State Consumer Disputes Redressal Commission
Prachem Laboratories vs Iffco Tokio Gen Ins Co Ltd on 25 November, 2022
Details DD MM YY
Date of disposal 25 11 2022
Date of filing 05 07 2018
Duration 20 04 04
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 04
COMPLAIN NO.106 OF 2018
1. Prachem Laboratories
A Registered Partnership Firm
Through Partner
Mr. Pravinbhai Naranbhai Patel
Age: 46 years, Male, Hindu, Occ. Business
Address: Plot No.3109,
Phase-3, GIDC, Chhatral, Tal. Kalol,
Dist: Gandhinagar
....... Complainant
Vs.
1. Iffco Tokio General Insurance Co. Ltd
F-12, 1st Floor, Rajendra Estate,
Opp; Gayatri Mandir, Near Modhera Char Rasta,
Mehsana-384 002
.......Opponent
BEFORE: DR. J. G. MECWAN, PRESIDING MEMBER
APPEARANCE: (1) Ld.Adv. Mr. R.V.Sakaria
(2) V.L.Hirpara for the Complainant
Ld.Adv. Mr. R. P. Raval for the Opponent
ORDER BY DR. J. G. MECWAN,PRESIDING MEMBER
Page 1 of 13
Nishita C.C.-106-2018
JUDGMENT
1. Factual Matrix :
In that case the complainant has obtained Marine-Inland Transit All Risk Open declaration policy bearing No. 22040306, for the period 20.04.2016 to 19.04.2017 covering all risk of Inland Transit from Insured's Premises in Chhatral to Anywhere in India and as per declaration clause our client was to declare the consignment on monthly basis latest by 10th of every succeeding month. A consignment covered under All Risk Open declaration policy sustained damage due to operation of insured peril.
It is the case of complainant that the complainant has obtained had Obtained Marine-Inland Transit All Risk Open declaration policy bearing No. 22040306, for the period 20.04.2016 to 19.04.2017 covering all risk of Inland Transit from Insured's Premises in Chhatral to Anywhere in India and as per declaration clause the complainant was to declare the consignment on monthly basis latest by 10th of every succeeding month and complainant was declaring the consignments as per policy condition. The complainant has paid Rs.1,71,751 / - to opponent as premium of the policy. It is the submission of the complainant that the consignment so damaged was covered under Marine-Inland Transit All Risk Open declaration policy bearing No. 22040306, for the period 20.04.2016 to 19.04.2017. Therefore, the complainant had informed opponent about the event of skilful pilferage on 10.03.2017 and subsequently the Page 2 of 13 Nishita C.C.-106-2018 opponent had appointed surveyor M/s. Active Claims Consultants as confirmed by opponent vide his email dated 11.03.2017 at 4.06 PM. It is the further submission of the complainant that the complainant had sent the documents vide his letter dated 08.09.2017 which was acknowledged by the opponent's claim management office at Baroda but despite of submitting all the papers and documents as demanded by the surveyor appointed by the opponent as well as the opponent, the complainant states that his claim is not paid even after 10 long months of happening of loss despite all compliances made by the complainant and at last the opponent has sent a letter dated 02.11.2017 whereby repudiating his liability on below mentioned grounds;
"The policy is incorporated with the following warranty and exclusion Warranty: Unexplained shortage is not covered Exclusion: Shortage from sound packages"
It is the case of the complaint that the complainant reiterates that the damage to the cargo has occurred due to insured perils during the course of transit from Chhatral to Roorkee. The complainant does not agree reasons for repudiating his liability.
It is the submission of the complainant that the complainant has constantly, consistently and frequently demanded from opponent's office for payment of his claim amount of Rs. 27,01,244/- However, to the complainant's surprise he received a letter dated 02.11.2017 whereby opponent has repudiated the claim by assigning false, fabricated, unwarranted, illegal, unjust and whimsical reasons. Page 3 of 13
Nishita C.C.-106-2018 It is the case of the complainant that at last the complainant sent his legal notice through his Advocate on 08.03.2018 protesting the grounds and reasons and demanded claim amount, the legal notice is delivered to the opponent and in reply the opponent has stated that his stand remains as per his letter dated 02.11.2017.
It is the submission of the complainant that the complainant has lost too much time making correspondence with the opposite party now to get justice filed consumer complaint before Hon'ble state Commission with following prayers .
It is further submitted prayed by the complaint that the complaint be kindly allowed, the opponent be directed to pay:
[a] To get Rs. 27,01,244/- with cost and interest @18% p.a. from 02/11/2017 till realization of payment.
