Haryana

Panchkula

CC/371/2019

M.G CONTRACTORS PVT.LTD. - Complainant(s)

Versus

THE NEW INDIA ASSURANCE COMPANY LTD. - Opp.Party(s)

SAJAL PRUTHI

23 Jan 2024

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	371 of 2019
Date of Institution	:	02.07.2019
Date of Decision	:	23.01.2024

 

M.G.Contractors Pvt. Ltd.  House No.1721, Sector-4, Panchkula, Haryana-134104, through its Manager Rajesh Verma

 ..….Complainant

Versus                                                                  

1.     The New India Assurance Company Ltd, New India Assurance Building, 87-M.G.Road, Fort, Mumbai-400001, through its Managing Director/Concerned official.

2.     Ideal Insurance Brokers  Pvt. Ltd., Ideal Ins. Broker-310604, #605, 6^th Floor, Ansal Bhawan, 16, k.g.Mag, Cannought Place, New Delhi-110001  through its Director Sh.Amit Aggarwal.

3.     Divisional  Manager, The New India Assurance Company Ltd. Divisional office 4^th Floor, Bajaj House 97, Nehru Place, New Delhi-110019.

4.     Regional Manager, The New India Assurance Company Ltd. Regional office SCO 36-37, Sector-17A, Chandigarh.

                                                                        ……Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

 

 

For the Parties:   Sh. Sajal Pruthi, Advocate for the complainant.

                        OP No.2 already ex-parte vide order dated 04.11.2019.

                        Sh. J.P.Nahar, Advocate, counsel for OPs No.1,3 & 4.

                       

                       

ORDER

(Satpal, President)

 

1.Briefly stated, the facts, as alleged in the present complaint, are that the complainant’s company is engaged mainly in the business of construction of bridges and roads etc. and has got the Marine Cargo Open Policy on 20.07.2015 for the period from 20.07.2018 to 19.07.2016 against loss, damage liability or expenses for journey anywhere in India vide policy no.31060021150200000029. It is stated that the complainant-company consigned one 625K.V.A. Silent DG set (Generator) through Thapar Freight Carriers from Gurgaon (Haryana) to village Hardog, Ranchi(Jharkhand) and The New India Assurance  Company insured the same and the consigned article was covered  under the above mentioned policy. It is stated that during the journey, which started from 27.02.2016 vide vehicle i.e. Truck No.HR-38N-6047 carrying above mentioned DG set met with an accident on 28.02.2016 at Etawah. Due to the accident on the way, radiator or the DG set was totally damaged. The Ops were intimated qua the damage occurred in the accident and claim no.310600211702900001 was submitted. Sh. S.K.Shukla was appointed the surveyor by OPs, who after conducting the survey, submitted his report on 16.05.2016. It is stated that the radiator of the DG set was badly damaged due to the accident and was suggested to be replaced by the Jaikar Techno Pvt. Ltd. by recommending that Radiator replacement was required as radiator was damaged during transportation. On the suggestion of Jaikar Techno Pvt. Ltd., complainant -company purchased new radiator for replacement of old damaged/ repaired  radiator vide bill no.1617-001757 dated 30.09.2016 amounting to Rs.5,95,014/-, bill no. RN1617-001948 dated 28.10.2016 amounting to Rs.23,407/- and bill no.RN1617-000198 dated 03.11.2016 amounting to Rs.6,440/- and accordingly, payment was made to the supplier of the radiator. It is stated that  after replacement  of the radiator survey was got conducted at the instance of complainant through second surveyor, namely, Anil Kumar Bazaz, who had investigated the matter in detail and submitted his report dated 15.01.2017 assessing the total loss to the tune of Rs.6,32,841/-. It is stated that  after assessment  of the loss suffered by the complainant-company, the OP’s were requested many times for the payment of claimed amount as assessed by the second surveyor but the Op’s has repudiated the claim vide letter dated 30.11.2017 on unreasonable observation and incorrect presumptions, which is against the observation made by the surveyor. The Complainant-company is fully entitled to the amount of loss as suffered by it during the voyage and impugned repudiation letter dated 30.11.2017 is unsustainable in the eyes of law.  Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.Upon notice, the OPs No.1, 3 & 4 has appeared through counsel and filed the written statement raising preliminary objection that no cause of action has arisen within the territorial jurisdiction of the Hon’ble Commission; the consignment was sent from Gurgaon to Ranchi and thus, no cause of action has arisen at Panchkula; even the correspondence of the claim was made from the Delhi office and thus, the Consumer Commission at Panchkula lacks territorial jurisdiction; the complaint is not maintainable due to non-joinder of the necessary party. The complainant has not impleaded the transporter with whom the consignment was entrusted over for safe delivery to the consignee. The transporter, namely, Thappar Freight Carriers(Regd.) registered has issued the certificate on 06.02.2017, though the consignment was delivered on 01.03.2016. It is submitted that the transporter is liable to pay the amount to the complainant as per Section 17 of the Carriage By Roads Act, 2007.

