IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: HON’BLE THIRU. JUSTICE. R. SUBBIAH , PRESIDENT
TMT. S.M. LATHA MAHESWARI, MEMBER
C.C.No.68/2012
TUESDAY, THE 3rd DAY OF AUGUST 2021.
M/s. Sadanam Personal Products Limited.,
2nd Floor, LVR Centre,
No.4, Shesdri Road,
Alwarpet,
Chennai – 600 018.
Rep. by its Authorized Signatory. Complainant
Vs
United India Insurance Co. ,Ltd.,
Represented by its Divisional Manager,
Divisional Office – 010600
PLA Rathna Towers, 5th Floor,
No.212, Anna Salai,
Chennai – 600 006. Opposite Party
Counsel for the Complainant : M/s. V. Balaji, Advocates.
Counsel for the Opposite Party: M/s. M.B. Gopalan Associates, Advocate.
This complaint coming before us for final hearing today, on 03.08.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following
ORDER
HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT (Open Court)
1. This complaint has been filed by the complainant under section 17 of the Consumer Protection Act, 1986 against the opposite party claiming for the following reliefs;-
a) to pay a sum of Rs.16,36,525.00 towards the cost of damaged consignment as per survey report,
b) to pay a sum of Rs.10,00,000/- towards damages and also
c) to pay a sum of Rs.50,000/- for cost of the complaint.
2. The gist of the complaint allegations are as follows;- It is the case of the complainant that they are running a Small Scale Industry engaged in manufacturing and dealing with Men’s Cosmetics under the brand name of “Z” and they used to purchase packing material (empty metal container) from China. The imports come to Nhava Sheva Port (Mumbai) and then it was being sent to the complainant’s factory, viz., M/s. Sadanam Personal Products Limited, F103/F104, UPSIDC Industrial Area, Selaqui, Dehradun – 248 197 by road and for that purpose the complainant took Marine Cargo Open Policy bearing the policy No. 010600/ 21/ 10/ 02/ 00000011 for a total sum of Rs.15,00,00,000/- for the period from 16.57 Hrs on 06.09.2010 to 05.09.2011 covering consignments in transit, inter alia, subject to Declaration being submitted to the opposite party within 48 Hours of commencement of risk for each consignment. The complainant paid a total premium amount of Rs.61,218/- to the opposite party. The goods insured are raw-materials like calcium carbonate, soap, stone powder, perfume, packing materials, like empty tins corrugated boxes and finished goods like Talcum powder, Deodorants, soaps, etc.,. The consignment was entrusted to one Maa Annapoorna Transport Agency Limited for transportation and the same had reached the destination on 12.05.2011. Out of 2,37,006 numbers of tins received in the two trucks, 84,192 of 50 gms. of tins and 1,09,314 of 100 grams of tins were totally damaged which cannot be used for filling. Since there was insurance coverage, the complainant informed the damaged conditions of the goods to the opposite party immediately and in turn, the opposite party appointed a surveyor who inspected the cargo on 17.05.2011 and subsequent dates. During the course of inspection all the documents sought by the surveyor were also furnished by the complainant without delay. In the meanwhile, the complainant submitted insurance claim form with the opposite party claiming Rs.22,00,000/- for a total loss of the consignments covered under the lorry receipt No.1000021879 and 1000021880. After the assessment of loss by surveyor nothing was heard from the Insurance Company. Hence, on 06.10.2011, the complainant requested the opposite parties to speed-up the process of claim and settle the amount as per the claim application. Thereafter, the opposite party sent a letter dated 27.10.2011 directing the complainant to submit declaration of the Marine Open Policy and submit a claim form to proceed further in the matter. Accordingly, the complainant submitted the claim form to the opposite party and the same was also acknowledged by the opposite party. On 15.11.2011, the complainant submitted all the Marine Declaration up to October 2011. In spite of submitting the claim form, the complainant’s claim was not settled and hence the complainant registered a complaint with IRDA on 03.11.2011 and in such a situation on 24.02.2012, the claim of the complainant was repudiated on the ground that there was no physical damage/loss to the consignment which was reported. Hence, the complainant requested the surveyor to furnish the survey report but the surveyor informed the complainant that he had already furnished report to the Divisional Office of the opposite party/Insurance Company and thereafter the complainant got survey report from the opposite party on 24.05.2012. On receipt of the surveyor’s report the complainant filed the present complaint alleging that the repudiation by the opposite party on the basis that there was no loss/damage to the consignment is not legally sustainable and therefore there is a deficiency in service on the part of the Insurance Company and made a claim as stated supra.
