Haryana

Karnal

CC/200/2020

Galaxy Foods - Complainant(s)

Versus

The National Insurance Company Limited - Opp.Party(s)

Vishal Goel

29 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 200 of 2020

                                                        Date of instt.08.06.2020

                                                        Date of Decision:29.07.2024

 

Galaxy Foods through its Partner Shri Jatin Bansal son of Shri Ramesh Bansal resident of V.P.O. Kutail, District Karnal.

 

                                                                        …….Complainant.                                             Versus

 

1. The National Insurance Co. Ltd. Registered office: 3, Middleton Street, Post Box no.9229, Kolkata-700071.
2. The National Insurance Co. Ltd. Dhanwant Building, G.T. Road, opposite Bus Stand, Karnal, through its Divisional Manager.
3. Jyoti Transport Company, Gohana Road, village Mehrana, Panipat, through its Manager.

                                                                 …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

      Shri Vineet Kaushik…….Member

      Ms. Sarvjeet Kaur…..Member

 

 Argued by: Shri Vishal Goyal, counsel for the complainant.

                    Shri Sanjeev Vohra, counsel for the OPs no.1 and 2.

                    OP no.3 exparte, vide order dated 14.09.2022.

               

                     (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 deals in De-Oiled Rice Bran etc. and the oil extracted is sold to various parts in India. To cover the risk in transit, policy in sum of Rs.5,00,00,000/- (Rs.five crore) was obtained from the OP no.1 on 23.07.2018, vide copy cum bill no.532773 against payment of premium of Rs.16101/- and policy no.420501/21/16/4400000048 was issued in favour of the complainant. The aforesaid policy is a valued policy and specified the agreed value of the subject matter insured and the interest/risk covered on the consignment containing De-oiled Rice bran transit by land from Kutail to anywhere in India. On 12.12.2016, De-oiled Rice Bran (605 bags) 358.90 quintals was sent through Tanker bearing registration no.RJ-52GA-4449 amounting to Rs.3,55,311/- in value and the De-oiled Rice Bran was sent to Shree Maha Kali Corporation, near Ramji Mandir, Himmat Nagar, Gujrat. The tanker hired was of Jyoti Transport Company, Gohana Road, village Mehrana, Panipat and the oil was consigned vide G.R. no.5684 dated 12.12.2016 from the factory of the complainant on payment of Rs.46190/-. In the G.R. the next weight of the Rice bran oil was 358.90 quintals. The complainant expressly declared to OPs the value and description of the things to be transported. There is no willful misconduct of the complainant/assured, which may cause any attribution to the complainant. Previously also, complainant had been sending consignments of more weight than the present one and OPs never object the same. The liability of OP no.2 is co-extensive and joint as well as several, with that of OP no.1. The aforesaid tanker, containing the De-oiled Rice bran which was covered under the insurance; met with an accident near Udaipur. There were 605 bags in the tanker and due to accident 335 bags were completed destroyed, whereas 270 bags were loaded in another vehicle no.RJ-52GA-2179 against bill 485 dated 18.12.2016 but these 270 bags were also rejected by the party due to the reason that same is not consumable. The party who received the De-oiled Rice Bran got tested the same from Analysis and Certification Laboratory, Jodhpur and the same was rejected by the lab with the remarks “The Sample does not fit for consumption.” The intimation in this regard was also sent to OP no.2. Due to the said accident the De-oiled Rice Bran had fallen into Nala and same becomes un-consumable. The complainant also sent lab report in this regard to the OPs and therefore there was total loss of the complainant. Intimation of total loss was given by the complainant to the OPs. On receipt of intimation, OP no.1 demanded the claim form duly filled which was sent with all the due formalities but the claim has not been given to the complainant. The complainant had written a letter dated 07.02.2017 to OP no.2 regarding the total loss of the material for the reason not consumable but nothing was done by the OPs. Then OPs sent a letter dated 16.08.2018 to the complainant, wherein it is alleged