This case has arisen out of a complaint U/s 35 of Consumer Protection Act, 2019.
The fact of the case is that the complainant is the beneficiary of Merin Carrage Open Policy bearing No:-0314032119P115230492 valid from 25.02.2020 to 24.02.2021. On 23.12.2020 the complainant took a truck bearing No:HR46D6510 on hire from O.P.No-2 for sending rice weighing 33780 KG valued Rs.536055/- from Tungidighi, Uttar Dinajpur West Bengal to Malot, Punjab with proper challan, but the said goods neither delivered at Malot, Punjab nor return to the complainant.
That the complainant made contact with O.P.No-2 through mobile but O.P.No-2 did not pay any heed in the matter. Thereafter she informed the matter to O.P.No-1 on 06.01.2021 in writing and submits huge claim before O.P.No-1.
That complainant’s husband Kishor Kr. Sarda also filed a written complaint to the local P.S & Karandighi P.S Case No:-34/21, dated 25.01.2021 U/s 420, 406, 34 of IPC against No-1.Chenaram Chowdhury, owner of Choudhury Transport Co, II. Bikash Kumar, owner of Truck No:-HR46D/6510 III. Ram Bahadur, driver of said truck and said case is still pending.
That the complainant sent a legal notice to the Manager of Chowdhury Transport Co. claiming the consignment or consignment amount through her Advocate on 01.02.2021, delivered on 04.02.2021, in spite thereof they did not return the same nor they give any reply of Advocate’s letter. The O.P.No-1 sent a letter dated 21.09.2021 to the complainant stating that claim is repudiated. Hence, this complaint praying for direction upon the O.Ps to pay damaged cost at Rs.836055/- with interest from 06.01.2021, compensation of Rs.50,000/- & Rs.10,000/- as litigation cost.
Added O.P.No-3 did neither appear nor contest the case.
O.P.No-1 contested the case by filing W.V stating that marine claim (non-delivery) reported to O.P Insurance Company on 06.01.2021 by Sarita Devi Sarda that one consignment No:126 dated 23.12.2020 of 563 nos bag of rice @60 KGs, valued Rs.836055/- sent to Krish Traders, Malot, Punjab through Truck No:HR46D/6510 of Choudhury Transport not reached. After receipts of intimation Mr. Vernon Ivan Maynard Dhillem was deputed for final survey and investigation. Then Mr. Vir Chad (Investigator) was appointed for investigation at Punjab & they have submitted their reports. As per their reports the fact is that M/s Krish Traders, Malot, Punjab placed an order to M/s Subham Enterprise, Tungidighi for supply of 563 bags of rice, M/s Subham Enterprise the ordered quantity of 563 bags of rice (38.780 qtls) vide Bill No:126/12/2020 for Rs.836055/- through Truck No:HR46D/6510 on 23.12.2020 & when the materials reached M/s Krish Traders at Malot on 29.12.2020 the buyer while checking the rice found that the material was substandard quality and he did not receive the delivery of the material and informed the consignor M/s Subham Enterprise. Both the Surveyor & Investigator confirmed O.P.No-1/Insurance Company with documents that vehicle reached the destination and there is no non-delivery case. It is learnt that Truck No:-HR46D/6510 was loaded on 23.12.2020 and consignment reached to Malot, Consignee’s address/Punjab on 29.12.2020 at about 11:40 AM. Consignee M/s Krish Traders refused to accept the consignment due to inferior quality of rice. The same was communicated to Consignor/Complainant for needful even after that loaded truck remain standing for 03 days. Hence, claim of non-delivery stands false and does not exist so as per policy exclusion Clause 2.01 this is willful misconduct of the insurer/complainant hence the claim is repudiated on 21.09.2021.
P o i n t s f o r d e c i s i o n
- Whether there was/is any negligence or deficiency of service on the part of O.Ps which gives rise cause of action of this complaint?
- Is the complainant entitled to get relief(s) as prayed for?
D e c i s i o n s w i t h r e a s o n
Admittedly, M/s Subham Enterprise is the insured and its proprietor Sarita Devi Sarda is the beneficiary of Marine Cargo Open Policy bearing No:-0314032119P115230492 valid from 25.02.2020 to 24.02.2021.
