Sri Shyamal Gupta, Member
Case of the Appellant, in short, is that it sent some materials through M/s On-Train Cargo Service on 26-05-2006. On being informed that some of the goods went missing in course of transportation, due communication was made to all concerned by the Appellant. Subsequently, the matter was investigated by the Respondent through a Surveyor, namely, Kothari Surveyors & Investigators Pvt. Ltd. Following due inspection, the said Surveyor recommended settlement of its claim. However, ignoring such recommendation, as the Respondent repudiated its claim, a complaint case was moved before the Ld. District Forum. The complaint case since been dismissed by the Forum below, aggrieved with such decision, this statutory Appeal was moved by the Appellant.
Heard both sides and perused the material on record thoroughly.
Documents on record reveal that, following the inspection carried out by M/s Kothari Surveyors & Investigators Pvt. Ltd., the Respondent deputed another Surveyor, viz., M/s Fairway Services. However, since the Insurance Company has got no legal authority to engage second Surveyor under the law, I refuse to take any cognizance of the findings of this Surveyor.
It is the case of the Appellant that, out of the five cartons being sent by it, one carton containing 25 nos. mobile sets went missing midway. It appears from the survey report that, following due inspection, the Surveyor, M/s Kothari Surveyors & Investigators Pvt. Ltd. was fully confident about the genuineness of the claim of the Appellant. Still the Respondent repudiated the said claim primarily on the ground of non-supply of short-certificate from the concerned Railway authority.
On due consideration of the facts and circumstances of the case, it appeared to me that such objections on the part of the Respondent was totally uncalled for.
Fact of the matter remains that the carrier, M/s On-Train Cargo Service issued necessary short certificate and the same was handed over to the Surveyor concerned. Since the Appellant did not book the goods directly with the Railways, the Appellant had no authority to seek the said certificate from the said Authority.
Further, the matter, as it appears, had also been reported to the police. In case there was indeed any foul play, the same would definitely come out during investigation by now. The Respondent has, however, not placed before me any adverse police investigation report.
Above all, while an independent Surveyor categorically mentioned in his report that there was no connivance between the Insured (Appellant) and the Carrier, the Respondent ought to provide definite proof to prove the Surveyor wrong. Merely on the basis of suspicion, it was highly improper to repudiate the instant claim.
The Respondent tried to defend its decision contending inter alia that under the subject policy, goods sent through road were only covered. However, on scrutiny of the policy document, I find, it was clearly mentioned therein that insurance coverage was applicable for Inland Transit (Rail or Road) – all risks. Policy conditions clearly demolish Respondent’s defence in this regard.
Ld. Advocate for the Respondent tried hard to cast suspicion about Appellant’s claim drawing my attention to the date mentioned in the intimation letter of the Appellant. In this regard, it was articulated by the Ld. Advocate for the Appellant that it was purely a typographical error. Instead of writing the date of intimation letter to the Respondent as 02-06-2006, inadvertently, it was mentioned as 01-06-2006. I believe, simply on account of an unintentional mistake in writing the date, the entire claim cannot be dubbed as dubious.
Ld. Advocate for the Respondent further disputed the subject claim on the ground that the representative of the consignee at Patna himself refused to confirm the facts of short supply. In this regard, on a reference to the survey report of M/s Kothari Surveyors & Investigators Pvt. Ltd., it was found that one Mr. Abhisek, described as the Accountant of the consignee firm, viz., Digital Equipments, refused to confirm the stated facts in writing on the ground that he had no authority to do so. While M/s Digital Equipments, Patna by sending an official letter to the Appellant confirmed the peril, in my considered opinion, there was no reason to suspect the genuineness of the alleged incident.
It is very much evident from the above discussion that the instant claim was repudiated with a mala fide intention by the Respondent. I, therefore, deem it appropriate to set aside the impugned order.
Hence,
O R D E R E D
The Appeal stands allowed on contest against the Respondent with a cost of Rs. 10,000/-. The Respondent shall pay, within 40 days from this day, the sum of Rs. 5,10,573/- to the Appellant along with simple interest @ 9% p.a. over the sum of Rs. 5,10,573/- from the date of filing of the complaint case till full and final payment is made. The impugned order is hereby set aside.
The LCR be returned to the Forum below along with a copy of this order forthwith.
