Punjab

Ludhiana

CC/24/864

M/s Parveen Knit - Complainant(s)

Versus

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

Yoges kumar

12 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Original Complaint No:57 of 29.01.2019

RBT Complaint No:864 dated 12.06.2024.          Date of decision: 12.09.2024.

M/s. Parveen Knitwears Regd., B-XXIV-2727, Sunder Nagar, Ludhiana through its Partner Shri Nem Chand Jain.                                                                                                                                        ..…Complainant

                                                Versus

1. United India Insurance Co. Ltd., Divisional Office – III earlier at Gulmohar Hotel Ferozepur Road, Ludhiana and now shifted to 2^nd Floor, Batra Plaza Building, Opposite Silver Arc Mall, Ferozepur Road, Ludhiana through its Senior Divisional Manager.      
2. M/s. Viveka Logistics Solutions Pvt. Ltd., Head Office 122-A-123, Transport Nagar, Ludhiana-141003.

Email id:

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Yogesh Gandhi, Advocate.

For OP1                         :         Sh. M.R. Saluja, Advocate.

For OP2                         :         Sh. Amit Sharma, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that M/s. Parveen Knitwears, a partnership concern through its partner Sh. Nem Chand Jain obtained a Marine Cargo Open Policy bearing No.2009002115P109460078 from the opposite party for a premium of Rs.2851/- having validity from 09.11.2015 to midnight of 08.11.2016 for total sum assured of Rs.50 Lakhs covering all types of risk to the consignment of hosiery goods and all types of knitted cloth, yarn or other goods of similar nature; complainant dispatched vide road and rail from Ludhiana to anywhere in India. The said insurance was to remain in force for a period of 12 months unless sum insured is previously exhausted by declaration. Further the policy stipulates that adequate sum insured should be available for the relevant dispatches for RR (Railway Receipts), LR (Lorry Receipts), BL (Bill of landing) and AWB (Air Way Bills). Further the goods delivered by hand and not dispatched through rail and road were not covered and was not required to be declared to opposite party by the complainant. The sum insured of Rs.50 Lakhs was enhanced to Rs.1 Crore on the payment of additional premium of RS.2876/- w.e.f. 18.07.2016 to 08.11.2016. The complainant further submitted that in compliance of terms of the policy, he had been submitting monthly declarations during the aforesaid period, details of which have been summarized in para No.4 of the complaint. The sum insured available before the dispatch of the consignment vide bill No.105 dated 18.10.2016 worth Rs.4,25,976/-, bill No.107 dated 19.10.2016 worth Rs.5,72,306/- and bill No.109 dated 19.10.2016 worth Rs.4,27,121/- total amounting to Rs.14,25,403/- is Rs.21,69,487/- and sum insured available after the dispatch of the consignments vide bill No.105 dated 18.10.2016 worth Rs.4,25,976/-, bill No.107 dated 19.10.2016 worth Rs.5,72,306/- and bill No.109 dated 19.10.2016 worth Rs.4,27,121/- comes to Rs.7,44,084/-. The complainant further stated that during the subsistence of the insurance policy, he dispatched a consignment of hosiery goods of M/s. Mahalakshmi Knitwears, Tripur reproduced as under:-

The said consignment was dispatched through M/s. Viveka Logistics Solutions Pvt. Ltd., Pot No.122-123, Transport Nagar, Ludhiana vide aforesaid GRs for safe carriage and delivery at the destination station to M/s. Mahalakshmi Knitwear, Tripur. The said three consignments were completely damaged due to the fire which occurred during the night of 23.10.2016 at about 11.45 P.M. at the godown of M/s. Viveka Logistics Solutions Pvt. Ltd. situated at 61-B, Industrial Area, Near Transport Nagar, Ludhiana. The complainant lodged the claim with M/s. Viveka Logistics Solutions Pvt. Ltd. vide letter dated 28.11.2016 as required under the Carriers Act. M/s. Viveka Logistics Solutions Pvt. Ltd. had also issued the certificate to the complainant dated 08.05.2017 and to the surveyor of opposite party M/s. Duggal Gupta Insurance Surveyors & Loss Assessors Pvt. Ltd. dated 11.11.2016 regarding the damage delivery of the consignment confirming that the goods dispatched vide GR No.1089029, 1087984, 1087985 dated 19.10.2016 Ludhiana to Tripur of M/s. Parveen Knitwears Regd. vide bill No.105 dated 18.10.2016 worth Rs.4,25,976/-, bill No.107 dated 19.10.2016 worth Rs.5,72,306/- and bill No.109 dated 19.10.2016 worth Rs.4,27,121/-  has been damaged in the fire which took place on 23.10.2016. M/s. Viveka Logistics Solutions Pvt. Ltd. has also lodged a DDR No.6 dated 27.10.2016 with the police giving the details of the consignment damaged in the said fire and said DDR includes the GR No.1089029, 1087984, 1087985 dated 19.10.2016 vide which the complainant had dispatched the consignment. The complainant lodged the claim with the opposite party vide email dated 27.10.2016 upon which M/s. Duggal Gupta Insurance Surveyors and Loss Assessors Pvt. Ltd. was appointed to assess the loss caused to the complainant. The said assessor assessed the loss to Rs.14,18,276/- by deducting the excess clause @0.5% of the consignment value of the goods and without adding 10% to the value of the goods as per invoice in terms of the insurance policy instead of assessing it to be Rs.15,67,943/-.