that surveyor has assessed the loss of Rs.1,15,238/- and it was also intimated to the complainant to complete some formalities i.e. FIR registered regarding the accident and consent for full and final settle of the claim for Rs.86429/-. The OPs against claim of Rs.3,55,311/- offered his meager amount of Rs.86429/-. It was duly intimated to the OPs that no FIR has been registered and the complainant is not ready to settle the claim for an amount of Rs.86429/-. The complainant sent a letter dated 18.09.2018 to the OP no.2 with the request to provide original survey report as the same was not provided by the OPs to the complainant. The OP no.2 in a hasty manner on 20.09.2018 sent a letter to the complainant that complainant had not sent any reply and the OPs have presumed that complainant is not interesting in settlement of claim and claim is closed as no claim. Even after receipt of letters from the complainant neither the OPs have paid the claim amount nor repudiated the claim of the complainant. However, a letter dated 07.02.2017 was issued to OP no.1 which was duly received by him. After the receipt of letter the OPs appointed a surveyor and the surveyor in his report dated 27.06.2017 held that the analysis and certification laboratory Jodhpur rejected the De-oiled Rice Bran and remarked that this sample does not fit for consumption and considered the salvage value for 17830 kilo i.e. 270 bags as 50% and De-oiled Rice Bran i.e.18860 kilo badly affected due to dust of soil and was not fit for consumption and deducted the salvage value for 18060 De-oiled Rice Bran i.e.335 bags as 35% and assessed the net payable amount to the complainant as 2,03,496/- but again nothing was done.  Thereafter, complainant requested the OPs several times for settlement of the claim but OPs did not pay any heed to the request of complainant and lingered the matter on one pretext or the other. In this way there is a deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs no.1 and 2 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that complainant had purchased a marine policy from the OPs from the period from 26.09.2016 to 25.09.2017 by paying premium of Rs.16001/- subject to policy terms and conditions. Complainant had loaded 605 bags of De-oiled rice bran in truck no.RJ54-GA-4449 from Kutail to Shree Mahakali Corporation Himmat Nagar (Gujarat). On 15.12.2016, the said truck met with an accident near Kharpina on Udaipur-Ahmadabad Road, near Udaipur (Rajasthan). On getting intimation of loss Mr. Atul Kumar Didwania surveyor and loss assessor of Udaipur was deputed by the office of National Insurance Co. Ltd. Udaipur for surveyor and loss assessment. Surveyor during inspection found that De-oiled rice bran replaced in 270 bags (17830kg) and loaded in another truck no.RJ52UA-2179 and same was dispatched to the destination and remaining 335 bags (18060 kg) was badly affected by dust of soil and was not consumable. Surveyor through his report dated 26.07.2017 had assessed the loss to total of Rs.2,03,496/- subject to terms and conditions of policy. Since sample of 270 bags has been sent to the Lab on 06.02.2017 i.e. with ordinate delay of approximately 2 months. Since delay is otherwise on exclusion clause under marine policy and this fact duly conveyed to surveyor who again submitted addendum survey report and declined the claim of 270 bags being violated of policy condition and accordingly assessed the loss to the tune of Rs.1,15,238/- through addendum survey report dated 26.07.2018. Insured was duly informed through letter dated 16.08.2018 for complete information such as supply legible copy of FIR registered with accident occur to truck no.RJ54-GA-4449 and give consent of full and final settlement of Rs.86429/- on non-standard basis after deduction of 25% as recovery rights are prejudiced. Keeping in view the terms and conditions of the policy, but insured failed to supply the same. Reminder was also sent to the insured on 11.09.2018. Since insured failed to submit consent and documents, so claim of the complainant is closed as No Claim and duly conveyed the same to the insured through letter dated 20.09.2018. The claim of the complainant was rightly made as No Claim. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.3 did not appear despite service and opted to be proceeded against exparte, vide order dated 14.09.2022 by suffering separate statement.

