Complainant by 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, theftand 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 to its customer M/s SanghviCylinders Pvt. Ltd. vide Invoice No. PWL/123 dated 14.07.2010 and CN No.0584 dated 14.07.2010 through M/s Nilesh Road Carrier in a truck being Truck No. AP21W-3200 and the declaration of such consignment was duly submitted to the op insurance company vide declaration No. 034 dated 19.07.2010 under the policy in reference.

          While the said truck was carrying such insured consignment being properly packed and covered, got damaged due to rain/water causing damage during transit 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 03.08.2010 to the op, such communication was followed by a written intimation dated 14.09.2010 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. SureshGull as per provision of section 64UM (2) of the Insurance Act, 1938.  The said surveyor conducted a survey to ascertain loss of damage caused to the consignment and submitted a survey report dated 29.11.2010.

          The complainant had duly lodged a claim on the carrier vide letter dated 10.09.2010 as per the provision, claiming Rs.6,00,000/- which was duly acknowledged by the carrier and the carrier acknowledging the loss certified the same vide letter No.14.09.2010 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 20.12.2010 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.2,58,000/-.

          Thereafter complainant submitted all documents to the op but thereafter insurance company asked for two queries which was duly answered by the complainant insured andthe surveyor specifically advised the insured to sell the damaged goods and it was sold by surveyor to the highest bidder buteven thereafter the insurance company failed and neglected to settle the claim as yet.

          Thereafter the complainant pursued the matter in respect of his bonafide claim vide letter dated 20.12.2010 requesting the insurance company to settle the long pending insurance claim and op acknowledged the pendency of the particular insurance claim of the complainant stating that they have not taken up the matter as yet.

          In the meantime complainant vide their letter dated 01.03.2012 reported to the insurance company that the salvage has been sold by the surveyor.  Thereafter again op made some queries vide letter dated 12.03.2012 which had been answered by the complainant on 11.04.2012.

          Thereafter the insurance company repudiated the claim on 11.04.2012 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 who was appointed as surveyor confirmed.

          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 647 bundles containing of Saw Wire copper coated welding wire whose approximate weight was 15,873Kgs, grade EL-8 of Size 3.15 mm and 2.15 mm as per the Invoice vide Invoice No. PWL/123/10-11 dated 14.07.2010 through Nilesh Road Carrier Vide Lorry No.AP-21W-3200 from Dhulagarh to Belgauam (Karnatak) against consignment note No.0584 dated 14.07.2010 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 Belgaum from Dhulagarh with the consignment material on 14.07.2010 and said consignment reached at the destination on 19.07.2010 and consignor’s carrier unloaded and delivered the materials to the consignee’s godown on 19.07.2010 without keeping.

          More interesting factor is that complainant from 14.07.2010 to 19.07.2010 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 though took a marine open policy but declaration was given on 19.07.2010 when the consignment had been declared by consignee as damage article.

          It is the case of the op that instant consignment reached to the consignee’s address on 19.07.2010 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 03.08.2010 i.e. after lapse of 15 days.

          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 19.07.2010 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 19.07.2010 and observing the condition of consignment material the consignee 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 no sooner there was a dispute in respect of the condition of the consignment material evolved the consignor gave an information to this op officially dated 19.07.2010 suppressing the fact of accident which is totally against the Insurance Law because consignment was dispatched from Dhlagarh on 07.09.2010 and reached at Belgaum on 19.07.2010 as per statement from the Carrier as well as from the surveyor.

          So the consignor gave the declaration to the insurer on 19.07.2010 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 19.07.2010 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 19.07.2010 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 that date on 19.07.2010.  But informed the matter to the insurer only op on 04.09.2010 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.0584 dated 14.07.2010 through Nilesh Road Carrier where consignor was the present complainant and the consignee was one M/s SinghviCylinder Pvt Ltd. of Belgaum (Karnataka).