                   The complainant further stated that instead of settling the claim in terms of the report of M/s. Duggal Gupta Insurance Surveyors & Loss Assessors Pvt. Ltd. or as per the claim lodged by the complainant as per the terms and conditions of the policy, the opposite party without taking the permission from IRDA, has appointed M/s. Galaxy Tracers & Recovery Consultants, New Delhi as investigators and CA Naresh Kalra, Surveyor and Loss for verification of declaration of the complainant. Appointment of M/s. Galaxy Tracers & Recovery Consultants as well as CA Naresh Kalra is against the IRDA guidelines and their reports are not enforceable in the eyes of law. M/s. Galaxy Tracers & Recovery Consultants made thorough investigation and prepared report dated 30.03.2017 stating that the net loss is Rs.14,25,403/- and has not added 10% of the invoice value in terms of insurance policy. CA Naresh Kalra had verified the books of account and records relating to sales made by the complainant from 09.11.2015 to 19.10.2016 and prepared his false and fabricated report dated 25.09.2017 in connivance and at the instance of opposite party by including 16 consignments which wren to dispatched through road/rail but were delivered by hand and as such, are not required to be declared under the marine cargo insurance policy obtained by the complainant by stating that there is a negative balance of Rs.14,74,418/- on the date of loss i.e. 23.10.2016. The details consisting of 16 consignments is bill No.105 dated 19.11.2015 of Rs.2,90,259/-, No.113 dated 24.11.2015 of Rs.33,902/-, No.114 dated 24.11.2015 of Rs.41,908/-, No.107 dated 24.11.2015 of Rs.1,56,565/-, No.115 dated 26.11.2015 of Rs.1,98,883/-,  No.127 dated 03.12.2015 of Rs.64,910/-, No.140 dated 12.12.2015 of Rs.1,90,312/-, No.169 dated 02.01.2016 of Rs.1,35,387/-, No.170 dated 02.01.2016 of Rs.1,12,430/-, No.175 dated of Rs.1,09,559/-, No.176 dated 11.01.2016 of Rs.1,07,750/-, No.177 dated 12.01.2016 of Rs.1,06,054/-, No.96 dated 07.10.2016 of Rs.94,026/-, No.97 dated 08.10.2016 of Rs.1,49,198/-, No.101 dated 13.10.2016 of Rs.84,141/- and No.102 dated 13.10.2016 of Rs.2,23,039/- total Rs.20,98,325/- and bill No.11 dated 21.10.2016 of Rs.1,67,558/-  issued after the loss though included in report after calculating the sum insured. In the said invoices it is stated “cloth delivered” “against the head GR/RR/RP No.: Transport” and the amount of insurance/freight charges are not included in the invoice value. But the CA Naresh Kalra included the said invoices in his report though the same were not required to be declared being not dispatched through rail and road and there was a sufficient credit balance of Rs.20,98,325/- on 23.10.2016 as per his report however the credit balance required to cover the said consignment is Rs.14,25,403/- . The complainant further submitted that he has been requesting the opposite party to settle the claim verbally as well as vide letter dated 08.03.2018, 27.02.2018, 22.01.2018, 23.06.2017 and 28.10.2016 but the opposite party repudiated the claim vide letter dated 14.02.2018 illegally, arbitrarily on flimsy grounds against the terms and conditions of the policy and law of the land on the ground that there was a negative balance of Rs.14,74,418/- on the date of loss i.e. 23.10.2016 as per report of CA Naresh Kalra. The said repudiation is illegal, arbitrary and is against the provisions of insurance policy and IRDA guidelines on the grounds mentioned in sub para (a) to (o) and in these grounds, the complainant has assailed the reports of M/s. Duggal Gupta Insurance Surveyors and Loss Assessors Pvt. Ltd., M/s. Galaxy Tracers & Recovery Consultants and CA Naresh Kalra on the ground that he has fully complied with the terms and conditions of the policy. The complainant further added that there is unfair trade practice, deficiency in service and negligence on the part of the opposite party in repudiating his genuine claim knowing that there is a sufficient balance of the sum insured under the policy which covers the loss on the date of loss. In the end, the complainant prayed for setting aside the repudiation letter dated 08.02.2018 and for issuing direction to the opposite party to pay a sum of Rs.15,67,943/- being invoice value of No.105 dated 18.10.2016, No.107 and No.109 dated 19.10.2016 along with 10% as additional amount indicated under the marine insurance policy No.2009002115P109460078. The complainant further prayed for issuing direction to the opposite party to pay Rs.2 Lakhs as compensation for deficiency in service and for causing mental tension, torture, financial loss etc. and Rs.55,000/- as cost of litigation.

