Haryana

Ambala

CC/378/2005

M/s Pragati Papers. - Complainant(s)

Versus

NIC Ltd - Opp.Party(s)

01 Apr 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                Complaint case no.          378 of 2005/2018

                                                Date of Institution         : 5.9.05/4.7.18

                                                Date of decision   :  08.04.2019

 

 

M/s Pragati Papers Industries Ltd. 10/5, East Patel Nagar, New Delhi  and works  at village  Handesra, Tehsil Dera Bassi, District Patiala.

 

……. Complainant.

 

                                                          Vs.

 

National Insurance Company Ltd. Nahan- Chandigarh Road, Near Bus stand, Naraingarh, District Ambala

 

….…. Opposite Party

  

 

Complaint Under Section 12 of the Consumer Protection Act

 

 

Coram:       Ms. Neena Sandhu, President.

Ms. Ruby Sharma, Member.

Sh. Vinod Kumar Sharma, Member.

.

                            

Present:       Sh. R.K.Joshi, Advocate, counsel for complainant.

Sh. Mohinder Bindal, Advocate, counsel for the OPs.

 

Order:         Smt. Neena Sandhu, President.

Before going in the facts of the case, it is necessary to mention here that the case has been remanded back by the Hon’ble National Commission, New Delhi vide its order dated 27.04.2018. Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party(hereinafter referred to as ‘Op’) praying for issuance of  following directions to it:-

1. To release the claim amount of Rs. 5,28,729/- to the complainant  alongwith interest @18% per annum from the due date till its actual payment.
2. To pay of Rs.20,000/- as damages alongwith litigation expenses. 

Or

any other relief whichthis Hon’ble Forum may deemfit.

 

 

The brief facts of the complaint are that the complainant has obtained a Marine policy, from the OP by paying premium, in respect of consignment of paper machinery, in course of transit from time to time. The OP had covered the risk vide cover note no.068690 dated 29.04.2002. A consignment containing the blind drill roll part of paper machine from M/s Servall Engg. Works Ltd. Karamandi, Coimbatore, worth Rs. 6,03,200/-vide invoice no.313 dated 20.03.2003 was dispatched  to the complainant  at its  works place, Village Handesra  District Patiala, through transporter Economic Transport Organization from Coimbatore vide GR No.S-741-17472 dated 20.03.2003. Unfortunately, the said consignment containing Blind Drill Roll was found in the damaged condition and the request was made by the complainant to the OP for appointment of a surveyor to assess the loss. The OP deputed a surveyor and the requisite documents were supplied to him by the complainant vide letter dated 20.11.2013. But the complainant was again and again asked to provide the documents just to dilly-dallying the matter. Complainant approached the M/s Lathia Rubbar Mfg. Pvt Ltd. Chandivli, Mumbai for the repair of the said Blind Drill Roll. The said company demanded Rs.5,28,729/- as repair charges and freight charges for transportation from Handesra to Mumbai and return to Handesra. It is stated that the surveyor had wrongly mis-interpreted the rough estimate given by the complainant against the repair whereas he should have considered the actual loss suffered by the complainant on the basis of the charges as claimed by M/s Lathia Rubber Mfg. Co. Pvt. Ltd which was duly paid and also up and down freight charges. The OP has malafidely and deliberately withheld the genuine claim of the complainant. A legal notice dated 25.06.2005 was served upon the OP which was duly received by the OP inspite of that the OP did not settle the claim. Hence the present complaint.

2.               Upon notice, OP appeared through counsel and filed written version, raising preliminary objections that the complaint is not maintainable; no cause of action; not come with clean hands; no jurisdiction; complaint being false & frivolous. On merits, it is stated that on receiving the intimation of loss on 09.06.2003, after a delay of about 9 days of the alleged arrival of the consignment at the factory  premises for an estimated loss of about Rs.2.5lac. An independent surveyor, Sh.N. Kumar Surveyors Pvt. Ltd. was immediately deputed on the same day i.e. 09.06.2003, for physical inspection of the alleged consignment and assessment of loss subject to maintainability of the claim as per terms and conditions of the policy. The said surveyor immediately, on 10.03.2018 visited the premises of the complainant and found that the said blind drill roll had already been unloaded and unpacked in the premises of the complainant. The said surveyor also found that the loss was in the middle of the drill, in the form of a hole in rubber portion affixed on the steel roll. The surveyor requested the complainant’s representative to provide certain information and documents related to alleged loss. Inspite of repeated requests and reminders, the complainant failed to give any reply or required documents as asked by the surveyor. Due to late intimation, late delivery of consignment, which took about 72 days to reach the complainant location from Coimbatore, although it was a door delivery with no trans-shipment involved, due to unloading and unpacking of the blind drill prior to reaching of the surveyor, due to nature and circumstances of alleged loss, not claiming any indemnification from the transporter, for the alleged loss, raised suspicions in the matter. The said surveyor further found so many contradictions and manipulations in the present claim and after waiting for sufficient time to get the required information, explanation and documents  had submitted his report on 13.06.2004, whereby he assessed the loss to the tune of Rs. 6,03,200/- however, at the same time,  he recommended the claim for repudiation due to loss being not possible and feasible during transit as such not falling  under the scope  of policy as well as due to other manipulations  on the part of complainant.  The surveyor submitted his well reasoned report on 13.06.2004 in detail event wise with his considered opinion. It was observed by the surveyor that the alleged loss may have cause at the consignor premises at the time of its unpacking or installation of the said blind drill. It is stated that there was no loss to other four items loaded in the and the truck did not met with accident. Moreover, the size and weight of the packed drill(10.7 ton) was such that its manhandling was not possible during its transit, as the same could only be loaded and unloaded with help of crane. After scrutinizing the whole facts, records and evidence, the OP was compelled to repudiate the reported claim of the complainant as per the terms of the policy. The complainant was duly informed about the fate of his claim vide letter dated 20.08.2004. Thus, there is no deficiency in service on the part of the Op and prayed for dismissal of the complaint.

