State Consumer Disputes Redressal Commission
Virdev Intermideates Pvt Ltd vs The New India Ass. Co Ltd on 28 July, 2023
Details DD MM YY
Date of Judgment 28 07 2023
Date of filing 25 03 2015
Duration 03 04 08
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD
COMPLAINT NO. 28 OF 2015
(Court No. 2)
Virdev Intermediates Pvt. Ltd.
Block NO. 46-47,
Plot No. 2,
Mauje Palsana, Ta. Palsana,
Dist. Surat. ....Complainants
versus
1. The New India Assurance Co. Ltd.
A) Divisional Office No, 3;
1st Floor, Nr. Dutch Garden,
Nanpura, Surat.
B) Surat Regional Office
Tirupati Plaza Building (1st Floor/A Wing),
Nr. Athva Gate Circle
Nanpura, Surat. ...Opponents
Complainants - Ld. Adv. Mr. Milan Dudhiya
Opponents - Ld. Adv. H. G. Mazmudar,
CORAM: Hon'ble Mr. M. J. Mehta, President (Acting)
Hon'ble Dr. J. G. Mecwan, Member
Order by Hon'ble Dr. J. G. Mecwan, (Member)
1. The complainants have filed the Consumer Complaint under Section 11 and 12 of the Consumer Protection Act, 1986 (for short 'the Act') against the opponents for redressal of their grievances.
2. It is the case of the complainant that the complainant is having Marine Cargo Open Policy bearing policy No. M. B. Desai CC-15-28 Page 1 of 7 23030021100200200001 for the sum insured of Rs. 5,00,00,000/- for the period between 23.11.2010 to 22.11.2011. Complainant has dispatched a consignment of diacerein in six drums for Rs.21,93,867/- to consignee M/s. Macleods Pharmaceuticals Limited through transport company i.e., Sefexpress Pvt. Ltd. Co. on 31-03-2011 and at the time of delivery i.e., 07-04-2011, it was found that, the shipped goods (consignment) is replaced with some other material and consignee has refused to accept the goods and returned to transporter. Complainant has informed the opponent on 26-04-2011 when the goods/cargo were received at Surat and insurance company has appointed surveyor, who has assessed the loss and issued survey report.
Complainant again dispatched a consignment of diacerein in three drums for Rs. 10,88,496/- through same transport company i.e., Sefexpress Pvt. Ltd. Co. on 22-06-2011 and at the time of delivery i.e., 29-06-2011, it was found that, two drums in open seal conditions. Complainant has informed opponent on 04-07-2011 and lodged a claim and - opponent had appointed surveyor, M/s. Consolidated Surveyors Pvt. Ltd and Mr. S. S. Bedi as investigator, who has assessed the loss and issued survey report.
Complainant again dispatched a consignment of Etoricoxib in two drums for Rs.4,68,025/- through same transport company i.e., Sefexpress Pvt. Ltd. Co. on 30-06-2011 and at the time of delivery i.e., 06- 07-2011, it was found that, two drums in open seal conditions. Complainant has informed opponent on 08- 07-2011 and lodged a claim and opponent had appointed surveyor, M/s. Consolidated Surveyors Pvt. Ltd, who has assessed the loss and issued survey report. Considering, survey report, terms and conditions of policy etc., opponent has repudiated said all three M. B. Desai CC-15-28 Page 2 of 7 claims. Hence, present complaint is preferred before this Commission.
3. Opponents have denied the allegations, averments, assertions, submissions and claim set out by the complainant as false. It is submitted that complainant is not a consumer and doing commercial activity therefore, under C. P. Act, 1986 the complaint is not maintainable. It is further submitted that the entry GD 59-A by Badi Police Station was considered and the insurance company had taken correct and legal decision for the claims. It is further argued by the advocate for the opponent that the complainant has not produced the damage certificate as per Section 10 of Carriers Act, 1865 hence, complaint is not maintainable and deserves to be dismissed.
Merit of the case:
4. In this matter repudiation letter of Insurance Company is on record wherein following reasons are mentioned for the repudiation of the claim:
The claims in the above said cases are for consignment that were substituted or altered with the original consignment in an unexplained/mysterious manner.
Badi Police under whose jurisdiction the claim had occurred has mentioned in their GD Entry No. 58 (A) that no offence has been committed hence action cannot be taken.
To damage certificate has been submitted. The documents which was provide by the transporter is certificate of facts which reads as follows:
All due care and precaution were undertaking for the safe transit. The above risk is not attributable to any negligence whatsoever direct, indirector or contributory either on our part or on the part of our employees or agents. The certificate of facts is issued to enable the M. B. Desai CC-15-28 Page 3 of 7 customer to claim the losses if any, from their underwriters through whom the consignment was insured".
Ample opportunity was given to you to submit FIR, Panchnama, Final report under Section 173, but the same was not submitted.
Hence, the above said claimes do not fall under any of the perils described in the above said marine policy. Moreover from the submission of the documents so fare it is merely the case of mysterious substitution of the consignment, which is unexplained as per the terms, conditions, executions and provisions of the policy held by these claims.
