PER:

Charanjit Singh, President

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant has taken an insurance cover from the opposite party No. 1 under the OPEN MARINE CARGO POLICY on consignment to consignment basis insured against all loss, damage and all risks for the period of risk covered from 22.9.2016 to 21.9.2017 vide No. 2003052116P108185898 issued by the opposite party No. 1. The opposite party No. 2 is the transport company whose services were hired by valuable consideration for exclusively earning his livelihood by means of self employment. The complainant who is working exclusively for earning his livelihood by means of self employment, sent the KRAFT PAPER to M/s Maharani Packaging, Shamshi, District Kullu (HP) vide its bill DPM/108 dated 8.7.2017 for Rs. 3,84,243/-  and the said goods were sent through opposite party No. 2 vide their G/R No. 20411 dated 8.7.2017 and the said goods were insured with the opposite party No. 1 vide declaration dated 8.7.2017 with the open marine cargo No. 20030521166P108185898 issued by the opposite party No. 1. The said goods reached its destination on 11.7.2017 with the opposite party No. 2 and it was found to be wet and damaged in transit and lost its saleable value and it was immediately intimated to the opposite party No. 1 who deputed the surveyor and assessed the loss to the tune of Rs. 3,40,000/- but the opposite party No. 1 arbitrarily deposited the amount of Rs.  1,39,341/- in the account of the complainant and the balance loss amount as assessed of Rs. 2,00,659/- has not been paid till the filing of the present complaint, inspite of several communications and futile visits with the opposite parties. The aforesaid acts of the opposite parties in not paying the complete amount of loss to the complainant is an act of deficiency in services, malpractice, unfair trade practice and has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant for which opposite parties are liable to pay the compensation of Rs. 50,000/- to the complainant. The complainant has prayed that

(i)      The opposite parties be directed to pay the amount of Rs. 2,00,659/- alongwith interest at the rate of 12% from 8.7.2017 till realization.

(ii)     The opposite parties be directed to pay the compensation of Rs. 50,000/- to the complainant.

(iii)    The opposite parties be directed to pay adequate cost of the litigation. 

3        After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by taking preliminary objections that the complainant is not covered under the definition of Consumer as defined in Consumer Protection Act, 1986. The complainant is estopped by its own act and conduct from filing the present complaint. The opposite party No. 1 had settled the claim in question of Rs. 1,33,117/- and after receiving the consent from the complainant, the insurance company paid the claim amounting to Rs. 1,39,341(i.e. Rs. 1,33,117/- being the approved amount plus Rs. 6,224/- as the survey fee) which was duly received by the complainant. As such, the complainant is neither entitled to nor has any ground whatsoever to file the present complaint. The loss in question was assessed by Er. Vishal Kumar Gautam (Surveyor & Loss Assessor) to the tune of Rs. 2,94,365/- vide report dated 15.9.2017. As per terms and conditions of the insurance policy in question, the complainant was required to produce the Damage Certificate, 25% of the assessed amount (i.e. Rs. 73,591) was deducted therefrom and Rs. 87,656/- were deducted being the value of salvage/ scrap (as consented by the complainant firm). Resultantly, the actual loss was assessed as Rs.1,33,117/- which was duly paid to the complainant. The loss assessed by the surveyor is best piece of evidence and same has to be taken as correct one unless the other party produces any cogent evidence to show that the said loss assessed by the surveyor is incorrect. The loss assessed by the surveyor is to be taken as final one. As such, the claim in question having been fully satisfied, the present complaint is not maintainable. The parties to the complaint are strictly governed by the terms and conditions of the policy in question. The contract of insurance is based on utmost faith and in this regard it is submitted that by producing making false representations it is apparent that the insured concern has used fraudulent means for filing the present complaint by concealing material information from this commission. As per general conditions of the contract of insurance, it has been clearly held that the insurance company will not be liable to pay any claim if the claim is found to be in any respect fraudulent or if any false declaration be made or used in support thereof or if any fraudulent means or devices are used by the insured or any one act is done on his behalf to take benefit under the policy, all the benefits under the said policy shall be forfeited. As the present claim has been settled and paid by the opposite party No. 1 on the basis of terms and conditions of the policy, there is no question of any delay or deficiency on the part of the opposite party No. 1. Hence, the relief of damages and costs in the present complaint is not payable. There is no such provision to grant any such relief either under the Consumer Protection Act nor there is any agreed clause in the contract of insurance to pay any such claim. The complainant has not approached this commission with clean hands and has misrepresented the material facts. On merits, it was pleaded that the complainant is not covered under the definition of Consumer as defined in Consumer protection Act 1986.  As far as obtaining of insurance policy from the opposite party No. 1 is concerned, the factum of the same is not disputed. However, the parties are governed as per terms and conditions of the contract of insurance.  The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.

4        The opposite party No. 2 has filed written version and has taken preliminary objections that the complainant is not consumer under the definition of Act as complainant firm is a big concern having its numerous employees, big supplier of paper product throughout India, transport vehicle etc. and is earning handsome profit and paying income tax. The complainant has misused the process of law by filing present complaint under the provisions of Consumer Protection act. The complaint is not legally maintainable. The complaint is bad for mis joinder of the opposite party No. 2. The opposite party No. 2 is a transporter and goods were delivered at its destination to the consignee intact and if there was any alleged defect or damage then the consignee must had taken open delivery from the opposite party No.2. On merits, it was pleaded that the complainant has employed labour, technical persons and administrative staff to run his business to earn profit. The complainant himself is not doing any work of his mill except for management.  The goods sent through opposite party No. 2 reached on 11.7.2017. The goods were delivered intact to the consignee at its destination and no intimation of alleged damage of the goods was given to the opposite party No.2.  The opposite party no. 2 has denied the other contents of the complaint and prayed for dismissal of the same.