[b] To get Pay Rs.50,000 /-to the complainant as compensation for harassment and hardship caused to the complainant. In the complaint following Documents are submitted by the Complainant :
1) Copy of Marine Insurance policy bearing No.22040306
2) Copy of material supply order received by the complainant from his customer
3) Copy of Tax/ Retail Invoice of the material sent by the complainant
4) Copy of Delivery Challan
5) Copy of C form/ Form No.402
6) Copy of Consignment receipt issued by Spoon Logistic Pvt.Ltd.
7) Copy of email communication sent by complainant to his customer confirming dispatch of material through Spoton Logistic Pvt.Ltd.
8) Copy of Delivery Run sheet prepared by Spoton Logistic Pvt.Ltd.
9) Copy of Claim intimation
10) Copy of. Claim intimation sent through email on opponent by complainant and subsequent communication exchanged between complainant and opponent
11) Copy of letter sent to transporter by complainant informing him the incidence of tempering seal of the drum and skillful pilferage of material Page 4 of 13 Nishita C.C.-106-2018
12) Copy of .letter sent to Police Inspector Kalol Police Station by complainant reporting the incidence of tempering seal of the drum and skillful 'pilferage of material
13) Copy of English translation of letter sent to Police Inspector Kalol Police Station by complainant reporting the incidence of tempering seal of the drum and skillful pilferage of material
14) Copy of letter sent to Police Inspector Rurkee Police Station by the buyer of reporting the incidence of tempering seal of the drum and skillful pilferage of material
15) Copy of email sent by opponent to complainant confirming appointment of surveyor and set of subsequent email communication between exchanged complainant, surveyor and opponent
16) Copy of set of subsequent email communication exchanged complainant and Transporter between
17) Copy of letter dated 01.09.2017 sent by opponent to complainant stating that they received survey report and demanding enlisted documents
18) Copy of letter dated 08.09.2017 sent by complainant to opponent sending whereby enlisted documents to opponent
19) Copy of Insurance Claim Form
20) Copy of Insurance Claim Bill submitted to opponent by complainant
21) Copy of statutory / demand notice served on transporter by complainant with copy of RPAD card
22) Copy of letter received by complainant from the buyer of material
23) Copy of notice cum request letter sent to transporter by complainant with copy of RPAD card
24) Copy of letter sent to transporter by complainant whereby demanding damage certificate from transporter, with copy of RPAD card
25) Copy of Repudiation Letter
26) Copy of complainant's letter to opponent demanding original documents with survey report
27) Copy of IRDA's letter received by complainant in reply of his application under RTI
28) Copy of IRDA's letter received by complainant in reply of his application under RTI
29) Copy of legal notice issued by complainant's advocate on Opponent
30) Copy of opponent's letter addressed to complainant in reply of legal notice dated 08.03.2018 In the complaint following Documents are submitted by the Opponent:
1) Copy of the Policy with Terms and Conditions
2) Copy of the claim Form
3) Copy of the Investigation Report with all the annexure
4) Copy of the Tracking Report
5) Copy of the Receipt to docket No.
6) Copy of the Statement of carrier
7) Copy of the Letter Written by the Insurance Company to the complainant
8) Copy of the claim Repudiation Letter Page 5 of 13 Nishita C.C.-106-2018
2. Arguments of the Complainant:
Ld. Adv. Mr. Sakaria argued out that complainant had obtained Marine- Inland Transit All Risk Open declaration policy bearing no. 22040306, for the period 20.4.2016 to 19.04.2017 covering all risk of Inland Transit from Insured's Premises in Chhatral to anywhere in India and as per declaration clause the complainant was to declare the consignment on monthly basis latest by 10th of every succeeding month and the complainant declared the consignments as per the policy condition.
Ld. Adv. Mr. Sakaria further argued out that the complainant sent a consignment of Methylcobalamine dated 06.03.2017 to Axis Medi Solution by road through Spoton Logistic Pvt. Ltd. The seal of the container drum was tampered when it reached to the consignee at Roorkee on 10.07.2017 and the material was skillfully pilferage from the drum. The consignment which got damaged was covered under the policy and therefore the complainant informed the opponent about the event of skillful pilferage on 10.03.2017 and subsequently the opponent appointed one- M/S Active Claims Consultants- Mr. Abad Khan. The complainant sent documents vide letter dated 08.09.2017 which was acknowledged by the opponent's (claim management office at Baroda.
