Since both the Revision Petitions arise out of a common order, these are being disposed of by this order. By these Petitions, M/s Cholamandalam M. S. General Insurance Company Limited (for short “the Insurance Company”) has questioned the correctness and legality of the order dated 30.10.2015, passed by the State Consumer Disputes Redressal Commission, Bench No.1, Rajasthan Jaipur (for short “the State Commission”) in two cross Appeals Nos.211 and 455 of 2015. By the impugned order, the State Commission, while allowing the Appeal preferred by the Complainant, a proprietorship concern, against the order dated 20.10.2015, passed by the District Consumer Disputes Redressal Forum, Jaipur – III (for short “the District Forum”), has directed the Insurance Company to pay to the Complainant a sum of ₹11,86,316/-, being the total amount of claim made by them, along with the interest etc., as awarded by the District Forum. In the first instance, the District Forum, while accepting the Complaint on merits, had directed the Insurance Company to settle the claim on non-standard basis and pay to the Complainant 75% of the -3- claim amount along with interest @ 12% p.a. from the date of presentation of the claim till realization. The claim was so restricted as according to the District Forum, the ill-fated truck in which the mustard oil was transshipped from manufacturing place to the Complainant’s place, was overloaded. Succinctly put the relevant facts are: that the Complainant, Respondent no.1 in these Revision Petitions, had obtained from the Insurance Company a Marine Cargo Open Policy (inland), in respect of despatches made to it from anywhere in the country to its factory in the assured sum of ₹500,00,000/- valid for the period from 03.06.2011 to 02.06.2012. On 19.11.2011, the Complainant purchased 18820kgs. of mustard oil from one Seco Private Limited, Padasoli (Dudu), Rajasthan. The mustard oil was transported to its factory in a closed tanker provided by Respondent No.2. Unfortunately, in transit, the tanker met with an accident resulting in loss of substantial quantity of the oil due to spilling. The material being insured under the said policy, the Complainant preferred claim with the Insurance Company for the loss suffered on account of the said accident. The Insurance Company appointed a Marine Surveyor to assess the loss suffered by the Complainant. The Surveyor found that out of the said quantity 17770kgs of oil was lost. Balance quantity could be salvaged. Accordingly, he -4- assessed the loss at ₹11,86,316.76ps. However, having assessed the said loss, the Surveyor vide its report dated 25.05.2012, made the following observations in the report: - The policy does not cover to transit loose mustard oil in tanker hence the perils are not covered
- We have visited at M/s Shree Seko Pvt. Ltd., Dudu on same day and check the available records, we found challan no.10 is missing and the consignment dispatched through challan no.11 and binding of challan book is found shaky condition. Total quantity column of out pass register is also correction by the consignor hence quantity of oil is doubtful.
- We have visited at M/s Shree Tadkeshwar Agro Food Product on dated 20/12/2011 checked all available records and found in order
- We have also visited at transporters office and check the GR, record of GR not available for verification.
The underwriters may take the decision as per policy terms & conditions and the declaration made by the insured. On receipt of the said report, vide its letter, dated 21.09.2012, the Insurance Company repudiated the claim. For the sake of ready reference, the relevant part of the repudiation letter is extracted below: “On receiving claim intimation, we have promptly appointed an independent marine surveyor named Rajesh K. Jhajharia Insurance to survey and assess the loss if any. The following were noted by us:- There is overloading of consignment in the truck. As per the Registration Certificate, the GVW of the vehicle is 25000kgs. Unladen weight of the vehicle and weight of the oil carried by the tanker is 8870kgs and 18820kgs respectively. So, the total weight of the vehicle including weight of the oil is 27390kgs. Hence there is overloading of 2690kgs. Further as per Registration Certificate the vehicle is registered as Truck Heavy-Open, whereas the same is used as a Tanker (Closed Vehicle), which is violation of law. As guided by the below warranties and contracts not opposing to public policy:- - Warranted cargo is carried in a closed vehicle/wagon or a vehicle/wagon duly covered with a serviceable tarpaulin.
