State Consumer Disputes Redressal Commission
Narendra Solvex Pvt. vs National Insurance Co.Limited ... on 20 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/04/2192 (Arisen out of Order Dated 08/10/2004 in Case No. 218/98 of District Amravati) 1. Narendra Solvex Pvt. Badnera Yavatmal Road Tq.Nandgaon Khandeshwar,Dist,Amravati 444 601 M.S ...........Appellant(s) Versus 1. National Insurance Co.Limited Amravati Division Samra Compex Jaistambh Chowk,Amravati 444601 2. National Insurance Co,Limited,Pune Regional Office Deccan Gymkhana 1248-A,Shivaji Nagar Pune-4 Pune-4 M.S 3. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Respondent(s) First Appeal No. A/04/2193 (Arisen out of Order Dated 08/10/2004 in Case No. 219/98 of District Amravati) 1. Narendra Solvex Pvt.Ltd at,post;Dabha Badnera Yavatmal Road Tq.Nandgaon Khandeshwar,Dist,Amravati 444 601 M.S ...........Appellant(s) Versus 1. National Insurance Co.Limited,Amravati Division, Samra Compex Jaistambh Chowk Amravati 444 601 2. National Insurance Co.Limited,Pune Regional Office,Deccan GymKhana 1248-A,Shivaji Nagaar Pune-4 Deccan GymKhana 1248-A,Shivaji Nagaar Pune-4 Pune M.S 3. NATIONAL INSURANCE CO. LTD. THROUGH DIVISIONAL MANAGER PUNE REGIONAL OFFICE DECCAN GYMKHANA PUNE MAHARASHTRA 4. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Respondent(s) First Appeal No. A/04/2194 (Arisen out of Order Dated in Case No. of District State Commission) 1. Narendra Solvex Pvt.Ltd Badnera yavatmal road,tq-nandgaon khandeshwar,dist-Amravati ...........Appellant(s) Versus 1. National Insurance Co.Ltd Samra complex,jaistambh chowk,Amravati-444601 2. National Insurance Co.Ltd pune regional office Deccan gymkhana,1248-A,Shvaji Nagar,pune-4 Amravati 3. National Insurance Co.Ltd pune regional office Deccan gymkhana,1248-A,Shvaji Nagar,pune-4 Amravati 4. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Respondent(s) First Appeal No. A/04/2195 (Arisen out of Order Dated in Case No. of District State Commission) 1. Narendra Solvex Pvt.Ltd Badnera yavatmal road,tq-nandgaon khandeshwar,dist-Amravati ...........Appellant(s) Versus 1. National Insurance Co.Ltd Samra complex,jaistambh chowk,Amravati-444601 2. National Insurance Co.Ltd pune regional office Deccan gymkhana,1248-A,Shvaji Nagar,pune-4 Amravati 3. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER ...........Respondent(s) First Appeal No. A/04/2196 (Arisen out of Order Dated 08/10/2004 in Case No. CC/227/1998 of District Amravati) 1. Narendra Solvex Pvt.Ltd. At Post Dhaba,Badnera Yavatmal Road,Tq.Nandgaon Khandeshwar,Distt.Amravati Amravati M.S. ...........Appellant(s) Versus 1. National Insurance Co.Ltd. Amravati Division,Samra Complex,Jaistambh Chowk,Amravati Amravati M.S. 2. National Insurance Co.Ltd. Pune Regional Office,Deccan Gymkhana,1248-A,Shivaji Nagar,Pune-4 Pune M.S. 3. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER . PUNE MAHARASHTRA ...........Respondent(s) First Appeal No. A/04/2197 (Arisen out of Order Dated 08/10/2004 in Case No. CC/228/1998 of District Amravati) 1. Narendra Solvex Pvt.Ltd. At Post Dhaba,Badnera Yavatmal Road,Tq.Nandgaon Khandeshwar,Distt.Amravati Amravati M.S. ...........Appellant(s) Versus 1. National Insurance Co.Ltd. Amravati Division,Samra Complex,Jaistambh Chowk,Amravati Amravati M.S. 2. National Insurance Co.Ltd Pune Regional Office,Deccan Gymkhana,1248-A,Shivaji Nagar,Pune-4 Pune M.S. 3. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER ...........Respondent(s) First Appeal No. A/04/2198 (Arisen out of Order Dated 08/10/2004 in Case No. CC/229/1998 of District Amravati) 1. Narendra Solvex Pvt.Ltd. At Post Dhaba,Badnera Yavatmal Road,Tq.Nandgaon Khandeshwar,Distt.Amravati Amravati M.S. ...........Appellant(s) Versus 1. National Insurance Co.Ltd. Amravati Division,Samra Complex,Jaistambh Chowk,Amravati Amravati M.S. 2. National Insurance Co.Ltd Pune Regional Office,Deccan Gymkhana,1248-A,Shivaji Nagar,Pune-4 Pune M.S. 3. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Respondent(s) First Appeal No. A/04/2199 (Arisen out of Order Dated 08/10/2004 in Case No. cc/230/98 of District Amravati) 1. Narendra Solvex Pvt.Ltd At Post : Dabha Badnera yavatmal road,tq-nandgaon khandeshwar,dist-Amravati ...........Appellant(s) Versus 1. National Insurance co. limited, Amravati Division, Samra Complex Samra complex,jaistambh chowk,Amravati-444601 Amravati MAHARASHTRA 2. National Insurance Co.Ltd pune regional office Deccan gymkhana,1248-A,Shvaji Nagar,pune-4 Pune M.S 3. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER ...........Respondent(s) First Appeal No. A/05/1033 (Arisen out of Order Dated 08/10/2004 in Case No. cc/1998/219 of District Amravati) 1. National Insurance Company Ltd. R/oAmravati Division,Samra Complex Jaistamb Chowk, Amravati Tq. & Dist: Amravati through its Divisional Manager and another 2. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Appellant(s) Versus 1. M/S Narendra Solvex Pvt. Ltd. R/o At Dabha, having its Office at Rallies Plot Road,Amravati, Tq, & Dist. Amravati AMRAVATI MAHARASHTRA ...........Respondent(s) First Appeal No. A/05/1034 (Arisen out of Order Dated 08/10/2004 in Case No. 220/98 of District Amravati) 1. National Insurance Company Ltd Samra Complex,Jaistamb Chowk,Amravati,Distt-Amravati 2. National Insurance Company Ltd Daccan Jimkhana,1248-A,Shivajinagar,Pune Pune 3. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Appellant(s) Versus 1. M/s.Narendra Solvex Pvt Ltd Rallies Plot Road,Amravati,Tq&Distt-Amravati ...........Respondent(s) First Appeal No. A/05/1035 (Arisen out of Order Dated 08/10/2004 in Case No. cc/98/227 of District Amravati) 1. National Insurance Company Ltd. R/o Amravati Division,Samra Complex Jaistamb Chowk ,Amravat through its Divisional Manager + 1. 2. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Appellant(s) Versus 1. M/s Narendra Solvex Pvt. Ltd., At Dabha having its Office at Rallies Plot Road,Amravati, Tq.& Dist: Amravati. ...........Respondent(s) First Appeal No. A/05/1036 (Arisen out of Order Dated 08/10/2004 in Case No. 227/18 of District Amravati) 1. NATIONAL INSURANCE COMPANY LTD AMRAVATI DIVISION,SAMRA COMPLEX JAISTAMB CHOWK,AMRAVATI AMRAVATI 2. NATIONAL INSURANCE COMPANY LTD DACCAN JIMKHANA,1248-A,SHIVAJINAGAR,PUNE PUNE 3. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Appellant(s) Versus 1. M/S.NARENDRA SOLVEX PVT LTD RALLIES PLOT ROAD,AMRAVATI AMRAVATI ...........Respondent(s) First Appeal No. A/05/1037 (Arisen out of Order Dated 08/10/2004 in Case No. CC/228/1998 of District Amravati) 1. National Insurance Co.Ltd.Amravati Division Samra Complex, Jaistamb chowk, Amravati, Dist. Amravati 2. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Appellant(s) Versus 1. M/s.Narendra Solvex Pvt. Ltd. At.Dabha having its office at rallies plot Rd.Amravati, Dist. Amravati 2. National Insurance Co. Ltd.Pune Divisional office Deccan Jimkhana,Shivaji Nagar, Pune Pune M S ...........Respondent(s) First Appeal No. A/05/1038 (Arisen out of Order Dated 08/10/2004 in Case No. cc/229/98 of District Amravati) 1. National Insurance Company Ltd., Amravati Division, Samra complex, Jaistamb Chowk, Amravati Amravati Maharashtra 2. National Insurance company Ltd.,Pune division Office Daccan Jimkhana, 1248-A,Shivajinagar, Pune through appellant no.1 Divisional Manager. Pune M.S. 3. NATIONAL INSURANCE COMPANY LTD. PUNE DIVISION OFFICE DACCAN JIMKHANA 1248 A SHIVAJINAGAR