Punjab

Ludhiana

CC/13/2

Vaardhman Agro - Complainant(s)

Versus

Oriental Ins.Co.Ltd. - Opp.Party(s)

29 Dec 2014

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                                   C.C. No.02 of 01.01.2013                                                                                    Date of decision: 31/12/2014

M/s Vardhman Agro Oil & Gen Mills, 132-135, Udyog Vihar, Sri Ganga Nagar, Rajasthan (a unit of shree Mahavir Oil Mills, Jagraon) through partner Rajinder Kumar Jain.                                                                                                                                                                                                                    ….Complainant

Versus

 

1.The Oriental Insurance Company Limited., CBO-2, Ludhiana near Clock Tower, GT Road, Ludhiana through authorized signatory.

2.The Oriental Insurance Company Limited, Registered & Head Office A-25/27, Asaf Ali Road, New Delhi-110002, through its authorized Signatory.

3.M/s Ahmedgarh Tanker Transport, Transport Contractor & Commission Agents, Hira Nagar, Street No.4, Opposite Speedways tyre Service, G T Road, Ludhiana Punjab through authorized signatory.

                                                                   ….. Opposite parties

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:    Sh.R.L.Ahuja, President.

                   Sh.Sat Paul Garg, Member.

                                               

Present:       Sh.M.S.Sethi, Adv. for complainant.

                   Sh.Rajeev Abhi, Adv. for OP1 and OP2.

Sh.Gagandeep, Adv. for OP3.

ORDER

R.L.AHUJA, PRESIDENT.

1.                Present complaint under Section 12 of the Consumer Protection Act, 1986, amended upto date (hereinafter referred as to “Act”) has been filed by M/s Vadhman Agro Oil & Gen Mills, 132-135, Udyog Vihar, Sri Ganga Nagar, Rajasthan (a unit of shree Mahavir Oil Mills, Jagraon) through partner Rajinder Kumar Jain(hereinafter in short to be referred as ‘Complainant’) against The Oriental Insurance Company Limited and others (hereinafter in short to be referred as ‘OPs’) directing them to pay Rs.18,84,697/- as per surveyor report dated 16.6.2011 plus Rs.12,448/- paid to the surveyor besides Rs.50,000/- as compensation and Rs.15,000/- as litigation costs alongwith interest @18% from the date of filing the complaint on the settled amount to the complainant.

