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2004 (2) CPR 111 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
K.S. Gupta, Presiding Member, B.K. Taimni, Member
M/s. Paam Eatables Ltd.—Complainant
versus
United India Insurance Co. Ltd.—Opp. Party
Original Petition No. 53 of 1997
Decided on 27-5-2004
Counsel for the parties:
For the Complainant :Mr. Huzefa Ahmadi & Ms. Meenakshi Arora, Advocate.
For the Opp. Party :Mr. Vishnu Mehra, Advocate.
IMPORTANT POINT
Where complainant insured is found to have violated terms & conditions of policy, insurance would not be guilty of any deficiency in service in not agreeing with compensation claimed for the loss.
Headnote:Consumer Protection Act, 1986 — Section 21 — Insurance Claim — Compensation claim for damage caused to consignment which reached port for onward export to Bangladesh — As against claim for Rs. 2,86,00,538/- insurance Co. paid a sum of Rs.
3,51,800/- — Claim amount was found not payable as consignment dispatched did not adhere to term of policy & its schedule — Policy mentioned that if was subject to clauses “Inland Transit Clause’ — As per report of surveyor, damage was caused by in sufficiency or unsuitability or packing or preparation of subject matter insured fell in Exclusion clause — No substance in contention of complainant that there was delay in appointment of surveyor — Complainant failed to protect rights of insurance Co. against railways in breach of term of policy — Complainant having violated terms & conditions of policy, O.P. was correct in not agreeing with amount claimed except to cover the loss/shortage under the policy.(Paras 10, 12 & 19)
Result: Complaint dismissed.
B.K. Taimni member— The Complainant M/s. Paam Eatables Ltd. has filed this complaint against Opposite Party, Insurance Company, alleging deficiency in service.
2. Briefly the facts of the case are that the complainant obtained a policy alongwith coverage of clauses “Important Clause”, Inland Transit Clause ‘A’,, SRCC Clause and FOB Clause”, for a sum of Rs. 6.7 crore.
3. After due declaration, the complainant despatched goods on different dates between 27.1.95 to 8.2.95 to Haldia Port for onward export to Bangladesh. On 3.2.95, coming to know of damage caused to the consignment the matter was brought to the notice of the Insurance Company, who first deputed a spot surveyor and then surveyor to assess the loss. The complainant preferred a claim before the Opposite Party, who
after considering the report of the surveyor as also the terms of the policy paid to the complainant a sum of Rs. 3,51,800/- which was accepted under protest. It is the case of the complaint that they had suffered in a loss of Rs. 2,86,00,538/- break-up of which is as follows:
“a) Actual loss suffered by the Company
during transit Rs. 115,50,000.00
b) CWC Storage & Rent Paid Rs. 25,36,538.00
c) Loss of reputation of Company Rs. 50,00,000.00
d) Mental pain, agony and the amount spent
in correspondence and in to and fro Journey
from Calcutta to Delhi by representative
of the Company from time to time. Rs. 10,00,000.00
Rs. 200,86,538.00"
3. This amount is being claimed alongwith interest @ 24% p.a. from 1.10.1996 Even though the complainant had arrayed the surveyor and FCI as Opposite Party No. 3 & 4 in the complaint filed but their names were deleted vide order of this Commission dated 14.2.02. Upon issue of notice to the Opposite Party, Insurance Company, written version was filed stating clearly that the claim amount is not payable at all as the consignment despatched from Delhi to Calcutta did not adhere to the term of the Policy and its schedule. It was also mentioned that the claim has been settled with the complainant based on loss of 630 bags and shortage of 528 bags after deducting 25% for loss of recovery rights as also after deducting 0.3% on whole consignment of the insured value under "Excess Clause" after which Rs. 3,58,100/- was found to be payable which has been paid. The gunny bags used were not as per the terms of the Policy hence no claim is payable under the claim made by the complainant. A rejoinder was filed by the complainant rebutting all the points raised by the Opposite Party in its written version. The parties also filed one affidavit each in support of their contention.
4. We heard the parties at length and found that 4 points emerge for our consideration:—
5. First issue relates to the question of Bags. While the contention of the complainant in its complaint is that (para 11) “it is submitted here that at the time of Insurance Policy the stock of rice was packed in brand new bags.........” the same stand has also been taken in the affidavit filed by the complainant’s Managing Director whereas the report of the spot surveyor is that “It was found
that almost all the gunny bags contai-ning white rice were of second hand quality and all of them bearing evidence of yellowing/fungi and the jute material having little strength to withstand the load/pressure of transport hazardous. The bags were having marks of different companies other than FCI stamp/marking, the bags showing the bursting along the belly. It was noted that maximum bags which were placed at the bottom of the wagons were bursted out due to pressure/load.”
6. The surveyor/loss assessor also found the bags were of poor quality and had been used more than once. This they observed after visiting the godown at Chaitanyapur as also CWC warehouse at Dugachak on 14.3.95 where the stock had been moved from the Railway Station. It is argued by the Ld. Counsel for the complainant that as per the Insurance Policy issued to the Complainant it is clearly mentioned there that policy co
