Delhi

StateCommission

CC/07/138

M/S JINDAL POLY FILMS LDT. - Complainant(s)

Versus

ORIENTAL INSURANCE CO. LTD. - Opp.Party(s)

29 Aug 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:29.08.2019

                                                                                                              

                                                                   Date of decision:12.09.2019

 

Complaint No.138/2007

 

 

IN THE MATTER OF

 

M/s Jindal Poly Films Ltd.

Plot No. 12, Sector B-1,

Local Shopping Complex

Vasant Kunj,

New Delhi….Complainant

 

VERSUS

 

Oriental Insurance Company Ltd.

Divisional Office No. 23,

2/13-14, Sarai Julana,

Opp. Surya Crown Plaza,

New Delhi                                                                                         .…Opposite Parties

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

                                 

 1.   Whether reporters of local newspaper be allowed to see the judgment?                Yes     

 2.   To be referred to the reporter or not?                                                                     Yes

 

Present:         Sh. Sameer Nandwani, Counsel for the complainant

                        Sh. Pankaj Seth, Counsel for the OPs

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.             This complaint has been filed by M/s Jindal Poly Films Ltd., New Delhi for short complainant, before this Commission under Section 17 of the Consumer Protection Act, 1986, the Act, against the Oriental Insurance Co. Ltd., hereinafter referred to as OPs alleging deficiency of service on the part of the OPs they having not approved their legitimate and just claim and praying for the relief as under:-

 

1. This Hon’ble Commission be pleased to pass an order directing the OP to pay sum of Rs. 30,93,936/-;
2. Interest @ 24% per annum on the above said amount from 01.07.2007 till the date of payment may please be also awarded;
3. Any other relief which this Hon’ble Court may deem fit and proper in the circumstances of the case be also awarded.

 

2.             Facts of the case necessary for the adjudication of the complaint are these.
3.             The complainant imported a plant of Biaxially Oriented Polypropylene (BOPP) Film with spare parts and accessories which was insured with the OP under open cover note no. 232616 dated 05.03.2004. The risk insured was for a sum of Rs. 87,68,79,000/- CIF plus 10%. The complainant has paid a sum of Rs. 5,66,797/- as premium. The above said consignment was to travel from Germany via sea to Mumbai and from Mumbai to Mundhegaon NH-3 Igatpuri, Nasik to the premises of the consignee. Since the plant consisted of various items, it was not possible to import the same through one consignment, therefore, open policy was taken from the OP for whole plant which was imported in different consignments. The insurance was taken, as per the complainant, in respect of the plant & machinery imported from Germany which was covered under Marine Cargo Policy with ICC(A) on warehouse to warehouse basis on sea journey and further transit upto the plant of the complainant at Nasik through the above said cover note. The complainant has further submitted that policy of insurance was not issued by OP at that time though these were required to be. One consignment reached destination on 22.10.2004 in a damaged condition as while uploading the container at site the container toppled and fell down on ground due to unbalance of trailer caused by sharp turn and uneven road level. The consignment was brought to the destination from sea port by Skywing Carrier Pvt. Ltd.
4.             A complaint was lodged with the Carrier as also with the OP. The OP on lodging of the claim appointed M/s Standard Surveyors Pvt. Ltd. as surveyor, who inspected the consignment for the first time on 12.11.2004 i.e. after the period of 18 days from date of lodging of the claim and subsequently on 29.01.2005 and 24.03.2005. All the requirements of the surveyor as sought for were met. The surveyor submitted his report on 08.04.2005 assessing and recommending the loss to the tune of Rs. 16,04,480.44/-.
5.             However the OPs did not make the payment despite the assessment report of the surveyor and despite the complainant having reminded the OPs in this behalf on several occasions, though the law laid down by the Hon’ble Apex Court envisage settlement of the claim within two months of the receipt of the assessment report from the surveyor. Legal notice was also issued to the OPs requiring them to make the payment but even that could evoke no response leading to filing of a complaint for the redressal of the grievances. This Commission vide order dated 06.09.2006 disposed of this complaint with the direction to the OPs to settle the claim one way or the other. The OPs had finally repudiated the claim on 13.10.2006 claiming that the cover note was taken for a specific consignment voyage of the consignment under Bill of Lading No. 27040096 on 29.06.2004 for which Policy No. 272100/31/2004/113 was stated to have been issued to the complainant. Since the damaged consignment was received by the complainant alongwith Bill of Lading No. 3240925016 dated 07.09.2004 LR No. 31853 dated 21.10.2004 which was not covered under Policy according to the OP, the claim was therefore treated as ‘no claim’. The complainant has alleged in this complaint that the repudiation of the claim is bad and arbitrary owing to the fact that the risk was covered under open cover note no. 232616 for a sum of Rs. 87,68,79,000/- for which a premium of Rs. 5,66,797/- has been received by the OP and secondly the OP has not issued any policy at the time of issuing the open cover note and has intentionally issued the policy referred above on 24.09.2004 for one consignment only whose value is Rs. 6,46,46,073/- though the cover note is issued for a sum of Rs. 87,68,79,000/- for whole plant and definitely for more than the value of that consignment against which the policy is stated to have been issued. Thirdly, the policy which is stated to have been issued on 24.09.2004 has been issued incorrectly with malafide intention because the policy shows the total premium received as Rs. 5,66,797/- whereas the complete transit details have not been mentioned and the valuation of the consignment in the said policy is Rs. 6,46,46,073/- which is far less than Rs. 87,68,79,000/- and thus premium for the amount mentioned in the policy could not have been Rs. 5,66,797/- which clearly shows that the whole plant was insured.
6.             OPs were noticed and in response thereto they have filed reply resisting the complaint both on technical ground and on merit stating that the complainant being a company is not a consumer and, secondly, keeping in view the compensation claimed and the premium paid, the components for determining the pecuniary jurisdiction as per the authority of the Hon’ble NCDRC in the matter of ­M/s Maharani of India vs. United Indian Insurance Co. Ltd., decided on 11.01.2018, this Commission is handicapped to hear and to dispose of the complaint. On merit the OPs have built the edifice primarily on the ground that anything contrary to the terms and conditions of the policy and the coverage shown therein mentioned in the para under reply is wrong and denied. It is absolutely wrong that since it was not possible to import the plant through one consignment, the alleged open policy was taken from the respondent for whole plant which was imported in different consignments. It is submitted that the policy in question was taken and issued covering the risk in respect of Bill of Lading No. 27040096-06 dated 29.06.2004 with Invoice No. 8003091 dated 27.06.2004 only and not in respect to the coverage of different consignments as wrongly alleged in the para under reply. Further the policy in question was obtained by the complainant in respect to the coverage of goods pertaining to the Bill of Lading No. 27040096-06 dated 29.06.2004 with Invoice No. 8003091 dated 27.06.2004 and not in respect to the various consignments pertaining to the alleged plant and machinery. Finally they have disputed that the policy in question was not issued by the respondent as alleged.
7.             Both the parties have filed their written arguments in support of their pleadings. This matter was listed before this Commission for final hearing on 29.08.2019 when the counsel for both sides appeared and advanced their arguments, the complainant for approval of their claim being legitimate according to them and the respondents for dismissal of the complaint being devoid of merit. I have read and re read the records of the case and given a thoughtful consideration to the subject matter.
8.             Short question for adjudication in this complaint is whether the repudiation done by the OPs, relying on the terms and conditions of the policy was justified. This leads to another question whether non-furnishing of the terms and condition of the policy as alleged by the complainant in the subject matter, would amount to mean that those are not binding on them. The relevant clause of the terms and policy is as under:-

