Order dictated by:

Sh.S.S. Panesar, President

1.       M/s.Punit Kumar & Bros, through its proprietor  has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant has taken an insurance cover from Opposite Parties  under the open marine cargo policy on consignment to consignment basis which are said to contain the cloth shawls, chadders, woolen goods, staple goods, chashmilon goods & / or textile goods of all kinds packed in bales &/ or in cases. Value to be declared with ach declaration on CIF+10% basis. Insured against the Rail &/ or Lorry risks & / or carrier risks, insured against all risks of physical loss or damage warehouse to warehouse risk, SRCC risk & five weeks extension cover risk. The total sum insured as endorsed is for Rs.1 crore for the period commencing 1.4.2012 to 31.3.2013 vide policy noe No. 200201/21/12/02/0000004 issued by Opposite Parties No.1 and 2 which can be extended from time to time. The complainant sent goods in two bales  vide their invoice No.1180/1 dated 6.11.2012 to M/s.Shanti Cloth Store, Rupadia, the said goods were dispatched through Narang Transport Company vide their GR No.150569 dated 6.11.2012 and the declaration to the said effect was made to the Opposite Party No.2 as required under the insurance cover and was acknowledged by Opposite Party No.2. Said gods which are in two bales, the one bale unfortunately was stolen/ lost at Rupadia and the claim for the amount of Rs.25,590/- was lodged with Opposite Party No.2 which is duly bound to indemnify the complainant and the Opposite Party No.2 acknowledged the claim of the complainant, but they repudiated the claim of the complainant vide their letter dated 28.10.2013 on the frivolous and vague ground that “after various reminder no reply received from the transporter”. Said  ground of  repudiation is totally vague and it is pertinent to mention over here that all formalities and documents including shortage certificate from the transporter have been provided to the Opposite Parties. The aforesaid act of the Opposite Parties  in repudiating  the genuine claim of the complainant is on frivolous grounds is an act of deficiency in service, unfair trade practice and malpractices and is not sustainable in the eyes of law and has caused lot of mental tension, agony and harassment to the complainant. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties  be directed to pa the claim of the complainant to the tune of Rs.25,590/- alongwith interest 2 12% per annum from the date of filing the claim till realization.

b)      Opposite Parties  be directed to pay the compensation of Rs.50,000/-

c)       Opposite Parties  be directed to pay the adequate cost of the present litigation.

Hence, this complaint.

2.       Upon notice, opposite parties No.1 ,2 & 3 appeared and contested the complaint by filing  their separate written statements.

3.       Opposite Parties No.1 and 2 filed written statement taking preliminary objections therein inter alia that the present complaint is not legally maintainable; that the complainant has not come to this Forum with clean hands and suppressed the true and material facts from this Forum, as such, he is not entitled to any relief as claimed for; that the complainant is guilty of his own act and conduct and is estopped from filing the present complaint; that the matter  in controversy involved in the present complaint requires a lengthy procedure of leading evidence and cross examination of witnesses, which can not be adjudicated in a summary procedure and as such, this Forum has got no jurisdiction to adjudicate the matter in controversy. On merits, it is submitted that as soon as the claim was lodged and intimation was given to the company, the company processed the claim file and it was  found that as per manifest certificate issued by carrier, the date of knowledge regarding the loss is 24.12.2012 to the complainant, but the intimation to the company was given on 23.5.2013, whereas in view of clause 8 of the policy, at the time of loss, immediate notice in writing should  be given to the nearest office of the company and no explanation has been given that why the complainant kept mum for more than five months, as such, the company was not able to process the claim any further as the claim lodged was late in time and in this respect, the complainant was duly informed through e-mail as well as vide letter dated 26.8.2013 and he was duly informed that the claim can not be entertained.  It was incumbent upon the complainant to inform the company at 57, Railway Link Road, Amritsar and to the nearest Divisional Office of the company to the destination or the place of loss for holding a survey, which the complainant failed to do so in time. Hence due to any act done against the terms and conditions of the policy in question, the insurance company is not liable to pay any compensation/ claim.  It is further stated that even then the complainant and carrier were many times  requested to supply the requisite documents/ papers but even after various reminders, no reply was received and no response was received from the side of the complainant or the carrier and thus the complainant has failed to submit the requisite documents and accordingly, the claim file of the complainant was closed as No claim and intimation in this regard was given to the complainant on 28.10.2013.                    Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

4.       Opposite Party No.3 filed written statement taking preliminary objections therein inter alia that the complainant has not come in the court with clean hands and suppressed the material facts; that the jurisdiction fo this Forum is barred as per the terms and conditions of the policy in question. It is clearly mentioned in para No.14 of the terms and conditions of the policy in question that all the disputes whatsoever shall be strictly confirmed to the Jurisdiction of Courts at Delhi;  the complaint is legally not maintainable against the answering Opposite Party; that the goods of the complainant were booked with the replying Opposite Party at owner risk, moreover, it is clearly mentioned in the letter bearing Ref.No.NMTC/ASR/CL/01/12-13 dated 10.5.2013. On merits, Opposite Party No.3 took up same and similar pleas as taken up by them in preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

5.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2  to Ex.C 7  and closed his evidence.