2.                Upon notice, the opposite party appeared and filed written statement. In the written statement, the opposite party assailed the complaint on the ground of lack of jurisdiction, lack of competency on the part of the complainant, matter in dispute being commercial in nature. The opposite party alleged that the complainant was duty bond to furnish the detail of the goods sold to the purchaser outside of Punjab but the complainant failed to submit the details of the goods sold to the parties out of Punjab which they were bound to submit within one month from the date of sale. The complainant failed to declare and submit the report of the goods sold vide bill No.105 worth Rs.4,25,976/-, bill No.107 worth Rs.5,72,306 and bill No.109 worth Rs.4,27,121/- total worth of Rs.14,25,403/-. The opposite party further alleged that the books of the complainant were inspected by the CA Naresh Kalra and the surveyor Mr. Duggal Gupta Insurance Surveyor and he submitted his report dated 25.09.2017 in which he stated that the complainant failed to submit the declaration of the goods sold to their customer living out of Punjab vide bill No.105 worth of Rs.4,25,976/-, bill No.107 worth of Rs.5,72,306 and bill No.109 worth of Rs.4,27,121/- total of all the bills is Rs.14,25,403/- and which shows that they actually did not sell the goods to the parties out of Punjab and as a result the amount of the compensation claimed by the complainant was not payable by the opposite party as the complainant failed to sell the goods of above said three bills and is not entitled to the loss on account of those three bills. Moreover, the complainant could not prove his claim by any document and the opposite party repudiated the claim of the claimant for the reason mentioned that as per report of Sh. Naresh Kalra, CA dated 25.09.2017, the insured had made total declaration of Rs.93,76,093/- (sale value of the goods sold to the purchaser out of Punjab) but on verification from the books of account and other relevant record of the complainant/insured it was found by the CA that the complainant did not send declaration of 16 consignments of Rs.20,98,325/- (sale value). The total declarable amount (sale out of Punjab) comes to Rs.1,14,74,418/- accordingly there was negative balance of Rs. 14,74,418/- as on the alleged date of loss dated 23.10.2016 which shows there was no available balance in the account books on the date of loss.

                   The opposite party further alleged that the claimant is not entitled to the claim because the loss occurred not due to the negligence of the opposite party but due to the negligence of the transport company namely M/s. Viveka Logistics Solutions Private Limited, Plot No.122-123, Transport Nagar, Ludhiana due to fire and the transport company did not take any efforts to save the goods of the consignment of above said three bills from fire and to save the goods from the fire negligently and carelessly or the transport company would have already sent the goods to the purchasers or concealed the goods by not sending the goods to the purchaser three bills No.105, 107 and 109 total of Rs.14,25,403/- i.e. bill No.105 worth Rs.4,25,976/-, bill No.107 worth Rs.5,72,306 and bill No.109 worth Rs.4,27,121/- negligently to the purchaser M/s. Maha Laxmi, Tripur and the complainant is entitled to get compensation from the said transport company for the loss caused by them and thus the opposite party is not liable to pay any claim as they are not negligent in causing loss to the complainant/insured. The complainant has filed the claim of the damaged goods with transport M/s. Viveka Logistics Solutions Private Limited. The opposite party might have received their alleged loss from the said transport company. The complainant has no right to claim loss from the opposite party because opposite party is not negligent in causing loss to the complainant and the present complaint is liable to be dismissed.

                   On merits, the opposite party reiterated the crux of averments made in the preliminary objections. The opposite party alleged that the complaint is false and Sh. Nem Chand Jain was not competent to file the present complaint nor the complainant was a partnership concern at the time of filing the complaint and at the time of alleged loss by fire. The opposite party further alleged that the accounts books of the complainant were inspected by the surveyor. The complainant has failed to prove the loss by producing relevant and genuine documents and he was bound to submit the details of the goods sold and supplied to his customers on monthly basis in respect of the consignment sold and sent to his purchaser party. However, the opposite party admitted that the complainant did not send description of the three bills No.105 worth Rs.4,25,976/-, bill No.107 worth Rs.5,72,306 and bill No.109 worth Rs.4,27,121/- total worth of Rs.14,25,403/- to it. The details of 16 bills mentioned under the head details of the calculation of the declaration and the available balance of the complainant submitted by the CA Mr. Naresh Kalra was not found in the account books of the complainant when inspected by the said CA and the details of the description was not sent by the complainant to the opposite party. Actually the complainant sold the goods worth of Rs.1,14,74,418/- during the period from 09.11.2015 to 08.11.2016 but he made declaration of sale of Rs.93,76,093/- and the complainant has not declared the sale of 16 consignments of Rs.20,98,325/- as per the inspection made by the CA Naresh Kalra. Moreover, the surveyor Duggal Gupta Insurance Surveyors and Loss Assessors Pvt. Ltd. but the opposite party is not liable to pay the claim as Properly the complainant did not maintain the accounts properly and intentionally did not submit the declaration of the bills vide which they sold the goods to the purchasers out of Punjab. As a result, the complainant intentionally and fraudulently wants to get wrong and false claim of the above said three bills No.105, 107 and 109. Actually the goods of the above said three bills were damaged due to fire occurred in the godown of the transport company and thus they are liable to pay the claim to the complainant. There is no clause in the Insurance policy to add 10% to the value of the goods as per the invoices by the surveyor. The opposite party in its reply also justified that the reports of CA Naresh Kalra and surveyor Mr. Duggal Gupta Insurance Surveyor are legal and based upon the evidence. The claim of the complainant was rightly repudiated. Moreover, the complainant withdrew the claim being found false and illegal. The opposite party denied any negligence and deficiency in service on its part and in the end, has also prayed for dismissal of the complaint.

