BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 274 of 2014

Date of Institution: 15-05-2014

Date of Decision: 21-08-2015 

M/s.Dewan Woolen Industries through its Proprietor Banarsi Dass Duggal, Bazar Karmon Deori, Amritsar. 

Complainant

Versus

1. United India Insurance Company Limited, through its Branch Manager/ Principal Officer, Branch Office, 57, Railway Link Road, Amritsar.
2. Frontier Roadline India, having office at Plot No. 65, Transport Nagar, Opposite Pataka Market, Jhajgarh, Amritsar through its Proprietor/ Partner/ Branch Manager/ Principal Officer.

Opposite Parties

Complaint under section 12 and 13 of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant: Sh. Rajesh Bhandari, Advocate

              For the Opposite Party No.1: Sh.Rajinder Nayyar, Advocate

              For the Opposite Party No.2: Sh.S.K.Sharma, Advocate

Quorum:

Sh.Bhupinder Singh, President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.Bhupinder Singh, President.

1. Present complaint has been filed by  the complainant under the provisions of the Consumer Protection Act alleging therein that  the complainant firm availed the insurance policy ‘Marine Cargo Open Policy’ from Opposite Party No. 1 vide No.200201/21/11/0200000009 valid for the period from 13.4.2011 to midnight 12.4.2012. Complainant sent one consignment of shawls through Opposite Party No.2 vide GR No. 124784 dated 18.11.2011 for its destination at Patna in favour of M/s.Shree Nath Ji Collections, Khetia (Maharashtra) vide two different bill Nos. 3929 and 3930 dated 15.11.2011 for total sum of Rs.15484/- and Rs.10202/- respectively, in all Rs.25,686/-. At the time of sending consignment through Opposite Party No.2, the Opposite Party No.2 assured the complainant that the aforesaid consignment shall reach its destination as early as possible. But after a period of long time, when the goods were not reached at its destination and complainant did not receive its acknowledgement, the complainant approached the Opposite Party No.2 and enquired the matter regarding its consignment, but the matter was lingered on by the Opposite Party No.2 on one pretext or the other. However, after many visits made by the complainant in the office of Opposite Party No.2, the Opposite Party No.2 disclosed that the consignment has not reached at its destination by the Opposite Party No.2. A ‘short certificate’ dated 22.3.2012 was issued by Opposite Party No.2 of the facts for non delivering of the goods. After receiving the certificate and other documents from the Opposite Party No.2, the complainant immediately without any delay approached Opposite Party No. 1 for its claim and filed its claim before Opposite Party No. 1 alongwith all relevant and requisite documents, but the Opposite Party No. 1 repudiated the claim of the complainant with the remarks that as per investigators  report, there is no FIR against ‘short certificate’ and party lodged the claim too late. The aforesaid act of the Opposite Parties for not settling the claim of the complainant is an act of deficiency of service, unfair trade practice and mal-practice.Alleging the same to be deficiency in service, complaint was filed seeking directions to the opposite parties to  make the payment of Rs.25,686/- alongwith interest @ 18% per annum from the date of its dispatch till its actual realisation. Compensation and litigation expenses were also demanded.
2. On notice, Opposite Party No.1 appeared and filed written version in which it was submitted that the  complainant has booked one bail of Shawls from Amritsar to Shahda via Ludhiana and Indore on 18.11.2011 vide GR No. 124784 which was not reached at its destination place and the complainant has informed the Opposite Party No. 1 regarding the loss on 3.4.2012 approximately after the period of 5 months and just after the intimation, the Opposite Party No. 1 deputed its investigator to investigate the matter. Said investigator  visited  the office of Opposite Party No.2 and asked to show loading and unloading challan, but Opposite Party No.2 refused to show any loading and unloading challan, thereafter the investigator visited the carrier office at Ludhiana and during investigation, he was informed that the said consignment arrived at Ludhiana and the same consignment  dispatched to Indore and when the said carrier was asked to show the loading and unloading challan, he also refused and informed that the said record sent to Indore Office. Thereafter, the said investigator visited the office of said carrier at Indore and asked them to show the loading and unloading challan and copy of the FIR