PUNE THROUGH APPELLANT NO 1 DIVISIONAL MANAGER PUNE MAHARASHTRA ...........Appellant(s) Versus 1. M/s.Narendra Solvex Pvt. Ltd., Dabha, Rallies Plot Road, Amravati Amravati Maharasfhtra ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Advocate Mr.S.M.Kasture for original complainants in appeal Nos.A/04/2192 to A/04/2199 and for respondent in appeal Nos.A/05/1033 to A/05/1038. For the Respondent: Advocate Mr.W.G.Pounikar for original opposite party for appellants in appeal Nos.A/05/1033 to A/05/1038 and for respondent in appeal Nos.A/04/2192 to A/04/2199. Dated : 20 Jan 2018 Final Order / Judgement Per Shri B.A.Shaikh, Hon'ble Presiding Member.
1. These fourteen appeals are being disposed of by this common judgment/order as common questions of law and facts are involved in all of them. The appeal bearing Nos.A/04/2192 to A/04/2199 are filed by the original common complainant feeling aggrieved by the eight identical orders passed in eight identical complaints bearing Nos.C.C.No.218/1998 to C.C.No.221/1998 and C.C.No.227/1998 to C.C.No.230/1998. Similarly the remaining six counter appeals bearing Nos. A/05/1033 to A/05/1038 are filed by the common original opposite party (for short O.P.) Nos.1 and 2 feeling aggrieved by the six identical orders passed in six consumer complaints bearing Nos.219/1998 to 221/1998 and 227/1998 to 229/1998 out of above eight complaints. The above impugned orders are passed by the same District Consumer Forum of Amravati by which all the above eight complaints have been partly allowed. The parties in all six appeals are being referred by their original status in all the complaints as the eight complainant and the O.P.Nos.1 and 2, for the sake of convenience.
2. The common case of all the original complainants in above eight complaints bearing Nos.C.C.No.218/1998 to C.C.No.221/1998 and C.C.No.227/1998 to C.C.No.230/1998 as set out in brief is as under.
a) The complainant is a private ltd. company. It had obtained an insurance policy from the O.P.No.1 and 2 for a period from 12/02/1996 to 11/02/1997, called as "Marine Open Declaration Policy" with FOB cover for Soyabeen Deoiled Cakes in single second hand gunny bags by rail including FOB Craft/Raft, berges against all risks cover from Amravati/Badnera to any Port in India for the sum insured Rs.3,00,00,000/-. The details of premium paid by the complainant to the O.P.Nos.1 and 2 are given in para No.1 in each of the complaint and also reproduced in respective impugned order.
b) The O.P.Nos.1 and 2 issued standing instructions vide letter dated 23/02/1996 to their Division Office of Kakinada to appoint surveyor for the complainant in respect of the above policy during its above period. The O.P.Nos.1 and 2 appointed M/s.J.B.Boda surveyors private limited, Kakinada for survey ad assessment of loss and supervision of consignment during unloading from the Railway Wagons and to the transportation to Godown and thereafter transportation to ocean going Ship by Craft/Raft/Berges including placing consignment on the Board of the vessel for Ocean voyage.
c) The O.P. similarly nominated R.M.Zanwar at Amravati to supervise the loading of consignment and survey about correctness of loading, weighment, packing etc.
d) M/s.Samata Marine, Kakinada was consignment agent for the consignment. It was advising upon receipt of intimation from the complainant about the consignment in transit with approximate dates of wagons arrival at Kakinada with request to arrange and depute surveyor by O.P., pursuant to standing instruction of O.P. for supervision of unloading from wagons and assessment of loss/damage/shortage if any noticed whilst taking delivery of consignment from railway administration.