- Warranted vehicle clean and fit to carry cargo.
-5- In view of above, we regret to inform that we are not in a position to consider your claim. We hope you will appreciate our stand that payment of any claim has to be in accordance with the terms and condition of the policy issued and after establishing the operation of insured peril. While expressing our inability to pay this claim due to above mentioned reasons, we reiterate our commitment to pay all admissible claims fairly and promptly.” Evidently, the letter does not clearly spell out the reasons for rejection of the claim. However, it can reasonably be inferred that repudiation of the claim was on account of overloading of the tanker by 2690kgs and that the vehicle in question was registered as an open truck but was being used as a tanker (closed vehicle). Aggrieved, the Complainant filed the Complaint. As noted above, although the factum of loss suffered by the Complainant was accepted by the District Forum, but relying on the decision of the Hon’ble Supreme Court in “Amalendu Sahoo vs. Oriental Insurance Co. Ltd. (2010) 4 SCC 536, it came to the conclusion that since the Insurance Company had been able to prove that there was overloading of the tanker, the claim should be settled on non-standard basis i.e. 75% of the claimed amount. Being dissatisfied, both the parties preferred Appeals to the State Commission. The State Commission has come to the conclusion that insofar as the Complainant is concerned, it has suffered loss and has no concern with the terms and conditions of the policy obtained by -6- the carrier from its Insurance Company. Accordingly, relying on its earlier order in “Bansal Oil Mill Limited vs. Oriental Insurance Company (Appeal No.637 of 2011), has allowed the Appeal preferred by the Complainant. Consequently, the Appeal preferred by the Insurance Company was dismissed. Hence the present Revision Petitions by the Insurance Company. In furtherance of the directions issued on 05.04.2016, the Insurance Company has placed on record a copy of the Registration Certificate of the vehicle, in which the subject material was transported. As per the said document, the unladen weight of the vehicle was 8870kg and the laden weight was limited to 25000kg. Relying on the said document, learned Counsel appearing for the Insurance Company submits that the quantity of the mustard oil transported being 18820kgs, and when added to the unladen weight, it was obviously more than the laden weight as mentioned in the Registration Certificate and therefore, the insured material having been transported in breach of the conditions of the Registration Certificate, the claim was rightly repudiated. Per contra, learned Counsel appearing for the Complainant submits that since the policy in question was a Marine Cargo Open (inland) policy and the material in question being in a liquid form, which -7- was being transported in a closed container, which could not be overloaded/overfilled, the grounds on which the claim has been repudiated, are extraneous to the claim in question. It is pointed out that even the relevant terms of the policy were not placed on record by the Insurance Company. Prima-facie, we find substance in the submissions made on behalf of the Complainant. However, having perused the orders passed by the Fora below, we are of the view that the case has not been examined in the correct perspective, particularly when the Insurance Company had not even bothered to file the relevant policy, governing its contract with the Complainant. Regard being had to the aforenoted factual scenario, we are of the opinion that it would be proper and expedient to remand the case to the District Forum for fresh adjudication, after due opportunity to both the parties to lead evidence in support of their respective stands. Consequently, we allow both the Revision Petitions; set aside the impugned orders and remit the matter back to the District Forum for fresh adjudication of the Complaint on merits. However, bearing in mind the fact that a fresh trial in the Complaint is being ordered on account of the failure on the part of the Insurance Company in not placing on record the relevant documents, resulting in delay in settlement of claim of -8- Complainant, and prima facie, the grounds on which the claim has been repudiated are not clearly borne out from the report of the surveyor, we feel that the interests of justice would be subserved by directing that pending fresh adjudication of the Complaint by the District Forum, the amount of compensation on non-standard basis, as awarded by the District Forum, without interest, shall be paid by the Insurance Company to the Complainant, if not already paid, before the District Forum on Complainant’s furnishing adequate security to the satisfaction of the District Forum, for restitution. Parties/their counsel are directed to appear before the District Forum No.III, Jaipur on 26.08.2016 for further proceedings. Both the Revision Petitions stand disposed of in the above terms with no order as to costs. | 
