| ORDER | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR. Consumer Complaint No. 549 of 2014 Date of Institution: 17.10.2014 Date of Decision : 22.04.2016 M/s.Shri Chand Shawls, Shop No. 1 & 2, Gali Jarau, Ganpati Market, katra Ahluwalia, Amritsar through its Prop. Sh.Navdeep Bedi. Complainant Versus - United India Insurance Company Limited, having its Registered Office at 24, Katra Ahluwalia, Amritsar through its Chairman/ Managing Director/ Principle Officer.
- United India Insurance Company Limited, having its Branch Office at 283, Wast Mohan Nagar, Amritsar through its Branch Manaager.
- Nadda Transport Co.(Regd.) having its Branch Office at 113, Transport Nagar, Ludhiana through its Proprietor/ Partner/ Principle Officer.
Opposite Parties Complaint under section 12/13 of the Consumer Protection Act, 1986 Present: For the Complainant : Sh.Deepinder Singh, Advocate. For Opposite Parties No.1 and 2:Sh.Sandeep Khanna, Advocate For Opposite Party No.3: Exparte. Coram Sh.S.S.Panesar, President Ms.Kulwant Kaur Bajwa, Member Sh.Anoop Sharma, Member Order dictated by: Sh.S.S. Panesar, President. - M/s.Shri Chand Shawls through its proprietor has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant took an insurance cover from Opposite Parties No.1 and 2 under the Open Marine Cargo Policy on consignment to consignment basis which are said to contain the cloth shawls, chadders, woolen goods, staple goods, Cashmilon goods &/ or textile goods of all kinds packed in bales & / or in cases. Value to be declared with each declaration on CIF+10% basis. Insured against the Rail &/ or risks & / or carrier risks, insured against all risks of physical loss or damage warehouse to warehouse risk, SRCC risk & five weeks extension cover risk (the copy of endorsement note is annexed and be read as part of the complaint) the total sum insured as endorsed is for Rs.10 lacs for the period commencing w.e.f. 22.10.2013 vide endorsement note No. 200204/21/13/02/830000001 dated 1.5.2013 issued by Opposite Parties No.1 and 2 which is extended from time to time. The complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant sent goods vide Invoice No. 645 dated 21.11.2013 to M/s.Jay Jay Shawls, Civil Lines, Ludhiana for Rs.97,255/-, the said goods were dispatched through Opposite Party No.3 vide GR No. 32770 dated 22.11.2013 and the declaration of the said effect was made to Opposite Party No.2 as required under the insurance cover and was acknowledged by Opposite Party No.2. Said goods unfortunately were stolen at Ludhiana while shifting from the premises of the Transporter to the consignee and the claim to that effect was made at the police station by the transporter. A claim for the amount of Rs.97,255/- was lodged with Opposite Party No.2 which was duty bound to indemnify the complainant. Opposite Parties No.1 and 2 , however, repudiated the genuine claim of the complainant vide their letter dated 24.3.2014 on frivolous and vague ground “as per the survey report claim closed as no claim”. The said ground of repudiation is totally vague and it is pertinent to mention over here that no survey report was supplied to the complainant and no specific ground has been made known to the complainant for the repudiation of his genuine claim. It is further stated that complainant never/ever received the policy document wherein any condition as described by the Opposite Parties No.1 and 2 was made known to the complainant. The complainant made several communications with Opposite Parties No.1 and 2 to know the reason of repudiation of his claim, but no specific and worth reasoning came forward for the repudiation of the claim of the complainant.
- Upon notice, Opposite Parties No.1 and 2 appeared and contested the complaint by filing joint written statement on their behalf, whereas Opposite Party No.3 did not put in appearance to contest the complaint, despite due service, so Opposite Party No.3 was proceeded against exparte.
- In their joint written statement, Opposite Parties No.1 and 2 took a preliminary objection therein inter alia that the present complaint is not maintainable being based on a false and concocted version of the complainant altogether. The complainant had neither informed the alleged incident to the police nor lodged any FIR pertaining to the alleged loss of goods which clearly shows that the claim is not genuine. Moreover, the theft of the goods in question is not established at all due to absence of any eye witness or other corroborative piece of evidence. So much so, the fact that the transporter handed over the goods to an unknown rickshaw puller for further delivery, whose details and address are not known to the said transporter , clearly shows that the present complaint has been filed by the complainant in connivance with the said transporter, hence the complaint is liable to be dismissed; that the complainant was under an obligation to furnish a declaration with the Opposite Parties pertaining to the goods in question before the transit. However, the declaration pertaining to the goods in question was never submitted by the complainant with answering Opposite Parties; that the complainant has not approached this Forum with clean hands and has tried to conceal the material facts. In number of judgements, it has been held that any person who approaches the court with unclean hands is not entitled to get any relief and hence the answering Opposite Parties are not liable to pay the claim in question; that the Opposite Parties repudiated the claim vide letter dated 24.3.2014 on the basis of survey report dated 2.3.2014 which was addressed to the complainant clearly stating that the claim was not payable, hence the complainant has no right to file the present complaint. On merits, as far as obtaining of insurance policy by the complainant from answering Opposite Parties is concerned, the factum of the same is not disputed. The parties are governed by the terms and conditions of the contract of insurance. However, the claim of the complainant has already been repudiated on merits on the basis of survey report dated 2.3.2014. As such, no consumer dispute survives. The complainant has not given any detail regarding the dispatch of goods in question which clearly shows that the version of the complainant is false and fabricated. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with costs was made.
