The duty of the insurance company to decide the fate of a claim purely on merit.

ORDER

Debasis Bhattacharya Presiding Member - This appeal emanates out of the Order dated 25-11-2013, passed by the Ld. District Forum, Kolkata, Unit-II in C.C. No. 175/2012, by which the complaint case has been dismissed on contest. Being aggrieved by and dissatisfied with the said order, the Complainant thereof has preferred this appeal.

2. complainant's case, briefly narrated, is that at the time of unloading an inward consignment from Jaipur on 18-09-2006, it was noticed that out of the 945 tins containing mustard oil, 278 nos. tins were received in leakage/damage condition. So, immediately, due intimation was conveyed to the Insurance Company and then they deputed a Surveyor to assess the loss. The said Surveyor conducted survey on the very same day, i.e., on 18-09-2006 at about 9 p.m. The said Surveyor assessed the loss at Rs. 1,23,593/- without taking into account the freight charges of Rs. 9,549/- in respect of 278 nos. tins. The Complainant lodged a claim with the OP Insurance Company on 21-03-2007. However, the latter, vide its letter dated 04-05-2007, informed the Complainant about its inability to entertain the claim. Although the Complainant petitioned before the Insurance Company, it did not yield any positive result. So, the instant case.

3. Case of the OP Nos. 1 to 3, in brief, is that after receiving intimation from the Complainant, they deputed a Surveyor for inspection of the damaged goods. When the said Surveyor reached the godown of the Complainant, it was noticed that all the tins were unloaded and stacked inside the godown in spite of instruction of the said Surveyor to unload the oil in his presence only. As per investigator report, 278 tins were produced in damaged condition. As per the opinion of the Surveyor, such a huge quantity of stock cannot be damaged due to jerking and jolt during transit. Further, the Complainant did not give any opportunity to inspect the damaged tins before unloading the oil, which is a violation of condition of the Marine Insurance Policy. As such, the OP Insurance Company quite justifiably repudiated the claim.

Vide its impugned order, the Ld. District Forum dismissed the instant complaint case on contest against the OPs, without any cost.

4. We are to consider in this appeal whether the impugned order suffers from any kind of infirmity, or not.

Decision with reasons

Ld. Advocate for the Appellant has submitted that because of inordinate delay without any fruitful result, it decided to withdraw the case from the Hon'ble High Court, Calcutta and on their prayer, the Hon'ble Court, dismissed the case. The Ld. District Forum, by its order no. 2 dated 09-07-2012 condoned the delay with the finding that cause shown was sufficient and there was a prima facie case of consumer dispute and the Consumer Protection Act is a benevolent legislation and therefore, admitted the complaint after hearing the Appellant. However, the Ld. District Forum vide its impugned order declared the said order of an earlier bench illegal without appreciating the fact that condonation of delay is a juridical discretion and hearing of the OP is optional. Section 24A of the Consumer Protection Act stipulates that the Fora would record its reasons for condoning the delay. It is the well settled position of law that Fora should not consider a survey report unless the same is filed without an affidavit. However, the Ld. District Forum dismissed the case relying upon the surveyor report though it was not submitted under affidavit and thereby the Appellant did not get any opportunity to cross-examine the said Surveyor. It is not a fact that they did not render due assistance to the Surveyor. The Surveyor prepared an adverse report without appreciating the fact that Kalakar Street is a 'no parking zone' and the local police compelled them to unload the goods immediately. If the Surveyor so desired, he could have made contact with the police and impressed upon them not to harass the Appellant till due inspection w