Haryana

Karnal

CC/207/2022

Jaspal Egg Merchant - Complainant(s)

Versus

Tata AIG General Insurance Company Limited - Opp.Party(s)

Balwan Singh Dhaunchak

29 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 207 of 2022

                                                        Date of instt.07.04.2022

                                                        Date of Decision:29.05.2024

 

Jaspal Egg Merchant through proprietor Jaspal Munjal, Age 45 years son of Shri Jai Gopal Munjal, resident of 53-E, Ward no.4, Poultry Area Nilokheri, District Karnal. Mobile no.9813224593. Aadhar no.2052 2865 3456.

 

                                                                        …….Complainant.

                                              Versus

 

1. TATA AIG General Insurance Co. Ltd. Unit no.5, 2^nd floor N.K. Tower, G.T. Road, Panipat-132103 through its Branch Manager.

 

2. TATA AIG General Insurance Co. Ltd. plot no.C-001, Unit no.810-816, 8^th floor, World Trade Tower, Sector-16, Noida-201301 (UP), through its Divisional Manager.

 

                                                                 …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.      

      Sh. Vineet Kaushik…….Member

      Dr.  Suman Singh…..Member

 

 Argued by: Shri Balwan Singh Dhaunchak, counsel

                    for the complainant.

                    Shri  Naveen Khetarpal, counsel for the OPs.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant had taken an Inland Open Transit Policy bearing no.0891084962 for initial sum insured domestic Rs.2,00,00,000/- with sending limit, per sending by road Rs.15,00,000/- and basis of valuation invoice value +10% from the OP no.1. On 25.03.2021, the Eicher Truck bearing registration no.HR-45B-0652 loaded with 6216 trays containing 1,86,480 eggs duly packed in standard packing started journey for Banaras (UP) vide invoice no.04 dated 25.03.2021. When the vehicle carrying the consignment reached near village Duhai at about 7 o’ clock on the Eastern Peripheral Highway an ahead going truck suddenly applied brakes as a consequence of which vehicle of the complainant got unbalanced and met with an accident with an unknown vehicle and driver of the vehicle Bhupinder Singh was seriously injured and helper Inderjit was also received injuries. Both were got admitted in Vinayak Hospital Gaziabad, wherefrom after initial treatment, they were referred to Karnal and on the way Bhupinder Singh died on 26.03.2021 at 10.00 a.m. The intimation was sent to the OPs regarding the said accident and on receipt of intimation, OPs appointed a surveyor M/s J.C.G. Surveyors. The surveyor has assessed the net loss to the tune of Rs.2,88,895/- against the total loss of Rs.5,03,520/- after application of 15% on account of negotiated settlement and 25% for prejudice recovery against the damaged quantity of 4196 trays containing 125880 eggs amounting to Rs.5,03,520/- which actually after policy excess @ 10% Rs.50,352/-, the net loss is Rs.4,53,168/-. As assessment was communicated by surveyor and the necessary documents were provided to the OP no.1 but inspite of this, OPs demanded unnecessary, irrelevant and minor details just to harass the complainant and just to avoid the payment of claim and lastly on 20.03.2022, the claim of complainant has been closed by the OPs on the ground of non-submission of documents. Complainant moved various complaints/mails to the higher authority of the OPs for settlement of claim of the consignment of eggs but with no result. Due to this illegal act of the OPs, complainant has suffered financial loss, harassment, mental pain and agony. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; locus standi; cause of action and concealment of true and material facts. On merits, it is pleaded that the complainant had opted for a Marine Cargo Open Policy from the OPs which was issued subject to certain terms and conditions. During the policy period, the OPs got the intimation regarding loss. After receipt of the intimation of loss, OPs appointed an independent IRDA licensed surveyor namely J.C. Gupta and Co. Insurance SLA Pvt. Ltd. for collection of mandatory documents, survey and loss assessment, who after making survey and loss assessment submit its report dated 19.07.2021. Without admitting any liability, the surveyor assessed the loss to the tune of Rs.2,88,895/- subjected to terms and conditions of the policy. On receipt of the survey report and assessing the claim documents with respect to policy terms and conditions, it was noted that complainant is not entitled for the claim because complainant has not submitted Monthly Declaration and violated the declaration clause as provided in terms and conditions of the policy. So, the claim of complainant has rightly been repudiated by the OPs, vide letter dated 21.09.2021. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of declaration including damaged consignment Ex.C2, photographs of damaged consignment Ex.C3, copy of superdari order of damaged vehicle Ex.C4, copy of FIR Ex.C5, copy of insurance policy of vehicle Ex.C6, copy of certificate of fitness of vehicle Ex.C7, copy of RC of vehicle Ex.C8, copy of Authorization Certificate Ex.C9, copy of assessment of loss Ex.C10, copy of invoice dated 25.03.2021 Ex.C11, copy of aadhar card of complainant Ex.C12, copy of emails Ex.C13 to Ex.C20 and closed the evidence on 11.10.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Amit Chawla DVP (Legal) Ex.RW1/A, copy of survey report Ex.R1, copy of repudiation letter dated 21.09.2021 Ex.R2, copy of terms and conditions of the insurance policy Ex.R3 and closed the evidence on 23.10.2023 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that complainant had taken a Marine Cargo Open Policy from the OPs. On 25.03.2021, the Eicher Truck loaded with 6216 trays containing 1,86,480 eggs met with an accident and badly damaged. The driver of the vehicle namely Bhupinder Singh was died due to the injuries sustained in the accident. The intimation was sent to the OPs, OPs appointed a surveyor M/s J.C.G. Surveyors. The surveyor has assessed the net loss to the tune of Rs.2,88,895/- against the net loss of Rs.4,53,168/-. Complainant completed all the formalities and submitted all the necessary documents but inspite of that OPs did not settle the claim and ultimately the claim of complainant has been closed by the OPs on the ground of non-submission of documents lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that on receipt of the intimation of loss, OPs appointed an independent IRDA licensed surveyor, who has submitted his report on 19.07.2021 and assessed the loss to the tune of Rs.2,88,895/-. The complainant has not submitted Monthly Declaration and violated the declaration clause. Thus, the claim of complainant has rightly been repudiated by the OPs and lastly prayed for dismissal of the complaint

