Order-15.

Date-16/06/2015.

Complainant Sudarshan Paper & Board Pvt. Ltd., represented by Navneet Bajaj by filing this complaint submitted that complainant got supply paper and paper boards from different Manufacturing Industries in India and to safeguard the loss and damages goods in transit the complainant took marine cargo policy No. 030300/21/09/02/0000064 for sum insured of Rs. 10 crores and validity period was from 26.12.2009 to midnight 25.12.2010 on payment of the required premium from the op no.1 United India Insurance Co. Ltd. and the risk covered for SRCC and limit per transit was for Rs. 26 lakhs the coverage included paper & paper board of all kinds.

The Murli Industries Ltd. of 101, Jai Bhawani Socoety, Central Avenue, Wardhaman Nagar, Dist- Nagpore is one of the suppliers of paper and paper board of the complainant under the latter’s order.  But under consignment No. 795712 dated 14.06.2010 the Murli Industries Ltd., being the seller and consignor sent 254 bundles of Duplex Boards duly packed by truck No. WB-23-B-4520 from the supplier’s factory Vadoda, Nagpur through M/s. Manfgalam Paribahan Pvt. Ltd. for its delivery to the complainant being the purchaser and consignee at its godown No. 14-9 Kali Prasanna Singhee Road, Cossipore, Kolkata-2 in safe condition.

The said loaded truck with cargo of M/s. Mangalam Paribahan Pvt. Ltd. while proceeding along the highway from Kanjipani and reached near village Kuanr on Baitarani Bridge under Kanjipani P.S., Dist- Keonjhor, Odissa at about 20:30 Hrs on 20.06.2010 suddenly met with an accident and fail down from the said bridge into a road side cannel which was full of water and due to impact of the accident, the vehicle got damaged and the loaded cargo was badly affected by the cannel water and immediately after of the accident a complaint was lodged by the truck driver to Kanjipabni P.S. as the truck was unable to move further due to the accident the cargo was transshipped to another truck being No. WB-33A-2715 at the spot for continuing further journey towards the consignee’s final destination at Kolkata in West Bengal and the said truck arrived at the carrier’s godown at 15, Kali Prasanna Singhee Road, Cossipore, Kolkata-2 on 27.06.2010.

The invoice value of the goods was Rs. 4,19,280/- vide suppliers Invoice No. SPI/1011/SB0488 dated 14.06.2010.  Complainant on getting the sad message of accident by letter dated 21.06.2010 informed the op United Insurance Company Ltd. who then appointed S.K. Mitra & Co. Surveyors and Loss Assessors of Kolkata for doing the proper survery and the said S.K. Mitra & Co. on 28.06.2010 visited the carrier’s godown at 15, Kali Prasanna Singhee Road, Cossipore, Kolkata – 700002 and made a survey in presence of the complainant’s representative Mr. Satish Gupta and it was noticed that the goods were yet to be unloaded from the truck.  The said S.K. Mitra & Co. on 29.06.2010 informed the complainant to arrange for inspection of materials and it was confirmed by the complainant immediately after the receipt of the surveyor’s letter dated 29.06.2010 and on 03.07.2010 S.K. Mitra & Co. revisited the Carrier’s godown in present of complainant’s representative Mr. Sekhar Kumar Singh and the carriers representative Amar Chatterjee and it was found that out of 254 bundles only 231 bundles of Duplex Board were produced by the carrier for inspection in water soaked and damaged condition and the remaining 23 bundles were not brought for inspection and it was the shortage which will be evident from the shortage certificate of the carrier.

Complainant duly paid the value of the goods to Murli Industries Ltd. who endorsed the same as paid on the Invoice on 21.06.2010 and complainant also lodged a claim in Marine Claim Form to the op Insurance Company without making any delay and submitted the required documents to the op with the said form and S.K. Mitra & Co. by his survey report dated 10.08.2010 assessed the loss at Rs. 74,777/- only.  Complainant on seeing the damaged condition of the goods on 03.07.2010 offered a survey value of Rs. 8/- per Kg as the optimum value of salvage and the surveyor gladly accepted the same and the surveyor by a letter dated 14.07.2010 informed the complainant that there had been an aggravation of loss  at the rate 60 percent due to delay and as such the said loss on aggravation had been taken into consideration of final assessment of loss.  But the complainant vehemently opposed by the letter dated 17.07.2010 to such arbitrary and whimsical calculation of loss and it was highly dissatisfied and therefore disagreed to admit the same.