3.                The complainant filed replication controverting the facts mentioned in the written statement and reiterating the averments mentioned in the complaint. The complainant submitted that he has duly disclosed the invoices No.105, 107 and 109 showing details of the goods sold to the purchaser outside Punjab through road and rail which are covered under the marine insurance policy obtained and the claim is lodged in respect of the said invoices dispatched vide GR No.1089029, 1087984, 1087985 dated 19.10.2016 ex- Ludhiana to Tripur through M/s. Vivek Logistics Solutions Pvt. Ltd. which was damaged in the fire took place on 23.10.2016. The complainant submitted that he has furnished all the details of the goods sold vide bill No.105, 107 and 109 respectively and documents were submitted to M/s. Duggal Gupta, Insurance Surveyor and Loss Assessors Pvt. Ltd. who after considering all the documents assessed the loss to Rs. 14,18,276/-. There was a sufficient balance in the sum assured in the policy amounting to Rs.21,69,487/- on the date of dispatch of the consignment No.105 dated 18.10.2016 worth Rs.4,25,976/-, bill No.107 dated 19.10.2016 worth Rs.5,72,306 and bill No.109 dated 19.10.2016 worth Rs.4,27,121/- total amounting to Rs. 14,25,403/- plus add on 10% of the invoice value in terms of insurance policy amounting to Rs.1,42,540/- total claim amount of Rs.15,67,943/-. The goods against the aforesaid bills were sold actually and as such, the amount of compensation claimed by the complainant is payable by the opposite party.

4.                The complaint No.57 dated 29.01.2019 filed by the complainant was partly allowed by this Commission vide order dated 14.02.2023. The complainant preferred First appeal No.290 of 2023 before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh which was allowed vide order dated 23.05.2024 vide which the order dated 14.02.2023 passed by this Commission was set aside and remanded back to this Commission for fresh adjudication. The Hon’ble State Commission further directed this Commission to decide the case within a period of three months from the receipt of copy of order.

                   Accordingly, on 12.06.2024, Sh. Yogesh Gandhi, Advocate appeared and filed an application for impleading M/s. Viveka Logistics Solutions Pvt. Ltd., Head office 122-A-123, Transport Nagar, Ludhiana as one of the party i.e. OP2 and also filed amended complaint. Notice of the application was issued to OP1 i.e. United India Insurance company Limited for 24.07.2024.

                   Upon notice of said application, Sh. M.R. Saluja, Advocate appeared on behalf of OP1 and got recorded his statement having no objection, if the application filed by the complainant for impleading M/s. Viveka Logistics Solutions Pvt. Ltd. as one of the OPs in the present complaint is allowed. As such, vide order dated 24.07.2024, M/s. Viveka Logistics Solutions Pvt. Ltd., head office 122-A-123, Transport Nagar, Ludhiana was allowed and the said party was ordered to be impleaded as OP2 in the present complaint and notice to said newly impleaded OP2 was ordered to be issued for 31.07.2024.

                   Sh. Amit Sharma, Advocate appeared on behalf of OP2 on 31.07.2024 and filed written statement along with affidavit and documents on behalf of OP2 on 12.08.2024.

5.                In its, written statement, OP2 assailed the complaint by taking preliminary objections on the grounds of maintainability; the complainant being not its Consumer; lack of jurisdiction; the complaint being time barred; the complaint being bad for mis-joinder of parties etc. OP2 stated that the complainant had booked three consignments at owner’s risk, details of which is reproduced as under:-

                   a. GR No.1089029 dated 19.10.2016 bill No.105 value 425976

                   b. GR No.1087984 dated 19.10.2016 bill No.107 value 572306

                   c. GR No.1087985 dated 19.10.2016 bill No.109 value 472121

OP2 further stated that the aforesaid consignment was kept in its warehouse situated at 61-B, Industrial Area Extension, Ludhiana for onward transportation to M/s Mahalaxmi Knitwear, Tripur i.e. destination station. However, on the night of 23.10.2016 around midnight due to the sparking in the electrical connection in the warehouse referred above, the material then stored in the warehouse including consignment mentioned at Sr. No.(a) to (c) of the complainant got burnt in the fire. The fire report and fire call report of the unfortunate incident has been registered with the Police Station Division No.6, Ludhiana and Fire Station, Miller Ganj, Ludhiana. The said fire incident is beyond its control and inspite of the best efforts made by its employees, which a prudent man would have taken in such eventuality, the material of the consignments stored in the warehouse No.61-B, Industrial Area Extension, Ludhiana including the above said consignments mentioned at Sr. No.(a) to (c) of the complainant could not be saved and the entire consignment of the complainant was burnt. OP2 had already issued certificate to the complainant dated 08.05.2017 and to the surveyor of OP1 M/s. Duggal Gupta Insurance Surveyors and Loss Assessors Pvt. Ltd. dated 11.11.2016 regarding the damage to the consignment referred at Sr. No.(a) to (c). At the time of said incident of fire on 23.10.2016 the warehouse in question where the consignment was kept and the consignments of the different consignors lying in said warehouse were not got insured by OP2 with any insurance company as in general practice the consignor get their goods so booked insured at their own expenses from their respective insurance companies. OP2 further stated that there is as such no careless or negligence on its part qua the damage to the three consignments of the complainant on account of fire in warehouse as the same was beyond its control and is an act of God.