2.                 In brief, the case of the complainant is that the complainant hired the service of OP1 for obtaining Marine Cargo-Open Policy for the period 22.9.2010 to 21.9.2011 midnight and paid Rs.22,304/- being premium for the sum insured of Rs.101,100,000/- for the insurance of mustard oil on consignment of all types of mustard oil/vegetable oil packed in tins, cannies, bottles, pouches and loose in tankers against risk with the limit of Rs.35,00,000/- per transit per location through mode of transit rail/road etc and the Op1 issued cover note No.CHD-C144306 dated 17.9.2010. The OP1 thereafter issued policy No.234001/12/2011/76 dated 20.9.2010 Marine Cargo-Open policy consisting three pages under serial No.0673483 to 0673485 stating as attached to and forming part of policy No.234001/12/2011/76. During the tenure of the said policy, the complainant sent the mustard oil loose of 29.84 MT vide invoice No.009651 dated 16.5.2011 for Rs.18,84,697/- from Sri Ganga Nagar to consignee M/s Everest Indl Corporation.12, by sack Street, Kolkata through OP3 vide their GR No.28777 dated 16.5.2011 in their tanker bearing registration certificate No.PB-10-CB-2407. The complainant got the weight of sending the mustard oil loose of 29.84 Mt filled in the aforesaid tanker from Jagdamba Computer Kanta on 16.5.2011, in which, gross weight of the vehicle was reported as 43280 and after deducting tare weight of 13440 net weight of 29480(29,84MT) was recorded by the computerized kanta. Unfortunately, during the tenure of the policy, the aforesaid tanker met with an accident on 18.5.2011 at about 10:30 PM near Mathura Thana refinery near MC Donald when a cow suddenly came in front of the loaded tanker and to save the cow, the driver applied break suddenly and immediately but said tanker overturned and body of the tanker got broken/torn due to load in the tanker, due to which, mustard oil in the tanker leaked away. The driver of the tanker informed the complainant as well as also lodged the police report with Mathura Refinery Police Station and Local Mathura Office of OP was also informed about the accident. On getting information of the accident and the losses suffered Mr.Rajinder Kumar Jain partner of the complainant, informed the OP1 telephonically as well as in writing vide registered letter dated 19.5.2011 from Jagraon with the request to register their claim. Sh.Sanjay Narang, surveyor visited the accidental site on 20.5.2011 and thereafter, surveyors of Protocol Surveyors & Engineers P. Ltd.Noida visited the accidental site on 21.5.2011 and thereafter, as well as recorded the statement of the driver of the tanker etc., and received the original copy of the complaint lodged with local police station and the OP3 arranged a crane and the tanker was lifted from the accidental site in the empty condition due to leakage of mustard oil from the damaged tanker and spread over the road and nearby area. Thereafter, the said surveyor also got weigth of the damaged tanker from B.P.Mathura, NH-2 Opp. Mathura Refinery on 21.5.2011 which was recorded 12990 Kg. Said surveyor also received copy of driving license of the driver of the tanker and copy of RC of the aforesaid tanker from the OP3 as well as claimed certain documents from the complainant through its letter dated 26.5.2011 which were sent by the complainant through speed post letter dated 31.5.2011. The complainant submitted the claim of Rs.18,85,697/- against the loss plus Rs.12,448/- paid to the surveyor and in total Rs.18,97,145/- alongwith relevant documents. The said surveyor also supplied the copy of its report dated 16.6.2011 to the complainant. The complainant vide its letters dated 21.6.2011 and 22.6.2011 to the OP1 submitted marine surveyor report dated 16.6.2011, copy of FIR, copy of acknowledgment dated 11.6.2011 received by the complainant against registered AD claim lodged on carrier and requested to expedite the claim. Thereafter, the OP1 vide its letters dated 9.8.2011, 16.9.2011 and 11.10.2011 demanded the certain documents which were submitted by the complainant through different letters. Thereafter, Sh.Devender Honda of M/s Royal Associate, SCF 132, IInd Floor, Sector 13 Market, Kurukshetra visited the complainant on 23.12.2011 in the capacity of investigator as appointed by the Ops without consent and knowledge of the complainant and thereafter, as per requirement of Mr.Honda, statement of the partner Sh.Rajinder Kumar Jain was recorded by the investigator and thereafter, the complainant vide its letter dated 26.12.2011, submitted the required documents. The Ops thereafter, appointed another investigator due to protest in person lodged by the Rajinder Kumar Jain of the complainant with Chandigarh Office of the Ops as said investigator deliberately and intentionally submitted its report on wrong and illegal grounds while writing as per its own wishes on the black documents got signed from other persons etc., without physical verification of the actual facts. In compliance of physical inspection and verification of the facts by the second investigator namely Ramana, the complainant also submitted the affidavit of Satnam Singh duly attested on 2.5.2012 vide its letter dated 2.5.2012 through registered post dated 3.5.2012. Thereafter, the complainant vide its letters dated 4.6.2012 and 18.6.2012 requested the Ops to pay the claim of Rs.19 lakh with interest without further loss of time as all the relevant papers, documents have already been completed since long. However, the Ops failed to settle the claim despite of various letters and physical as well as telephonically calls made by the complainant and also despite serving a legal notice dated 8.12.2012 upon OP1 and OP2. Such act and conduct of Ops is claimed to be deficiency in service on their part by the complainant. Hence, this complaint.

3.                Upon notice of the complaint, earlier, OP1 and OP2 were duly served and appeared through their counsel Sh.Rajeev Abhi, Advocate, whereas, notice sent to OP3 was received back with the report of refusal and as such, OP3 was proceeded against ex-parte vide order dated 19.02.2013 by this Forum. However, thereafter, an application for setting aside the ex-parte proceedings against OP3 was filed by Sh.Gagandeep, Advocate which was allowed vide order dated 19.7.2013 by this Forum.

