Punjab

Amritsar

CC/16/99

Duggal Shawls Industries - Complainant(s)

Versus

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

06 Oct 2016

ORDER

 

Order dictated by:

Sh.S.S.Panesar,President.

1. M/s. Duggal Shawls Industries through its Prop.Renu Duggal complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that the complainant obtained Insurance policy “Marine Cargo Open Policy” from opposite party No.1 vide policy No. 200201/21/14/02 100000039 dated 9.7.2014 for the period from 9.7.2014 to 8.7.2015. The complainant sent one consignment of shawls through opposite parties No.2 & 3 vide No. 2715711 dated 20.10.2014 for its destination at Rourkela in favour of M/s. Bothra Mega Bazar , Power House Road, Daily Market, Rourkela vide bill No. 9459 dated 18.10.2014 for a sum of Rs. 80,882/-. At the time of sending consignment  through opposite parties No.2 & 3, they assured the complainant that the aforesaid consignment would be reached at its destination as early as possible. But to the utter surprise of the complainant  the short consignment was received by the purchaser. The aforesaid fact was told to the complainant by the purchaser telephonically that there is shortage of goods amounting to Rs. 25,680/-. The complainant then approached opposite parties No.2 & 3 and enquired about the matter and he was told by the opposite parties No.2 & 3 that the goods were short during transit to the tune of Rs. 25,680/- and shortage certificate dated 3.12.2014 was issued by opposite parties NO.2 & 3 to the complainant. After receiving shortage certificate from the transport, complainant immediately approached opposite party No.1 for its claim and filed its claim before opposite party No.1 alongwith all relevant documents . But opposite party No.1 despite received all the requisite documents for the settlement of claim lingering the matter on one pretext or the other. Complainant vide letter dated 14.1.2015 also claimed its claim from opposite parties No.2 & 3 as they assured that the goods would be reached at its destination in safe  but the same was not delivered  by opposite parties No.2 & 3. The opposite parties are jointly and severally liable to make good the loss suffered by the complainant. The complainant has sought for the following reliefs vide instant complaint:-

1. Opposite party No.1 may be directed to make payment of Rs. 25,680/- alongwith interest @ 18% p.a. from the date of its dispatch till its actual payment ;
2. Opposite parties be directed to pay Rs. 50000/- as damages and compensation to the complainant for causing mental harassment alongwith adequate litigation expenses.

Hence, this complaint.

2.       Upon notice, opposite party No.1 appeared and contested the complaint by filing written version taking certain preliminary objections therein inter alia that complainant has got no cause of action to file the present complaint against the opposite party  because the present complaint is filed on frivolous ground as such the same is liable to be dismissed ; that complainant has not come to this Forum with clean hands  and has concealed the material facts from this Forum.  The true fact is that as per  version of the complainant he has booked one consignment from opposite parties NO.2 & 3 on 20.10.2014 for its destination at Rourkela in favour of M/s. Bothra Mega Bazar, Power House Road, Daily Market, Rourkela vide bill No. 9459 dated 18.10.2014 for a sum of Rs. 80,882/- but the said consignment was delivered in short to its destination and the value of the shortage goods is Rs. 26,680/-. But the complainant has not informed opposite party No.1 at the very instance when he has received the information regarding the short delivery of the said consignment. It is pertinent to mention over here that the complainant has booked his consignment on 18.10.2014 and informed opposite party No.1 orally regarding the short delivery of consignment on 5.2.2015. No document which are required for the registration of a claim of the complainant has been submitted by the complainant to opposite party No.1 which are necessary for the settlement of the claim. As per terms and conditions of the policy it is necessary to give immediate intimation to the company’s nearest office in case of any kind of loss with complete details  to provide opportunity  to the insurance company to get the verification done at the time of arrival of lorry at its destination. The complainant has not provided any document regarding the loss in transit of the abovesaid goods. Even otherwise the complainant has reported the matter with opposite party No.1 after a period of more than 3 months  and in that circumstances opposite party No.1 was not in a position to verify the loss of the complainant. No FIR or any rapat was registered by  opposite parties NO.2 & 3 with any police station regarding the loss of goods . After receiving the information regarding the loss of goods in transit , opposite party No.1 has immediately informed the complainant that opposite party No.1 is unable to entertain the claim of the complainant because of delayed intimation  because same is not covered under the terms and conditions of the policy, as such the complaint is liable to be dismissed ; that present complaint has been filed by the complainant on wrong facts  and the complainant has procured some false document in connivance with opposite parties No.2 & 3 to get the claim from opposite party No.1. On merits, facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.