                   On merits, OP2 reiterated the crux of averments made in the preliminary objections. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

6.                In support of his claim, Sh. Nem Chand Jain, Partner of the complainant firm tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of partnership deed, Ex. C2 and Ex. C3 are the copies of Form-A and Form-C respectively, Ex. C4 to Ex. C7 are the affidavits of Chander Parkash Jain, Sukhendu Mondak, Gautam Kapoor and Valji Ramji Anawadia respectively, Ex. C8, Ex. C37, Ex. C74, Ex. C116 and Ex. C117 are the copies of email, Ex. C9 and Ex. C10 are the copies of letters dated 18.05.2018 and 14.02.2018 respectively, Ex. C11 to Ex. C13 is the copy of report of CA Naresh Kalra, Ex. C14 is the endorsement of insurance policy, Ex. C15, Ex. C17 to Ex.C28 is the copy of marine declaration, Ex. C16, Ex. C29 and Ex. C30 are the copies of letters dated 03.08.2017, 05.08.2017 and 14.07.2017 respectively, Ex. C31 to Ex. C33 is the copy of GR, Ex. C34 to Ex. C36 are the copy of invoice, Ex. C38 is the copy of report of Galaxy Tracers and Recovery Consultants, Ex. C39 is the copy of certificate of facts, Ex. C40 is the copy of letter dated 21.03.2017, Ex. C41 is the copy of letter of Viveka Logistics Solution Pvt. Ltd., Ex. C42 is the copy of DDR, Ex. C43 is the copy of fire call report dated 08.11.2016, Ex. C44 is the details of consignment damage, Ex. C45 is the copy of letter dated 21.03.2017, Ex. C46 is the copy of claim bill, Ex. C47 and Ex. C48 are the copies of letters dated 28.11.2016 and 03.03.2017 respectively, Ex. C49 to Ex. C64 are the copies of report of Duggal Gupta Insurance Surveyors and Loss Assessors Pvt. Ltd. along with annexures attached with the report, Ex. C65 and Ex. C66 are the envelope and postal receipt, Ex. C67, Ex. C75, Ex. C76, Ex. C103, Ex. C109, Ex. C118 are the copies of letters dated 14.02.2018, 21.03.2017, 09.12.2016, 03.08.2017, 14.07.2017, 22.03.2017 respectively, Ex. C73 is the copy of policy, Ex. C77 is the copy of marine claim form, Ex. C78 is the copy of claim bill, Ex. C79 to Ex. C81 are the copies of invoices, Ex. C82 to Ex. C84 are the copies of GR, Ex. C85 and Ex. C86 are the copies of letter dated 28.11.2016 and postal receipt, Ex. C87 is the copy of insurance policy, Ex. C88 to Ex. C93 are the statement of account, Ex. C99 to Ex. C102, Ex. C104 to Ex. C108 are the declaration, Ex. C110 to Ex. C112 are the copies of GR, Ex. C113 to Ex. C115 are the copies of invoices, Ex. C119 to ex. C121 are the certificate of facts, Ex. C122 is the copy of DDR, Ex. C123, Ex. C125 is the copy of letter dated 28.11.2016, 05.11.2016, Ex. C124, Ex. C132 are the copies of emails, Ex. C126 to Ex. C130 is the letter of Viveka Logistics Solutions Pvt. Ltd., Ex. C131 is the copy of insurance policy, Ex. C133, Ex. C184, Ex. C196, Ex. C198, Ex. C206, Ex. C218, Ex. C219, Ex. C226, Ex. C261 and Ex. C289 are the copies of declaration, Ex. c134 to Ex. C183, Ex., C185 to Ex. C195, Ex. C197, Ex. C199 to Ex. C205, Ex. C207 to Ex. C217, Ex. C220 to Ex. C225, Ex. C227 to Ex. C260 are the copies of invoices, Ex. C262 to Ex. C288 are the account statement, Ex. C290 is the copy of letter dated 08.03.2018, Ex. C291 is the copy of postal receipt and closed the evidence.

7.                On the other hand, counsel for OP1 tendered affidavit Ex. RA as well as affidavit Ex. RZ of Ms. Lipi Moitra, Assistant Manager of OP1 along with documents Ex. RI is Marine Cargo Open Policy from 09.11.2015 to 08.11.2016, Ex. RI/A is the endorsement schedule of Marine Cargo Open Policy, Ex. R2 is the copy of final survey report of Duggal Gupta Insurance Surveyors and Loss Assessors Pvt. Ltd., Ex. R3 is the copy of report dated 25.09.2017 of CA Naresh Kalra, Ex. R4 is the copy of report dated 30.03.2017 of Galaxy Tracers and Recovery Consultants, Ex. R5 is the copy of repudiation letter dated 14.02.2018 and closed the evidence.

                   The counsel for OP2 tendered affidavit Ex. RA of Sh. Gurdeep Singh, Director of OP2 along with documents i.e. Ex. RW2/A is the copy of GR No.001087984, Ex. RW2/B is the copy of GR No.001087985, Ex. RW2/C is the copy of GR No.001089029 and closed the evidence.

8.                We have heard the arguments of the counsel for the parties and also gone through the complaint, rejoinder, affidavit and annexed documents and written statements along with affidavit and documents produced on record by the parties.

