State Consumer Disputes Redressal Commission
Royal Sundaram Alliance Insurance Co. ... vs S.K. Samanta &Co; Ltd on 5 September, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/220/12 (Arisen out of Order Dt. 29/02/2012 in Case No. 43/2011 of District Consumer Disputes Redressal Forum, North 24 Parganas ) DATE OF FILING: 10.05.12 DATE OF FINAL ORDER: 05.09.13 APPELLANT: 1. Royal Sundaram Alliance Insurance Co. Ltd. Its Corporate Office Commercial Insurance Department IV th Floor, No.46, Whites Road, Royapettah, Chennai-6000014. Policy issuing Branch office at Millenium City, Eastern Regional Office, Information Technology Park, Unit Nos. T-2-2A Tower-IT Plot Nos. DN-62, Sector V, Salt Lake, Kolkata- 700 091. P.S. Electronics Complex. RESPONDENT : 1. S.K.Samanta & Co. Pvt. Ltd., a Private Limited Company. Its registered Office at 2/5, Sarat Bose Road, Suit- 4A. P.S. Bollygunge, Kolkata- 700 020. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANTS : Mr. Debajit Dutta, Ld. Advocate. FOR THE RESPONDENT: Mr. Dipankar Roy, Ld. Advocate. _____________________________________________________________________________ : O R D E R :
MR. J.BAG, LD. MEMBER The present appeal is directed against the Judgment and Order dated 23.02.2011 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas, in C.C. Case No. 43/2011, whereby Ld. Forum below allowed the complaint in part on contest against the OP insurance company with cost.
The complaint , in brief , was as follows:
The Complainant purchased two new Hydrolic Mobile Cranes HY -12 (12 Ton capacity each) for using them at their project at Bhilai. M/s Super Cargo Carrier and M/s Kotak Transport Company were entrusted with the transportation of the cranes from Kolkata to Bhilai . After having received the cranes from the Complainant, M/s Kotak Transport Company issued Consignment Note No. 001013 dt. 08.04.2010 and M/s Super Cargo Carrier issued Consignment Note No. 380 dt. 14.04.2010 mentioning transportation of cranes through Truck Nos. WB-23- 8027 and Truck No. WB-33A-6340 respectively. All necessary documents including Consignment Notes were produced before the OP insurance company who issued road transit insurance policy under the Inland Transit Clause All Risks (ITC-A) on payment of premium. The Truck carrying the crane under CN No. 001013 dt 08.04.2010 reached its destination safely but the Truck carrying the crane under Consignment Note No. 380 dt. 14.04.2010 met with an accident near Bisoi Police Station in Odisha on 16.04.2010 as a result of which the driver of the Truck received grievous injury and later died in the hospital. The carrying Truck and the loaded crane were fully damaged by the accident . The Complainant lodged a claim with the OP . Surveyors, one spot surveyor and the other final surveyor, were appointed and as per report of the final surveyor , it was a case of total loss. Accordingly, the Complainant preferred a claim .
On 23.06.2010 the surveyor Mr. M.A. Rawani who had been deputed by the insurance company for final survey, issued a letter Ref No. 81/04/05 dt.
23.06.2010 , copy being endorsed to the insurance company also, stating that finally the insurer has agreed to settle the claim on net of salvage/total loss basis. The salvage buyer shall make direct payment of Rs.450000/-only to you through DD and also stated in the said letter that the amount received by you shall be adjusted from the claim amount to be paid by the insurance company.
After receipt of such letter from the final surveyor, the Complainant sent a letter of request to the OP insurance company for settlement of the claim by paying Rs. 6,22,557/- only (Total Insured Value Rs. 10,72,557/- minus Rs.4,50,000/- towards salvage value =Rs.6,22,557/- only ) . The insurance company, however, by their letter dated 24.08.2010 informed that on the basis of the final report of the surveyor the claim of the Complainant could not be considered for violation of conditions of the policy. In the said circumstances the petition of complaint was filed before the Ld. Forum below.
The complaint was contested by the OP insurance company, contending inter alia, that the transit coverage of the crane was subjected to specific terms and conditions which were violated , that the accident occurred because of snatching of seashell rope tied to the front arm of Escorts Hy12 when the driver wanted to check the speed and that the consignment was not being carried in a closed vehicle covered with tarpaulin, in spite of policy stipulation in that regard. It was also mentioned that the crane was protruding outside the carrying truck which was in gross violation of specific warranty of the policy issued to the Complainant.
