STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

New India Assurance Company Limited, having its Regional Office at SCO 36-37, Sector 17A, Chandigarh through its duly constituted attorney Shri K.B. Bindal, Manager.

……Appellant/OP

V e r s u s

1.            Sh. Rajesh Sharda, Shop No.39, Sabzi Mandi, Chandigarh.

… Respondent/complainant

2.            M/s. Link Roadways (Regd.), SCF no.289, Opposite Police Line, Grain Market, Sector 26, Chandigarh.

              ....Respondent/OP-3

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     MRS. NEENA SANDHU, PRESIDING MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:  Sh. Paul S. Saini, Adv. for the appellant

                   Sh. D.C. Kumar, Adv. for respondent No.1

                   Sh. Ramesh Kumar, Adv. for respondent No.2

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This appeal is directed against the order dated 29.4.2011, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant/respondent No.1 and directed the OPs as under :-

“8.     In view of the above findings, this complaint is allowed with following directions to OPs, jointly and severally, to:-

i)       Pay a sum of Rs.7,90,000/- as the value of the consignment containing 592 boxes of apples dispatched by the complainant from Chandigarh to Hyderabad;

iii)     Pay Rs.1,00,000/- to the complainant as compensation for causing mental agony and harassment besides financial losses;

iv)     Pay Rs.7,000/- to the complainant as costs of litigation.

9.       This order be complied with by OPs jointly and severally within 30 days from the date of receipt of its certified copy, failing which OPs shall be liable to pay Rs.8,90,000/- i.e. [Rs.7,90,000 + Rs.1,00,000] along with interest @18% per annum from the date of filing the present complaint i.e.22.02.2010 till actual payment besides Rs.7,000/- as costs of litigation.”

2.                      The facts, in brief, are that the complainant took one Marine Open Policy from the OP/appellant for Rs.50 Lacs valid for the period from 10.8.2009 to 9.8.2010 covering the risk of theft, pilferage and non delivery, strike riots and civil commotion besides rail/road risks and paid a premium of Rs.13,789/-.  On 10.10.2009, he despatched a consignment of 592 boxes of apples from Chandigarh to Manju Nath Fruit Company Kothapet, Hyderabad vide GR no.10367 for the value of Rs.7,90,000/-. The said consignment was sent through OP No.3 and declaration form was also submitted by the complainant to OP No.2. He also paid a sum of Rs.20,000/- as advance freight against total freight of Rs.49,800/- to OP No.3 and the remaining amount of Rs.29,800/- was to be paid at the destination.  However, on 16.10.2009, he received a telephonic message from the consignee that the consignment had not reached destination upon which he approached OP No.3. They tried to find out the whereabouts of the truck at their own level but failed to do so.  Thereafter, OP-3 lodged an FIR on 22.10.2009 and the claim was lodged with OP No.2 along with all the required documents. The complainant also lodged the monetary claim upon the carrier i.e. OP No.3. However, the OPs failed to settle his claim despite submission of all the required documents. Ultimately, he served a legal notice dated 15.1.2010 on the OPs but to no avail.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                      The OP/Insurance Company in its written statement admitted the factum of issuance of Marine Open Policy. However, it was pleaded that no intimation was sent by the complainant to OP No.2 regarding dispatch of consignment of apples containing 592 boxes on 10.10.2009 from Chandigarh to Hyderabad. It was submitted that OP No.3 was not covered under the policy as it was not brought to its (OP-2) knowledge that the consignment was transported through OP No.3 and no inspection was carried out by the agent of the Insurance Company at any stage. It was denied that any declaration was received in the office of OPs No.1 and 2. It was asserted that no deal was finalized in the presence of OP No.2 and as such, it was not liable for any loss or damage. It was alleged that there appeared some collusion between the complainant and OP No.3 and no consignment was ever sent and it was a paper work only. It was averred that if any loss had occurred to the complainant, it is OP No.3 who was to indemnify the loss and not the OPs. Remaining averments were denied, being wrong.  Pleading that there was no deficiency in service and unfair trade practice on their part, prayer for dismissal of the complaint was made.

4.                      OP No.3 refused to accept the notice sent through Process Server and since, refusal is a good service, OP No.3 was proceeded against exparte vide order dated 13.7.2010.

5.                      The contesting parties led evidence in support of their contentions. 

6.                      After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

7.                      Feeling aggrieved, the instant appeal has been filed by the appellant/OP.

8.                      We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully. 

9.                      The contention of the ld. Counsel for the appellant is that it is a case of insurance fraud where no consignment was sent by the complainant and only paper work was done in connivance with OP-3/respondent No.2 and the appellant has been burdened to pay not only Rs.7,90,000/- as the value of the alleged consignment but a sum of Rs.one lac as compensation for causing mental agony and harassment.  His contention is that neither there were any apples nor the same were loaded in any truck nor the truck was lost in transit and it is a made up story without any substance.  In para 1 of the complaint the complainant mentioned that he was running the shop in his own name at shop No.39, Subzi Mandi, Sector 26, Chandigarh. Alongwith the complaint, he submitted his affidavit dated 19.4.2010 stating that he is the proprietor of Sharda Fruit Agency, Shop No.39, Subzi Mandi, Sector 26, Chandigarh.  What the complainant did is that he prepared Annexure C-2 in his own name pretending that Sharda Fruit Agency, exclusively owned by him, has sold 592 boxes of apples to Rajesh Sharda. The fact that the complainant sells the apple boxes to himself creates doubt about the genuineness of the transaction.  There is no document to suggest if on 10.10.2009, the date on which the said sale took place, Sharda Fruit Agency, proprietorship of the complainant, was having any such apples in stock.  The source from where the apples came is still unknown.  The said apple boxes were then booked with Link Roadways (OP No.3) for transportation to Hyderabad.  No intimation of loading of the apple boxes was given to the appellant till 12.10.2009. The representative of the insurance company was not informed nor any intimation of the apple boxes, having been loaded in any such truck, was given to the OPs.  It was, therefore a secret affair between the complainant and the transporter/OP-3 of which no information was given to the appellant.  The OP/appellant has, therefore, rightly alleged that there was collusion between the complainant and OP No.3 who was paid Rs.20,000/- for issuing Annexure C-3 in which even the value of goods was not mentioned. 

