Delhi

New Delhi

CC/254/2016

M/s Phoenix Comtrade Pvt. Ltd - Complainant(s)

Versus

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

08 Jan 2020

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC/NO.23/2014

               TC NO.254/2016                                 Dated:

 

In the matter of:

M/s  Phoenix Comtrade  Pvt. Ltd.,

Through its Chairman-cum-Managing Director,

Administrative Office,

B/301, Fairlink Centre,

Off. Andheri Link Road,

Andheri(West), Mumbai-400058.

                 ……..COMPLAINANT

VERSUS

1. United India Insurance Co. Ltd.,

Through its Chairman-cum-Managing Director,

Regd. & HeadOffice,

24, Whites Road, Chennai-600014.

 

2. The Regional Manager,

United India Insurance Co. Ltd.,

8^th Floor Kanchanjunga Building,

 17, Barakhamba Road, New Delhi-01.

 

3. The Division Manager,

United India Insurance Co. Ltd.,

Divisional Office-24,

501, (5^th Floor), Kailash Building,

26, Kasturba Gandhi Marg,

      New Delhi.

                                                                                                                                                            ….....Opposite Parties

NIPUR CHANDNA, MEMBER

ORDER

The complainant has filed the present complaint against the OPs under section 12 of Consumer Protection Act, 1986.  The gist of the complaint is that the complainant’s company is engaged in business of import and export and trading in minerals and agro products and the said company is importing at all major ports of India. The complainant’s company had taken various transit/Marine Policies for supply of Indonesian steam coal to Vedanta Aluminium Ltd. The policy issued by OP bearing no.040800/21/10/01/00000122 was  effective from 29/07/2010 to 28/07/2011 for a sum insured of Rs. 12,32,00,000/- for supply of 40000.000 MT of which a rake containing  3242.520 MT of Indonesian Steam Coal from Vishakhapatnam Port Plot to Rayagada/Lanjigarh to Vedanta Aluminium Ltd. Through rail/road with respect to vessel Nord  Spirit.  The said policy is all risk Inland Transit policy covers loss/damage to the property insured.  The complainant had dispatched a consignment of 3242.520 MT of Indonesian Coal to Vedanta Aluminium Ltd.,  Lanjigarh vide RR No.211002781 dt. 15/05/2011 through rake no.22.  The said consignment was left the Vishakhapatnam port on 15/05/2011 through rake no.22. At the destination, the weight of the consignment was estimated, as per volumetric assessment analysis at 3208.732 MT instead of 3242.520 MT.  This volumetric analysis was done by the buyer appointed agency, Inspectorate Griffith India Pvt. Ltd.  

2.     On 07/12/2011, the complainant filed the claim for a compensation of Rs. 54,131/- with the OP against the shortage of supply along with requisite documents. After continuous, pursuance by the complainant the OP appointed surveyor M/s Cunningham Lindsey to whom again the complainant supplied the requisite documents and on various occasion provided various information as well as documents to the surveyor M/s Cunningham Lindsey as and when demanded.  After waiting for a considerable time, when no response was received from the OP, the complainant sent a letter on 14.5.2012 asking the status of its claim.  OP-3 vide its letter dt. 29.5.2012, on flimsy baseless objections tried to cover up the delay on their part, however, after various communication exchanged between the parties, finally on 3.10.2012, OP rejected the claim of the complainant on false and frivolous ground of non-declaration of the dispatchment of the  consignment within 48 hours to the OP Co. which amounts to deficiency in services on its part,  hence this complaint.

3.     Complaint has been contested by the OPs jointly.  OPs filed their written statement in which it denied any deficiency in services on their part.  It is stated that the complainant has failed to comply the terms and condition of the policy in question.  It is stated that the complainant failed to declare the  dispatchment of the  consignment within 48 hours to the OP Co.  He only gave the claim intimation and not the declaration  (to be given prior to the dispatched of the consignment) which  was mandatory as per the terms and condition of the policy.  The transit of the consignment of complainant took place from  May  2010 to October, 2010, but the claim reported on the said transit were informed to OP  after 3-4 months.  Even the complainant failed to obtain the shortage certificate which is a necessary document to establish the claim.  The certificate prepared by  Inspectorate Griffith India Pvt. Ltd. have no sanctity, hence, the repudiation of the claim is justified. 

