise Tax, Rs.18,000/- on account of Surveyor's fee and Rs.5 lacs on account of mental agony and harassment. Hence this complaint.
3. Upon notice, the opposite party no.1 appeared through its counsel and filed the written reply by taking the preliminary objections that complaint is not maintainable and the complaint is absolutely false, frivolous. On merits, it was submitted that on receipt of intimation regarding loss to complainant consignment of rice bags, M/s.N. Kumar I surveyors and Loss Assessors Pvt.Ltd, Chandigarh were deputed to inspect and assess the alleged loss and he submitted his survey report in which the surveyor has pointed out that:-
a) Material was dispatched on 30.06.2016 from consignor premises. The normal time considered to reach to Bahalgarh from Pathankot in normal course in one day, whereas material reached at consignee premises on 03.07.21016 i.e. 4th day.
b) The driver informed to the transporter/insured on 06.07.2016 i.e. after about 7 days.
c) The driver of the vehicle (Mr.Major Singh) has purposely took the material to his residence, instead of taking the direct route to consignee premises.
(d) At the time of survey at Kangthali the damage consignment was covered with turpeline.
The surveyor in their report has concluded that:-
there is negligence on the part of the driver toward deviation in change of route at his own. Material remained in transit for 5 days instead of same day. Damage consignment of Sharbati rice was in PP bags (Polypropylene Bags) whereas the policy description with regard to packing/commodity description specifically state all kinds of rice in gunny bags. As such the packing/commodity descriptions at the time of loss altogether differ from packing/commodity description stipulated in the policy which is a clear cut breach of warranties. Therefore, taking into account, insured has suffered damages to rice sharbati stock not due to transit but some other reasons, a peril not covered as per policy and insurer is not considered liable to indemnify the insured.
Thereafter the opposite party no.1 written a registered letter to complainant on 28.11.2016 to give explanation on the comments of the surveyor within 10 days from the receipt of letter but the complainant did not respond to that letter. Thereafter the opposite party no. 1 again written two registered letters to complainant on 16.12.2016 and 23.12.2016 but no reply was received and they informed him regarding closing the claim file as No Claim. Thus, there is no deficiency in service on the part o the opposite party no.1. The opposite arty has rightly closed the file of complainant as No CLAIM after no response from the complainant side despite of various registered letters of the opposite party. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.
4. Notice issued to the opposite party no.2 had not been received back. Case called several times, but none had come present on its behalf, therefore, it was proceeded against exparte vide order dated 26.7.2017.
5. Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1 alongwith other documents Ex.C2 to Ex.C15 and closed the evidence.
6. Sh.Parveen Chadha Branch Manager of the opposite party no.1 tendered into evidence his own affidavit Ex.OP-1/1, alongwith other documents Ex.P-1/2 and Ex.OP-1/22 and closed the evidence.
7. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for of some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted at non-settlement/repudiation of the complainant’s insurance claim for an amount of Rs.8,44,500/- pertaining to the loss caused/ incurred to the 520 nos. of packed 50 Kg Bags of Rice under the Marine Cargo Insurance with the OP1 Insurers under transit with the OP2 transporters; hence the present complaint.
8. The OP insurers have duly admitted the impugned claim-repudiation (Ex.OP1/2 and Ex.OP1/3) but on account of violation of the policy terms on the following counts:
i) As per the Surveyor/Investigator Report, the insured rice-consignment was dispatched on 30.06.2016 from the consignor site but reached the consignee premises on 03.07.2016 i.e., on the 4th day instead of the normal one-day travel time. The driver changed the travel-route at his own causing violation of policy terms as well as cargo consignment damage/loss.
Comments: The change of travel route has been simply alleged sans requisite support of some cogent evidence even the surveyor’s deposition. The transport truck was evidenced to have been hired on 30.06.2016 but there has been no evidence of date and time of its actual undertaking the journey and en-route delay-causing hurdles, if any. And, how the delay/ travel time affects the en-route perils and were these part of the terms of the policy has not been attempted to be explained/clarified.
ii) The driver informed the transporter/insured on 06.07.2016 i.e., after 7 days.
Comments: Again, it has not been clarified as to how it affects the loss already incurred to the consignment and subsequent rejection etc.
iii) The driver has purposely taken the material to his residence instead of taking the direct route to consignee premises.
Comments: The allegation has not been proved vide some independent evidence and it has also not been indicated as how does it affects the matter in issue.
iv) At the time of (conduct of loss/ damage) survey at Kangthali the damage consignment was covered with turpentine.
Comments: It has again not been established as to how the same has adversely affected the matter in issue; moreover it is quite common to have covered the transported material with turpentine in the months of June/July, in this part of the country.
Finally, the above repudiation mentions that the insured consignment has suffered damages not due to transit but some other reasons, a peril not covered as per policy and the insurer is not considered liable to indemnify the insured. The Surveyor Investigator and for that matter the OP insurers have somehow neither mentioned nor addressed other reasons/perils causing the instant loss/ damage to the insured consignment claimed to be not covered under the Transit Marine Policy and that colors the impugned repudiation into the hue of unjust discrimination and arbitrariness and that lines them up to an adverse statutory award under the applicable Consumer Protection Act, 1986.
9. However, the complainant has asserted that there was damage/loss and value-dilution to the transported stocks of Rice and that did cause rejection of 450 Bags of Rice out of the total dispatch of 520 bags causing him substantial loss so as to file the impugned insurance claim of Rs.8,44,500/- resulting into the present complaint along with cost and compensation. Here, the complainant has produced evidentiary documents Ex.C1 to Ex.15 to prove complaint-contented allegations but has ignored to contest/counter the Surveyor’s Reported NIL Assessment through some other expert valuation of the reported loss.
10. On the other hand, the OP insurers have duly deposed vide affidavit (Ex.OP1/1) the contents of its written reply that the impugned claim was repudiated/ closed on account of the non-coverage of caused loss/damage under the applicable policy and have also duly produced their documents supporting the impugned repudiation exhibited as: Ex.OP1/2 to Ex.OP1/22 but at the same time duly ratifying the Surveyor Assessed Loss @ NIL value. Somehow, we find that the Surveyor’s loss assessment to be partial and thus set-aside the same in favor of one final separately assessed independent expert report at the OP insurers’ expense otherwise the claim amount of Rs.8,44,500/- shall be taken up as final assessment. However, we find that the resultant non-settlement/ repudiation has neither been necessary nor fair measured against the fact that the stocks of Rice were indeed damaged during transit only and other reasons cannot be minutely segregated in the absence of any marked separation and as such the instant repudiation amounts to deficiency in service on the part of the OP insurers and that rakes them up to an adverse statutory award vides applicable Act.
11. We have taken the requisite judicial notice of intentional non-participation/absence of the OP2 transporters preferring instead the ex-parte proceedings but find that absence of statutory consumer relationship (qua the inter-se selves with complainant) has come to their aid/rescue as the complainant had availed of the transport services for commercial purpose only and thus no statutory award/action need be awaited by them.
12. In the light of the all above, we partly allow the present claim and thus ORDER the titled OP1 insurers to pay the full assessed amount of loss/damage as per surveyor's report i.e. Rs. 4,27,463/- alongwith interest @ 9% p.a from the date of filing of this complaint till actual payment to the present complainant besides to pay him Rs.10,000/- as cost and compensation (for having caused delay and harassment) within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall carry interest @ 9% PA from the date of actual loss till actually paid.
13. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
June,15 2018 Member
*MK*