4.                OP1 and OP2 filed their written reply, in which, they took up certain preliminary objections that the present complaint is barred under Section 26 of the Consumer Protection Act and the present complaint is not maintainable since immediately on the receipt of the claim, it was duly registered, entertained and processed. M/s.Protocol Surveyors and Loss Engineers Pvt. Ltd. was appointed as surveyor and loss assessor, who had surveyed the loss on 21.5.2011 and subsequent date at the accident site situated near McDonald, Mathura Police Station, Mathura(UP) and took the relevant documents and thereafter, prepared his report dated 16.6.2011 and submitted the same with the answering Ops. Thereafter, M/s Royal Associates Investigating and Detective Agency was also appointed as investigator to investigate the claim of the complainant. The said investigator had also made thorough investigation, recorded the statement, took the documents and thereafter, prepared his report dated 29.2.2012 and submitted the same with the answering Ops. Sh.Kiranjit Singh Romana r/o 21529, Street No.6/3, Power House Road, Bathinda was appointed as investigator to investigate the Marine Policy loss i.e.loss of mustard oil in an accident of vehicle No.PB-10-CB-2407 Oil Tanker near Mathura. The said investigator had made thorough investigation and thereafter, prepared his report dated 21.5.2012 and submitted the same with the answering Ops. Sh.Kiranjit Singh Romana had also submitted additional investigation report in respect of the aforesaid claim vide their letter dated 28.5.2012. After the receipt of the report of surveyor M/s Protocol Surveyors and Engineers P. Ltd, M/s Royal Associates, Investigating and Detective Agency and Kiranjit Singh Romana Investigator, the answering Ops had called upon M/s Royal Associates, Investigator to submit certain clarification and information which was supplied by M/s Royal Associates vide their letter dated 1.7.2012. After the receipt of the survey report, investigation report and after scrutinizing the documents placed in the claim file and after applying the mind by the officials of answering Ops in terms of the insurance policy, the claim of the complainant was repudiated vide letter dated 9.1.2013 on the grounds of non disclosure/mis-representation of the facts since as per the statement of transporter i.e. OP3 and as per the report of investigator M/s Royal Associates, 20-25% of the mustard oil was handed over to the complainant but the complainant claimed the total loss and also on the grounds that the complainant did not take the proper steps for loss minimization. The claim of the complainant has rightly and legally been repudiated. Further, took the preliminary objections that the complainant is estopped by his own act and conduct from filing the present complaint since the complainant is not coming to the Hon’ble Forum with clean hands and had concealed the material facts from this Hon’ble Forum; jurisdiction of this Hon’ble Forum to try and decide the present complaint; the present complaint is not maintainable since M/s Vardhman Agro is neither a registered partnership firm nor Sh.Rajinder Kumar Jain is registered partner and as such, neither the firm M/s Vadhman Agro Oils and General Mills, is competent to file the present complaint nor Sh.Rajinder Kumar Jain is competent to file the complaint on behalf of the complainant as no Form A and C issued by the Registrar of Firm has been placed on file of this Hon’ble Forum; the present complaint is barred u/s 69 of the Partnership Act, since the complainant is an unregistered partnership firm; complainant is not a consumer as defined under the Consumer Protection Act as the policy had been obtained after the amendment of the Consumer Protection Act and the present complaint is time barred as the same is filed after the expiry of period of limitation. On merits, the facts regarding obtaining of the insurance policy in question by the complainant from the answering OP1, payment of premium, validity of the policy in question, lodging of claim vide letter dated 19.5.2011, appointment of surveyor as alleged, submission of certain documents, claim form, appointment of M/s Royal Associates as investigator and their visit to the complainant, appointment of another investigator and repudiation of the claim as ‘No Claim’ vide letter dated 9.1.2013 are admitted. However, it is specifically submitted that the insurance policy is a contract in itself and both the parties are bound by the terms and conditions of the policy. The complainant intentionally has not produced the terms and conditions of the policy and had intentionally withhold the production conditions, clauses, warranties, endorsements as per the forms attached with the policy, since the policy is subject to such conditions, clauses, warranties, endorsement etc. Otherwise, similar pleas were taken as mentioned in the preliminary objections and at the end, denying any deficiency in service on the part of answering OPs and all other allegations of the complainant being wrong and incorrect, answering OPs prayed for dismissal of the complaint with costs.

5.                OP3 filed the separate written reply, in which, it has been submitted in the preliminary objections that the present complaint against the answering OP is not maintainable and dispute is between the complainant and OP1 and OP2. This Hon’ble Forum has got no jurisdiction to decide the complaint against the answering OP because the complainant made no case of deficiency and negligence against the answering OP and the complainant hired no service of the answering OP for consideration against the insurance claim, as such, the complainant is not a consumer of the answering OP. The complainant has not brought the true and material facts. Rather, the answering OP, who brought true and material facts into picture against the malafide intention of OP1 and OP2 and their investigator but the complainant succeeded in filing the complaint against answering OP without accruing any cause of action. In fact on visiting investigator Romana of Bathinda, the answering OP found that earlier one investigator Royal Associates visited his office premises and in his presence, succeeded in getting signature of Lakhwinder Singh, friend of his cousin brother, who is often visiting his office. The answering OP later on acknowledged on questioning about Lakhwinder Singh by the investigator Romana that investigator wrongly and intentionally prepared false report stating therein that Lakhwinder Singh is working as a Manager with his transport company and succeeded in getting his signatures on papers on the pretext of passing of claim in the accident against tanker. The answering OP then given its statement dated 1.5.2012 to the investigator Romana that Lakhwinder Singh was not his manager and nothing was left inside the tanker as said tanker broken from various sides. The answering OP also supplied the address of Lakhwinder Singh to the investigator on demanding as well as visited alongwith investigator to Lakhwinder Singh. On questioning by Romana investigator regarding statement recorded to the Royal Associate in the capacity of Manager, Lakhwinder Singh recorded his statement including video to the said investigator that a company investigator from Panipat came to him at the answering OP office as Sukhwinder Singh owner of answering OP was away in town for influenced him to sign on paper assuring him of settlement of pending claim of the tanker of the answering OP and pleading that as he has to reach Panipat and if delay occurred, he would face problem from fog and bad weather. It was also stated by Lakhwinder Singh that he does not know Hindi & Punjabi, so he was not in the knowledge of writing anything by the said investigator on the signed paper and he was not a Manager of answering OP, so said investigator of Panipat misused his signature. Further, due to non-availability of the tanker driver Satnam Singh, affidavit of driver Satnam Singh duly attested was supplied by answering OP to the investigator Romana, so it is very much evident that due to illegal act and breach of contract committed by OP1 and OP2 and their investigator, the claim of the complainant was illegally repudiated by the OP1 and OP2 on the illegal and arbitrary report of Panipat Investigator, as such, deficiency in service, if any, rendered by OP1 and OP2 and not by answering OP. Reply on facts, all the allegations of the complainant are denied for want of knowledge and the same are not related to the answering Ops and made prayer for dismissal of the complaint with costs against the answering OP.

