CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.740/2006
M/S KHAITAN ELECTRICALS LTD.
PLOT NO.14, SECTOR-6, FARIDABAD,
HARYANA-121006
…………. COMPLAINANT
Vs
M/S TATA AIG GENERAL INSURANCE CO. LTD.
LOTUS TOWERS, 1ST FLOOR, COMMUNITY CENTRE,
NEW FRIENDS COLONY, NEW DELHI-110065
…………..RESPONDENT
Date of Order: 21.01.2019
O R D E R
A.S. Yadav – President
M/s Khaitan Electricals Ltd., the complainant herein, has filed the present complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Tata AIG General Insurance Company Ltd., the OP herein, alleging that the complainant is a Company incorporated under the Companies Act, 1956, having its office at Faridabad and has authorized Shri J.P. Gupta, DGM to sign, verify, defend and prosecute the proceedings by way of Board Resolution dated 21.11.1997. The OP is an insurance company providing insurance services to persons including Companies alike. The complainant submits that it imported from M/s Xiamen JK Co. Ltd., China, a consignment of sealed tubular glass shells and plastic goods worth US$ 26,354.75 i.e. Rs.12,03,850.26 under Invoice No.MHIN05-007G dated 20.6.2005 for being transported from Shanghai China to the complainant’s unit/factory at Ponta Sahib, H.P. India. The consignment was shipped on 27th June, 2005 on Bahamian Express W018 under Bill of Lading no.HLCUSHA050687499 from Shanghai, China for being transported to Nhava Sheve, India. It is submitted that the supplier M/s Xiamen JK Co. Ltd., China insured the consignment on its part from warehouse to warehouse i.e. from Shanghai to Nhava Sheva with PICC Property and Casualty Company Ltd. vide Cargo Transportation Insurance Policy. The complainant availed the services of the OP and insured its consignment from Shanghai China to Ponta Sahib, HP, by obtaining a marine policy bearing no.E 6890376889 for the aforesaid consignment. The insurance agent of the OP told the complainant that the original marine policy would be sent in due course. The said consignment arrived at Nhava Sheva port in India on 20.7.2005 and was transported by a lorry on the same day for Ponta Sahib vide GR No.15310 dated 25.7.2005 and reached there on 7.8.2005. On arrival of the goods at its factory in Ponta Sahib, it was found that the sealed tubular glass shells and plastic goods had been damaged and the total rejected quantity being 66,557 which was valued for Rs.9,18,254/-. The complainant informed the OP and requested them to appoint a Surveyor, and a surveyor was appointed. The complainant by letter dated 18.8.2005 gave a detailed list of the damages caused to the goods. The Surveyor did not supply any report to the complainant despite several requests. Finally, the complainant was informed by the OP vide letter dated 1.12.2005 that the claim of the complainant bearing Marine claim no.181079 had been rejected due to back-dating of the insurance policy by the OP’s agent on whom allegedly the complainant had applied pressure tactics and accused the complainant of having committed Maritime fraud as the supplier of the goods to the complainant had insured the goods at China, its claim could not be entertained. The complainant was shocked at the conduct of the OP, as the complainant did not even possess the original Marine policy which had not been sent to the complainant by the OP, for reasons best known to it. The complainant made several requests by its email to the OP to at least give it the original marine policy for audit purposes but initially the OP refused that any such marine policy was issued to the complainant as reflected by its email dated 22nd February 2006 and 24th February, 2006 but after persistent follow ups, the OP sent as an attachment to its email on 6th March, 2006. The complainant thereafter sent legal notices dated 12.5.2006 and 8.6.2006 calling upon the OP to indemnify the complainant on account of damages to its goods insured by the complainant with the OP. However the OP again vide letter dated 12.6.2006, not only rejected the claim of the complainant but has also warned it from initiating any legal action. The complainant has prayed that the OP might be directed to pay to the complainant, as sum of Rs.9,18,254/- for damage goods with interest, along with compensation.
