Haryana

Ambala

CC/5/2020

M/s Upper India Inorganic Industries Ltd - Complainant(s)

Versus

United India Insurance Co Ltd - Opp.Party(s)

Ashish Sareen

27 Sep 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :        5 of 2020

                                                          Date of Institution           :     01.01.2020

                                                          Date of decision    :     27.09.2022.

         

M/s Upper India Inorganic Industries Limited, # 241 Chandasna Road, Chhatral Mehsana Highway, Mehsana Gujrat through its Prop. Atul Gupta.

                                                                             ……. Complainant.

                                                Versus

          United India Insurance Company Limited through its Sr. Divisional Manager Municipal Committee Road, Punjabi Mohalla, Ambala Cantt.

 

                                                                             ….…. Opposite Party.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri Ashish Sareen, Advocate, counsel for the complainant.

Shri Dev Batra, Advocate, counsel for the OP.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To pay Rs.1,90,542/- as per Insurance rule.
2. To pay Rs.1,00,000/- as damages for harassing complainant and for not providing proper assistance.
3.  To pay Rs.25,000/- as litigation, postal and visiting expense in the office of OP.

OR

Grant any other relief which this Hon’ble Commission may deem fit.    

2. Brief facts of the case are that the complainant had purchased a marine cargo open policy from the OP vide Insurance Policy no.1101002117P114079623 dated 04.01-2018, valid till 03.01-2019. During the subsistence of the said policy, the complainant placed a purchase order for material i.e zinc Dross from M/s Deenam Pty Ltd, Australia, which was booked vide invoice no DPL/167/04 dated 19.04.2018 measuring total weight 21.000 MT. The said material arrived at Mundra port on 14-05-2018 and consignor intimated the same on 16-05-2018 for survey to the complainant. The seal on consignment was inspected by surveyor on 22-5-2018 and material was inspected on 23-05-2018 and after inspection, the shortage of material weighing 870 Kg was found. After thorough investigation, the surveyor submitted report and accessed the loss of Rs.1,71,151/- against actual loss of Rs.1,90,542/- on account of above said shortage. After intimation of the said fact to the OP, it demanded several documents from the complainant, which were provided to it. However, when the claim of the complainant was not settled, legal notice dated 13-06-2019, Annexure C-3, was served upon the OP. Thereafter, the representative of the complainant approached the OP, for clarifying the status of claim but was shocked to hear that the claim was repudiated. This fact was informed orally and reason for repudiation has still not been given in writing. Hence, the present complaint.

3.       Upon notice, OP appeared through its counsel and filed written version, raised preliminary objections with regard to maintainability, bad for non-joinder and mis-joinder of necessary parties, not come with clean hands and suppressed the material facts etc.  On merits, while admitting factual matrix of the case that complainant who has been defaulted on all grounds to comply with the T & C of the policy. It cannot be denied by the complainant themselves that on getting the intimation of loss, the OP had immediately asked the R.O. Ahmedabad to appoint a surveyor in this regard to assess the alleged intimated loss. Accordingly “M/s Dipole Adjusters” (Insurance Surveyors & Loss assessors) were appointed to assess the loss. He proceeded on 21.05.2018 and attended there it on 22.05.2018 to the place wherein consignee reported shortage in a container consignment arrived at Mundra Port on 14.05.2018. Survey was conducted on 22.05.2018 at ALLCARGO Logistics Ltd., where externally sound container # MXCU0017314 having intact Shipper’s Seal  # BCRA014609 as per B/L 160118001546 was presented for survey and on due examination (on opening the sealed container) by the customs Authority on 23.05.2018, Surveyor inspected/verified quantity. There were 427 packages of ZINC DROSS of various sizes as per the invoice. For the purpose of assessment of loss the surveyor wrote many emails to complainant dated 23.05.2018, 28.05.2018, 30.05.2018, 08.06.2018 and even reminders thereafter so on, to supply weightment slip of the empty container, weighment slip of supplier, confirmation of loading the goods, pre-dispatch Inspection report, photographs/videography confirming loading of container, in land transit documents etc. so as to procure sufficient documentary evidences establishing the chain which could confirm loss despite intact sealed container. But no satisfactory reply or document was received by him, hence who after through verification on the basis of difference in B/L quantity & Actual quantity assessed the Gross Amount of loss to Rs.1,71,151/- subject to excess and policy condition. But otherwise the surveyor has in detail submitted in its report dated 24.12.2018, that this was a claim of “un-Explained” lossess. The consignment characteristic (Remelted Zinc) was not of evaporative in nature & in view of eternally sound container #MSKU 5764310 & intact Shipper’s Seal #AU1407307 at port of discharge (i.e at Mundra) the reported shortage was un-Explained in Nature. It was also submitted by him that the shortage was appeared while container # MSKU 5764310 in possession of the Shipper M/s Maersk Line”.  That after getting the survey report the OPs sought clarification & further documents with to complete the chain of documents vide Regd letter NO.4877, mail dated 21.02.2019 etc and even notices through mail dated 11.03.2019. Even above mail for the purpose of clarification was also sent to consigner namely M/s Deeman Pty Ltd, Australia, but no reply was sent by either the complainant nor by his consigner. Since the issuance of the policy the complainant had not reported regarding any order or shipment qua any goods being imported under policy in question.  Infact as per policy, declaration qua all orders even prior to shipment should have been made/given to the insurer. In the present cast too, no declaration or intimation prior to placing order or dispatch was ever given to the insurance company. Even GR copy of inland transport from Suppliers warehouse/godown to loading port alongwith the weight slip, copy of weight slip of container at Port or loading done by shipping line or port authorities was not supplied. Even there is no pre Dispatch Inspection Report etc. Finally when nothing satisfactory was heard from the complainant, the OP vide letter dated 20.03.2019 “closed the claim file as Repudiated”. As per policy T & C “...... . . All high seas consignments shall be covered subject to pre-inspection of consignments before dispatch, all over the world......”. Hence in view of underwriters remark in policy and verification of ICC(A) coverage under policy #1101002117P114079623, no liability is made out.  Rest of the averments of the complainant were denied by the answering OP and prayed for dismissal of the present complaint.