It is not disputed that M/s Krish Traders Malout, Punjab placed an order to M/s Subham Enterprise, Tungidighi, Uttar Dinajpur, west Bengal, for supply of 563 bags of rice & M/s Subham Enterprise dispatched the ordered quantity of 563 bags of rice weighing 33780 KG (33.780 qtls) vide Bill No:126 dated 23.12.2020 valued Rs.836055 through Truck No:HR46D/6510 of O.P.No-2/Chenaram Chowdhury owner of Choudhury Transport Co, hired by the complainant, in lieu of Commission.
The defence case is that the consignment reached to Consignee’s address at Malout, Punjab on 29.12.2020 at about 11:40 AM & the consignee M/s Krish Traders refused to accept the consignment due to inferior quality of rice & the same was communicated to Consignor/Complainant for needful even after that loaded truck remains standing for 03 days(supported by the report of Surveyor & Investigator).
The complainant in cross-examination denied that the consignment of the rice was returned back on the ground of substandard quality. She stated that she has no news whether the materials(rice) were reached to M/s Krish Traders, Malout, Punjab on 29.12.2020. She added that no Advocate’s notice of owner of the truck was given to her that the rice was returned back due to substandard quality.
Trip summary (Loc) Report:Vehicle:HR 46 D 6510, date: 22 Dec 2020 to 29 Dec 2020 is produced reflects Malout entry–end dated 29 Dec 2020-11:40 hrs.
It appears that the complainant informed O.P/Insurance Company on 06.01.2021 on the subject: missing goods sent in transit, stating that the goods (33780 kgs rice) are missing and the goods have not been delivered.
Narender Rahilla, Advocate sent legal notice dated 13.01.2021 to i.the Manager, M/s Choudhury Transport Company, Siliguri ii. Proprietor M/s Subham Entyerprices, Tungidighi, Uttar Dinajpur (West Bengal), iii. Proprietor M/s Krish Traders, Malout (Punjab), on behalf of his client Vikas S/o Sh. Madan Kumar of Rohtak (Haryana) that noticee No-1 Hired/booked the vehicle/truck of Vikas to transport the goods i.e rice bags (33700kg rice) belonging to notice No:2 i.e Subham Enterprises & the rice bags were loaded on 23.12.2020 from Tungidighi, Uttar Dinajpur, West Bengal and to be sent to notice No:3 at Malout, Punjab and his client reached at the given address (Malout, Punjab) on 29.12.2020 and contacted notice No:3 on mobile but notice No:-3 reused to accept the goods by stating the same to be inferior quality. Thus his client could not unload the goods the destination/notice No:-3. Upon this his client immediately contacted notice No:1 & 2 and they asked his client to wait for some time. His client waited up to 10.01.2021 lastly on 10.01.2021 his client unloaded his vehicle in go-down.
Rajesh Kumar Sharma Advocate, Siliguri sent notice dated 22.01.2021 to i. Smt. Sarita Devi Prop Subham Enterprise ii. M/s Krish Traders, Malout, Punjab, iii. Vikas S/o Sri Madan Kumar Rohtak (Haryana) iv. Sri Proshenjit Roy Choudhury, Advocate, Uttar Dinajpur, v. Narender Rahila, Advocate Rohtak (Haryana) for his client Chenaram Choudhury, Prop M/s Choudhury Transport, West Bengal. In reference to notice/s of addressee No:-4 & % vide Ref No: NIL dated 07.01.2021 & 13.01.2021 respectively denying allegation leveled against his client stating further that his client used to arrange vehicle for the parties to deliver goods from one place to another throughout the country and he is only a mediator who is entitled to remuneration there for.
It appears that Kishor Kr. Sarda H/o- the complainant submits a written complaint to IC, Karandighi PS dated 23.01.2021 informing that the goods were not delivered to the consignee’s address & they are in search of the truck contacted Transport Company demanded either rice or its value but Transport Company did not pay any heed so they serve legal notice but of no avail accordingly Karandighi PS Case No:-34/21 dated 25.01.2021 U/s 420, 406, 34 IPC was started against i. Chenaram Choudhury owner of Choudhury Transport Company, ii. Vikas Kumar owner of truck No:-HR46D/6510 of Rohtak Haryana, iii. Rambahadur, driver of said truck. Charge sheet/final report in respect of said case is not produced, means still pending.
