Chandigarh

DF-II

CC/194/2023

LSR INFRACON PVT LTD - Complainant(s)

Versus

NEW INDIA ASSURANCE COMPANY - Opp.Party(s)

KPS VIRK

20 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	194 of 2023
Date  of  Institution	:	29.03.2023
Date   of   Decision	:	20.09.2024

 

 

 

 

M/s LSR Infracon Pvt. Ltd., Registered Office at Plot No.38-B, Industrial Area, Phase 2, Chandigarh-160002 through Mr.Kamal Singh, Authorized Representative.

             … … … Complainant

 

Versus

1.  The New India Assurance Company, Branch Office  Rajpura, Registered Office at D-45, Calibre     Market, 1^st Floor, through its Branch Manager.

2.  Mr.Chander Mohan Singh, Branch Manager, The New     India Assurance Company, Branch Office   Rajpura.

   … … … Opposite Parties

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.SURESH KUMAR SARDANA,       MEMBER

                               

Argued by:    Ms.Lakshita Sahni, Counsel for Complainant alongwith Ms.Jha Shubhangi Umesh, Advocate.

Sh.S.S.Sidhu, Counsel for OPs.

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

 

1]       The complainant has filed the present complaint pleading that complainant company is the business of construction and infrastructure development. It is stated that the complainant company purchased one machine Wirtgen Soil Stablizer WR 200 and insured the said machine with OP No.1 vide one Marine Cargo Open Policy No.36120121190200000006 valid from 07.11.2019 to 06.11.2020 for total sum assured of Rs.3,52,74,330/-. It is stated that at the time of purchasing the policy, it was represented to the complainant by the OPs that the said policy will cover unlimited number of transits during the validity of policy. It is submitted that due to increase of the volume of the business of the company, the complainant acquired one more similar machine. Acting on the assurance given by representatives of OP No.1 that new policy will have the same terms & conditions as that of earlier policy and no additional premium was required to be paid for future transits of the machine, the complainant purchased a Marine Cargo Open Policy No.36120121200200000001 valid from 17.04.2020 till 16.04.2021 against payment of premium of Rs.48,198/-.

    It is submitted that complainant vide letter dated 27.05.2020 informed the OP regarding movement of machine from Chandigarh to Leh for completion of the project. It is submitted that after the completion of the project at Leh, the machine was scheduled to return to Chandigarh and in compliance with the terms & conditions of the policy, the complainant informed the OP regarding moving the machine from Leh to Chandigarh. The machine was loaded on a trailer bearing registration No.HR68 A 8866, but the said trailer unfortunately met with an accident on 14.10.2020 at Nimoo near Leh on its way back to Chandigarh and machine got damaged due to overturning of the trailer carrying it. The complainant immediately informed OP No.2 regarding the accident and requested for appointment of Surveyor. It was only on 16.10.2020, the complainant received an e-mail from OP No.2 that Surveyor could not be appointed and complainant was asked to take photographs of the accident and intimate the local police. The complainant sent photographs as well as videos depicting the damaged machine & trailer alongwith copy of general diary report No.10 dated 19.10.2020 to OP No.2 on 23.10.2020. It is submitted that machine reached the premises of M/s Wirtgen India Pvt. Ltd. at Pune on 01.12.2020. It is submitted that surveyor was appointed and complainant supplied all the required documents to the surveyor. The surveyor approved the sum of Rs.82,22,576/- against total claim of Rs.1,09,24,052/- vide letter dated 07.10.2021. It is submitted that accident took place on 14.10.2020, documents were supplied to the OP by 26.07.2021, final survey report was finalized on 07.10.2021 which was accepted by complainant on 23.10.2021, but no payment has been released. It is further submitted that to the utter surprise of complainant, the OPs repudiated the claim of the complainant vide its letter dated 25.11.2022 on flimsy grounds. Hence, this complaint has been filed alleging deficiency in service and unfair trade practice on the part of OPs with a prayer to direct the OPs to pay the amount of Rs.82,22,576/- as assessed by the surveyor along with interest, compensation for mental agony and harassment, litigation expenses.