After perusal of documents and consideration of evidence filed by both parties , Ld. Forum below, observed that the policy was issued covering loss to the goods in transit while being carried from one place to another by lorry and there was no breach of warranty in so far as the insurer agreed to settle the claim on net of salvage / and total loss basis and that too after parleys with the surveyor. The insurer can not retreat from their commitment inspite of their observations about warranty against carrying of over dimensional cargo a low bed multi axle trailer in a closed vehicle duly covered with tarpaulin . Ld. Forum also observed that after making a commitment as conveyed through the surveyor the question of violation of warranties was of no consideration. Accordingly, Ld. Forum ordered that the Complainant be paid a sum of Rs.6,22,557/- only by the OP insurance company, failing which it would carry an interest @ 10 % p.a. till its realization.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the present Memorandum of Appeal has been preferred , highlighting the facts that the terms and conditions of the policy were violated , in so far as carrying of the insured crane was made otherwise than by a low bed multi axle trailer and in a closed vehicle covered with tarpaulin . Further, it has been contended that the surveyor appointed by the Appellant is a licensed independent surveyor and any letter written by such surveyor does not make the Appellant liable to comply with any clause mentioned therein.
We have gone through the Memo of Appeal together with the judgment and order passed by the Ld. Forum below, the complaint filed before the Ld. Forum below and other documents placed with the appeal. BNA field on behalf of the Appellant has been perused. Ld. Advocates appearing for both parties have been heard.
Ld. Advocate appearing for the Appellant submitted case laws:
1.
(2010) (3) WBLR (SC) 62: Important Point- Excess clauses are commonly used in insurance contracts which limit the liability of the insurer in regard to each claim only to the amount of loss in excess of the sum specified in the excess clause, which the insured has agreed to bear.
2. AIR 1999 Supreme Court 3252 : Important Point : The insurance policy between the insurer and the insured represents a contract between the parties. Since, the insurer undertakes to compensate the loss suffered by the insured on account of risk covered by the insurance policy , the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured can not claim anything more than what is covered by the insurance policy. That being so , the insured has also to act in accordance with the statutory limitations or terms of the policy expressly set out therein.
3. (2000) 10 Supreme Court Cases 19 It was held that non-consideration of the survey report in deciding the case in hand by NCDRC resulted in serious miscarriage of justice and vitiated the judgment passed by the Commission.
Ld. Advocate appearing for the Appellant submitted that conditions of the Policy warranted that over dimensional cargo should be carried in low bed multi axle trailer and in a covered vehicle , warranted that lashing / strapping / estowing of the cargo should be done adequately and warranted also that the article insured shall be carried in closed vehicle/wagon or vehicle /wagon duly covered by tarpaulins. Since all such conditions were violated , the insurance company can not be liable to meet the insurance claim and, therefore, the impugned order is liable to be set aside.
Ld. Advocate appearing for the Complainant/Respondent submitted that the insurance company issued the policy after having examined all necessary documents including the Consignment Note issued by the transporter of the crane. The said Consignment Note mentioned the particulars of the Truck bearing the registration mark which was a heavy goods vehicle and not a Low Bed Multi Axle Trailer . With such knowledge the insurance company allowed the Complainant to carry the crane by such vehicle and issued insurance policy . It can not be said that the Complainant/Respondent was responsible for such violation. Further, the repudiation letter said that the subject crane was protruding outside the lorry which had resulted in severe damages. The photograph of the accident- hit vehicle might have shown that the crane was protruding outside the lorry but that does not reflect the actual position of the crane while being carried on road. The violation of condition of the policy, if any, was at the indulgence and with full knowledge of the said insurance company themselves as they did not object to carrying of the crane by a Truck.
We have gone through the order of the Ld. Forum below, the petition of complaint , survey reports submitted by the spot surveyor and the final surveyor and heard the Ld. Advocates appearing for both parties.
It is very much on record that that the insurance company was posted with the fact that the crane was being carried by a truck instead of by a Low Bed Multi Axle Trailer . There was no objection whatsoever from the insurance company and no word of caution against the warranty conditions. Failure on the part of the insurance company to desist the Complainant /Respondent from sending the insured crane through a truck otherwise than in a closed vehicle with tarpaulin cover exposes the hollowness of the conditions themselves which the Ld. Forum below rightly hinted at , holding that a crane can not be carried in a closed vehicle. Further the final surveyor categorically mentioned in his report ( Page 3, Paragraph 7) that On verification of registration certificate of the vehicle carrying the consignment , it was found to be in transit worthy condition as far as carrying capacity is concerned. The said final surveyor, however , after examination of all relevant facts and circumstances concluded that that a sum of Rs.5,15,052/- only was assessed after recovery of salvage value.
We find it prudent to hold that the assessment made by the surveyor on total loss (net of salvage ) basis is justified in so far as the nature of the accident and the terms and conditions of the policy are concerned and in that view of the fact the impugned order needs to be modified . The appeal succeeds in part on contest . Now Ordered that the appeal be and the same is allowed in part on contest . The OP insurance company shall pay a sum of Rs.5,15,052/-only instead of Rs.6,22,557/- only to the Complainant . Other parts of the impugned order shall remain unchanged. There shall be no order as to costs.
Sri Jagannath Bag Sri Debasis Bhattacharya (Member) (Member)