1.                     Appellant M/s Sulabh Industries has preferred the present appeal feeling aggrieved by the order dated 22/4/2015 passed by the District Consumer Commission, Nagpur in Consumer Complaint No.CC/11/776 whereby the Complaint filed by the Appellant/complainant came to be dismissed. (Appellants and Respondents shall hereinafter be referred to by their nomenclature in the original complaint)

2. Short facts leading to the filing of appeal may be narrated as under..

               Complainant is running a factory of pulses (Dal Mill) and is having business all over India. Complainant is also a tax payer and is regularly paying taxes. Complainant had taken one Marine Cargo Open Insurance policy from United India Insurance Company for the period from 17/9/2010 to 19/9/2011. Complainant contended that their product is transported through states through authorized agent. On 1/11/2010, complainant had taken an order of 320 bags of Tur Dal from authorized agent of Sangam International, Bhuvaneshwar and hence he booked consignment through the truck of Opponent No.2 Raipur Golden Transport. Complainant also obtained lorry receipt No.RJ-07/GA-0795. OP No.2 had assured to deliver the said consignment of 320 bags of Tur Dal at Bhuvaneshwar and as per the policy conditions, the complainant had also given intimation to the Opponent No.1 Insurance Company on 1/11/2010 alongwith details of consignment. Complainant contended that the value of the goods was Rs.10,88,000/- and they were to be transported through truck of the Opponent No.2 bearing registration No.CG-04 JB 4750. Complainant has contended that during the course of transit the consignment was transferred to one truck owned by Opponent No.3 Raj Roadways. Complainant contended that on 6/11/2010 when the said truck was passing through Kanjipani Ghat, it met with an accident and fell into a gorge along with consignment of all 320 bags of Tur dal. Complainant gave intimation regarding the same to the Insurance Company on 6/11/2010 and also lodged a report in police station and accordingly FIR came to be registered on 15/11/2010 regarding theft of Tur dal as bags of Tur Dal were stolen. Complainant contended that due to the said accident the complainant sustained a monetory loss of Rs.10,89,090/- i.e. the value of 320 bags of tur dal. Complainant also suffered physical and mental and physical harassment and the same is quantified at Rs.20,000/-. Complainant contended that despite intimation being given no action was taken by the Opponent Insurance Company and no payment was made. Complainant contended that by not honouring the claim of the complainant, the Opponent namely United India Assurance had committed deficiency in service as well as Unfair Trade Practice and so the complainant was constrained to file Consumer Complaint under the provisions of Consumer Protection Act,1986.

           After filing of the complaint, due notices were issued to the Opponent Nos.1 to 3. Opponent No.1 United India Assurance appeared and resisted the complaint by filing written version on record. Opponent No.1 has admitted that the complainant M/s Sulabh Industries had taken Marine Cargo Open Insurance for the period from 17/9/2010 to 19/9/2011. However, the Opponent has denied the rest of the contentions. The Opponent No.1 contended that the Complainant had not sent the consignment namely 320 bags of Tur Dal by truck bearing No.RJ 07 A 0795 instead, he sent it by another truck bearing registration No.CG 04 JB 4750 and as such has committed breach of terms and conditions of the policy.  Opponent has admitted that the consignment was trasnsported by truck bearing No.CG 04 JB 4750 and the said truck met with accident. But the Opponent denied that the said truck was loaded with consignment of 320 bags of tur Dal. On the contrary, as per FIR dated 15/11/2010 registered by the police Station, Kanjipani, only 157 Tur bags were recovered from spot. However, the complainant has committed breach of policy terms and conditions by shifting the consignment from the truck to another truck at Raipur. Complainant had also changed the route of the truck and the same amounted to breach of terms and conditions. Complainant had also acted in negligent manner. Opponent contended that there was negligence on the part of complainant and due to his negligence there was theft of 157 bags of Tur Dal and therefore there was breach of terms and conditions. Complainant had no right to claim monetory loss of Rs.10,89,090/- and the complaint filed by the complainant was not tenable in law and so needs to be dismissed.