2]       OP No.1 has filed written version, which has also been adopted by OP No.2, stated that the OPs deputed a surveyor who assessed the loss to the tune of Rs.82,22,576/- and submitted his report dated 07.10.2021 but the surveyor did not made any specific recommendation for the payment of the claim for the reasons that the assessment made by the surveyor is subject to terms and conditions of the insurance policy and final acceptance of liability by the insurer. It is pleaded that the insured M/s LSR Logistics Pvt. Ltd. vide letter dated 27.05.2020 (Annexure C-4) had informed the branch office of OP No.1 that machinery WR200 is being sent from Chandigarh to Leh through vehicle No.HR68-A-8866 for the value of the machinery of Rs.3,55,18,000/- under policy No.36120121200200000001. It is pleaded that total sum assured under the policy mentioned in the letter was exhausted with the disptach of the consignment declared vide letter dated 27.05.2020. It is pleaded that the insured M/s LSR Logistics Pvt. Ltd. was well aware of the fact that the sum insured under the policy had already exhausted in view of the letter dated 27.05.2020 when the machine was sent from Chandigarh to Leh under the said policy. It is further pleaded that it is for the insured to get the sum assured replenished for the subsequent transportation of the consignments. Hence, it is stated by OPs that the claim of M/s LSR Logistics Pvt. Ltd. was rightly repudiated vide letter dated 25.11.2022 (Annexure C-17) on the ground that the machine sent from Nimuh to Chandigarh was not insured as the sum insured under the policy for the period 17.04.2020 to 16.04.2021 had already exhausted on 27.05.2020. Denying any deficiency in service or unfair trade practice as well as all other allegations, the OPs have prayed for dismissal of the complaint. 

3]       Replication has also been filed by the complainant controverting the assertions of OPs as made in their written version. Parties led evidence in support of their contention.

4]       We have heard the learned counsels for the parties and have gone through entire documents on record.

5]       It is observed that OPs have repudiated the claim of the complainant on the grounds of following discrepancies:-

i)  Sum insured has already been exhausted by first consignment dated 27.05.2020 vide which the machine amounting to     Rs.3,55,18,000/- was shipped from Chandigarh to Nimuh. Further, no premium   has been received from the complainant     for increasing the sum insured under the    policy. Therefore, the second     consignment from Nimuh to Chandigarh     which started from 13.10.2020 does not cover under the policy due to exhausting of the sum insured in the policy.

    ii) The policy is subject to closed vehicle         warranty and private carrier warranty.

    iii) Complainant has not provided the date &         time of the photos and videos of the       damaged vehicle and its surrounding.

iv) Despite reminders by surveyor dated    04.01.2021, 12.01.2021, 08.03.2021,   25.03.2021 for lodging a claim on the     transporter entrusted with carriage of machine through registered post for   protecting the recovery rights of     insurer. Complainant vide letter dated 27.03.2021 informed that he did not wish to lodge claim against the transporter,     therefore, jeopardized the recovery    rights of insurer. Thereafter on    28.06.2021, complainant sent a letter to     the transporter for the same but that was well past in limitation period     required for this purpose. It indicates     that complainant had intentionally not protected the recovery rights of the    insurer which is very clear from letters dated 27.03.2021 and 28.06.2021.

         Thus, keeping in view of above facts,       the OPs have repudiated the claim of the        complainant.

6]       Now the moot question before this Commission whether the grounds of repudiation of the claim of the claimant/complainant are justified or not?

7]       Complainant has placed on record Marine Cargo Open Policy as Annexure C-3 wherein period of insurance was clearly written that it is valid from 17.04.2020 to 16.04.2021. In the clause of Journey Details, it is clearly written that journey can be from Anywhere in India and to Anywhere in India by transport mode of Rail/Road. Thus, it is clear that insurance was valid for a period of 12 months i.e. 17.04.2020 to 16.04.2021. The OPs have repudiated the claim of the complainant on the ground that policy has already been exhausted by first consignment dated 27.05.2020 vide which the machine was shipped from Chandigarh to Nimuh. Therefore, second consignment from Nimuh to Chandigarh which started on 13.10.2020 was not covered under the policy due to exhausting of sum insured in the policy. It is observed that it was never brought into the knowledge of the complainant that this insurance was valid for only one transit. However, the policy clearly indicates that transit insurance for the entire year was available to the complainant. Further, the insurance cover note also indicates that all the transactions done during the time the insurance cover was applicable from 17.04.2020 to 16.04.2021. Moreover, when first transaction was completed from Chandigarh to Nimuh on 27.05.2020, OPs did not inform the complainant that his policy has exhausted by first transit and for the return journey he has to purchase a fresh policy. It is also observed that it transit from Chandigarh to Nimuh and from Nimuh to Chandigarh completes a one circle of transit. Hence, as per Insurance Cover Note, all the transactions done during the validity of insurance period of one year are covered. Therefore, this objection is not sustainable in the eyes of law. 