3        In his bid to prove the case Sh.Rajesh Bhandari,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of Smt.Renu Duggal, Prop of Duggal Shawls Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-9 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.Rajinder Nayyar,Adv.counsel for the opposite party No.1 tendered into evidence affidavit of sh.Surinder Singh, SDM Ex.OP1/1, copy of mail dated 1.4.2015  Ex.OP1/2, copy of mail dated 17.4.2015 Ex.OP1/3 , copy of letter dated 22.12.2015 Ex.OP1/4, copy of mail Ex.OP1/5, copy of Insu.policy Ex.OP1/6 and closed the evidence on behalf of opposite party No.1.

5.       We have heard the ld.counsel for the complainant and ld.counsel for opposite party No.1 and have carefully gone through the record on the file.

6.       On the basis of the evidence on record, ld.counsel for the opposite party No.1 has contended that it is not denied that  the complainant concern was holder of Marine Cargo Open Policy from the opposite party No.1 dated 9.7.2014 effective for the period w.e.f 9.7.2014 to 8.7.2015. It is also not denied that the complainant sent one consignment of shawls through opposite parties No.2 & 3 vide No. 2715711 dated 20.10.2014, copy of bility accounts for Ex.C-4, for its destination at Rourkla in favour of M/s. Bothra Mega Bazar, Power House Road, Daily Market, Rourkela vide bill No. 9459 dated 18.10.2014 Ex.C-2 for a sum of Rs. 80,882/-. But it is the case of the complainant that short consignment was received by the purchaser. It is further case of the complainant that deficiency was reported to it by the  purchaser telephonically that the  shortage of goods  was to the  of Rs. 25,680/- & shortage certificate dated 3.12.2014  Ex.C-4 issued by opposite parties No.2 & 3 to the complainant. The complainant intimated opposite party No.1 regarding the short supply of the goods and lodged its claim for indemnification to the extent of Rs. 25680/- only on 5.2.2014. It  is further case of the complainant that  opposite party No.1 repudiated the claim of the complainant without disclosing any reason, whereas all the opposite parties are jointly and severally liable to indemnify the complainant.

7.       However, from the appreciation of the facts and circumstances of the case, it becomes evident that alleged shortage of the goods belonging to the complainant through opposite parties No.2 & 3 was detected  for the first time on 14.1.2015 whereas opposite party No.1 was intimated only on on 5.2.2015. As per terms and conditions of the Insurance policy in dispute, complainant was under obligation to intimate the alleged shortage in supply immediately. Relevant term and condition No.8 of Marine Cargo Insurance Policy Ex.OP1/6 is reproduced herein below:-

“In the event of any loss which may given rise to the claim under this open policy, immediate notice thereof in writing should be given to this office of the company at Railway Link Road, Amritsar, Punjab and also to the company 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 supersedes any claim which the insured may be entitled to make upon any carriers or other bailee who are primarily liable for the loss.”

8.       It means & imply that immediate information regarding loss  to the consignment was required to be given to opposite party No.1 by the insured, which in the case in hand has not been given . Non compliance of the terms and conditions of the Insurance policy are fatal so far as seeking insurance claim qua opposite party No.1 is concerned. Reliance in this connection can be had on Oriental Insurance Co.Ltd. Vs. Parvesh Chander Chadha,  Civil Appeal No. 6739 of 2010 decided on 17.8.2010 by the Apex Court, it has been laid down by the Hon’ble Supreme Court that admittedly  the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the branch manager. In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation. Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by policy on 19.9.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle. It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident. In terms of the policy issued by the appellant, the respondent was duty bound to inform the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of the vehicle and make an endeavor to recover the same. Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.”

9.       The aforesaid authority is applicable to the facts of the present case of all its fours. As such we hold that  the complainant cannot claim  any compensation on account of deficient supply of the goods sent through opposite parties No.2 & 3 at least from opposite party No.1 on the basis of Insurance policy in dispute.

10.     However, since opposite parties No.2 & 3 themselves have intimated regarding the loss of short supply of goods on 14.1.2015  vide letter, copy whereof is Ex.C-7 on record to the effect that there was short supply of shawls, to the extent of Rs. 25,680/- to the purchaser and it is the admitted case of the transport company i.e. opposite parties No.2 & 3 that the said deficiency in service has taken place in transit, and therefore, opposite parties No.2 & 3 are liable to compensate the complainant to that extent i.e. Rs. 25,680/-  because opposite parties No.2 & 3  have been deficient in service as they failed to supply full consignment to the purchaser from the complainant through the transport transaction in dispute. Opposite parties No.2 & 3 have also suffered ex-parte, despite due service, and the evidence adduced by the complainant has gone unrebutted on record which also  amount to implied admission of the allegations made in the complaint by opposite parties No.2 & 3.

11.     Consequently instant complaint succeeds and the opposite parties No.2 & 3 are directed to pay a sum of Rs. 25,680/- to the complainant on the basis of short supply of goods alongwith interst @ 9% .a. from the date of filing of complaint until full and final recovery. Litigation expenses are assessed at Rs. 2000/-. However, complaint against opposite party No.1 fails and is ordered to be dismissed accordingly. 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