            The Opponent No.2, Raipur Golden Transport has also resisted the complaint by filing written version. Opponent No.2 has contended that the complainant had booked consignment of 320 bags of Tur Dal for transporation through their truck bearing No.0795 and accordingly the consignment was delivered up to Raipur. Opponent No.2 has performed task assigned to it and so there was no deficiency in service.

            Opponent No.3 has also filed written version denying the contentions made in the complaint. At the outset, Opponent No.3 has contended that complaint is not tenable in law as the Complainant was not at all a Consumer.  Mrs.Madhuri Gupta is not the owner or proprietor of Ms Sulabh Industries. Opponent No.3 has contended that there was no negligence on the part of Opponent No.3 as the Opponent No.3 has supported the complainant in lodging the complaint in Kanjipani Police Station. Complainant has filed this false, vexatious complaint and so the same deserves to be dismissed.

              Learned District Forum, Nagpur, thereafter recorded the evidence of the Complainant and Opponents and also went through the documents and written notes of arguments filed by the parties. Learned Forum after appreciating oral and documentary evidence came to the conclusion that the complainant himself has committed breach of terms and conditions and there was no deficiency in service on the part of Opponents. Learned District Consumer Commission therefore dismissed the complaint by the judgment and order dated 22/4/2015 which is assailed in the present appeal.

6.            We have heard Shri.  Thanvi, learned  advocate for the Appellant and Adv. Mahendra Roy for the Respondent No.1. However, Respondent Nos.2 & 3 as well as their respective advocates were absent. We have also carefully gone through the documents filed by the parties on record. We have also gone through the written notes of arguments. On the basis of the facts stated above, only point that arises for our determination is as under with our findings recorded against the same for the reasons thereunder..

                 Points for determination                                                  Finding 

1. Whether the impugned order passed by the learned               No

District Consumer Commission, Nagpur suffers from

Any infirmity, illegality and whether the same needs

any interference ?

2.     What order ?                                                              As per final order..

REASONS AND FINDINGS

          There is no serious dispute that the complainant M/s Sulabh Industries was dealing in the business of pulses and was running a factory (Dal Mill). Complainant was sending its produce to various places. It is not in dispute that the Complainant had also taken Marin Cargo Insurance Policy covering all risks including risk of goods in transit by Rail or Road for a sum of Rs.94,54,000/- with a cap of Rs.10 lac per transit and the period of coverage was from 17/9/2010 till 16/9/2011. There is no dispute that the Complainant received order of supply of 16000 kgs of Tur Dal from Sangam International Bhuvaneshwar and in pursuance of the same the complainant had packed pulses in 320 bags weighing 50 kg each. The complainant also booked transport of that consignment on 1/10/2010 by truck bearing No. RJ-07/GA-0795 owned by Opponent No.2 Raipur Golden Transport. He also obtained lorry receipt for the same. He despatched the goods valued at Rs.10,89,090/-. It appears that the consignment which was dispatched by the truck of Opponent No.2 Raipur Golden Transport reached to Raipur and, thereafter, the consignment was shifted to the truck bearing No.CG 04 JB 4750 owned by Opponent No.3 Raj Roadways. It is an admitted fact that that on 6/11/2010, the appellant received intimation that the truck bearing No.CG 04 JB 4750 carrying consignment had fallen in a 500 ft. gorge at Kanjipanighat, Distt.Keonjhar in the interveining night of 5/11/2011 and 6/11/2011. Complainant himself rushed to the spot on the same day and also gave intimation in writing to the opponent Insurance Company.   

