State Consumer Disputes Redressal Commission
Raipur Power & Steel Ltd. vs The New India Insurance Co.Ltd. on 13 October, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/15/159
Instituted on : 31.03.2015
Raipur Power and Steel Limited,
Through : Liasoning Manager,
Saurabh Sen Gupta, Age 38 years,
S/o Uttpal Sen Gupta,
Address : Plot No.75-76, Industrial Growth Centre,
Borai, Rasmadha, Tehsil & District Durg (C.G.) ... Appellant
Vs.
The New India Assurance Company Limited,
Through : Branch Manager,
Address : Station Road, Parakh Bhawan, Durg,
Tehsil and District Durg (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :-
Shri R.K. Bhawnani, for appellant.
Shri Shekhar Amin, for respondent.
ORDER
Dated : 13/10/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 13.03.2015, passed by the District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum" for short), in Complaint Case No.CC/13/239. By the impugned order, learned District Forum, has dismissed the complaint filed by appellant (complainant).
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2. Briefly stated the facts of the complaint are that the appellant (complainant) is working as Liasoning Manager in the Sponge Iron Factory and he is looking after the Company and is doing other work on behalf of the Company. The appellant (complainant) is also doing business of selling of the Sponge Iron. On being received an order from Nilesh Steel and Alloys Private Limited, Jalna Mahashtra for supply of sponge iron, the appellant (complainant) after loading the sponge iron in truck bearing registration No.C.G.-07-E-8368 of Bengal Maharashtra Roadway, Raipur to Nilesh Steel and Alloys Private Limited, Jalna, Maharashtra vide bilty No.990 and 991 on 14.08.2011. The said goods was taken by the driver of the vehicle carefully. The price of the goods was Rs.10,47,607/-. The above sponge iron was insured with the respondent (O.P.) for the period from 16.12.2010 to 15.12.2011. The insurance policy No. is 451203/21/10/04/0000134. The premium of the insurance policy Rs.44,122/- was deposited in the office of the respondent (O.P.) and the entire sponge iron goods was covered under the said insurance policy by the respondent (O.P.). On 16.08.2011, when the above truck reached Bagh Nadi, Near Bullard Paam, it fell down in the River due to technical problem. On account of this, the entire sponge iron kept in above truck was damaged due to sinking and flowing. The appellant (complainant) immediately gave intimation regarding the incident to the respondent (O.P.) as well as owner of the truck. The claim of the appellant (complainant) was // 3 // investigated by the respondent (complainant) through its Investigator and the Investigator has also submitted all photographs in the office of the respondent (O.P.), but even then the respondent (O.P.) did not settle the claim of the appellant (complainant). Without any legal ground, the respondent (O.P.) is not settling the claim of the appellant (complainant) and as per terms and conditions of the insurance policy, the respondent (O.P.) did not pay amount of Rs.10,47,607/- due to which the appellant (complainant) is suffering financial loss and mental agony. The respondent (O.P.) committed deficiency in service. The intimation regarding the incident was immediately given to Police Station - Mauja Pawnar, District Wardha (Maharashtra), where panchnama of the place of incident was prepared and action was taken and thereafter intimation regarding the incident was immediately given to the appellant (complainant) and the respondent (O.P.) through telephone and through written application. Thereafter the respondent (O.P.) appointed Surveyor, who visited the spot and investigated the matter. The Surveyor also took photographs of the damaged parts and vehicle. The appellant (complainant) submitted the claim form along with all relevant documents in the office of the respondent (O.P.) within prescribed time, but even then, the respondent (O.P.) did not pay the insured amount Rs.10,47,607/- to the appellant (complainant). The appellant (complainant) also submitted the documents, which were demanded from him by the respondent // 4 // (O.P.) from time to time. The Investigator of the respondent (O.P.) told that the entire sponge was fully damaged. The sponge iron loaded in the above vehicle was insured by the respondent (O.P.) for all risks and under the insurance policy premium was obtained in respect of loss occurred while carrying the sponge iron from factory to other factor. The appellant (complainant) has not violated any terms & conditions of the insurance policy. The respondent (O.P.) without any ground did not settle the claim of the appellant (complainant) and committed deficiency in service. Therefore, the appellant (complainant) filed consumer complaint before the District Forum, and prayed for granting reliefs as mentioned in the complaint.
