Order No. 22 Dated 05/09/2016
The case of the complainant in brief is that the complainant entered into an agreement with Hundustan Ship Yard Ltd., Gandhigram, Vishakapatnam, Andhra Pradesh and the complainant in order to get the machines indemnified against the losses and damages obtained transit insurance policy from the o.p. being policy no.0840006053, sum insured was Rs.39,90,153 /-. The said machines to be carried from the workshop CGL to the complainant company at Panihati onwards to Gandhigram, Vishakapatnam, Andhra Pradesh.
The consignment while reached Rambhabazar railway bridge the entire trailer along with the cargo hit the railway bridge and motor fan cover, fan duct, stool and other items were seriously damaged. A surveyor was appointed and damage was assessed. The complainant lodged a claim to o.p. for Rs.5,21,138/-. The o.p. by his letter dt.14.9.11 rejected the claim of the complainant and as such, the complainant filed this case praying for direction upon the o.p. to pay Rs.5,21,138/- and compensation of Rs.3 lakhs and other reliefs.
The o.p. contested the case by filing w/v and denied all the material allegations of the complaint. It was stated that the insurance policy between the insurer and insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risk covered by the insurance policy the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insurer cannot claim anything more than what is covered by the insurance policy. After the inspection of the consignment which got damaged near Rambhabazar in Ganjam and the o.p. appointed one IRDA licensed surveyor cum loss assessor, M/s Vijay Kumar Agarwala to assess the loss. The surveyor submitted a report wherefrom it is found that the consignment got damaged while the trailer carrying the motor was passing through a railway underpass. From the documents it had also been revealed that the particular consignment was being carried on an open type of trailer without tarpaulin cover. The insurance company had expressed warranty to carry the consignment with tarpaulin cover and the warranty had been breached by the insured. The o.p. duly informed the complainant reasons as to why the claim was repudiated and there was no deficiency in service on the part of the o.p. and the loss sustained by the complainant is beyond the terms and conditions of the policy of insurance. In view of the facts and circumstances as stated above o.p. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant had the insurance in respect of articles involved in the said consignment.
- Whether the terms and conditions of the policy were maintained by the complainant.
- Whether the o.p. rejected the claim of the complainant for violation of the terms and conditions of the policy.
- 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 in order to prove that there was an agreement between the parties for bringing the consignment from Andhra Pradesh to Kolkata and on the way the consignment was damaged and before sending of the consignment the complainant had an agreement covering the risk of the said consignment and a policy was opened with the o.p. and sum insured was Rs.39,90,153/-. While the consignment was brought from Andhra Pradesh to Kolkata on the way in Orissa an accident took place for which some of the consignments were damaged and as per the terms of the policy the complainant claimed the compensation for the damage of the said consignment but the o.p. without any cogent reason whatsoever denied the claim of the complainant and because of such repudiation of claim complainant had to file this case seeking relief u/s12 of C.P. Act.
Ld. lawyer for the complainant argued that as per the terms and conditions of the said policy and also to assess the damage sustained in the said consignment a surveyor was appointed as per the panel surveyor approved by IRDA and accordingly, the surveyor after assessment of the damage came to the conclusion that the consignment laden trailer met with road accident on 14.2.11 near Rambhabazar Orissa and after the presence of Credence Logistic Ltd., Vishakapatnam the inspection was carried out and the surveyor came to the conclusion that the driver of the trailer drove in careless negligence manner and caused the damage. Therefore road carrier M/s Credence Logistic Ltd. is responsible for the damage sustained to 780 KW electrical motor. Accordingly, the surveyor submitted his report. On the basis of the said report the o.p. denied the claim of the complainant.
Considering the submissions of the respective parties and from the materials on record it is crystal clear that the consignment in question was insured with insurance company at the relevant point of time. It is also found from the materials on record that on the way the accident took place for which the consignment was damaged. After coming to know of the said accident the o.p. made arrangement of appointment of a surveyor to assess the damage sustained by the said consignment. Ld. lawyer for the o.p. rightly argued that the surveyor submitted report whereby he gave entire blame upon the carrier of the said driver who carried the said consignment. On the basis of the said fact as well as precondition of the said policy was to covering the consignment with proper wooden frame covered with tarpaulin but said condition was not fulfilled by the complainant at the time of despatching the said consignment. Considering all these aspects we hold that the complainant did not fulfill the terms and conditions of the policy as well as carrier of the said consignment was responsible for the said accident and also the damage sustained by the said consignment. Therefore, we hold that the o.p. was rightly repudiated the claim of the complainant.
Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.61/2013 is dismissed on contest without cost against the o.p.
Supply certified copy of this order to the parties free of cost.
