Order-22.
Date-01/08/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant in short, is that the complainant runs a business of Courier Services of different customers of their letters, goods, parcels etc. as per their requirements in exchange of some monetary interest. OP1 is a public limited company and is doing general insurance business all over India. OP2 is an operating as well as policy issuing office controlled and guided by OP1. Proforma OP3 is a company and incorporated under the Indian Companies Act, 1956. The Proforma OP4 is a highly responsible person holding chair as Senior Jt. Commission in Information System Division under the Department of Commercial Taxes, Govt. of West Bengal. Proforma OP5 is a company incorporated under Indian Companies Act, 1956 and it is also an undertaking company of Govt. of West Bengal. It is the case of the complainant that proforma OP3 being a company used to send their letters, envelops, goods and parcels from Kolkata to all over India regularly and for that reason they made an agreement with the complainant. It is also stated by the complainant that the Government of India adopted a policy to make the Government Administration by E-Governance Plan throughout the nation and keeping this view Govt. of West Bengal, Commercial Taxes Information System Division (ISD) required some electronic components for the purpose of preparation of the disaster recovery sight at New Delhi. ISD required some electronic components and for that reason they requested WEBEL Technology Ltd. (OP5) to supply those components as early as possible for the purpose of deployment at the National Data Centre, New Delhi. OP3 WIPRO Ltd. got the purchase order from Proforma OP5 and was required to transmit the electronic equipments to National Data Centre, Shastri Park, New Delhi, as per the direction of ISD. Proforma OP3 requested the complainant vide their letter dated 09-04-2014 to cover the materials with an insurance policy whose approximate value is near about 90 lakhs on behalf of proforma OP3. The complainant thereafter, took a Marine Cargo Specific Voyage Policy from the OP1 on payment of premium of Rs.7,585/- covering All risk. The complainant has further stated that Consignor’s Electronic Equipments were contained in 22 card board cartoons duly packed in two gunny bags properly and the complainant handed over the said materials to M/S. Asmi Express Pvt. Ltd. with an assurance that they would deliver the materials to Delhi Airport and the complainant also issued Airway bill. Complainant after reaching the materials at Delhi Airport on 10-04-2014 made arrangements to deliver the consignment at National Data Centre, Sashtri Park, New Delhi by road on 12-04-2014. The bags were opened at final destination and one cardboard cartoon found damaged. Wipro Ltd. requested to lodge a claim before the insurer and the complainant on 14-05-2014 wrote a letter to the insurer for appointment of the surveyor. After long persuasion the OPs appointed a surveyor namely Adarsh Associates. The surveyor filed survey report assessing an amount of Rs.12,78,477/-. The complainant, however, paid the bill of the surveyor of Rs.33,228/-. The complainant, thereafter, requested the OP to release the amount of Rs.12,78,477/- on behalf of the WIPRO Ltd. and Rs.33,228/- as survey fees to the complainant. But the OP repudiated the claim. Hence, this case.
OP1 contested the case by filing written version contending, inter alia, that the instant case is bad in law and is not maintainable as framed. It is stated that the complainant has not come in clean hand before the Forum and has suppressed the material facts. OP1 states that the complainant is running business for commercial purpose and is not a consumer. It is alleged that in view of the captioned policy arranged by insured M/s. City Courier Service, Courier Agency responsible for transportation of involved consignment from Kolkata to Delhi and their giving clear discharge to M/s. Asmi Pvt. Ltd. express i.e. agency engaged for booing air transport/carrying airlines renders no recovery right to the complainant. Moreover, surveyors made comments on underwriting that on perusal of the Proposal Form submitted by insured to arrange the captioned policy the name of the insured was mentioned as the “Directorate of Commercial Tax, Sector – V, Salt Lake, West Bengal” with final destination as NDC, New Delhi. However, the policy was issued in favour of M/s. City Service, Kolkata i.e. the courier of the involved consignment. Moreover, the OP sent letters on 07-04-2015 and 29-05-2015 to the complainant for producing some documents in favour of pursuing the claim but they have not received the same.
It is alleged that the complainant has not complied with papers and documents asked by the OP for processing the claim further. It is also alleged that after proper verification and investigation of all papers it is revealed that this cash memos submitted to them by the complainant subsequently is not raised in the complainant’s favour which certainly speaks for non-insurable interest of the complainant on the damaged article and keeping in view of the above it is decided by the competent authority that the complainant’s claim has been treated as ‘no claim’. it is alleged that the complainants alleged claim is not payable as per terms and conditions of the policy and hence, instant complaint petition is liable to be set aside in limini.
The answering OP submits that there is no deficiency of services on their part and the instant complaint should be dismissed.
Point for Decision
- Whether there was deficiency of services on the part of the replying OPs?
- Whether the replying OPs have rightly repudiated the claim of the complainant?
- Whether the complainant is entitled to get the relief/reliefs as prayed for?