The OP, in its reply has submitted that the the insurance policy has been obtained by the complainant by active concealment of several facts material to the assessment and acceptance of the risk and thus the policy is void ab initio and no valid claim can be set up thereunder because the complainant had placed order for supply of cargo on CIF terms and price paid was inclusive of insurance premium; the suppliers had arranged insurance of the consignment with overseas insurers to protect the interest of the complainant as well; that while obtaining the insurance cover with the OP, the complainant had not disclosed that the consignment had already arrived at the destination port in India and had been cleared from customs, and had been loaded on truck on 25.7.2005 for inland transit; and that the complainant should have disclosed to the OP the fact that the lorry carrying the goods had got stranded in floods and rain which had damaged the consignment even before the insurance proposal; and thus the insurance was obtained by fraudulent concealment of material facts; and that the complainant is involved wholly in commercial activities earning huge profits and the policy had been obtained for commercial purposes. The OP further submits that the insurance had not been obtained in good faith. It is submitted that even though the truck was caught in floods and goods got damaged, yet the complainant took no action to get the packages opened in Mumbai, examine and ascertain the extent of damage before loading them on different trucks for further transit from Mumbai to Paonta Sahib since they intended to show ignorance of the damage to the goods while in Mumbai. It is further submitted that the complainant had also the insurance policy no.E689037689 which relates to this consignment but they were repeatedly asking the OP for the policy no.E689037679 merely to keep the OP in confusion and never advised the correct the policy number. It is submitted that it is wrong on the part of the complainant to say that the insurance from China had been obtained by the complainant on the insistence of the agent of the OP, because the complainants being seasoned businessmen, would not spend twice for the same cover unless in so doing, they see a clear advantage for themselves. It is submitted that the surveyor has inadvertently omitted to apply the exclusion appearing in the policy. The loss actually works out to Rs.2,55,952/- and the complainant cannot set up a claim for any amount more than Rs.2,55,952/-. The OP submits that the complaint of the complainant might be dismissed.
In its rejoinder, the complainant denies the allegations of the OP and submits that the claim of the complainant had even been approved by the surveyor who has also assessed the loss at Rs.9,31,895/- and therefore there was no reason why the OP should not indemnify the complainant for the loss suffered by it. The complainant has denied all the contents of the reply. It is submitted that the OP provided the insurance policy only after going the various documents for export including the invoices, the Bill of Lading etc. in which the terms of import were clearly stated. Even otherwise, any insurance company provides insurance only after verifying the details of the consignment to be imported and on what terms it is imported and the import as is normally made on C.I.F. terms which were so even in the present case. The complainant reiterated and reaffirmed the contents and allegations made in the complaint, and denied those of the reply.
The parties filed their respective evidence by way of affidavits and deposed all the relevant facts on oath, and also filed their respective written submissions. The counsel for the parties addressed their oral arguments as well.
We have gone through the case file carefully.
There is no question of concealment of facts on the part of the complainant. OP had seen the purchase order on which these terms were clearly written and therefore there is no reason for any concealment whatsoever. The insurance by suppliers was only from their port Shanghai to Nhava Sheva. There is no question of the policy back dated in advance. The policy is dated 28.06.2005 and the cheque was also dated June 2005. The policy is a computer generated document which clearly bears the dated 28.06.2005 hence it is wrong on the part of OP to say that the policy was got back dated. In fact it is matter of fact that there were immense floods in July 2005 as a result the goods were destroyed during transit due to the flood. There is no question of concealment of any fact on the part of the complainant. Rather OP has just created a story of concealment of facts on the part to the complainant. OP has appointed a surveyor and the surveyor has given a report. The goods were opened in the presence of the surveyor. The surveyor inspected the damaged consignment very carefully and has taken the photographs as well. The surveyor has specifically stated that “whole consignment was in bad shape. Majority of the corrugated cartons were crumpled and the contents inside were lying scattered. The contents were also in bad condition. Lot of Sealed Tubular Glass shells were found broken. In some shells, rear sealing was cracked and vacuum inside has gone”.
The surveyor has assessed the loss to the tune of Rs.9,31,895/-. The goods were duly insured. The goods were damaged during transit and the goods were duly covered under the policy. There was as no question of repudiating the claim. It is clear cut case of deficiency in service on the part of OP.
OP is directed to pay a sum Rs.9,31,895 /- to the complainant alongwith interest @ 9% p.a. from the date of filing of the complaint. OP is further directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(H.C. SURI) (A.S. YADAV)
MEMBER PRESIDENT