9.                The complainant firm obtained the Marine Cargo Open Policy Ex. C87 = Ex. R1 from OP1 initially for a sum of Rs.50 Lakhs on 09.11.2015 which was subsequently enhanced to Rs.1 Crore by paying an additional premium w.e.f. 18.07.2016. The salient features of the Marine Cargo Open Policy are reproduced as under:-

“Period of Insurance: From 11:54 Hours of 09/11/2015 to Midnight of 08/11/2016

This Insurance is to remain in force for a period of 12 months, as stated above, unless the sum insured is previously exhausted by declaration.

Adequate Sum Insured should be available for the relevant dispatch as on dated of RR/LR/BL/AWB”

LIABILITY OF CARRIERS, BAILEES OR OTHER THIRD PARTIES

It is the duty of the Assured and their Agents, in all cases to take such measures as may be reasonable for the purpose of averting or minimizing a loss and to ensure that all rights against Carrier Bailees or other third parties are properly preserved and exercised. In particular, the Assured of their Agents are required:-

1. To claim immediately on the Carriers, Port Authorities or other Bailees for any missing packages.
2. To apply immediately for survey by Carrier’s or other Bailee’s Representative, if any loss or damage be apparent and claim on the carriers or other Bailees for any actual loss or damage found at such survey.
3. In a circumstances, except under written protest, to give clean receipts where goods are in doubtful condition.
4. To give notice in writing to the Carriers or other Bailees within 3 days of delivery if the loss or damage was not apparent at the time of taking delivery.

Note: The Consignees or their Agents are recommended to make themselves familiar with the Regulation of the port Authority at the port of discharge.

                   SURVEY AND CLAIM SETTLEMENT

In the event of loss or damage which may involve a claim under this insurance immediate notice of such loss or damage should be given to and a survey Report obtained from Lloyd’s Agents as below.

In the event of any claim arising under this Insurance request for settlement should be made to who is/are authorized by United India Insurance Co. Ltd. to adjust and settle claims on behalf of the Company.”

OPEN POLICY CLAUSES

1. This open policy is effected to insure the interest specified herein dispatched either by or for account of the Assured in which they have an insurable interest.

It is a condition of the Policy that the Assured are bound to declare hereunder each and every consignment without exception, underwriters being bound to accept upto but no exceeding the amount specified in Clause IV below.”

                             BENEFIT OF INSURANCE

                             8. This Insurance

8.1 covers the Assured which includes the person claiming indemnity either as the person by or on whose behalf the contract of insurance was effected or as an assignee

8.2 shall not extend to or otherwise benefit the carrier or other bailess.

                             MINIMIZING LOSSES

9. It is the duty of Assured and their servants and agents in respect of loss recoverable hereunder.

9.1 to take such measures as may be reasonable for the purpose or averting or minimizing such loss and.

9.2 To ensure that all rights against carriers, bailess or other third parties are properly preserved and exercised by immediately lodging a monetary claim against railway/road carriers/bailess within six months from the date of railway/lorry receipt or as prescribed by the relevant statute.

And the underwriters will, in addition to any loss recoverable hereunder, reimburse the Assured for any charges properly and reasonable incurred in pursuance of these duties.”

10.              The conjoint reading of the policy terms and conditions shows that as per policy terms and conditions, the complainant had to submit declaration on monthly basis with regard to dispatch of consignment from Ludhiana to anywhere specifying particulars of bill i.e. its number, date, amount, description of goods, parties name, destination etc. and summary of the sum insured and the balance sum available under the policy. It has been further elaborated that adequate sum must be available for the relevant dispatches as on the date of RR(Railway Receipts), LR (Lorry Receipts), BL (Bill of landing) and AWB (Air Way Bills), meaning thereby value of the consignments delivered personally by hand or to the carrier of consignee stands excluded term sum assured. It is also stipulated that in case of apparent damage or loss, in transit, claim should be lodged on carrier.

11.              In this case, the complainant lawfully entrusted total three consignments containing readymade goods for its onwards transmission and delivery to M/s Mahalaxmi Knitwear, Tripur through OP2. The consignment with GR No. 1089029 dated 19.10.2016 Ludhiana to Tripur of M/s. Parveen Knitwears Regd. vide bill No.105 dated 18.10.2016 worth Rs.4,25,976/- was booked by Sunder Nagar booking office and other consignments bearing GR Nos.1087984 and 1087985 dated 19.10.2016 each Ludhiana to Tripur of M/s Parveen Knitwears Regd. Vide bill No.107 and bill No.109 worth Rs.5,72,306/- and Rs.4,27,121/- were booked by Transport Nagar booking office. The all three consignments were shifted at 61-B, Industrial Area, Near Transport Nagar, Ludhiana. Therefore, the goods were delivered to the Ops transporter in a packaged condition and they were deemed to be in transit for all intents and purposes.

12.              But in the intervening night of 23/24.10.2016 fire broke out in the godown of the transporter resulting in loss to the stored goods. A DDR No.26 dated 27.10.2016 was lodged by the transporter with Police Station Division No.6, Ludhiana regarding said fire incident. Even a Fire Call Report dated 08.11.2016 was issued by Assistant Divisional Fire Officer, Fire Department, Ludhiana.