3. In the written version, the opposite party has accepted the policy coverage for the consignments in transport for the period from 06.09.2010 to 05.09.2011 and the survey conducted by a surveyor. According to the opposite parties, in the survey report it has been clearly reported as follows.; “The consignment was already opened and put in the Rejection Room in the form of stock all loose although the Insured had arranged some photographs, but as it was put in a Store Room, mixed up with some old rejection, so exact counting was not possible”. Therefore, according to the opposite parties, the insurance surveyor was unable to identify exact quantity of damage if any. When the portion of the consignment was damaged in transit and when it got mixed with old rejection, the surveyor could not have reasonably arrived at the quantity that was actually damaged. But, the surveyor was found to have proceeded and arrived at the damages by deducting 10% approximate for counting. Therefore, surveyors had not even counted as well as segregated the damaged quantity pertaining to the consignment which had been mixed-up with old rejection. The assessment by the surveyor was purely on surmises and presumptions. There was no proof for actual damage caused during transit. There was no proof of damage attributable in any peril during transit. Furthermore, no damage certificate from Carrier was obtained to substantiate the loss. Hence, the claim of the complainant is not maintainable. The assessment made by the surveyor is neither conclusive nor can be termed as a satisfactory proof for the damage in transit. As per the policy condition, the Declaration have to be furnished within specified time to enable the adjustment of premium but the complainant having failed to comply with the same, the consignment cannot be considered for any claim. Therefore, the opposite party rejected the survey report as it was unsatisfactory. Therefore there is no breach of policy terms. The complainant is not entitled to claim and thus the opposite party sought for dismissal of the complaint.
4. The complainant and the opposite party have filed their respective proof affidavit. Exhibits A1 to A15 were marked on the side of the complainant and Ex B1 was marked on the side of the opposite party.
5. Considering the above averments made by the complainant and the opposite party the following points are raised for determination of the complaint.
(1) Whether the opposite party has committed any deficiency in service by
rejecting the claim of the complainant?
(2) Whether the complainant is entitled to get compensation as prayed for
in the complaint?
(3) To what other relief, the complainant is entitled?
6. Point Nos.1 to 3;- It is the submission of the learned counsel for the complainant that the complainant had imported empty metal containers for the purpose of packing Talcum Powder from China. Consignments of empty containers were received at Nhava Sheva Port (Mumbai) and the same was sent to Dehradun from Mumbai on road by lorry. When the goods reached the complainant’s ware-house in Dehradun it was found that the goods were in damaged condition. Hence, immediately the complainant intimated the same to the opposite party/insurance company on 12.05.2011 and a surveyor was appointed by the opposite party who came and inspected the goods on 17.05.2011 and assessed the damage subsequently nothing was heard from the insurance company. Hence, the complainant lodged a complaint with IRDA on 03.11.2011. When the insurance company came to know about the registration of said complaint against them with IRDA, the claim was repudiated on 24.02.2012 on the ground that there was no external damage caused to the package. But, the survey report would clearly show that out of 2,37,006 number of tins, 84,192 of 50gms tins and 1,09,314 of 100 gms tins were found dented/crushed/scratched. The surveyor has deducted 10% approximate in counting and also specifically observed in his report how the survey was made. But without considering the survey report, the claim was rejected as if the surveyor had stated in his report that there was no physical damage/loss. But, in the survey report, absolutely no such observation was made by the surveyor. Therefore, without applying mind the claim was repudiated. It is further submitted by the counsel for the complainant that the survey report is a legal evidence under Section 64 UM of the Insurance Act. Further, under Regulation 9(5) of the IRDA Protection of policy holders Interests Regulations, the repudiation should be done within 30 days from the date of receipt of survey report. The thirty days time period expired on 24.09.2011 whereas the claim was repudiated only on 24.02.2012 and as such there was a delay of 148 days in repudiating the claim which is not permissible under law. Therefore, there is deficiency in service on the part of the opposite party and hence the complainant prays for direction to the opposite party to pay a sum of Rs.16,36,525.00 being the cost of damaged consignment as per the survey report and another sum of Rs.10,00,000/- as damages and Rs.50,000/- as costs.
7. Countering the above submission, the learned counsel for the opposite party submitted that it is not correct to state that the surveyor’s report is in favour of the complainant. The surveyor in his report had observed that “the consignment was already opened and put in the Rejection Room in the form of stock all loose although the Insured had arranged some photographs, but as it was put in a Store Room mixed up with some old rejection, so exact counting was not possible”. The said observation would clearly show that the damaged articles were put in the Store Room where already a huge number of old rejection articles were stored and as a result of which damaged articles got mixed-up with the old articles and hence the surveyor could not have possibly and specifically arrived at quantity or value of the consignment in question which is as crucial as in confirming the damage in transit. The surveyor had simply gone by the quantity claimed and deducted approximately 10% for counting. The method adopted by the surveyor to arrive at the value of the consignment which got damaged during the transit is not correct. Under such circumstances, the opposite party is entitled to sit in judgement over the basis of assessment made by the surveyor and as it was being unsatisfactory, the opposite party rejected the surveyor’s report. Further, there is no damage certificate by the Carrier or notice to the Carrier. The Carrier is also not made as a party to the present complaint. Therefore, the claim is totally untenable and speculative and therefore absolutely there is no deficiency in service on the part of the opposite party and hence the opposite party sought for dismissal of the complaint.
8. We have heard the submissions made by both sides and perused the materials on record. As we have dealt with the factual submissions made by the learned counsel for both sides at required length, we refrain from dealing with the same any further in this order. However, certain facts which are absolutely germane and necessary are examined and taken note of, for the purpose of disposal of this complaint.