It is submitted by the Ld. Adv. Mr. Sakaria for the complainant that despite submitting all the papers and documents as demanded by the surveyor appointed by the opponent and as well as the opponent, the opponent did not release the claim of the complainant. The Page 6 of 13 Nishita C.C.-106-2018 opponent lastly sent a letter dated 02.11.2017 repudiating its liability on grounds stated by the opponent. The complainant does not agree with the reasons stated that by the opponent for repudiating the claim of the complainant as none of the factor was applicable in the complainant's case. The loss has happened due to pilferage and not due to shortage.
Ld. Adv. Mr. Sakaria argued out that the material sent to the consignee was skillfully changed by tampering the seal of the drum during the course of transit. The photographs of sound packing delivered to Spoton Logistic Pvt. Ltd at Chhatral by the complainant as well as the photographs of the drums with tampered seal which was received at the point of delivery was sent to the opponent as well as to the surveyor appointed by the opponent. The local representative of the carrier- Spoon Logistic Pvt. Ltd was called and he was also showed the tampered seal as well as the change in the package type and the representative agreed with the complaint, but surprisingly he subsequently changed his version and issued false letter of delivering intact and sound goods. The complainant reiterates that the damage to the cargo has occurred due to insured perils during the course of transit from Chhatral to Roorkee.
Ld. Adv. Mr. Sakaria further argued out that the complainant states that loss has occurred only because of the peril covered under the Policy, that the loss has happened due to pilferage and not due to shortage and therefore the complainant is entitled to recover the Claim amount as prayed in the complain from the opponent. That in the Page 7 of 13 Nishita C.C.-106-2018 circumstances of the case, the opponent failed to prove its case, further the opponent committed deficiency of service by repudiating the claim of the complainant and therefore the cause of action arose and the complainant is entitled to relief as prayed in the complaint.
3. Arguments of the opponent:
Ld. Adv. Mr. R. P. Raval argued out that, this respondent's liability is strictly limited in accordance with the provision of Consumer Protection Act 1986 and the policy of insurance issued by this respondent company subject to the terms, conditions, exception and limitations thereof. This respondent company has issued insurance policy namely "Marine Cargo Open Policy Schedule) to complainant (Prachem Laboratory) vide policy no. 22040306 for the period of 20/04/2016 to to 19/04/2017 for the basic sum insured of Rs. 40,00,00,000/-The original copy of policy terms and conditions is in custody of complainant. Copy of policy along with terms and conditions is herewith furnished as Document No. 1.
Ld. Adv. Mr. R. P. Raval argued further out that, after intimation was received from complainant, respondent insurance company had appointed Active Claims Consultants as an investigator for investigating the captioned claim lodged by the complainant. After considering the available records, documents, website of Carrier (Spoton Logistics Pvt. Ltd.) for tracking the consignment details and statement of carrier (Spoton Logistics Pvt. Ltd), final investigation report was submitted by them dated.20/07/2017. While submitting the investigation report, Page 8 of 13 Nishita C.C.-106-2018 investigator Active Claims Consultants specifically held that, carrier (Spoton Logistics Pvt. Ltd) delivered the same material of the consignment as it was received, at the time of booking from the consignor. Therefore, it can be concluded that there was no loss in this consignment during transit. Copy of investigation report along with all the annexures is herewith furnished as Document No. 2.
Ld. Adv. Mr. R. P. Raval argued out the the details of the enclosed insurance policy and terms & conditions are not disputed. It is specifically denied that claim of the insured was repudiated by the insurance company on the basis of unwarranted, irrational, illogical grounds. On the contrary, claim was registered with the opponent which was repudiated by the insurance company on the basis of Tracking Report of Consignment taken from web site of Spoton Logistics Pvt. Ltd, clean receipt given by the consignee in regards to the delivery of the consignment and statement of carrier which clearly proves that loss has not happened because of skillful pilferage. Further, as per investigation report, there is no evidence to prove that loss has occurred during transit. Recommendation made by the investigator is further reproduced as:
Carrier (Spoton Logistics Pvt. Ltd) delivered the same material of theconsignment as it was received, at the time of booking from the consignor.Therefore, it can be concluded that there was no loss in this consignmentduring transit.
Ld. Adv. Mr. R. P. Raval argued out the contents of para 4.5 of the complaint are totally false and incorrect. It is humbly stated that it is totally false to state that the loss had happened due to pilferage and Page 9 of 13 Nishita C.C.-106-2018 not due to shortage as the material was skillfully changed by someone.