13.              The complainant lodged claim with OP1, upon receipt of which, M/s. Duggal Gupta Insurance Surveyors & Loss Assessors Pvt. Ltd. was appointed who gave his report Ex. R2 after inspecting the premises of the transporter at Plot No.61-B, Industrial Area, Near Transport Nagar, Ludhiana and assessing the maximum liability of the OP to be Rs.14,18,276/- subject to admissibility of the claim as per terms and conditions of the policy.

14.              Thereafter, M/s. Galaxy Tracers & Recovery Consultants was also appointed as investigator to pursue the comprehensive investigation: After due investigation, they submitted the report Ex. R4 and concluded as under:-

• During investigation with the concern carrier, consignor, Police Station, Fire Brigade Station and according their records and according the incident spot local citizens, it was revealed that the incident was fact, on 23.10.2016 night the said material complete burnt and ash due to sparking in the electrical connection in the warehouse around midnight, the material then stored in the warehouse got burnt in the fire.
• The fire accident admitted under D.D.R. No.26 dated 27.10.2017 at Division No.6, Police Station, Ludhiana.
• According to Fire Brigade Station, the incident was fact and total consignment with warehouse have been burnt and ash. They could not save any consignments in this case.

THE ASSESSMENT OF LOSS AS PER INVOICE

Net loss of assessment Rs.14,25,403.00 in words (Rupees Fourteen Lakh Twenty Five Thousand Four Hundred Three only)

15.              Further Mr. Naresh Kalra, CA was appointed to verify the declarations of the complainant firm. Mr. Naresh Kalra, as per his report Ex. R3, checked and verified the books of accounts and records relating to the sales made by the complainant firm from 09.11.2015 to 19.10.2016 Mr. Naresh Kalra, CA concluded that 'the insured had made total declarations (i.e. sale value outside Punjab) of Rs.93,76,093/-. But as verified from books of accounts and other relevant records, the insured had not declared the sales value of 16 consignments amounting to Rs.2098325/ and total declarable amounts (i.e. sales outside Punjab) comes to Rs.11474418/-. Accordingly there was negative balance of Rs.1474418/- as on date of loss i.e. 23.10.2016. In other words, there was no available balance as on date of loss."

                   On the basis of the report of Sh. Naresh Kalra, vide Ex. R5, the opposite parties closed the claim file of the complainant firm as "NO CLAIM".

16.              Now the issue for consideration arises whether OPs are liable to reimburse the complainant of loss suffered by the complainant in fire incident occurred on 23.10.2016 at 61-B, Industrial Area, Near Transport Nagar, Ludhiana.

17.              Although the incident of fire is admitted on 23.10.2016 at the godown of the transporter but there are material factors which required to be discussed for determination of liability of OPs, if any. As per final survey report Ex. R2, three consignment goods arrived at the premises of OP2 on 19.10.2016 out of which two consignments were booked from Sunder Nagar booking office and one consignment was booked from Transport Nagar booking office and these consignments were shifted to their godown by the transporter where incident of fire took place. According to the transporter, the goods could not be dispatched because of shortage/non-availability of carrying vehicles till 23.10.2016. The fire was broke out resulting in intensive damage to the parts of building, shed and the stocks lying there. The transporter suffered total loss of Rs.1.50 Crore which included the three consignments in question along with consignments of other consigners. The perusal of the report Ex. R2 of M/s. Duggal Gupta Insurance Surveyors and Loss Assessors Pvt. Ltd. reveals that labourers of the transporter were also sleeping in the labour quarters and they raised hue and cry and informed Fire Brigade. The Fire Brigade took 6-7 hours to control the fire. The cause of fire was established to be short circuit in the godown. DDR Ex. C42  was also lodged on the next date which also contains the details of Goods Receipts(GRs) of  the complainant as well.

18.              From the chronology of the aforesaid facts, it can be concluded that the godown premises of the transporter was adequately secured. The labourers are also occupying the labour quarters within the premises of godown of the transporter. There is no delay on the part of the employees of the transporter to informing the Fire Brigade. Further mentioning of GR details in the records of the transporter and contents of DDR further rules out any collusion or connivance between the complainant and the transporter and negligence on the part of the transporter.  

19.              The complainant lodged the claim with the transporter in compliance of the terms and conditions of the policy reproduced hereinbefore as per clause “LIABILITY OF CARRIERS, BAILEES OR OTHER THIRD PARTIES” Even the certificate Ex. C39 issued by the transporter was also examined by the investigators of the insurance company.

20.              Initially, the complainant filed a complaint No.57 dated 29.01.2019 against OP1 i.e. United India Insurance Co. Ltd. Even after the impleadment of transporter as OP2, the complainant filed amended complaint on 12.06.2024 but did not aver or claim any relief against the transporter. It is the settled law that the relief which has not been sought by the complainant in the complaint cannot be expressly or impliedly granted. The contention of OP1 that the transporter was negligent is just an attempt to shift its responsibility of reimbursement of claim. In this regard, the Hon’ble Supreme Court of India in case titled Galada Power and Telecommunication Ltd vs. Untied India Insurance Co. Ltd. & Anr. (2016) 14 SCC 161 as well as in Saurashtra Chemicals Ltd. vs. National Insurance Co. Ltd.  (2019) 19 SCC 70 has held that new grounds for repudiation cannot be introduced during the hearing if they were not included in the repudiation letter. As such, no liability can be fastened upon OP2 and the complaint as against OP2 deserves to be dismissed.

