Punjab

Ludhiana

CC/13/549

Sangrur Agro Ltd - Complainant(s)

Versus

New India Ass.Co.ltd. - Opp.Party(s)

29 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

                                                          C.C.No. 549 of 29.07.2013                                                                        Date of Order: 29.05.2015

M/s Sangrur Agro Ltd., village Bhindran, though its authorized signatory Ram Kumar Sharma. 

… Complainant

Versus

1.New India Assurance Company Limited, through Divisional Manager, Opposite Swami Motors, Dhandari Kalan, Ludhiana.

2.New India Assurance Company Limited, 87, Mahatma Gandhi Road, Fort, Mumbai-400001.                                                                                                                                                                                     … Opposite Parties

       COMPLAINT U/S 12 OF THE CONSUMER

PROTECTION ACT, 1986.

Quorum:    Sh. R.L.Ahuja, President

                   Ms.Babita, Member

 

Present:       Sh.L.D.Gupta, Advocate for complainant.

                   Proxy counsel for the OPs.

                   

ORDER

R.L.AHUJA, PRESIDENT

 

1.                Present complainant under Section 12 of the Consumer Protection Act, 1986 has been filed by M/s Sangrur Agro Ltd., village Bhindran, though its authorized signatory Ram Kumar Sharma(hereinafter in short to be described as ‘Complainant’) against New India Assurance Company Limited and others (hereinafter in short to be described as ‘Ops’), directing them to pay the balance amount of Rs.3,88,803/- alongwith interest @12% p.a. from the date of due till its payment besides an amount of Rs.50,000/- as compensation and Rs.33,000/- as cost of litigation and other benefits to the complainant.

2.                Brief facts of the complaint are that the complainant previously filed similar complaint No.116 on 9.2.2011 on the same cause of action before the Ld.District Consumer Forum, Sangrur which was admitted but after taking evidence, the Ld. District Forum, Sangrur dismissed this complaint on 11.11.2011 on the plea of territorial jurisdiction. Against this order, the complainant filed FA No.48 of 2012 before the Hon’ble State Commission, Chandigarh, who vide its order dated 22.2.2013 partly accepted this appeal by directing the District Forum to return the complaint file to the complainant for filing of the same before the District Forum which has the territorial jurisdiction if so he desires. Pursuant to the same, the present complaint is being filed. It is averred that the complainant company had obtained marine insurance policy No.360402/21/09/02/07 dated 9.4.2009 from the Ops for Rs.10 lakh and which was valid from 9.4.2009 to 8.4.2010. Crude palm oil (EC) of the complainant company was coming from Kandla in Tanker No.GJ-12-Z/3341 which met with an accident near village Sindvada, District Badmer(Rajasthan) on 8.8.2009 which was carrying 24.920 MT crude oil vide GR No.505 dated 7.8.2009 resulted into total loss of crude palm oil (EG). M/s Super Cargo Movers who were transporting the goods informed about the said accident and consequent total loss of crude oil(EG) and the report was lodged with the concerned Police Station in Rajasthan and the complainant company without loss of any time, informed the Ops about the accident and consequent loss. After receiving this information, Ops appointed surveyor to access the loss, who submitted his report on 16.9.2009. In his report, the surveyor without examining the whole issue in a legal judicious and equitable manner and without disclosing the basis of its report, arbitrarily reduced the loss of goods from 24,920/- kgs crude oil to 20,070 kgs and further wrongly valued the crude oil from Rs.32,798/- per MT to Rs.20,502/- per MT and had further deducted 30% on the total value. Consequently, as against total claim of Rs.8,28,698/-, the Ops paid the claim of Rs.4,39,803/- only. As such, an amount of Rs.3.88,803/- has been paid less by the Ops. The complainant strongly protested about the less payment of this claim and vide its letter dated 12.5.2010 again asked the Ops to make the payment of the balance claim. In addition to payment of less claim of Rs.3,77,449/-, the Ops compelled the complainant to pay Rs.11,354/- as fees of the surveyor which was paid by the complainant. The officials of the Ops have taken blank documents in advance and the complainant has never given any voucher of full and final settlement at the time of receipt of part payment of this claim. The complainant had submitted declaration form to the Ops on 3.8.2009 and declared value of oil to the tune of Rs.8,44,250/-. The detail of the cost of the crude palm oil is mentioned in letter dated 11.3.2010. The complainant had paid freight to the tune of Rs.2100/- PMT and entitled freight paid and 10% extra for other expenses from the Ops. But the Ops have wrongly and arbitrarily calculated the value of the oil to Rs.30,502/- PMT, whereas, it comes to Rs.32,798/-. The complainant also paid Rs.11,354/- to the surveyor. The complainant repeatedly requests the Ops to pay the amount of the balance claim but all such pleas feel on the deaf ears of the Ops. The complainant even got issued legal notice dated 18.11.2010 to the Ops for payment of the balance claim but with no result. Hence, this complaint.