          Op after receiving the message from the Mysore Division of this op appointed an independent and IRDA approved surveyor and the surveyor started his survey by taking photographs of the materials in different angles which is lying in the godown of consignee and the surveyor completed his survey on 26.10.2010 and reported to this op on 29.10.2010.

          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 on 20.04.2010.

          Marine Cargo Open Policy was taken by the present complainant but as per policy terms 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, after delivery of the article to the consignee, consignee submitted declaration on 19.07.2010.  So, everything is false and with purpose of 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 on 19.07.2010 after delivery of consignment to consignee.

          From the survey report it is proved that consignee received the said articles and kept it in the godown.  Further from the report of surveyor dated 29.10.2010 it is foundthat the consignment was received by the consignee M/s Singhivi Cylinder Pvt. Ltd. on 19.07.2010.  Whereas survey was made on 26.10.2010 that is practically after lapse of three months.  But anyhow M/s Singhivi Cylinder Pvt. Ltd.received the same without any objection in the dispatch delivery sheet but everything was reported by the consignee in writhing on 19.07.2010 to the complainant.  At the same time the complainant submitted his declaration on 19.07.2010.   Then it is clear that there was some bad intention of the complainant for which complainant gave declaration about dispatch on 19.07.2010 but declaration was submitted after dispatch and delivery.

  But complainant was completely silent from 14.07.2010 to 19.07.2010.  But in the meantime the entire article was carried away to the consignee’s factory, consignee received it without any objection and thereafter on 03.08.2010 E-mail was sent but thereafter written intimation was given on 14.09.2010 and in fact as per terms of the present policy the surveyor must have to examine and survey the loss.  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 information about damage.  But up to 03.08.2010 there was no question about position of the articles and another factor is that insurance company failed to take any note of the position of the truck, condition of the consigned articles etc. at spot at the time of delivery.  So, no doubt the complainant as insured did not comply the terms and conditions of the policy inspection by the MVI about the cause of accident. 

          So, we cannot rely upon such certificate which can be produced by consignee what is easily available and delivery was reported on 03.08.2010it was reported in writing long after 60 days and practically the insured article was found in the factory godown of the consignee not just after reaching of the consignment.  Considering all 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/sSinghivi Cylinder Pvt. Ltd. received it on 19.07.2010.  But from the complaint it is clear that complainant reported the matter first on 03.08.2010 by E-mail.  But it is his case that E-mail was sent on 03.08.2010 i.e. also long after 19 days from the date of delivery and most interesting factor is that declaration was made on 19.07.2010.  But it was dispatched on 14.07.2010.

          Then it is clear that this declaration No.34dated 19.07.2010 was submitted when delivery of consignment was already made.  But on 19.07.2010 the declaration was submitted regarding dispatch but on that date of delivery of consignment had already been made however about damage it was reported on 03.08.2010 after preparing all papers in support of his claim.

          Anyhow Ld. Lawyer for the complainant submitted that surveyor assessed the matter, visited the spot, and conducted the survey so report can be relied.  In this regard, we have gone through the surveyor’s report dated 29.11.2010 submitted by Mr. Suresh Gull, surveyor of Belgaum and as per his report, it is found that he conducted the survey on 26.11.2010 and from that report it is also clear that the surveyor found damages, after two months from the date of delivery and so surveyor opined that he did not get the chance to see the exact condition of the consignment at the time of delivery but only 262 rugs (Welding Wire) was found because the coated wireactually rusted but other 385 rugs were in good condition. So, insurance company did not get any such chance to see the position of the truck and the alleged consignment at the point of delivery.  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 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 to op that same had already been sold 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 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.  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 at rhe time of delivery.

          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 considering present aspects and other materials and also relying upon the ruling reported in 2013 (4) CPR 165 (N.C.) we are convinced to hold that in fact complainant in all respect violated the terms and conditions of the policy and adopted unfair means to get compensation and for which the complaint fails.

          Hence, it is

ORDERED

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