Punjab

Sangrur

CC/213/2015

M/s Venus Auto Batteries - Complainant(s)

Versus

OIC Ltd. - Opp.Party(s)

Shri Sanjeev Goyal

09 Nov 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

 

                                                               

                                                Complaint No.  213

                                                Instituted on:    17.04.2015

                                                Decided on:       09.11.2015

 

M/s. Venus Auto Batteries, Gaushala Road, Sangrur through its Proprietor Mahesh Kumar aged about 48 years son of Shri Durga Parshad.

                                                        …Complainant

                                Versus

1.             The Oriental Insurance Company Limited, Branch Office; Nabha Gate, Sangrur through its Branch Manager.

2.             Moongipa Roadwings, 119, Cotton Street, Kolkata through its authorised signatory.

                                                        ..Opposite parties

 

For the complainant  :       Shri Sanjeev Goyal, Adv.

For OP No.1             :       Shri Dharam Pal Singh

                                        Anand, Advocate.

For OP No.2             :       Shri S.S.Ratol, Adv.  

 

 

Quorum:   Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

 

Order by : K.C.Sharma, Member.

 

1.             Shri Mahesh Kumar proprietor of M/s. Venus Auto Batteries, complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that the complainant availed the services of the OP number 1 by getting marine transit policy by insuring the consignment of tubular batteries for an amount of Rs.33.00 Lacs vide cover note number 167954 dated 23.6.2014 for the period from 23.6.2014 to 22.6.2015. It is stated further that the complainant is running the business in order to earn his livelihood by way of self employment.  That the complainant got booked a consignment of 540 batteries through OP number 2 for the delivery of the same from Patrapoll Boarder to Sangrur through truck bearing registration number RJ-19-GA-8120 and truck bearing registration number PB-13-Y-9321.

 

2.             Further case of the complainant is that on 15.6.2014 when the consignment reached at Sangrur, then it was found that 135 batteries out of 270 batteries were damaged in the truck bearing number RJ-19-GA-8120, the intimation of which was immediately given to the OP number 1 and the OP number 1 appointed Mr. Yashwinder Goyal, Surveyor for assessing the loss. The surveyor visited the spot and took photographs and the complainant supplied all the documents required by the said surveyor for settling the claim.  It is further stated that thereafter Shri Pukhraj Singh also inspected the damaged material on 3.7.2014.  Further case of the complainant is that the OP number 1 failed to pay the claim despite repeated visits and lastly vide letter dated 15.1.2015, the OP number 1 repudiated the claim of the complainant.  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 an amount of Rs.9,00,000/- along with interest @ 18% per annum from the date of loss and further claimed compensation and litigation expenses.

 

3.             In reply filed by OP number 1, preliminary objections are taken up on the grounds that the complaint is not maintainable, that the complainant does not fall under the definition of consumer, that the complicated questions of law and facts are involved in the present case and only civil court is competent to try and decide the present complaint. On merits, it is admitted that the OP number 1 had issued Marine Cargo Specific policy for the period from 23.6.2014 to 22.6.2015 for a sum of Rs.33.00 Lacs. It has been denied that the policy document was not issued and only the cover note was issued. It is further denied that no separate terms and conditions were supplied to the complainant. It is stated that the complainant is running the business for commercial purpose. It is stated that the alleged damage was caused when the batteries were in the custody of OP number 2 and being a trusty and custodial of the batteries, he was bound to maintain them in same condition when these were entrusted to him and to deliver them in the same condition to the owner at Sangrur.  The alleged damage was caused due to the negligence of OP number 2, who has not properly stacked the batteries in the truck which resulted in tilting the leakage of acid from the batteries.  It is stated that on receipt of the intimation of loss on 15.6.2014, the OP immediately deputed Shri Yashwinder Goel, surveyor for spot inspection and also deputed Protect Insurance Surveyor and Loss Assessor, Mohali for final assessment of the loss, who submitted their respective reports dated 28.6.2014 and 9.8.2014 respectively and found that the batteries were not properly stacked and held on the vehicle this allowed movement of pallets and resulting in tilting of pallets within the load body of the truck. It is stated further that the tilting of the battery pallets caused leakage of the battery acid. However, it is stated that as per final surveyor Shri Pukhraj Singh, the loss is to the tune of Rs.5,27,784.10. It has been denied that the complainant supplied all the documents to the OPs.  After thorough investigation of the claim, it was found that the complainant is not entitled to any claim, as such the same was rightly repudiated.  However, any deficiency in service on the part of the OPs has been denied.