                On merits, it is submitted that the complainant was insured with the OPs vide policy no.31060021150200000029. It is submitted that the consignment note 665 vide which DG set was transported from Gurgaon to Ranchi shows no endorsement of any damage at the time of taking delivery of the consignment. It is submitted that the OPs i.e. Insurance Company were never intimated about the alleged accident nor any request was made for the appointment of the surveyor to assess the alleged loss. It is denied that the radiator of the DG set had got totally damaged due to the alleged accident. It is submitted that, as per terms and condition of the policy, a loss/damage was to be intimated to the insurance company, which had issued the policy, its nearest branch/ Divisional office but the complainant did not inform the said office and thus, violated the policy conditions. The transporter, namely, Thapar Freight Carriers(Regd.) had issued the damage certificate on 06.02.2017 just to favour the complainant, whereas delivery of the consignment was made on 01.03.2016. It is submitted that the emails allegedly sent by the complainant to OP No.2, were never sent to the insurance company. The OP No.2 was just a broker, who was the agent of the complainant himself. It is submitted that the consignment was delivered to the consignee on 01.03.2016 but no damage was found to the consignment, otherwise the same would have been recorded on the consignment note. If the complainant had found any damage to the consignment, the same was liable to be recorded on the consignment note itself and the open delivery was required to be taken in the presence of the surveyor, who was to be appointed by the OPs, if the intimation had been given. As per the Duration Clause mentioned in the policy, the risk of the insurance company terminates on delivery of the consignment at the destination. It is submitted that intimation of the loss was given by the complainant to insurance company on 08.03.2016 and surveyor was deputed immediately on the same day. The complainant has not explained the delay of 7 days in giving the intimation qua loss. The surveyor had found the packing box of the DG set in ‘OK’ condition, which falsify the claim of the complainant that the vehicle had met with an accident. It is submitted that the loss has occurred during the commissioning of the DG set and not due to transit hazards. The surveyor has further mentioned that the repair of the radiator was done by the road side radiator from Ranchi and the surveyor has made the assessment of loss for Rs.47,950/- less policy excess clause. It is submitted that the report given by second surveyor at instance of the complainant is not valid as the second surveyor can be deputed by IRDA only. The claim has rightly been repudiated vide letter dated 30.11.2017 on the grounds that  (1) the DG set  after it reached the destination  was not only  opened  but also was being put to use  and hence the loss has  not occurred during transit; (2) no claim was lodged on the carrier; (3) no “damage certificate” was obtained from the carrier. It is stated that by not obtaining the Damage Certificate and not lodging the monetary claim within the statutory period of 180 days, the complainant has not preserved the recovery rights of the Ops and thus, violated the condition of the policy. It is stated that the right of recovery of OP’s i.e. insurance company from the carrier has been adversely affected and the Ops will not be able to recover any amount from the carrier. The Clause 7.2 of the Inland Transit(Rail or Road) Clause-A casts  a duty on the insured “to ensure that all rights against  carriers,  bailees,  or other third parties are properly preserved and exercised by lodging a monetary claim against railway/road carriers/bailee within six months from the date of railway/lorry receipt or as prescribed by the relevant statute……”. Since the complainant has not preserved the recovery rights of the Ops, the repudiation of claim is justified; thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.

                Notice was issued to the OP No.2 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.2; hence, it was deemed to be served and thus, due to non appearance of OP No.2, it was proceeded ex-parte by this Commission vide its order dated 04.11.2019.

3.The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents as Annexure C-1 to C-14 and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.2 has tendered affidavit Annexure R-A along with Annexure R-1 to R-3 and closed the evidence.

4. We have heard the learned counsels for complainant as well as Ops No.1,3 & 4 and gone through the entire record available on file, including written arguments placed on record by the complainant as well as OPs No.1,3 & 4, minutely and carefully.

