Tamil Nadu

South Chennai

Cc/692/2005

M/s Sembcorp Logistics India P.Ltd. - Complainant(s)

Versus

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

Sampath Kumar & Associates

11 Jun 2018

ORDER

Date of Filing  : 02.12.2005

Date of Order : 11.06.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                TMT. K. AMALA, M.A., L.L.B.                                :  MEMBER-I

 

C.C. NO.692/2005

DATED THIS MONDAY THE 11^TH DAY OF JUNE 2018

 

M/s. Toll (India) Logistics Pvt. Ltd.,

Rep. by its Director

Mr.Juzar Mustan,                                           

No.9A, Puzhal-Ambattur Road,

Puzhal,

Chennai - 600 066.                                            .. Complainant.

 

..Versus..

United India Insurance Co. Ltd.,

Luz Divisional Office: 012500,

Rep. by its Divisional Manager,

Temple Square Complex,

North Mada Street,

Mylapore,

Chennai - 600 004.                                           .. Opposite party. 

 

Counsel for complainant     :  M/s. Sampathkumar & Associates  

Counsel for opposite party  :  M/s. M.B. Gopalan.

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section  12 of the Consumer Protection Act 1986 praying to pay a sum of Rs.6,32,802/- towards loss and survey fee with interest at the rate of 12% per annum and also to pay a sum of Rs.1,00,000/- for mental agony and to pay cost of the complaint.  

1.     The averments of the complaint in brief are as follows:

        The complainant submits that he is doing and carrying on business as Logistics service provider for transportation of goods from one place to other.   In order to cover any loss or damage if any occurred during the course of business of transportation, the complainant entered into a contract with the opposite party for “transit risks” on “All risks”  basis policy; under which the maximum limit of liability of the opposite party for any one accident damages to the tune  of Rs.12.50 lakhs and Rs.50 lakhs for  one year.   The opposite party charged a premium of Rs.13,32,375/- and issued policy bearing No.012500/46/02/00073 on 30.10.2002 for the period from 30.10.2002 to 29.10.2003.   During the course of his business on 30.01.2003, when the goods belonging to M/s. Amway India Enterprises were transported from Kolkatta to Guwahati in a vehicle bearing registration No.WMK-9638 met with an accident resulting damages to the goods and shortage of goods due to theft was to the tune of Rs.6,28,435/-.   The accident was duly reported to Tihu Police station by the driver.  The loss also duly reported to opposite party and due survey was held on 18^th and 19^th February 2003.  The complainant paid a sum of Rs.4,367/- towards surveyor fee.    Even after due submission of claim form with all documents on 03.12.2003, the opposite party repudiated the claim  for the reason that the complainant violated the policy condition under which the complainant is expected to act as if he is uninsured and take reasonable steps / precautions in the course of their operation.   The default on the part of the complainant attributed by letter is that “the driver and the handyman had left the huge quantity of goods unattended and gone to the police station”.   There is no such condition in the policy issued to the complainant.  Therefore, the complainant sent letters dated:23.02.2004, 19.04.2005, and 13.05.2005 with all details.  The opposite party has not come forward to settle the claim.   The act of the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.     The brief averments in the written version filed by the opposite party is as follows:

The opposite party denies each and every allegations except those that are specifically admitted herein.  The opposite party submits that the cover is subject to the terms and conditions contained in the policy. Although the policy is issued covering all risks, it is required that the complainant should observe certain essential terms and conditions as stipulated in the policy.   In particular, the opposite party would emphasis that in condition No.3 of the policy requires the insured to take reasonable care and steps to safeguard the property from loss or damage.  This condition represents a very fundamental stipulation of the policy in order to ensure that goods are not left uncared for because insurer has undertaken the risk of loss/damage.    The policy holder is bound to act as if he was uninsured, in order to prevent the occurrence of a loss.   The opposite party submits that the complainant had violated fundamental terms of the policy especially condition No.3 on account of which, the claim was justifiably repudiated  by the opposite party.   While genuine and unavoidable losses are intended to be covered by the policy, it cannot be misused for claiming alleged losses without even caring for the goods.   There is no negligence or deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A18 marked.  Proof affidavit of the opposite party filed and Ex.B1 to Ex.B3  marked on the side of the  opposite party.

4.     The points for consideration is :

1. Whether the complainant is entitled to a sum of Rs.6,32,802/- being the loss of goods with interest as prayed for ?

2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards mental agony with cost as prayed for?

5.     POINTS 1 & 2:

        Heard both sides.  Perused the records namely the complaint, written version, proof affidavits and documents etc.   The complainant pleaded and contended that he is doing and carrying on business as Logistics service provider for transportation of goods from one place to other.   Further the contention of the complainant is that in order to cover any loss or damage if any occurred during the course of business of transportation the complainant entered into a contract with the opposite party for ‘transit risks’ on “All risks”  basis as per Ex.A1 policy; damages to the tune  of Rs.12.50 lakhs for anone accident and Rs.50 lakhs for one year.  The opposite party charged a premium of Rs.13,32,375/- and issued policy bearing No.012500/46/02/00073 on for the period from 30.10.2002 to 29.10.2003.   Further the complainant contended that during the course of his business on 30.01.2003 when the goods belong to  M/s. Amway India Enterprises were transported from Kolkatta to Guwahati in a vehicle bearing registration No.WMK-9638 met with an accident resulting damages to the goods and shortage due to theft to the tune of Rs.6,28,435/-.    The said accident was duly reported to  Tihu Police Station by the driver as per Ex.A3.  The loss also duly reported to insurance company and due survey was held on 18^th and 19^th February 2003.   Ex.A5 is the Surveyor Report.  The complainant paid a sum of Rs.4,367/- towards Surveyor Fee as per Ex.A6.   