Complainant wrote letters on 17.07.2010, 17.08.2010 and 23.08.2010 to the surveyor with copy to the op raising protest against the aggravation clause of the surveyor in his report but no reply was received from either the surveyor or the insurance company.  Thereafter complainant referred under letter dated 19.10.2010 the calculations of other surveyors over the loss of cargo of the same product and from the same consignor, but the op did not consider the same and by letter dated 21.10.2010 categorically informed the op’s Regional Head Marine Insurance that the complainant was not accepting the claim settlement offered by the Insurance Company and requested for neutral re-survey of material and also stated that the salvage was laying untouched and this letter was received and acknowledged by the op’s Regional Head Office (Marine Insurance).

But complainant by a letter dated 09.11.2010 requested the Regional Head Grievance Section with copy to op and expressed the grievances against the wrong calculation of loss made by S.K. Mitra & Co. and the Regional Head was thereby requested for taking suitable action in the matter but in vain and the assessment of loss made by S.K. Mitra & Co. in the report dated 10.08.2010 is highly unjust and improper and not based upon any rational and legal prudence and the 60 percent aggravation of loss is totally baseless and arbitrary.

   That Murli Industries Ltd. obtained technical opinion about aggravation of damage/loss dated 20.08.2010 and sent it to the complainant and that report has been nullified the report of S.K. Mitra & Co. though it was submitted to S.K. Mitra & Co. yet it was not considered either by the said surveyors or the op and its higher authorities.  Thereafter complainant asked the op for settlement the claim in proper and legal way but they did not take any step and thereafter complainant made an application dated 10.09.2013 under the RTI Act, 2005 to the CPIO for inspection of documents lying in the Claim File of the op’s office and the op by a letter dated 24.09.2013 asked the complainant to attend their office on 27.09.2013 for the purpose of inspection of documents lying in the Claim File and after perusal of the op’s claim file, the complainant came to know on 10.02.2014 that till the said date the file is lying as it is without any final reply about the complainant’s grievances it means that neither the claim has been closed nor settled and the complainant however served its letters on 10.02.2014 and 27.02.2014 to the op, but complainant’s claim has not yet been repudiated by the op and in the above circumstances, complainant has prayed for proper redressal.

On the other hand op by filing written statement submitted that during substance of the policy, this op by a letter dated 21.06.2010 issued by the complainant, was intimated that while on transit from Vadoda to Kolkata, a consignment of goods consisting of 254 bundles of Duples Paper Boards under C/N No. 795712 dated 14.06.2010 which was being carried by a truck bearing registration No. WB-23B/4520 on the highway from Kanjipani when reached near village-Kuanar, on Baitarani Bridge, Dist- Keonjhar, Orissaa at about 20:30 hrs on 20.06.2010 suddenly it was capsized from the said bridge into a road side canal full of water and as a result the vehicle was damaged and the Cargo loaded was also affected and water soaked in and that is the complaint of the complainant.

No doubt as per intimation surveyor was appointed immediately on the basis of the letter dated 29.06.2010.  But the damages articles were not properly arranged after which surveyor asked the complainant for segregation of the damaged goods and for arranging the same for inspection.  Thereafter surveyor quantified the loss of cargo and out of 254 bundles of duplex board, 239 numbers of bundles were produced in water soaked/damaged condition and on completion of survey, surveyor asked the complainant by a letter dated 06.07.2010 to quote the best price of salvage value of damaged papers for the purpose of assessment of loss but in reply the insured after a long interval of about 5 days offered the salvage value of the damaged goods  at the rate 8/- per kg. and expressed his willingness to retain the damaged goods.

The surveyor finally submitted their survey report dated 10.08.2010 quantified the loss of damaged paper board at Rs. 74,777/- with observations that paper consignment once has come into contact with water is very much subject to rapid aggravation of loss, since there was an inordinate delay of about 9 days on the part of the complainant in arranging survey and offering salvage value of damaged consignment and in such case 60 percent of value of total damaged consignment has been deducted while assessing loss and as the consignment was not unloaded from lorry in presence of surveyor, complainant must submit non delivery certificate issued by the carrier and the assessment has been made subject to terms and conditions and amount of the policy of insurance.

Subsequently op by their letter dated 30.09.2010 has settled the claim of the complainant considering the said survey report and other documents at Rs. 74,777/- subject to submission of requisite documents for process as contained in the said letter.  So, there was no negligence and deficiency on the part of the op and in fact complainant did not receive the said settled value for which it could not be disbursed.

Further the survey report consisting of 71 pages of documents and settlement notes, surveyor’s report etc. were supplied to the complainant but for the some ulterior motive, complainant appeared before this Forum and question of repudiation or closure of the claim only arise when claim is not settled and in this case claim was finally settled.  So, there was no question of repudiation or closure because it has already been closed or the entire continuation of the complainant is false and fabricated.  So, there was no negligence or deficiency on the part of the op.  So, the complaint should be dismissed.

