National Consumer Disputes Redressal
M/S. Sparkling Traders Pvt. Ltd. vs M/S. New India Assurance Co. Ltd. & Anr. on 23 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 441 OF
2009
(From the order dated 05.09.2009 in
Consumer Complaint No. 477 of 1999 of the Maharashtra State Consumer Disputes
Redressal Commission, Mumbai)
M/S. SPARKLING TRADERS PVT. LTD.
Through its Director,
Plot No. B/58,
6 Ravi Kiran Estate, Monginis Lane,
New Link Road, Andheri (W)
Mumbai - 400 053
...........Appellant/Complainant
Versus
1. M/S. NEW INDIA ASSURANCE CO. LTD.
315/316, Vyapar Bhavan,
49, P.D. Mello Road,
Masjid Bunder (E),
Mumbai - 400 009,
Also at:
Bldg. 87, M.G. Road, Fort
Mumbai - 400 001
2. M/S. POOJA ROAD LINKS
Through its Director,
402, Narsi Natha Street,
Katha Bazar
Mumbai - 400 009
...........Respondents/O.P.s
BEFORE:
HON'BLE MR. JUSTICE K. S. CHAUDHARI,
PRESIDING MEMBER
For
the Appellant
:
Ms. Sonam Anand,
advocate
For
Respondent No. 1
:
Mr. R.S. Rana,
Advocate
For
Respondent No. 2
:
Ex-parte
PRONOUNCED ON 23rd JANUARY, 2015
O
R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING
MEMBER
This appeal has been filed by the appellant against
the order dated 05-09-2009 passed by the Learned State Commission in Complaint
No. 477 of 1999 M/s Sparkling Traders Pvt. Ltd. Vs. M/s New India Assurance Co. Ltd. &
Anr., by which complaint was dismissed.
2. Brief
facts of the case are that complainant/appellant sent consignment of 400 kgs.
of PM Oil to its Branch Office at New Delhi through Opposite party no.
2/Respondent no. 2. Goods were insured
with opposite party no. 1/respondent no. 1 and there was pre-survey report
pertaining to consignment. At the
destination consignment was not delivered and containers were empty. Complainant lodged complaint with the
opposite parties but opposite party no. 1 repudiated claim vide letter dated
12-07-1999 on the ground that there were holes at different places in the drums
and that loss cannot be attributed to the transit hazards. Alleging deficiency on the party of opposite
parties, complainant filed complaint before State Commission. Opposite party no. 1 resisted complaint and
submitted that as loss was recorded due to holing and cuttings on drums and such
loss cannot be attributed to transit hazards and claim was directly repudiated
and prayed for dismissal of complaint.
Opposite Party no. 2 did not appear before State Commission. Learned State Commission, after hearing both
the parties, dismissed complaint by impugned order against which this appeal
has been filed.
2. None
appeared for R-2 even after service and he was proceeded ex-parte.
3. Heard
learned counsel for the parties and perused record.
4. Learned
counsel for the appellant submitted that inspite of proof that insured
consignment was not delivered at the destination, learned State Commission
committed error in dismissing the complaint, hence appeal be allowed and
impugned order be set aside and complaint be allowed. On the other hand, learned counsel for R-1
submitted that order passed by learned State Commission is in accordance with
law, hence appeal be dismissed.
5. It is
admitted case of the parties that complainant got his 400 kg. P.M. oil
consignment insured from opposite party no. 1 by policy dated 28-09-1998, which
was subject to Inland Transit Clause (All risks). It is also not disputed that consignment was sent through Opposite Party
No. 2 and as per report dated 13-10-1998 of opposite party no. 2, consignment
was delivered totally empty with a shortfall of 400 kgs. of material.
6. Now, the
core question to be decided is whether opposite parties were responsible for
loss of consignment. As per pre-dispatch survey done by M/s A.S. Pappu
Technocrats on 28-09-1998, consignment of 400 kgs. PM oil in two sealed drums
was found extremely in sound condition.
As per surveyor M/s S.S. Kashyap & Co. report dated 13.10.1998, loss
occurred due to leakage which occurred due to holing and cutting of drums. It was further mentioned in the report that
drums were completely empty at the time of inspection by surveyor and after
deducting salvage value of two drums, total loss was Rs.5,81,900/-.
7. It
appears that after report of surveyor M/s S.S. Kashyap, opposite party no. 1
appointed 2nd surveyor M/s J. Basheer and associates, who furnished
questionnaire to the complainant on 13-01-1999 which was replied by complainant
by letter dated 18-01-1999. M/s J.
Basheer & Associates mentioned in its questionnaire that pre-consignment
survey was done by complainants surveyor M/s A.S. Pappu Technocrats but
complainant in its reply to the questionnaire submitted that M/s A.S. Pappu
Technocrats was nominated by opposite party and not by the complainant. Admittedly pre-dispatch surveyor was appointed
by O.P. Opposite party no. 1 by letter
dated 12-07-1999 repudiated claim on the basis of M/s J. Basheer &
Associates report on the ground that pre-dispatch surveyor did not notice any
specific marks namely, L.K.PNET India on the drums, hence it could not be
established that drums surveyed by pre-dispatch surveyor were the same at the
time of reported loss.
8. Learned
counsel for the appellant submitted that if pre-dispatch surveyor has failed to
note certain marks on the drums, opposite party is not absolved from liability and
cannot take stand that surveyed drums were not consigned by the
complainant. It was further submitted by
learned counsel for the appellant that there was no occasion to appoint 2nd
surveyor and report of the 2nd surveyor has also not been placed on
record and in absence of such report, claim could not have been
repudiated. Learned counsel for the
opposite party also admitted that 2nd surveyors report is not on
record.
9. Merely
because pre-dispatch surveyor has not recorded specific marks on drums, it
cannot be presumed that pre-dispatch surveyed drums were not consigned by the
complainant through carrier. Opposite
party failed to place report of 2nd surveyor M/s J. Basheer &
Associates and in absence of report there was no occasion for opposite party
no. 1 to repudiate claim of the complainant.
10. After
getting first surveyors report there was no occasion to appoint 2nd
surveyor without any cogent reason. This
Commission in Complaint No. 73 of 2002 M/s
Jagannatha Poultries Vs. New India Assurance Co. Ltd. while placing reliance on judgment of Honble Apex
Court reported in AIR 2010 SC 3035 New
India Assurance Co. Ltd. Vs. M/s Protection Manufacturers Pvt. Ltd., observed as under:
The
submissions of Mr. Piyush Gupta in regard to Section 64-UM of the Insurance
Act, 1938, are also of substance, as the Appellant-Insurance Company should
have applied to the Regulatory Authority under the Act for a second opinion
instead of appointing M/s J. Basheer & Associates for the said purpose
unilaterally. The reports submitted by
M/s J. Basheer & Associates are
liable to be discarded on such ground as well
and
rightly held that though it is permissible to appoint 2nd surveyor
to assess the loss but this must be for given reasons and only through the
auspices of the Regulatory Authority i.e. IRDA. Admittedly, in the case in hand neither any
cogent reason has been given by opposite party no. 1 for appointing 2nd
surveyor nor 2nd surveyor has been appointed through IRDA nor report
of 2nd surveyor has been placed on record and in such circumstances
no reliance can be placed on the report of 2nd surveyor M/s J.
Basheer & Associates. Report of the
2nd surveyor was not relied by Honble Apex court in the judgment of
M/s Protection Manufacturers Pvt. Ltd. (SUPRA).
If report of 2nd surveyor M/s Protection Manufacturers Pvt.
Ltd. is discarded than on the basis of report of surveyor M/s S.S. Kashyap,
complainant was entitled to get compensation of Rs.5,81,900/-.
11. Learned
State Commission dismissed complaint mainly on the basis that marks were not
found on drums consigned by pre-dispatch surveyor. As I have already observed, complainant cannot
be held responsible on account of failure on the part of the surveyor to
mention specific marks on the drums.
Learned State Commission further observed that first surveyor report was
based on assumption accepting declaration of the complainant that two sealed
drums contained PM oil. Surveyor report
dated 13-10-1998 also mentions that two PM drums containing 200 kgs. of PM oil
were inspected by the surveyor M/s A.S. Pappu Technocrats and as per their
report, sealed drums were found externally in sound condition. In such circumstances there was no occasion
to draw any inference that drums were not containing PM oil. Merely because drops of oil evaporated did
not leave smell of said oil, it cannot be inferred that PM oil was not
consigned in the drums. Learned State
Commission committed mistake in dismissing complaint on flimsy grounds and appeal
is to be accepted.
12. Consequently,
appeal filed by the appellant is allowed and order dated 05-09-2009 passed by
learned State Commission in Complaint No. 477/1999 M/s Sparkling Traders Pvt. Ltd. Vs. M/s New
India Assurance Co. Ltd. & Anr. is set aside and complaint is allowed and
respondents are jointly and severally held liable to pay compensation of
Rs.5,81,900/- to appellant with 12% p.a. interest from 22-09-1999 till date of
receipt of payment with no order as to costs.
Sd/-
....
(K. S. CHAUDHARI, J) PRESIDING MEMBER aj