 

4.             In reply filed by OP number 2, legal objections are taken up that the complaint is not maintainable, that the complainant has not come to the Forum with clean hands and that the no cause of action has arisen to the complainant for filing any complaint. On merits, it is stated that the complainant hired two trucks bearing registration number RJ-19GA-8120 and PB-13-Y        -9321 for delivery of 540 batteries and the same were packed in wooden carton and further wood carton were wrapped in plastic sheets and tighter with the plastic strips for the safe delivery of the same. However, it is stated that the stacking of material at Petrapole is done by the agent of the complainant and the OPs job is to place the empty truck for loading at loading point and after completion of loading of two trucks by the agent of the complainant at Petrapole to deliver the same at its destination.  It is correct that due to some accident, 135 batteries were damaged. It is stated that all the batteries were loaded in the trucks in the same manner. Any deficiency in service on the part of the OP number 2 has been denied.

 

5.             The learned counsel for the complainant has produced Ex.C-1 copy of policy, Ex.C-2 copy of despatched challan, Ex.C-3 to Ex.C-5 copies of letters, Ex.C-6 copy of invoice, Ex.C-7 copy of cover note, Ex.C-8 and Ex.C-9 copies of bilti, Ex.C-10 copy of claim form, Ex.C-11 copy of email, Ex.C-12 and Ex.C-13 copies of letters, Ex.C-14 affidavit and closed evidence. The learned counsel for OP number 1 has produced Ex.OP1/1 affidavit of Amarjit Singh, Ex.OP1/2 affidavit of Pukhraj Singh, Ex.OP1/3 affidavit of Er. Yashwinder Goyal, Ex.OP1/4 copy of repudiation letter dated 11.2.2015, Ex.OP1/5 copy of insurance policy, Ex.OP1/6 copy of survey report, Ex.OP1/7 copy of claim form, Ex.OP1/8 copy of spot survey report, Ex.OP1/9 copy of challan, Ex.OP1/10 copy of bilty and closed evidence. The learned counsel for OP number 2 has produced Ex.OP2/1 affidavit and closed evidence.

 

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

7.             It is an admitted fact between the parties that the complainant obtained the marine transit policy in question for Rs.33.00 Lacs from OP number 1. It is further an admitted fact that the truck bearing registration number RJ-19GA-8120 was loaded with 270 batteries out of which 135 batteries were damaged, but the OP number 1 repudiated the claim of the complainant, for which the complainant has filed the present complaint to get the claim.  Whereas the OP number 1 has contended that the claim has been rightly repudiated.

 

8.             In the present case, the complainant got insured his consignment of tabular batteries for an amount of Rs.33.00 Lacs vide insurance cover note number 167954 dated 23.6.2014 for the period from 23.6.2014 to 22.6.2015 as per document Ex.C-7 to cover all type of risks.  The said consignment of 540 batteries was to be delivered safely from Petrapoll border to Sangrur by OP number 2 in two trucks with 270 batteries in each truck as per document Ex.C-8 and Ex.C-9 on record.   Op number 2 packed the said batteries in the wooden cartons and further wooden carton were wrapped in plastic sheets and tightened with the plastic strips for the safe delivery of these batteries, but when the consignment reached at destination at Sangrur, then it was found that out of 270 batteries, 135 batteries were found damaged in one of the truck bearing registration number RJ-19-GA-8120, whereas the other batteries were delivered safely.

 

9.             In the written reply OP number 1 has admitted the policy in question, but has submitted that the claim has been rightly repudiated as the batteries were not properly stacked and as a result of the same, the tilting of pallets within the load body of the truck caused leakage of the batteries acid.

 

10.           In the written reply OP number 2 has also submitted that vide policy in question all transit risks were covered and the truck numbers vide which the goods were to be delivered were also mentioned in the policy.  Further OP number 2 has also submitted that “the said batteries packed in the wooden carton and further wooden carton were wrapped in plastic sheets and tighten with the plastic strips for the safe delivery of these batteries”.  Op number 2 has also admitted that out of 270 batteries, 135 batteries were damaged due to some accident.

 

11.           After hearing the arguments of the leaned counsel for the parties and on going through the documents placed on record, we find that the policy in question is admitted by the parties. Now, the main point of controversy in the present case is that whether the batteries were properly stacked or not.

 

12.           The version of OP number 1 is that the batteries were not properly packed and stacked , whereas the learned counsel for the complainant and OP number 2 has vehemently argued that the batteries were properly packed and stacked as the same were loaded in two trucks in the same manner and by the same mechanics of OP number 2  and OP number 2 has submitted in the reply that “all the batteries loaded in truck number PB-13-Y-9321 were safe as no accident took place with this truck while due to some accident, the loss has took place in the other truck”.

