Haryana

Karnal

478/2013

M/S Karna Paints Pvt. Ltd. - Complainant(s)

Versus

Oriental Insurance Company - Opp.Party(s)

V.K Kapoor

09 Oct 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL. 

                                                     Complaint No. 478 of 2013

                                                    Date of instt.19.12.2013

                                                     Date of decision 9.10.2017

 

M/s Karna Paints Pvt. Ltd. through its proprietor Shri Berinder Singh, 120 kms Stone Road Karnal.

                                                                                 ……..Complainant.

                                        Versus.

M/s Oriental Insurance Company Limited Near York Hotel G.T.Road Karnal through its Manager.

                                                                        ..…Opposite Party.

 

 Complaint u/s 12  of the Consumer Protection Act 1986.

 

Before     Sh. Jagmal Singh……….President.

                Ms. Veena Rani………Member

                Sh.Anil Sharma…….Member.

 

Present:   Sh. V.K.Kapoor Advocate for the complainant.

                 Sh. Rohit Gupta Advocate for opposite party.

       

                (JAGMAL SINGH, PRESIDENT)

 

 ORDER:

 

                This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he was having paint manufacturing unit at Karnal. The cargo unit had got insured from opposite party i.e.Marine Cargo Open Policy, vide policy no.261301/21/2013/11, valid from 4.4.2012 to 3.4.2013. On 1.8.2012, he sent his liquid cargo, through one Tanker loaded with 19500 Kgs of Liquid cargo vide invoice no.KP707 dated 31.7.2012 of Rs.18,10,221/-.  The liquid cargo commence journey on 1.8.2012 from his factory to Howarh West Bengal and when on 19.8.2012 about 8 kms ahead of Durgapur expressway Toll Plaza towards Howarh/Kolkata, a speeding heavy trailer ahead, suddenly applied the breaks, to avoid the accident and due to this sudden breaks, the driver of the tanker truck immediately steered the truck to overtake by the right side, but could not control the gaps properly and the right rear corner of the trailer came into hard contact with the left side fitted discharge valve controlled assembly and next tyre which generated a heavy sudden impact and resulted into complete breaking out of discharge valve assembly and the loaded liquid cargo spilled out on the road. Due to this accident the entire consignment was lost.  He lodged the First Information Report in that regard and informed the opposite party regarding the said accident. After receiving the information, opposite party has appointed McLarens Young Loss Adjusters India Pvt. Ltd. as surveyor to assess the loss. The surveyor assessed the loss to the tune of Rs.18,10,221/-. Then opposite party appointed Singla Investigator to give the second opinion regarding to assess the loss.  However, second investigator vide his report dated 10.11.2012 has not given his conclusive report. Opposite party has offered to the complainant 75% of the insured amount as assessed by the surveyor. He received the said amount under protest remaining 25% amount of the insured and cost plus loading which is 10% as per the policy not paid by the opposite party. In this way there was deficiency in service on the part of the opposite party, hence he filed the present complaint.

2.             Notice of the complaint was given to the opposite party, who appeared and filed written statement raising preliminary objection with regard to the maintainability; jurisdiction; locus standi; cause of action and complicated questions of law and facts are involved, which cannot be decided under the summary jurisdiction. On merits, it has been submitted that the claim of the complainant was duly processed by the opposite party by way of appointment of Mclarens Young Loss Adjusters and Surveyors India Pvt. Ltd. Kolkata who assess the loss of the complainant to the tune of Rs.18,10,221/- and submitted final survey report dated 12.9.2012 subject to acceptability of the terms and conditions of policy held by the insured. Singla Investigators Pvt. Ltd. Panipat for verification of unitized balance under Marine Declaration Policy who submitted verification report dated 11.10.2012. The claim of the complainant was settled by the opposite party on sub/non standard basis i.e.75% of total loss, for which the complainant had given the consent for settlement of the claim by accepting 75% of the total loss through consent letter and thereafter an amount of Rs.13,57,666/- was paid to the complainant through cheque no.401078 dated 22.5.2013 in full and final discharge/settlement of the entire claim of the complainant to which the complainant had not objected and accepted the aforesaid amount voluntarily towards the full and final settlement of the claim without any protest and in this regard, the complainant submitted discharge voucher, subrogation form, letter of indemnity & letter of undertaking duly signed and stamped by the complainant. It has further been submitted that on going through the endorsement declaration for the invoice cargo under open policy, there was no declaration towards coverage of addition of 10% of invoice value made through +10% is endorsed on the policy. The claim of the complainant was settled and paid as per the policy terms and conditions. Hence there was no deficiency in service on the part of the opposite party.

3.             Complainant tendered into evidence affidavit Ex.CW1/A and documents Ex.C1 to Ex.C3 and closed his evidence 30.1.2017.

