JUDGEMENT

          Complainantby filing this complaint has alleged that complainant a reputed company engaged in manufacture and sale of welding wire/saw wire having its office at the address 46-C, Chowringhee Road, Flat No.14G, Everest House, Kolkata – 700001.

          Complainant for protection of his business and transaction hired the service of the Insurance Company op for valuable product by paying the requisite premium and obtaining a “Marine Cargo Open Policy” being Policy No.311500/21/2011/4 to cover the consignment/cargo of the insured complainant that are regularly dispatched from its factory.  So, complainant is a consumer of Insurance Services sold by the op.

          Complainant to protect its valuable product while in transit from unforeseeable loss and damages that may be suffered by the consignment or other while on transit interalia due to natural calamity, theft, accident etc. the said policy was purchased not for any profit motive but to replenish the loss and damages actually suffered.

          During subsistence of the said policy for the period from 22.04.2010 to mid-night of 21.04.2011 complainant insured has sent one consignment of 14845 Kgs of SAW Wire to its customer M/s Welspun Corporation Ltd. vide Invoice No. PWL/095 dated 08.10.2010 and CN No.0779 dated 08.10.2010 through M/s Nilesh Road Carrier in a truck being Truck No. AP16TX-4267 and the declaration of such consignment was duly submitted to the op insurance company vide declaration No. 71 dated 11.10.2010 under the policy in reference.

          While the said truck carrying such insured consignment met with an accident near Nellore and as a result of which the entire insured consignment in reference got damaged and such damaged consignment was rejected by the consignee and as such the insured consignor had to take back the entire materials suffering the loss.

          It is further submitted that the said insurance policy covers voyage/transportation from any place in India to any place in India and the aforesaid loss intimation was given by the insured complainant vide its e-mail dated 18.10.2010 to the op, such communication was followed by a written intimation dated 15.11.2010 addressed to the surveyor and as well as the insurance company.

          After observing all formalities complainant submitted a bonafide insurance claim to the op alongwith copy of FIR to the surveyor and also the certificate issued by the police station dated 16.11.2010.

          After that the insurance company appointed an independent surveyor Mr. M.A. Varada as per provision of section 64UM (2) of the Insurance Act, 1938.  The said surveyor conducted a survey, took various photographs of the accidental damage caused to the consignment wire, copy of such photographs are also sent and independent surveyor engaged by the op insurance company in the matter conducted the survey submitted a survey report dated 04.01.2011.

          The complainant had duly lodged a claim on the carrier vide letter dated 26.10.2010 as per the provision, claiming Rs.8,75,000/- which was duly acknowledged by the carrier and the carrier acknowledging the loss certified the same vide its certificate dated 26.10.2010 and the consignment note, bill, challan and tax-invoice of the particular consignment are annexed and insured complainant in support of its bonafide claim submitted each and every documents to the insurance company vide its letter dated 24.01.2011 and that was received by the op insurance company.

          It is further submitted that the aforesaid damage material was lifted from the consignee’s end and taken back to Kolkata to the insured complainant with utmost effort as the same could not be reprocessed as the entire consignment was declared scrap.  Hence, the loss was treated as total loss less scrap value and after appropriate adjustment the final claim stood at Rs.6,58,959/-.

          Thereafter complainant on 14.03.2011 submitted all documents to the op but thereafter insurance company asked for two queries which was duly answered by the complainant insured vide his letter dated 29.11.2011 and vide e-mail dated 15.12.2011 the surveyor specifically advised the insurance company to settle the claim even thereafter by releasing Rs.5,36,344/- but the insurance company failed and neglected to settle the claim even thereafter.

          Thereafter the complainant pursued the matter in respect of his bonafide claim vide letter dated 01.03.2012 requesting the insurance company to settle the long pending insurance claim vide their letter dated 02.03.2012 acknowledging the pendency of the particular insurance claim of the complainant stating that they have taken up the matter with the concerned surveyor and making some further queries etc.

