State Consumer Disputes Redressal Commission
Manish Gupta vs National Insur. Co. Ltd. on 22 February, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.2012/09
Instituted on : 25.05.2012
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 SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri S.K. Gupta, Advocate for complainant.
Shri Vinod Deshmukh, Advocate for O.P.
ORDER
Dated : 22/February/2018 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 following reliefs :
1. To direct the O.P. to pay insured amount Rs.92,25,000/-
(Rupees Ninety Two Lakhs Twenty Five Thousand).
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2. To direct the O.P. to pay amount of Rs.4,60,750/- towards interest, amount of Rs.1,18,000/- towards rent paid, Rs.1,00,000/- towards compensation for mental agony, Rs.5,000/- towards cost of litigation, Rs.20,000/- towards advocate fees.
3. The O.P. be directed to pay interest @ 18% p.a. on Rs.99,18,750/-.
4. To award any other relief, which this Commission deems fit.
2. Brief facts of the complaint of the complainant 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, // 3 // 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 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/-. 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 // 4 // 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 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 // 5 // 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 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/-, but the O.P. did not pay amount to the complainant, hence the instant complaint.
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 // 6 // 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 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 has filed documents. Annexure C-1 is Bilty dated 17.05.010 issued by Raipur Delhi Roadways, Annexure C-2 is Proposal / Declaration Form for Marine Cargo /Inland Transit Insurance, Annexure C-3 is Policy Schedule, Annexure C-4 is intimation given by the complainant regarding accident to the O.P. on 19.05.2010, Annexure C-5 is intimation given by the complainant to the Officer Incharge, Police Station, Phulgaon, District Durg on 20.05.2010, // 7 // Annexure C-6 is Marine Claim Form, Annexure C-7 is information given to the Insurance Company regarding actual position on 24.05.2010, Annexure C-8 is letter dated 20.05.2010 sent by the owner of truck to the Officer Incharge, Police Station Phulgaon, Outpost Anjora, District Durg (C.G.), Annexure C-9 is letter dated 26.07.2010 sent by the complainant to the O.P. for making payment of the claim, Annexure C- 10 is letter dated 16.08.2010 sent by the complainant to the O.P. for making payment of the claim amount, Annexure C-11 is Claim Bill submitted by the complainant to the O.P., Annexure C-12 is letter dated 30.05.2011 sent by the complainant to the O.P., Annexure C-13 is letter dated 23.06.2011 sent by the O.P. to the complainant, Annexure C-14 is letter dated 25.03.2011 sent by the O.P. to the complainant treating his claim as No Claim, Annexure C-15 is letter dated 05.07.2011 sent by the complainant to the O.P., Annexure C-16 is letter dated 20.08.2011 sent by the complainant to the O.P., Annexure C-17 is letter dated 08.11.2011 sent by the complainant to the O.P., Annexure C-18 is notice dated 16.04.2012 sent by Shri S.K. Gupta, Advocate on behalf of the complainant to the National Insurance Co. Head Office - 3, Kolkata 700071, Through : General Manager and National Insurance Co. Ltd. Divisional Office, Raipur, Through Branch Manager. The complainant 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 // 8 // (M.P.) Case No.15A/2011 E.D in the case of Jai Badri Vishal Graphics vs. Monotech Systems Limited and others, affidavit of Manoj Kumar Gupta. After remand of the case from Hon'ble National Commission, the complainant has filed documents. Annexure C-19 is Certificate of registration of establishment of Candy Digital Plates, issued by Municipal Corporation, Raipur (C.G.), Annexure C-20 is letter dated 01.06.2012 sent by Ajeet Pareek, Manager Marketing, Monotech Systems Ltd. to M/s Print Zone, Agra, Annexure C-21 is Report of M/s J. Basheer & Associates Surveyors Pvt. Ltd., Annexure C-22 is Certificate of Registration, Annexure C-23 is Good Carrying Vehicle Certificate Cum Policy Schedule, issued by Reliance General Insurance Co. Ltd. in favour of Manoj Kumar Gupta, Annexure C-24 is First Information Report, Annexure C-25 is Final Report, Annexure C-26 is Final Survey Report of Truck No.M.P.07-G-2682, Annexure C-27 is copy of cheque provided by the Insurance Company to the owner of the truck, affidavit of Manish Gupta. The complainant also filed Affidavit of Manoj Kumar Gupta, Truck Operator dated 04.01.2018 and Manish Gupta, the complainant dated 05.01.2018.
5. The O.P. has filed documents. The documents are letter dated 25.03.2011 sent by the O.P. to the complainant, letter dated 06.08.2010 sent by T.P. Jain, Managing Director, Monotech Systems Ltd. to the Insurance Company, letter dated 06.09.2010 sent by M. Abdul Razack, Advocate to the Divisional Manager, National Insurance Company // 9 // Ltd., Raipur, email dated 11.11.2010 sent by J. Basheer & Associates Surveyors Pvt. Ltd. to Monotech, email dated 16.11.2010 sent by J. Basheer & Associates Surveyors P. Ltd. to A.B. Mahapatra, bilty dated 17.05.2017 issued by Raipur Delhi Roadways, Report dated 18.11.2010 of M/s J. Basheer & Associates Surveyors Pvt. Ltd., Marine Survey Report (Preliminary) dated 24.05.2010 of Hitesh H. Chitalia, Surveyor and Loss Assessor.
6. Initially the complaint filed by the complainant was dismissed by this Commission vide order dated 31.05.2014. The complainant filed First Appeal No.389 of 2014 before Hon'ble National Commission and vide order dated 01.11.2017, Hon'ble National Commission the appeal was accepted and the impugned order dated 31.05.2014 passed by this Commission was set aside and the matter is remanded back to the State Commission with the direction that the State Commission should allow both the parties to file fresh evidence, if any, in their favour including any additional documents and then decide all the issues involved in the matter after giving an opportunity to the parties.
7. In compliance of direction of the Hon'ble National Commission, the complainant filed affidavit dated 04.01.2018 of Manoj Kumar Gupa and of Manish Gupta dated 05.01.2018 as additional evidence but the O.P. did not file any affidavit and document in its favour.
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8. Shri S.K. Gupta, learned counsel appearing for the complainant has argued that in the repudiation letter, the O.P. had taken ground that the complainant do not have any insurable interest on the subject matter of insurance and the incident appears to have taken place under mysterious circumstances and purposeful motives. The complainant has also not responded to the various letters of the Surveyors for his assessment. But in the written statement, the O.P. has taken additional ground. The O.P. is only entitled to take ground, which is taken in the repudiation letter. Some issues have been raised by the O.P. for the first time in the written statement, which is afterthought and cannot be considered by this Commission. Fresh issues also cannot be raised by the O.P. He placed reliance on New India Assurance Co. Ltd. Vs. Priya Blue Industries Pvt. Ltd. 2011 AIR SCW 1831 = (2011) 4 SCC 231. Shri S.K. Gupta, has further argued that the complainant has insurable interest on the insured articles, therefore, the complainant is entitled to claim compensation from the O.P. because the articles which are insured with the O.P. was booked by the complainant and the complainant is consignor and consignee, therefore, he has insurable interest / right and he booked the above articles in the truck bearing registration No.M.P.07-G-2682, through which the insured articles were transported, and the truck met with an accident, due to which the insured articles were burnt. The matter was reported , by the owner of the truck owner to outpost chowki , Anjora of Police Station, Phulgaon, // 11 // where Offence No.265 was registered. The complainant also gave written report to the police on 20.05.2010. The complainant has insurable interest. Shri Gupta also relied on Section 7 of The Marine Insurance Act, 1963.
9. Shri Gupta further argued that the complainant obtained the insurance policy from the O.P. which covers all risks for sum assured Rs.92,25,000/- and the complainant paid additional premium. The complainant has filed his affidavit as well as affidavit of Manoj Kumar Gupta owner of truck bearing registration No.M.P.07-G-2682, which was carrying insured goods. The ground taken by the O.P. that the incident appears to have taken place under mysterious circumstances and purposeful motives, is not acceptable. Shri Hitesh H. Chitalia, Surveyor and Loss Assessor gave only Preliminary Marine Survey Report and the same is not supported by its author, therefore, Preliminary Survey Report of Hitesh H. Chitalia, is not reliable. Shri Gupta placed reliance on National Insurance Company Limited Vs. Mohd. Ishaq, I (2012) CPJ 538 (NC). 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 Surveyor is not reliable and not acceptable. The insured articles was valued to the tune of // 12 // 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, therefore, 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 Maharishi Heaven Earth Vs. National Insurance Co. Ltd. 2009 STPL (CL) 3802 (NC) [2009 (4) CPR 312 (NC]; The Unitted India Insurance Co. Ltd. and Anr. Vs. M/s Sarin Industrial Corporation, 2011 STPL (CL) 2221 NC [2011 (3) CPR 315 (NC)]; United India Insurance Co. Ltd. Vs. Savikar Plyboards Limited, 2008 STPL (CL) 856 NC = (2008) I CPJ 154 (NC); United India Insurance Co. Ltd. Vs. Hasan Sultan Nadaf, 1992 STPL (CL) 605 = (1992) 2 CPR 716 = 1992 (3) CPJ 64 NC; Sitha Vedanayagam Vs. New India Assurance Co. Ltd. & Ors. 1994 STPL (CL) 333 NC = (1995) I CPJ 41 NC; Ozma Shipping Company Vs. Oriental Insurance Co. Ltd. & Anr. 2001 STPL (CL) 33 NC = (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 77= = 2010 AIR (SCW) 514 = AIR 2010 SC (Supp) 343]; Diwaliben Vasharambhai Sikotaria Vs. New India Assurance Co. Ltd. 2005 STPL (CL) 172 NC = (2005) 3 CPJ 17 NC and Babamian Fakir Wadkar Vs. United India Insurance Co. Ltd., 2008 STPL (CL) 252 NC = 2008 (2) CPR 110 (NC) = 2008 (2) CPJ 142 (NC); G. // 13 // Kothainachiar Vs. United India Insurance Co. Ltd. Vs. United India Insurance Co. Ltd., IV (2007) CPJ 347 (NC) (Larger Bench); Metal Powder Co. Ltd. Vs. Oriental Insurance Co. Ltd. (2014) 5 SCC 771; Rashmi Metaliks Ltd. Vs. Kolkata Municipla Corporation, (2013) 10 SCC 95; National Insurance Co. Ltd. Vs. Arihant Packaging 2 (2013) CPJ 417 (NC); National Insurance Co. Ltd. Vs. Giriraj Proteins, IV (2012) CPJ 151 (NC); New India Assurance Company Ltd. Vs. Dimpsomania Exports, II (2013) CPJ 478 (NC); Oriental Insurance Co. Ltd. Vs. Suresh Singh, II (2009) CPJ 216 (NC); New India Assurance Co. Ltd. Vs. P.P. Khanna, II (1997) CPJ 1 (NC) (Five Member Bench);
10. 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 has no insurable interest or right on the insured articles. The complainant had not provided the relevant documents to the Surveyor. Even the complainant could not 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. The complainant is not owner of the said articles, therefore, he has no insurable interest or right on the said articles. Mr. // 14 // M. Abdul Razack, Advocate on behalf of M/s. Monotech Systems Ltd. sent letter dated 06.09.2010 to The Divisional Manager, National Insurance Co. Ltd. Raipur, in which he specifically mentioned that his client states that they suspect malafide and foul play in the said accident. His client also states that since the subject matter of the insured consignment is now seized of by the Hon'ble High Court of Madras in C.S. No.715 of 2010, therefore, the claim of the complainant cannot be settled. The incident appears to have taken place under mysterious circumstances. Report of M/s J. Basheer & Associates Surveyors Pvt. Ltd. is supported by affidavit of Mr. J. Basheer, Chief Surveyor at J. Basheer and Associates Surveyors Pvt. Ltd., therefore, his report is reliable and can be used for proper adjudication of the case. The complainant has not been able to prove his case. Shri Deshmukh, learned counsel for the O.P. has further argued that the complainant himself pleaded that he is consignor and consignee of the articles and he loaded the articles in truck bearing registration No.M.P. 070-G-2682, therefore, the provisions of of The Indian Carriers Act, 1865 are applicable. The notice under Section 10 of The Indian Carriers Act, 1865, is mandatory but in the instant case no such notice was given to the carrier by the complainant, and common carrier has not been made party, whereas it is necessary party in the instant case, therefore, for want of mandatory notice and necessary party, the complaint of the complainant, is liable to be dismissed.
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11. We have heard learned counsel appearing for both the parties and have also perused the documents filed by the parties in the complaint case.
12. Initially vide order dated 31.05.2014, the complaint of the complainant was dismissed by this Commission. The complainant filed First Appeal No.389 of 2014 before Hon'ble National Commission and vide order dated 01.11.2017, Hon'ble National Commission allowed the appeal and set aside order of this Commission and remanded back the matter to this Commission with directed to allow both the parties to file fresh evidence if any, in their favour including documents and after giving opportunity to the parties of being heard, decide all the issues involved in the matter. After remand of the case, the complainant has filed affidavit of Manoj Kumar Gupta, and Manish Gupta (complainant).
13. On the basis of the direction given by Hon'ble National Commission, the parties were provided opportunity to file documents and the parties were heard on merits of the case.
14. The complainant has filed document Annexure C-14, which is photocopy of letter dated 25.03.2011 sent by the Divisional Manager, National Insurance Company, Divisional Office, Raipur to Manish Gupta (complainant), in which it is mentioned thus :-
// 16 // "We refer letter No.JBPL/114/10-11 dt. 18/11/2010 of M/s J. Basheer & Associates Surveyors Pvt. Ltd. (Surveyor appointed to assess your reported loss) addressed to you in connection with you above mentioned claim.
Considering the facts and observation of the Surveyor in page No.10, it is established that you do not have any insurable interest on the subject matter of insurance and the incident appears to have taken place under mysterious circumstance and purposeful motives. You have also not respondent to the various letters of the Surveyors for his assessment.
Based on the above, we closed your above claim file treating the claim as NO CLAIM."
15. It shows that the O.P. raised an objection that the complainant has no insurable interest on the subject matter of insurance and the incident appears to have taken place under mysterious circumstances. The complainant did not give response to the various letters sent by the Surveyor. The O.P. has specifically mentioned in the repudiation letter dated 25.03.2011, that the incident, as pleaded by the complainant, appears to have taken place under mysterious circumstances. In Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition 2005 at page 3114 and Blacks Law Dictionary Seventh Edition at page 1042, "Mysterious disappearance" has been defined as "A loss of property under unknown or baffling circumstances that are difficult to understand or explain." In the repudiation letter dated 25.03.2011 also, the O.P. had raised objection // 17 // that the incident was done in mysterious circumstances and the same ground was taken by the O.P. in its written statement, therefore, it cannot be held that the O.P. had taken a new defence or additional defence in it's written statement.
16. The O.P. has filed copy of letter dated 06.08.2010 sent by Shri T.P. Jain, Managing Director of Monotech Systems Ltd. to The Senior Divisional Manager, National Insurance Company Limited, Raipur (C.G.) in which it is mentioned thus :-
"This refers to our telecom on 4th instant.
We have to mention that we have agreed to purchase 1 No. basysPrint UV Setter 841 Digital Exposure Unit Serial No.0024 along with G & J Plate Processor, Rip & Work flow Software from M/s. Jai Badri Vishal Graphix, Gwalior / K.D. Digital Plates, Raipur vide our Memorandum of Understanding dated 24th April 2010 and confirmed / accepted by them by email on 25th April 210. The machinery was agreed to be sold to us for Rs.36,56,461.
We have made the full payment to the above company and they have not delivered the machines to us at Nagpur as per the agreed terms. We have come to know from reliable sources that they have made insurance for this machine with you. We shall like to know if insurance policy for the above goods has been made by mentioning our name or in different name as we are not able to get correct information from the above firm despite of several reminders and they are not returning the money back to us.
We shall be grateful if the information regarding the insurance claim can be provided to us so that we can take further necessary action to recover our amount form them.
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17. The O.P. has filed copy of notice dated 06.09.2010 sent by Mr. M. Abdul Razack, Advocate on behalf of M/s Monotech Systems Ltd. represent by its Managing Director Mr. T.P. Jain to the Divisional Manager, National Insurance Company Ltd. Raipur (C.G.), in which it is mentioned thus :-
"Under instructions from our client M/s Monotech Systems Ltd., represented by its Managing Director Mr. T.P. Jain, having their registered office at No.66, 3rd Floor, City Centre, Thirumalai Road, T. Nagar, Chennai - 600 017, we do hereby issue the following notice to you :-
Our client states that they entered into an MOU on 24.04.2010 with M/s Jai Badri Vishal Graphix, Gwalior for buy back of 1 No. basysPrint UV Setter 841 Digital Exposure Unit along with G & J Plate Processor, Rip & Workflow Software for Rs.36,56,461/-. Our client further states that though M/s. Jai Badri Vishal Graphix, Gwalior received the entire sum of money from our client, they failed to deliver the machine to our cline with some malafide reasons. Our client states that they had filed a criminal case against M/s. Jai Badri Vishal Graphix, Gwalior, with the Central Crime Branch, in Crime No.280/2010 and also filed a Civil Suit against them before Hon'ble High Court of Judicature, Madras in C.S. No.715 of 2010.
Our client states that they reliably understood and subsequently confirmed with you that the subject consignment meant to our client was transported by sister concern of M/s Jai Badri Vishal Graphix, Gwalior namely M/s K.D. Digital Plates, Raipur and the same was insured with you vide Policy No.285100/21/00000006 dated 18.05.2010 for transit from Raipur to Nagpur. Our client states that they reliably now understood that the truck transported the said consignment met with accident and claim is made with you. Our client states that they suspect malafide and foul play in the said accident. Our client also states that since the subject matter of the insured consignment it now seized of by the Hon'ble High Court of Madras in C.S. No.715 of 2010 and also be the // 19 // Central Crime Branch Police, Chennai in Crime No.280 of 2010. You are hereby called upon by our client not to settle any insurance claim in respect of the aforesaid policy No.285100/21/10/4500000006 dated 18.05.2010 till the disposal of the above cases."
18. Looking to the letter dated 06.08.2010 sent by Shri T.P. Jain, Managing Director of Monotech Systems Ltd. to The Senior Divisional Manager, National Insurance Company Limited, Raipur (C.G.), it appears that Monotech Systems Limited had agreed to purchase insured articles i.e. 1 No.basyPrint UV Setter 841 Digital Exposure Unit Serial No.0024 along with G & J Plat Processor, Rip & Workflow software from M/s . Jai Badri Vishal Graphix, Gwalior / K.D. Digital Plates, Raipur vide Memorandum of Understanding dated 24th April 2010 and confirmed / accepted by them by email on 25th April, 2010. The machine was agreed to be sold to Monotech Systems Ltd. for Rs.3656,461/-.
19. M/s Jai Badri Vishal Graphix is a registered partnership firm through its partner Manish Gupta (complainant of the instant complaint) filed Civil Suit No.15A/2011 before 5th Additional District Judge, Gwalior (M.P.) against Monotech Systems Limited and Others and vide order dated 16.09.2011, learned 5th Additional District Judge, Gwalior (M.P.) held that the matter is pending before the Hon'ble High Court of Madras, therefore, the matter was stayed as per // 20 // provisions of Section 10 of CPC till disposal of the petition pending before Hon'ble Madras High Court.
20. In the instant complaint, the complainant pleaded in para 4 that the complainant booked articles on 17.05.2010 with Raipur Delhi Roadways Transport vide Bilty No.2291, in which the complainant is consignor and consignee. Looking to the above document, it appears that the complainant booked the articles and the complainant himself is consignor and consignee. Looking to the Annexure C-1 and pleading of the complainant, it appears that Manish Gupta, is consignor and consignee and he booked the articles in truck and according to the complainant, the articles was not delivered to the consignee and was damaged, therefore, in the instant case, the provisions of The Indian Carriers Act, 1865 are applicable. Hence the notice under 10 of The Indian Carriers Act, 1865, is mandatory to the Carriers
21. Section 10 of The Indian Carriers Act, 1965 runs thus :-
"10. Notice of loss or injury to be given within six months.- No suit shall be instituted against a common carrier for the loss of, or injury to [goods (including container, pallets or similar article of transport used to consolidate goods) entrusted] to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.]
22. In Patel Roadways Ltd., vs. Birla Yamaha Ltd. (2000) 4 Supreme Court Cases 91, Hon'ble Supreme Court has observed thus:
// 21 // "30. From the provisions of the Consumer Protection Act noted in the foregoing paragraph the position is clear that the consumer disputes redressal agencies, i.e. District Forums, State Commissions and the National Commission are vested with powers of adjudication of all types of consumer disputes. No exception is made in case of consumer disputes in which the allegations made in the complaint regarding deficiency of service causing damage to or loss of the goods are contested. Indeed finality is attached to the orders of the redressal agencies and provision is made for execution and implementation of the orders passed by them treating such orders as decree of the court. It is relevant to state here that on a perusal of the provisions of the Act it is clear that the scheme of the statute is to provide a hierarchy of redressal forums for attending to the grievances of consumers regarding deficiency in service promptly and give finality to the orders passed by the agencies. Therefore, it is difficult to accept the contention that the dispute redressal agencies provided in the Consumer Protection Act are not forums which have jurisdiction to entertain the complaints in which claims for loss or damage to goods entrusted to a carrier for transportation is seriously disputed."
23. In P. Rama Rao vs. P. Nirmala and Others, (1997) 1 Supreme Court Cases 757, it is observed by Hon'ble Supreme Court that "Notice under Section 10 of the Carriers Act has to be issued, when the damage was caused to the goods, which is being carried due to an accident covered under the policy of insurance. So, a notice is required to be issued to the Insurance Company within six months from the date of the knowledge of the injury to or loss of the goods entrusted for carriage before filing the suit. In this case, such a notice was issued after expiry of six months from the date of the accident. The appellant - petitioner stepped into the shoes of the carrier i.e., P. Notice // 22 // issued by the Indian Oil Corporation to the petitioner as well as common carrier and the Insurance Company would not be construed to be a notice under Section 10 . Under these circumstances, it must be held that the suit against the Insurance Company would not lie, though a suit may lies against the common carrier."
24. In the case of Arvind Mills Ltd. Vs. Associated Roadways, 2004 CTJ 1041 (Supreme Court) (CP), Hon'ble Supreme Court has observed thus :-
"8. .................... Merely because the procedure under the Consumer Protection Act is summary in nature does not in any way warrant the abrogation of the requirement to serve notice under Section 10 of the Carriers Act before fastening any liability under that Act on the carriers."
25. In the instant case, the complainant has not sent notice under Section 10 of The Indian Carriers Act, 1865 to the common carrier and the common carrier is necessary party in the instant case, but the complainant did not make common carrier as party. The complainant has not complied with the mandatory provisions of Section 10 of The Indian Carriers Act, 1865. For want of service of mandatory notice, the complaint of the complainant is not maintainable.
26. According to the complainant the truck bearing registration No.M.P.07-G--2682 was loaded with the articles in the intervening night // 23 // 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 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 // 24 // 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 egksn;] iqfyl Fkkuk Qwyxkao ftyk nqxZA fo"k; %& esjh e'khu vkfn ty dj u"V gksus fo"k;d egksn;] fuosnu gS fd eSus viuh e'khu o ?kjsyw lkeku jk;iqj ls ukxiqj ys tkus gsrq jk;iqj fnYyh jksMost Hkuiqjh ls cqd fd;k Fkk] ftldk fcYVh uacj 2291 FkkA mDr eky e'khu vkfn Vªd dzekad MP07-G 2682 esa fnukad 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 xksnke fLFkr yk[ks uxj] jk;iqj ls yksM gqvk FkkA blds ckn fnukad 18-05-2010 dks jkf= yxHkx 8-00&8-30 cts Vªd ekfyd dk Qksu vk;k Fkk fd xkM+h ¼Vªd½ nqxZ vkSj jktukanxkaao ds chp ,DlhMsUV gks x;k gS vkSj Vªd esa 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 gsrq Mªk;oj dks gh ns fn;k Fkk] mDr leLr dkxtkr Hkh ty x;sA vr% ;g vkosnu Jheku dh vksj lwpukFkZ ,oa vko';d dk;Zokgh gsrq izLrqr gSA fuosnd fnukad 20-05-2010 euh'k xqIrk fu dSyk'k iqjh fVdjkikjk jk;iqj ¼N-x-½"
27. In Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 Supreme Court Cases 704, Hon'ble Supreme Court observed thus :-
// 25 // "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 decided between the parties. But when there is a specific term in contract, the parties are bound by the terms in the contract."
28. In the instant, the Shri J. Basheer, Chief Surveyor at J. Basheer and Associates Surveyors Pvt. Ltd. gave detailed Survey Report dated // 26 // 18.11.2010 and the report is also supported by affidavit of Shri J. Bashher. In the Survey Report, it is mentioned thus :-
"Our Observation / Comments :
...................
The above dealings of yours only demonstrate that you have no Insurable Interest in the subject machinery / equipment as it had been sold out to another party prior to availing Insurance Policy from National Insurance Co. Ltd., Divisional Office, Raipur and suppressing such fact to the Underwriter.
Further, Machinery / Equipment value of Rs.91,95,000/- as declared for insurance purpose was very highly exaggerated as against the Market Value of the second hand Machinery / Equipment, as agreed to sell by you to a willing buyer, for a price of Rs.36,56,461/-, as on 25/04/10.
