Haryana

Ambala

CC/4/2020

M/s Upper India Smelting and Refinery - Complainant(s)

Versus

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

Ashish Sareen

08 Jul 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                                      Complaint case no.         :        4 of 2020

                                                          Date of Institution           :     01.01.2020

                                                          Date of decision     :     08.07.2022.

         

M/s Upper India Smelting and Refinery Works O/o 11-B Industrial Area, Yamunanagar 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 Harshit Kapoor, 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 a sum of Rs.7,72,663/- as per Insurance rule.
2. To pay a sum of rupees 1,00,000/- as damages for harassing complainant and for not providing proper assistance.
3.  To pay a sum of rupees 25000/- as litigation, postal and visiting expense in the office of OP.

OR

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.1101002117P118451663 dated 22-03-2018, valid till 21-03-2019. During the subsistence of the said policy, the complainant placed a purchase order for material i.e remelted zinc blocks from M/s Deenam Pty Ltd, Australia, which was booked vide invoice no DPL/148/03 dated 26-03-2018 measuring total weight 24.530 MT. The said material arrived at Mundra port on 11-05-2018 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 3910 Kg was found. After thorough investigation, the surveyor submitted report and accessed the loss of Rs.7,72,663/- 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 cause of action, mis-joinder and non-joinder of necessary parties, not come with clean hands and suppressed the material facts etc.   On merits, it is stated that while admitting factual matrix of the case regarding obtaining of insurance policy in question by the complainant, it is stated that  the OP has legally and rightly repudiated the Claim of the Complainant on 20.03.2019 vide Ref No. DOA; KSA; TS; 2019, 5475, as the reason for alleged shortage in quantity of goods remained "unexplained" by the complainant. The OP had appointed a surveyor in this regard to assess the loss, who on inspection found that the seal of container was untampered (intact) and container too was externally sound at delivery point i.e. Mundra Port. It was also observed that the no. of packages at the time of delivery taken at Mundra Port were 21 Blocks, which were exactly the same, as at the time of dispatch by the consigner and more over as per the claim form submitted by the complainant to the OP, the condition of the packages at the time of taking delivery were found "OK". After getting the survey report, the OP demanded certain mandatory documents, which were not supplied by the complainant, despite sending various reminders. The complainant had been informed via E-Mail dated 21.02.2019, to supply the copy of G.R., copy of Inland transport from Supplier's warehouse/Godown to Loading Port along with weight slip, copy of Weight Slip of Container at Port of Loading done by Shipping Line or Port Authorities, Pre Dispatch Inspection Report. As per the Policy, at page 5 of 17, under the column of Underwriter Remarks it is clearly mentioned that "all High Seas consignments shall be covered with this Policy subject to Inspection of Consignment Insured before Dispatch & Invoice Value + Freight + Custom Duty + 2 % Expenses." Finally on 11.03.2019, the above mentioned documents were demanded but the complainant failed to provide the same to the OP, as a result of which, his claim was rightly repudiated on 20.03.2019. Rest of the averments of the complainant were denied by the answering OP and prayed for dismissal of the present complaint with costs.

4.       Learned counsel for the complainant tendered affidavit of complainant as Annexure C/A alongwith documents as Annexure C-1 to C-5 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP tendered affidavit of Sh. Tajinder Singh, Assistant Manager, M/s United India Insurance Company, as Annexure OP/A alongwith documents Annexure OP-1 to OP-5 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 3910 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 their 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. 1101002117P118451663 dated 22-03-2018, Annexure C-1, which was valid till 21-03-2019. During the subsistence of the said policy, complainant placed a purchase order for material i.e remelted zinc blocks from M/s Deenam Pty Ltd, Australia, which was booked vide invoice no DPL/148/03 dated 26-03-2018 measuring total weight 24.530 MT. However, the dispute arose, when as per the version of the complainant, the material which arrived at Mundra port on 11-05-2018 and consignor intimated the same on 16-05-2018 and on inspection, shortage of material weighing 3910 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 in question i.e. Annexure OP-5 it is evident (at page 5 of 17 of the said policy)  it has been agreed to between the parties that ALL THE HIGHSEAS CONSIGNMENT SHALL BE COVERED WITH THIS POLICY SUBJECT TO INSPECTION OF CONSIGNMENT INSURED BEFORE DESPATCH AND INVOICE VALUE+ FREIGHT+ CUSTOM DUTY + 2% EXPENSES.  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;- when the surveyor submitted its report dated 24.12.2018, Annexure C-2 wherein he opined that the complainant has failed to provide certain documents i.e. G.R. 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 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 number of emails/letters dated 21.02.2019, 17.07.2019, followed by final notice dated 11.03.2019, to provide them the said documents, 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 it (complainant) failed to place on record the said documents. 

10.               Since, 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 24.530 MT, in the absence thereof the contention of the complainant that the weight was less when the consignment reached at Mundra Port is not tenable, as such, the OP cannot be set to be wrong in repudiating the claim of the complainant.  

11.               In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove his case, therefore, no relief can be given to him. Resultantly, this complaint stands dismissed with no order as to costs. 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: 08.07.2022.

 

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

              Member                         Member                       President