Proshenjit Roy Choudhury, Advocate of Uttar Dinajpur sent legal notice dated 01.02.2021 to the Manager, Choudhury Transport Company stating that till today said goods (rice) have not been delivered at Malout, Punjab so the complainant can get back her consignment or consignment amount, giving 15 days time to settle or to face legal action.
The case of the O.P.No-1/Insurance Company is that marine claim (non-delivery) reported to O.P Insurance Company on 06.01.2021 by Sarita Devi Sarda that one consignment No:126 dated 23.12.2020 of 563 nos bag of rice @60 KGs, valued Rs.836055/- sent to Krish Traders, Malout, Punjab through Truck No:HR46D/6510 of Choudhury Transport not reached & after receipts of intimation Mr. Vernon Ivan Maynard Dillem was deputed for final survey and investigation. Then Mr. Veer Chad (Investigator) was appointed for investigation at Punjab & they have submitted their reports.
Veer Chad DSP(RETD) Investigator recorded statement of Krishan Kumar Prop:Krish Traders, who stated that when quality of the rice was checked it found too pour and he talked about this to firm that he could not take this rice & the loaded truck was standing for 03 days at Malout then driver made call to owner of firm and taken the truck to Rohtak. Ram Bahadur driver of the truck stated that owner of Krish Traders, Malout denied to receive the consignments as the quality of rice was too pour and he discussed this matter on telephone to Sarda Kishore (husband of complainant) and after that he made call to the truck owner Madan Kumar, Rohtak who told him get back the truck to Rohtak with consignment & he turned back to Rohtak, and handed over the truck with consignment of rice to Mr. Madan Kumar. Madan Kumar owner of the truck stated that owner of Krish Traders, Malout denied to accept the rice being pour quality and he made conversation on telephone with Kishore Sarda (Husband of complainant) & his driver (Ram Bahadur) was waiting at Malout for 2-3 days with loaded consignment & he also make a call to Kishore Sarada who did not give satisfactory answer then on his order the driver take the truck to office at Rohtak with loaded consignment and he was waiting for 4-5 days thereafter talked to Choudhury Transport Company but getting no reply he sent a legal notice through his Advocate dated 13.01.2021 to Choudhury Transport Company, Subham Enterprices & Krish Traders. After a time a man from Kishore Sarda’s side came to him and took some part of consignment in their truck and told him that the balance part will be received after pay the freight of consignment but after no one came to him and he is keeping the balance part of rice & he wanted to clear that anybody can take the balance part of consignment after paying the fade to them.
Mr. Veer Chad Investigator submits investigation report dated 09.09.2021, as per their reports the fact is that M/s Krish Traders, Malout, Punjab placed an order to M/s Subham Enterprise, Tungidighi for supply of 563 bags of rice, M/s Subham Enterprise the ordered quantity of 563 bags of rice (38.780 qtls) vide Bill No:126 dated 23/12/2020 for Rs.836055/- through Truck No:HR46D/6510 & when the materials reached M/s Krish Traders at Malout on 29.12.2020 the buyer while checking the rice found that the material was substandard quality (broken rice) and he did not receive the delivery of the material and informed the consignor M/s Subham Enterprise.
Both the Surveyor & Investigator confirmed O.P.No-1/Insurance Company with documents that vehicle reached the destination and there is no non-delivery case. Hence, claim of non-delivery stands false and does not exist so as per policy Exclusion Clause 2.1 loss damaged or expense attributable to willful misconduct of the assured the claim was repudiated by letter dated 21.09.2021.
Under above facts and discussion, we are of the considered view that the claim of missing of consignment/rice and non-delivery thereof caused due to negligent act of the complainant and there was no negligence or deficiency in service on the part of O.Ps, consequently the complainant is not entitled to get relief as prayed for.
In the result the claim fails. Hence, it is,
O R D E R E D
that the C.C No-42/2021 be and the same is dismissed on contest against O.Ps but without any cost.
Let a copy of this order be given to the parties free of cost.
