THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR
Consumer Complaint No. 273 of 2014
Date of Institution : 15.5.2014
Date of Decision : 25.08 2015
M/s. Duggal Shawl Industries through its Prop.Renu Duggal Bazar Karmon Deori, Amritsar
...Complainant
Vs.
United India Insurance Co.Ltd, through its Branch Manager/Principal Officer Branch Office, 57, Railway Link Road, Amritsar
North Eastern Carrying Corporation Ltd. Having office at 36, Transport Nagar, Jhajgarh,Amritsar through its Prop./Partner/Branch Manager/Principal Officer
....Opp.parties
Complaint under section 12/13 of the Consumer Protection Act, 1986
Present : For the complainant : Sh.Rajesh Bhandari,Advocate
For the opposite party No.1 : Sh. Rajinder Nayyar,Advocate
For opposite party No.2 Sh.Danish Bansal,Advocate
Quorum : Sh. Bhupinder Singh, President ,Ms. Kulwant Bajwa,Member &
Sh.Anoop Sharma,Member
Order dictated by :-
-2-
Bhupinder Singh, President
1 Present complaint has been filed by M/s. Duggal Shawl Industries through its Prop.Renu Duggal under the provisions of the Consumer Protection Act alleging therein that complainant obtained insurance policy namely Marine Cargo Open Policy from opposite party No.1 vide policy No. 200201/21/11/020000008 for the period from 13.4.2011 to 12.4.2012. The complainant sent one consignment of shawls through opposite party No.2 vide GR No. 62-16459027 dated 24.10.2011 for delivery at Patna in favour of M/s. Radhika Synthetic Patna vide bill No. 7896 dated 22.10.2011 for a sum of Rs. 50,600/-. At the time of sending consignment through opposite party No.2, opposite party No.2 assured the complainant that the consignment shall reach at its destination as early as possible. But after a long time when the goods did not reach at its destination and the complainant did not receive its acknowledgment, the complainant approached the opposite party No.2 but they could not give any satisfactory reply. Ultimately opposite party No.2 disclosed that the consignment has been lost during transportation and the matter was reported to the police by the driver of opposite party No.2 at Patna police and opposite party No.2 issued certificate of facts .After receiving certificate and other documents from opposite party No.2, complainant lodged claim with opposite party No.1 alongwith all the other relevant documents. But opposite party No.1 repudiated the claim of the complainant vide letter dated 17.1.2013 without assigning any reason. Alleging the same to be deficiency in service complaint was filed seeking directions to the opposite party No.1 to make payment of Rs. 50600/- alongwith interest @ 18% p.a.. Opposite parties be also directed to pay compensation of Rs. 50000/- alongwith litigation expenses.
2. Opposite party No.1 in its written version has submitted that the complainant has booked one bale of W-Shawls from Amritsar to Patna vide challan No. 16459027 through opposite party No.2 on 24.10.2011 for delivery at Patna destination in favour of M/s. Radhika Synthetic Patna. But the said consignment did not reach its destination and the complainant informed opposite party No.1 regarding the loss of the said consignment during transportation on 6.4.2012. After intimation by the complainant to the opposite party, opposite party No.1 deputed its investigator M/s. A.R.Claims Recovery Bureau for the investigation of the said loss. During investigation it was found that the subject consignment was booked by opposite party No.2. The said consignment was despatched two time firstly the same was despatched on 28.10.2011 on truck No. PB-23-F-0778 from Amritsar to UP Border showing that the said bale was weighing 60 kg in one packet and thereafter the same was loaded from UP Border to Patna vide challan No. 43125719 dated 2.3.2012 of truck No. UP-61-J-7717 showing two packets of 30 kg each which shows that the said document is fake one because at the time of loading from Amritsar the said consignment was one packet and when the same was loaded on 2.3.2012 the said consignment was of two packets of 30 kg each. Even during the investigation the investigator has got the copy of challan from the carrier company which shows that the said consignment which was dispatched on 30.10.2011 was 60 KG in one packet and when the said consignment was dispatched from Chikamberpur to Patna Junction on 2.3.2012 it shows that the said consignment is of 2 packets of 30 kg each. It was submitted that if one packet was booked, how the transporter has opened that packet and converted into two packets. The investigator has also received a letter from opposite party No.2 dated 25.5.2012 in which opposite party has admitted that the subject consignment dispatched