regarding the loss of the goods, but the said office has reported that the said consignment was not received to Indore office till 27.9.2012 and he was not in possession of any document. Opposite Party No. 1 further submitted that ‘short certificate’ on the basis of which this claim was lodged by the complainant, has been issued by Amritsar branch office who has dispatched the said consignment and as per the law, said office is not authorized to issue the short certificate because the short certificate  was issued by the destination office and not by the booking office which shows that the complainant in connivance with the Opposite Party No.2 has procured this short certificate from the Opposite Party No.2 to get the claim from Opposite Party No. 1 and this certificate is false and frivolous document and has no value in the eyes of law. Moreover, the complainant has informed the Opposite Party No. 1 regarding this loss about 5 months after the date of delivery which is against the terms and condition of the policy and even no FIR has been got registered by the carrier or the complainant regarding the said loss which is necessary for the settlement of the claim as such on the basis of investigation report  and as per the terms and conditions of the policy, the Opposite Party No. 1 has rightly repudiated the claim of the complainant.    While denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite Party No.2 appeared and filed written version in which it was submitted that there is no deficiency of service on the part of Opposite Party No.2. The Opposite Party No.2 is not liable for any damage/ compensation to the complainant nor any relief can be granted to the complainant against the Opposite Party No.2. It is only the Opposite Party No. 1-Insurance Company which is liable for the damage/ compensation as claimed by the complainant.  Moreover, when the goods in question were not found, the Opposite Party No.2 accordingly issued the short certificate dated 22.3.2012. The goods were lost during the transportation, but there is no negligence on the part of the Opposite Party No.2.  While denying and controverting other allegations, dismissal of complaint was prayed.
4. Complainant tendered into evidence his affidavit Ex.C1 alongwith documents Ex.C2 to Ex.C7 and closed the evidence on behalf of the complainant.
5. Opposite Party No.1 tendered into evidence affidavit of Sh.Surinder Singh, Senior D.M. Ex.OP1/1 alongwith documents Ex.OP1/2 to Ex.OP1/6 and closed the evidence on behalf of the Opposite Party No.1
6. Opposite Party No.2 tendered into evidence affidavit of Sh.Baldev Singh Pathania Ex.R1 and closed the evidence on behalf of Opposite Party No.2.
7. We have carefully gone through the pleadings of the parties; arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for both the parties.
8. From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that the complainant firm availed the insurance policy ‘Marine Cargo Open Policy’ from Opposite Party No. 1 vide No.200201/21/11/0200000009 valid for the period from 13.4.2011 to midnight 12.4.2012. Complainant sent one consignment of shawls through Opposite Party No.2 vide GR No. 124784 dated 18.11.2011 Ex.C4 from Amritsar to Shahda (Maharashtra) in favour of M/s.Shree Nath Ji Collections, Khetia (Maharashtra) vide two different bill Nos. 3929 and 3930 dated 15.11.2011 (Ex.C3)  for total sum of Rs.15484/- and Rs.10202/- respectively, in all Rs.25,686/-. At the time of sending consignment through Opposite Party No.2, the Opposite Party No.2 assured the complainant that the aforesaid consignment shall reach its destination as early as possible. But after a period of long time, when the goods were not reached at its destination and complainant did not receive its acknowledgement, the complainant approached the Opposite Party No.2 and enquired the matter regarding its consignment, but Opposite Party No.2 could not submit any proper reply. Ultimately, Opposite Party No.2 disclosed that consignment has not reached at its destination and they issued ‘short certificate’ dated 22.3.2012 Ex.C5. After receiving the short certificate, the complainant approached Opposite Party No. 1 for insurance claim and also submitted all relevant documents to Opposite Party No. 1, but Opposite Party No. 1 also did not settle the claim of the complainant, rather they repudiated the claim of the complainant vide letter dated 26.3.2013 with the remarks that as per the investigator report Ex.Op1/6, there is no FIR against short certificate and the complainant  also lodged the claim too late to the insurance company. So, the claim is not payable.  Ld.counsel for the   complainant  submitted that all this amounts to deficiency of service on the part of the opposite parties.
