In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 53 / 2006 1) M/s. R. K. Trading Company, 1, Sardar Snakar Road, Kolkata-700026. ---------- Complainant ---Verses--- 1) The Divisional Manager, National Insurance Co. Ltd., 1, Shakespeare Sarani, Kolkata-71. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattachatya, Member. Order No. 2 7 Dated 1 1 / 0 1 / 2 0 1 0 . Complainant R.K. Trading Co. represented by its authorized legal representative through Rajib Shah by filing a petition of complaint u/s 12 of the C.P. Act, 1986 on 28.2.06 has prayed for issuing an order upon the o.p. Divisional Manager, National Insurance Co. Ltd. to pay as per Marine Survey Report dt.17.1.02 by the surveyor Rs.1,67,040/- and to pass any other necessary order as the forum may deem fit and proper. Main grievance of the complainant is that 180 quintals musur chhanti dal were supplied to the complainant by the consignor M/s. Jairam Das Chandra Prakash, Industrial Area from Kanpur under the coverage of the insurance under the o.p. vide insurance policy no.101800/21/2000-01/440230 and the goods were carried by truck under Raipur-Kolkata Road Carrier Transport Agency, Kanpur and the truck proceeded from Kanpur on 26.07.2001 under consignment note no.6122. The truck arrived at the godown of the complainant at 21, Chanditala Main Road, Kolkata and when it was unloaded it was found that the goods were badly wet due to absorption of rain water during the transport from Kanpur to Kolkata and accordingly, the complainant informed the loss and damage of the insured goods namely 18o quintals musur chhanti dal to the o.p. O.p. appointed surveyor Mr. T.K. Mukherjee and Associates and from its report dt.17.1.02 it was found that 168 bags were found in sound condition and 192 bags were found in badly soaked and foul smell was coming from these bags and more than half of the consigned bags were directly contacted with rain water resulting huge loss and further proper assessment it was found that the real damage was to the extent of Rs.1,67,040/- plus proportionate transportation charge. Complainant made several attempts for settlement and he wrote several letters to that effect but all his attempts failed and the o.p. in his letter dt.1.10.03 tried to avoid proper settlement of the claim of the complainant. The complainant categorically stated that when the policy was executed between them there is an agreement between the parties and no agreement which is enforceable according to law can be terminated by either of the party without giving any scope to the other and the infringement of such right of the party is nothing but a bureaucratic decision and being disgusted with the indifferent attitude of the o.p. in settling to dispute the o.p. had taken resort to section 420 of the I.P.C. for the deceitful intention of the complainant to cheat him and thereafter the o.p. has filed this case with the aforesaid prayer. Decision with reasons : Initially when the case was filed on 28.2.06 there is no mention of monetary claim of the complainant but there was only prayer for issuing direction upon the o.p. to settle claim of the complainant in pursuance of his Marine Policy number as referred to above. But subsequently by filing an amendment petition on 22.2.08 the complainant had inserted his monetary claim of Rs.1,67,040/- as stated above payable by the o.p. on the basis of the Marine Survey Report. It appears on perusal of the record that even in spite of receipt of the notice the o.p. did not appear and as such, the case is heard ex parte. We have perused the financial claim of the complainant, annex-1, in terms of the consignment note no.6122 dt.26.07.01 stating the assessed loss amounts to Rs.1,67,040/- as per survey report. The report also includes some other charges namely survey fees, proportionate freight etc. We have also perused the Marine Survey Report in detail. It appears from the survey report that water was absorbed in the goods namely the musur chhanti dal during the journey from Kanpur to Kolkata. Relevant portion of the note namely Remark is as follows : “After segregation 168 bags were found in sound condition and remains 192 bags were found in badly water soaked and foul smell was also coming out from all those bags. Considering the extent of damages we are of opinion that waterproof canvas which was usually wrapped over the cargo was displaced during the enroute due to heavy wind accompanies by rain water. In consequent there upon almost half of the consignment from the top level was