                It is vehemently submitted by the learned advocate for the Appellant M/s Sulabh Industries that the learned District Consumer Commission has not properly appreciated the facts and documents on record and has arrivwed at erroneous conclusion. It is also submitted that the Insurance Company had wrongly repudiated the claim as per letter dated 5/9/2011. According to the learned advocate for the Appellant, there was no breach of policy conditions on the part of the Complainant. In order to support these contentions the learned advocate for the appellant has drawn our attention to various documents on record including copy of Insurance policy, copy of repudiation letter dated 5/9/2011 as well as copy of FIR registered by Kanjipani Police Station. Learned advocate for the Appellant has also drawn our attention to the copy of the Lorry receipt as well as one copy of invoice dated 1/11/2010. Our attention was specifically drawn to one copy of receipt cum invoice dated 1/11/2010 and the same shows that 320 bags of Tur Dal were purchased by Sangam International Bhuvaneshwar and the same was worth Rs.10,89,090/-. Complainant has also placed on record one copy of Lorry receipt which also shows that 320 bags of Tur dal were dispatched from Nagpur to Bhuvaneshwar by truck No.0795. It appears from the record that the said Tur Dal was initially loaded on the truck of Opponent No.2 Raipur Golden Transport and thereafter was unloaded at Raipur. Complainant has also placed on record another copy of receipt issued by Raj Roadways bearing No.4750 which shows that the consignment consisting of 320 bags was again loaded in the truck of M/s Raj Roadways for onward journey to Bhuvaneshwar. It is not at all in dispute that when the said truck bearing No. JB 4750 was passing near Kanjipani ghat on National Highway No.6, the truck loaded with consignment fell into 500 feet deep gorge and due to the same, the entire consignment consisting of 320 bags of Tur Dal got scattered. There was also theft of Gunny bags and so offence of theft was registered by Kanjipani Police Station as per crime No.29/1 U/s 379 read with 411, read with 34 of IPC. It appears that only 150 bags of Tur Dal were recovered by the police whereas the remaining bags were stolen by the thieves. On this aspect, there is no dispute on the part of Opponents.

             It is contended by Shri. Thanvi, Learned advocate for the Appellant/complainant that the Complainant had immediately intimated these facts to the Branch Manager of United India Insurance as per letter dated 6/11/2011 and, therefore the Opponent No.1 Insurance Company had also appointed a Surveyor to inspect and assess the loss of Tur Dal. Accordingly the Surveyor Mr.Ranjit Mohanti was appointed by United India Assurance who visited the spot and submitted a detailed report copy of which is placed on record. If we go through the copy of the Survey report, Surveyor has given report that 320 bags were transported from Nagpur to Bhuvaneshwar but when the lorry was moving to Baripada, it left its original route as intimated and thereafter met with accident. Surveyor also gave report that as per police report, only 157 bags were recovered and remaining 163 bags were lost due to theft. Accordingly the Surveyor gave assessment that there was loss of Rs.5,44,200/-. It appears that on the basis of the Survey report, Insurance Company disallowed the claim of the complainant as per repudiation letter dated 5/9/2011. If we go through the repudiation letter, the Insurance Company has taken a stand that though the consignment was loaded in the truck bearing No. RJ-07/GA-0795 owned by Raipur Golden Transport, the vehicle involved in the accident was the truck bearing No.CG-04 JB 4750. Secondly, the Insurance Company has taken a plea that the complainant had declared as per declaration No.183981 dated 1/11/2010 that the goods will be delivered through Raipur Golden Transport vehicle No.RJ-07 GA-0795 but it was shifted to vehicle No.CG 04 JB 4750 of Raj Roadways without any intimation to the Insurance Company and as such there is a breach of policy Conditions. Further the Insurance Company has also taken a stand that there was breach of terms and conditions as there was negligence on the part of Appellant as the Appellant or the truck owners did not take care about theft of the consignment consisting of tur dal which were loaded in the truck No.CG 04 JB 4750 owned by Raj Roadways. In this regard, it is also submitted by the learned advocate of the Respondent Insurance Company that the Complainant/appellant not only did not give any proper intimation to the Kanjipani Police Station immediately but has also not gave intimation to the Opponent Insurance Company and, therefore, no spot Panchnama was prepared. In order to support this contention, the learned advocate for the Respondent also drawn our attention to the police papers in which there is only a copy of FIR which was recorded by Officer of Kanjipani Police Station and not by the Complainant. Admittedly, in the present case police had not prepared any spot Panchnama of the spot where accident had taken place on 5/11/2010, on the contrary, it has come in report of the Surveyor that when he visited the spot on 10/11/2010, he did not find 320 bags of Tur Dal but had only found 150 bags. Surveyor has also given a report after investigation that 7 bags were stolen by the local people and the same was recovered from them. Further the Surveyor has also mentioned in the Survey report that though the consignment was to be transported to Bhuvaneshwar where it was to be unloaded, but the consignment in the truck bearing No. CG 04 JB 4750 owned by Raj Roadways was proceeding in another direction through Baripada which was not the rout to the destination namely Bhuvaneshwar. It is also submitted by the learned advocate for the Respondent that the Complainant/appellant had also not gave any intimation nor gave any declaration that the consignment consisting of 320 bags of Tur Dal was transported through truck No. CG 04 JB 4750 owned by Raj Roadways and not through truck No. RJ-07/GA-0795 owned by Raipur Golden Transport and the same also amounts to breach of terms and conditions. Learned advocate for the Appellant has submitted that the consignment could not be delivered by truck No. RJ-07/GA-0795 owned by Raipur Golden Transport as the said truck was not having the necessary permit to enter the state of Orissa. But the learned advocate for the Respondent Insurance Company has rebutted this contention strongly and contended that there was no intimation about these facts to the Insurance Company. He contended also that there was 10 days delay in giving intimation.