3.                Upon notice of the complaint, OPs were duly served and appeared through their counsel Sh.Hemant Kalia, Advocate and filed their written statement, in which, it has been submitted in the preliminary objections that the present complaint is not maintainable as there is no deficiency in service on the part of the Ops. The complainant is not a “Consumer” under the Ops as defined under the Consumer Protection Act. The complainant is stopped by its own act and conduct from filing the present complaint. The complainant took the policy in question for commercial purpose, therefore, the complaint is not maintainable under law and liable to be dismissed. The complainant received full and final payment without any protest and after executing the letter of subrogation, indemnity bond and special power of attorney in favour of the answering Ops, so no cause of action accrued to the complainant to file the present complaint. Reply on facts, it is submitted that at the request of the complainant only, the answering Ops had issued the policy in question subject to the terms and conditions of the policy. The policy as well as the terms and conditions were supplied to the insured. The fact regarding accident of the vehicle in question having crude oil as alleged by the complainant company is not denied. The fact regarding reporting the matter to the concerned police is admitted. However, it is denied that complainant company informed the answering Ops without loss of any time. In fact, there is considering delay in informing the answering Ops by the complainant. The facts regarding appointment of surveyor and assessment of the loss and submission of report as alleged are not denied. However, it is denied that the surveyor arbitrarily reduced the loss of goods from 24,920 kgs crude oil to 20.070 kgs or wrongly valued the crude oil from Rs.32,798/- per MT to Rs.30,502/- per MT. Infact, surveyor’s report is based on actual facts and observations and his calculation is correct and total claim has been paid to the complainant and complainant accepted the payment without any protest and after executing of letter of subrogation, indemnity bond, special power of attorney in favour of the answering Ops as full and final settlement and the complainant has got no right to agitate the matter by way of this complaint. Further, it is submitted that the complainant was not compelled to pay this amount, but it was the due amount and under legal obligation only that he paid the surveyor’s fee. It is denied that the officials of answering Ops had taken blank documents in advance or the complainant had never given any voucher of full and final settlement at the time of receipt part payment of this claim. However, it is submitted that already the concerned documents are placed on the file. It is submitted that wrong declaration had been given by the complainant. The complainant is not entitled to receive the amount as alleged. Rather, the answering Ops had already paid the legal due amount to the complainant which he had accepted without any protest. At the end, denying any deficiency in service and all other allegations of the complainant being wrong and incorrect, answering Ops prayed for dismissal of the complaint with costs.

4.                Both the parties have adduced their respective evidence in the form of affidavits and documents on record.

5.                During the course of arguments, learned counsel for the complainant has relied upon judgment titled as National Insurance Co.Ltd. vs. Rajan Sood-2014(3)CPC-539(N.C.).

6.                We have heard the learned counsel for the complainant as well as proxy counsel for the Ops and have also gone through the judgment placed on record by the learned counsel for the complainant and have also gone through the record on the file very carefully.

7.                Perusal of the record reveals that it is an undisputed fact between the parties that the complainant had purchased the policy in question i.e. Marine Insurance Policy No.360402/21/09/02/07 dated 9.4.2009 from the OPs for Rs.10 lakh which was valid w.e.f.9.4.2009 to 8.4.2010. Further, it is an undisputed fact on record that crude palm oil (EC) of the complainant company was coming from Kandla in Tanker No.GJ-12-Z/3341 which met with an accident near village Sindvada, District Badmer(Rajasthan) on 8.8.2009 which was carrying 24.920 MT crude oil vide GR No.505 dated 7.8.2009 resulted into total loss of crude palm oil (EG). M/s Super Cargo Movers who were transporting the goods informed about the said accident and consequent total loss of crude oil(EG) and the report was lodged with the concerned Police Station in Rajasthan and the complainant company without loss of any time, informed the Ops about the accident and consequent loss. Further, it is a proved fact on record that after the accident, the claim was lodged with the Ops, who had appointed Sh.Sunil Mathur, surveyor and loss assessor in order to assess the loss suffered by the complainant, who after his thorough survey at the spot, submitted his report dated 16.9.2009 Ex.C8(Ex.R1). Further, it is a proved fact that complainant had lodged the total claim of Rs.8,28,698/- with the Ops. However, Ops had paid the claim of Rs.4,39,803/- only to the complainant.

