State Consumer Disputes Redressal Commission
The Oriental Insurance Company ... vs Gupta Textiles Mills, Jind Rod, Gohana ... on 29 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.14, 15, 16 & 17 of 2007 Date of Institution: 03.01.2007 Date of Decision: 29.05.2012 Appeal No.14 of 2007 The Oriental Insurance Company Limited, Regional Office, LIC Building IInd Floor Jagadhri Road, Ambala Cantt, through Shri R.K. P. Rajpal, Regional Manager. Appellant ((OP) Versus Gupta Textiles Mills, Jind Rod, Gohana District Sonepat through its proprietor Shri Prem Chand Gupta son of Shri Sant Lal, behind Old State Bank of Patiala, Gohana, Uttam Nagar, Baroda Road, Gohana, District Sonepat. Respondent (Complainant) Appeal No.15 of 2007 The Oriental Insurance Company Limited, Regional Office, LIC Building IInd Floor Jagadhri Road, Ambala Cantt, through Shri R.K. P. Rajpal, Regional Manager. Appellant ((OP) Versus Gupta Textiles Mills, Jind Rod, Gohana District Sonepat through its proprietor Shri Prem Chand Gupta son of Shri Sant Lal, behind Old State Bank of Patiala, Gohana, Uttam Nagar, Baroda Road, Gohana, District Sonepat. Respondent (Complainant) Appeal No.16 of 2007 The Oriental Insurance Company Limited, Regional Office, LIC Building IInd Floor Jagadhri Road, Ambala Cantt, through Shri R.K. P. Rajpal, Regional Manager. Appellant ((OP) Versus Gupta Textiles Mills, Jind Rod, Gohana District Sonepat through its proprietor Shri Prem Chand Gupta son of Shri Sant Lal, behind Old State Bank of Patiala, Gohana, Uttam Nagar, Baroda Road, Gohana, District Sonepat. Respondent (Complainant) Appeal No.17 of 2007 The Oriental Insurance Company Limited, Regional Office, LIC Building IInd Floor Jagadhri Road, Ambala Cantt, through Shri R.K. P. Rajpal, Regional Manager. Appellant ((OP) Versus Gupta Textiles Mills, Jind Rod, Gohana District Sonepat through its proprietor Shri Prem Chand Gupta son of Shri Sant Lal, behind Old State Bank of Patiala, Gohana, Uttam Nagar, Baroda Road, Gohana, District Sonepat. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri D.C. Kumar, Advocate for appellant. Shri R.D. Gupta, Advocate for respondent.. O R D E R
Justice R.S. Madan, President:
These four appeals bearing No.14,15,16 and 17 of 2007 have arisen out of the common order dated 25.08.2006 passed by District Consumer Forum while deciding four complaints bearing Nos.52,53,54 and 55 of 2000 as common question of law and facts is involved in all the cases.
Complainant Prem Chand Gupta proprietor of M/s Gupta Textile Mills, Jind Road, Gohana filed the above stated complaints against the appellant- Oriental Insurance Company Ltd. with the averments that the complainant firm had taken four Insurance Policies from the appellant-opposite party the details of which are given below:-
Cover Note No. Goods sent by railway from Gohana to -
Amount Consignee RR No. Dated 01 02 03 04 05 06 2861 Mosquito Nets Gohana to Ruurkella 4,89,216/-
DIGCIS Unit Raurkella 935918 22.6.98 2859 Mosquito Nets Gohana to Dhanbad 9,98,816/-
DIGCIS Unit BCCL, Jharia 935920 22.6.98 2860 Mosquito Nets Gohana to Durg 6,72,672/-
DIGCIS Unit BCCL 935919 22.6.98 2862 Mosquito Nets Gohana to Mukameghhat 78,400/-
DCCRPF Mukemehghat 935929 26.9.98 It is the case of the complainant that he had sent the goods in proper packing according to the market norms and as per Clauses 4,6,11,14,15 and 18 and the consignment was insured with the appellant-opposite party-Insurance Company with respect to the losses, damages, shortage, if any, occurred in the consignment as under:-
Malicious damage, institute strike clauses, institute theft pilferidge and non-delivery, inland transit rail and road, inland transit and basic cover etc. Complainant had sent 1200 mosquito nets in 60 bales against cover note No.2861 and 2450 mosquito nets against cover note No.2859 and further 1650 mosquito nets against cover note No.2860 and 1000 mosquito nets against cover note No.2862 to the consignee by railway from Gohana and the same were insured with the appellant-opposite party covering the risk from dispatch to delivery. According to the complainant, the mosquito nets were found short and in damaged condition at the destination due to which the complainant suffered huge financial loss, the details of which are given as under:-
Complaint No. Cover Note No. Mosquito nets found damaged Loss amounting to Rupees 52/24.3.2000 2861 624 2.44.608/-
53/24.3.2000 2859
-
93,624/-
54/24.3.2000 2860 1310 5,13,520/-
55/24.3.2000 2862 50 mosquito nets damaged & 7 short 22,344/-
After receiving the information from the consignee, the complainant informed the Insurance Company vide letter dated 24.10.1998/1.3.1999 in complaint No.52, 1.3.99 in complaint No.53, 24.11.1998 in complaint No.54 and 2.2.1999 in complaint No.55. The opposite replied to the complainant whereby the claim of the complainant was denied. Not satisfied with the reply sent by the appellant-Insurance Company, the complainant filed complaint after serving legal notice dated 11.2.2000 and sought direction to the opposite party to pay the insurable benefits with respect to the loss suffered by the complainant as detailed in para 4 of the impugned order.