21.              Now adverting to the determination of liability of OP1, the claim of the complainant was repudiated on the basis of repudiation letter dated 14.02.2018 Ex. R5 where the claim of the complainant was closed as “No Claim” by observing as under:-

“As per CA Naresh Kalra's report the insured had made total declarations (i.e. sale value outside Punjab) of Rs.93.76,093/-. But as verified from books of accounts and other relevant records, the insured had not declared 16 consignments of Rs.20,98,325/- (sales value). Total declarable amounts (i.e. sales outside Punjab) comes to Rs. 1,14,74,418/- Accordingly there was negative balance of Rs. 14,74,418/-as on date of loss i.e. 23.10.2016. So company is not liable to pay the claim.”

22.              OP1 closed the claim file of the complainant as “No Claim” largely relying the observations of report of CA Naresh Kalra. Both the investigators have confirmed the incident of fire in the premises of the transporter. However, Mr. Naresh Kalra, CA on verification of account books and other relevant records found that 16 consignments meant for sale outside Punjab were not declared by the complainant firm. In order to rebut the same, the complainant has produced invoices of said consignments from Ex. C246 to Ex. C260. Perusal of these invoices shows that GR/RR number have not been mentioned in these bills which shows that the goods were not entrusted to any transporter or carrier for its onward delivery beyond the area of Punjab. Rather there is a remark that the goods/clothes have been delivered. In order to further corroborate this fact, the complainant has obtained duly sworn affidavits of Chander Parkash Jain, Partner of M/s. Star Textiles, Kolkata, Sukhendu Mondak, Partner of M/s. Nripendra Chandra Modak & Co., Kolkata, Gautam Kapoor, Prop. of M/s. V.K. Overseas, Bangalore and Valji Ramji Anawadia, Prop. of M/s. Girls Fashion, Mumbai as Ex. C4 to Ex. C7. In all these affidavits, deponents have declare that their representative took the delivery of the goods by hand from the premises of the complainant at Ludhiana and these consignments were never dispatched through transport to their business place. It appears that Mr. Naresh Kalra, CA has not taken these material evidence into consideration at the time of verification of books and records of the complainant firm which lead to arriving of wrong conclusion. The material fact that complainant enhanced the limit to Rs.1 crore by paying the additional premium on 18.07.2016, in itself is sufficient to proof the bonafides of the complainant. 

23.              Reference can be made to the case title New India Assurance Co. Ltd. & Ors. Vs M/s. Mudit Roadways in 2023 INSC 1022 where the Hon’ble Supreme Court of India in para No.57 of its judgment has held as under:-

“57. In the realm of risk and uncertainly, individuals and organizations seek solace in the bastion of insurance – a covenant forged on the bedrock of trust. Trust serves as a cornerstone, forming the essence of the insurer-insured relationship. The fundamental principle is that insurance is governed by the doctrine of ubberrimae fidei – there must be complete good faith on the part of the insured. The heart & soul of an insurance contract lies in the protection it accords to those who wish to be insured by it. This understanding encapsulates the foundational belief that insurance accords protection & indemnification, preserving the sanctity of trust within its clauses. Effectively, the insurer assumes a fiduciary duty to act in good faith and honour their commitment. This responsibility becomes particularly pronounced when the insured, in their actions, have not been negligent. In light of the vital role that trust plays in insurance contracts, it is important to ensure that the insurer adequately fulfils the duty that has been cast on it, by virtue of such a covenant.”

So applying the ratio of above cited cases, OP1 was not justified in denying the claim of the complainant and have arbitrarily closed the claim file as ‘No Claim’.

24.              On the receipt of intimation of claim, M/s. Duggal Gupta Insurance Surveyors & Loss Assessors Pvt. Ltd. was appointed as surveyor and loss assessor and he assessed the maximum liability of OP insurance company to the tune of Rs.14,18,276/- subject to the admissibility of claim as per terms and conditions of the insurance policy. Further, M/s. Galaxy Tracers and Recovery Consultants vide Ex. R4 has given his report and has also given identical finding with regard to the genuineness of incidence and assessed the OP insurance company's liability as Rs.14,25,403/-. The complainant has not controverted the facts mentioned in the written statement, so far as the surveyor report Ex. R4 is concerned as the complainant has neither filed any objections to deny the surveyor report by filing any objections to the same or to rebut the assessment made by the surveyor.

25.              As a result of above discussion, the complaint is partly allowed with an order that OP1 shall pay the claim of Rs. 14,25,403/- to the complainant as per survey report Ex. R4 along with interest @8% per annum from the date of filing of the original complaint dated 29.01.2019 till date of actual payment. Further OP1 shall pay composite costs of Rs.10,000/- to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. However, the complaint as against OP2 is hereby dismissed. Copies of order be supplied to parties free of costs as per rules.

26.                        File be indexed and consigned to record room.

(Monika Bhagat)                                 (Sanjeev Batra)        

                   Member                                                 President         

Announced in Open Commission.

Dated: 12.09.2024.

Gobind Ram.