e) The said practice was invariably followed in all cases and local office was advised surveyor M/s. J.B.Boad and company to undertake the work of survey, pursuant to the standing instructions of the O.P. The consignment agent namely M/s.Samata Marine got the consignment unloaded from wagons in presence of M/s.J.B.Boda surveyors Pvt.Ltd. from the railway rakes. Moreover the said surveyors after receipt of requisite fees from the consignment agent on behalf of the complainant issued survey report to the complainant through M/.Samta Marine, Kakinada. The said reports received from J.B.Boad were immediately on receipt of same dispatched by M/.Samta Marine, Kakinada to the concerned division of the local division office of the O.P.by registered post for transmission to the O.P. of Amravati in terms of system evolved by O.P. in favour of the complainant.
f) The requisition for surveyor was made by M/s. Samta Marin, Kakinada from local office of O.P. for the purpose of supervision of consignment while unloading and assessment of loss if any found which in other word amounts lodging intimation of loss if discovered by O.P. in terms of compliance with the stipulation as envisaged in their service contract drawn by O.P. and delivered to the complainant. The claims are payable inrespect of dispatches made within policy period but losses may be found even after expiry of the policy and are payable as per policy terms.
g) The complainant loaded from time to time during the period of policy, Soyabean Deoiled Cakes on railway wagons of which details are given in para No.9 of each of the complaint. The loading of the consignment was made every time in presence of surveyor R.M.Zawar, who submitted a report on each occasion under the instructions of the O.P. Copies of his report are filed alongwith the complaint.
h) On arrival of the consignment, it was unloaded every time under the supervision of surveyor M/s.J.B.Boda Surveyors Private Limited Kakinada. It was found by the said surveyor M/s.J.B.Boda from time to time that there were transit losses of the insured goods while its making of transportation by rail and shipping. The said surveyor M/s.J.B.Boda prepared report every time and its copies are also filed alongwith the complaint. The above details are given in tabular form.
Sr No Appeal No. Comla-int No. Dt. Of loading Soyabean Deoiled Cakes for transportation Dt.of report of surveyor R.M.Zawar about loading.
Dt.of report given by surveyor J.S.Boda about loss in transit.
Loss of Soyabean Deoiled Cakes reported by J.S.Boda in k.g,( During transportation by rail and shipping.) Compensation claimed by the complainant in each of the complaint for the loss.
Compensation awarded by the District Forum below in each of the complaint.
1. A/04/2192 218/98 22/12/96 & 23/12/96 28/12/96 21/01/97 Transit Loss-21.680 M.T. Shipping loss- 14.030 M.T. = 35.710 M.T..
Rs.3,59,583.51 Rs.3,59,583.51.
2. A/04/2193 & A/05/1033 219/98 30/01/97 & 31/01/97 05/02/97 24/02/97 Transit loss by whilst transport by rail - 22347 k.gs Shipping loss- 6086 k.gs Total- 28,433 k.gs Rs.2,92,822/-
Rs.2,92,822/-
3. A/04/2194 & A/05/1034 220/98 24/11/96 & 25/11/96 28/12/96 19/12/96 18.460 M.T. Rs.3,51,714.45 Rs.3,51,714.45
4. A/04/2195 & A/05/1035 221/98 04/12/96 & 05/12/96 08/12/96 19/12/96 & 01/01/97 During rake unloading 26.220 M.T. shipment loss- 15.250 M.T. = 41.470 M.T. Rs.4,05,236.21 Rs.4,05,236.21
5. A/04/2196 & A/05/1036 227/98 13/11/96 & 14/11/96 17/11/96 19/12/96 & 01/01/97 Transit loss - 13.610 M.T. Shipping loss - 11.558 M.T. Total - 25.168 M.T. Rs.2,46,923.31 Rs.2,46,923.31
6. A/04/2197 & A/05/1037 228/98 14/12/96 22/01/97 19/12/96, 31/01/97 & 13/02/97.
Transit loss- 17.585 M.T. Shipping loss- 15.370 M.T. = 32.955 M.T. Rs.3,30,935.82 Rs.3,30,935.82
7. A/04/2198 & A.05/1038 229/98 20/12/96 ..............
03/01/97 Net shipping loss - 4.425 M.T. Rs.43,080/-
Rs.43,080/-
8. A/04/2199 230/98 03/01/97 10/01/97 18/01/97 & 30/01/97 Transit loss - 14.440 M.T. Shipping loss -14.460 M.T. Total-28.900 M.T. Rs.2,97,660.60 Rs.2,97,667.60.
