Order dictated by:
Mr.Anoop Sharma,Presiding Member
- M/s. Dewan Woollen Industries through Prop. Banarsi Dass Duggal complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that complainant has obtained an insurance policy under “Marine Cargo Open Policy” from opposite party No.1 vide policy No. 200201/21/14/02/00000056 (21/55) dated 7.8.2014 and the said policy for the period from 8.8.2014 to 7.8.2015. The complainant sent one consignment of shawls through opposite parties NO.2 & 3 vide GR No. 46 dated 8.11.2014 for its destination at Sitamari in favour of M/s. Sundrika Textiles vide Bill No. 5502 dated 5.11.2014 for a total sum of Rs. 39,033/-. At the time of sending consignment through opposite parties No.2 & 3, opposite parties No.2 & 3 assured the complainant that the aforesaid consignment shall reach at its destination as early as possible. The complainant after booking the consignment with opposite parties No.2 & 3 posted the GR to the purchaser of the goods for the release of the same. But the purchaser number of times visited the office of opposite parties No.2 & 3, but opposite parties failed to deliver the consignment to the purchaser . On this purchaser at Sitamari returned back the original GR to the complainant for the release of the consignment from opposite parties No.2 & 3. After receipt of GR, complainant approached the office of opposite parties No.2 & 3, but opposite parties NO.2 & 3 did not return back the consignment to the complainant. The complainant then registered his claim with opposite party No.1 and also served legal notice dated 28.7.2015 upon opposite parties No.2 & 3. But inspite of service of legal notice, opposite parties No.2 & 3 have miserably failed to deliver the consignment either to the complainant or to the purchaser . Opposite party No.1 has also not cleared the genuine claim of the complainant inspite of repeated visits and demands made by the complainant from time to time. It is pertinent to mention here that the aforesaid goods were transported during the validity of the Insurance policy. As such the complainant filed its claim before opposite party No.1 alongwith all relevant and requisite documents. But the opposite party No.1 is lingering on the matter on one pretext or the other . Vide instant complaint, complainant has sought for the following reliefs :-
- Opposite parties be directed to make payment of Rs. 39033/- alongwith interest @ 18% p.a. from the date of its dispatch till its actual realization ;
- Opposite parties be also directed to pay compensation to the tune of Rs. 50000/- alongwith adequate litigation expenses.
Hence, this complaint.
2. Upon notice, opposite party No.1 appeared and filed written version in which it was submitted that as per version of the complainant he has booked one consignment with opposite parties NO.2 & 3 vide GR No. 46 dated 8.11.2014 for its destination at Sita Marri in favour of M/s. Sunderka Textile vide bill No. 5502 dated 5.11.2014 for a sum of Rs. 39,033/-, but opposite parties No.2 & 3 have failed to deliver the said consignment to the purchaser and the said consignment was still in possession of opposite parties No.2 & 3 and the same has not been returned back to the complainant . It was submitted that complainant has not informed the opposite party No.1 at the very instance when he has received the information regarding the non delivery of the said consignment . The complainant has booked his consignment on 5.11.2014 and informed the opposite party No.1 orally regarding the non delivery of the consignment on 27.3.2015. No document which are required for the registration of a claim has been submitted by the complainant to opposite party No.1. No FIR or any rapat was registered by opposite parties No.2 & 3 with any police station regarding the loss of the abovesaid goods which is against the terms and conditions of the policy. It was submitted that complainant has made a concocted story in connivance with opposite parties No.2 & 3 just to get the claim from opposite party No.1. It was denied that genuine claim of the complainant has not been cleared. Rather after receipt of information from the complainant vide its letter dated 27.3.2015, the opposite party No.1 has immediately informed the complainant vide letter dated 1.4.2015 that the claim of the complainant was not entertained because as per terms and conditions of the policy that in case of any kind of loss, it is mandatory to approach nearest office of the companies with complete detailed to provide opportunity to Insurance company . But in this case complainant has informed opposite party No.1 after a period of 4 months , as such company is not in a position to entertain any loss of delayed intimation . While denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite parties No.2 & 3 did not opt to put in appearance despite service, as such they were ordered to be proceeded against ex-parte.