9. Whereas the case of the Opposite Party No.1 is that on receipt of the claim form from the complainant Ex.OP1/2, Opposite Party No. 1 got the matter investigated from A.R.Claims Recovery Bureau  who vide their report dated 23.11.2012 Ex.Op1/6 submitted that the complainant has booked one bale of  Shawls from Amritsar to Shahda via Ludhiana and Indore on 18.11.2011 vide GR No. 124784  Ex.C4 of Opposite Party No.2 which did not reach at its destination. The complainant has informed the Opposite Party No. 1 regarding the loss on 3.4.2012 after the period of 5 months. After getting intimation from the complainant, the Opposite Party No. 1 deputed its investigator to investigate the matter. Said investigator  visited  the office of Opposite Party No.2 and asked them to show loading and unload challan, but Opposite Party No.2 refused to show any loading and unloading challan. Thereafter, said  investigator visited the carrier office at Ludhiana and during investigation, he was informed that the said consignment arrived at Ludhiana and the same consignment  was dispatched to Indore and when the said carrier was asked to show the loading and unloading challan, he also refused and informed that the said record  has been sent to Indore Office. Thereafter, the said investigator visited the office of said carrier at Indore and asked them to show the loading and unloading challan and copy of the FIR regarding the loss of the goods, but the said office has reported that the said consignment was not received to Indore office till 27.9.2012. As such, he was not in possession of any document. Opposite Party No. 1 further submitted that ‘short certificate’ on the basis of which this claim was lodged by the complainant, has been issued by Amritsar branch office who has dispatched the said consignment and as per the law, said office is not authorized to issue the ‘short certificate’ because the ‘short certificate’  was issued by the destination office and not by the booking office which shows that the complainant in connivance with the Opposite Party No.2 has procured this ‘short certificate’ from the Opposite Party No.2 to get the claim from Opposite Party No. 1 and this ‘short certificate’ Ex.C5  is totally false and frivolous document. Moreover, nothing has been  mentioned in this ‘short certificate’ about the loss of the goods where and when it was lost nor the matter was ever reported to the police nor any truck/ vehicle number has been mentioned where the loss occurred. No FIR was got registered by carrier. The complainant has informed  the Opposite Party No. 1  regarding this loss about 5 months. On the basis of investigation report Ex.Op1/6 as well as terms and conditions of the policy, Opposite Party No. 1 has repudiated the claim of the complainant which was duly informed to the complainant.  Ld.counsel for the opposite party No.1 submitted that there is no deficiency of service on the part of the Opposite Party No.1 towards the complainant.
10. Whereas the case of Opposite Party No.2 is that the goods lost in transit were covered under the valid insurance policy issued by Opposite Party No. 1, as such, it is the liability of the Opposite Party No. 1 to make the payment of the insurance claim to the complainant. Opposite Party No.2 is not at fault for non delivery of the goods. The goods were lost during the transportation, as such, there is no negligence on the part of the Opposite Party No.2. Opposite Party No.2 is not liable for any alleges loss suffered by the complainant during transit.  Ld.counsel for the opposite party No.2 submitted that there is no deficiency of service on the part of the Opposite Party No.2 qua the complainant.
11. From the entire above discussion, we have come to the conclusion that  the complainant got insurance policy ‘Marine Cargo Open Policy’ from Opposite Party No. 1 vide No.200201/21/11/0200000009 valid for the period from 13.4.2011 to midnight 12.4.2012 (Ex.C2). Complainant sent one consignment of shawls from Amritsar to Shahda (Maharashtra) in favour of M/s.Shree Nath Ji Collections, Khetia (Maharashtra) as per  two different bill Nos. 3929 and 3930 dated 15.11.2011 (Ex.C3)  for total sum of Rs.15484/- and Rs.10202/- respectively, in all Rs.25,686/-,  through Opposite Party No.2 vide GR No. 124784 dated 18.11.2011 Ex.C4. Said consignment did not reach its destination at Shahda/Khetia (Maharashtra). Opposite Party No.2 issued short certificate dated 22.3.2012 Ex.C5 which reads as under:-