Upon notice, the opposite party appeared and contested the complaints by filing written statements in separate complaints. It was admitted that the complainant had purchased the marine policies as stated by the complainant in complaints. However, it was stated that the risk of the insured goods was covered for all the transit risk from the date of dispatch upto seven days of reaching the goods at the destination or delivery whichever is earlier. But in the instant case no loss or damage was reported to have occurred as the consignment was received at consignees end in good and sound condition and discharge certificate to this effect was also given to the Railway Authorities. Thus, no loss or damage was reported to the appellant-opposite party during the insured period. The complainant had not lodged any monetary claim even with the Railway Authorities for the loss nor any notice to this effect was ever issued or served on the railway authorities. The consignment was sent on 22.6.1998 which reached at the destination on 18.8.1998 (complaint No.52/24.3.2000); similarly the consignment sent on 23.6.1998 reached at the destination on 9.10.1998 (complaint No.53/24.3.1998); sent on 26.9.1998 which reached at the destination on 11.11.1998 (complaint No.54/24.3.2000) and on 22.6.1998 which reached at the destination on 29.7.1999 (complaint No.55/24.3.2000), but no intimation was given to the appellant-opposite party nor any loss was got assessed from the approved surveyor whereas as per the terms and conditions of the Insurance Policy, the intimation was to be given to the Insurance Company without any delay. Though the complainant had received the intimation from the consignee on 14.10.1998, 17.11.1998, 29.01.1999 and 14.1.1998 but a letter was sent to the Insurance Company by the complainant on 01.03.1999. Thus, as no loss was intimated to the Insurance Company during the period of Insurance, the complainant is not entitled for any insurable benefits. Opposite Party has further taken the plea that no loss took place during the period of insurance nor any loss was reported, therefore, the Insurance Company rightly repudiated the claim of the complainant. Thus, denying any kind of deficiency in service, the opposite party prayed for dismissal of complaints.
On appraisal of the pleadings of the parties and the evidence brought on the record, District Consumer Forum accepted complaints by granting following relief to the complainant:-
..this Forum directs the respondent insurance company to make the payment of Rs.2,40,000/- against complaint No.52/24.3.2000, Rs.93,000/- against complaint No.53/24.3.2000, Rs.Five lacs against complaint No.54/24.3.2000 and Rs.22,300/- against complaint No.55/24.3.2000 and the above said amount is directed to be paid to the complainant with interest at the rate of 09% per annum from the date of filing of the present complaint originally. Since the complainant has been able to prove the deficiency in service on the part of the respondent insurance company, this Forum further directs the respondent insurance company to compensate the complainant to the tune of Rs.five thousands only in each complaint i.e. total Rs.twenty thousands only in four complaints, for rendering deficient services for causing unnecessary mental agony and harassment and further to pay a sum of Rs.two thousands in each complaint i.e. total Rs.eight thousands only under the head of litigation expenses.
Aggrieved against the order passed by the District Consumer Forum, the appellant-opposite party has filed these four appeals.
There is delay of 97 days in filing of each of the appeals the condonation of which has been sought by the appellant by moving separate applications in each of the appeal under Section 5 of the Limitation Act which is supported with the affidavits.
By now it is well settled law that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case any legal infirmity is committed by the District Consumer Forum while passing the impugned order, which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law. Reference is made to the observation made by the Honble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words Sufficient Cause have to be interpreted to advance the cause of justice. The Honble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-
11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
The perusal of the impugned order reflects that the District Consumer Forum while deciding the complainants has not given due consideration to the real controversy of the cases and has not appreciated the facts and circumstances of the case and the evidence brought by the parties. Therefore, we think it a fit case to condone the delay. Hence, the delay of 97 days in each of the appeal is condoned.
