State Consumer Disputes Redressal Commission
National Insurance Company Ltd vs M/S Kailash Rice And General Mills Pvt. ... on 4 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.983 of 2008
Date of institution : 8.9.2008
Date of decision : 4.12.2012
National Insurance Company Ltd. Sultanpur Road, Kapurthala through its now
through authorized signatory of Regional Office, SCO No.332-334, Sector 34-
A, Chandigarh.
.......Appellant
Versus
1. M/s Kailash Rice and General Mills Pvt. Ltd., Village Arianwal, P.O.
Saidowal, District Kapurthala through its Managing Partner Shri Vipan
Kumar.
2. M/s Dhan Dhan Baba Deep Singh Ji Transport Company, 31, Transport
Nagar, Opposite Mall Mandi, GT Road, Amritsar through its Proprietor.
...Respondents
First Appeal against the order dated 29.5.2008
of the District Consumer Disputes Redressal
Forum, Kapurthala.
Before :-
Shri Inderjit Kaushik, Judicial Presiding Member.
Shri Jasbir Singh Gill, Member.
Present :-
For the appellants : Shri R.C. Gupta, Advocate with Shri Nitin Gupta, Advocate.
For respondent No.1 : Shri Rohit Ahuja, Advocate. For respondent No.2 : Ex parte.
SHRI JASBIR SINGH GILL, MEMBER:
This is an appeal filed by National Insurance Company Ltd. (hereinafter called 'the appellant') against the order dated 29.5.2008 of District Consumer Disputes Redressal Forum, Kapurthala (hereinafter called 'District Forum') by First Appeal No.983 of 2008. 2 which the complaint of respondent No.1 (hereinafter called 'the respondent") was accepted by the District Forum.
2. The brief facts of this case are that the respondent took a Marine Cargo Open Declaration policy bearing No.401111/21/06/4400000021 from the appellant for Rs.2,50,00,000/- with effect from 15.12.2006 to 14.12.2007 in which the premium amount was paid in advance to the appellant by the respondent. On 13.3.2007 the respondent sent a truck loaded with 230 bags of rice to Navi Mumbai on truck No.HR-63-A-1454 for the value of Rs.2,82,729/- and on 14.3.2007 respondent again sent a truck bearing No.HR-63-1135 loaded with 230 bags of rice to Ahmedabad for value of Rs.2,53,585/-. The respondent hired the services of respondent No.2 for sending the above said bags and both the trucks were driven by drivers, namely, Kuldip Singh and Shamsher Singh respectively.
3. The declaration form of the insurance bearing No.8576 and 8579 of the above said consignment were immediately sent to the appellant. The consignments sent were duly covered under the aforesaid Marine Insurance Policy.
4. The aforesaid trucks did not reach their destination and this fact came to the knowledge of the respondent Firm and the respondent Firm then wrote two registered letters dated 24.3.2007 to SHO, PS-Sadar, Kapurthala to lodge FIR in this respect against the culprits. The police after investigating the matter lodged the FIR bearing No.53 dated 24.4.2003 under Section 406/420/120-B IPC against the drivers, namely, Kuldip Singh and Shamsher Singh. In the meanwhile, the respondent firm lodged their two claims with the appellant vide two intimation letters dated 30.3.2007.
5. The respondent also wrote two registered letters to respondent No.2 on 29.3.2007 calling for their explanation as to why the trucks had not reached First Appeal No.983 of 2008. 3 their destinations and in case of non-delivery of the consignment they were asked to pay the amount of the rice to the respondent. In the reply of these letters, respondent No.2 gave two certificates to the respondent in which they certified that the consignments have been misappropriated by the drivers of the trucks of their transport company denying their liability. It is totally illegal because respondent No.2 was liable for the safe delivery of the consignment entrusted to them by the respondent firm.
6. PS-Sadar on 11.2.2007 issued non-traceable certificates to the respondent firm informing it that they had closed the enquiry in FIR No.53 dated 24.4.2007 as they were not able to locate the missing consignments.
7. The respondent had got insured the consignment from the appellant after paying the premium in advance to the appellant and appellant has failed to pay two genuine claims of the respondent and this amounts to deficiency in service and unfair trade practice. Hence the complaint by the respondent against the appellant and respondent No.2 to pay Rs.5,84,583/- (including interest of Rs.48,269/- @ 12% per annum from 25.4.2007 to 24.1.2008 on the sum insured of Rs.5,36,314/-) along with future interest at the rate of 12% per annum till realization. Rs.1 lakh as damages for mental tension and harassment and Rs.10,000/- as costs of litigation were also prayed.
8. In the reply filed, the appellant took the preliminary objections that there has been absolutely no deficiency in service. The loss if any caused to the respondent was caused due to their own negligence and the respondent was hand in glove with respondent No.2 and is trying to defraud the appellant. As such the trucks were hired by the respondent firm from respondent no.2 situated at Amritsar and the two certificates from the transporter were allegedly procured on the plain paper and not on the letter head pad. Blank GR was sent to the respondent firm by the transport company and the respondent had itself First Appeal No.983 of 2008. 4 filled up the same which also bore cutting. In fact no consignment was ever sent to Navi Mumbai or Ahmedabad. No non-traceable certificate was issued by the police nor the police was competent to issue the same. Denying any deficiency in service the appellant prayed for dismissal of the complaint.
