Before the District Consumer Forum
Present Sri K.V.H.Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B.,
Thursday the 16th day of June 2005
C.D.NO. 125/2003
G.RamaKrishna,
S/o. Venkata Subbaiah,
Gelivi Oil Refinery,
Noone Palli, Nandyal. . . . Complainant represented by his
Counsel Sri D. Sreenivasulu.
-Vs-
1. The Branch Manager,
M/s United India Insurance Co., ltd,
Nandyal, Kurnool Dist.
2. The Divisional Manager,
M/s United India Insurance Co. Ltd.,
Railway Station Road,
Kurnool. . . . Opposite party No.2 represented by
his Counsel Sri C.M.K. Ranjani
O R D E R
(As per Smt C.Preethi, Hon’ble Lady Member)
1. This CD complaint of the complainant is field under section12 of C.P. Act, 1986, seeking a direction on the opposite parties to pay claim amount of Rs. 2,62,044/- with 12 % interest per annum from the date of claim till realization, Rs. 25,000/- as compensation for mental agony, Rs. 5,000/- as costs and any such other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainant’s case is that the complainant is registered firm by name Gelvi Oil Refinery, doing business in extraction of oil and by selling the same since 15 years, for transporting the said oil to various places, the complainant has taken open marine continuous policy every year for past several years from opposite party No.1. Like wise the complainant has taken an open marine continuous policy bearing NO. 051102/21/16/2612713/98 from opposite party No.1 for covering the oil consignments was fixed to Rs. 30,00,000/- by paying premium of Rs. 4,175/- and opposite party No.1 issued policy on 30.3.1999. From 1.4.1999 the complainant informed the value of consignments as and when dispatched and basing on the value the opposite party No.1 deducted the said value from the balance sum assured and when ever premium was short the opposite party No.1 used to collect the premium from the complainant.
3. On 15.3.2000 the complainant dispatched consignment No. 226/2000 through lorry bearing No. KA 25-8980 duly informing opposite party No.1, but the said lorry met with accident near Allagadda and oil worth Rs. 2,62,044/- was lost. The complainant immediately informed about the accident to opposite party No.1, who in turn appointed a surveyor by name E. Mukund to assess the loss sustained in the said accident. Who inturn after completion of all formalities and submitted his report to opposite party No.1 for settlement. To the dismay of the complainant the opposite parties did not settle the claim of the complainant, but requested to continue to sent the consignments under intimation to them and were duly accepted by opposite party covering the contracted period from 1.4.1999 to 31.3.2000.
4. The opposite parties after a lapse of 21/2 years repudiated the claim of the complainant on 16.9.2002 sating that there is no sufficient balance to the credit of the policy of the complainant. But the complainant submits that the policy being an open marine continuous policy was substing from 1.4.1999 to 31.3.2000 and at no time it was terminated for lack of balance and the declarations for all the consignments during the year were accepted with out any remarks therefore the opposite parties are estopped from raising the said objection. Hence, the above said lapsive conduct of opposite parties in not settling the claim of the complainant is held deficiency of service to the complainant.
5. The complainant in support of his case relied on the following documents Viz (1) Partnership deed dt 5.8.2002 attested by Notary (2) General Power of Attorney (3) Policy No. 051102/21/16/26/12713/98 of the complainants firm issued by United India Insurance Co Ltd (4) Letter dt 29.4.2004 issued by State Bank of India, Nandyal as to encashment of cheque by opposite parties (5) Details dt 20.6.2004 of premium paid for policy from 1.4.1999 to 31.3.2000 by the complainant and (6) Repudiation letter dt 16,09,2002 addressed by opposite party to the complainant, besides to the sworn affidavit of complainant in reiteration of his complaint avernments and caused interrogatories to opposite party No.2 and the above documents are marked as Ex A.1 to A.6 for its appreciation in this case.
6. In pursuance to the notice of this Forum as to this case of the complainant the opposite party No.2 appeared through their standing counsel and contested the case by filling written version and opposite party No.1 remained absent through out the case proceedings.
7. The written version of opposite party No.2 admits that the complainant has obtained a Marine Open Policy bearing No. 051102/21/16/26/12713/98 commencing from 1.4.1999 to 31.3.2000 by paying premium and subsequently the sum was enhanced by paying necessary premium from time to time for covering oil consignments. The sum insured by the complainant for covering risks was exhausted by 12.3.2000 itself and the accident occurred on 15.3.2000 for the particular consignment No. 226/2000, on the date of the accident there was no sum insured available with the complainant to cover the risk of the consignment under the policy. It further submits that the opposite parties cannot cover the risk of any consignments when there is any balance of sum assured as per the terms and condition of the policy. It further says that it is for the complainant to verify the amounts and the balance sum insured from time to time and has to pay premium regularly to cover the risks and all the risks covers subject to payment of premium only. Hence, there is no balance sum insured for covering the said risks of consignments No.s 223 to 228 for a period from 12.3.2000 to 15.3.2000 as there was no premium paid. Hence the opposite parties are not liable to pay any amount to the complainant and seeks for the dismissal of complaint with costs.
8. In substantiation of its case the opposite parties relied on the following documents Viz (1) Marine Surveyor report dt 30.6.2001 of E.Mukund and (2) Statement with regard to the Declarations with effect from 17.3.2000 to 31.3.2000, besides to the sworn affidavit of the opposite party No.1 in reiteration of his written version as defence and the above documents are marked as Ex B.1 and B.2 for its appreciation in this case and suitablely replied to the interrogatories caused by the complainant.
9. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite parties:-
10. The case of the complainant is that the complainant has dispatched one consignment on 15.3.2000 by a lorry bearing No. KA258980 duly informing the opposite party No.1 vide declaration No. 226 valued at Rs. 2,62,044/-, was lost as the said lorry met with accident, on the claim preferred, it was repudiated by opposite parties on the ground that there is no balance of sum insured to cover the consignment risk under the declaration No. 226 dt 15.3.2000. But the complainant submits that he paid Rs. 2,784/- for extension of limit of policy cover as per past practice on 18.3.2000 and hence the said accident is covered.
11. The two points on the subject of controversy between the parties is that, one as per terms of the policy what was the status of the policy cover on the day of loss of consignment vide declaration No. 226 and secondly, whether the complainant had a valid cover under the additional limits sought by him .
12. The first point for consideration is that, there can hardly be any dispute that as per declarations of the dispatches made by the complainant as mentioned in Ex B.1, as on 11.3.2000 the complainant had an unutilized limit of Rs. 1,11,223/- only which stood exhausted after declaration NO.222. After this dispatch any subsequent dispatches including the oil dispatched through declaration No. 226 i.e the dispatch/ consignment in question was clearly beyond the insurance cover. Hence, not covered by the said Insurance policy issued by opposite party No.1. With regard to the second point, it is crystal clear that admittedly, oil sent vide declaration No. 226 was sent on 15.3.2000 and met with accident, for which a cheque was issued on 18.3.2000, i.e after the date of the accident, admittedly the accident occurred on 15.3.2000, as per the Insurance Act, policy is valid from the date receipt of cheque, which is admittedly received after 18.3.2000. The complainant failed to show any previous practice by way of evidence that the opposite parties has accepted delayed premium as in the present case circumstances and paid assured amount by way of extending financial limits of the existing/ usual policy by further extending assured amount, especially when the said facts has been denied by opposite parties side. This aspect should have been proved by the complainant with some evidence this has not been done, in the absence of which the plea of the complainant cannot be accepted.
13. In support of its contentions the opposite parties relied on the following Judgment of National Commission between Durga Rice and General mills Vs National Insurance, reported in 2004 (8) CLD Pg 384 it was held that when the prescribed limit under the original policy stood exhausted on 3.2.1996 on account of earlier dispatch, dispatch in question was beyond insurance cover, hence was not covered by the insurance policy issued by respondent Company and there was no proof placed by the complainant to show that there was any oral discussion of extension of financial limits of existing policy and further it was held as per section 64VB of 1938 Act, policy is valid from the date of receipt of cheque and the cheque dt 3.2.1996 having been handed over to respondent on 5.2.1996, which could not cover the loss which occurred on 4.2.1996. In the present case also the existing limit was stood exhausted on 12.3.2000 and a cheque dt 18.3.2000 was handed over to the opposite parties for extending financial limits and same was covered from 20.3.2000 and there is no material placed by the complainant to support its contention that the premium paid under cheque dt 18.3.2000 covers the previous non payment period from 12.3.2000 to 18.3.2000 also. In the light of the above position of law the decisions reported by the complainant sides in 2003 CTJ pg 501 (CP) NCDRCC, 1995(1) CPR Pg 693, 1997 (1) CPR pg 113, 1996(2) CPJ pg 56 (NC), 1994 (2) CPJ pg 192, 1998 (1) CPJ pg 79 and 1995 (3) CPJ pg 378 has little relevancy for appreciation in this case.
14. Hence, in the circumstances discussed above and following the decision as laid down by National Commission in Durga Rice and General mills Vs National Insurance (supra) as there is no deficiency of service on part of the opposite parties in the matter of repudiation of the claim of the complainant as the declaration No. 226 which met with accident doesn’t cover the policy issued by opposite parties as the policy stood exhausted before the said accident and the complainant sent cheque dt 18.3.2000 for extending the financial limit of the existing policy which is issued after the said accident. Hence, the opposite parties cannot be made liable for any deficiency of service in repudiating the claim of the complainant. Therefore the complainant is not remaining entitled to the reliefs sought.
15. In the result the complaint is dismissed for want of merit and force.
Dictated to the Stenographer, Typed to the dictation corrected by us pronounced in the open court this the 16th day of June, 2005.
Sd/-
PRESIDENT
Sd/- Sd/-
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant For the opposite parties
-Nil- -Nil-
List of Exhibits Marked
For the complainant For the opposite parties
Ex A.1 Partnership deed dt 5.8.02 Ex B.1 Marine surveyor report
attested by notary. Dt 30.6.2001 of E. Mukund.
Ex A.2 General power of attorney Ex B.2 Statement with regard
Ex A.3 Policy No. 051102/21/16/26/- to the declarations with effect
12713/98 of the complainants firm from 17.3.2000 to 31.3.2000.
issued by United India Insurance Co.,
Ex A.4 Letter dt 29.4.2004 issued by
State Bank of India, Nandyal as to
Encashment of cheque by opposite party’s.
Ex A.5 Default dt 20.6.2004 of premium
Paid for policy from 1.4.1999 to 31.3.2000
By the complainant.
Ex A.6 Repudation letter dt 16.9.2002
Addressed by opposite party to the
Complainant.
Sd/-
PRESIDENT
Sd/- Sd/-
MEMBER MEMBER