6.                Learned counsel for the complainant in order to prove the case of the complainant tendered into evidence affidavit of complainant Sh.Rajinder Kumar Jain, partner of complainant firm as Ex.CA1, in which, he has reiterated all the averments made by him in the complaint. Further, learned counsel for the complainant has proved on record the documents Ex.C1 to Ex.C37.

7.                On the contrary, learned counsel for the OP1 and OP2 in order to rebut the evidence of the complainant, tendered into evidence affidavit Ex.RA of Sh.Sukhwinder Singh, its Sr.Divisional Manager, in which, he has reiterated all the contents of the written reply filed by the OP1 and OP2 and refuted the case of the complainant. Further, learned counsel for the OP1 and OP2 tendered into evidence affidavit Ex.RB of Sh.Sunil Arora of M/s Protocol Surveyors and Engineers Pvt. Ltd.Noida, who was appointed as surveyor and loss assessor by the OP1 and OP2 to surveyed the loss on 21.5.2011, who after his thorough inspection and verification, submitted his report dated 16.6.2011 Ex.R46 alongwith documents Ex.R47 to Ex.R65 and Ex.R28 and Ex.R29 with the OP1 and OP2. Further, learned counsel for the OP1 and OP2 tendered into evidence affidavit Ex.RC of Sh.Kashmira Singh of M/s Royal Associates, Investigating and Detective Agency, Kurukshetra(Haryana), who was appointed as investigator by the OP1 and OP2 to investigate the claim, who made thorough investigation and thereafter, submitted his report dated 29.2.2012 Ex.R12 alongwith documents Ex.R13 to Ex.R26 and Ex.R30 and Ex.R31 and letter dated 1.7.2012 Ex.R4 with the OP1 and OP2. Further, learned counsel for the OP1 and OP2 tendered into evidence affidavit Ex.RD of Sh.Kiranjit Singh Romana, Bathinda, who was appointed as investigator by the OP1 and OP2 to investigate the Marine Policy loss i.e. Loss of mustard oil in an accident of vehicle No.PB-10-CB-2407 oil Tanker near Mathura, who made thorough investigation and thereafter, submitted his report dated 21.5.2012 Ex.R5 alongwith documents Ex.R6 to Ex.R9 with the OP1 and OP2 Further, learned counsel for the OP1 and OP2 has proved on record the documents Ex.R1 to Ex.R69.

8.                On the other hand, learned counsel for the OP3 in order to rebut the evidence of the complainant, tendered into evidence affidavit Ex.RW1 of Sh.Sukhwinder Singh, its Proprietor   of Sh.Sukhwinder Singh, its Sr.Divisional Manager, in which, he has reiterated all the contents of written reply filed by the OP3. Further, learned counsel for the OP3 tendered into evidence affidavit Ex.RW2 of Sh.Lakhwinder Singh, who is the cousin of Sukhwinder Singh, in which, he has corroborated the version as taken by Sukhwinder Singh in his affidavit. Further, learned counsel for the OP3 tendered into evidence affidavit Ex.RW3 of Sh.Satnam Singh, who is the driver of OP3 and plying the tanker in question bearing registration NO.PB-10-CB-2407, who also supported the defence plea taken by the OP3 in the written statement. Further, learned counsel for the OP3 has proved on record document Ex.R1.