The opponent had appointed an investigator and the report of the same is enclosed herewith under which after analyzing the Tracking Report of Consignment taken from web site of Spoton Logistics Pvt. Ltd, clean receipt given by the consignee in regards to the delivery of the consignment and statement of carrier, it is clear that carrier (Spoton Logistics Pvt. Ltd.) delivered the same material of the consignment as it was received, at the time of booking from the consignor. Therefore, it can be concluded that there was no loss in this consignment during transit. Therefore, insurance company is not liable to pay as per policy terms and conditions.
4. Merit of the case:
In this matter repudiation letter of Insurance Company is on record wherein following reasons are mentioned for the repudiation of the claim (a) warranty - Unexplained shortage is not covered. (b) Shortage from sound package.
I have gone through the record of this case there is no survey report in this matter as opponent Insurance Company has not appointed surveyor but as per record, Insurance Company has appointed investigator to investigate the claim of the complainant and as per report of the investigator Spoton Logistic Pvt. Ltd. has delivered the said material of the consignment and no loss in the consignment during the transit. However, investigator is not licensed holder investigator. Furthermore there is no affidavit of investigator produced Page 10 of 13 Nishita C.C.-106-2018 in this matter. Hence, in the opinion of this commission, report of investigation is not acceptable document in this matter.
5. As per record Mr. Rajat Sharma, Axis Medical solution has filed FIR on 10.03.2017 that seal of parcel is found tempered and material was skillfully changed by tampering the seal of the drum during the course of transits. Furthermore, letter dated 04.09.17 written by Axis Medi Solution to complainant is also on record at page no. 80 wherein also mentioned that material was changed during transportation and letter of complainant dated 11.03.17 addressed to police inspector, Kalol is also on record at page no. 35. Opponent Insurance Company has not appointed surveyor and therefore detailed analysis not done in this matter. Furthermore report of investigator is not acceptable document in this matter and hence, when complainant / consignee has filed FIR for material changed during transportation then there is no reason to disbelieve it.
6. In this matter it is the case of the complainant that material was skillfully changed by tampering the seal of the drum during the course of transits. However, it is the an averment of the Insurance Company that consignee has received parcel and at the time of delivery of the consignment, consignee issued receipt which proves that loss has not happened because of skillful pilferage but as per record consignee has issued receipt without verifying consignment and therefore averment of opponent Insurance company not sustained. Page 11 of 13
Nishita C.C.-106-2018
7. Hon'ble National Commission in Bajaj Allianz General Insurance Co.Ltd.&Anr. Vs. Karthik Alloys Ltd. III (2018) CPJ 213 (NC) observe as under:
The second reason given in for repudiating the claim was that one of the container bearing No. 3992406 was replaced by container No. 3992407. The State Commission noted in this regard that as per the goods received, shipping bill and other documents, the number of the container was 3992406. The State Commission rightly felt that the complainant could not have any control on the container after the vehicle had left its factory. If the container had been replaced during the transit while in custody of the transporter, such replacement cannot be attributed to the complainant nor it can be said to have been done in connivance with it. Therefore, I find no merit in the second ground on which the claim had been repudiated.
Looking to the above observation of the National Commission in the instance case also the consignee \ complainant could not have any control on the consignment during the course of transit and hence, if the consignment has been replaced during the transits while it was in the custody of the carrier then such responsibility cannot be attributed to the complainant \ consignee.
8. The consignee received the consignment and gave receipt but latter found that the consignment had been tampered with. The consignee was required to open the consignment in the presence of person / representative of carrier company while receiving the consignment but he had not do so and made a mistake and therefore for this mistake of consignee, if 25% amount is deduct from claim amount and 75% amount of claim is pay to the complainant then it will meet end of the justice.
9. In view of the above discussion in the considered opinion of this commission, complainant is entitled to get claim amount after 25% Page 12 of 13 Nishita C.C.-106-2018 deduction for the act of consignee not to verify the consignment at the time of delivery and hence, following order is passed.
ORDER
1. Present complaint is partly allowed.
2. Opponent Insurance Company is order to pay Rs. 18,41,757/-
(eighteen lacks forty one thousand seven hundred fifty seven Rupees only) to the present complainant.
3. Opponent Insurance Company shall comply with this order within 60 days from the date of this order failing which entire amount will carry the interest @ 9% per annum from date of pronounce of this order till its realization.
4. No order as to cost.
5. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties. Pronounced in the open Court today on 25th November, 2022 [Dr. J.G.Mecwan] Presiding Member Page 13 of 13 Nishita C.C.-106-2018