9. Respondent No.2 transport company also appeared and controverted the allegations of the respondent and resisted its claim. The main defence plea of respondent No.2 transport company is that both drivers, namely, Kuldip Singh and Shamsher Singh were never their employees nor they were deputed to carry the consignment to Ahmedabad in truck No.HR-63-1135 and Truck No.HR-63-A-1454 to Navi Mumbai. Dismissal of the complaint was prayed.
10. The parties produced affidavits/documents in support of their respective versions.
11. The complaint of the respondent was accepted by the learned District Forum vide impugned order dated 29.5.2008 with costs of litigation of Rs.3,000/- and directed the appellant to reimburse Rs.2,82,000/- and Rs.2,53,000/- totalling Rs.5,35,000/- with interest @ 12% per annum from the date of filing of the complaint i.e. 26.4.2007 till realization.
12. Hence this appeal.
13. Learned counsel for the appellant has argued that the respondent filed a joint claim for two different losses which could not be entertained and decided in one complaint and further pleaded that FIR No.53 was lodged on 24.4.2007 whereas intimation letter dated 30.3.2007 was sent to the appellant before registration of the FIR. It was prayed that the appeal may be accepted and the impugned order dated 29.5.2008 may be set aside.
14. On the other hand, the submission of learned counsel for the respondent was that there was no merit in the present appeal and the same may be dismissed.
First Appeal No.983 of 2008. 5
15. Record has been perused. Submissions have been considered.
16. After perusing the record we are of the view that two facts were not pleaded before the District Forum by the appellant and the appellant has not taken any objection in the reply which is Ex.OPA. The appellant has not disputed the insurance of consignments of goods on payment of premium by the respondent under Marine Cargo Insurance Policy Ex.OP-10 and Ex.OP-11 for the period from 15.12.2006 to 14.12.2007 and as per clause No.(i) of the said policy insurance cover, all risks of loss damage to the subject matter insured except as provided in clause Nos.2, 3 and 4 below. In order to substantiate the plea of loss of two consignments of bags of 430 bags of rice to Navi Mumbai in truck bearing No.HR-63-A-1454 for value of Rs.2,82,729/- on 13.3.2007 and 430 bags of rice to Ahmedabad in another truck bearing No.HR-63-1135 for value of Rs.2,53,585/- on 14.3.2007 through respondent No.2 and these trucks were driven by Shamsher Singh and Kuldip Singh and to this effect GR No.108 dated 13.3.2007 and GR No.109 dated 14.3.2007 Ex.C6 and Ex.C-7 were issued by respondent No.2. The declaration form of insurance bearing No.8576 and 8579 of the said consignments vide Ex.C-8 and Ex.C-9 were immediately sent to the Insurance Company duly covered under the said Marine Insurance Policy. Respondent has also proved lodging of the complaint dated 24.3.2007 vide Ex.C-10 and dated 24.3.2007 Ex.C-12 with SHO, PS-Kapurthala and FIR No. 53 dated 24.4.2007 under Sections 406, 420, 120-B IPC was registered against the drivers of the transport company vide Ex.C-14.
17. The investigating agency sought certain queries and also documents from the respondent firm which were duly replied and furnished vide letter dated 30.7.2007 Ex.OP-2 and fairly admitted that GR with the transport First Appeal No.983 of 2008. 6 company was filled up by them and that they had been hiring trucks for different stations for the purpose of carrying consignment to different States.
18. Learned counsel for the appellant contended that the insurance claim was filed by the respondent in connivance with the transport company fraudulently.
19. After perusing the record, we do not find any substance in this plea of the learned counsel for the appellant because no such credible evidence has been produced by the Insurance Company to establish their respective allegations that the respondent had joined hands with the transport company. There is also nothing on the record to show any ill-will, grudge or enmity of the respondent against the Insurance Company.
20. After perusing the record, we are of the view that District Forum has rightly accepted the complaint of the respondent vide impugned order 29.5.2008 and hence there is no illegality in the same.
21. In view of the discussion held above, we do not find any merit in the present appeal and the same is dismissed. The order of District Forum is upheld.
22. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 8.9.2008.
23. The interest on the amount of Rs.25,000/- shall stop running with effect from the date the appellant had deposited the same in this Commission. Interest on this amount of Rs.25,000/- shall be what has accrued on this amount when it remained deposited by this Commission in the Bank.
24. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to respondent M/s Kailash Rice and General Rice Mill by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant. First Appeal No.983 of 2008. 7
25. Remaining amount shall be paid by the appellant to respondent M/s Kailash Rice and General Mill immediately.
26. The arguments in this case were heard on 26.11.2012 and the order was reserved. Now, the order be communicated to the parties.
27. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(INDERJIT KAUSHIK)
PRESIDING MEMBER
December 4, 2012 (JASBIR SINGH GILL)
Bansal MEMBER