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.
29. In the instant case, Shri Hitesh H. Chitalia, Surveyor and Loss Assessor, submitted Marine Survey Report (Preliminary) dated 24.05.2010 to the O.P., in which it is mentioned thus :-
"10. CONCLUSION :
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."
// 27 //
30. The M/s J. Basheer & Associates Surveyors P. Ltd. has mentioned in its report that the incident is highly doubtful. The Surveyor's Report is genuine and reliable document. The O.P. has filed affidavit of Shri J. Basheer, Chief Surveyor, at J. Basheer and Associates Surveyors Pvt. Ltd. in support of Report of the Surveyor, therefore, it cannot be brushed aside lightly.
31. In the instant case, the complainant has filed affidavit dated 04.01.2018 of Manoj Kumar Gupta, who is owner of truck bearing registration No.M.P.07-G-2682. In the affidavit, Manoj Kumar Gupta stated that he had submitted his claim before Reliance General Insurance Co. Ltd.he filed claim before Reliance General Insurance Co.
Ltd., who appointed Chhatrapal Sao, as Spot Surveyor and thereafter appointed Ravinder Bagga as Final Surveyor. On the basis of Survey Report, Reliance General Insurance Co. Ltd. had settled his claim and he received the amount.
32. Looking to the above affidavit of Manoj Kumar Gupta, it appears that he obtained the claim amount from Reliance General Insurance Company Limited in respect of truck, but in the instant case, the complainant has not filed Spot Survey Report of Chatrapal Sav and Final Survey Report of Ravinder Bagga. For want of Survey Reports, it cannot be held that Manoj Kumar Gupta received the amount regarding the damages of the truck in question. The above Survey // 28 // Report is essential for proper adjudication of the case. The complainant has been afforded opportunity to file documents, but the complainant has only filed affidavit of himself and of Manoj Kumar Gupta, but the complainant has not filed Spot Survey Report of Chatrapal Sav and Final Report of Ravinder Bagga. Therefore, merely on the basis of affidavit of Manoj Kumar Gupta, it cannot be held that he received the amount regarding the damages caused to the truck in question and for want of Survey Report of Ravinder Bagga, Surveyor, it cannot be held that the Survey Report of M/s J. Basheer & Associates Surveyors P. Ltd. and Marine Survey Report (Preliminary) of Hitesh H. Chitalia,are unreliable.
33. In Devendra Malhotra Vs. United India Insurance Co. Ltd. & Anr. 2016 (3) CLT 525 (NC), Hon'ble National Commission, has observed thus :- "Consumer Protection Act, 1986, Sections 2 (1) (g), 19 & 21 (a) (ii)- Insurance claim Surveyor report Held It is a established legal proposition that the report made by the surveyor, who is a professional in his field, cannot disbelieved, unless there are cogent and convincing reasons to do so."
34. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises & Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus :-
"12. I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to // 29 // him. There must be some reasonable ground or doubt to reject his report. The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. & Ors., 2014 (SLT Soft) 1 = 2014 (CPJ Soft) 1 = (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."
35. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
36. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
37. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
"17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. // 30 // Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
38. The Survey Report of M/s J. Basheer & Associates Surveyors P. Ltd. and Marine Survey Report (Preliminary) of Hitesh H. Chitalia, have not been rebutted by the complainant by adducing cogent evidence and merely submission of affidavit of Manoj Kumar Gupta, the owner of the truck, by the complainant, is not sufficient to discard the Survey Report of M/s J. Basheer & Associates Surveyors P. Ltd. and Marine Survey Report (Preliminary) of Hitesh H. Chitalia.
39. Looking to the Survey Report of M/s J. Basheer & Associates Surveyors P. Ltd., which is supported by his affidavit and Marine Survey Report (Preliminary) of Hitesh H. Chitalia, it appears that the incident of fire in truck, is highly dubious / doubtful, therefore, the complainant has not proved that he suffered loss, as mentioned in the complaint. The O.P. has rightly repudiated the claim of the complainant. The complainant is not entitled for getting any compensation from the O.P. Looking to the facts and circumstances of the case, the facts of the judgments cited by the complainant are quite // 31 // distinguishable from the facts of instant case, therefore, the same are not helpful to the complainant.
40. Therefore, the complaint filed by the complainant against the O.P., being devoid of any merit, is liable to be dismissed, hence the same is dismissed. No order as to the cost of this complaint.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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