B
Order dictated by:
Sh.Anoop Sharma, Presiding Member
1. M/s. Shree Durga Bhawani through Prop. Sh.Punit Kumar has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant has obtained Open Marine Cargo Policy on consignment to consignment basis bearing No. 200201/21/12/02/0000006 for the period from 1.4.2012 to 31.3.2013 for sum insured Rs. 50 lacs which can be extended from time to time. The said policy contain cloth , shawls, chadders, woolen goods, staple goods, Cashmilon goods &/or textile goods of all kinds packed in bales &/or in cases. Value to be declared with each 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 complainant send goods in two bales vide invoice No. 563 dated 27.1,.2012 to M/s. Hanuman Bux Uma Dutt, Shillong and the same were dispatched through Mata Transport Pvt.Ltd vide GR No. 1800504 dated 27.1.2012. The declaration to the said effect was made to the opposite party No.2. Unfortunately the cloth around 103.25 mt in two bales was found short and the certificate to that effect was issued by the transporter . The claim for the amount of Rs. 17712/- was lodged with opposite party No.2. But the opposite parties repudiated the genuine claim of the complainant vide letter dated 28.10.2013 on the ground that “AFTER VARIOUS REMINDER NO REPLY RECEIVED FROM THE TRANSPORTER”. The said ground of repudiation is totally vague as the complainant has fulfilled all the formalities and submitted documents including shortage certificate from the transporter with the opposite parties. The complainant made several communications with the opposite party to know the reason of repudiation, but the opposite party did not pay any heed to the genuine request of the complainant. The complainant has sought for the following reliefs vide instant complaint:-
- Opposite parties be directed to pay the claim to the tune of Rs. 17712/- alongwith interest @ 12% p.a. from the date of filing of claim till realization ;
- Opposite parties be further directed to pay compensation to the tune of Rs. 50000/- alongwith adequate litigation expenses.
Hence, this complaint.
2. On notice, opposite parties No.1 & 2 appeared and filed joint written statement taking certain preliminary objections therein inter alia that the present complaint is not legally maintainable ; that complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum ; that complainant has got no cause of action to file the present complaint ; that complainant is guilty of his own act and conduct and is estopped from filing the present complaint ; that the complaint is nothing but an abuse of the process of the Forum and is filed with malafide intentions and ulterior motives and no relief can be granted on the basis of it; that the claim of the complainant is not covered under the policy as the alleged loss pertains to January 2012, whereas the policy commenced from 1.4.2012 to 31.3.2013. On merits it was admitted that the complainant obtained insurance policy from the opposite party . However, as per own version of the complainant, the alleged loss occurred in January 2012 as per invoice dated 27.1.2012 and intimation was given to company on 2.6.2012, whereas the insurance policy pertains to the period 1.4.2012 to 31.3.2013, as such the claim is not covered under the policy. The policy obtained by the complainant was for commercial purpose and as such this Forum has got no jurisdiction to entertain and try the present complaint. It was further submitted that as soon as the claim was lodged , the company processed the claim file and issued letter dated 27.9.2012, 8.11.2012 and 17.1.2013, but neither the complainant nor carrier submitted any loading and unloading report to the company. However, it was submitted that as per certificate issued by carrier, the date of knowledge regarding the loss is 8.2.2012 but the intimation to the company was given on 2.6.2012, whereas in view of clause No. 8 of the policy, at the time of loss, immediate notice in writing should be given to the company and no explanation has been given that why the complainant kept mum for more than five months. It was submitted that despite letter dated 19.8.2013 of investigator Ashwani Gupta , CA, no details and documents were provided to the company. Even delay in giving intimation to the company was not explained and no cooperation was given by the complainant or the carrier and no response and reply to the letters dated 27.9.2012, 8.11.2012 and 17.1.2013 was given . Even no proper FIR was lodged. As such 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 as no opportunity was given to the opposite parties to investigate the whereabouts of the consignment . As such the claim was rightly repudiated . While denying and controverting other facts, dismissal of complaint was prayed.
3. Opposite party No.3 did not appear despite having been opportunity as such it was ordered to be proceeded against ex-parte.
4. In his bid to prove the case Sh. Deepinder Singh,Adv.counsel for the complainant has tendered duly sworn affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-5 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence Ms.Sneh Lata Kapoor,Adv.counsel for opposite parties No.1 & 2 tendered affidavit of Sh.Surinder Singh, Divisional Manager Ex.OP1,2/1 alongwith documents Ex.OP1,2/2 to Ex.OP1,2/7 and closed the evidence on behalf of opposite parties No.1 & 2.