i. The complainant submitted following documents to the O.P. alongwith each claim, for the above loss.
a) Surveyors reports. b) Copy of R.R. c) List of Trucks and Weighment. d) Bill of lading. e) Certificate issued by captain. f) Notice sent to Samta Marine, Kakinada. g) Notice to Boat Pool Office. h) Notice to Railway Kakinada. i) Registered Post receipts. j) Claim Bills. k) Claim form. l) Copy of declaration m) Intimation. j. The O.P. issued letters to the complainant on unfounded grounds that the claims of the complainant are not entertainable. It was lapses and latches of the O.P. not to register the claims in their books in respect of service hired by the complainant upon payment of consideration. The complainant went post to pillar of the office of O.P. right from Head Office, Calcutta and Regional Office, Pune as deduced in letter dated 05/07/1997 addressed to the O.P. Moreover M/s.Samta Marine had also advised the local office of the O.P. to send surveyor/assessor for supervision of unloading of consignment and assessment of loss any and thus the contention of the O.P. in their letter of repudiation is unfounded and devoid of merit. k. Thus the O.P. rendered deficient service to the complainant. Hence the complainant filed the above eight complaints claiming compensations as specified in the above table. The complainant also claimed in each of the complaint interest @ 18% P.A. and litigation cost.
3. The O.P.Nos.1 and 2 appeared before the District Forum below and filed reply to each of the above eight complaints and thereby they resisted those complaints.
4. The appellants in their reply filed before the Forum below admitted the following facts.
The policy as specified in the complaint was issued by the appellants to the respondent. The appellants also issued standing instructions to their Division Office of Kakinada as per letter No.118 dated 23/02/1996 to appoint surveyor for the complaint inrespect of the open declaration policy filed on record from the record from 12/02/1996 to 11/02/1997. Hence Shri R.M.Zavar, surveyor had supervised the loading of the consignment and make survey about correctness of loading weighment and packaging etc. The another surveyor Shri J.B.Boda also supervised the unloading of consignment. Both Shri R.M.Zawar and Shri J.B.Bada prepared their reports accordingly and dispatched the same to the appellants.
5. The common defence raised by appellants in all eight complaints in brief is as under.
a.) The claim made in all the complaints is identical and they are based on same policy and eight complaint which are filed by dissociating the claims are therefore not maintainable. The complainant has not came with clean hands by deliberately dissociating the claims of all complaints and if they are clubbed together, it will go beyond the pecuniary jurisdiction of the District Forum below. Hence on this sole ground all these complaints are deserve to be dismissed.
b). As per clause Nos.1 of the conditions of the policy, lodging of the written protest under inland dispatches to the appellant is a condition precedent for advancing any claim by virtue of the insurance cover and as no written process was lodged as per that clause, the complainants are not entitled to making claim. No intimation was given by the respondent to the appellants immediately as required. The survey reports were dispatched at belated stage to the appellants and that does not amount to lodging and intimation applied to the appellants in terms of compliance with stipulation as envisages in service contract between the parties. Moreover no protest was lodged with railway authority under intimation to the appellants as required. No survey was sought from railway authority as required loss in consignment during transit period occurred during loading and unloading of consignment. Therefore the survey reports filed on record can not become basis for acceptance of liability wherein losses are disclosed.
c). The appointment of both the surveyors was made only for the purpose of survey and not for the assessment of loss, occurred during unloading of the consignment from railway vagans and transportation of the same to godown and thereafter to ocean going ship. The appellant No.1 had communicated the complainant to give intimation at Amravati Office if loss is occurred immediately so as to assess the loss by making appointment of the surveyor, but no such intimation was given immediately. The dispatch of consignment was not within policy. The complainant failed to make assessment of loss through authorized surveyor under intimation to appellant No.1. The claim is based on hypothetical consideration. The documents were prepared after the period of policy by the respondent No.1 and hence can not be considered for the purpose of accepting claims for compensation. Thus on these grounds it was prayed by the appellants that all these eight complaints may be dismissed with cost.