3. The respondent (O.P.) filed its written statement and averred that Marine Cargo Special Declaration Policy was issued in favour of M/s Raipur Power and Steel Company for the period from 16.12.2010 to 15.12.2011 under the terms and conditions mentioned in the policy in which there is mention regarding packaging of the sponge iron through open truck. The transportation of the sponge iron was done by the appellant (complainant) through truck bearing registration No.C.G.07-E-8368. The weight of the above truck without loading is 8000 k.g. and with loading its weight is 25000 kg. The permit for the above truck has been issued for 17000 kg weight and the weight of the above truck was 17000 kg (25000 - 8000). On the date of accident i.e. // 5 // 16.08.2011 , total 40.120 MT Sponge Iron (16.120 MT through invoice no.990) and 24.000 Sponge Iron through invoice No.991) was taken by the appellant (complainant) to Nilesh Steel and Alloys Private Limited, Jalna (Maharashtra) by loading it in truck bearing registration No.G.G.07-E-8368, whereas according to R.C. Book of truck and permit, the weight of the truck is 17000 kg. The truck did not fell down in the river on 16.08.2011 due to technical problem when it reached to Bagh Nadi, Bullard Paam. In the truck, the goods were transporting in excess than its capacity and the accident occurred due to negligent of the appellant (complainant), which is violation of terms and conditions of the Marine Insurance Policy. The respondent (O.P.) is not liable for paying any compensation to the appellant (complainant), therefore, the respondent (O.P.) did not pay any compensation to the appellant (complainant) After receiving intimation regarding the incident from the appellant (complainant), the respondent (O..) appointed Surveyor Shri D.K. Khedkar, who is an independent and licenced Surveyor, for conducting survey of the vehicle and sponge iron. Shri D.K. Khedkar, Surveyor conducted survey and submitted his report on 20.08.2011 before the respondent (O.P.) in which he observed that the loading capacity of the truck is 17,000 Kg as against which 40,000 kg sponge iron was loaded in the truck. The appellant (complainant) gave Marine Declaration Form on 14.08.2011 to the respondent (O.P.) mentioning that in vehicle Truck // 6 // bearing registration No.C.G.07-E-8368, 40.120 M.T Sponge Iron has been loaded and the same has been sent from Rashmadha to Jalna through bility No.2497 and 2498 and the insured value of the sponge iron is Rs.10,47,607/-. Thus it is clear from the Declaration Form and Invoice and bility that in the truck bearing registration No.C.G.07-E- 8368 40,000 Kg Sponge Iron was loaded and the same was being transported, which is more than the loading capacity of the truck i.e. 17,000 kg. Due to violation of the terms and conditions of the Marine Insurance Policy and provisions of Motor Vehicles Act, 1988 the respondent (O.P.) did not pay a sum of Rs.10,47,607/- to the appellant (complainant). The respondent (O.P.) sent letter to the appellant (complainant) on 25.03.2013 and informed that as per Survey Report of Surveyor Shri D.K. Khedkar, the appellant (complainant) by violating terms and conditions of the insurance policy as well as provisions of the Motor Vehicles Act, 1998, transporting the sponge iron in the truck, which is in excess than the loading capacity of the truck, which shows negligence of the appellant (complainant). The respondent (O.P.) demanded photocopy of driving licence of the driver, who was driving the vehicle at the time of incident and declaration No.877 dated 14.08.2011 and load challan 2497 and 2498 dated 14.08.2011 within 7 days. The respondent (O.P.) vide their letter dated 02.09.2013 informed the appellant (complainant) that due to violation of the terms and conditions of the insurance policy and // 7 // provisions of Motor Vehicles Act, 1988, the respondent (O.P.) is not liable to pay compensation to the appellant (complainant). Thus the respondent (O.P.) has not committed any deficiency in service. The appellant (complainant) was transporting sponge iron than the load capacity of the vehicle, which is violation of terms and conditions of the insurance policy and provisions of the Motor Vehicles Act, 1988, therefore, there is no liability of the respondent (O.P.) and the claim of the appellant (complainant) is not payable. The respondent (O.P.) has not committed any deficiency in service. The complaint is liable to be dismissed.
4. Learned District Forum, after having considered the material placed before it by the parties, dismissed the complaint.
