New India Assurance co. V/S M/S Rattan Poultry Pvt.Ltd. - Consumer Court Case

Punjab

Sangrur

CC/484/2016

M/S Rattan Poultry Pvt.Ltd. - Complainant(s)

Versus

New India Assurance co. - Opp.Party(s)

Shri S.S. Ratol

06 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

Complaint No. 484

Instituted on: 10.08.2016

Decided on: 06.01.2017

M/s. Rattan Poultry Pvt. Ltd. through its Director Rahuljit Singh Sidhu S/o Ranjit Singh Sidhu, Village Sadatpur, Malerkotla, Distt. Sangrur.

…Complainant

Versus

New India Assurance Co. through its Branch Manager, Thandi Sarak, Malerkotla, Distt Sangrur.

..Opposite party.

For the complainant : Shri S.S.Ratol, Adv.

For O.P : Shri Ashish Garg, Adv.

Quorum: Sukhpal Singh Gill, President

Sarita Garg, Member

Vinod Kumar Gulati, Member

Order by : Sukhpal Singh Gill, President.

1. Shri Rahuljit Singh Sidhu, Director of M/s. Rattan Poultry Pvt. Ltd., complainant (referred to as complainant in short) has preferred the present complaint against the opposite party (referred to as OP in short) on the ground that the complainant obtained the services of the OP by getting Marine cargo open insurance policy for insuring egging tray for an amount of rupees one crore vide policy number 36130321150200000004 which was later on got extended up to rupees two crore vide endorsement dated 12.8.2015. It is further averred that under the policy, all the transit risks were covered for single carrying limit upto Rs.20 Lacs, as such the complainant is said to be the consumer of the OPs.

2. Further case of the complainant is that on 17.2.2016, the compliant transported 2100 egg trays containing 30 eggs each worth Rs.2,23,650/- in vehicle number PB-13-AF-4417 from village Sadatpur to Ludhiana and the packing of all the trays were tightly done by the expert labour of the complainant. The grievance of the complainant is that the truck in question met with an accident near Shanti Tara College, Jaghera and due to that the vehicle turned turtle and all the eggs were broken and destroyed. As such the intimation of the loss was given to the OP and the Op appointed surveyor, Shri Vishal Goyal for spot survey and thereafter Shri Jatinder Kalra for final survey, but the OP repudiated the claim of the complainant vide letter dated 3.6.2016 on the false grounds i.e. the vehicle in question was not having the fitness certificate, but the loss occurred due to the bursting of the tyre of the vehicle in question. Thus, alleging deficiency in service on the part of the Ops, the complainant has prayed that the Ops be directed to pay to the complainant the claim amount of Rs.2,23,650/- along with interest @ 18% per annum and further claimed compensation and litigation expenses.

3. In reply of the complaint filed by the OP, legal objections are taken up on the grounds that the complainant has no cause of action to file the present complaint, that the OP has dragged the OP into unwanted litigation, that complicated questions of laws and facts are involved in the present case and that the complainant is not a consumer of the OP. On merits, it is admitted that the OP issued the marine policy in question to the complainant for the period from 24.4.2015 to 23.4.2016 and further it is admitted that the truck in question was insured with the Op for the period from 7.11.2015 to 6.11.2016. Further it is admitted that the complainant intimated that on 17.2.2016 the truck in question suffered loss, as such, the OP immediately appointed Er. Jatinder Kalra to assess the loss, who visited the spot and assessed the claim to the tune of Rs.1,77,322.50. It is stated further that the surveyor has observed that no bilty was submitted by the complainant and further the fitness of the vehicle as per OD claim report is not valid as on date of accident. It is the duty of the insured to keep the vehicle fit to ply on road as per the Motor Vehicle Act, but in this case, the fitness of the vehicle was not valid and the cause of accident is bursting of tyre, which may be due to distended tyre. It is further averred that the fitness of the vehicle found expired at the time of accident and the goods were carried in such a vehicle which was not fit as well as the eggs were found packed in loose trays, but as per the standard packing norms, the trays are kept in a box after providing proper cushion. It is further averred in the reply that after receiving the spot survey report, the company appointed Shri Jatinder Kalra, who assessed the loss to the tune of Rs.15,305/- after deducting 50% under

4. The learned counsel for the complainant has produced Ex.C-1 repudiation letter, Ex.C-2 copy of insurance policy, Ex.C-3 copy of policy, Ex.C-4 copy of voucher, Ex.C-5 copy of declaration form, Ex.C-6 copy of bill, Ex.C-7 copy of gate pass, Ex.C-8 copy of RC, Ex.C-9 copy of permit of vehicle, Ex.C-10 copy of policy, Ex.C-11 affidavit, Ex.C-12 to Ex.C-21 photographs and closed evidence. On the other hand, the learned counsel for the OP has produced Ex.OP1 copy of terms and conditions of the policy, Ex.OP/2 copy of marine cargo open policy, Ex.OP-3 copy of terms and conditions, Ex.OP-4 copy of policy schedule, Ex.OP-5 copy of letter dated 17.2.2016, Ex.OP-6 copy of intimation, Ex.OP-7 copy of survey report, Ex.OP-8 to Ex.OP-10 copies of survey report, Ex.OP-11 to Ex.OP-19 copies of photographs, Ex.OP-20 copy of RC, Ex.OP-21 copy of letter, Ex.OP-22 affidavit of Vishal Goyal, Ex.OP-23 affidavit of Er. Jatinder Kalra, Ex.OP-24 affidavit of RL Hira and closed evidence.