 

13.           We have gone through the entire evidence of OP number 1, but we do not find any cogent and reliable evidence on record with regard to the tilting of the batteries and reliance of OP number 1 is on the report of the surveyor Shri Yashwinder Goel, who has submitted in the document Ex.OP1/8 that “the vehicle was lying on the side of the road and the material packed in the card board boxes (each box separately packed)”.  In the written reply submitted by Op number 1, it is stated that “surveyor has mentioned that all the material is in the truck and I have taken the necessary photographs of the material.”.  But, then the OP number 1 has not produced on record any of the photographs in support of their version.  Moreover, had there been any fault in the packing and stacking of the batteries, then the batteries in other truck would have also been damaged.  So, when the batteries with the other truck have not been damaged, so, we are unable to accept the version of OP number 1 that the batteries were not properly stacked and then too, when the batteries in both the trucks were packed and stacked by the same person.  The complainant has also brought in the notice of OP number 1 vide email document Ex.C-11 page 4/8 that in the truck of 15 ton capacity, whose size is length 22’ and breadth 7.5’ and has explained that there could never been such a space between two boxes as has been mentioned by the surveyor in his report Ex.OP1/8.  During arguments, the learned counsel for the complainant has submitted that as on the date of survey i.e. 28.6.2014, the surveyor Shri Yashwinder Goel, who submitted his report Ex.OP1/8 was not on the approved list of IRDA as his license had already expired on 24.5.2014.  The leaned counsel for the complainant has also cited the judgment of the Hon’ble National Commission Sarvlaxmi Marines versus Oriental Insurance Company Limited and another 2007(3) CPJ 471 (NC) wherein it has been held that the investigator, who had no authority under the law to carry out investigation, he was neither qualified nor licensed to do so, law does not permit the  respondent to appoint such investigator.”

 

14.           OP number 1 has also got the loss assessed from one more surveyor and in its report, which is document Ex.OP1/6 on record has assessed the loss of the goods amounting to Rs.5,27,784.10.  We have gone through this final survey report dated 09.08.2014 and find that the surveyor has assessed the loss in a very methodological manner which is based on 11 documents including photographs.

 

15.           OP number 1 has also placed on record the document Ex.OP1/5 and this document consists of three pages, but we find that OP number 1 has very cleverly tagged the third page of tariff advisory committee, Bombay. Sheet number 3 in place of page number 3 of the exhibited document and has heavily relied upon on this page, whereas this is not the part of the document Ex.OP1/5, as this third page which has been tagged starts from point number 8 and it is not the complete document and as such, it cannot be considered being  a part of the document Ex.OP1/5. It is not the part of the document Ex.Op1/5 nor it is separately exhibited nor it is a part of some guidelines and as such no reliance can be placed on this document.  This document is neither exhibited and the OP number 3 has very clearly tried to misled this Forum, so we are of the opinion that the OP number 1 has issued only cover note, which is Ex.C-7 on record and it is very cleverly mentioned on this cover note that it is “transit all risk policy”.  Now the OP number 1 has wrongly taken the plea that the claim has been repudiated as per terms and conditions of the policy and OP number 1 has not placed on record any copy of the terms and conditions of the policy and neither any proof has been placed on record that the terms and conditions of the policy were ever supplied to the complainant.  OP number had insured the goods vide cover note Ex.C-7 and has mentioned on it “transit all risks policy” and now at the time of settling the claim, OP number 1 has taken the wrong plea so as to repudiate the claim.  OP number 1 has also cited the judgment of the Hon’ble Supreme Court of India Contship Container Lines Limited versus D.K.Lall and others II(2010) CPJ 12 (SC) with regard to the shipping policy and facts in that case are different than that of the present case.  In the judgment in para number 32, it is clearly mentioned that “…We say so because compensation by reference to the value of the goods lost or damaged can be claimed only if the nature or the value of such goods lost has been declared by the shipper before shipment and inserted in the Bill of Lading….”, but in the present case the value of the goods has already been declared and it’s a transit marine policy in which goods have been moved from one place to another by road and not by ship.

 

16.           Though the report of the final surveyor, which is placed on record as Ex.OP1/6 has been prepared by the surveyor in very methodological manner and has assessed the loss properly, but we find that the surveyor has not included the freight charges, which are also covered under the policy in question.  The total freight charges covered under the policy was Rs.117523/- and as only 135 batteries have been damaged, so it comes to Rs.29,380/- being the freight amount of 135 batteries.

 

17.           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.

 

18.           So, keeping in view the facts mentioned above, we find that the OP number 1 is deficient in service. Accordingly, we allow the complaint and direct OP number 1 to pay to the complainant an amount of Rs.5,57,164/- (Rs.5,27,784/- on account of loss of batteries and Rs.29,380/- on account of freight) along with interest @ 9% per annum from the date of filing of the complaint i.e. 17.04.2015 till realisation.  OP number 1 is further directed to pay to the complainant an amount of Rs.20,000/- on account of compensation for mental tension, agony and harassment and Rs.11,000/- on account of litigation expenses.  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.

                November 9, 2015.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                (Sarita Garg)

                                                                    Member