9.                We have heard the learned counsel for the parties.

10.              Learned counsel for the complainant has filed the written arguments, in which, he has reiterated all the contents of the complaint filed by the complainant and further, it has been submitted that the present complaint is filed against OP1 and OP2 having its branch address at CBO-2, Ludhiana, Clock Tower, G.T.Road, Ludhiana but affidavit of Jagmohan Singh, Sr.Divisional Manager, D O-1, Gill Road, Ludhiana has been filed in this case, whereas, he is not competent to do so because he is not official of OP1, rather belongs to DO-1, Gill Road, Ludhiana so he is not competent to sworn the affidavit in the case of the complainant for OP1. No authority letter or authorization has been placed on record which was issued by OP1 or disclosed the fact regarding under which capacity, he filed the affidavit in the present complaint. As such, affidavit of Jagmohan Singh cannot be read in evidence of OP1 and OP2 and same may kindly be disregarded. Further, it has been submitted that on failure to settle the claim in time despite of serving legal notice to the Ops, the complainant filed the complaint on 1.1.2013 but thereafter, the Ops repudiated the claim on the ground that M/s Royal Associate had submitted a detailed report and same was put up before the competent authority and claim stands repudiated. However, the Ops have not brought all the material facts before this Hon’ble Forum as such, basis of repudiation of claim is illegal, arbitrary and false one because just for the purpose of denying genuine and legal claim, the Ops relied upon the report of the said Royal Associate, who succeeded in submitting the favourable report as desired by the Ops. The complainant submitting justification that how report of Royal Associate is procured, illegal and false one and is without any solid and reasonability. The report of Royal Associate is dated 29.2.2012 with the alleged statement of transporter ‘OP3’ that 20-25% oil was remained inside the tanker and same was handed over to Vardhman Agro Oil & Gen.Mills. However, the complainant has not found statement of transporter in the documents as filed by the Ops. Further, in the report of Royal Associate Ex.R12, there is no version of recording the statement of the transporter. Infact, no statement of owner of transport was recorded by the Royal Associate, as such, grounds of repudiation are false one and claim illegally repudiated by the Ops. Before repudiating the claim, the Ops also failed intentionally and deliberately to consider the report of Kiranjit Singh Romana dated 21.5.2012. Further, report of Royal Associate is dated 29.2.2012 but thereafter, the Ops appointed second investigator Kiranjit Singh Romana who submitted its report dated 28.5.2012 and in the said report, Romana investigator in detail after going through various mode of investigation concluded that “lack of mentioning the mustard oil quantity at the time of spot survey also confirms that there was mustard oil inside the tank otherwise company surveyor would have been mentioned in his report. The investigator Kiranjit Singh Romana in his report dated 28.5.2012 also recorded the statement of one Lakhwinder Singh which was basis of the report dated 29.2.2012 of the investigator Royal Associates. Driver Satnam Singh gave its statement to Op1 and Op2 as well as OP3 and copy of the same was also relied upon by the complainant as Ex.C3 and EX.R8 and further, OP3 also filed his affidavit Ex.RW3 in its support. In the contents of said affidavit , it was specifically disclosed by driver Satnam Singh that entire oil was leaked away and nothing was saved. Further, at the time of accident, the complainant or his representative was not present, so it was not possible how loss can be minimized by taking certain steps. The Ops nowhere suggests such steps so further reports of spot report and investigation report clearly disclosed that due to impact of overturning, the body of the tanker completely damaged and found in broken condition and complete material leaked away and found spilled over the road and the surrounding area. The Ops while leveling such objections perhaps forgotten that it was oil which was leaked away and mixed with dirty substance like sand and was not the goods. So, grounds as taken in the repudiation letter are erroneousness, illegal and arbitrary and made prayer for the relief as claimed for. Further, learned counsel for the complainant has relied upon judgments titled as D.N.Badoni vs. Oriental Insurance Co.Ltd.-I(2012)CPJ-272(N.C.); M/s Bharti Axa General Insurance Co.Ltd. vs. Mrs.Venus-First Appeal No.446 of 2011-decided on 16.8.2011(State Commission) and New India Assurance vs. Protection Manufacturers Pvt. Ltd.-(2010)7 SCC-386.

11.              On the other hand, learned counsel for the OP1 and OP2 has filed written arguments, in which, he has reiterated all the contents of the written reply filed by the OP1 and OP2 and further, it has been submitted in the written arguments under the head “Points of arguments” that the claim has rightly been repudiated as ‘No Claim’ vide letter dated 9.1.2011 Ex.R1 on the ground of non-disclosure, mis-representation of the facts as per the transporter Ex.R12, 20-25% of the mustard oil was handed over to the complainant claimed the total loss and also on the ground that complainant did not took proper step for loss minimization. In other words, the complainant has used fraudulent means and devices to get the claim and had misrepresented the facts as 20-25 of the mustard oil was handed over to them as per statement of transporter OP3 and the report of M/s Royal Associates. Complaint is barred u/s 69 of the Partnership Act and intricate question of law and facts are involved which require an elaborate evidence, both oral and documentary and it is only the Civil Court of competent jurisdiction who can try and decide the present complaint. The complaint is time barred as the same is filed after the expiry of period of limitation. The alleged loss is dated 18.5.2011 whereas the complaint is filed after the expiry of period of limitation of two years as provided under Consumer Protection Act. As per Ex.R64 i.e. letter dated 30.5.2011 written by the complainant to M/s Ahmedgarh Tanker Transpport, the consignment could not be delivered due to acts of omission, negligence, foul play and breach of trust on the part of the transport company. These averments and allegations cannot be decided by the Forum in a summary manner. The complainant has got no insurable interest in the consignment. Further, learned counsel for the OP1 and OP2 has made reference of all the relevant documents produced by the OP1 and OP2 in their evidence and he has also relied upon judgments titled as Contship Container Lines Ltd. vs. D.K.Lall-II(2010)CPJ-12(S.C.);  New India Assurance Co.Ltd. vs. Kalyani Labour House Building Co-operative Society Ltd.-IV(2011)CPJ-198(N.C.); Tata AIG General Insurance Co.Ltd. vs. Gulzari Singh-II(2010)CPJ-272(N.C.); Oriental Insurance Co.Ltd. vs. Balakrishna Tobacco Co.-II(2013)CPJ-151(N.C.);  Ferrygold (India) Ltd vs. National Insurance Co.Ltd.-III(2002)CPJ-59(N.C.); Durga Enterprises vs. Oriental Insurance Co.Ltd.-IV(2008)CPJ-128(N.C.); Jagdish Parshad vs. ICICI Lombard General Insurance Co.Ltd.-II(2013)CPJ-578(N.C.) and  Delhi Dhulia Road Carrier vs. United India Insurance Company Ltd.-III(2011)CPJ-36(State Commission).