5. We have carefully perused the complaint, version of the opposite party and evidence produced on the file and also heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits acceptance, for these reasons.

6. It is an admitted fact between the parties that the complainant took the marine cargo open policy in question for Rupees two crore from the OP. It is further not in dispute that the truck bearing registration number PB-13-AF-4417 met with an accident on 17.2.2016 when it was loaded with egg trays worth Rs.2,23,650/- and was going from Village Sadatpur to Ludhiana.

7. In the present case, the grievance of the complainant is that the OP has wrongly repudiated the claim on the ground that at the time of accident the trays were loose and the vehicle in question was not having any valid fitness certificate. Now, the question which arises for determination before us is whether the OP has repudiated the claim of the complainant rightly or not.

8. In the present case, it is an admitted fact that the vehicle in question turned turtle due to bursting of the left rear tyre of the vehicle. We have perused the copy of the survey report of Shri Jatinder Kumar Kalra dated 22.3.2016, a copy of which on record is Ex.OP/9, wherein it has been stated that in accordance to the instructions received from the insurance company on 17.2.2016, he visited at the premises of the complainant, where the damaged eggs were lying in vehicle body along with damaged trays and checked the consignment. After visiting there he asked the staff to sort out the damaged consignment and after sorting out 250 trays of eggs were found intact and thereafter he assessed the loss to the tune of Rs.1,77,322/-. As such, we may mention that in case the complaint is allowed the claim payable is to the tune of Rs.1,77,322/- only. Now, coming to the point whether the OP is justified in repudiating the claim of the complainant on the ground that the vehicle in question was not having any fitness certificate. The learned counsel for the complainant has contended vehemently that the insurance company should not repudiate the insurance claim as there is no breach of the terms and conditions of the policy, because the insurance is a matter of contract between the parties. Similarly, the learned counsel for the complainant has cited G. Kothainachiar versus United India Insurance Co. Ltd. 2008(1) CLT 55 (NC) , wherein the Hon’ble National Commission has held that the insurance company cannot repudiate the claim when there is no breach of the terms and conditions of the policy as the insurance is a matter of contract between the parties. As such, the Hon’ble National Commission set aside the order passed by the State Commission dismissing the complaint and the order of the Forum allowing the complaint was restored. Similarly, in another case, namely, National Insurance Company Limited versus Maya Gandhi 2007(1) CLT 652 (NC), the Hon’ble National Commission has held that in case fitness certificate was not there at the time of theft, the claim should be settled on the basis of survey report as well as the documents produced on record and the repudiation was held not justified. Further the insurance company was directed to reimburse the amount of loss assessed by the surveyor.

9. On the other hand, the learned counsel for the OP has contended that the claim has rightly been repudiated as there was no fitness certificate at the time of accident of the vehicle in question. To support such a contention, the learned counsel for the OP has cited New India Assurance Co. Ltd. versus A. Kalavathi I(2013) CPJ 396 (NC), wherein it has been held that the fitness certificate was not renewed at the time of accident, the production of fitness certificate subsequently is of no consequence and the insurance company is justified in not settling the claim. Further the learned counsel for the OP has cited United India Insurance Co. Ltd. versus B. Ugandar III(2010) CPJ 253 (NC), wherein the repudiation of the claim was held to be justified in the absence of fitness certificate. In these circumstances, we may mention that in the present case, the accident of the truck in question occurred due to burst of tyre, which is an accidental cause and the fitness certificate had to do nothing in this case. As such, we are of the considered opinion that it is a fit case, where the claim is required to be settled on the basis of the survey report, as mentioned above.

10. The insurance companies are in the habit to take these type of projections to save themselves from paying the insurance claim. The insurance companies are only interested in earning the premiums and find ways and means to decline claims. The above said view was taken by the Hon’ble Justice Ranjit Singh of Punjab and Haryana High Court in case titled as New India Assurance Company Limited versus Smt. Usha Yadav and others 2008(3) R.C.R. 9 (Civil) 111.

11. In view of our above discussion, we allow the complaint and direct OP to pay to the complainant an amount of Rs.1,77,322/- along with interest @ 9% per annum from the date of filing of the present complaint i.e. 10.08.2016 till realisation. We further direct OP to pay to the complainant an amount of Rs.15,000/- on account of compensation for mental tension, agony and harassment as well as an amount of Rs.5000/- on account of litigation expenses.

12. This order of ours be complied with within a period of thirty days of its communication. A copy of this order be issued to the parties free of cost. File be consigned to records.

Pronounced.

January 6, 2017.

(Sukhpal Singh Gill)