State Consumer Disputes Redressal Commission
Manish Gupta vs National Insurance Company Limited on 31 May, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.12/09
Instituted on : 11.05.2012
Manish Gupta S/o Shri Ramgopal Gupta,
Aged 33 years, Profession - Business,
Address : Karmachari Awas Colony, Mahalgaon,
Gwalior (M.P.) ... Complainant.
Vs.
National Insurance Company Limited,
Registered Office 3, Middleton Street, Kolkata,
Through : Branch / Divisional Manager,
National Insurance Company Limited, Second Floor,
Mobin Mahal, G.E. Road,
Raipur (C.G.) ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri S.K. Gupta, for complainant.
Shri Vinod Deshmukh, for O.P.
ORDER
Dated : 31/05/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. seeking direction to the O.P. to pay insured amount Rs.92,25,000/-, interest Rs.4,60,750/-, Rs.1,18,000/- paid as rent, compensation for mental agony Rs.1,00,000/-, cost of litigation Rs.5,000/- and advocate fees Rs.20,000/- total Rs.99,18,750/-.
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2. Brief facts of the complaint are that : the complainant is proprietor of firm K. G. Digital Plate situated at Lakhe Nagar, Raipur and he installed a pre-press unit at Lakhe Nagar, Raipur in the month of November, 2009. In the Pre-Press Unit, articles i.e. Plate Exposing Machine, Processor, 4 P.C., Scanner, 2 U.P.S., 30 batteries etc. were kept. The complainant purchased the above goods from Germany and Denmark. The machine which is used for directly exposing to conventional plate from the computer is only manufactured by Punch Graphics Company of the Germany. The complainant and Smt. Anita Gupta are partners of the firm Jai Badri Vishal Graphics. The O.P. is a Government of India Undertaking Company and is General Insurance Company and is providing insurance services. The complainant obtained insurance policy from the O.P. for the articles U.V. Setter Processor, Two Computers, Scanner, Office Furniture, Electrical Fitting, Domestic Articles. The firm Jai Badri Vishal Graphics provided U.V. Setter Processor, 2 U.P.S., 2 P.C., 30 Batteries, Sale Cum Debit Note to the employees of Monotech Systems Limited Company at Raipur on 14.5.2010. The Monotech Systems Limited had not paid the price of above items to the firm Jaibadri Vishal Graphics till date. Monotech Systems Limited was required to take U.V. Setter Processor to Nagpur but the employees of Monotech Systems Limited could not book for transportation of the said item. The employees of Monotech Systems Limited entrusted the responsibility to transport it from Raipur to // 3 // Nagpur to the complainant and for this purpose on 17.05.2010, the U.V. Setter - Processor was handed over to the complainant. The complainant booked the U.V. Setter - Processor, two computer, scanner office furniture, electrical fitting and domestic articles for transportation to Nagpur through Raipur Delhi Roadways on 17.05.2010 vide bilty no.2291 in which the complainant is consignor and consignee both. The booked articles were loaded in truck bearing registration No.M.P.07-G-2682 and said articles were insured with the O.P. The complainant deposited a sum of Rs.17,572/- towards insurance premium with the O.P. and the O.P. issued Special Voyage Policy No.285100/21/10/45000000006. The insured value of the articles was Rs.92,35,000/-. The Lakhe Nagar, Raipur (C.G.) was no entry area for the heavy vehicles, therefore, truck bearing No.M.P.07- G-2682 was not loaded in morning and the said truck was loaded in intervening night of 17-18/5/2010 till 1.30 A.M. (midnight), but the scooter was not loaded in the truck due to shortage of space in the truck. On 18.05.2010 at about 8,00 hrs, the complainant received information from the truck owner that the truck met with an accident and fell down and it caught fire. The accident was occurred between Durg and Rajnandgaon. The matter was reported to Police Out Post Anjora, Police Station Phulgaon, District Durg (C.G.). where First Information Report 265 was recorded. The complainant also made written complaint to the Police Out Post Anjora, Police Station // 4 // Phulgaon, District Durg (C.G.) on 20.05.2010 (Annexure C-5) and also submitted claim form before the O.P. (Annexure C-6). O.P. appointed Shri Hitesh Chitalia, as Preliminary Surveyor and he conducted Preliminary Survey on 21.05.2010 and the complainant co-operated with Shri Hitesh Chitalia in conducting Spot Survey. The complainant took the scrap of burnt machines and articles to his office situated at Lakhe Nagar, Raipur on 22.05.2010. The complainant sent intimation to the O.P. on 24.05.2010 vide Annexure C-7. When the complainant was lifting the scrap of the burnt machines and articles, at that time the owner of the truck No. M.P.07-G-2682 also came there and he told the complainant that the matter was reported to the Police vide Annexure C-8. The O.P. did not give any response to the claim submitted by the complainant and was avoiding to settle the same. No information was given by the O.P. to the complainant regarding his claim. The complainant wrote letter on 30.05.2011 to the O.P. vide Annexure C-12 to consider his claim sympathetically and pay the claim amount, but the O.P. repudiated his claim vide letter No.285100 Marine CargoCl/2011 dated 25.03.2011. M/s J. Basheer & Associates Surveyors Pvt. Ltd. was appointed by the O.P. for assessment of loss, who submitted report to the O.P. and the O.P. repudiated the claim of the complainant on the ground that the complainant has no insurable interest in the insured articles and his claim was closed declaring 'No Claim". The report of the Surveyor was not provided to the // 5 // complainant and the O.P. has arbitrarily repudiated the claim of the complainant and thus committed deficiency in service as well as unfair trade practice. The complainant sent legal notice to the O.P. and filed this complaint seeking direction to the O.P. to pay insured amount Rs.92,25,000/-, interest Rs.4,60,750/-, Rs.1,18,000/- paid as rent, compensation for mental agony Rs.1,00,000/-, cost of litigation Rs.5,000/- and advocate fees Rs.20,000/- totaling Rs.99,18,750/-.
3. The O.P. filed written statement and denied the allegations made by the complainant in the complaint. The O.P. pleaded that the complainant only handed over 3 boxes for luggage to Raipur Delhi Raodways on 17.05.2010 and the complainant did not disclose the particulars regarding articles, which were kept inside the boxes. The value and nature of the articles were not mentioned in the receipt. U.V. Setter Processor Machine, Computer, Scanner and other articles were not booked for transportation by the complainant. The complainant did not submit documents regarding the ownership of the property to the O.P. and the complainant obtained insurance policy fraudulently. The complainant has also not filed receipt regarding the insured articles, therefore, the complainant is not entitled for getting any compensation from the O.P. The incident of fire was highly doubtful. The complainant had not given reply of the letter sent by the Surveyor M/s J. Basheer & Associates Surveyors Pvt. Ltd. and the complainant has filed his complaint on false grounds. Shri Hitesh Chitalia and M/s // 6 // J. Basheer & Associates Surveyors Pvt. Ltd., Surveyors inspected the spot and gave their report. On the basis of Report of the Surveyors, the claim of the complainant was declared as No Claim Case. The complaint of the complainant is frivolous, false and baseless and is liable to be dismissed.
4. The complainant filed copy of Plaint of Civil Suit No.715 of 2010 which is pending before the High Court of Judicature of Madras and copy of order sheet dated 16.09.2011 recorded by 5th Additional District Judge, Gwalior (M.P.) Case No.15A/2011 E.D. in the case of Jai Badri Vishal Graphics vs. Monotech Systems Limited and others. The complainant specifically pleaded that he is partner of Jai Badri Vishal Graphics . M/s Monotech Systems Limited had also filed Civil Suit against the complainant and M/s Jai Badri Vishal Graphics. Jai Badri Vishal Graphics has also filed Civil suit before 5th Additional District Judge, Gwalior (M.P.) against Monotech Systems Limited and others. The 5th Additional District Judge, Gwalior (M.P.) stayed the proceedings pending before him on the ground that the matter was already pending before the High Court of Judicature of Madras and the proceedings of the Civil Suit which was pending before it was stayed as per provisions of Section 10 of C.P.C.
5. Shri S.K. Gupta, learned counsel appearing for the complainant argued that the complainant obtained insurance policy from the O.P. // 7 // for the goods mentioned in the complaint, which were booked for transportation through Raipur Delhi Roadways and goods were load in truck bearing registration No.M.P.07-G-2682 on intervening night of 17-18/05/2010. He further argued that on 18.05.2010 the said truck met with an accident and fell down and it caught fire and articles kept in the truck were burnt. The booked articles were insured with the O.P. Learned counsel for the complainant drew our attention towards affidavit of the complainant Manish Gupta, which was filed with the complaint as well as document Annexure C-1, C-2, C-5 & C-6 etc. On the basis of above documents, he argued that the claim of the complainant is genuine and the O.P. has wrongly repudiated the claim of the complainant. He further argued that the Report of the M/s J. Basheer & Associates Surveyors Pvt. Ltd. was not provided to the complainant and the Surveyor had not inspected the spot in the presence of the complainant, therefore, the report of the Surveyors is not reliable and not acceptable. The insured articles was value to the tune of Rs.92,35,000/- and the complainant submitted his claim form before the O.P. and all relevant documents were provided to the O.P., but the O.P. did not consider the claim of the complainant. The act of O.P. comes in the category and unfair trade practice, there the complaint of the complainant be allowed and the relief sought by the complainant as mentioned in the complaint be granted to him. He placed reliance on New India Assurance Co. Ltd. vs. Priya Blue // 8 // Industries Pvt. Ltd. with Priya Blue Industries Pvt. Ltd. v. The New India Assurance Co. Ltd. 2011 - AIR SCW 1831 (Civil Appeal Nos.3714 of 2005 with 2116 of 2006 (decided on 09.03.2011); Maharishi Heaven Earth v. National Insurance Co. Ltd., 2009 (4) CPR 312 (NC); The United India Insurance Co. Ltd., and Anr. vs. M/s Sarin Industrial Corporation, 2011 (3) CPR 315 (NC); United India Insurance Co. Ltd. vs. Savikar Plyboards Limited, (2008) 1 CPJ 154 (NC); United India Insurance Co. Ltd. vs. Hasan Sultan Nadaf, (1992) 2 CPR 716 = 1992 (3) CPJ 64 (NC); Sitha Vedanayagam vs. New India Assurance Co. Ltd. & Ors., (1995) 1 CPJ 41 (NC); Ozma Shipping Company vs. Oriental Insurance Company Limited & Anr., (2001) 3 CPR 14 (NC) = (2001) 2 CPJ 44 (NC); Oriental Insurance Company Ltd., vs. Ozma Shipping Company & Another, 2009 STPL (LE) 42563 SC [(2009) 9 SCC 159 = JT 2009 (13) SC 73 = 2009 (11) SCALE 770 = 2010 AIR (SCW) 514 = AIR 2010 SC (Supp) 343]; Diwaliben Varsharambhai Sikotaria vs. New India Assurance Company Limited, (2005) 3 CPJ 17 (NC); Babamian Fakir Wadkar vs. United India Insurance Company Limited, 2008 (2) CPR 110 (NC) = 2008 (2) CPJ 142 (NC).
6. Shri Vinod Deshmukh, learned counsel, appearing for the O.P. (Insurance Company) opposed the above arguments of learned counsel for the complainant and submitted that the complainant had not provided the relevant documents to the Surveyor. Even he could not // 9 // give reply of the letter sent by M/s J. Basheer & Associates Surveyors Pvt. Ltd., Surveyor. The complainant only give receipt in which entry regarding three boxes were mentioned and the description regarding the articles which were kept inside the boxes were not mentioned. The complainant has not filed any material document which indicates that the insured articles were booked by the complainant and the complainant was not owner of the said articles, therefore, he has no insurable right on the said articles and according to the Surveyor, the incident was doubtful. The reports of the Surveyors are reliable and can be used for proper adjudication of the case. The complainant has not been able to prove his case, therefore, the complaint of the complainant, is liable to be dismissed.
7. The complainant filed documents. Document Annexure C-1 is bilty, document Annexure C-2 is Proposal / Declaration Form for Marine Cargo / Inland Transit Insurance, document Annexure C-3 is Insurance Policy, document Annexure C-4 is letter dated 19.05.2010 sent by the complainant to the Branch Manager, National Insurance Company Limited, Raipur (C.G.), document Annexure C-5 is letter dated 20.05.2010 sent by the complainant to Police Out Post Anjora, Police Station Phulgaon, District Durg (C.G.), document Annexure C-6 is Marine Claim Form, document Annexure C-7 is letter dated 24.05.2010 sent by the complainant to The Branch Incharge, Divisional Office, National Insurance Company Limited, Raipur (C.G.), document // 10 // Annexure C-8 is letter dated 20.05.2010 sent by Manoj Kumar Gupta to Police Out Post Anjora, Police Station Phulgaon, District Durg (C.G.), document Annexure C-9 is letter dated 26.07.2010 sent by the complainant to the Manager/Incharge, National Insurance Company Limited, Divisional Office, Raipur (C.G.) for payment of claim amount, document Annexure C-10 is letter dated 16.08.2010 sent by the complainant to the Manager/Incharge, National Insurance Company Limited, Divisional Office, Raipur (C.G.) for payment of claim amount, document Annexure C-11 is Claim Bill, document Annexure C-12 is letter dated 30.05.2011 sent by the complainant to the Branch Manager, National Insurance Company Limited, Divisional Office, Raipur (C.G.), document Annexure C-13 is letter dated 23.06.2011 sent by Divisional Manager, National Insurance Company Limited, Raipur (C.G.) to the complainant, document Annexure C-13 is letter dated 25.03.2011 sent by the Divisional Manager, National Insurance Company Limited, Raipur (C.G.) to the complainant, document Annexure C-15 is letter dated 05.07.2011 sent by the complainant to the Branch Manager, National Insurance Company Limited, Raipur (C.G.), document Annexure C-16 is letter dated 20.08.2011 sent by the complainant to the Branch Manager, National Insurance Company Limited, Divisional Office, Raipur (C.G.), document Annexure C-17 is letter dated 08.11.2011 sent by the complainant to Branch Manager, National Insurance Company Limited, Divisional Office, Raipur (C.G.), // 11 // document Annexure C-18 is notice dated 16.04.2012 sent by Shri S.K. Gupta, Advocate to the National Insurance Company Limited, document Annexure C-19 is Staphna ke panjiyan ka praman patra, document Annexure C-20 is letter dated 1st June 2012 sent by Monotech Systems Limited to M/s Print Zone, Agra, document annexure C-21 is Report. The complainant has also filed copy of Plaint of Civil Suit No.715 of 2010 which is pending before the High Court of Judicature of Madras and copy of order sheet dated 16.09.2011 recorded by 5th Additional District Judge, Gwalior (M.P.) Case No.15A/2011 E.D. in the case of Jai Badri Vishal Graphics vs. Monotech Systems Limited and others.
8. The O.P. has also filed documents i.e. letter dated 25.03.2011 sent by the Divisional Manager of National Insurance Co. Ltd. to the complainant, letter dated 06.08.2010 sent by Monotech Systems Limited to the Senior Divisional Manager, National Insurance Company Limited, Raipur (C.G.), letter dated 06.09.2010 sent by M. Abdul Razzack, Advocate to the Divisional Manager, National Insurance Company Limited, email sent by J. Basheer & Associates to Mr. Jain, bill dated 17.05.2010 issued by Raipur Delhi Roadwas, Bhanpuri, Raipur (C.G.), Survey Report of M/s J. Basheer & Associates Surveyors Pvt. Ltd dated 18.11.2010, Marine Survey Report (Preliminary) of Shri Hitesh H. Chitalia, Surveyor dated 24.05.2010.
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9. We have heard learned counsels for both the parties and have perused the documents filed by both the parties before us.
10. According to the complainant the truck bearing registration No.M.P.07-G--2682 was loaded with the articles in the intervening night of 17-18/05/2010, the said truck was fell down and caught fire on 18.05.2010, but the complainant did not file copy of the First Information Report. Document Annexure C-5 is letter dated 20.05.2010 sent by Manish Gupta to Police Out Post Anjora, Police Station Phulgaon, District Durg (C.G.). From Bare perusal of the letter annexure C-5 & C-8, it appears that the complainant Manish Gupta and owner of the truck bearing registration No.M.P.-07-G-2682 have made written complaint before the Police Out Post Anjora, Police Station Phulgaon for the first time on 20.05.2010. It appears that on 19.05.2010, no First Information Report was lodged by the owner of the truck or complainant and the matter was reported for the first time on 20.05.2010 before Police Out Post Anjora, Police Station Phulgaon. The incident took place on 18.05.2010 and the goods which were loaded in the said truck were damaged due to fire, but no complaint was made by the owner of the truck as well as complainant on the same day or on next day and there is no explanation for lodging delayed report. In paragraph 9 of the complainant, the complainant pleaded that the matter was reported to Police Out Post Anjora, Police Station Phulgaon where offence No.265 was registered but no document was produced // 13 // by the complainant, which indicates that the matter was reported to the concerned Police Station on 19.05.2010. According to the complainant, the value of the insured articles was Rs.92,35,000/-. Had any incident of fire took place and goods were damaged due to fire, the complainant could have immediately lodged report to the concerned Police Station.
9. In document Annexure C-5 which is letter dated 20.05.2010 sent by the complainant to Police Out Post Anjora, Police Station Phulgaon, it is mentioned thus :-
"izfr] Jheku] Fkkuk izHkkjh egkns;] iqfyl Fkkuk Qyw xkoa ftyk nqxZA fo"k; %& esjh e'khu vkfn ty dj u"V gkuss fo"k;d egkns;] fuonsu gS fd eSus viuh e'khu o ?kjy s w lkeku jk;iqj ls ukxiqj ys tkus grsq jk;iqj fnYyh jkM s ot s Hkuiqjh ls cqd fd;k Fkk] ftldk fcYVh ucaj 2291 FkkA mDr eky e'khu vkfn Vªd dzekd a MP07-G 2682 esa fnukda 17-05-2010 o 18-05-2010 dh jkf= 1-30&2-00 cts ds e/; yksM gqvk Fkk] mDr eky e'khu vkfn esjh nqdku xknske fLFkr yk[ks uxj] jk;iqj ls ykM s gqvk FkkA blds ckn fnukd a 18-05-2010 dks jkf= yxHkx 8-00&8-30 cts Vªd ekfyd dk Qkus vk;k Fkk fd xkMh+ ¼Vªd½ nqxZ vkSj jktuknaxkao ds chp ,DlhMUsV gks x;k gS vkjS Vªd eas vkx yx x;h gS vkSj lkeku ty x;k gS] iwjh rjg u"V gks x;kA e'khu ds leLr vly dkxt ckMZj ¼ukxiqj½ ls ikl djkus grsq Mªk;oj dks gh ns fn;k Fkk] mDr leLr dkxtkr Hkh ty x;As vr% ;g vkonsu Jheku dh vkjs lwpukFkZ ,oa vko';d dk;Zokgh grsq izLrqr gSA // 14 // fuosnd fnukd a 20-05-2010 euh'k xqIrk fu dSyk'k iqjh fVdjkikjk jk;iqj ¼N-x-½"
11. In document Annexure C-9 which is letter dated 20.05.2010 sent by Manoj Kumar Gupta to Police Station, Phulgaon, Out Post Anjora, District Durg (C.G.), it is mentioned thus :-
"izfr] Jheku] izHkkjh Fkkuk Qy w xkoa pkSdh vtkSjk ftyk nqxZ ¼N-x-½ fo"k; %& xSl okgu dzekd a MP07-G 2682 fnukd a 18-05-2010 dks nq?kZVuk gks tkus ckcr~A egkns;] fuonsu gS fd xSl okgu dzekd a MP07-G2682 tks fd fnukad 17-05-2010 dks jk;iqj fnYyh jkM s ot s Hkuiqjh ds ek/;e ls eky ¼e'khu vkfn½ jk;iqj ls ukxiqj ls tkus grsq cqd gqvk Fkk xkMh+ eas tks e'khu vkfn lkeku Fkk og euh'k xqIrk fuoklh jk;iqj dk Fkk rFkk fcYVh ucaj 2291 Fkk Mªk;oj ds }kjk mDr e'khu ¼eky½ tks euh'k xqIrk ds xknske yk[ksuxj jk;iqj ls Hkjk ¼ykM s fd;k½ Fkk blds ckn Mªk;oj 17-05-2010 o 18-05-2010 dks jkf= 1-30 o 2-00 ds e/; jk;iqj ls ukxiqj ds fy;s jokuk gqvk blds ckn Mªk;oj dk Qkus ejss ikl vU; fdlh ds ekcskby ls ejss ekcskby ij 18-05-10 dks 'kke 3 ls 4 cts ds e/; vk;k Fkk Mªk;oj us crk;k fd lkeus ls ,d Vªd nl w js Vªd dks vkosjVSd djrs gq;s vk;k rks VDdj ls cpkus ds fy;s rks Mªk;oj us xkMh+ fdfyuj lkbM dkVh rks jkM s dh eqMMh ls Vk;j Vdjk;k vkSj QVdj xkMh+ dks vucSysU'k djds xkMh+ lMd + ds uhps iyV x;h vkSj mleas vkx yx x;h ;g gknlk jlxkM s ckbZikl jYsos fczt ds ikl gqbZ gS ?kVuk eas esjh xkMh+ ijwh rjg u"V gks xbZ gS vkSj ikVhZ dk eky Hkh ty dj jk[k gks x;k ?kVuk eas flQZ esjk vkSj ejsh ikVhZ ds eky dk uqdlku gqvk bleas fdlh Hkh izdkj dk dkbsZ tugkfu ugh gqbZ gS xkMh+ o eky ds dkxtkr xkMh+ ds lkFk tydj jk[k // 15 // gks x;s xkMh+ dk LVkQ dks dkbsZ pkVs ugh yxh vfxze dk;Zokgh grsq J h s ek u th dk s l p w uk djus gsrq mifLFkr gWwAa vr% fuosnu gS fd izkFkhZ dk vkonsu vkids le{k vfxez o vko';d dk;Zokgh grsq izLrqr gSA fuosnd eukt s dqekj xqIrk fnukd a 20-5-2010 S/o Jh lhrkjke xqIrk fu Nxukyiqjk nfr;k ¼e-i-½z "
12. In document Annexure C-5 & C-8, the description or particulars of the articles which were loaded in the truck bearing registration No.M.P.07-G-2682 were not mentioned, therefore, merely submissions of the complainant or owner of the said truck that articles were booked in the truck and articles were damaged due to fire, is not reliable and it is not established that the articles which were mentioned in the complaint were actually booked in the truck bearing registration No.M.P.-07-G-2682.
13. The complainant filed document Annexure C-1 i.e. Bill dated 17.05.2010 issued by Raipur Delhi Roadways, Bhanpur, Raipur (C.G.). in the said document, the number of the vehicle is mentioned as M.P.07-G-2682 and in the column of no. of packages "3" is mentioned and in the column said to contain "Box Machine, parts and material, household goods is mentioned. A sum of Rs.4,500/- was received towards freight. In the said document, no particulars/ description of the goods, which were booked for transportation was mentioned.
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14. In the case of Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 Supreme Court Cases 704, Hon'ble Supreme Court observed thus :-
"6. It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Anson's Laws of Contract, 24th Edn. At p. 152, on exemption clause with regard to notice of a printed clause, it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. But if the document is not signed, being merely delivered to him, then the question arises : whether the terms of the contract were adequately brought to his notice ? The terms of the contract have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the singed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract ? It is true, as contended by M.N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the tribunal has to refer the parties to original civil court established under the CPC or appropriate State law to have the claims // 17 // decided between the parties. But when there is a specific term in contract, the parties are bound by the terms in the contract."
15. In the instant case, the booking receipt was filed by the complainant as document Annexure C-1. In the booking receipt name of consignee is mentioned as "Manish Gupta, Raipur" and name of the consignor is mentioned as Manish Gupta, self Nagpur, but no details of the articles, were mentioned in the bill.
16. From bare perusal of document C-1, it is not established that the goods which were mentioned in the complaint were booked by the complainant and said goods were loaded in truck bearing registration No.M.P.07-G-2682.
17. Document Annexure C-6 is Marine Claim Form. Document Annexure C-7 is a letter dated 24.05.2010 sent by the complainant to the Branch Incharge, Divisional Manager, National Insurance Company Limited, Raipur (C.G.). In the said document the complainant mentioned that the machine was excessively heated hence was completely damaged. The computer and computerized articles which were attached in the machine were completely damaged. The wiring of the machine was also damaged due to fire. The paint of the vehicle was also completely taken out. At present the machine is of no use. The chiller has also been damaged by fire. The copper pipe attached in the chiller was also stolen by unknown person at the spot. The chiller is // 18 // also of no use. The plate Processor, Interplatter machine was also damaged complete due to fire. The frame of iron stand and jail were also converted into scrap due to high temperature (fire). The chemical tank of this machine was of fibre, roller was of rubber and brush was of plastic, the above items were damaged due to fire and was melted. The machine was of no use.
18. The O.P. appointed Shri Hitesh Chitalia as Preliminary Surveyor and M/s J. Basheer & Associates Surveyors Pvt. Ltd. was appointed as Surveyor. Shri Hitesh Chitalia submitted Marine Survey Report (Preliminary) dated 24.05.2010 before the O.P.. The said report was filed by the O.P. in which Shri Hitesh Chitalia expressed his opinion that "It is a doubtful claim of transit shortage / damages of contents of carrier Truck, which burnt badly in abnormal situation, due to accident of Carrier truck in transit, no any identifications on both machines, hence the matter has to investigate at high level before settling the claim."
19. M/s J. Basheer & Associates Surveyors Pvt. Ltd., Surveyor also submitted their detailed report dated 18.11.2010 before the O.P. wherein it is mentioned that "The incident appears to have taken place under mysterious circumstances, merely by the fact that the Driver of the vehicle did not turn up to either the Police Authorities immediately after the Incident or presented himself to the Attending Surveyors for their enquiry till date."
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20. In the case of Ashu Textiles v. New India Assurance Company & Anr., III (2009) CPJ 272 (NC), Hon'ble National Commission observed that the Surveyor's report has to be given more weightage than the report of Fire Brigade and compensation to be assessed on basis of detailed survey report.
21. In Khimjibhai & Sons v. New India Assurance Co. Ltd., IV (2011) CPJ 458 (NC), Hon'ble National Commission observed that "It is to be noted that it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order."
22. In the case of Ankur Surana v. United India Insurance Co. Ltd., I (2013) CPJ 440 (NC), Hon'ble National Commission observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
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23. In the instant case the incident took place on 18.05.2010 and the matter was reported to Police Out Post Anjora, Police Station Phulgaon on 20.05.2010. Letter written by the complainant and owner of the truck bearing registration No.M.P.07-G-2682 to Police Station, Phulgaon, Out Post Anjora, District Durg (C.G.). are document C-5 & C-8. Had any goods, which were load in the truck were damaged due to fire, the complainant as well as owner of the said truck could have rushed to the concerned Police Station immediately for lodging report, but both have not lodged report to the concerned Police Station immediately after the incident and there is no proper explanation for lodging delayed report before the concerned Police Station. Therefore, the incident was highly suspicious. The Surveyors have also mentioned in their reports that the incident was highly doubtful. The Surveyor's report is genuine and reliable document. The O.P. filed affidavit of Shri J. Basheer, Chief Surveyor at J. Basheer and Associates Surveyors Pvt. Ltd. and therefore the report submitted by the Surveyors are reliable and can be a base for determination of the case.
24. Looking to the Surveyors report, it appears that the incident is highly dubious.
25. The complainant has not been able to prove that he suffered loss as mentioned in the complaint due to incident of fire, therefore, the O.P. has rightly repudiated the claim of the complainant and the complainant is not entitled for getting any compensation from the O.P. // 21 //
26. Therefore, the complaint of the complainant is liable to be and is hereby dismissed. No order as to the cost of this complaint.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/05/2014 /05/2014