DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.134/10
M/s. Mahesh Agro Pvt. Ltd.
5585, 1st Floor, Lahori Gate
New Delhi-110006. .…Complainant
VERSUS
The Oriental Insurance Company Ltd.
Divisional Office No.15
G-8, NDSE-I
New Delhi-110049. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution: 06.03.2010
Date of Order : 10.05.2023
President: Ms. Monika A Srivastava,
The complainant has filed the present complaint seeking a sum of Rs.14,84,276/- being the value of claim payable under the policy along with interest @ 18% from the date of loss. The complainant has also prayed for Rs.2 Lakhs towards damages, harassment, inconvenience caused to the complainant as well as Rs.25,000/- as cost of litigation.
- It is stated by the complainant that he has been dealing in commodities generally for export from various places to port towns and then exporting by sea.
- It is stated for the safety of the material and to prevent the loss to the complainant he has been insuring the commodities against all risks including the risk of fire, earthquake and transit.
- It is stated that in this regard open policy of marine insurance was taken by the complainant from the OP for transit of rice from Punjab to UAE. The policy was taken for all risks including the risk of storage at the port town. An open sum insured policy which also included risk while re-processing at port towns.
- It is stated by the complainant that the material was transported to the town of Gandhidham where it was opened up and re-bagged for the purpose of standard export shipments.
- It is stated by the complainant that on 14.06.2008 there was heavy and continuous rain around Gandhidham because of which there was flood inundation, accumulation of water at several places and the water has risen to one to two feet in the godowns where the material was lying causing heavy damage to the material.
- The complainant lodged a claim with the OP for damages sustained due to flood which was a peril covered under the policy. The OP appointed M/s G.P. Dave & Sons as Surveyor to assess the loss.
- The Surveyor visited the site and took photographs of the damaged material and as per the direction of the Surveyor the complainant carried out segregation of the material and it was observed that the total of 22.40 MT of the material was affected by water. The Surveyor after making suitable allowance of salvage assessed the loss at Rs.13,23,614/- at invoice value.
- It is stated that the complainant provided all the documents relating to the consignments, damage suffered to the OP, however, the OP vide their letter dated 28.01.2009 rejected the claim of the complainant due to following reasons:-
- Non-compliance of formalities
- Non-receipt of Survey Report due to delay on your part. Assessed amount of loss is within excess. Therefore we are closing the file as No Claim.
- It is further stated by the complainant that the act of the OP in rejecting the claim is totally wrong as there was no excess in the policy for the storage part. The excess in the policy was only for the transit part and was applicable as per despatch/per truck to the extent of 2% and therefore the rejection is totally unjustified. However, the OP refused to reconsider the stand taken by the complainant that the interpretation given by the OP to the policy is deliberately wrong and malicious.
- It is stated by the complainant that he is entitled to amount of loss to the tune of Rs.13,23,614/- along with interest 10% extra for the expense as agreed in the policy.
- In their reply, the OP has stated that the complaint is liable to be dismissed as it does not disclose any cause of action. It is also stated that the complainant is not a consumer as per the provisions of the CPA.
- On merits, it is stated that the claim of the complainant being excess of 2% of sum insured which is applicable to all the claims under the policy, is not payable. It is stated that the sum insured was Rs.7,48,60,170/- and if calculation is done for 2 % excess of sum insured then the loss is less than the said amount and hence the claim of the complainant is not maintainable as per subscribed clauses mentioned in the policy.
- It is denied by the OP that there is no excess in the policy for the storage part or that it was only for the transit part and was applicable on per despatch/per truck to the extent of 2 %.
- It is stated by the OP that the policy was applicable from Punjab to UAE and the complainant had taken the policies consolidated and the storage consolidated in warehouse hence 2% of the excess is applicable on the whole. The complainant cannot pick and choose his benefits. It is stated that bifurcation of the goods is not applicable in this case because the goods were storage consolidated in the warehouse.
- In their rejoinder, the complainant has mostly denied all that has been stated by the OP in their reply. It is denied by the complainant that 2 per cent excess clause is applicable since no excess clause is mentioned in the policy of contract of insurance entered into between the parties.
Evidence has been filed by complainant as well as OP. Written Submissions have also been filed. Oral arguments were heard.
There is no doubt that the complainant is a consumer as they have taken the policy of insurance for insuring their products, therefore this preliminary objection of the OP is not found to be sustainable.
It is seen from the Certificate of Insurance filed by the complainant on record that the clause dealing with excess states as excess/applicable 2 percentage of sum insured (Per Despatch/Per Truck). This is seen in all the policy certificates.
It is also seen from the record that vide its letter dated 28.01.2009, the OP had rejected the claim of the complainant stating “assessed amount of loss is within excess. Therefore we are closing the file as no claim”. In its response, the complainant had written a letter dated 22.04.2009 wherein it is categorically stated that as per policy, the excess applicable is 2 per cent of sum insured (Per despatch/Per Truck). No excess is mentioned in the policy of insurance for storage, at the utmost if the excess is to be applied during storage period, it should be applicable as per “all India fire tariff”.
The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.”
It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP. This Commission has gone through the pleadings and documents filed by the complainant and find that complainant has not been able to discharge this onus of proving deficiency on the part of the OP.
The complainant is relying on the certificate of insurance stating that the insurance cover would be payable as the excess applicable is 2 per cent of sum insured (Per despatch/Per Truck) and not on storage part. The complainant has not placed any document on record to show that the terms of the policy are different and that excess is not mentioned in the storage period in the policy of insurance separately under the terms of policy. The terms and conditions of the policy has also not been placed on record. In our view the excess would be applicable to the policy as a whole and cannot be bifurcated.
This Commission is of the view that the complainant has not been able to discharge its onus and therefore, the same is dismissed without any order as to costs.
File be consigned to the record room after giving copy of the order to the parties as per rules.