from Chikamberpur to Patna Junction through truck No. JH-02-H-3052 on 30.10.2011 vide manifest No. 43122036 wherein bale short received at Patna which was traced out by internal auditor during yearly stock verification and the same was dispatched again through truck No. UP-61-J-7711 on 2.3.2012 after about 130 days from the date of original dispatch which is against the terms and conditions of the policy. It was submitted that complainant has violated the terms and conditions of the policy because it was found by the investigator that the consignment was lying at carrier godown and dispatched after 130 days, whereas the policy covers the risk upto only 63 days. Even otherwise it was the duty of the complainant to inform the opposite party immediately from the loss of goods. But the complainant took more than six months to inform opposite party and has informed on 6.4.2012 which is against terms and conditions of the policy. It was further submitted that no FIR regarding this loss has been registered by the concerned carrier . While submitting that the claim has rightly been repudiated and while denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite party No.2 in its written version has submitted that the goods were booked by the complainant with opposite party No.2 on “owners risk” basis as the complainant had insured the goods completely from their insurer. It was submitted that opposite party No.2 carried the goods with due care and diligence but the same were lost during transit, as such opposite party No.2 is not liable for the loss and injury to the goods. It was agreed that any claim will be raised by the complainant with the Insurance company only. Opposite party No.2 admitted that vide GR No.62-16359027 dated 24.10.2011 the complainant booked the goods with opposite party No.2 and the freight of Rs. 339/- was paid by the complainant to opposite party No.2. Even the liability of the carrier is only 10 times of freight amount as per section 12(1) of Carriage by Roads Rules 2011. Opposite party No.2 carried the goods with the utmost care. However, the goods have been lost in transit and the driver of the truck No. UP 61 J 7711 has reported the matter to the police vide letter
dated 6.3.2012 before the police Station Chowk, Patna City regarding the loss of goods in transit. The damage did not occur due to any negligence or want of care on the part of opposite party No.2. Opposite party No.2 took all reasonable care which is expected in such circumstances. So for the loss in transit, the opposite party No.2 is not liable. The consignment was not destroyed because of any Criminal Act or negligence on the part of opposite party No.2 or its agent.
4. Complainant tender into evidence his affidavit Ex.C-1 alongwith documents Ex.C-3 to Ex.C-7.
5. Opposite party No.1 tendered affidavit of Sh. Surinder Singh, Sr. D.M Ex.OP1/1 alongwith documents Ex.OP1/2 to Ex.OP1/14.
6. Opposite party No.2 did not produce evidence, as such defence of opposite party No.2 is struck off vide order dated 5.11.2014.
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 the ld.counsel for the complainant and opposite party No.1 with the valuable assistance of the ld.counsel for the complainant and opposite party No.1.
8. From the record i.e. pleadings of the parties and the evidence produced on record by the complainant and opposite party No.1 , it is clear that complainant obtained insurance policy namely Marine Cargo Open Policy from opposite party No.1 vide policy No. 200201/21/11/020000008 Ex.C-2 for the period from 13.4.2011 to 12.4.2012. The complainant sent one consignment of shawls through opposite party No.2 vide GR No. 62-16459027 dated 24.10.2011 for delivery at Patna in favour of M/s. Radhika Synthetic, Patna vide bill No. 7896 dated 22.10.2011 Ex.C-5 for a sum of Rs. 50,600/-. After a long period await the goods did not reach at its destination and the complainant did not receive its acknowledgment. The complainant approached the opposite party No.2 but they could not give any satisfactory reply. Ultimately opposite party No.2 disclosed that the consignment has been lost during transportation and the matter was reported to the police by the driver of opposite party No.2 at Patna police vide letter Ex.C-7 and opposite party No.2 issued certificate of facts Ex.C-6. After receiving certificate and other documents from opposite party No.2, complainant lodged claim with opposite party No.1 alongwith all the other relevant documents. But opposite party No.1 repudiated the claim of th complainant vide letter dated 17.1.2013 without assigning any reason. Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite parties qua the complainant.
