Delhi

North East

CC/303/2012

M/s GSC GLASS - Complainant(s)

Versus

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

29 May 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. 303/12

 

 

 

 

 

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 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:

08.08.12 17.03.23 29.05.23

 

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 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. 7465 for Rs. 2,16,252.20/- and 7466 for Rs. 2,86,279.70/- both dated 12.02. 2008 totalling Rs. 05,02,531.90/- to the consignee M/s Apsara Glass Systems & Concepts, Manjeri. 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 K. Divakaran who found 71 pieces of glasses were damaged completely and calculated the loss to Rs. 49,010/- and submitted report on 12.03.2008. Since the said consignment was duly insured, the claim was lodged for Rs. 56,711/- 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 27.03.2008, Opposite Party had not settled the claim and repudiated the aforesaid claim vide letter dated 01.03.2009. 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 complainant had not submitted all required documents and claim had been withdrawn and on the ground of “ Transporter not found genuine”. 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 the transporter was very much genuine. 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 21.02.12 demanding the payment of Rs. 56,711/-. It is submitted that the Opposite Party had given reply dated 10.04.12 and took false and frivolous pleas that carrier and his address were fake. It is alleged that the Opposite Party had made a false story in order to avoid payment. This shows deficiency on the part of Opposite Party. Complainant has prayed for Rs. 56,711/-. with interest @ 12% till realisation.
3. Notice of the complaint was issued to the OP on 28.09.2012 and the OP entered appearance on 30.10.2012.
4.  On 30.11.2012, Opposite Party filed an application for dismissal of the complaint 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 OP urged that the loss occurred 4 and 9 months years ago i.e. on 12.02.2008, therefore, was barred u/s 24A of Consumer Protection Act 1986 (Act). On territorial jurisdiction OP 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 OP 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 OP 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, OP 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, OP, 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 Carrier’s address found fake. It is contended that since the address of the transporter i.e. M/s Kapoor Frieght 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 OP. 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 K. Divakaran who found 71 pieces of glasses were damaged completely and calculated the loss to Rs. 49,010/- and submitted report on 12.03.2008 and recommended payment. Since the said consignment was duly insured, the claim was lodged for Rs. 56,711/-. 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 27.03.2008, the Opposite Party failed to consider the claim of Complainant and repudiated the claim on false grounds. On 19.04.11 a meeting was held between both the parties and Opposite Party assured to consider the claim but  repudiated the claim again vide letter dated 08.02.12 on false and frivolous grounds that the complainant had not submitted all required documents, the claim had been withdrawn and on the ground of “ Transporter not found genuine”. It is submitted that the complainant had never withdrawn the claim and he had submitted all required documents and the transporter was very much genuine. 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 OP, 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 OP 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 complainant has filed survey report by K. Divakaran in support of his contention that upon intimation of the claim, the survey was conducted by the surveyor the K. Divakaran who calculated the loss to Rs. 49,010/- recommended payment.  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. We have carefully perused the record and observed that as per the survey report relied upon by the complainant, the survey of the claim in question was conducted by the K. Divakaran who calculated the loss to Rs. 49,010/-. It is also observed that the Opposite Party in their pleadings has neither denied to have deputed the said surveyor nor have they disputed the surveyor’s report.
15. It is further evident from the record that the claim bill along with other relevant documents was received by the Opposite Party on 24.04.2008 and the claim of the complainant was repudiated twice vide letters dated 01.03.2009 and 08.02.2012 on the grounds of “Non-furnishing of required documents”, G/R and damage certificate fake on verification and as per the investigator’s report there is no evidence of transporter on the said address.
16.  The complainant objected to the grounds of repudiation and the perusal of the record shows that the complainant had filed copy of letter allotting the Service Tax code no. issued by the Govt of india in support of his contention that the transporter was genuine.  The complainant has further alleged that he was not informed about the said development regarding appointment of investigator, the whole exercise of deputing the investigator namely Active Claims Consultants was arbitrary. The Opposite Party has failed to lead any cogent evidence in rebuttal of complainant case.
17.  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 K. Divakaran 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.
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. 56,711/- which includes the survey fees plus 10% of the sum under the policy We are inclined to disallow the amount on account of surveyor fee in view of the document on record i.e. survey bill with receipt showing that the surveyor received the payment from the consignee i.e. M/s Apsara Glass Systems & Concepts, Manjeri.
20. Thus, we partly allow the complaint and direct the Opposite Party to pay to the complainant the damage assessed i.e. Rs. 49,010/- (Rs. Forty nine thousand and ten only) plus 10% which is Rs. 4,901/- (Rs. Four thousand, nine hundred and one only), alongwith 6% interest p.a. from the date of filing the complaint. The Opposite Party is further directed to pay Rs.5,000 (Rs. Five 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 29.05.23.

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