4.                 Learned counsel for the complainant tendered affidavit of complainant as Annexure C/A alongwith documents as Annexure C-1 to C-4 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP tendered affidavit of Shrija Jain, Assistant Manager, United India Insurance Company Limited, D.O, Ambala Cantt., and Shri Jigar Jasvantray Trivedi, bearer of SLA License # IRDA/IND/SLA-74929 and of sole Proprietor of M/s Dipole Adjusters, located at 26, Cellar, Vijay Complex, Vasna, Ahmedabad-380007 as Annexure OP1/A & OP1/B alongwith documents Annexure OP1/1 to OP1/12 and closed the evidence on behalf of OP.

5.                 We have heard the learned counsel for the parties and carefully gone through the case file.

6.                 Learned counsel for the complainant submitted that since the OP was legally bound to pay the amount towards the loss of the said material weighing 870 Kg, as the same was covered under the policy in question, yet, its genuine claim has been repudiated by OP which act amounts to deficiency in providing service, negligence and adoption of unfair trade practice on its part. 

7.                 On the contrary, the learned counsel for the OP submitted that because the complainant has failed to prove its case with regard to the alleged loss caused to the consignment, which was covered under the insurance policy in question and also did not provide the mandatory documents, despite making number of requests in the matter, thereafter, the claim of the complainant was rightly repudiated as per terms and conditions of the insurance policy.

8.                It is not in dispute that the complainant had purchased a marine cargo open policy from the OP vide Insurance Policy no. 1101002117P114079623 dated 04.01.2018, Annexure C-1, which was valid till 03.01.2019 and during subsistence of the said policy, the complainant placed a purchase order for material i.e. zinc Dross from M/s Deenam Pty Ltd, Australia, which was booked vide invoice no DPL/167/04 dated 19.04.2018 measuring total weight 21.000 MT. However, the dispute arose, when as per the version of the complainant, the said material which arrived at Mundra port on 14.05.2018 and consignor intimated the same on 16-05-2018 and after inspection, on 23.05.2018, shortage of material weighing 870 Kg was found.

9.                Under these circumstances, the moot question which falls for consideration by this Commission is as to whether, the claim of the complainant was rightly rejected by the OP or not? It is very significant to mention here that as per terms and conditions of the Insurance Policy dated 04.01.2018, Annexure OP-1/1 it is evident (at page 5 of 17 of the said policy) that it has been agreed to between the parties that ALL THE HIGH SEAS CONSIGNMENT SHALL BE COVERED WITH THIS POLICY SUBJECT TO PRE-INSPECTION OF CONSIGNMENTS BEFORE DESPATCH. The policy in question containing detailed terms and conditions placed on record by the OP has not been disputed by the complainant. However, it is an admitted fact that the surveyor submitted its report dated 24.12.2018, Annexure OP-1/4 wherein he opined that the complainant has failed to provide certain documents i.e. copy of P.O. and O.A.; documents regarding clarification to Gross/Net weight by the consignee/assured; and also pre-despatch inspection certificate from the seller which were mandatory and also at the same time has failed to prove that the material in question was  actually found short, at the time of delivery thereof, because the seal of the container was found intact and also the container in question was also found in sound condition;- thereafter, the OP sent email dated 21.02.2019, Annexure OP-1/10 and final notice dated 11.03.2019, to provide it GR. copy of Inland transport from Supplier’s warehouse/godown to Loading port alongwith weight slip; copy of weight slip of container at port of loading done by shipping line or port Authorities and also pre-despatch inspection certificate from the seller, so that its claim could be processed but the complainant failed to provide the same to the OP. It is also significant to mention here that number of opportunities were available with the complainant to place on record those documents before this Commission, especially, when a specific plea of non-submission thereof was taken by the OP and the main reason for repudiation also rested on the said plea, but the complainant failed to place on record the said documents. 

10.               Since, when the complainant has failed to provide the pre-dispatch inspection certificate issued by the seller of the said material, which was a legitimate document to establish shipment of net weight of 21.000 MT, alongwith other documents referred to above, and the same were not provided despite the fact that the OP requested the complainant for the same, therefore, we do not hesitate to conclude that there was a gross violation of mandatory condition of the policy;- and as such inference could easily be drawn that infact there is no operation of any insured peril due to which the loss has occurred but on the other hand, it is a case of short delivery of material by the seller, which was not covered under the policy in question. Thus the OP cannot be said to be wrong in repudiating the claim of the complainant, especially, when on inspection the container was found sound with intact shipper’s seal, this fact also admitted by the complainant in the letter dated 22.05.2018, Annexure OP-1/3, having been written to the OP.

11.              In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove its case, therefore, no relief can be given to it. Resultantly, this complaint stands dismissed with no order as to cost. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 27.09.2022.

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President