Order No. 21 dt. 22/08/2017
The case of the complainant in brief is that the complainant in order to shift her household articles from Navi, Mumbai to Salt Lake engaged the o.p. no.1 for transporting the articles from Mumbai to Kolkata. The complainant paid an amount of Rs.45,535/- for rendering the service transport charges. The complainant was delivered by o.p. no.1 with the household goods of the complainant were insured with o.p. no.2 insurance company and for such transportation under the policy viz. Specific Voyage Policy issued on 2.4.13 with a sum assured of Rs.1 lakh. After reaching the articles it was found that 10 articles were missing. At the time of unpacking the items it was found that the wooden furniture as well as refrigerator were badly damaged. The complainant informed the said fact to o.p. no.1, but o.p. no.1 did not take any action. The complainant thereafter requested the o.p. no.1 for issuance of a certificate of the damaged and missing articles so that the complainant can lodge her claim with the insurance company, but o.p. no.1 did not reply.
The complainant thereafter wrote a letter to o.p. no.2 requesting them to issue her a claim form enabling to lodge the claim as per the policy norms and also requested the o.p. no.2 to arrange for a surveyor and loss assessor at the earliest to assess the total loss occurred during such transit of her household goods, but o.p. no.2 did not take any action. On the basis of the said fact the complainant filed this case praying for direction upon the o.ps. for payment of Rs.5 lakhs for compensation and Rs.3 lakhs for harassment.
In spite of receipt of notice the o.p. no.1 did not contest the case by filing w/v and as such, the cases has proceeded ex parte against the o.p. no.1.
The o.p. no.2 contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the complainant did not make the policy issuing office as party in her complaint. The complainant had taken a Marine Transit Policy under rail / road cover clause B basis cover insurance policy on going through the rules and regulations and also on fully understanding terms policy and also being satisfied she applied for the same. The complainant could not produce any money receipt in proof of payment of premium and without the original money receipt and original policy her right as a consumer cannot be established. The inland transit (rail or road) clause B basic cover is a name peril cover i.e. the risk covered her name. The risk clause states as follows:- This insurance covers except as provided in clause 2, 3 & 4. The risks of physical loss or damage to insured goods caused by A(i) Fire, (ii) Lightening, (iii) Break of bridges, and B(i) Collusion with or by the carrying vehicle, (ii) Overturning of the carrying vehicle, (iii) Derailment or accidents of the like nature to the carrying railway wagon / vehicle. The complainant could not prove by producing any material that due to those reasons the complainant suffered loss. In view of the said fact o.p. no.2 prayed for dismissal of the case by imposing a cost of Rs.10,000/- upon the complainant.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant booked her articles for transportation through o.p. no.?
- Whether during the transition of the articles there was any damage of some of the articles?
- Whether the damage caused to the complainant covered under the insurance policy?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant in order to change of residence from Navi, Mumbai to Kolkata she entrusted the o.p. no.1 for transportation of her household articles. At the time of booking the articles the complainant was informed that in order to have the benefit of loss of articles in transit the complainant can have the benefit of policy of o.p. no.2. Accordingly, the complainant entered into an agreement with o.p. no.1 and paid the usual charges. After reaching of those articles the complainant noticed that some of articles were missing and damaged. The complainant brought it to the notice of o.p. no.1 but no action was taken, ultimately the complainant asked the o.p. no.2 for providing her with a claim form, but the same was not provided. On the basis of the said fact the complainant filed this case praying for direction upon the o.ps. for compensation and other reliefs.
Ld. lawyer for the o.p. no.2 argued that in order to establish the fact that there was any contact between the complainant and insurance company regarding covering of the articles on transit the complainant could not file any document to that effect that any money was paid by the complainant towards the said policy or any document regarding the policy issued by o.p. no.2. Ld. lawyer for o.p. no.2 also emphasized that the issuing authority of the insurance policy has not been made a party in this case. on the basis of the said fact o.p. no.2 prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant requisitioned the service of o.p. no.1 and sent the household articles through o.p. no.1 from Mumbai to Kolkata. It is also an admitted fact that the complainant noticed some damaged articles after receiving those articles in Kolkata. It is also an admitted fact that the complainant after detection of such defects in respect of some articles brought it to the notice of o.p. no.1 as well as o.p. no.2. The o.p. no.1 did not contest the case. It also appears from the evidence on record that o.p. no.2 contested the case and denied the allegation that the articles were insured with o.p. no.2. But from the materials on record it appears that the articles were insured and the sum assured was Rs.1 lakh. It is also found from the materials on record that the complainant after getting of those household damaged articles brought it to the notice of o.p. no.2 for assessment of the loss sustained by her. But o.p. no.2 did not take any contingence of the claim of the complainant. Even she was not provided with the claim form. It appears from the record that such conduct of o.p. no.2 substantiated the claim of the complainant that there was deficiency in service on the part of o.p. no.2. Since the articles booked to o.p. no.1 was insured with o.p. no.2, therefore o.p. no.1 did not contest the case and allowed to proceed ex parte. Ld. lawyer for o.p. no.2 argued that the policy subscribed by the complainant was not covered with the loss sustained by the complainant and ld. lawyer pointed out the clause 2, 3 & 4 of risk of physical loss or damage to the insured goods. On the basis of the said fact ld. lawyer for o.p. no.2 emphasized that the complainant will not be entitled to get any claim. On perusal of the policy it appears that the policy was known as Specific Voyage Policy being policy no.261600/21/13/4500000046 issued on 2.4.13 with a sum assured of Rs.1 lakh. It appears from the said policy that the articles were insured with o.p. no.2 and o.p. no.2 in order to evade the responsibility of payment of the claim of the complainant though the articles were covered with the policy made false allegation that the articles were not insured and those articles were not covered with the policy. In view of the facts and circumstances as stated above, we hold that there was gross deficiency in service on the part of o.p. no.2 and the complainant will be entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.619/2013 is allowed on contest with cost against the o.p. no.2 and dismissed ex parte without cost against the o.p. no.1. The o.p. no.2 is directed to pay to the complainant a sum of Rs.1,00,000/- (Rupees one lakh) only as compensation for harassment and mental agony and litigation cost of Rs.20,000/- (Rupees twenty thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