          In the meantime complainant vide their letter dated 11.04.2012 reported to the insurance company that the salvage has been sold at a price of Rs.3,91,667/- to M/s Jaimatadi Casting Pvt. Ltd. and the invoice and quotation was also forwarded along with such letter.  Thereafter again op made some queries vide letter dated 11.07.2012 and raised certain further queries regarding the accident which had occurred almost two years ago on 08.08.2010.

          Thereafter the complainant insured vide its letter dated 28.07.2012 and subsequently the insurance company repudiated the claim on 01.08.2012 and in the circumstances complainant was astonished because there was no ground for repudiating the claim when the surveyor assessed loss and submitted his report and submitted also to ask the op to decide the same.  Moreover the surveyor Mr. B. R. K. Reddy who was appointed as surveyor confirmed that the accident of the said truck along with consignment on 11.10.2010 and assessed the loss suffered loss to the extent of Rs.1,28,000/- for the vehicle separately on behalf of National Insurance Co.

          Accepting such report dated 24.11.2010 the National Insurance Co. made payment of Rs.1,21,000/- to the owner of the vehicle.  Thus it is apparent on the face of record that the bonafide insurance claim of the complainant insured has been repudiated arbitrarily and illegally.  There was two insurance claim out of the same accident, one lodged by the owner of the consignment that is the complainant herein with Oriental Insurance and another by the vehicle owner i.e. Mr. NageshwarRao of Nilesh Road Carrier with National Insurance Co.

          Both the insurance company were nationalized companies, the 1^st claim has been arbitrarily repudiated by the Oriental Insurance but the 2^nd claim has been honoured by the National Insurance and the deficiency in service on the part of the op Oriental Insurance Company is apparent on the face of record and for which the complaint should be allowed by granting such relief against the ops.

          On the other hand op Insurance Company by filing written statement submitted that the claim is barred by limitation and allegations as mentioned in the complaint is false and fabricated and op further submitted that complainant has sent one consignment of 27 drums containing of submerged Arc copper coated welding wire whose approximate weight was 14,845 Kgs, grade EM 12K of Size 4.00 mm as stated in the Invoice vide Invoice No. PWL/095/10-11 dated 08.10.2010 through Nilesh Road Carrier Vide Lorry No.AP-16TX-4267 from Kolkata to Mondya (Karnatak) against consignment note No.0779 dated 08.10.2010 and as per the statement made by the complainant that the consignment materials were wrapped in a plastic and then in plastic woven and the material was wound around a steel roller and after completing the packing preliminary, it has been placed in a drum which had been sealed, not only that but also as per carrier’s Act and every fleet owners must use tarpoline with a view to cover the material and should be tied up by the wire during transit from one place to another just to save the consignment material from rain and from theft.

          It is further submitted that as per consignment note and date the carrier started for Mondya from Kolkata with the consignment material on 08.10.2010 and it met with an accident on 11.10.2010 at about 03:30 AM at N.H.-5, Musunur Bypass Road, near Iswarya Industries of KavaliMandal SPSR, District-Nellore, Andhra Pradesh and it was the case that accident was caused due to save a buffalo which was crossing the road, the driver of the vehicle bearing No.AP-16TX-4267 used its brake as a result the loaded vehicle turned turtle and fell down into a road side tank as per the statement of the driver of the truck.  Due to this accident the consignment materials were damaged totally and it had been lifted and shifted the whole consignment to another vehicle again and started for consignee’s address on 14.10.2010 and reached to the consignee premises at M/s Welspun Corporation Ltd. Plot No.58, part No.1 Industrial area, Gejjalagere, Maddur on 17.10.2010 as stated in the complaint.  So, the cause of accident is not believable by this op.

          More interesting factor is that complainant from 11.10.2010 to 18.10.2010 the whole operation was kept in dark to the insurer and during this period the consignor did not bother to give any intimation to the insurer with the request to appoint a surveyor for taking necessary action.  But the consignor did not forget to give a declaration to the insurer about the consignment and took a marine open policy vide declaration No.71 dated 11.10.2010 when the consignment had already damaged due to accident because accident took place at 03:30 AM of 11.10.2010.