4.             Parties then led their respective evidence.

5.             Learned counsel for complainant has tendered into evidence affidavit of Jatin Bansal Partner of Galaxy Foods Ex.CW1/A, copy of insurance policy Ex.C1, copy of invoice Ex.C2, copy of builty Ex.C3, copy of letters and replies dated 07.02.2017, 16.08.2018, 11.09.2018, 18.09.2018, 20.09.2018 Ex.C4 to Ex.C8, copy of surveyor report dated 27.06.2017 Ex.C9 and closed the evidence on 01.12.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Reena Basak, AAO Ex.RW1/A, copy of letter dated 16.07.2018 Ex.R1, copy of reminders dates 02.08.2018 Ex.R2, copies of letters dated 11.09.2018, 20.09.2018, 24.09.2018 Ex.R3 to Ex.R6, copy of survey report Ex.R7, copy of insurance policy Ex.R8, copy of laboratory report Ex.R9, copy of letter to surveyor Ex.R10 and closed the evidence on 11.09.2023 by suffering separate statement.

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

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased a Marin Cargo Open Policy. On 12.12.2016, De-oiled Rice Bran (605 bags) 358.90 quintals and the value of the said consignment was Rs.3,55,311/- and said consignment was sent to Gujrat in vehicle no.RJ-52GA-4449. On 15.12.2016, the said vehicle met with an accident near Udaipur. In the said the said accident the De-oiled Rice Bran had fallen into Nala and same becomes un-consumable and  complainant has suffered total loss. Intimation was given to the OPs. Complainant lodged a claim with the OPs and submitted all the required documents for settlement of the claim. Complainant requested the OPs so many times for releasing of the claim amount but OPs did not pay any heed to the request of complainant and repudiated the claim of the complainant on the false and frivolous ground and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel of OPs, while reiterating the contents of written version, has vehemently argued that on receipt of intimation regarding loss of complainant, Mr. Atul Kumar Didwania Surveyor and Loss Assessor was appointed to assess the loss, who assessed the loss of Rs.2,03,496/- subject to terms and conditions of policy. Sample of 270 bags were sent to laboratory on 06.02.2017 i.e. within inordinate delay approximate two months. The surveyor of the OPs has declined the claim 270 bags being violation of the policy’s conditions and accordingly assessed the loss to the tune of Rs.1,15,238/-. Complainant was asked to give consent of full and final settlement of Rs.86429/- but complainant failed to submit the consent letter and OPs have rightly been repudiated the claim and lastly prayed for dismissal of the complaint.

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

11.           Admittedly, the complainant purchased a Marine Cargo Open Policy from the OPs no.1 and 2. It is also admitted that the consignment of complainant was damaged during transit and during the subsistence of the insurance policy. It is also admitted that the said consignment was insured by the complainant’s firm with the OPs.

12.           The claim of the complainant has been repudiated by the OPs, vide repudiation letter Ex.C8/Ex.R5 dated 20.09.2018 on the ground, which are reproduced as under:-

“This is reference to letters dated 16.07.2018, 16.08.2018 and 11.09.2018 regarding the submission of documents.

But till date we have not received any reply from you. So, it is presumed that you are not interested in settlement of claim and your claim is closed as No Claim.”

13.           Vide final reminder Ex.R4 dated 11.09.2018, OPs sought the following documents, which are reproduced as under:-

1.     Legible copy of FIR registered in context with the accident occurred to truck no.RJ-52-GA-4449.

2.     Your consent for full and final settlement of claim for Rs.86429/- on Non-Standard basis after deduction of 25% as recovery right is prejudiced.

 

 14.          The claim of the complainant has been repudiated by the OPs on the above mentioned grounds. The complainant has alreay supplied the copy of FIR, if the same was not legible, OPs could have obtained the same before the concerned Police Station. OPs have also demanded the consent of full and final settlement of claim for Rs.86429/-. When the complainant was not agreed with the said amount then question for submitting the consent for the said amount does not arise at all. Hence the claim of the complainant has been repudiated by the OPs without any justified reasons. Hence, in view of the above, the plea taken by the OPs has no substance

15.           Furthermore, now a days it has become a trend of insurance companies, they issue the policies by giving false assurances and when insured amount is claimed, they make such type of excuses. Thus, the denial of the claim of complainant is arbitrary and unjustified. In this regard, we place reliance on the judgment of Hon’ble Punjab and Haryana High Court titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“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”.

16.           Keeping in view the ratio of the law laid down in aforesaid judgments, 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.

17.           Surveyor of the OPs, during the inspection observed that 270 bags were not damaged and same were loaded in another truck and  dispatched to destination. Vide report Ex.C9 dated 27.06.2017, the surveyor has assessed the loss to the tune of Rs.2,03,496/-. The remaining 335 bags was badly affected dust of soil and was not consumable. The sample of 270 bags was sent to laboratory on 06.02.2017 and as per lab. report the said 270 bags were also not consumable. The surveyor of the OPs again assessed the loss to the tune of Rs.1,15,238/- vide his report Ex.R9 dated 26.07.2018. The surveyor of the OPs without considering the laboratory report has assessed the said amount only on the ground that sample has been sent to the laboratory in the delay of approximate two months. When it has been proved from the laboratory report that De-oiled Rice Bran of 270 bags were not consumable, the surveyor of the OPs should have considered the laboratory report. Hence, the loss assessed in the second survey report Ex.R9 dated 26.07.2018 is not justified.      

18.           The complainant has claimed Rs.3,55,311/- with regard to the damage of De-oiled rice Bran during transit. To prove his case the complainant has relied upon invoice Ex.C2 and survey report Ex.C9 dated 27.06.2017. Hence, the surveyor report will prevail.  In this regard we relied upon the case law titled  United India Insurance Co. Vs. Maya,  2(2008) CPJ page 182 (NC), 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, we are of the considered view that the OPs are liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

19.           In view of the above discussion, we partly allow the present complaint and direct the OPs to pay Rs.203496/- (Rs. two lakhs three thousand four hundred ninety six only) alongwith interest @ 9% per annum from the date of filing the complaint i.e. 08.06.2020 till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment 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:29.07.2024                                                                    

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

      

(Vineet Kaushik)                (Sarvjeet Kaur)    

                     Member                           Member