6. The District Forum below after hearing both parties and considering the evidence brought on record passed the eight identical orders in the above eight complaints and thereby partly allowed all the eight complaints giving directions to the original opposite party Nos.1 and 2/appellants to pay to the complainant the respective amount as claimed in respective complaint and referred to in above table in para No.2(h). Moreover the District Forum below also awarded interest as specified in impugned order over the aforesaid respective amounts from the respective dates mentioned in the impugned orders and also directed the appellants to pay in each complaint litigation cost of Rs.1000/-. Thus the original complainant filed eight appeals bearing Nos.A/04/2192 to A/04/2199 and the original opposite party Nos.1 and 2 filed six counter appeals bearing Nos. A/05/1033 to A/05/1038 as specified in opening para of this order.
7. We have heard learned advocate Shri S.M.Kasture appearing for the original complainant and learned advocate Shri W.G.Pounikar appearing for the original O.P. at length. The learned advocate of both parties also filed their respective written notes of arguments. We have perused entire record and proceedings of all the above appeals.
8. The learned advocate of the original O.P.Nos.1 and 2 besides reiterating the aforesaid case of the original O.Ps., also submitted that Mr.J.B.Boda was not appointed to assess the loss caused to Soyabeen Deoiled Cake while unloading and the Forum below has not considered the said material aspects of the case and erred in relying on his report for partly allowing all the complaints. Moreover he also argued that it was necessary for the original complainant to obtain certificate of shortage from the railway authority or shipping authority and as the same was not filed alongwith the claims, there was no question of allowing any of the claim. Moreover there is over writing as regards the rate of interest in operative parts of impugned orders which is not counter singed by the learned President and Members of the Forum below. According to him initially the rate of interest was typed as 10% P.A. and subsequently it was changed by over writing as 15% P.A. and hence according to him the rate of interest which is corrected as 15% P.A. by over writing without counter signatures, it can not be accepted to be correct and proper. The learned advocate of the original O.P. thus submitted that all identical impugned orders deserve to be set aside and all the complaints deserve to be dismissed.
9. The learned advocate of appellants relied on decision in the following cases in support of his submission.
Oriental Insurance Company Ltd.....V/s....Ram Kali and another, 2017 (5) All M.R. (Journal 40) Himachal High Court.
It is held in that case that interest on the amount of compensation should be awarded as per prevailing rate.
ii) Venkatesh Construction Co....V/s.......Kstnataka Vidyuth Karkhane Limited (KAVIKA), AIR 2016 Supreme Court 553.
It was a suit for payment towards extra work filed before the Civil Court. The Hon'ble Supreme Court under the facts and circumstances of that case reduced rate of interest from 12% P.A. to 6% P.A. from the date of the suit till realisation of the decretal amount.
10. On the other hand, the learned advocate of the original complaint though supported the impugned orders so far as the findings of the District Forum is concerned about holding the original O.P. liable to make good of the loss sustained by the complainant, but he submitted that the District Forum erred in not granting interest @ 18% P.A. He therefore requested that the appeals filed by the original O.P.Nos.1 and 2 may be dismissed and appeals filed by original complainant may be allowed by enhancing the rate of interest to @ 18% P.A. as claimed in all the complaints.
11. So far as maintainability of all the eight complaints before the District Forum as filed on the basis of single policy is concerned, we find that all eight complaints are maintainable before the District Forum below on the reason, firstly that the losses were not occurred at one time but they occurred on different dates and different reports were submitted by the surveyors at different times as per the losses occurred. It can not be said that cause of action arose only onece for filing all the eight complaints. Moreover the complainant had submitted eight claims on the basis of eight survey reports to the appellants. It can not be therefore said that cause of action for filing of all the complaints was one and the same. In this view of the matter, we find that filing of the single complaint clubbing all the eight claims arose on different cause of action would be against the provisions of law. Therefore we find no substance in the above submission of learned advocate of original O.P.Nos.1 and 2.