5.The learned counsel on behalf of the complainant, during arguments, reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) of the complainant and contended that the claim was wrongly repudiated  vide  repudiation letter dated 30.11.2017 (Annexure C-13) by the Ops No.1,3 & 4 on erroneous grounds that the loss had not occurred during the accident in transit. The learned counsel contended that the loss had occurred, during the voyage, due to accident and the same was conveyed to OP No.2 i.e. Ideal Insurance Brokers Pvt. Ltd vide email dated 01.03.2016. It is contended that the engineers of the Cummins Company, while commissioning the DG set, had specifically recommended vide their report(Annexure C-7) that the radiator of the DG set required the replacement and thus, it is prayed that the complaint is liable to be accepted by granting the relief as claimed for in the complaint. Reliance has been placed on the case law titled as Sri Satyendranath Basu Roy Choudhary Vs. The CEO, Religare Health Insurance Company Limited reported in 2021(3) C.P.R.118 (SCDRC, Tripura)

6.On the other hand, the learned counsel on behalf of the OPs No.1, 3 & 4 contested the complaint by raising the preliminary objections as well as on merits. The learned counsel raised the preliminary objection that the Consumer Commission at Panchkula lacks territorial jurisdiction as no cause of action has accrued within the territorial jurisdiction of this Commission. The learned counsel argued that the DG set was entrusted to Thapar Freight Carriers(Regd.)vide GR 665 (Annexure C-3) for the onward delivery of the same at Ranchi (Jharkhand). It is also argued that the Marine Cargo Open Policy (Annexure C-2) was issued from Mumbai and thus, the complaint is liable to be dismissed on the ground of territorial jurisdiction. Reliance has been placed on record on the case law titled as Sonic Surgical Vs. National Insurance Company Ltd., Civil Appeal No.1560 of 2004 decided on 20.10.2009(SC) IV(2009) CPJ 40(SC).

                The above objection is rejected in view of the fact that the insurance policy, namely, Marine Cargo Open Policy(Annexure C-2) was received by the complainant at his house no.1721, Sector-4, Panchkula, for which, an amount of Rs.17,901/- as premium was paid by him through NEFT by HDFC Bank, Sector-16, Panchkula.

7.On merits, the learned counsel has submitted that the claim was rightly declined vide repudiation letter dated 30.11.2017(Annexure C-13/R-3). The main submissions as made by the learned counsel for the OPs No.1,3 & 4 are summarized  as under:-

1.     That the complainant has failed to give the immediate intimation to the insurance policy issuing office or nearest branch office as required vide terms and conditions of the insurance policy qua the loss sustained in the accident to the DG set. It is contended that the complainant has failed to explain the delay in giving the intimation to the insurance company and thus, violated the terms and conditions of the insurance policy.
2.     That, as per surveyor report(Annexure C-6), the DG sets after it had reached at its destination at Ranchi, was not only opened but was being put to use and its radiator guards  were found to be dismantled and the radiator was got repaired; thus, the loss had not occurred during transit.
3.     That the DG set was duly delivered at Ranchi on 01.03.2016 without any defect or damage as is evident from the  perusal of consignment note i.e.GR 665(Annexure C-3), wherein no remarks of any damage was made by the complainant at the time of taking the delivery of the consignment.
4.      That the requisite “no damage certificate” was issued by the transporter on 06.02.2017, whereas the accident had occurred on 01.03.2016 and further, no claim was lodged against the carrier/transporter qua the damage/loss suffered as alleged.
5.      That no reliance can be placed upon the report (Annexure C-12) of the second surveyor, namely, Sh. Anil Bajaj and the same carries no value. It is contended that the second surveyor can only be appointed or deputed by the IRDA or by the Insurance company. Reliance  has been placed upon the following case laws:-

1. Tirupati Vinyl India Private Limited Vs. United India Insurance Company Limited, II(2022) CPJ 529(NCDRC).
2. Smt. Dipali Das Vs. United India Insurance Co. Ltd. & Anr. in Revision Petition No.3290 of 2012 decided on 02.08.2013 (NCDRC).

Concluding the arguments, the learned counsel has prayed for dismissal of the present complaint being frivolous, baseless and meritless.

8.The question that falls for adjudication before the Commission, is, whether the repudiation of the claim no. 3106002117029000001 by the insurance company i.e. OPs No.1, 3 & 4 vide repudiation letter dated 30.11.2017(Annexure C-13/R-3) was valid, legal and justified.

9.We have perused the surveyor report dated 16.05.2019 (Annexure C-6) as well as the repudiation letter dated 30.11.2017 (Annexure C-13/R-3) and find that the claim has been declined on the following counts:-

a.     That “no damage report” was lodged against the transporter nor        any “damage certificate” was obtained from the transporter; thus,         the loss had not occurred during the voyage.

b.     That the DG set, after the same had reached at the destination,         was not only opened but was also put to use by the complainant.

c.      That the radiator guards were found to be dismantled and were got    repaired by  the complainant.

d.     That the damage as per the surveyor might have occurred due to      careless handling of the consigned item during voyage.