We have heard learned counsel for the parties and perused the case files.
Learned counsel appearing on behalf of the appellant has argued that as per terms and conditions of the policy, the risk is over when the consignment reaches the destination or seven days after the receipt of the consignment by the consignee. In support of his argument, learned counsel for the appellant has referred to Exclusion Clause of the Policy reproduced as under:-
EXCLUSIONS
2.
In no case shall this insurance cover 2.1 loss, damage or expense attributable to willful misconduct of the assured 2.2 ordinary leakage, ordinary loss in weight or volume or ordinary wear and tear of the subject matter insured] x x x DURATION This insurance attaches from the time the goods leave the warehouse and/or the store at the place named in the policy for the commencement of transit and continues during the ordinary course of transit including customary transshipment, if any, i.
xxx ii.
In respect of transits by Rail only or Rail and Road, untill expiry of 7 days after arrival of the railway wagon at the final destination railway station or iii.
In respect of transits by Road only untill expiry of 7 days after arrival of the vehicle at the destination town named in the policy whichever shall first occur.
N.B. 1. The period of 7 days referred to above shall be reckoned from the midnight of the day of arrival of railway wagon at the destination railway station or vehicle at the destination town named in the policy.
2. Transit by Rail only shall include incidental transit by Road performed by Railway Authorities to or from Railway Out Agency.
BENEFIT OF INSURANCE
7. This insurance shall not inure to the benefit of the Carrier or other bailee.
MINIMISING LOSSES
8. It is the duty of the Assured and their servants and agents in respect of loss recoverable hereunder.
8.1 to take such measures as may be reasonable for the purpose of averting or minimizing such loss and 8.2 to ensure that all rights against carriers, bailees or other third parties are properly preserved and exercised by lodging a monetary claim against railway/road carriers/bailees within six months from the date of railway/lorry receipt or as prescribed by the relevant statute and the underwriters will in addition to any loss recoverable hereunder, reimburse the Assured for any charges properly and reasonably incurred in pursuance of these duties.
X x x Undisputedly, in the instant case the goods were dispatched by the complainant on 22.6.1998 which reached at the destination on 18.8.1998 in two cases, in one case the goods were sent on 22.6.1998 which reached at the destination on 29.7.1998 and in fourth case the goods were sent on 26.9.1998 which reached at the destination on 11.11.1998 but no intimation was given to the appellant-opposite party nor any loss was got assessed from the approved surveyor and the complainant informed the Insurance Company on 01.03.1999 whereas as per the terms and conditions of the Insurance Policy, the intimation was to be given to the Insurance Company without any delay as the risk of the insured goods was covered for all the transit risk from the date of dispatch upto seven days of reaching the goods at the destination or delivery whichever is earlier. Thus, in the instant case the complainant violated the terms and conditions of the Insurance Policy.
The other contention raised on behalf of the appellant-opposite party is that as per Section 9 of the Carriers Act, the complainant should have implead the Carriers as party in the instant case to get insurable benefits from the said carriers. Support has been taken from the judgment cited as ORIENTAL INSURANCE CO. LTD. & ANR. Versus GANPATI SOLVEX (P) LTD. I(2003) CPJ 40 (SCDRC, BHOPAL). The relevant parts of which are as under:-
5. This Commission in Appeal No.1062/1992 decided on 20.3.2001, M/s B.K. Traders v. Divisional Manager, M/s United India Insurance Co. Ltd. & Anr., in similar circumstances considered the question of liability of the Insurance Company and observed in paras 9 to 14 and 16 thus:
9. Section 9 of the Carriers Act raised an inference of legal presumption of negligence due to the accident and the burden is on the carrier to prove the absence of negligence. The consignee has got a right to claim the amount from the carriers even if the goods loaded and carried in the carrier are insured or covered by marine transit policy. Instead of suit in summary proceedings , the consignee or the consignor can institute the proceedings before the Consumer Fora under the Act to make a claim against a common carrier. See, the decisions of the Superme Court in M/s Economic Transport Organisation etc vs. Dharwad Distt. Khadi Gramudyog Sangh etc., I(2000) CPJ 41 (SC)(, and Patel Roadways Ltd. v. Birla Yamaha, Ltd. I(2000) CPJ 42 (SC).
10.
The policy is subject to undernoted clauses attached which form part of the policy. Evidently, in relation to inland transit, rail/road, condition No.8 of clause A of the policy relates to minimizing the losses, which we quote:
MINIMISING LOSSES
8. It is the duty of the Assured and their servants and agents in respect of loss recoverable hereunder.
8.1 to take such measures as may be reasonable for the purpose of averting or minimizing such loss and 8.2 to ensure that all rights against carriers, bailees or other third parties are properly preserved and exercised by lodging a monetary claim against railway/road carriers/bailees within six months from the date of railway/lorry receipt or as prescribed by the relevant statute And the underwriters will in addition to any loss recoverable hereunder, reimburse the Assured for any charges properly and reasonably incurred in pursuance of these duties.