Hence we absolve from any future liability in these claims.
We have gone through the record of this case opponent Insurance Company has appointed surveyor and as per survey report FIR, panchanama and final report are not produced and surveyor has observed these issues and mismatch of quality of goods.
In this matter copy of investigation report is produced wherein, investigator has mentioned as under:
Police Report: Anx:23 The undersigned discussed the whole episode and advised him to lodge the complaint against Safexpress with Baddi Police Station so that the appropriated action could be taken against the culprits.
The application was drafted and lodged with Police Station, Baddi under acknowledgment by the police.
Anx:23 The reminder to Police Station, Baddi was again lodged with Police Station Baddi vide letter dt.14.9.2011 under registered post. They have recorded DDR No.41, Entry No. 58(A).
The official on duty has told that no arrest has been made so far and the matter is under investigation.
Anx: 24..24A (The consignment was opened in front of Surveyor, officials of Macleods Pharma and Mr.Chetan; tested and re sealed).
Discussions with Surveyor:M. B. Desai CC-15-28 Page 4 of 7
Mr. Shalender, Surveyor told that he went alongwith Mr. Chetan Bhai representative of M/s. Virdev Intermediates (P) Ltd. for survey at Safexpress of rejected consignment which was opened at Macleods in presence of a representative of Safexpress, member of Macleods and Mr. Chetan Bahi, the material was sent for testing and found contemplated, the drums were re sealed and sent back to the godown of Safexpress.
Findings/Conclusion:
On investigation of the case, scrutiny of Claim Papers submitted in support of Claim and discussions held with other persons met during the investigation, it is gathered and concluded that:
1. Xxxx
2. Xxxx
3. Xxxx
4. Xxxx
5. Xxxx
6. M/s. Macloeds Pharmaceuticals Ltd. had informed vide Email dt. 29.6.2011 that they have received the consignment of three drums out of which two are tempered open condition and rejected the delivery.
7. The matter was reported to Police at Baddi PS.
8. It made known that any skillful tempering of seals cannot be detected by our persons who are engaged in receiving the consignments in large number. The drums were in sealed condition and were forwarded to Baddi.
9. It is gathered on the basis of given circumstantial evidences that the consignment is tempered with while in Transit in the custody of Safexpress but the place of tampering cannot be pinpointed.
Looking to the above it is crystal clear that consignment is tempered with while in transit in the custody of Safexpress Pvt. Ltd but the place of tampering cannot be pinpointed.
6. Hon'ble National Commission in Bajaj Allianz General Insurance Co.Ltd.&Anr. Vs. Karthik Alloys Ltd. III (2018) CPJ 213 (NC) observe as under:
"The second reason given in for repudiating the claim was that one of the container bearing No. 3992406 was replaced by container No. 3992407. The State Commission noted in this regard that as per the goods received, shipping bill and other documents, the number of the container was 3992406. The State Commission rightly felt that the complainant could not have any control on the container after the vehicle had left its factory. If the container had been replaced during the transit while in custody of the transporter, such replacement cannot be attributed to the complainant nor it can be said to have been done in connivance with it. Therefore, I find no merit in the second ground on which the claim had been repudiated".M. B. Desai CC-15-28 Page 5 of 7
7. Looking to the above observation of the National Commission in the instance case also the consignee \ complainant could not have any control on the consignment during the course of transit and hence, if the consignment has been replaced during the transits while it was in the custody of the carrier then such responsibility cannot be attributed to the complainant \ consignee.
8. In view of the above discussion complainant is entitled to get the claim amount of his three claims i.e. total Rs. 33,87,555/- (Rs. 7,25,664/- + Rs. 21,93,867/- + Rs. 4,68,024/-) but as per the repudiation letter damage certificate is not produced by the complainant to the opponent and instead of damage certificate the certificate of facts has been produced by the complainant in which the transporter company is not accepting its liability.
9. Further as per the investigation report it is accepted that consignment is tempered with while in transit and therefore in the opinion of this Commission for not submitting the damage certificate if 25% amount deducted from total claim amount and awarded total amount of Rs. 25,40,666/- to the complainant along with 7% interest from the date of complaint then it would meet end of justice.
ORDER
(i) The complaint No. 28 of 2015 is partly allowed.
(ii) Opponent is ordered to pay Rs. 25,40,666/- (Rupees Twenty Five Lacs Forty Thousand Six Hundred and Sixty Six only) to the complainant as claim amount with interest at the rate of 7% from the date of filing of the complaint till its realization.
(iii) Opponent is ordered to pay Rs.10,000/- (Rupees Ten Thousand Only) to the complainant as costs of the complaint and Rs. 10,000/- (Rupees Ten M. B. Desai CC-15-28 Page 6 of 7 Thousand Only) towards the mental harassment and agony suffered by the complainant.
(iv) Opponent insurance company shall comply with this order within 60 days from the date of this order.
(v) Copy of the judgment and order be provided to the parties free of costs.
Pronounced in the open Court today on 28th July, 2023.
[Dr. J. G. Mecwan] [M. J. Mehta]
Member President (Acting)
M. B. Desai CC-15-28 Page 7 of 7