    The second ground of rejection of the claim subject to closed vehicle warranty and private carrier warranty is also without any substance as the OPs failed to discharge its burden of profit that aforesaid are not under warranty. Thirdly, the accident took place on 14.10.2020 whereas complainant has informed the incident to the OPs well within time but OPs told the consumer that due to Covid-19 restrictions, spot survey was not possible. Hence, complainant was directed to take photographs and videography of the damaged machine and its surrounding with date & time and send the same to OPs. In compliance of the directions given by OPs, complainant has sent videography and photographs of the damaged machine as well as trailer alongwith surrounding and also sent copy of General Diary Report No.10 dated 19.10.2020 mentioning the factum of accident vide letter No.LSR/NIIC/2020-21/10 dated 23.10.2020. So, it is well established that complainant had not only informed the OPs about the accident but also requested them to appoint the surveyor in order to get the benefit of his claimed amount. Not only this, he has duly reported the matter to the local police and General Diary Report No.10 dated 19.10.2020 was mentioned. It is the OPs who could not appoint the surveyor due to Covid-19 situation. Hence, defence taken by OPs that photographs and videography were not provided to them along with date & time is lame excuse liable to be rejected.

    The last ground of rejection of the claim of the complainant is that complainant has not lodged a claim on the transporter entrusted with carriage of machine for protecting the recovery rights of insurer and caused a jeopardized to the recovery rights of the insurer. OPs alleged that complainant has not intentionally protected the recovery rights of the insurer. The plea of the OPs is without any base and substance as it could not prove that complainant has any intention not to protect the recovery rights of the insurer. Moreover, it is observed that surveyor has given reminders from 04.01.2021 to 25.03.2021 for lodging the claim on the transporter entrusted with carriage of machine for protecting the recovery rights of insurer. In regard to alleged letter of the complainant dated 27.03.2021, he did not wish to claim against transporter. It cannot be concluded that he intentionally did not want to protect the recovery rights of the insurer but the reason might be that he did not want to drag himself in multiplicity complaint cases. Moreover, it is open for the insurer to file a complaint against the transporter at their own to get the recovery rights enforced after getting the power of attorney from the complainant. If OPs are the interested then they can sue the transporter at their own after getting the power of attorney from the complainant instead of dragging the complainant into the same. Moreover, in the absence of alleged letter dated 27.03.2021 on the record, it cannot be concluded that such letter was ever written by complainant to OPs.  

    The Hon’ble Supreme Court has clarified in case titled ‘Taj Mahal Hotel vs United India Insurance Co.Ltd.& ors.’ Civil Appeal No.8611 of 2019 decided on 14.11.2019, that insurer can file a complaint as a subrogee. The Hon’ble Supreme Court in case titled as ‘Economic Transport Organisation vs M/s Charan Spinning Mills (P) Ltd. & anr.’ (2010) 4 SCC 114, observed that if the insurer is acting as a subrogee and has filed a case in the name of the insured where the insurer is attorney holder of the insured, then case is maintainable. Hence, the insurer is well within its rights to file a recovery suit against transporter by filing a case against him after getting the power of attorney from the insured. There is nothing on record that OPs have ever demanded power of attorney from the complainant for the above mentioned purpose and complainant has ever denied to the same. Only reason, which is visible from the record that complainant did not wish to file a recovery suit against transporter, is to save himself from formal legalities and financial burden. OPs never forewarned complainant that such refusal may be a ground of rejection of his claim. So, this ground of rejection of claim is not a just and proper ground for the rejection of claim of the complainant.   

8]       In view of the above mentioned discussions, it can safely be concluded that OPs have rejected the claim of the complainant, which is valid from 17.04.2020 to 16.04.2021, wrongly and arbitrarily. The complaint of the complainant is partly allowed. OPs are directed to pay the claim to the complainant as per assessment of the surveyor, i.e. Rs.82,22,576/- alongwith interest @ 6% per annum from the date of repudiation, i.e. 25.11.2022, till the date of its actual realization. As the complainant has suffered from harassment and mental agony, therefore, lump sum compensation of Rs.50,000/- is awarded, which shall be paid by OPs to the complainant.

        The above said order shall be complied with by the OPs within a period of 45 days from the date of receipt of certified copy of this order.

 

9]       The pending application(s) if any, stands disposed of accordingly.

        The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.

Announced

20.09.2024                                                               

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

 (SURESH KUMAR SARDANA)

MEMBER

as