9. Whereas the case of opposite party No.1 is that the complainant has booked one bale of W-Shawls from Amritsar to Patna vide challan No. 16459027 through opposite party No.2 on 24.10.2011 for delivery at Patna destination in favour of M/s. Radhika Synthetic, Patna. But the said consignment did not reach its destination and the complainant informed opposite party No.1 regarding the loss of the said consignment during transportation on 6.4.2012. Opposite party No.1 deputed its investigator M/s. A.R.Claims Recovery Bureau for the investigation of the said loss. During investigation it was found that the subject consignment was booked by opposite party No.2. The said consignment was despatched two time firstly the same was despatched on 28.10.2011 on truck No. PB-23-F-0778 from Amritsar to UP Border showing that the said bale was weighing 60 kg in one packet and thereafter the same was loaded from UP Border to Patna vide challan No. 43125719 dated 2.3.2012 of truck No. UP-61-J-7717 showing two packets of 30 kg each which shows that the said document is fake one because at the time of loading from Amritsar, the said consignment was one packet and when the same was loaded on 2.3.2012 the said consignment was of two packets of 30 kg each. The copy of challan obtained from carrier company shows that the said consignment which was despatched on 30.10.2011 was 60 kg in one pack. How the said consignment came into two packets of 30 kg each ? How the transportation has opened that packet and converted into two packets ? The Investigator has also received a letter from opposite party No.2 dated 25.5.2012 Ex.OP1/7 in which the opposite party has admitted that the subject consignment despatched from Chikamberpur to Patna Junction through Truck No. JH-02-H-3052 on 30.10.2011 vide manifest No. 43122036 wherein bale short received at Patna which was traced out by the internal auditor during yearly stock verification and the same was despatched again through truck No. UP-61-J-7711 on 2.3.2012 after about 130 days from the date of original dispatch which is against the terms and conditions of the policy. During investigation , it was also found that the said consignment was lying at Carrier godown and dispatched after 130 days , whereas the policy cover the risk upto only 63 days. Even otherwise it was the duty of the complainant to inform the opposite party No.1 immediately regarding the loss of goods. But the complainant has taken more than six months to inform the opposite party No.1 and has informed the opposite party for the first time on 6.4.2012. No FIR or DDR regarding this loss has been registered by the concerned carrier. Whereas the documents show that the complainant in connivance with opposite party No.2 has procured the false documents to get the claim from opposite party No.1. The report of investigator is Ex.OP1/2. Opposite party No.1 has repudiated the claim of the complainant on the ground that no FIR against short certificate has been lodged and the complainant is also too late to lodge claim to Insurance company vide letter dated 26.3.2013 Ex.OP1/13. Ld.counsel for opposite party No.1 submitted that there is no deficiency of service on the part of opposite party No.1 qua the complainant.
10. Whereas case of opposite party No.2 is that the goods were booked by the complainant with opposite party No.2 on “owners risk” basis as the complainant had insured the goods completely from their insurer. Opposite party No.2 carried the goods with due care and diligence but the same were lost during transit. As such opposite party No,.2 is not liable for the loss and injury to the goods. It was agreed that any claim will be raised by the complainant with the Insurance company only. However, opposite party No.2 admitted that vide GR No.62-16359027 dated 24.10.2011 the complainant booked the goods with opposite party No.2 and the freight of Rs. 339/- was paid by the complainant to opposite party No.2. Even the liability of the carrier is only 10 times of freight amount as per section 12(1) of Carriage by Roads Rules 2011. Opposite party No.2 carried the goods with the utmost care. However, the goods have been lost in transit and the driver of the truck No. UP 61 J 7711 has reported the matter to the police vide letter dated 6.6.2012 Ex.C-7 before the police Station Chowk, Patna City regarding the loss of goods in transit. The damage did not occur due to any negligence or want of care on the part of opposite party No.2. Opposite party No.2 took all reasonable care which is expected in such circumstances. So for the loss in transit, the opposite party No.2 is not liable. The consignment was not destroyed because of any Criminal Act or negligence on the part of opposite party No.2 or its agent. Ld.counsel for opposite party No.2 submitted that there is no deficiency of service on the part of opposite party No.2 qua the complainant.