10.                  Annexure C-5 is the copy of the FIR lodged on 22.10.2009 with the police.  It is mentioned therein that the apple boxes were loaded in truck No.HR 38M 9277.  No evidence was produced by the complainant or the transporter/OP-3 before the police or the District Forum if any such truck existed with this registration number.  Certified copy of the RC could be obtained from the Motor Vehicle Authority, but the same was not obtained which shows that it was a fake vehicle in which the said boxes of apples are alleged to have been loaded.  It is further mentioned in the FIR that the driver of the said truck was Dharmender Singh (Sonu).  There is no address of said Dharmender Singh or his father’s name mentioned in the FIR.  Whether such a person ever existed is still a mystery.   Whether Dharmender Singh was a driver could be proved by obtaining from the Licensing Authority and producing a certified copy of his driving licence, but the same was not produced for the reasons best known to the complainant.  It was alleged that the vehicle, truck No.HR 38M 9277, was owned by his maternal uncle Gurwinder Singh s/o Nishan Singh.  No address of aforesaid Gurwinder Singh was given in the FIR nor has any been given in the present complaint.  No evidence was produced to prove if Gurwinder Singh owned any such vehicle bearing No.HR 38M 9277.  Needless to mention that the transaction remained only between the complainant and OP-3/transporter. The matter appears to have been managed by the complainant in such a manner that nobody succeeds in tracing out either any such truck, or its driver or the alleged consignment. 

11.                  It is also argued by the ld. Counsel for the appellant that no doubt the consignment was insured through Annexure C-1, but when the consignment has been safely handed over to the transporter, the liability of the appellant is over and thereafter if any mischief or loss takes place, it is the duty of the transporter i.e. OP-3 to make good the loss, if any, suffered by the consignee or the consignor.  According to him, if there is any loss, the complainant may recover the same from the transporter/OP-3 because the transaction appears to be suspicious and the loss, if any, occurred due to the acts of commission and omission on the part of OP-3 who was not insured with the appellant.  According to him, the loss caused by OP-3 cannot be compensated by the appellant because they had no such insurance contract with OP-3 to reimburse the loss caused by or to them,

12.                  The information about the non receipt of goods was given to the police on 22.10.2009 with a delay of 12 days whereas the information to the OPs/appellant was delayed upto 30.11.2009 on which date the letter (Annexure C-10) was sent by the complainant to the appellant.  In this letter there is a mention of letters dated 23.10.2009 and 27.11.2009 vide which the complainant alleged that he informed the Insurance Company.  However, no copy of any such letter was placed on file.  It was also not disclosed as to how the said letters were sent.  The OP/appellant has contended that they did not receive any such letter from the complainant.  Annexure C-10 was sent through registered post on 2.12.2009, copy of the postal receipt is Annexure C-11.  The OP/appellant, however, produced Annexure A-5 showing that intimation was given to it on 4.11.2009.  In this manner, intimation to the Insurance Company was delayed by more than 24 days.  The inordinate delay in informing the Insurance Company has not been explained.  The effect of the delay is that if the intimation was promptly given to the Insurance Company, they would have made efforts to locate the truck, if it at all existed.  The inordinate delay in giving information to the appellant disentitles the complainant to any relief even if the sending of consignment through truck had been a genuine transaction.

13.                  After the facts are viewed, it becomes evident that neither the complainant is proved to be having any apples nor the same were sold by it to the complainant himself nor any such truck existed in which the same were loaded.  There was, therefore, no loss at all but, somehow the complainant managed to obtain G.R (Annexure C-3) from OP-3 by paying it Rs.20,000/- to issue the same and further managed to  lodge FIR with the police, which is being made the basis for claiming compensation from the appellant for the loss which does not appear to have been suffered by the complainant.  It is, therefore, a case which is based on falsehood and the complaint could not have been allowed. There is sufficient merit in this appeal and the same is accepted. The impugned order dated 29.4.2011 passed by the ld. District Forum is set aside and the complaint is consequently dismissed.  The appellant would be entitled to litigation costs of Rs.10,000/- from the complainant/Respondent No.1.

14.                  A sum of Rs.25,000/- was deposited by the appellant  at the time of filing this appeal and a sum of Rs.5,62,835/- was deposited on 28.7.2011 in District Forum-II in pursuance of the order dated 13.7.2011 passed by this Commission. The aforesaid amount was ordered to be deposited in the shape of FDR carrying interest.  After the expiry of the period for filing the revision, the aforesaid amounts of Rs.25,000/- and Rs.5,62,835/- alongwith interest, if any accrued thereon, shall be paid to the appellant, if no stay order is received.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

24  February, 2012

[NEENA SANDHU]

PRESIDING MEMBER

[JAGROOP SINGH MAHAL]

MEMBER