4. In his bid to prove the case Sh.Rajesh Bhandari,Adv.counsel for the complainant tendered into evidence affidavit of Sh.Banarsi Dass Duggal, Prop. Diwan Woollen Industries Ex.CW1/A, copy of Insurance policy Ex.C-1, copy of bill dated 5.11.2014 Ex.C-2, copy of declaration form Ex.C-3, copy of GR Ex.C-4, copy of letter dated 30.3.2015 Ex.C-5, copy of letter dated 30.3.2015 Ex.C-6, copies postal receipts Ex.C-7 to Ex.C-11, copy of legal notice dated 28.7.2015 Ex.C-12 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence Sh.Rajinder Nayyar,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.Surinder Singh, Sr.Divisional Manager Ex.OP1/1, copies of e-mails Ex.OP1/2 and Ex.OP1/3 , copy of Insurance policy Ex.OP1/4 and closed the evidence on behalf of opposite party No.1.
6. We have heard the ld.counsel for the parties and have carefully gone through the record on the file .
7. On the basis of the evidence , ld.counsel for opposite party No.1 has vehemently contended that there is no dispute that complainant was holder of Insurance policy bearing policy No. 200201/21/14/02/00000056 (21/55) dated 7.8.2014 issued by the opposite party No.1 .Copy of Insurance cover accounts for Ex.C-1. It is also not disputed that the complainant sent one consignment of shawls through opposite parties No.2 & 3 vide GR No. 46 dated 8.11.2014 to M/s. Sundrika Textiles , copy whereof is Ex. C-4 on record. But opposite parties No.2 & 3 have failed to deliver the said consignment to the purchaser and the said consignment was still in possession of opposite parties No.2 & 3 and the same has not been returned back to the complainant . It was submitted that complainant has not informed the opposite party No.1 at the very instance when he has received the information regarding the non delivery of the said consignment . No FIR or any rapat was registered by opposite parties No.2 & 3 with any police station regarding the loss of the abovesaid goods which is against the terms and conditions of the policy. However, after receipt of information from the complainant vide its letter dated 27.3.2015, the opposite party No.1 has immediately informed the complainant vide letter dated 1.4.2015 that the claim of the complainant was not entertained because as per terms and conditions of the policy that in case of any kind of loss, it is mandatory to approach nearest office of the companies with complete detailed to provide opportunity to Insurance company . But in this case complainant has informed opposite party No.1 after a period of 4 months ,which is in contravention of term and condition No.8 of the Insurance policy Ex.OP1/4. Term and conditions No. 8 is reproduced as under for ready reference:-
“In the event of any loss which may give rise to a claim under the Open policy, immediate notice thereof in writing should be given to the office of the company at Railway Link Road, Amritsar 143001, Punjab and also to the company’s Divisional office nearest to the destination or the place of loss for holding a survey, if necessary. The liability of the company is only to succeed and not in any way supercede any claim which the insured may be entitled to make upon any carriers or other bailee who are primarily liable for the loss”.
It was incumbent upon the complainant to intimate opposite party No.1 immediately regarding the loss of the goods in transit. But, however, without giving any explanation for the delay in intimating the opposite party No.1 , the claim was lodged by the complainant .
8. However, opposite parties No. 2 & 3 have been proceeded against ex-parte despite due service and none came from opposite parties No. 2 & 3 to contest the instant complaint which means & imply that opposite parties No. 2 & 3 have impliedly admitted the claim of the complainant. In our considered opinion, opposite parties No. 2 & 3 are under legal obligation to indemnify the complainant for the price of the goods i.e. Rs. 39,033/- alongwith compensation & costs.. The liability of opposite party No.1 to indemnify the complainant could come into picture only when the complainant had complied with the terms and conditions of the Insurance policy in dispute. It is proved on record through evidence that the complainant is guilty of flouting condition No. 8 of the Insurance cover. Had the complainant intimated the loss of the insured goods in time, the opposite party No.1 could make an effort to trace the goods. As such no liability has been fixed upon the opposite party No.1 to indemnify the loss occurred to the complainant.
9. Consequently instant complaint succeeds against opposite parties No. 2 & 3 and opposite parties No. 2 &3 are directed to pay the amount of Rs. 39,033/- alongwith interest @ 9% p.a. from the date of filing of the complaint until full and final recovery. Cost of litigation are assessed at Rs. 2000/-. However, opposite parties No. 2 & 3 are given 30 days time to comply with the order ; failing which, complainant shall be entitled to get the order executed through the indulgence of this Forum. Complaint against opposite party No.1 stands dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated: 13.6.2017.