          If we go through the impugned order dated 22/4/2015 passed by District Consumer Commission, Nagpur, the learned District Consumer Commission has elaborately dealt with this issue after going through the documents placed on record. It is also submitted by the learned advocate for the Appellant that the appellant had also supplied all the necessary documents to the Insurance company but they were not properly appreciated. Further it is submitted by the learned advocate for the Appellant that there was also extreme delay on the part of the Surveyor in submitting the Survey report and also there were errors in the Survey report. But but we are unable to accept these contentions regarding error in the Survey report as the Surveyor had himself visited the spot and after detailed investigation had prepared the Survey report.

        During the course of argument, learned advocate for the appellant Shri. Thanvi has placed reliance upon a series of authorities which are as under.

1. Judgement of Hon’ble National Commission in the case of Transport Corporation of India Vs.Oriental Insurance Co. (Reported in IV (2011) CPJ 582 (NC)
2. Judgement of Hon’ble National Commission in the case of Glaxo India Ltd. Vs. Economic Transport Organization (Reported in I (2013) CPJ 205 (NC)
3. Judgement of Hon’ble National Commission in the case of  Trilda Riceland Pvt.Ltd. Vs.United India Insu.Co.(Reported in IV (2013) CPJ 135 (NC)
4. Judgement of Hon’ble SCDRC, Karnataka in the case of  Brown & Burke Pharmaceuticals (P) Ltd.(Reported in 2006 CTJ 373 (CP) (SCDRC)
5. Judgement of Hon’ble Supreme Court in the case of  United India Insurance Co.Vs. Kantika Colour Lab (Reported in III (2010) CPJ 14 (SC)
6. Judgement of Hon’ble National Commission in the case of  Banaras Beads Ltd.Vs. New India Assurance Co.Ltd.( Reported in 2005 CTJ 653 (CP) (NCDRC)
7. Judgement of Hon’ble National Commission in the case of St.Divyal, through its Prop. Vs. United India Insu.Co.( Reported in I (2016) CPJ 389 (NC)
8. Judgement of Hon’ble National Commission in the case of CTS Industries Ltd. Vs. Oriental Insurance Co.Ltd.( Reported in 2017 (2) CLT 8 (NC)
9. Judgement of Hon’ble National Commission in the case of Madanlal Gupta Vs. National In Insurance Co.Ltd.( Reported in 2017 (2) CLT 155 (NC)
10. Judgement of Hon’ble National Commission in the case of Oriental Insurance Co.Ltd. Vs. Rajendra Prasad Bansal (reported in II (2008) CPJ 186 (NC)