          It is the case of the op that instant consignment reached to the consignee’s address on 17.10.2010 and it was delivered to the consignee without giving any intimation to the insurer when the consignee refused to accept the said consignment due to damaged material then the consignor informed the insurer and requested them to appoint a surveyor on 18.10.2010.

          It is further submitted by the op that after arrival of the consignment to the destination, the contract carrier unloaded and delivered the material to the consignee’s go-down on 17.10.2010 without any intimation, photograph to the op and/or engaged any surveyor which consignor/consignee can appoint a surveyor if the insured felt urgent and/or necessary and/or with photograph as an evidence regarding the condition of the delivered material and after receiving the consignment by the consignee on 17.10.2010 and observing the condition of consignment material the consignee has aggrieved and decided not to accept the consignment because the material has already been rusted and it is not useable in the production as stated in the complaint.

          Op further submitted that consignor was not in hurry and/or did not show any interest to inform the matter to the op in respect of appointment of surveyor at that time and the consignment material were lying at Nellore for 2-3 days on the open street and later on delivered the consignment material to consignee on 17.10.2010 and no sooner there was a dispute in respect of the condition of the consignment material evolved the consignor gave a declaration to this op vide declaration No.71 dated 17.10.2010 suppressing the fact of accident which is totally against the Insurance Law because consignment was dispatched from Kolkata on 08.10.2010 and reached at Muddur on 17.10.2010 as per statement from the Carrier as well as from the surveyor.

          So the consignor gave the declaration to the insurer on 11.10.2010 at the time when accident already took place, when the material was lying on the road side street.  So the declaration was not submitted transparent mind and/or in good faith but with ulterior motive.  The insured took the open policy after giving the declaration to the insurer on 11.10.2010 by total suppressing the material facts which is against the Insurance Law.

          Moreover, it is mandatory as the policy tenure that consignor should inform to the insurer in respect of loss and damage and reason of damage and actual loss within 10 days from the date of damage and/or loss detected.  In the instant case the consignment reached to the consignee on 17.10.2010 and the consignee took delivery on the same date and found defective of the consignment material, but the consignor or present complainant was not serious and/or showed any interest to inform the matter to the insurer on the date of accident i.e. on 11.10.2010.  But informed the matter to the insurer presently instant op on 18.10.2010 with a request to appoint a surveyor that is after the lapse of 10 days from the date of occurrence which is against the terms and condition of the open policy.

          Further op submitted that in the policy it had been clearly mentioned that if there is any damage and due to that damaged there is any loss, the insured should inform to the agent and/or Broker as soon as possible.  But the complainant did not comply with the terms and conditions they informed the matter officially on 17.10.2010.

          Further op submitted that no sooner the intimation of loss or damaged information received by the op, this op requested their Mysore Division to appoint a surveyor to find out the reason of loss and amount of loss of a road consignment No.0779 dated 08.10.2010 through Nilesh Road Carrier where consignor was the present complainant and the consignee was one M/s Welspun Corporation Ltd.

          Op after receiving the message from the Mysore Division of this op appointed an independent and IRDA approved surveyor namely Mr. M.A. Varada of Plot No.269 KIADB, Industrial Area, Gejjalagere, Maddur and the surveyor started his survey by taking photographs of the materials in different angles which is lying in the godown of M/s Welspan Corporation Ltd. and the consignee of the instant consignment on 08.11.2010 and dispatched the same and took photograph of the materials along with other quarries.  The surveyor completed his survey on 02.01.2011 and reported to this op on 04.01.2011.

           The consignor took Open Marine Policy against the consignment material vide consignment No.0779 dated 08.10.2010 and against the declaration No.71 dated 11.10.2010, the op became partly co-owner of that material, because if there is any damage or theft this op will be liable to pay compensation.  But the complainant without the consent and without keeping any knowledge as well as keeping in dark about such incident to this op the present consignor sold the so called damaged material as salvaged to the third party arbitrarily which is totally against the Insurance condition.