9. It is not in dispute that empty containers (for packing Talcum Powder) imported by the complainant from China was transported to Dehradun from Nhava Sheva Port (Mumbai) by lorry. But, it is the case of the complainant when the empty containers (for packing Talcum Powder) reached destination, it was found that out of 2,37,006 numbers of tins received in two trucks, 84,192 of 50 gms tins and 1,09,314 of 100 gms tins were totally damaged and those tins cannot be used for filling. Since the complainant had taken Marine Cargo Open Policy, they lodged claim application with the opposite party/insurances company, in turn, the opposite party appointed one Mr. Atul K. Shinghal as a surveyor who visited the destination on 17.05.2011 and inspected the Cargo where the damaged goods were kept and subsequently he submitted his report. According to the complainant, in the survey report, it has been specifically stated that the loss took place during transit “due to jerks & jolts on the way. The Insured enjoys sound moral hazard and any possibility of any mis-representation is ruled out”. He has also assessed net loss of Rs.16,36,525/-.which is liable to be paid to the complainant by the opposite party. According to the complainant, they are entitled for the said amount. Whereas, according to the opposite party in the very same report, the surveyor has observed that “the consignment was already opened and put in the Rejection Room in a form of Stock all loose, although the Insured had arranged some photographs, but as it was put in a Store Room mixed-up with some old rejection, so exact counting was not possible.”. Thus, relying upon the said observation, the counsel appearing for the opposite party submitted that when exact counting was not possible, the insurance company rejected the claim made by the complainant since the opposite party is not bound to pay the claim made by surveyor’s assumption and presumptions and therefore, absolutely there is no deficiency in service on the part of the opposite party and hence sought for dismissal of the complaint. By way of reply, the learned counsel for the complainant submitted that since exact counting is not possible the surveyor himself has given deduction of 10% for approximation in counting and as such circumstances, the insurance company is bound to pay the amount as per the surveyor’s report.
10. But, we are of the considered opinion that though the surveyor observed in his survey report as exact counting is not possible, he confirms the fact that the articles in 84,192 Nos. of 50 gms empty Talcum powder Tins and 1,09,314 Nos. of 100 gms empty powder tins were found Scratched/Pressed/Dented etc., and got damaged due to jerks and jolts. No doubt, the surveyor has made an observation to the effect that the damaged articles got mixed up with other old rejected articles kept in the Store Room. But, still surveyor has not denied the damage suffered by the complainant and further the surveyor has himself deducted 10% for approximate counting and arrived at a sum of Rs.16,36,525/-. Hence, the opposite party/insurance company, by taking advantage of the observation made by the surveyor cannot repudiate the claim made by the complainant. Therefore, we are of the opinion that the complainant is entitled for the claim amount and further having taken into account the factual circumstances of the case, we are of the considered view that deduction of 10% for approximate counting may be increased to 20% from the total amount to be awarded to the complainant. In the surveyor’s report it has been mentioned that a sum of Rs.18,18,361.55 to be paid to the complainant as compensation, 20% on the above amount works out to Rs.3,63,672.31. If this sum of Rs.3,63,672.31 is deducted from the sum of Rs.18,18,361.55, the amount comes to Rs.14,54,689.24 which sum is payable by the opposite party to the complainant towards the cost of the damaged consignment and therefore the complainant is entitled for Rs.14,54,689.24 as compensation from the opposite party with interest at the rate of 7.5% per annum from the date of filing till its realisation with cost of Rs.5000/-.
11. In the result, the complaint is allowed in part and the opposite party is directed to pay the complainant a sum of Rs.14,54,689.24 P towards the cost of damaged consignment as per the survey report with interest at the rate of 7.5% per annum from the date of complaint till its realisation with cost of Rs.5000/- within two months from the date of receipt of copy of this order.
S.M. LATHA MAHESWARI, R. SUBBIAH,
MEMBER. PRESIDENT.
LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT
Ex A1 06.09.2010 Marine Cargo Open Policy
Ex A2 03.05.2011 Lorry Receipts
Ex A3 Claim Forum
Ex A4 05.05.2011 Pre Despatch Survey Report
Ex A5 06.10.2011 Letter from the complainant
Ex A6 27.10.2011 Letter from the complainant
Ex A7 09.11.2011 Reply from IRDA
Ex A8 10.11.2011 Letter of the complainant
Ex A9 15.11.2011 Letter of the complainant
Ex A10 12.04.2012 Letter of the complainant
Ex A11 Publication in Amar Ujala
Ex A12 Publication in Times of India
Ex A13 24.02.2012 Repudiation letter
Ex A14 24.05.2012 Letter from Opposite Party along with Survey Report
Ex A15 Series of Photographs
LIST OF DOCUMENT MARKED ON THE SIDE OF THE OPPOSITE PARTY
Ex B1 25.08.2011 Survey Report
Sd/- Sd/-
S.M. LATHA MAHESWARI, R. SUBBIAH,
MEMBER. PRESIDENT.
Index: Yes/No
