KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.663/03
JUDGMENT DATED 13.9.2010
PRESENT
SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA -- MEMBER
1. Sr.Branch Manager,
National Insurance Co.Ltd.
3 A Gariahat Road,
Calcutta 700 019.
2. Manager,
National Insurance Co.Ltd., -- APPELLANTS
Chennai Division VII
III Floor, Apex Chambers
20, Thiagaraja Road, Pondy Bazar,
Chennai-17.
3. Manager,
National Insurance Co.Ltd,
Kannur Divisional Office,
P.B.No.40, Bank Road,
Kannur-1.
(By Adv.Saji Isaac.K.J
Vs.
1. T.T.P.Mohamood
Retired Officer,
Shipping Corporation of India,
Prime Pearl
Thavakkara, Kannur-2. -- RESPONDENTS
2. Manager,
Gupta Cargo Carriers
94, Phears Lane, Calcutta,
West Bengal 700012.
(By Adv.Pradeepnath & Ors.)
JUDGMENT
SRI.M.V.VISWANATHAN,JDUICIAL MEMBER
Appellants were the opposite parties 1 to 3 and respondents 1 and 2 were the complainant and 4th opposite party respectively in OP.34/01 on the file of CDRF, Kannur. The complaint therein was filed alleging deficiency in service on the part of the opposite parties 1 to 3 in not honoring insurance claim with respect to the damaged crockery items which were transported from Calcutta to Kannur under the insurance coverage. The opposite parties 1 to 3 entered appearance and filed written version denying the alleged deficiency in service. They contended that the damage to the crockery items occurred due to insufficient packing of the crockery items. They also relied on exclusion Clause 2.3 of the policy condition. Thus, they prayed for dismissal of the present complaint. The 4th opposite party, the Cargo Carriers remained ex-parte.
2. Before the Forum below, Exts. P1 to P 31 documents were marked on the side of the complainant. No evidence was adduced from the side of the opposite parties. On an appreciation of the documentary evidence available on record, the Forum below passed the impugned order dated 7th April 2003 directing the opposite parties to pay Rs.20,000/- as the value of the damaged crockery items with a compensation of Rs.10,000/- for the mental agony suffered by the complainant and also for undue delay on the part of the opposite parties. The complainant was also granted litigation expenses of Rs.250/-. It is against the said order; the present appeal is filed by the opposite parties 1 to 3.
3. When this appeal was taken up for final hearing, there was no representation for respondents 1 and 2 (complainant and 4th opposite party. We heard the learned counsel for the appellants/opposite parties 1 to 3. He argued for the position that the packing provided for the damaged crockery items was not sufficient and it resulted in causing damage to those items. He also relied on clause 2.3 of the policy condition. It is further submitted that the Forum below cannot be justified in awarding a further compensation of Rs.10,000/- over and above the value of the damaged crockery items. Thus, the appellants prayed for setting aside the impugned order passed the Forum below.
4. There is no dispute that the first respondent/complainant was the consignee of the goods transported from Calcutta to Kannur. It is an admitted fact that the aforesaid items (goods) were insured with the appellant/opposite party National Insurance Company Ltd. The aforesaid items having an effective insurance coverage. It is also an admitted fact that the crockery items included in the said transported items were damaged. The complainant/consignee claimed Rs.20,000/- as value of the damaged crockery items.
5. The first respondent/complainant preferred the insurance claim with respect to the damaged cost to the crockery items. The aforesaid claim for Rs.20,000/- was repudiated by appellant/opposite party National Insurance Company Ltd. It would also show that the Insurance Company delayed the matter considerably in taking a final decision in the matter.
6. At the instance of the appellant/National Insurance Company an approved surveyor was deputed to assess the loss. The surveyor, Madhu Aeran submitted the survey report dated 15.5.99. Ext.P4 is the survey report dated 15.5.99. In P4 survey report, it is categorically reported that the crockery items valuing Rs.20,000/- were damaged in transit or during loading and unloading operation. It is also reported by the surveyor that the damage occurred due to jerks and jolts etc. while in transit or during the loading and unloading operation. Thus, P4 survey report would make it abundantly clear that the damage occurred during transit because of the jerks and jolts. If that be so, the complainant being the consignee of the damaged crockery items is entitled to get the value of those damaged crockery items. The surveyor has also assessed loss at Rs.20,000/-. Therefore, the claim made by the complainant Mr.T.T.P.Mahmood ought to have been granted by the appellants/opposite parties 1 to 3 (insurer)
7. The appellants have got a case that the damage to the crockery items occurred due to insufficient or inadequate packing of those items. But P4 survey report would make it abundantly clear that those crockery items were individually packed and thereafter stacked in a cardboard. There is no whisper in P4 survey report about insufficient or inadequate packing. So, the case of the appellants that the damage caused due to insufficient or inadequate packing of the crockery items cannot be believed or accepted. On the other hand, the available evidence on record would make it evidently clear that the damage to the crockery items caused due to jerks and jolts in transit or during loading and unloading. So, the complainant is entitled to get the value of the damaged crockery items amounts to Rs.20,000/-.
8. The Forum below has also awarded Rs.10,000/- as compensation for mental agony and also for causing delay in deciding the claim made by the complainant. It is to be noted that value of the damaged items would come to Rs.20,000/- But, the further compensation awarded by the Forum below would come to Rs.10,000/-. This Commission is of the view that the compensation of Rs.10,000/- ordered by the Forum below is on the higher side. Considering the facts, circumstances of the case and also the nature deficiency in service on the part of the opposite party/Insurance Company we are pleased to award a compensation of Rs.5000/-. It is also to be noted that no interest has been awarded by the Forum below on the value of the damaged crockery items. Considering all these aspects, a sum of Rs.5000/- is awarded as compensation over and above the value of the damaged crockery items amounting to Rs.20,000/-. Thus, the compensation of Rs.10,000/- awarded by the Forum below is reduced to Rs.5000/-. The cost of Rs.250/- is ordered by the Forum below is quiet reasonable and the same is confirmed. Thus, the impugned order passed by the Forum below is modified accordingly.
In the result, the appeal is allowed partly and the impugned order dated, 7th April 2003 passed by CDRF, Kannur in OP.34/01 is modified. The appellants/opposite parties 1 to 3 are directed to pay Rs.20,000/- to the complainant being the value of the damaged crockery items with a further compensation of Rs.5000/- and cost of Rs.250/-. As far as the present appeal is concerned, there will be no order as to costs. Appellants/opposite parties are directed to pay the aforesaid amounts within one month from the date of receipt of copy of this Judgment, failing which the aforesaid amounts will carry interest at the rate of 9% per annum from the date of the impugned order dated 7/4/03 passed by the Forum below in OP.34/01.
M.V.VISWANATHAN -- JUDICIAL MEMBER
M.K.ABDULLA SONA -- MEMBER
s/L