          Op further submitted that it is a mandatory provision and guide lines of IRDA for an insurer to appoint an independent surveyor in case of any loss suffered by an insured during its insurance period just to ascertain the reason of loss and to ascertain the actual amount of loss suffered that does not mean that the opinion of the surveyor is final and verdict upon the insurer to satisfy the claim to the insured.  After going through the surveyor’s report the insurer will scrutinize the report whether there was any violation of terms and conditions of policy made by the insured and accordingly after considering the report of the surveyor and also the photographs the op was satisfied that there was ground for repudiating the claim.

          Further it is submitted by the op that as per complaint, accident took place on 11.10.2010 at Nellore and the number of the vehicle was AP-16TX-4267 which was carrying the consignment from Kolkata to Karnataka against the consignment Note Number 0779 dated 08.10.2010 was got heavily damaged and the owner of the vehicle got his insurance claim from the National Insurance Company limited and in this circumstances this op submitted that the vehicle may be covered under the Motor Policy and may be covered in package policy for which own damage policy had been included but in this case it was a Marine Open Policy.  Not only that but also Motor Policy was taken by the owner of the vehicle but Marine Cargo Open Policy was taken by the present complainant. So, regarding payment of compensation by other insurance company in respect of vehicle damaged cannot be taken into account.  Practically complainant suppressed the entire fact and circumstances violating the terms and conditions of the policy and for which there is no question of granting of any claim.  Moreover, at the time of delivery of the article to the consignee, consignee did not report that same wire damaged.  So, everything is false and with purpose this case was filed to get some compensation.

Decision with reasons

          Admitted fact remains that the present complainant purchased one policy under this Transit (Rail & Road) Policy having Policy No.311500/21/2011/4 and no doubt it was valid for the period from 22.04.2010 to midnight 21.04.2011 and policy heading is Marine Cargo Open Policy and as per terms and conditions of the policy Clause-C reveals “it is hereby agreed that this policy covers the risk of theft and/or pilferage irrespective of percentage.  No liability for loss to attach hereto unless notice of survey has been given to underwriters’ agents within 10 days of the expiry of risk under this policy and underwriters to entitled to any amount recovered from the carriers or others in respect of such losses (less cost of recovery, if any) up to the amount paid by them in respect of the loss” and further as per Clause-10 it reveals “it is a condition of this insurance, that the assured shall act with reasonable dispatch in all circumstances within their control”.  But if insured act maliciously or any claim for expenses arising from delay or other consequential or for damage of any ground there is no warranty that means no claim shall be considered.  It is also undisputed fact that complainant submitted declaration No.71 dated 11.10.2010 stating that on 08.10.2010 consignment note No. 0779, Bill No. 95/2010-11 (U-1) vide Lorry No.AP-16TX-4267 started from Kolkata to reach at Maddura in Karnataka and in the said truck consignment was loaded with packages containing 14845 Kgs of copper coated wielding wire and amount declared of Rs.8,68,47,900/- and it was sent through Nilesh Road Carriers.  Fact remains the said truck crossed unified check gate Laxmanath Road on Andhara Pradesh on 17.10.2010 (document as produced by the complainant.  Admitted fact is that Welspan Corporation Ltd received the said article on 17.10.2010 and kept in the godown but no copy of FIR is filed regarding accident etc.  But a copy of certificate of Sub Inspector of Police of Nellore Police Station at Andhra Pradesh is filed wherefrom it is found that a certificate was given by Sub Inspector of Police without mentioning any case number or GD number or any other report of the Motor Vehicle Inspector etc.

          From the survey report it is proved that consignee received the said articles even after alleged accident and kept it in the godown.  Further from the report of surveyor dated 08.11.2010 it is found from that report dated 08.11.2010 that the consignment was received by the consignee M/s Welspan Corporation Ltd. on 17.10.2010.  Whereas survey was made on 08.11.2010 that is practically after lapse of more than 21 days.  But anyhow M/s Welspun Corporation Ltd. received the same without any objection in the dispatch delivery sheet but everything was reported by the consignee in writhing on 17.10.2011 to the complainant.  At the same time the complainant submitted his declaration on 11.10.2010.  But in the complaint it is submitted that accident took place on 11.10.2010.  Then it is clear that there was some bad intention of the complainant for which complainant gave declaration about dispatch on 11.10.2010 on which date accident took place on that date at Andhra Pradesh at 03:30 AM but declaration was submitted after that hour about only dispatch.