12. The another grievance of the original O.P. is that the surveyors were appointed only for supervision and not for assessment of loss. However, we find that there is no cogent evidence to show that Shri D.B.Boda was appointed simply for supervision and not for assessment of loss. It is also pertinent to note that both the said surveyors namely Shri R.M.Zanwar and Shri D.B.Boda after conducting the survey from time to time prepared reports daily and provided the same to original O.P.Nos.1 and 2. The O.P.Nos.1 and 2 never raised any objection to those reports till insurance claims were lodged by the original complainant based on those survey reports. Moreover O.P.Nos.1 and 2 did not appoint independent surveyor after receiving report from Shri B.D.Boda regarding the assessment of loss. The only contention raised by the original O.P.Nos.1 and 2 is that they did not receive intimation immediately about the loss. However the policy produced on record does not specify that the intimation of losses was to be given immediately or within some specified time intimation should be given to appellants. In the absence of any specific term and condition in the policy about giving immediate intimation to the original O.P.Nos.1 and 2 about the loss, it can not be said that the claims made by the original complainants were not tenable because of alleged delay in giving the intimation on their part.
13. Moreover it is also seen that when the reports as above were received from the second surveyor namely Shri Boda about losses, it was necessary for the original O.P.Nos.1 and 2 to appoint the surveyor for conducting the survey. The original O.P.Nos. 1 and 2 can not avoid its responsibility on the ground that as intimation was given belatedly, they could not appoint the surveyor. It is also pertinent to note that the original O.P.Nos.1 and 2 have not come with a specific case that the loss of Soyabeen Deoiled Cake assessed by surveyor Shri J.B.Boda in his respective report is incorrect or not based on proper supervision and the documents. On the contrary we find that his reports are very specific and clear in all respect. The Forum has therefore rightly awarded the amounts on the basis of the said report of surveyor Shri J.B.Boda.
14. The another contention made by the original O.P.Nos.1 and 2 through their advocate in appeals is that no certificate of shortage was obtained from railway authority or shipping authority by the complainant for making the insurance claim. The advocate of the O.P.Nos.1 and 2 relied on the condition No.1 of the policy which provides as under, "The assured or their agents/consignee must under no circumstances give clean receipts to the Carriers in respect of packages which are offered to them for delivery in a doubtful condition except under written protest."
15. In the instant case the delivery was not found in doubtful condition. Moreover we find that the goods delivered were not found in damaged condition. There was shortage of the goods received at the time of delivery. It is also pertinent to note that the original complainant also sent notice to the railway authority and the port to lodge the protest, as specified in each of the impugned order by the District Forum. It is also found that copy of the same was also given by the complainant to the O.Ps./appellants. Therefore it can not be said that there is a breach of the aforesaid condition of the policy to disentitle the complaint from making claims.
16. As regards the rate of interest granted by the District Forum below, we find that considering the nature of the claim and the dispute involved in the complaints, it would be just and proper to award interest @ 9% P.A. from the date of respective complaints i.e. from 17/08/1998 till its realisation. The decisions relied on by the learned advocate of O.P.Nos.1 and 2 and referred to above on the point of interest are not applicable to the facts and circumstances of the present complaints since the facts and circumstances of those cases are totally different from those of the present cases.
17. Therefore we are of the considered view that District Forum below has considered in right perspectives the legal and factual aspects of the case and the evidence brought on record. The District Forum below has given the proper reasoning in each of the impugned orders and reached to correct conclusion and findings as regards the liability of the original O.P.Nos.1 and 2 about making good, the loss suffered by the original complainant. However rate of interest awarded by the Forum over the amount awarded @ 15% P.A. from 20/05/1997 till the date of the impugned order and @ 7% P.A. from the date of order till realization of the same by the complainant needs to be modified to the effect that the O.P.Nos.1 and 2 shall pay interest over the respective amount @ 9% P.A. from the date of the complaint i.e. from 17/08/1998 till its realization. Accordingly following common order in all the appeals is passed.
// ORDER //
i)All appeals are partly allowed as under.
ii)The direction given under impugned orders to the original O.P.Nos.1 and 2 to pay to the respective complaints the respective amounts as mentioned in the impugned order towards the loss sustained by the complainant is maintained. However the directions about the rate of interest given in impugned orders are modified and substituted to the effect that the O.P.Nos.1 and 2 shall pay to the complainant the respective amount with interest @ 9% P.A. from the date of the respective complaint i.e. from 17/08/1998 till realization of the same by the complainant.
iii)The impugned orders as regards the payment of cost of Rs.1000/- in each of the complaint by the O.P.Nos.1 and 2 to complainant are also maintained.
iv)No order as to costs in all these appeals.
v)Copy of the order be furnished to both parties free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER