State Consumer Disputes Redressal Commission
The Branch Manager, vs Shri. Ashok Gupta, Partner, on 18 February, 2014
1 F.A. No..: 644-08
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH
AT AURANGABAD.
Date of filing : 05.06.2008
Date of Order: 18.02.2014
FIRST APPEAL NO. 644 OF 2008
IN COMPLAINT CASE NO. 997 OF 2007
DISTRICT CONSUMER FORUM: JALGOAN.
The Branch Manager,
National Insurance Co. Ltd.
Saibaba Market, Balirampeth, Jalgaon,
Throguh its Divisional Office,
Hazari Chambes, Padampura,
Aurangabad. ... Appellant
//VERSUS//
Shri. Ashok Gupta, Partner,
M/s. J.K. Dal Mill,
G-89, M.I.D.C. Ajanta Road, Jalgaon ... Respondent
Coram : Shri.S.M. Shembole, Hon`ble Presiding Judicial Member.
Mrs. Uma Bora, Hon'ble Member.
Present: Adv. Shri.S. G. Chapalgaonkar for appellant.
Adv. Shri. Prem Kriplani holding for Adv. Shri. Mathurvaisya, for respondent.
:: ORAL JUDGMENT::
(Delivered on 18th February, 2014) Per Mrs. Uma Bora, Hon'ble Member.
1. National Insurance Company Limited through its Branch Manager preferred this appeal against the judgment and order passed by District Forum, Jalgaon on 05.04.2008 while deciding complaint case No. 997/2007.
2. Facts giving rise to this appeal are as under: 2 F.A. No..: 644-08
Complainant Shri. Ashok Gupta is partner of M/s. J.K. Dalmil situated at Jalgaon. Said company used to import grains and to secure said import complainant had obtained policy bearing No.270607/420/202/97 on 12.02.1998 from the appellant. Complainant took insurance of 100 M.Tons of Toor whole for value of USD 32,500 + 10% was equal to Indian Rs.13,94,055/-. Out of 100 MT of Toor whole complainant received 50 MT of Toor whole at Jalgaon and remaining 50 MT of Toor was to arrive from Yangon by ship M.V. Jaipur. Said goods were sent by vehicles Machinery and Equipment Trading Yangaon Myanmar to Mahesh & Company Pvt. Ltd., Singapure who in turn consigned the same to the complainant vide shipment advice dated 22.04.1998. Consignment was due to land at Mumbai on 27.04.1998 and shipping agent of the complainant Sai Freight Pvt. Ltd issued delivery order to the Manager Mumbai Port Trust Docks, Mumbai and asked them to deliver 1000 bags of Toor whole weighing 49975 kgs.
Said Toor was ordered to deliver to "Govindji Kanji & Company" clearing agent of the complainant. But delivery was not given. On 14.05.1998 complainant received letter from Richard Hogg International Average Adjusters and Marine Claims Consultants stating that fire had occurred in the Cargo of the vessel M.V. Jaipur on or about 13.04.1998. Therefore delivery would be given after completing certain formalities. On 17.06.1998 complainant received advice memo from his bank i.e. State Bank of India confirming a payment of USD 16,241.88 made to the company at Yangon, Myanmar. He wrote letter to the General Manager, Technical of the insurance company about his Marine Policy claim on 02.01.1999. As complainant did not receive the said goods and it was come to knowledge of the complainant that goods were damaged in the fire occurred on the M.V. Jaipur ship he preferred the claim with insurance company by annexing all the required documents. But claim of complainant was not settled till the filing of complaint. On the other hand, insurance company on several dates was 3 F.A. No..: 644-08 demanding the various documents and prolonged the disbursement of claim of complainant. Therefore complainant approached to Forum.
3. Appellant insurance company appeared before Forum and resisted the complaint mainly on the ground that complainant did not inform the date of consignment; therefore insurance company could not decide the loss actually caused to the appellant. It is further submitted by appellant that complainant himself committed delay by not supplying the necessary documents. Therefore there is no deficiency in service on their part.
4. After hearing both the parties Forum partly allowed the complaint and directed insurance company to pay Rs.7,24,821/- with 12% interest from 11.07.1998. Forum also directed appellant to pay Rs.5000/- towards cost of the complaint.
5. Dissatisfied with the said judgment and order insurance company came in appeal. Adv. Shri. S. G. Chapalgaonkar appeared for appellant. Adv. Shri. Ashok Mathurvaishya appeared for respondent. Today on the date of hearing Adv. Premkumar Kriplani holding for Adv. Mathurvaishya appeared for appellant. It is submitted by Adv. Chapalgaonkar that in fact complainant Ashok Gupta has no authority to file the complaint. The relationship of Ashok Gupta with M/s. J. K. Dal Mill is not proved by any documentary evidence. The documents relating to the registration of firm and the names of persons were not produced on record by the complainant. Therefore complaint is not maintainable. It is further submitted by Adv. Chapalgaonkar that the policy was obtained on 12.02.1998 and ship was to start from Yangon, Myanmar on 12.04.1998 but the said consignment never intimated to the appellant though it was mandatory condition in the policy. The complainant is company importing of grains and he was ordered shipment from time to time, therefore it was essential on the part of 4 F.A. No..: 644-08 complainant to intimate about the exact shipment through which goods are settled to be arrived. The complainant by letters dated 17.06.1999, 15.07.1999 and 12.11.1999 was asked to submit necessary documents, but instead of complying the said directions complainant approached to Forum with malafied intention. As per the contention of the complainant Cargo got fire on 13.04.1998 but intimation of fire was given to the insurance company on 12.05.1998 without giving any necessary details. But District Forum without considering the facts, conditions of the policy and report of surveyor committed error in allowing the complaint.
6. Adv. Prem Kriplani appeared for respondent submitted that complainant had booked the order for whole Toor from Yengaon, Mynmar. For said goods complainant had obtained insurance policy to secure the loss if any whenever occurred. 1000 bags weighing to 49975 kgs were decided to reach at Mumbai by M.V. Jaipur vessels and said goods were to be received by Sai Freight Pvt. Ltd. Mumbai. On 14.05.1998 complainant received letter from Richard Hogg International Average Adjusters and Marine Claims Consultants that the owners of the M.V. Jaipur declared general average due to fire at Cargo of the vessel M.V. Jaipur on or about 13.04.1998. They regret for inconvenience caused. After receipt of said letter complainant came to know that the Cargo which was carrying the goods for the complainant got the fire. It is further submitted by Adv. Kriplani that the complainant had already paid the price of the said goods through State Bank of India. On 03.06.1999 Bombay Port Trust issued letter to the complainant and mentioned in the letter that 135 bags of black gram + Toor whole in mix the mark and the description had not tallied with the Cargo of the complainant. It is further submitted by Adv. Kriplani that as per the order of the Hon'ble High Court, Mumbai said vessel was sold and therefore the complainant preferred the claim with the insurance company, but the insurance company without deciding the claim tried to prolong and to avoid the disbursement of 5 F.A. No..: 644-08 claim. Insurance company on various dates issued letters asking the complainant to supply one or other documents. District Forum rightly considered the facts and evidence while allowing the complaint. In support of his contention he relied on -
i. United India Insurance Company Ltd. Vs. Great Eastern Shipping Co. Ltd.,III (2007) CPJ 3 (SC).
It is held by Hon'ble Supreme Court that while interpreting policy, intention of parties and words used in policy to be given necessary weightage.
ii. National Insurance Co. Ltd. Vs. Mithijam Vanaspati Ltd., II (2006) CPJ 55 (NC). It is held by Hon'ble National Commission that repudiation of claim on the ground, claimants failed to declare dates of consignment. No such contention prefixed by O.P. in proposal form. iii. Loyal Marines Vs. Naitoal Insurance Co. Ltd. IV (2006) CPJ 250 (NC). It is held by Hon'ble National Commission that contention of insurance company that complainant deliberately not taken action to prevent actual loss of vessel, rejected. Said submission, against evidence on record.
iv. Shree Swastik Trading Company Vs. Oriental Insurance Co. Ltd. & Anr, I (2005) CPJ 36 (NC). It is held by Hon'ble National Commission that insurance company should have decided the matter within reasonable time - inordinate delay not explained.
8. We thus heard the counsel of both sides and perused the record. It is an admitted fact that the complainant had taken insurance policy to secure the grains used to import from other countries. It is also an admitted fact that complainant placed the order of 50 M.T. of whole Toor with the company of 6 F.A. No..: 644-08 Yengon, Myanmar. It is the case of the complainant that his collecting agent i.e. Sai Freight Pvt. Ltd. could not get the delivery of the goods as Cargo which was carrying the goods got fire at Yengon, Myanmar only. Said fact was informed by the Richard Hogg International by its letter dated 14.05.1998. Thereafter complainant also received the letter from Bombay Port Trust that there is no goods of the mark and label as mentioned by the collecting agent. Thereafter complainant immediately informed the said fact to the insurance company. But the insurance company without taking further steps did not decide the claim. We relying on the authorities cited by the complainant with his argument. In our view, insurance company by ignoring the fact that the complainant not received any goods though he had made payment of huge amount for the said goods, avoided to settle the claim. Complainant produced all the required documents to show that he has suffered loss due to non-delivery of 50 MT of whole Toor. Even by ignoring said documents insurance company delayed to decide the claim. In our view District Forum rightly considered the facts and evidence while allowing the complaint. We do not want to disturb the reasoning recorded by the Forum. Hence-
ORDER
1. Appeal is dismissed.
2. No order as to cost.
(Mrs. Uma S. Bora) (S. M.Shembole)
Member Presiding Judicial Member
Kalyankar