          Complainant himself has stated that he stated about the accident on 18.10.2010 by E-mail and intimated by letter on 15.11.2010.  But peculiar factor is that since 11.10.2010 to 15.11.2010 the complainant did not pray for appointment of surveyor forthwith but it is mandatory provision of law that the just after accident the matter shall be reported within 24 hours to insurance company or for appointment of surveyor.  But complainant was completely silent from 11.10.2010 to 18.10.2010.  But in the meantime the entire article was carried away to the consignee’s factory, consignee received it without any objection and thereafter on 18.10.2010 E-mail was sent but thereafter written intimation was given on 15.11.2010 and in fact as per terms of the present policy the surveyor must have to examine and survey the loss and other aspects at spot where the accident took place.  But most interesting factor is that complainant or the consignee whatever it may be did not inform but they managed everything and consignment was received by the consignee and kept in his factory premises or godown and thereafter the intimation was sent to the insurance company for appointment of a surveyor.  It is no doubt against the spirit of the contract of present policy.

          Further it is proved that complainant as consignor with the help of the consignee managed to deliver the same in the consignee’s factory and consignee received it and thereafter submitted a report that water logged.  But up to 15.11.2010 there was no question about position of the articles and another factor is that insurance company failed to take any note of the accident place, the position of the truck, address of the consigned articles etc. at spot.  So, no doubt the complainant as insured did not comply the terms and conditions of the policy, not only that there is no FIR, no G.D. entry in respect of that accident, no MVI expert report about cause of accident.  But anyhow the complainant or his agent managed to procure a certificate from Sub Inspector of Police that accident took place.  But as per Criminal Procedure Code there is no scope to give such a certificate by any police about any accident if no G.D. entry is made, no inspection is made and no FIR is filed and for which practically Ld. Lawyer for the op submitted that it is procured certificate and we do not disagree with the argument of the Ld. Lawyer of the op in this regard but we have astonished how a police can issue such certificate without starting any G.D. entry, without searching any investigation or inspection by the MVI about the cause of accident. 

          So, we cannot rely upon such certificate which can be produced by consignee and it is easily available.  So, about accident there is some doubt.  But for the sake of the argument if it is accepted that the truck faced an accident them how the said truck passed accident place also on subsequent date which is evident from the Chief Assistant Commissioners check report but in this regard complainant has failed to give any explanation.  So, about delivery of consignment by another truck is not at all believable in view of the fact that there is no such further challan or invoice issued by the consignee and that change was also not reported to the insurance company and delivery was reported on 17.10.2010 but accident took place on 11.10.2010 that it was reported in writing long after 35 days and practically the insured article was found in the factory godown of the consignee not on the way not on the road side. Consideringall the above fact we are convinced that complainant did not comply the terms and conditions of the present policy.

          However, after hearing the Ld. Lawyer for the complainant we find that it is undisputed fact that the same was received by the consignee and thereafter consignee after checking found that it was damaged.  Further fact is that the consignee M/s Welspun Corporation Ltd. took in writing reported to complainant on 17.11.2010 and it is also fact that when the complainant failed to manage the matter he prayed for such letter and consignee wrote it on 17.11.2010.  But from the complaint it is clear that complainant reported the matter first on 15.11.2010.  But it is his case that E-mail was sent on 18.10.2010 i.e. also long after 7 to 8 days from the date of accident and most interesting factor is that declaration was made on 11.10.2010.  But it was dispatched on 18.10.2010 and particularly it is the claim of the complainant that on 11.10.2010 accident took place.

          Then it is clear that this declaration No.71 on 11.10.2010 was submitted when the alleged accident already took place.  But on 11.10.2010 the declaration was submitted regarding dispatch but about accident the complainant was silent and it was reported on 18.10.2010 after preparing all papers in support of his claim.