12.              Learned counsel for the OP3 has contended that the present complaint against the OP3 is not maintainable and dispute is between the complainant and OP1 and OP2. The complainant has made no case of deficiency and negligence against the OP3 and the complainant had hired no service of the OP3 for consideration against the insurance claim, as such, the complainant is not a consumer of the OP3. Further, it has been contended that investigator influenced the OP3 to sign on paper assuring OP3 of settlement of pending claim of the tanker of the OP3 and pleading thatas he has to reach Panipat and if delay occurred, he would face problem from fog and bad weather. Further, it has been contended that due to non-availability of the tanker driver Satnam Singh, affidavit of driver Satnam Singh was duly attested and the same was supplied by OP3 to the investigator Romana, so it is very much evident that due to illegal act and breach of contract committed by OP1 and OP2 and their investigator, the claim of the complainant was illegally repudiated by the OP1 and OP2 on the illegal and arbitrary report of Panipat Investigator, as such, deficiency in service, if any, rendered by OP1 and OP2 and not by OP3.

13.              We have gone through the written arguments alongwith judgments filed by the learned counsel for the complainant and OP1 and OP2 during the course of arguments and have also considered the rival contention of learned counsel for the OP3 and have also perused the record on the file very carefully.

14.              Perusal of the record reveals that it is an undisputed fact between the parties that the complainant had taken the policy namely Marine Cargo-Open Policy which bears policy No.234001/21/2011/76 from the OP1 which was valid for the period from 22.9.2010 to 21.9.2011 on payment of premium. As per the allegations of the complainant that the complainant had sent mustard oil loose of 29.84 MT vide invoice No.009651 dated 16.5.2011 for Rs.18,84,697/- from Sriganga Nagar to consignee M/s Everest Indl Corporation.12, by Sack Street, Kolkata through OP3 vide their GR No.28777 dated 16.5.2011 in their tanker bearing registration No.PB-10-CB-2407. The complainant had got the weight of sending the mustard oil loose of 29.84 Mt filled in the aforesaid tanker from Jagdamba Computer Kanta on 16.5.2011, in which, gross weight of the vehicle was reported as 43280 and after deducting tare weight of 13440 net weight of 29480(29,84MT) was recorded by the computerized kanta. Further, as per the allegations of the complainant that the aforesaid tanker met with an accident on 18.5.2011 at about 10:30 PM near Mathura Thana refinery near MC Donald when a cow suddenly came in front of the loaded tanker and to save the cow, the driver had applied the break suddenly and immediately but said tanker was overturned and body of the tanker was got broken/torn due to load in the tanker, due to which, mustard oil in the tanker was leaked away. Further, as per the allegations of the complainant that the driver of the tanker had informed the complainant and also lodged the police report with Mathura Refinery Police Station and the claim was lodged with the Ops.