“GR No. 124784x1 dated 18.11.11 Ex.Amritsar to Shahads consignor M/s.Dewan Woolen Industries, Amritsar, consignee M/s.Shree Nathji Collection, Shahada weight 50 Kg. No of Articles one dispatch to Ludhiana vide Ch.No. 3180 dated 21.11.11.

Remarks on way bill  by booking station. This certificate issued without prejudice without admittance of any liability on the part of Transport to enable the consignee/ consignor  to prefer the claim. We confirm that the above certificate cover with their under written insurance Co.”

Nowhere in this ‘short certificate’ Ex.C5,  Opposite Party No.2 has mentioned regarding the loss of the consignment nor they have given any detail, where the loss has occurred, whether during the transit i.e. transportation, on which truck/ vehicle the loss/ theft has taken place, nor Opposite Party No.2 has mentioned the number of the truck/ vehicle on which said consignment was being carried nor the Opposite Party No.2 could produce the statement of truck/ vehicle driver or cleaner who was the Incharge of that truck/ vehicle on which the consignment was being carried nor the Opposite Party No.2 has mentioned the date or month when the said loss/ theft of the consignment had taken place. Opposite Party No.2 has also failed to prove on record any challan i.e. loading/ unloading challan to prove that said consignment was ever loaded on which vehicle or the same was got unloaded from the said vehicle nor any FIR/ Report was lodged with any police station by any representative or agent of Opposite Party No.2 regarding the loss of the consignment. This ‘short certificate’ is nothing, but a paper just to create liability of the insurance company. Whereas Opposite Party No.2- transport company could not produce any evidence in the form of loading or unloading challan to prove that the consignment in question was ever loaded on any truck/ vehicle nor any truck/ vehicle number has been mentioned on the GR Ex.C4. All this shows that the Opposite Party No.2 never loaded the consignment of the complainant on any vehicle for transportation to Ludhiana and further to its destination i.e. Shahada/ Khetia (Maharashtra). All this proves that the consignment has been misappropriated by Opposite Party No.2 at Amritsar itself and was never sent to its destination that is why the Opposite Party No.2 could not produce any challan i.e. loading/ unloading challan to prove that said consignment of the complainant was ever loaded in any vehicle for transportation to its  destination, that is why Opposite Party No.2 could not produce any document regarding this consignment. Further, ‘short certificate’ dated 22.3.2012 Ex.C5 was also issued by Opposite Party No.2 at Amritsar whereas the short / loss certificate is always issued at the destination office of transport. Further, Opposite Party No.2 could not produce any evidence as to how they came to know regarding the loss of the consignment of the complainant, when they came to know about the loss of the consignment of the complainant, who informed them at Amritsar regarding the loss of the consignment of the complainant and what action has been taken by Opposite Party No.2 to trace out the consignment of the complainant and what action has been taken by the police or the administrative authority of that area, where the alleged occurrence of the loss of the consignment of the complainant had taken place. All this fully proves that the consignment has been misappropriated by Opposite Party No.2 at Amritsar itself, that is why the Opposite Party No.2 could not produce any evidence regarding its loading on which vehicle, what was its number and when it was loaded. They have simply stated to the complainant that the consignment was sent to their Ludhiana office. Opposite Party No. 1 got conducted investigation from A.R.Claims Recovery Bureau, report of which is Ex.Op1/6 dated 23.11.2012,said investigator  approached Ludhiana Office of Opposite Party No.2 who simply stated that they had sent the consignment to Indore, but Ludhiana office of Opposite Party No.2 could not produce any loading challan nor they could state on which vehicle/ truck the consignment of the complainant was sent to Indore,  on which day/date, month and vehicle, nor they could produce any evidence  that consignment had ever reached Ludhiana Office of Opposite Party No.2.Whereas the Indore office of Opposite Party No.2 has categorically stated that they never received  any consignment of the complainant at Indore. All this fully proves that the consignment of the complainant has been misappropriated by Opposite Party No.2 at Amritsar itself. As such, even the criminal liability is also attachable to Opposite Party No.2. The complainant as well as Opposite Party No. 1 are at liberty to lodge complaint to the police against Opposite Party No.2 regarding the misappropriation of the consignment of the complainant.

12. No doubt, the complainant got ‘Marine Cargo Open Policy’ from Opposite Party No. 1 vide policy No.200201/21/11/0200000009 valid for the period from 13.4.2011 to midnight 12.4.2012, but the Opposite Party No. 1- Insurance Company is liable to pay only the genuine claim and not liable to pay the compensation of the goods misappropriated intentionally/ willfully by the Opposite Party No.2-transporter.
13. Consequently, we hold that it is the Opposite Party No.2 who are liable to pay the amount of the consignment i.e. Rs. 25,686/- as mentioned by Opposite Party No.2 on its GR Ex.C4 itself, to the complainant and the Opposite Party No. 1-insurance company can not be held liable under the aforesaid ‘Marine Cargo Open Policy.
14. Resultantly, the complaint is allowed against Opposite Party No.2 with costs and the Opposite Party No.2 is directed to pay the amount of Rs.25,686/- alongwith interest @ 9% per annum from the date of filing of the complaint till the payment is made to the complainant. Opposite Party No.2 is also directed to pay the costs of litigation to the complainant to the tune of Rs.2,000/-.  Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Dated: 21-08-2015.                                                   (Bhupinder Singh)                                                                                               President

hrg                                                (Anoop Sharma)     (Kulwant Kaur Bajwa)   

              Member                         Member