6.     As per the Surveyor Report, it  reads as follows:

“Cause of loss or damage :     The alleged vehicle No.WMK-9638 had met with an accident near Tihu (Assam), on N.H. Way 31.  The vehicle had got down from the road to the low land and capsized.  The driver and handyman went to the Police Station for giving the information of accident.  In the mean time some miscreants had stolen huge quantity of goods from the vehicle cutting the tarpaulin, as stated by the carrier’s representative and police authority of Tihu Police Station, Assam.  In this regard a case had been registered at Tihu Police Station, Dist. – Nalbari, Assam vide G.D.E. No.68 dated 4.2.2003”. 

proves that damages to goods by accident and shortage due to theft of articles was caused.    Such damage caused proves that the place of accident is very dangerous and endanger to life and property.   Further the contention of the complainant is that even after due submission of claim form with all documents as per Ex.A9 on 03.12.2003, the opposite party repudiated the claim without any valid reason as per Ex.A10.   Hence the complainant is constrained to send letters Ex.A11, dated:23.02.2004, Ex.A17 dated:19.04.2005, Ex.A18 dated: 13.05.2005 with all details.   Since the opposite party has not come forward to settle the claim, the complainant is constrained to file this case on the ground of deficiency in service. 

7.     The contention of the opposite party is that admittedly the opposite party issued policy covering transit loss of goods undertaken to be carried out by the complainant and the policy is  subsisting.  As per the terms and conditions of the policy No.3, the insured shall take reasonable care and steps to safeguard the property from loss or damage.   In this case, admittedly the vehicle met with an accident resulting damage to the goods only for Rs.9,320.61.  Immediately after the accident, the driver and the handyman left the vehicle without making suitable arrangement for safeguarding the vehicle and the property went to the police station and lodged the complaint.   While returning back and after unloading the goods, the complainant came to know that there was a huge loss of property by way of theft establishes that the place of accident is danger to life and property.   The Surveyor also assessed the damaged goods and theft of articles valuing Rs.6,28,435/-.  Immediately the complainant submitted due claim form along with the necessary documents.  The opposite party repudiated the claim and sent a letter dated 03.12.2003 repudiating the claim amounts to deficiency in service.   Thereafter also the complainant sent letters along with all documents requested to settle the claim.   But the opposite party turned deaf ears.

8.      Further the contention of the opposite party is that, the theft  is due to the failure in safeguarding the goods.   But in this case, immediately after the accident, the driver and the handyman went to the Police station and lodged the complaint.  The complainant was not able to provide the safeguard/ security to the vehicle and goods at the remote place. Accordingly the allegation of proper measure for safeguarding the goods and the vehicle never arise because immediately after accident, the matter was reported to the police by the driver and the handyman and returned back to the vehicle and goods in a  reasonable time  except suitable security facility  available at the accident place.   The opposite party also  has not stated anything about the facility of security measure available at the place of accident on the date and time of accident.    

9.     Considering the facts and circumstances of the case this Forum is of the considered view that, the opposite party is liable to pay a sum of Rs.6,32,802/- with interest at the rate of 9% p.a. from the date of complaint i.e. 2.12.2005 to till the date of this order and shall pay compensation of Rs.25,000/- and cost of Rs.5,000/- to the complainant and the points are answered accordingly.  

  In the result, this complaint is allowed in part.  The opposite party  is directed to pay a sum of Rs.6,32,802/- (Rupees six lakhs thirty two thousand eight hundred and two only) being the Insurance Claim with interest at the rate of 9% p.a. from the date of filing of this complaint i.e. 02.12.2005 to till the date of this order to the complainant and to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees five thousand only) to the complainant.

The above amounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

        Dictated  by the President to the Steno-Typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  11^th day of June 2018. 

 

 

MEMBER–I                                                                   PRESIDENT

 

COMPLAINANT’S  SIDE DOCUMENTS:

Ex.A1	30.10.2002	Copy of Insurance policy with terms and conditions
Ex.A2	30.01.2003	Copy of Goods Consignment Note
Ex.A3	04.02.2003	Copy of Policy complaint in Assamees along with English translation
Ex.A4	01.09.2003	Copy of Surveyor Sri. Ramendra Nath Sarma’s findings
Ex.A5	21.02.2003	Copy of Marine Survey Report
Ex.A6	21.02.2003	Copy of Survey Fee Bill
Ex.A7	08.03.2003	Copy of Debit Note issued by M/s. Amway India Enterprises
Ex.A8	31.03.2003	Copy of receipt issued by the Surveyor Sr. Ramendra Nath Sarma
Ex.A9		Copy of Marine Claim Form
Ex.A10	03.12.2003	Copy of the letter of the opposite party repudiating the claim
Ex.A11	23.02.2004	Copy of the complainant’s letter to the opposite party
Ex.A12	07.04.2004	Copy of the complainant’s letter to the opposite party
Ex.A13	21.05.2004	Copy of the complainant’s letter to the opposite party
Ex.A14	25.05.2004	Copy of the opposite party’s letter reiterating the repudiation
Ex.A15	07.06.2004	Copy of the complainant’s letter to the opposite party’s Grievance cell
Ex.A16	28.07.2004	Copy of the opposite party’s letter reiterating repudiation
Ex.A17	19.04.2005	Copy of the opposite party’s letter to the complainant
Ex.A18	13.05.2005	Copy of the complainant’s reply to the Head Office of the opposite party

 

OPPOSITE  PARTY SIDE DOCUMENTS: 

Ex.B1	30.10.2002	Copy of Policy
Ex.B2	21.02.2003	Copy of Survey Report
Ex.B3	03.12.2003	Copy of Repudiation letter

 

 

MEMBER–I                                                                   PRESIDENT