3.                To prove his version complainant tendered affidavit Annexure CW1/A alongwith documents as Annexure C-1 to C-20 and closed the evidence. On the other hand, Counsel for the OP, tendered affidavits, Annexure R-X & Annexure R-Y alongwith documents, Annexure R-1 to  R-10 and closed the evidence.

4.                We have heard the learned counsel of the parties and carefully gone through the case file and the written arguments filed by the learned counsel for OP.

5.                Annexure C-1, is the cover note issued by OP towards the marine policy to the extent of Rs.10 crore, in favour of the complainant for consignment of paper machinery in course of transit from time to time by road. Annexure C-2, is the consignment dispatch letter dated 23.03.2003, vide which the Servall Engg. Works Ltd. sent the consignment containing blind drill roll part of paper machine worth Rs. 6,03,200/- from Coimbatore, Tamil Nadu to the business premises of the complainant at Patiala, Punjab. The learned counsel for the complainant has argued that the said consignment was received by complainant in damaged condition. Since the above mentioned machine part got damaged during transit, therefore, it was duly informed to the OP and also a request was made to depute a surveyor for inspection vide letter Annexure C-3.Accordingly, a surveyor was appointed by the OP, to whom all the requisite documents were provided. But when the OP did not settle the claim then after waiting for some time, the complainant, just  to avoid further loss, sent the damaged machine part for its repair to M/s Lathia Rubber Mfg. Co. Pvt Ltd. Mumbai, which charged Rs. 4,58,729/- for the repair, as is evident from Annexure C-8. The complainant paid freight charges to the transporter for the transportation of the said machine part from Handersa to Mumbai and back. In total an amount of Rs.5,28,729/- was spent for the repair of the impugned machine part, accordingly he requested the OP to indemnify to that extent. However, the OP repudiated its genuine claim vide letter dated 20.08.2004, which amount to deficiency in service on its part. The learned counsel for the OP has argued that after receiving the information from the complainant, a surveyor visited the premises of the complainant and observed that only rubber of the said machine part was damaged. In order to know the price of the rubber part, the said surveyor asked the complainant to provide him document(s). But complainant failed to provide any document to the OP. Ultimately, the said surveyor assessed the loss the tune of Rs. 6,03,200/- i.e. 10% of the total value of the said machinery part. However, the said surveyor opined that the damage was not during the transit therefore, the complainant is not entitled to get any claim under the policy. Accordingly, the OP has rightly repudiated the claim vide letter dated 20.08.2004, Annexure R-1. 

6.                It is proved on record that a new machine purchased by the complainant got damaged and the complainant got it repaired from M/s Lathia Rubber Mfg. Co.Pvt Ltd. Mumbai, for which an amount of Rs. 4,46,743/- was charged by it, as is evident from the Annexure C-7.  No doubt it was alleged by the surveyor that the machine in question was damaged during unloading. However, no cogent and convincing evidence brought on record by the said surveyor. Even otherwise it cannot be presumed that a complainant, who has spent a huge amount of Rs. 6,03,200/-  will mishandle the same while unloading it. As such, we are of the considered opinion that the machine in question was damaged during transit only, for which insurance cover had already been taken by the complainant. So far as the report of the surveyor is concerned, it appears that the same is not correct on the face of the, Annexure C-7 Rs.4,46,743/- wherein the entire detail of the parts repaired/ replaced have been mentioned. The surveyor has categorically failed to bring anything contrary to the, Annexure C-7, as such the same remained unchallenged, which could persuade this Forum to deny the claim of the complainant. Under above circumstances, the complainant is held entitled to the amount spent by it towards the repair of the said machine part and also freight charges, in accordance with the documents placed on record Annexure C-7 i.e. delivery memo dated 02.08.2003 and Annexure C-15 i.e. Bill dated 12.06.2003 issued by the consigner for an amount of Rs. 19,000/-. Accordingly, the insurance company is liable to pay a total sum of Rs.4,65,743/-(Rs. 4,46,743+19,000) alongwith interest.

7.                In view of the aforesaid discussion, we here by allow the present complaint and direct the OP to pay Rs. 4,65,743/- to the complainant alongwith interest @7% per annum from the date of filing of complaint till its realization and Rs. 5,000/- as litigation expenses. The Op is further directed to comply with the aforesaid directions within the period of 30 days from the date of receipt of the certified copy of this order. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :08.04.2019

 

 

 

(Vinod Kumar Sharma)      (Ruby Sharma)     (Neena Sandhu)

              Member                        Member             President