4.             On the other hand, opposite party tendered into evidence affidavit of R.S. Bahlan, Senior Divisional Manager Ex.OP1/A and documents Ex.O1 to Ex.O6 and closed the evidence on 20.6.2017.

5.             We have heard the learned counsel for the both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

6.             From the pleadings and evidence of the case, it is clear that it is admitted case of the parties that complainant is a manufacturer of paints having a unit at Karnal and the cargo had got been insured with the opposite party, vide policy no. .261301/21/2013/11, valid from 4.4.2012 to 3.4.2013. It is also admitted by the parties that on 1.8.2012, the complainant sent a liquid cargo through tanker truck no.WB-11-B/8466 loaded with 19500 Kgs of Liquid cargo vide invoice no.KP707 dated 31.7.2012 for a sum of Rs.18,10,221/-. The said liquid cargo started journey on 1.8.2012 from Karnal for Howarh West Bengal and when on 19.8.2012 the said tanker reached ahead of Durgapur expressway Toll Plaza towards Howarh/Kolkata, a speeding heavy trailer ahead suddenly applied the brakes. To avoid sudden contact/accident and the driver of tanker truck immediately steered the truck to overtake by the right side, but could not control the gaps properly and the right rear corner of the trailer came into hard contact with the left side fitted discharge valve controlled assembly. The accident could not be avoided and resulted into complete breaking out of discharge valve assembly and the loaded liquid cargo spilled out on the road. Due to this accident the entire consignment was lost. First Information Report has been lodged in this regard. It is also not disputed that the opposite party has appointed McLarens Young Loss Adjusters India Pvt. Ltd. as surveyor to assess the loss. The surveyor assessed the loss to the tune of Rs.18,10,221/-, vide report dated 12.9.2012. Thereafter, the opposite party appointed Singla Investigator Pvt. Ltd. for giving the second opinion to assess the loss of the complainant. It is not disputed that the opposite party offered to the complainant an amount of 75% of the insured amount as assessed by the surveyor offered and the said 75% amount has been received by the complainant.

7.            The present complaint has been filed by the complainant for the remaining 25% of the insured amount and 10% of CIF Plus And loading amount as per policy where according to the opposite party the 75% amount has been given to the complainant after the consent of the complainant and the same has been accepted in full and final settlement. To prove his case, the complainant has produced on the file his affidavit Ex.CW1/A, insurance policy Ex.C1 and surveyor report Ex.C3. To prove his contention, the opposite party has placed on the file his affidavit Ex.OP1/A, consent letter Ex.O1, discharge voucher Ex.O2, Subrogation form Ex.O3, letter of indemnity Ex.O4 and letter of undertaking Ex.O5 besides other documents. On perusal of Ex.O1 it is found that the Managing Director, M/s Karna Paints Pvt. Ltd. has given this consent letter  and it is mentioned in it that “We are the holder of Marine Policy no.261301/21/2013/11. We had filed one claim no.261301/21/ 2013/000002 with you against an accident loss occurred on 19.8.2012. We give our consent to accept 75% of the total loss.”

So, from this document it is very much clear that the complainant had given consent for accepting the 75% of the amount of assessed loss. Similarly, from document Ex.O2 to Ex.O5, it is also very much clear that the amount of Rs.13,57,666/- has been accepted by the complainant in full and final settlement of his claim for the loss  in question.

 8.            The learned counsel for the complainant produced the copy the insurance policy and a letter dated 24.9.2015 written by Insurance Regulatory and Development Authority of India at the time of arguments and argued that according to which policy the complainant is entitled for CIF +10%.  Once the complainant has given consent for accepting the 75% of the loss assessed by the surveyor and accept the said amount in full and final settlement of his claim without any interest then the complainant cannot claim the remaining 25% of the loss amount. In this regard the complainant has referred the letter dated 24.9.2015 mentioned above and stated that according to this letter, insurer shall not use the instrument of discharge voucher as a means of estoppel. In this case the complainant has not only given the discharge voucher but also gave subrogation form Ex.O3, letter of indemnity Ex.O4 and letter of undertaking Ex.O5 and in all these documents the complainant has mentioned that a sum of Rs.13,57,666/- has been accepted by the complainant in full and settlement of his claim. So, besides the discharge voucher there are other documents also which prove that the complainant has accepted the abovesaid amount in full and final settlement of his claim.  In these facts and circumstances, we are of the considered view that the complainant has accepted the amount of Rs.13,57,666/- as full and final settlement of this claim, so we found no deficiency in service on the part of the opposite party.

                Thus, as a sequel of above discussions, we found no merit in the complaint and hence the same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 9.10.2017

                                                                        (Jagmal Singh)

                                                                           President,

                                                         District Consumer Disputes

                                                       Redressal Forum, Karnal.

 

                        (Veena Rani)       (Anil Sharma)

                          Member                Member