          Anyhow Ld. Lawyer for the complainant submitted that surveyor assessed the matter, visited the spot, conducted the survey and report can be relied.  In this regard, we have gone through the surveyor’s report dated 04.01.2011 submitted by Mr. M.A. Varada surveyor of Mysore and as per his report, it is found that he conducted the survey on 08.11.2010 and from that report it is also clear that practically complainant failed to produce any copy of FIR vehicle report and MVI Technical Inspector report and further the consignment reached at consignee’s factory on 17.10.2010.  anyhow the surveyor found some damages, but when it was found it was outside the entire packages and open place and in fact the consignment was in 27 metal drums varies from 285 Kgs to 615 Kgs gross weight 15,463kgs and net weight 14,845 Kgsand surveyor showed then articles in haphazard conditions and it was found damaged as it was exposed wire because the coated wire got rusted for open atmosphere condition.  But insurance company did not get any such chance to see the position of the truck and the alleged consignment at accident spot.  It is no doubt completely against the policy terms and conditions and insured did not discharge his duties.  Another factor is that the surveyor assessed salvage value of damage articles and that was including damaged drums.  But surveyor did not give the permission to sell the same.  But unfortunately without getting permission of the surveyor or from the insurance company, complainant on his own volition sold away the same to 3^rd party and op’s version is that it was sold with some intention.

          So, that the actual value of the salvage goods should be otherwise misappropriated by the complainant and most interesting factor is that as insured he has further violated the terms and conditions of the policy.

          From the letter dated 02.03.2012 issued by the op to the complainant, op asked the complainant to inform the status of salvage to enable the insurance company to proceed further in the matter but complainant reported the matter to the op on 11.04.2012 that same had already been sold to M/s Jaimatadi Casting Pvt. Ltd. Mondya (Karnataka) Madurai to Howrah and it is found that same was sold at a price of Rs.3,91,667/- but question is why without permission of the insurance company complainant sold it.  That means there was some mal practice on the part of the complainant through it was brought to the complainant at Howrah at his factory side but complainant did not give the chance to insurance company to see the position further.

          So, it is clear that complainant made all the acts back behind knowledge of the insurance company and for which invariably complainant should not get any compensation.  Another factor is that the explanation of complainant regarding sale of salvage goods is completely baseless and without any basis and it cannot be believed by any prudent and reasonable person and fact remains that was done for someother cause.  Moreover, from the report of the another insurance company’s surveyor loss assessor B.K. Reddy it is found that said loss assessor assessed the loss to the extent of Rs.1,28,000/- in respect of vehicle and for which the complainant got insurance of Rs.1,28,000/- for damaged vehicle but that is not anyway help the complainant to get any relief in view of the fact regarding present policy the complainant has not complied all the terms and conditions.  But now relying upon that report of B.R.K. Reddy it is proved that the said vehicle was damaged and compensation in respect of damaged vehicle a sum of Rs.1,28,000/- was assessed and owners of the vehicle already got it from their said insurance company.  But for that reason only complainant shall not have to get this compensation.  Whatever it may be after considering the entire documents and above discussion we are confirmed that the present complainant violated all the terms and conditions of the present policy and also did not give the op a chance forthwith to inspect the spot condition of damaged goods at the spot.

          In the meantime consignor and consignee managed to mature the matter and thereafter the entire intimation for payment of surveyor report etc was submitted and survey was made not only in respect of delivered and consignment received by the consignee but long after that.  But anyhow considering present aspects and other materials to give some relief to the complainant, we may allow some compensation but in the eye of law complainant has not entitled to get because he has violated all the terms and conditions.

          In the above situation minimizing the entire matter we are asking the op to dispose the claim application by giving him Rs.2 lakhs only when he paid premium and further on the ground the complainant sold away the articles at very worse rate without testing the same by any copper expert or State Government Expert or by insurance company experts.  But any other relief cannot be granted to the complainant.

          Accordingly, the complaint succeeds in part.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest but without any cost against the ops.

          Ops are directed to give a sum of Rs.2,00,000/- to the complainant after disposing of this claim application as finally settled within 2 months from the date of this order, but no other relief is granted considering complainant’s repeated violations of the terms and conditions of the policies which is proved beyond any manner of doubt.