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the complainant purchased marine cargo open policy from the OPs for a sum assured of Rs.2,00,00,000/-. It is also admitted that during subsistence of the insurance policy, the truck in which the consignment was going, met with an accident. It is also admitted that the complainant lodged his claim with the OPs and OPs deputed a surveyor who assessed the net loss of Rs.2,88,895/-.

 11.          The claim of the complainant has been repudiated by the OPs, vide repudiation letter Ex.R2 dated 21.09.2021 on the ground, which is reproduced as under:-

“OP has not received the Monthly Declaration under the policy as per policy declarations clause as quoted below:-

“Declaration:- Domestic: monthly declaration of each transit to be provided by 15^th day of subsequent month. In absence of timely declarations, claims under the policy may be prejudiced.

Bound to Declare:

It is a condition of this contract that the Assured is bound to declare hereunder each and every shipment of sending or risk without exceptions failing within the terms and conditions of this contract whether arrived or not the company being bound to accept the same upto but not exceeding the limits specified herein. Any declaration made to the company which does not fall within the terms and conditions of the policy would be considered to be null and void ab initio and the company would in no way be held liable for any consequence arising out of the declaration…..”

                In view of the above facts, we are unable to proceed the claim further.”

13.           The claim of the complainant has been repudiated by the OPs on the above said ground. The complainant has alleged that he submitted the monthly declaration of each transit. The onus to prove his version was relied upon the complainant. To prove his version, complainant has placed on file copy of declaration including damaged consignment Ex.C2. When complainant has placed the same on file then as to why, he would not have supplied the same to the OPs. Moreover, it is also unbelievable an insured whose personal interest is involved for such huge amount why he will not supply the documents to the insurance company for getting his claim amount and will indulge himself in unwanted litigation. Hence, in view of the above, the plea taken by the OPs has no substance.

14.  

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

15.           Keeping in view, the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, we are of the considered view that act of the OPs while repudiating the claim of the complainant amounts to deficiency in service, which is proved otherwise genuine.

16.           Complainant has claimed Rs.4,53,168/- on account of the loss caused to consignment but in this regard he has not placed on file any survey report to prove the loss to the tune of Rs.4,53,168/-. On the other hand, surveyor of the OPs, vide his report Ex.R1 has assessed the loss to the tune of Rs.2,88,895/-, hence the surveyor report will prevail. In this regard we are relying upon the judgment 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, the OPs are liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental pain and agony, harassment and litigation expenses.

17.           In view of the above discussion, we partly allow the present complaint and direct the OPs to pay Rs.2,88,895/- (Rs. two lakhs eighty eight thousand eight hundred ninety five only) as the loss assessed by the surveyor of the OPs alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 21.09.2021 till its realization to  the complainant. We further direct the OPs to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 29.05.2024

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Suman Singh)

                          Member                     Member