In ORIENTAL INSURANCE CO. LTD. & ANR. Versus GANPATI SOLVEX (P) LTD. (Supra) it has been observed that:-
12. This Commission in case of M/s Siddharth Soya v. The New India Insurance Co. Ltd., 2000(1) CPR 17, has also considered the question in a loss caused to the consignment by railway and after considering the clause of minimizing the loss observed that if the complainant wanted to be indemnified the complainant ought to have taken steps as required under the terms of the policy to minimize the loss which amounts to breach of the policy.
Therefore, in the circumstances, in our opinion, it cannot be said that repudiation of the claim was without application of mind, not in good faith and on justifiable ground. Hence, we do not find any deficiency in service on the part of the opposite party.
13. In view of the above, in our opinion, the District Forum rightly held that the carrier was a necessary party, therefore, the complainant was liable to be dismissed on this ground alone.
16. Moreover, in the present case the appellant has not taken any action against the carrier under the provisions of the Carriers Act, 1985. In case the Insurance Company is made liable to pay the amount it would not be able to recover the amount from the carriers. Considering overall circumstances, we are of the view that no deficiency in service can be found on the part of the Insurance Company, in repudiating the claim which was after due application of mind.
The facts of the instant case are fully attracted to ORIENTAL INSURANCE CO. LTD. & ANR. Versus GANPATI SOLVEX (P) LTD. case (Supra). In the instant case it has been established on the record the goods were dispatched by the complainant on 22.6.1998, 22.06.1998, 22.6.1998 and 26.9.1998 which were delivered at the destination on 18.8.1998, 18.08.1998, 29.7.1998 and on 11.11.1998 but neither the complainant informed the appellant-Insurance Company nor any loss was got assessed from the approved surveyor, rather, the complainant informed the Insurance Company on 01.03.1999 whereas the risk of the insured goods was covered for all the transit risk from the date of dispatch upto seven days of reaching the goods at the destination or delivery whichever is earlier as per the terms and conditions of the Insurance Policy. Thus, the complainant violated the terms and conditions of the Insurance Policy. It has been settled by the Honble Apex Court in SURAJ MAL RAM NIWAS OIL MILLS (P) LTD. versus UNITED INDIA INSURANCE COMPANY & ANR, IV(2010) CPJ 38 (S.C.) that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity. It has further been held that the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. Non-impleading of the carrier of the goods as a party has also damaged the claim of the complainant in view of the judgments rendered in ORIENTAL INSURANCE CO. LTD. & ANR. Versus GANPATI SOLVEX (P) LTD. case (Supra). Thus, the appellant-The Oriental Insurance Company Limited cannot be held liable to pay any insurable benefits to the complainant.
It is pertinent to mention here that the proprietor of M/s Gupta Textiles Mills has tried to manufacture letters of correspondence allegedly written to the Branch Manager vide letters dated 24.10.1998, 24.11.1998, 2.2.1999 and 1.3.1999 so as to bring its claim within the limitation of seven days and the said letters alleged to have been received on the same date by the Insurance Company. To our utter surprise, when one goes through these letters carefully, it transpires that it does not find mention about the arrival of the goods at the destination and its reporting to the mills, no date has been mentioned. Rather a stamp has been put on the letter of the Oriental Insurance Company which does not bear the signature of any of the official of the Insurance Company. It is very easy to put a stamp of the Company on such letters. If these letters were ever addressed to the Branch Manager of the Oriental Insurance Company, in that eventuality the complainant would have summoned the record from the Insurance Company but they failed to do so. M/s Gupta Textiles have since filed four claims and in all the claims documents have been manufactured, therefore, we feel that in order to bring its claims within the period of duration as mentioned in the earlier part of the this order/judgment, this clever device was adopted by the complainant which cannot be allowed to sustain. A man can tell lie but the documents do not. District Consumer Forum has failed to appreciate the above stated facts of the instant case in its true perspective. Hence, the impugned order passed by the District Consumer Forum cannot be allowed to sustain.
As a sequel to our aforesaid discussions, these appeals are accepted, impugned order is set aside and all the complaints filed by the complainant are dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing these appeals be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
The original judgment be attached with appeal No.14/2006 and certified copies be attached with the other three appeals.
Announced: Justice R.S. Madan 29.05.2012 President B.M. Bedi Judicial Member