        We have carefully gone through the above judgements delivered by Hon’ble National Commission and other authorities on which reliance has been placed. But we feel that the ratio in the said judgements are not directly applicable to the facts of the peculiar case before us. Similarly, the learned advocate for the Repondent No.3 has also placed reliance upon authorities which are as under..

1. Judgement of Hon’ble Supreme Court in the case of  Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. (Reported in (2004)6 SCC 254)

2) Judgement of Hon’ble Supreme Court in the case of Alchemist Ltd.&    

    Anr. Vs. State Bank of Sikkim & Anr. (Reported in (2007) 11 SCC 335)

3. Judgement of Hon’ble Supreme Court in the case of Etheopian Airlines Vs. Ganesh Narain Saboo (reported in  (2011) 8 SCC 539)
4. Judgement of Hon’ble National Commission in the case of Delhi Development Authority & Ors. Vs. Parveen Kumar & Ors.(reported in II (2015) CPJ 36 (NC)
5. Judgement of Hon’ble National Commission in the case of Haresh Kumar Vs. Chairman Cum Nanaging Director, Allahabad Bank & Ors. (Reported in II (2016) CPJ 647 (NC)
6. Judgement of Hon’ble National Commission in the case of HDFC Bank & Ors. Vs. Shashikant & Ors. (Reported in II (2016) CPJ 303 (NC)

We have gone through the aforesaid authorities relied upon by the Respondent No.3, however we feel that the ratio in the said authorities does not help the case of Respondent No.3.

Coming back to the present case before us, the appellant/complainant has not given any satisfactory reason as to why the consignment loaded by the Complainant had not gone to its destination as per the declaration given and also failed to give any explanation for the change in route of the truck. The truck bearing No. CG-04 JB 4750 which was carrying the consignment was proceeding to Baripada instead of Bhuvaneshvar leading to the unfortunate accident. It is also very clear from the papers placed on record that the Appellant/complainant had not taken due and necessary care regarding safety of the 320 bags of Tur Dal which were loaded on the truck bearing No. CG 04 JB 4750 owned by Raj Roadways in breach of terms and conditions of Insurance Policy.

It is also contended on behalf of the appellant that the consignment was transported by Respondent No.2 upto Raipur and on 3/11/2010 the consignment was handed over to Respondent No.3 Raj Roadways for onward destination. It is contended that Respondent No.3 Raj Roadways had taken the responsibility of transportation of the consignment from Raipur until its destination at Bhuvaneshvar and by not delivering the consignment safely, the Respondent No.3 had also committed deficiency in service. Respondent No.2 Raipur Golden Transport as well as Respondent No.3 Raj Roadways both have denied their liability and also categorically denied that that there was any deficiency in service on their part. We are of the view that no liability can be fastened on Respondent Nos. 2 & 3 regarding deficiency in service.

We have mentioned earlier that the appellant/complainant herein had not filed all the police papers including spot panchanama except the copy of FIR to substantiate its allegations relating to deficiency in service and so these contentions can not be accepted. On the other hand, the complainant himself has not given any declaration to the Insurance Company to show that the consignment was loaded in the truck No.CG-04 JB 4750 nor any intimation was given regarding this fact to the Insurance Company so as to fasten any liability.

Sum and substance of the entire discussion is that the Appellant/complainant has failed to establish that there was error or infirmity in the findings given by the learned District Consumer Commission, Nagpur in the impugned order dated 22/4/2015. As such, we have no option but to hold that the appeal preferred by the appellant is devoid of any substance and so we pass the following order;

ORDER

1. The appeal is dismissed.
2. Appellant to bear his own cost as well as cost of the Respondent.