- In his bid to prove the case, complainant tendered in evidence affidavit of Navdeep Bedi Ex.C1 in support of the allegations made in the complaint and also produced copy of repudiation letter Ex.C2, copy of GR Ex.C3, copy of declaration Ex.C4, copies of letters Ex.C5 and Ex.C6, copy of bill Ex.C7, copy of DDR Ex.C8 and closed the evidence on behalf of the complainant.
- To rebut the evidence of the complainant, Opposite Parties No.1 and 2 tendered into evidence the affidavit of Surinder Singh, Divisional Manager Ex.OP1, copy of policy schedule Ex.OP2, report of investigator Ex.OP3, repudiation letter Ex.OP4, affidavit of Varun Sharma, Investigator Ex.OP5 and closed the evidence on behalf of Opposite Parties No.1 and 2.
- We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
- Ld.counsel for Opposite Parties No.1 and 2 has vehemently contended that no doubt, the goods which were insured with them have been sent by the complainant to Ludhiana through Opposite Party No.3 i.e. transporter, but however, the transporter is stated to have given the goods, on reaching Ludhiana, to some unknown rickshaw puller for delivering to the consignee,, who failed to supply the goods to the consignee. Thus the goods were lost in transit. Opposite Party No.3 did not take requisite care and as such, was negligent in performing its duty. Since Opposite Party No.3 is an agent of complainant i.e. insurer, negligence attributable to Opposite Party No.3 is also vicarious liability of the complainant. The complainant should have taken the requisite care as is expected of a normal prudent man and to keep the goods in safe custody. So-much-so the report lodged with the police, copy whereof Ex.C8 states that goods were handed over to some unknown rickshaw puller, who did not convey the goods to the addressee and therefore, report regarding the loss of the goods lodged at the Police Station and in this regard, reference to the terms and conditions of the insurance policy can be made. Since the complainant as well as his agent have not taken proper care of the goods which was expected of a normal prudent man, therefore, the insurance company i.e. Opposite Parties No.1 and 2 are not liable to compensate or indemnify the insured and complaint qua Opposite Parties No.1 and 2 is liable to be dismissed.
- However, from the appreciation of the facts and circumstances of the case, it becomes evident that goods worth Rs.97,255/-, were sent from Amritsar through the medium of Opposite Party No.3 on 22.11.2013 vide GR No. 32770, copy whereof Ex.C3. It is further proved on record that the goods did reach Ludhiana and those were entrusted to some unknown rickshaw puller by Opposite Party No.3 for transmitting to the consignee. But, however, the goods did not reach the consignee and were lost in transit. Since Opposite Party No.3 i.e. agent of the complainant did not take adequate care and protection and had negligently handed over those goods for delivery to some unknown rickshaw puller, the only inference which can be drawn under the circumstances would be that Opposite Party No.3 has failed to take proper care expected of a normal prudent person. In such a situation, the insurer is not liable to indemnify the complainant for the loss occurred due to non supply of the goods sent through Opposite Party No.3 to the consignee. As such, the repudiation made by Opposite Parties No.1 and 2 vide letter Ex.C2 is legal and valid.
- On the other hand, the evidence adduced by the Complainant against Opposite Party No.3 has gone unrebutted on record as Opposite Party No.3 has knowingly & wilfully suffered exparte, after due service. It is proved on record that goods worth Rs. 97,255/- were lost in transit due to the negligence on the part of Opposite Party No.3 and Opposite Party No.3 had impliedly admitted its liability when it failed to appear and contest the claim of the complainant. As such, the claim of the complainant for recovery of Rs.97,255/- succeeds and is ordered to be allowed against Opposite Party No.3. Opposite Party No.3 is directed to make the payment of the awarded amount, within a period of one month from the date of receipt of copy of this order, failing which the awarded amount shall carry interest @ 6% per annum from the date of passing of the order, until full and final recovery. Opposite Party No.3 is also directed to pay a sum of Rs.5,000/- as compensation while a sum of Rs.2,000/- is granted on account of costs of litigation. However, the claim against Opposite Parties No.1 and 2 fails and the same is ordered to be dismissed. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum Dated : 22.4.2016 hrg (S.S.Panesar ) President (Anoop Sharma) (Kulwant Kaur Bajwa) Member Member | |