directly contacted with the rain water resulting such huge damage of cause photographs could not depict the real extent of damages”. And the amount of net loss stands to the figure of Rs.1,67,040/-. This is the report of the surveyor, Sri T.K. Mukherjee. We have also perused the consignment of the goods of Raipur-Kolkata Road Career. We have also perused the Xerox copy of the insurance of national Insurance Co. Ltd. in the name of R.K. Trading Co. and we also find subject matter of the insured the “musur chhanti dal”. Annex-B is for settlement of claim offered by the complainant to the Divisional Manager, National Insurance Co. Ltd. dt.11.9.03 wherein the complainant has expressed his willingness for settlement stating therein that his offer has been lying unsettle for more than one and a half years. He has also stated about real picture taken by photograph, annex-III. It appears from annex-IV dt.16.10.03 wherein the complainant has expressed his extreme anguish because the non response of the against the grievance of the complainant by the o.p. alleging that it is a violation of natural justice and thereby complainant had also expressed that unless the o.p. takes proper steps for his redress he will take appropriate action against them. We have also perused his letter, annex-V, dt.13.11.03 wherein he has also expressed his anguish and dissatisfaction that even in spite of ventilating his grievance the o.p. has not properly responded. But it appears from annex-VI, a letter given by the o.p. to the complainant wherein the o.p. has expressed their desire for verification of relevant records such as purchase, sale, stock etc. It appears from annex-VII addressed to Saradindu Patranabis, Surveyor and Loss Assessor by the complainant and the relevant portion of the contents of the letter is that “In this context please note that Divisional manager instead of taking clarification from the surveyor, he directly issued a letter cited that our claim is not payable since although we preferred claim against musur chhanti dal, but photographs resembles moog dal”. On perusal of the record and contents of surveyor report and other annexures it appears to us that it is nothing but a lame excuse prepared to hood wink the complainant. We have also mentioned that the o.p. demanded purchase, sale , stock records from the complainant against the consignment of musur chhanti dal in question. So we do not find any justification why they have re-agitated this point in their letter addressed to the complainant dt.16.2.04 vide annex-VIII. The repudiation of claim of the complainant by the o.p. has further been reflected by their letter dt.9.3.04 addressed to Saradindu Patranabis, annex-IX. We have also mentioned that the complainant including the survey report and other related documents had sent to the o.p. but showing a lame excuse they have further delayed the claim of the complainant and in this respect, annex-XI is aptly suitable. We have also perused the affidavit of examination-in-chief of the complainant sworn in by one Rajib Shah the Constituted Attorney of the complainant’s company and his evidence and the averments are not only in consonance with the each other but also corroborative in nature with the pleadings. We have also perused the BNA submitted by complainant on 10.9.09 wherein he has simply stated that on the basis of his claim made out in his petition of complaint and other documents he is entitled to get the relief as prayed for. Having due regard to the circumstances facts of the case coupled with the documents and evidence corroborative in nature there is nothing to disbelieve the unchallenged testimony of the complainant and accordingly, we find merit in the case of the complainant. Hence, Ordered, that the petition of complaint is allowed ex parte. The o.p. is directed to pay Rs.1,67,040/- (Rupees one lakh sixty seven thousand forty) only to the complainant in terms of the Marine Survey Report being no.TKM/NIC/CAL/55/02/84/2002 dt.17.01.02. The complainant is also allowed compensation of Rs.25,000/- (Rupees twenty five thousand) only and litigation cost of Rs.5000/- (Rupees five thousand) only. The o.p. is strongly directed to make payment of grand total of Rs.1,97,040/-m (Rupees one lakh ninety seven thousand forty) only positively within thirty days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till full realization. Fees paid are correct. Supply certified copy of this order to the parties on payment of prescribed fees. ____Sd-_____ ______Sd-______ MEMBER PRESIDENT | 