5        To prove his case, the complainant has tendered in evidence his affidavit Ex. C-1, copy of invoice Ex. C-2, copy of intimation letter Ex. C-3, copy of  cover note Ex. C-4 and Ex. C-5 and closed the evidence. On the other hands,  Ld. counsel for the opposite party No. 1 has tendered in evidence, affidavit of Satpal Deputy Manager Ex. OP1/1, affidavit of Er. Vishal Kumar Gautam Surveyor and Loss Assessor Ex. OP1/2, copy of survey report Ex. OP1/3 and closed the evidence. Alongwith written version, the opposite party No.2 has placed on record affidavit of Ajay Sharma authorized official of Vishal Bharat Transport Company Mahan Singh Gate Amritsar Ex. OP2/A

6        We have heard the Ld. Counsel for the parties and have carefully gone through the record.

7        From the combined and harmonious reading of documents and pleading on record, it is proved that the complainant has taken an insurance cover from the opposite party No. 1 under the OPEN MARINE CARGO POLICY on consignment to consignment basis and the risk period covered from 22.9.2016 to 21.9.2017 vide No. 2003052116P108185898. The complainant sent the KRAFT PAPER to M/s Maharani Packaging, Shamshi, District Kullu (HP) vide its bill DPM/108 dated 8.7.2017 for Rs. 3,84,243/-  and the said goods were sent through opposite party No. 2 vide their G/R No. 20411 dated 8.7.2017 and the said goods were insured with the opposite party No. 1 vide declaration dated 8.7.2017 with the open marine cargo No. 20030521166P108185898 issued by the opposite party No. 1. When the consignment reached to its destination on 11.7.2017 it was found to be wet and damaged in transit and lost its saleable value and the matter was immediately intimated to the opposite party No. 1. Thereafter, the opposite party No. 1 deputed the surveyor Er. Vishal Kumar Gautom and he assessed the loss to the tune of Rs. 2,94,365/- vide report dated 15.9.2017 and as per terms and conditions of the insurance policy in question the complainant was required to produce damage certificate pertains to goods, however the complainant has failed to produce the damage certificate, 25% of the assessed amount (i.e. Rs. 73,592/- was deducted therefrom and Rs. 87,656/- were deducted being the value of salvage/ scrape as consented by the complainant firm as such the actual loss was assessed by the surveyor to the tune of Rs. 1,33,117/- which was duly paid to the complainant.  The opposite parties have taken the specific objection that the complainant is not a consumer under the definition of consumer protection Act as the complainant is running the business establishment,  But we are not agreed with this plea of the opposite party as the complainant is running the business for earning his livelihood. Moreover the insurance companies are to indemnity the loss of insured whether it is commercial or not. In this connection reliance has been placed upon M/s Harsolia Motors Vs M/s National Insurance Co. Ltd. decided on 3 December 2004. As such, the complainant falls within the definition of consumer. From the perusal of the surveyor report as well as the affidavit filed by the opposite party No. 1 it is going to prove that the loss was occurred to the complainant and there is no dispute regarding the loss. The surveyor of the opposite party No. 1 has calculated the loss to the tune of Rs. 2,94,365/- and as per report of surveyor Rs. 87,656/- was deducted as less scrap value ( it is written consent enclosed). But the report of surveyor as well as written version filed by the opposite party No. 1 there is no written consent has been enclosed by the opposite party No. 1, as such, opposite party No. 1 cannot deduct the said amount to the tune of Rs. 87,656/-. Further, the surveyor has mentioned in their affidavit that as the complainant failed to produce the damage certificate, hence 25% of the assessed amount i.e. Rs. 73,591/- was deducted there from. As such, actual loss was assessed to the tune of Rs. 1,33,117/-.  From the perusal of the surveyor report there is no mention about the deduction of Rs. 73,591/- on account of non production of damage certificate. The opposite party No. 1 has only placed on record terms and conditions of the policy but the same are not exhibited and proved on record as per evidence act, as such, same cannot be read in the present case. Moreover, the opposite party No. 1 has not specifically mentioned the clause under which they can deduct  the said amount on account of non production salvage/ scrap and damage certificate. As such, the opposite party cannot deduct the said amount from the loss assessed by the surveyor. Moreover, no consent by the complainant has been placed on record to return the salvage / scrape . The complainant has prayed for an amount of Rs. 2,00659/- that cannot be allowed as per surveyor report. He is only entitled for Rs.  87,656/- plus Rs. 73,591/- .

8        The opposite party No. 1 has failed to prove the averments made in their written version, as such, the amount 87,656/- plus Rs. 73,591/-  deducted by the opposite party No. 1 is deficiency in service as well as unfair trade practice.

9        In view of the above discussion, we partly allow the present complaint and the opposite party No. 1 is directed to pay Rs. 87,656/- (Rs. 87,656 + Rs. 73,591) to the complainant. The complainant has been harassed by the opposite party No. 1 unnecessarily for a long time. The complainant is also entitled to Rs.5,000/- ( Rs. Five Thousand only) as compensation on account of harassment and mental agony and Rs 4,000/- (Rs Four Thousand only) as litigation expenses. Opposite Party  No. 1 is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation.  The present complaint against the opposite party No. 2 is dismissed. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

06.09.2022