Loss damage or expense arising from unfitness of aircraft conveyance or container for the safe carriage of the subject matter insured, where loading therein or thereon is carried out prior to attachment of this insurance or by the assured or their employees and they are privy to such unfitness at the time of loading. This exclusion shall not apply where the contract of insurance has been assigned to the party claiming hereunder who has bought or agreed to buy the subject matter insured in good faith under a binding contract.

 

9.             I may at this stage advert to the repudiation done by the OPs and conveyed to the complainant on 13.10.2006, the relevant portion of which is indicated as under:-

 

The matter was referred to the competent authority who has examined the documents submitted by you and has observed that the cover taken by you vide cover note no. 232616 dated 05.03.2004 was for a specific and single voyage of consignment under Bill of Lading No. 27040096 of dated 29.06.2004 for which the policy no. 272100/31/2004/113 was issued by us on submission of above details by you.

That the reported damaged consignment was received by you alongwith B/L/ No. 324092 5016 dated 07.09.2004, LR No. 31853 dated 21.10.04 which we regret was not covered under the above policy.

We have, therefore, repudiated the claim as ‘No Claim’

 

10.             The whole foundation of the repudiation is that the claim is not covered under the terms and conditions of the policy. The complainant on the other hand emphatically submitted that the terms of the policy since were not communicated to them are not binding on them.
11.             The cover note of the policy was issued on 05.03.2004. The cause of action in the matter arose in October 2004. The complainant never bothered to ask for the details of the terms of policy from the OPs. It was incumbment on the part of the complainants to seek the details of the policy soon after the receipt of the cover note.
12.             The Hon’ble NCDRC is pleased to hold in the matter of GAS GHAR vs. Oriental Insurance Co. Ltd. as reported in III [2006] CPJ 377 (NC) as under:-

 

Contention advanced by Mr. Arunab Suman for petitioner was that the petitioner is not bound by the said schedule as it had not been supplied the policy along with its annexure. It is not in dispute that the validity of policy was from 11.06.1992 to 10.06.1993. Damage to boundary wall due to cyclone was allegedly caused on 24.03.1993. There was thus gap of more than 9 months in between the commencement of policy and the incident. During that period the petitioner is not shown to have not sent any letter to the respondent/Insurance Company complaining of non-receipt of policy with annexure. In that backdrop plea of non-receipt of policy with schedule by the petitioner cannot be accepted.

 

13.             Having regard to these facts and the legal position explained, I am of the considered view that there exists no infirmity in the repudiation of the claim since not covered within the four corners of the policy and the reliance of the complainant to the effect that those terms of the policy not having been communicated are not binding on them, cannot be accepted keeping in view the authority of the Hon’ble NCDRC referred to above. Ordered accordingly.
14.             A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
15.             File be consigned to record.

 

 

(Anil Srivastava)​

Member