6. We have carefully gone through the pleadings of the parties, arguments advanced by the ld.counsel for the complainant as well as counsel for opposite parties No.1 & 2 and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for the parties .
7. On the basis of the evidence , ld.counsel for opposite parties No.1 & 2 has vehemently contended that there is no dispute that complainant was holder of Insurance policy for a sum of Rs. 50 lacs w.e.f. 1.4.2012 to 31.3.2013 bearing policy No. 200201/21/12/02/0000006 issued by the opposite parties No.1 & 2 which could be extended from time to time. Copy of Insurance cover accounts for Ex.C-2. It is also not disputed that the complainant sent goods in two bales vide their Invoice No. 563 dated 27.1.2012 to M/s. Hanuman Bux Uma Dutt, Shillong and the said goods were dispatched through opposite party No.3 vide their GR No. 1800504 dated 27.1.2012, copy whereof is Ex. C-3 on record. It is also not disputed that the goods were lost in transit and the carrier issued certificate to that effect , copy of which is Ex.OP1,2/5.. However, the complainant intimated opposite parties No.1 & 2 only on 2.6.2012 , which is in contravention of term and condition No.8 of the Insurance policy Ex.OP1,2/6. Term and conditions No. 8 is reproduced as under for ready reference:-
“In the event of any loss which may give rise to a claim under the Open policy, immediate notice thereof in writing should be given to the office of the company at 57, Railway Link Road, Amritsar 143001, Punjab and also to the company’s Divisional office nearest to the destination or the place of loss for holding a survey, if necessary. The liability of the company is only to succeed and not in any way supercede any claim which the insured may be entitled to make upon any carriers or other bailee who are primarily liable for the loss”.
It was incumbent upon the complainant to intimate opposite parties No.1 & 2 immediately regarding the loss of the goods in transit. But, however, without giving any explanation for the delay in intimating the opposite party, the claim was lodged by the complainant . The claim was probed into by the opposite parties No.1 & 2. However, vide repudiation letter Ex.C-5, the claim had to be repudiated. Not only on account of the fact that there was delay in intimating but also on account of the fact that the complainant failed to supply the requisite documents despite reminders, copies whereof are Ex.OP1,2/2 and Ex.OP1,2/4. The claim of the complainant has rightly been rejected by the opposite parties No.1 & 2 and it is contended that complaint qua opposite parties No.1 & 2 is liable to be rejected accordingly.
8. However, opposite party No.3 has been proceeded against ex-parte despite due service and none came from opposite party No.3 to contest the instant complaint which means & imply that opposite party No.3 has impliedly admitted the claim of the complainant. Moreover, opposite party No.3 has itself issued certificate regarding the shortage delivery of goods in dispute in transit to the tune of Rs. 16,102/- to the complainant vide their certificate, copy whereof is OP1,2/5 on record. Opposite party No.3 being consignee of the goods was under legal obligation to supply the entire goods to M/s.Hanuman Bux Uma Dutt,Shillong. But opposite party No.3 has been deficient in supplying the entire goods to purchaser for the reasons best known to it. In our considered opinion, opposite party No.3 is under legal obligation to indemnify the complainant for the price of the goods i.e. Rs. 16,102/- alongwith compensation & costs.. The liability of opposite parties No.1 & 2 to indemnify the complainant could come into picture only when the complainant had complied with the terms and conditions of the Insurance policy in dispute. It is proved on record through evidence that the complainant is guilty of flouting condition No. 8 of the Insurance cover. Had the complainant intimated the loss of the insured goods in time, the opposite parties No.1 & 2 could make an effort to trace the goods. As such opposite parties No.1 & 2 have rightly repudiated the claim of the complainant and no fault can be found in the repudiation so made.
9. Consequently instant complaint succeeds against opposite party No.3 and opposite party No.3 is directed to pay the amount of Rs. 16,102/- alongwith interest @ 9% p.a. from the date of filing of the complaint until full and final recovery. Cost of litigation are assessed at Rs. 2000/-. However, opposite party No.3 is given 30 days time to comply with the order ; failing which, complainant shall be entitled to get the order executed through the indulgence of this Forum. Complaint against opposite parties No.1 & 2 stands dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated: 10.1.2017. (Anoop Sharma) Presiding Member
(Rachna Arora)
Member
/R/