15.              The record further reveals that the claim was lodged, which was registered and processed and Sh.Sunil Arora of M/s Protocol Surveyors and Engineers Pvt. Ltd.Noida, was appointed as surveyor and loss assessor by the OP1 and OP2 in order to survey the loss suffered by the complainant on 21.5.2011 and subsequent date at the accident site, who made his thorough investigation at the spot and thereafter, he had submitted his report dated 16.6.2011 Ex.R46. Thereafter, Sh.Kashmira Singh of M/s Royal Associates, Investigating and Detective Agency, Kurukshetra(Haryana) was appointed as investigator by the OP1 and OP2 to investigate the claim lodged by the complainant qua the mustard oil loaded in the tanker bearing NO.PB-10-CB-2407, who made his thorough investigation and even recorded the statements of the persons and took the relevant documents in his possession and thereafter, submitted his report dated 29.2.2012 Ex.R12 alongwith documents Ex.R13 to Ex.R26 and Ex.R30 and Ex.R31 and letter dated 1.7.2012 Ex.R4 with the OP1 and OP2. Perusal of the record further reveals that thereafter, another investigator namely Sh.Kiranjit Singh Romana of Bathinda was appointed by the OP1 and OP2 in order to investigate the Marine Policy loss i.e. Loss of mustard oil in an accident of vehicle No.PB-10-CB-2407 Oil Tanker near Mathura, who also made his thorough investigation and thereafter, submitted his report dated 21.5.2012 Ex.R5 alongwith documents Ex.R6 to Ex.R9 with the OP1 and OP2. Thereafter, Sh.Kiranjit Singh Romana had also submitted additional investigation report in respect of the claim of loss of mustard oil vide his report dated 28.5.2012 Ex.R10. Perusal of the record further reveals that after considering the reports of the surveyor and loss assessors and investigators aforesaid, the Ops had repudiated the claim of the complainant vide their letter dated 9.1.2013 Ex.R1 on the grounds of non-disclosure of fact/mis-representation of fact that as per transporters statement 20-25% mustard oil was handed over to the complainant but the complainant claimed the total loss and further on the ground that the complainant did not take the proper steps for loss minimization.

16.              Perusal of the evidence of the complainant reveals that the complainant tendered into evidence affidavit Ex.CA1 of Sh.Rajinder Kumar Jain, partner of complainant company who deposed interms of the contents of the complainat and further, placed on record certain documents Ex.C1 to Ex.C37 i.e. qua the policy in question, lodging of claim, GR receipt dated 16.5.2011 and letters which were addressed to the Ops and their surveyor and loss engineer and further, tendered into evidence report of M/s.Protocol Surveyors and Loss Engineers Pvt. Ltd. dated 26.5.2011 Ex.C15, vide which, it was informed that the captioned loss was surveyed by them on 21.5.2011 at site of loss situated at Near McDonald, Muthura Police Station, Mathura, Uttar Pradesh and further, vide this letter, the complainant was asked to provide certain documents. Further, the complainant has produced on record copy of letter dated 30.5.2011 Ex.C16 written to OP3, vide which, the complainant had called upon the OP3 to make them a payment of RS.19,00,000/- plus interest and other charges upto date at earliest in lieu of damages/losses of their consignment caused by them due to acts of omissions, negligence, foul play and breach of trust on their part as the same could not be delivered at the destination.

17.              On the other hand, OP1 and OP2 tendered into evidence affidavit Ex.RA of Sh.Sukhwinder Singh, its Sr.Divisional Manager who deposed in terms of the pleadings as mentioned in the written reply filed by the OP1 and OP2 and further, he has specifically deposed that claim of the complainant was repudiated on the grounds of non-disclosure and mis-representation of the material facts since as per the statement of transporter i.e. OP3 and as per the report of investigator M/s Royal Associates, 20-25% of the mustard oil was handed over to the complainant but the complainant claimed the total loss and also on the grounds that the complainant did not take the proper steps for loss minimization. Further, OP1 and OP2 tendered into evidence affidavit Ex.RB of Sh.Sunil Arora of M/s Protocol Surveyors and Engineers Pvt. Ltd.Noida, who was appointed as surveyor and loss assessor in order to conduct the survey of the loss suffered by the complainant on 21.5.2011, who after his thorough inspection and verification, submitted his report detailed dated 16.6.2011 Ex.R46 alongwith documents Ex.R47 to Ex.R65 and Ex.R28 and Ex.R29 with the OP1 and OP2 and in their observation, it has been observed that it was further noted that after the accident, no material was left in the tanker and hence, loss is assessed on total loss basis. Further, OP1 and OP2 tendered into evidence affidavit Ex.RC of Sh.Kashmira Singh of M/s Royal Associates, Investigating and Detective Agency, Kurukshetra(Haryana), who was appointed as investigator in order to investigate the claim lodged by the complainant, who made his thorough investigation and thereafter, submitted his report dated 29.2.2012 Ex.R12 alongwith documents Ex.R13 to Ex.R26 and Ex.R30 and Ex.R31 and letter dated 1.7.2012 Ex.R4 with OP1 and OP2. Further, OP1 and OP2 tendered into evidence affidavit Ex.RD of Sh.Kiranjit Singh Romana, Bathinda, who was appointed as investigator in order to investigate the Marine Policy loss i.e. loss of mustard oil poured in the accident vehicle bearing registration No.PB-10-CB-2407 Oil Tanker near Mathura, who made thorough investigation and thereafter, submitted his report dated 21.5.2012 Ex.R5 alongwith documents Ex.R6 to Ex.R9 with the OP1 and OP2.

