Delhi

East Delhi

CC/199/2015

ARVIND - Complainant(s)

Versus

NEW INDIA ASS. - Opp.Party(s)

28 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

                                                 CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CASE NO-199/15

In the Matter of:

Mr. Arvind Kumar Bajaj,

S/O of Shri. Inder Chand Bajaj,

Sole Properietor M/s Agarwal Enterprises

1.  

Chawri Bazar, Delhi-110006.

 

Complainant

Vs

1. M/s The New India Assurance Co. Limited,

Through its Manager

10.  

Laxmi Nagar District Centre, delhi-110092.

 

2. M/s Century Roadlines

Through its Partners/ Properietor

416/5A, Satguru  Market, Market, Vikas Marg Extn.

Karkardooma, Delhi-110092.  

 

   Opposite Parties

 

                                                                                        DATE OF ADMISSION-24/03/2015

                                                                                      DATE OF ORDER         -03/09/2015

SH. N. A. ZAIDI, PRESIDENT

This complaint has been filed with the allegation that the complainant was holder of Marine Cargo opne policy no.32310221120200000021 validity from 19/03/2013 to 18/03/2014 for covering the risk of goods between Lalkua DistrictHaldwani & Kashipur District U.S. Nagar Uttrakhand to Delhi.  Upon the purchase of 96 reels of paper from M/S Century Pulp & Paper, OP-2 was instructed to load the material from LalKua and deliver to the Complainant at Delhi. The material was loaded in Truck No. HR 55 A3516 vide consignment note No.51144 to 51147 on 10/09/2013. The said Truck met with an accident on the way thereby damaging the loaded material. Due intimations were given to the Police and the OP No.1, Sh. Balbir Singh was appointed as surveyor to inspect the site and assess the loss. The Surveyor after inspection and assessment demanded the fees of Rs.12,950/- which was paid to him and he submitted his report dated 30/09/2013. The requisite papers were submitted to the OP-1. Nothing was heard from the OP-1 for long time. The matter was brought to the notice of CMD of OP-1 on 05/04/2014 and vide letter dated 20/06/2014. It was intimated that the OP-1 had already repudiated the claim of the complainant vide letter dated 05/02/2014 stating that the carrying capacity of the Truck being 9500 Kg, a load of 15,743 kg was carried on. The complainant made the representation on 28/08/2014 but the respondent stick to their decision of repudiation. The OP-2 had never intimated the complainant about the carrying capacity of the Trucks being used by the OP-2 for carrying the material of the complainant. The OP-2 had increased freight charges citing strictness of the Government against over loading of the Trucks. The Respondents are liable to pay to the complainant a sum of Rs.600614 with 24% interest from 11/09/2013. Complainant have claimed Rs.1,00,000/- as compensation and also cost of litigation.

            Respondent file their reply wherein it has been alleged that the policy issued to the complainant is subject to terms and conditions. The consignment was over loaded to the extent of 65.71% the damage was caused due to overturning of the Vehicle, as such it is a case of the violation of terms. The claim of the complainant was repudiated. Rests of the allegations have been denied.

            No Written Statement filed by the Respondent No.2.

            The complainant has filed his Affidavit in support of his claim along with the documents. Rejoinder has also been filed wherein under the Right to Information Act, they have sought from the OP-1, the terms and condition of the policy. For the first time the OP admitted that there is no specific Terms and Condition with regard to the over loading.

            The Respondent could not file the evidence on the date fixed.  The Affidavit of Ms. Kavita Jain was filed on the date of the arguments which contains nothing but the repeatitions of the contents of the written statement, which was opposed by the complainant.

            We have heard the Ld. Counsel for the parties and have perused the record.

            The facts which are not in dispute are the date of the alleged accident of vehicle No. HR 55 A 3516. The fact of  the Complainant being Policy holder of Marine Cargo which was valid from 19/03/2013 to 18/04/2014. This is also not in dispute that the Truck was carrying 96 reels of paper when it met with an accident. The short question arises for our consideration in this complaint is as to whether the claim of the complainant was not tenable because of over loading by the OP-2. The counsel for the complainant submitted that this is not been denied by the OP that they ever supplied to the complainant, the Terms and Condition of the policy except the cover note. He further contended that there is no specific clause in the policy under which the claim could be repudiated on alleged ground of over loading. Further there is no specific circular on over loading issued by the OP-1. The complainant has filed along with his Rejoinder and Terms and Condition of the policy which he obtained from the OP under the Right to Information Act. There is no condition under the policy which pointed out that over loading will be a ground for exclusion of the claim. There is nothing in the written statement or in the documents filed by the OP which could prove that such condition eve existed in the policy Terms and conditions, as such when there is no such Terms and Conditions, it is for the respondent to justify the repudiation of the claim of the complainant once they have appointed the surveyor whose report has been placed on record. Evaluated the loss caused on account of accident a sum of Rs.5,48,151/-. This is the document of the OP it has to be taken as it is, this report has not been challenged by either by the parties. Suryeyor report is an important document, in 2013 [(1) CPJ 440 (National Commission) Ankur Saxena Vs United India Insurance Company]. The Hon’ble National Commission has hold that the report of surveyor appointed by the insurance company is an important document and the same could not be rejected by the Consumer Forum unless the cogent reason is recorded for doing so.

            The insurance is a contract and its Terms and Condition are binding on both the parties. It is a settled law that nothing can be positive and negative in the Terms and Condition by giving different meaning to the word mentioned in the policy of the insurance and each of the parties are under obligation to strictly adhere to the terms of the insurance. The OP is under obligation to reimburse the complainant the amount of damage sustained on account of loss in transit from Lalkuan to Delhi. As this is admitted to respondent, that no such terms and condition exist which covers the overloading. As per the OP-2 the accident was the result of mechanical failure. This fact is not disputed by the OP No.1 that the accident was not due to Mechanical failure. In any case the damage has occurred to the goods booked by the M/s Century Pulp and Paper Mill which was to be delivered to the complainant at Delhi. During Transit it was covered by the Policy issued by the OP which was valid on the date of the accident and loss. In the above circumstances the repudiation of the claim is wholly unjustified. It has been observed that the insurance companies are violating their own Terms and Condition which rejecting bonafide claim. This is being done with the objective to force the insured to approach the Judicial Forums to obtain the Judgment, So that the insurance company officer can claim that they have made the payment under the judicial order. The rejection of the claims which is otherwise payable causes loss to the insurance company on account of litigation expenses, interest on the delayed and payment cost compensation etc. The insurance company should recover such amount from the officer’s salary because of whom the company has suffered the loss.

            We allow this complaint. We direct the OP-1 to pay to the complainant the amount of Rs.5,48,151/- together with 9% interest thereon from the date of filing this complaint till paid. The amount of Rs.12,950/- which has be paid by the complainant to the surveyor is also to be paid by OP No.1 with 9% interest thereon from the date of the filing of this complaint till it is paid. We further award a sum of Rs.50,000/- to the complainant on account of harassment, mental pain and agony and Rs.15,000/- towards the cost of litigation. Let this amount be paid within 45 days from the date of the order.

Copy of the order be supplied to the parties as per rule.

 

SUBHASH GUPTA                          POONAM MALHOTRA                          N.A.ZAIDI

     (MEMBER)                                           (MEMBER)                                      (PRESIDENT)