Decision with Reasons
We have travelled over the documents filed from the side of the respective parties. We have seen the mutual agreement between Bankim Ch. Dey and Sujana Patel in respect of the premises at Basement, Shop No.42, ‘Shantiniketan’, 8, Camac Street, Kolkata – 700 017 whereat we find complainant is running registered office. We have also seen the trade license of KMC in the name of the complainant, agreement for logistic service in between Wipro Ltd. and the complainant company (City Courier Services), purchase order in the name of Wipro Ltd., the “Specific Voyage Insurance Policy”, receipt of Asmi Express, Survey and Assessment report along with annexure, bill of survey fee, communication with National Insurance Company, no claim letter, legal notice and other materials on record.
It has been argued from the side of the OPs 1 and 2 that during verification of the documents and investigations of all papers it is revealed that the bills and cash memos submitted by the complainant are not raised in favour of the complainant and the complainant has non-insurable interest on the damaged article and the claim, as such, merits repudiation and the claim of the complainant as a consequence has been treated as ‘No claim’.
It is also argued from the side of the OPs 1 and 2 that the insured M/s. City Courier Service, a courier agency responsible for transportation of consignment from Kolkata to Delhi deputed M/s. Asmi Pvt. Ltd. i.e. Agency engaged for booking air transport/carrying airlines and, as such, the complainant has no recovery right.
It appears that the complainant is doing courier business and entered into an agreement with M/s. Wipro Ltd. (OP3) for delivering some electronic goods to Delhi. M/s. Wipro Ltd. secured an order from Webel Technology Ltd. (OP5) for selling from electronic goods to them, to be consigned at Delhi. After securing the order, Wipro Ltd. issued a letter dated 09-04-2014 to the complainant for making an insurance against the goods to be consigned from Calcutta to Delhi. We also find that the complainant took a policy from OP1 National Insurance Company Ltd. being Specific Voyage Policy covering all risks and a consignment no. being 0482058 dated 10-04-2014 is also mentioned in the policy. The complainant also obtained a certificate from the Joint Commissioner of Information System Division in this regard for such consignment. The complainant, however, deputed the carrier M/s. Asmi Express Pvt. Ltd. and handed over the material to them for transportation by Air. The consignment material was electronic goods. The said materials was duly packed and covered by gunny bag and covered in the cartoon. The materials were transported at the destination and after a few days when the said company was about to install the materials they found that some electronic goods were damaged due to mishandling during transit. We find that the complainant was an agent acting on behalf of Wipro Ltd. and in fact, Wipro Ltd. is the beneficiary. From the policy itself it appears that a consignment no. which is stated by the complainant of the Cargo Careers M/s. Asmi Express Pvt. Ltd. being no.0482058 dated 10-04-2014 is also mentioned in that policy. We, however, find that in the policy the name of transporter . Not mentioned. Curiously enough National Insurance Company Ltd. issued the insurance policy without the name of the transporter being mentioned in the policy itself. We think that the OP1 cannot agitate over the matter when OP1 itself issued the policy without the mention of the same in the policy itself. We think that the matter was waived by acquiescence although the consignment no. being 0482058 dated 10-04-2014 is appearing in the policy by pen. We also find that as per instruction from M/s. Wipro Ltd. and as per the terms and conditions of the agreement the complainant lodged the claim before OP1. Insurable interest has been explained in the Marine Insurance Act, 1906. Section 5(2) of the Act states “in particular a person interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss or by damage thereto or by detention thereof or may incur liability in respect thereof”. It appears that the complainant paid the premium to the OP1 and in terms and condition they are taking all risks if there is any loss or damage. In fact, we find M/s. Wipro Ltd. is virtually the beneficiary. M/s. Asmi Express Pvt. Ltd. is also made a party in this case and it has not appeared or contested the case and we think OP1 can proceed against the said company in accordance with law. But we think that it has not been wise on the part of the OP1 to repudiate the claim of the complainant as ‘No Claim’. It has not also been stipulated in the policy itself that the complainant City Courier being the insured cannot depute any outsourcing agency for delivering the electronic goods on transit to Delhi. Moreover, OP1 issued the policy keeping the name of the transporter as not mentioned. We think that there was deficiency of service on the part of OP1 in repudiating the claim holding that the complainant had no insurable interest.
We find that the surveyor assessed the loss of claim for Rs.12,78,477/- after deducting salvage. We find that there is loss of consignment goods to the extent of Rs.12,78,477/- along with a survey bill to the extent of Rs.33,228/- borne by the complainant. We think that OPs 1 and 2 made deficiency in service in non-settling the damaged insurance claim in proper perspective.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the and the same is allowed on contest against OPs1 and 2.
OPs1 and 2 are directed to pay an amount of Rs.12,78,477/- to the complainant or to the Wipro Ltd. being the beneficiary of the Specific Voyage Insurance Policy along with interest at the rate of8 percent p.a. from the date of this order within one month henceforth.
OPs1 and 2 are further directed to pay an amount of Rs.33,228/- being the survey fees in favour of the complainant apart from litigation cost of Rs.10,000/- within the said stipulated period.
In the event of non-compliance of the order the complainant will be at liberty to put the decree into execution and in that event OPs will be liable to pay penalty at the rate ofRs.3,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
In the facts and circumstances of the case we pass no order as to compensation or against the proforma OPs.