11. From the entire above discussion, we have come to the conclusion that complainant obtained Marine Cargo Open Policy bearing No. 200201/21/11/0200000008 Ex.C-2 from opposite party No.1 for the period from 13.4.2011 to 12.4.2012. It stands also proved on record that complainant sent one consignment of shawls through opposite party No.2 vide GR No. 62-16459027 dated 24.10.2011 for delivery at Patna in favour of M/s. Radhika Synthetic, Patna vide bill No. 7896 dated 22.10.2011 Ex.C-5 for a sum of Rs. 50,600/-. Opposite party No.2 was bound to give delivery of the consignment to the consignee at Patna destination . But opposite party No.2 failed to deliver the goods to the consignee. When the complainant approached opposite party No.2 , they could not give any satisfactory reply and ultimately submitted that consignment has been lost during transportation and the matter was reported to the police by the driver of opposite party No.2 Mr. Manoj at Patna City Police Station vide application dated 6.3.2012 Ex.C-7 and opposite party No.2 issued certificate of facts Ex.C-6. On receipt of the certificate of facts Ex.C-6 and other relevant documents, complainant lodged claim with opposite party No.1 vide claim form dated 6.4.2012 Ex.OP1/5. The complainant also wrote letter dated 15.3.2012 Ex.OP1/6 to the opposite party No.1 regarding registration of claim. But the opposite party No.1 repudiated the claim of the complainant vide letter dated 26.3.2013 Ex.OP1/13 on the ground that as per investigator report, there is no FIR against short certificate and the party was also too late to lodge claim to Insurance company. On receipt of report of loss of consignment from the complainant , opposite party No.1 appointed investigator
M/s. A.R. Claims Recovery Bureau, New Delhi, who after survey submitted his report Ex.OP1/2 dated 10.6.2012 vide which the investigator concluded that the subject consignment was booked by the complainant with carrier company i.e. opposite party No.2. However, during investigation , the investigator found that it is not possible that one consignment was despatched two times and cannot short two times as transporter is saying vide letter dated 25.5.2012 Ex.OP1/8 that the consignment was despatched from Chikamberpur to Patna Junction through truck No. JH-02-H-3052 on 30.10.2011 vide manifest No. 43122036 wherein bale short received at Patna which was traced out by the internal auditor during yearly stock verification. So they have despatched again the goods through truck No. UP-61-J-7711 manifest No. 43125719 dated 2.3.2012 which bale is lost in transit and this manifest number/challan No. Ex.OP1/9 shows that the weight of this consignment was only 30 Kg each in two packets, whereas the consignment was booked and sent through truck No. JH-02-H-3052 on 30.10.2011 in one pack of 60 kg weight. The investigator further concluded that it is also not possible that loading manager unloaded the goods and shown in the challan that goods were loaded. After five months transport again despatched same goods were lost in transit. So there is some doubt of dispatch of consignment at the level of the transporter. This investigator also investigated the matter from police station Patna City and met the concerned investigator , who confirmed that there is no proper FIR. However, there was police complaint in this regard.
12. So it stands fully proved on record that the complainant booked the consignment in question with opposite party No.2 on 24.10.2011 but the same did not reach to the consignee at destination point Patna. The complainant has insurance policy i.e. Marine Cargo Open Policy Ex.C-2 from opposite party No.1 and the said consignment lost by opposite party No.2 during transit. So the opposite party No.1 is liable to compensate the complainant under the aforesaid insurance policy. The complainant lodged claim with opposite party No.1 vide claim form Ex.OP1/5 dated 6.4.2012 alongwith all the relevant documents. But opposite party No.1 repudiated the claim vide letter dated 26.3.2013 Ex.OP1/13 on the ground that there is no FIR against short certificate and the complainant has also lodged claim with the Insurance company very late. The complainant was informed by opposite party No.2 regarding the loss of the consignment on 15.3.2012 Ex.OP1/3 when the opposite party No.2 issued certificate of facts regarding the loss of the consignment. The complainant immediately reported to opposite party No.1 vide letter dated 15.3.2012 Ex.OP1/6 and lodged claim vide Marine claim form Ex.OP1/5 dated 6.4.2012. So there is no delay in lodging the claim by the complainant with opposite party No.1.
13. As regards FIR it was the duty of the police to record the FIR. However, complaint was lodged with the police by the driver of the truck No. UP-61-J-7711 to Police Station Chowk Patna City vide application dated 6.6.2012 Ex.C-7. So the opposite party No.1 was bound to pay claim to the complainant as they have suffered loss of consignment of Rs. 50,600/-. However, opposite party No.1 can recover the same from opposite party No.2 as per law because it appears that opposite party No.2 did not take proper care of the consignment and in order to save their skin , they have created the story as narrated above which is highly doubtful.
14. So this complaint is disposed of with the directions to opposite party No.1 to pay the claim of the complainant of Rs. 50,600/- within one month from the date of receipt of copy of orders ; failing which opposite party No.1 shall be liable to pay interest @ 9% p.a from the date of filing of the complaint till payment is made to the complainant. Opposite party No.1 is also directed to pay litigation expenses Rs. 2000/- to the complainant. Copies of the order be furnished to the parties free of costs. 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.
25.08.2015 ( Bhupinder Singh )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
/R/ Member Member