                                               Decision with reasons

On critical appreciation of the complaint and written version including the documents it is clear that complainant submitted claim for Rs. 3,45,450/-.  No doubt op engaged surveyor who exhaustively surveyed the same and as per report surveyor assessed final loss after deduction of salvage amount and from the said report it is also found that 60 percent aggravation loss on water damaged and consignment was taken out of total amount and also of Rs. 1,15,223.20 paisa was deducted as salvage value of Rs. 14,402.91 paisa damaged galaxy first insured  at the rate Rs. 8 per Kg as agreed by the insured.  But from the report of the surveyor it is clear that consignment once has come into contact with water is very much subject to rapid aggravation of loss and that since there was an inordinate delay of about 9 days on the part of the insured in arranging survey and offering salvage value of damaged consignment said 60 percent was deducted. 

Fact remains that surveyor assessed 60 percent value of aggravation loss on the damaged consignment and it was taken into account for such delay for final assessment of goods.  Now the question is as to why complainant did not arrange for segregation of the damaged article within 48 hours and why they waited for 9 days and no doubt in the meantime same was damaged further.  So, 60 percent aggravation loss on damaged consignment was taken in to account by the surveyor.

Truth is that complainant has alleged that 60 percent aggravation of water administered goods was Rs. 2,29,294/-.  But after considering some other documents which was filed by the complainant, it is found that 60 percent aggravation of loss on water damaged consignment shall be taken into consideration in some cases.  But after considering those documents, it is found that there was delay for arranging survey by the insured.  But in the present case complainant waited for another 9 days for arranging survey though salvage value is admitted.  But fact remains that the deduction of salvage value of Rs. 1,15,223.30 paisa is no doubt justified because unused offered that amount as salvage and said articles were retained by the complainant.

Fact remains that the complainant claimed compensation on the basis of the policy to the extent of Rs. 3,45,450/- out of that Rs. 1,15,223.30 paisa is deducted as salvage value in respect of which there is no denial on the part of the complainant because complainant retained the damaged goods which are in his custody and salvage value was accepted by the insured and surveyor and at the same time op assessed the total loss of Rs. 74,777/-.  So, out of total Rs. 3,45,450/- after deducting the salvage value and after considering the settlement amount of Rs. 74,777/- we find that complainant’s claim in respect of Rs. 1,15,223.30 paisa is subject matter of this complaint and now we consider whether 60 percent deduction of aggravation loss on water damaged consignment was proper or not.

In this regard we have gone through the all documents and it is found that complainant had his fault because he failed to segregate the damaged articles even after receipt of the same on 27.06.2010 and ultimately on 28.06.2010 complainant failed to arrange survey and prayed for further time and ultimately on 03.07.2010 the survey was made and the delay for 9 days in this regard has not been explained by the complainant.  But it is mandatory provision of law that on and from the date of receipt of the damaged articles by the insured, it must be reported within 24 hours.  Complainant reported it and surveyor forthwith appeared within 24 hours on 28.06.2010 when article was received from the godown on 27.06.2010.

But at the time of survey, complainant failed to give any chance to the surveyor as the articles were not properly segregated and arranged for inspection by the surveyor and complainant waited for another 9 days and reported the surveyor and when surveyor appeared on 31.07.2010 and found that it was damaged more.  So, surveyor deducted 60 percent aggravated loss of water damaged consignment.

But after considering the entire matter we find that no doubt complainant failed to give any satisfactory explanation for such delay and in fact for that reason such sort of deduction may be made by the insurance company.  But 60 percent aggravated deduction of water damaged consignment was not always justified.  No doubt deduction of 30 percent aggravation loss on water damaged due to delay was reasonable.  So, we find that further sum of Rs. 75,000/- may be released in favour of the complainant after decreasing 60 percent aggravation loss on water damaged consignment to 30 percent and accordingly we are directing the op to release a further sum of Rs. 75,000/- to the complainant and treating the entire claim is finally settled and accordingly op shall have to release total Rs. 1,50,000/- as final settlement of the said claim of the complainant and accordingly we are disposing of the matter directing the op Insurance Company to disburse the Rs. 1,50,000/- as final settlement claim of the complainant in respect of the present claim and treating the present claim of the complainant is finally settled by this Forum and op shall have to deliver the cheque of Rs. 1,50,000/- in the name of the complainant within one month from the date of this order and accordingly this complaint succeeds.

Hence, it is

                                                 ORDERED

That the complaint be and the same is allowed on contest without any cost against the op.

Op is hereby directed to disburse a sum of Rs. 1,50,000/- to the complainant treating the claim of the complainant as finally settled by this Forum and it must be paid within one month from the date of this order, failing which for non-compliance of the Forum’s order, op shall have to pay penal interest  at the rate Rs. 200/- per day till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.  Even if it is found that op is unwilling to comply the order, in that op shall be prosecuted u/s 27 of C.P. Act 1986, for which further penalty and fine shall be started against the op.