6.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties No.1 and 2  tendered into evidence the affidavit of Sh.Surinder Singh, Divisional Manager Ex.OP1,2/1 alongwith copies of documents Ex.OP1,2/2 to Ex.OP1,2/5. Opposite Party No.3 tendered into evidence affidavit of Sh.Gurdeep Singh, Manaager Ex.OP3/1 alongwith documents Ex.OP3/2 to Ex.Op3/3  and closed the evidence on behalf of the Opposite Parties.

7.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

8.       From the evidence on record, ld.counsel for the complainant has vehemently contended that the complainant is holder of  Open Marine Cargo Policy on consignment to consignment basis  for Rs.1 crore valid  w.e.f.1.4.2012 to 31.3.2013 vide policy note No. 200201/21/12/02/0000004 issued by Opposite Parties No.1 and 2 which was extendable from time to time. It is an admitted fact that the complainant sent gods in two bales vide invoice No.1180/1 dated 6.11.2012 to M/s.Shanti Cloth Store, Rupadia, through Opposite Party No.3  vide GR No.150569 dated 6.11.2012 and the declaration to the said effect was made to the Opposite Party No.2 under the insurance cover which was  acknowledged by Opposite Party No.2. It is not disputed that one bale worth Rs.25,590/- was unfortunately stolen/ lost at Rupadia. Intimation regarding the same was given to the complainant vide letter dated 24.12.2012 by M/s.Shanti Cloth Store, Rupadia, copy whereof is Ex.OP1,2/3. The complainant also issued letter Ex.OP1,2/6 calling upon Opposite Party No.3 to make good the loss and claimed the bill amount of Rs.25,590/-  from Opposite Parties No.1 and 2 vide letter Ex.OP1,2/2 on 23.5.2013. But Opposite Parties No.1 and 2 refused to pay the claim stating that the date of the knowledge regarding loss was 24.12.2012, but intimation was given to insurance company only on 23.5.2013 wherein in view of the clause 8 of the policy immediate notice in writing was required to be given to the nearest office of the company and no explanation has been given that why the complainant kept mum for more than five months, and why the claim was lodged at such belated stage. However the claim was closed on 28.10.2013 as the same was not found to be payable by  Opposite Parties No.1 and 2. In our considered opinion, the claim has been rightly held to be ‘no claim’ by Opposite Parties No.1 and 2 because the complainant floated the terms and conditions of the policy in question and no intimation regarding the loss of one bale out of the consignment was given to Opposite Parties  immediately. Since the terms and conditions of the policy in question are binding inter se parties, therefore, the claim was found to be ‘no claim’ rightly by Opposite Parties No.1 and 2.

9.       So far as the claim regarding Opposite Party No.3 is concerned, Opposite Party No.3 being transporter was under legal and contractual obligation to deliver the goods safe and sound at the address of the consignee under intimation to the complainant. But however, it is admitted case on the part of the Opposite Party No.3 that one bale out of the two, sent through their transport company was lost on the way on 24.12.2012. It is also none of the case of the Opposite Party No.3 that the bale was returned to the complainant as undelivered. In such a situation, the loss occasioned to the complainant is attributable to Opposite Party No.3 and Opposite Party No.3 is duty bound to make good the loss of the complainant to the tune of Rs.25,590/-. Reliance in this connection  can be had on Economic Transport Organisation-Appellant Vs. Charan Spinning Mills (P) Limited & Anr- Respondents 2010(2) CLT page 302, (SC) wherein it has been laid down that thus where the consignor establishes loss or damages or non delivery of goods, it is deemed that negligence on the part of the carrier is established. The Carrier may avoid liability if it is establishes that loss, damage or non delivery was due to an act of God or circumstances beyond its control.  Section 14(1)(d) of the Act does not operate to relieve the carrier against the presumption of negligence created under section 9 of the Carriers Act.  In the case in hand, the documents produced by Opposite Party No.3 do not disprove their liability regarding the loss occasioned to the complainant. No police report regarding the loss of consignment has been lodged nor any intimation regarding the loss was given to the complainant in time and as such, Opposite Party No.3 failed to prove the defence regarding the liability. Further, reliance can be had on DHTC (India) Limited and Anr. Petitioner Vs. M/s.Jayanthilal and Company. Respondent 2010(3) CPC 377 (NC) wherein it has been held that the consignment being 40 bags of tea, which was perishable article with the passing of time, the petitioner was required to return the consignment in case the consignee had not received the consignment, immediately after refusal by the consignee, but delay on the part of the petitioner had resulted in the consignment being spoiled due to lapse of time.  In this view of the matter, we do not find any merit in the second submission as also the third submission made by the counsel for the petitioner. For the foregoing reasons, we find no ground to interfere with the impugned order of the Fora below. The revision petition is accordingly dismissed with no order as to costs.  The law laid down in the judgement supra is fully applicable to the present case. The complainant has been able to prove that the Opposite Party No.3 was negligent in the loss of one bale sent through their transport company for onward delivery and the loss to the tune of Rs.25,590/-  had occasioned to the complainant on that account which Opposite Party No.3 is under legal and contractual obligation to make good the loss to the complainant. Consequently, we direct Opposite Party No.3 to pay an amount of Rs.25,590/- alongwith interest @ 9% per annum from the date of filing the complaint until full and final payment. The costs of litigation are assessed at Rs.2,000/-. The complaint stands allowed  accordingly against Opposite Party No.3 while same against Opposite Parties No.1 and 2 fails and is ordered to be dismissed accordingly. 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.

Announced in Open Forum