4.     Both the parties have filed their evidence by way of affidavit.  

5.     Perusal of the file shows that since 05/12/2017, none appeared on behalf of complainant to address the arguments despite several opportunities. Finally, on 12/12/2019 Sh. H.S. Hans addressed the arguments  on behalf of OP and the Forum has perused the record/file. 

6.     Some facts are not disputed by the parties such as the Insurance policy.  We have gone through the policy documents attached with the complaint as well as the repudiation letter dated 03/10/2012 vide which the claim of the complainant was repudiated. It is stated in the repudiation letter that the complainant had violated the terms and conditions of the policy in question, hence, the company is absolved from any liability.  The terms and conditions of the Policy was attached with the policy document placed on record by the complainant, the contents of the same are reproduced as under:-

 

 

“SURVEY AND CLAIMS SETTLEMENT

In the event of loss or damage which may result in a claim under this Insurance Immediate notice must be given to Policy Issuing Office or nearest Office.

 

              DECLARATION CLAUSE

The assured warrants that during the currency of this Open Policy they will declare to the company within 48 hours from the time risk attaches, all shipments to which this Open Policy attaches, failure to so declare shall at the company’s option render this open policy void as from the date of such failure. Acceptance of any declaration by the company declared after the time limit stipulated in this warranty shall not be taken as a waiver and as a precedent for future declarations.

            OR

It is hereby agreed that the insured will record full particulars of each dispatch in Declaration Statement in the chronological order assigning declaration number for each such dispatch. A copy of the statement so completed, should be posted to the company every fortnight/month, preferably during the first week of the following fortnight/month. (Strike whichever is not applicable).”

 

7.     Perusal of the above conditions make its clear that the complainant ought to have informed the insurance company about the despatch of the consignment alongwith all necessary documents, which it fails to do so. The complainant ought to have informed the insurance company regarding the shortage of consignment immediately but the information was given after 3 to 4 months, which amounts to violation of the terms and conditions of the policy in question. Moreover, the complainant had failed to place on record the shortage certificate issued by the concerned authority to substantiate its claim.

8.      Insurance is a contract between the insured and insurer and both the parties are bound by the terms contained therein. The Hon’ble NCDRC in the matter of National Insurance Co. Ltd. vs. Vinod Puri as reported in I [2014] CPJ 341 (NC) is pleased to hold as under:

Insurance contract has to be construed like any other contract on basis of its terms and conditions and outside aid for construction of insurance policy is impermissible.

 The Hon’ble Apex Court in the case of Oriental Insurance Co. Ltd. versus Sony Cheryan reported in (1999) 6 SCC 451 is pleased to hold as under:

The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy.

Similarly in the case of General Assurance Society Ltd. vs. Chandumull Jain and Anr., reported in (1996) 3 SCR, 500, the Constitution Bench has observed that the policy document being a contract and it has to be read strictly. It was observed:

In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however, reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover floor, cyclone etc. had come into being.

The Hon’ble NCDRC in the matter of Ind Swift Ltd. versus New India Assurance Co. Ltd. reported in IV[2012] CPJ 148 (NC) is pleased to rule as under:

Construction of the policy is to be construed strictly as per the terms and conditions of the policy document which is binding contract between the parties and nothing can be added or subtracted by different meaning.

 Similarly in LIC versus Banwarilal Yadav reported in IV[2013] CPJ 38 (NC) the Hon’ble NCDRC observed as under:

“Forum has no jurisdiction to go beyond terms and conditions of the Policy.”

        The NCDRC in yet another matter in the matter of Morien Chemicals Ltd. versus UCO Bank reported in III [2013] CPJ 261 (NC) is pleased to hold as under:

“Insurance Company is not liable to pay damages which are not covered under the policy.”

 9.       Having regard to the facts and circumstances of the case, we are of the considered view that the non declaration of the consignment by   complainant to the OP as well as non intimation of the shortage immediately to the OP, resulting in the violation of the terms and conditions of the policy in question, hence, the repudiation is justified. We find no merits in the present complaint, same is hereby dismissed.

        A copy of this order each be sent to both parties free of cost by post.  This final order be sent to server (www.confonet.nic.in ). File be consigned to Record Room.

Announced in open Forum on  08/01/2020.

 

 

 

 

(ARUN KUMAR ARYA)

          PRESIDENT

(NIPUR CHANDNA)                                                  (H M VYAS)

       MEMBER                                                                MEMBER