10.We take up the above grounds for discussion in the same seriatim as under:-

a.     The plea that the loss to the consigned article had not occurred during the voyage is found having no merit in it because the complainant, on 01.03.2016, at 12:17 pm i.e. during the day time, had conveyed to the OP No.2 vide email qua the accident of the vehicle, carrying the consigned Gen set of 625KVA, on road at Etawah. Pertinently, the insurance company i.e. OPs No.1, 3 & 4 in para no.5 of its reply on merits has admitted that the email(Annexure C-5) was sent by the complainant to OP No.2 on 01.03.2016 qua the accident of the vehicle carrying the consigned Gen set in question. It is not the case of the Ops No.1,3 & 4 that the said email was fake, false and incorrect.                          Pertinently, the engineers of the Cummins Company, while commissioning the Gen set on 17.03.2016, has reported vide their report(Annexure C-7) that radiator of the Gen set was damaged during the transit and the same was repaired; thus, the insurance company OPs No.1, 3 & 4, in order to falsify the said report(Annexure C-7) as also to rebut the plea of the complainant qua accident of the vehicle carrying Gen set on road at Etawah ought to have place the accident site inspection report, if any,  on record but the Ops have preferred not to place any such report of accident site for the reasons best known to them. Therefore, no merits are found in the contentions of the insurance company that the damage to the radiator of the Gen set had not occurred during the voyage. Further, we also find the damage certificate dated 06.02.2017(Annexure C-4) issued by the Thapar Freight Carriers (Regd.) on record.

11.The grounds taken at serial no.b & cbeinginter related and interconnected, are taken up together for discussion as under:-

The insurance company has taken the plea that the DG set was put to use after getting the same repaired. Admittedly, the survey of the Gen set was conducted by Sh.S.K.Shukla Surveyor on 09.03.2016 and as per his report dated 16.05.2016(Annexure C-6), radiator guards were found dismantled. The Surveyor had specifically vide his said report dated 16.05.2016(Annexure C-6)pointed out that the insured had taken its own decision to get the radiator repaired before the inspection whereas no justification has been furnished by the complainant qua opening the Gen get and getting the same repaired before the arrival of the surveyor. The complainant has placed no such documentary evidence on record, which shows that the opening of the Gen Set and its repair was required due to some emergent circumstances. Even no communication was made by the complainant with the insurance company seeking its permission qua getting the repairs of the Gen set. Further, the surveyor vide his said report under the heading of “Inferences” at serial no.23 has mentioned that the repair of the radiator was done by a road side radiator from Ranchi. Further, it is mentioned that engine was not put in operation before 09.03.2016 and thus, replacing of corrosion resistor was not necessary. From these facts, it is evident that the complainant was not having any valid justification for getting the repair of the radiator of DG set in the absence of the surveyor. As per version of the complainant, the DG set had got damaged while in transit from Gurgaon to Ranchi, so, it was binding upon the complainant to open the DG set in the presence of the surveyor; hence, there were serious and grave lapses on the part of the complainant while opening the DG set and getting the same repaired in the absence of the surveyor.

4.  

12.From the discussion made above, grave and serious lapses have been found on the part of the complainant as he had opened the gen set and got its repairs in the absence of the surveyor. The insurance company i.e. OP No.1,3 & 4 have also been found deficient as discussed above. In the totality of the facts and circumstances in the present case, we deem it fair and proper to allow the present complaint partly with the directions to the insurance company i.e. OPs No.1,3 & 4 to pay 1/4^th of the amount i.e. Rs.6,24,833/- as incurred by the complainant in the replacement of the radiator set by making the payment vide receipt dated 17.10.2016(Annexure C-11) minus the amount as per excess clause as contained in the terms and conditions of the insurance policy(Annexure C-2). As per excess clause, a sum of Rs. 0.5percent of the consignment value subject to minimum of Rs.10,000/- is to be deducted from the payable amount. So, the OPs No.1,3 & 4 are liable, jointly and severally, to pay a sum of Rs.1,46,208/- to the complainant after deducting a minimum sum of Rs.10,000/- i.e. Rs.156208-10000/-.

13.Further, the report of the second surveyor(Annexure C-12), namely, Sh. Anil Bajaj is of no help to the case of complainant as he was neither appointed by the IRDA nor by the Insurance company. The prayer of the complainant qua compensation on account of mental agony and harassment is declined keeping in view the default on his part as discussed above.

14.Resultantly, the OP No.1, 3 & 4 are directed to pay a sum of Rs.1,46,208/-(Rs.6,24,833/4-10,000) to the complainant qua the expenses incurred by it in the replacement of the radiator of the DG set. Further, the OPs No.1, 3 & 4 are directed to pay a sum of Rs.5,500/- to the complainant as litigation charges.

       

15The OPs No.1,3 & 4 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1,3 & 4. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 23.01.2024

 

 

 

 

        Dr. Barhm Parkash Yadav     Dr.Sushma Garg          Satpal

                Member                        Member                  President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Satpal                                                                                      President