8.                During the course of arguments, learned counsel for the complainant has strongly contended that amount of Rs.3,88,803/- was paid less by the Ops, for which, the complainant is legally entitled alongwith interest and further, the complainant is entitled to Rs.11,354/- which had been charged by the Ops on account of fee of surveyor. Further, the officials of Ops had taken the blank documents in advance and the complainant had never given any voucher of full and final settlement at the time of receipt part payment of this claim. On the other hand, there is specific pleas of the Ops that the complainant had received the full and final payment of his claim without any protest and thereafter, executed the letter of subrogation, indemnity bond and special power of attorney in favour of the Ops. As such, no cause of action has been accrued to the complainant to file the present complaint against the Ops.

9.                Perusal of the evidence of the complainant reveals that the learned counsel for the complainant has furnished affidavit of Sh.Ram Kumar Sharma, authorized signatory of complainant company, who deposed in terms of the pleadings taken in the complaint. Further, learned counsel for the complainant has relied upon documents Ex.C1 copy of resolution passed by the Chairman of complainant company authorizing Mr.Ram Kumar Sharma to file the complaint, Ex.C2 copy of order dated 11.11.2011 passed in earlier complaint which was filed before the District Consumer Disputes Redressal Forum, Sangrur by the complainant against the New India Assurance Company Limited, Ex.C3 copy of First Appeal No.48 of 2012 filed before the Hon’ble State Commission by the complainant, Ex.C4 copy of the insurance policy in question, Ex.C5 copy of Tax Invoice issued by Liberty Oil Mills Ltd, Ex.C6 copy of letter dated 8.8.2009 issued by Super Cargo Movers to the complainant company qua informing about the accident of tanker in question, Ex.C7 copy of DDR lodged by the complainant before the concerned policy station qua the accident of the tanker in question, Ex.C8 copy of the surveyor report dated 16.9.2009, Ex.C9 copy of the calculation sheet of the claim amount, Ex.C10 copy of letter dated 12.5.2010 issued by the complainant company to the Ops qua the short payment of marine claim against the accidental tanker, Ex.C11 copy of assessment report dated 3.10.2009 of the surveyor Sh.Sunil Mathur, Ex.C12 copy of legal notice dated 18.11.2010 sent by the counsel for the complainant to the Ops, Ex.C13 copy of GR Receipt No.5050 issued by the Super Cargo Movers, Ex.C14 copy of Marine Declaration Form, Ex.C15 copy of receipt of Rs.8244/- as handling charges of 250 MT crude oil, Ex.C16 copy of clearing/shipping charges of 250 MT crude palm oil and Ex.C17 copy of weihage receipt showing net weight of crude palm oil as 24.920 kgs.

10.              On the other hand, Ops have furnished affidavit Ex.RA of Sh.Anil Chawla, its Deputy Manager, who deposed in terms of the written reply filed by the Ops and further, Ops have placed on record documents Ex.R1 copy of report of Surveyor and loss Assessor namely Sh.Sunil Mathur dated 16.9.2009 and Ex.R2 copies of letter of subrogation, indemnity bond and special power of attorney executed by the complainant in favour of the Ops.

11.              Perusal of the document Ex.R1(C8) i.e. copy of surveyor report dated 16.9.2009 reveals that Sh.Sunil Mathur, surveyor and loss assessor had assessed the loss/shortage of the Crude palm oil before accident and after the accident of the tanker in question and after the accident, he had assessed the net loss qua the consignment as 4850 kgs, value of which was paid to the complainant by the Ops to the tune of Rs.4,39,803/-. Further, document Ex.R2 i.e. copies of letter of Subrogation reveals that after receiving the amount of Rs.4,39,877/-, the complainant had executed the aforesaid leter of subrogation on 18.3.2010 and had also executed the leter of indemnity bond and Special Power of attorney in favour of the Ops, meaning thereby that the complainant had settled the claim and received the full and final payment. It is well settled principle of law that once the claim was settled and paid by the insurance company/Ops, in that eventuality, insurance company/Ops are not liable to reconsider the claim for the remaining amount claimed, if any by the complainant, until and unless, the complainant is not proved that settlement was got effected by playing fraud, undue influence, coercion or mis-representation. However, perusal of the evidence of the complainant reveals that the complainant has not taken any such plea, from which, it could be presumed that the complainant has received the amount under any protest by referring of any of the facts mentioned above. So, we are of the opinion that the complainant has failed to prove his allegations against the Ops by leading cogent and convincing evidence. So, there does not appear

 to be any deficiency in service on the part of the Ops.

12.              In view of the above discussion, we hereby dismiss the complaint of the complaint being devoid of any merit. Copy of order be made available to the parties free of costs. File be completed and consigned to record room.

 

(Babita)                                   (R.L.Ahuja)

                   Member                                     President  

Announced in Open Forum

Dated:29.05.2015

GurpreetSharma.