18.              Perusal of the Investigation report Ex.R12 of Royal Associates reveals that the investigator has given his opinion in his report that date, time and place of accident seems to be genuine, spreading of mustard oil was also found genuine. But quantity of spoil oil claimed by insured seems to be not genuine. Insured is claiming that total 29.84 Mt (total oil loaded in tanker) was spoiled/spread after accident. But as per transporter, 20-25% oil was left remained inside the tanker and same was handed over to owner. Eye witness at site also told that some oil was still remained inside tanker when it was lifted from site. Even spot surveyor, who carried out spot survey of tanker is also of the same view. So, 20-25% oil was saved. Insurer may deal with claim as per terms and conditions of the policy, keeping in view of abovesaid findings. Perusal of the statement of Sh.Lakhwinder Singh, Manager of OP3 Ex.R13 reveals that he has specifically stated before the investigator about the fact of accident of tanker in question and also deposed that after the accident, the tanker in question was over-turned and mustard oil was spoiled/spread away and when tanker was lifted from site, there was 20-25% oil was remained inside the tanker in question. Further, perusal of the affidavit of Satnam Singh, Driver Ex.R8 reveals that he has deposed that oil was spoiled/spread away on the earth detaches as well as on the road and due to rain and night, people from nearby came there and they had committed theft of the mustard oil. Further, in this affidavit, Satnam Singh has deposed  qua the fact of mustard oil was weighing 29.840 Kgs and the total amount of the same was Rs.18,84,697/-. Further, record reveals that Sh.Satnam Singh, driver had sent the letter dated 20.5.2011 Ex.R17 to the surveyors Protocol Surveyors & Engineers P. Ltd.Noida qua the aforesaid aspects that the tanker in question was overturned and tilted on the road and mustard oil was spread away and the people from nearby committed the theft of the entire mustard oil from the tanker No.PB-10-CB-2407 and there remains no mustard oil in the tanker in question.

19.              So, it appears from the evidence of the Ops that Ops have relied upon two different statements of driver Satnam Singh, in which, one of the statement, he has stated that mustard oil was spoiled away on the road and nearby people had committed theft of the mustard oil and in the other statement, he had stated that the whole oil was spoiled away. Similarly, there is statement of Sh.Lakhwinder Singh, Manager of OP3, who has stated that when the tanker was removed from the place of occurrence, it was containing 20-25% of mustard oil remained inside the tanker in question. But as per the report of Protocol Surveyors & Engineers P. Ltd.Noida Ex.R46, vide which, he had assessed the loss on total loss basis.

20.              So, it is proved that evidence adduced by the Ops is self contradictory and needs re-consideration by the Ops and further, we find force from the judgment relied upon by the learned counsel for the OP1 and OP2 during the course of arguments, passed by the Hon’ble Supreme Court of India in a case titled as Contship Container Lines Ltd. vs. D.K.Lall-II(2010)CPJ-12(S.C.), vide which, it has been observed that seller reserved no right/lien qua goods in question and in absence of contractual stipulation, unpaid seller’s lien, recognized under Sale of Goods Act and stood terminated upon delivery of goods to carrier. The goods from that stage held by carrier at risk of buyer. The property in goods vested in buyer and seller had no insurable interest. Insurance Company absolved from liability to reimburse loss due to mis-delivery of goods. It was further observed that the seller had no insurable interest in the goods thereby absolving the insurance company of the liability to reimburse the loss, if any, arising from the mis-delivery of such goods.

21.              So, it is apparently clear from the facts of this judgment that it is for the insurance company to decide whether the goods of the complainant falls within the parameter of this judgment or not while considering the record of the complainant whether the goods were sold to the buyer/consignee at CIF(Cost Insurance and Freight) basis or on FOB(Free on Board) basis which needs a complete reconsideration of the claim from the Ops.

22.              So, it will be in the fitness of things that if the present complaint is partly allowed with the sufficient directions to the Ops to re-open and re-consider the claim of the complainant and passed a fresh order after considering the aforesaid judgment titled as Contship Container Lines Ltd. vs. D.K.Lall-II(2010)CPJ-12(S.C.) and after going through the documents on record submitted by the complainant as well as the report of the surveyors and loss engineers and investigators.

23.              In view of the above discussion, we hereby partly allow this complaint and direct the Ops to re-open and re-consider the claim of the complainant and pass a fresh order after considering the aforesaid judgment titled as Contship Container Lines Ltd. vs. D.K.Lall-II(2010)CPJ-12(S.C.) and after going through the documents on record submitted by the complainant as well as the report of the surveyors and loss engineers and investigators and thereafter, to settle and pay, if any, claim which may became payable to the complainant in accordance with law. Keeping in view the facts and circumstances of the present case, no order as to compensation is passed. However, Ops are burdened with Rs.2000/-(Two thousand only) as litigation costs to the complainant. Compliance of order be made within 45 days from the date of receipt of copy of this order which be made available to the parties free of costs. File be completed and consigned to record room.

 

                   (Sat Paul Garg)              (R.L.Ahuja)

                    Member                        President

 Announced in Open Forum

Dated:31.12.2014

Gurpreet Sharma.