5. The appellant (complainant) filed documents. Annexure 1 is Spot Investigation Panchnama, Annexure 2 is letter dated 16.08.2011 sent by the appellant (complainant) to The Manager, Bengal Maharashtra Road, Raipur (C.G.), Annexure 3 is letter dated 22.08.2011 sent by Bengal Maharashtra Roadways to the appellant (complainant), Annexure 4 is Invoice Cum Challan of the appellant (complainant), Annexure 5 is bill No.2498 dated 14.08.2011 issued by Bengal Maharashtra Roadways, Raipur, Annexure 6 is letter dated 16.08.2011 sent by Bengal Maharashtra Roadways, Raipur to the appellant (complainant), Annexure 87 is Courier Envelope, Annexure 8 is // 8 // Reminder I dated 21.05.2012 sent by appellant (complainant) to Nagpur Regional Office of New India Assurance Company Ltd., Annexure 9 is Reminder II dated 03.10.2012 sent by the appellant (complainant) to Nagpur Regional Office of New India Assurance Company Limited, Annexure 10 is sending report dated 03.10.2012, Annexure 11 are receipts issued by Flyking, Annexure 12 is letter dated 02.08.2011 sent by the appellant (complainant) to The Branch Manager, The New India Assurance Company Limited, Durg (C.G.), Annexure 13 is Marine Declaration Form, Annexure 14 is letter dated 23.08.2011 sent by the appellant (complainant) to the respondent (O.P.), Annexure 15 is Marine Claim Form, Annexure 16 is Marine Cargo Insurance Policy, Annexure 17 is Survey Report dated 20.08.2011 of Shri D.K. Khedkar along with photocopy of photographs, Annexure 18 is registered notice dated 24.08.2013 sent by Etendra Kumar Rao, Advocate on behalf of the appellant (complainant) to the respondent (O.P.), Annexure 19 is acknowledgement, and certified true copy of extracts of minutes of meeting of Board of Directors of M/s. Raipur Power and Steel Limitedheld at New Delhi on 20.03.2013 at about 11:00 A.M., and copy of Ghatna Sthal Panchnama.
6. The respondent (O.P.) has also filed documents. Annexure -1 is Marine Declaration Form, Annexure 2 is letter dated 16.08.2011 sent // 9 // by the appellant (complainant) to Nagpur Regional Office of The New India Assurance Company Limited, Annexure 3 is copy of national permit for goods vehicle, Annexure 4 is invoice cum challan No.930 dated 14.08.2011 issued by the appellant (complainant), Annexure 5 is Bill No.2497 dated 14.08.2011 issued by Bengal Maharashtra Roadways, Raipur (C.G.), Annexure 6 is Invoice-cum-Challan No.991 dated 14.08.2011 issued by appellant (complainant), Annexure 7 is Bill No.2498 dated 14.08.2011 issued by Bengal Maharashtra Roadways, Raipur to the appellant (complainant), Annexure 8 is vehicle particulars given by Addl. Regional Transport Officer, Durg (C.G.), Annexure 9 is letter dated 25.03.2013 sent by the respondent (O.P.) to the appellant (complainant), Annexure 10 is letter dated 02.09.2013 sent by the respondent (O.P.) to the appellant (complainant), Annexure 11 is reply sent on behalf of the respondent (O.P.) by Shri Prashant Dubey, Advocate to the appellant (complainant), Annexure 12 is Survey Report dated 20.08.2011 of Shri D.K. Khedkar, Surveyor.
7. Shri R.K. Bhawnani, learned counsel appearing for the appellant (complainant) has argued that the impugned order passed by the learned District Forum is erroneous and contrary to law and is liable to be set aside. Learned District Forum has dismissed the complaint on sole ground that the vehicle was overloaded. On the basis of overloading of the vehicle, the claim should not be repudiated in toto.
// 10 // The appellant (complainant) is entitled to get compensation from the respondent (O.P.) on non-standard basis i.e. 75% of the value of the goods. Therefore, the appeal may be allowed and impugned order passed by the District Forum, be set aside. He placed reliance on Bherajram vs. United India Insurance Company Limited, I (2015) CPJ 332 (NC); Kesarben vs. United India Insurance Company Limited, 2001 CCJ 595; Rama Associates Limited vs. New India Assurance Company Limited, I (2014) CPJ 10 (NC); New India Assurance Company Limited vs. Surinder Singh Khurana, 1986-2006 Consumer 10530 (NS) NC & SC On Consumer Cases (Part VII); Mohd. Unis vs. United India Insurance Company Ltd., Through its Branch Manager & Anr. 2014 (1) CPR 491 (NC); Harsolia Motors vs. National Insurance Company Limited, I (2005) CPJ 27 (NC); Amalendu Sahoo vs. Oriental Insurance Company Limited (2010) 4 Supreme Court Cases 536 and Appeal No.FA/13/346 - Bajaj Allianz General Insurance Company Limited, Through : Branch Manager vs. Mrs. Sukhvinder Kaur, decided by this Commission on 19.08.2014.
8. Shri Shekhar Amin, learned counsel appearing for the respondent (O.P.) has supported the impugned order passed by the learned District Forum and has argued that the impugned order is just and proper and does not suffer from any infirmity and illegality and does not call for any interference by this Commission. The appellant (complainant) violated the terms and conditions of the insurance // 11 // policy, therefore, the respondent (O.P.) has rightly repudiated the claim of the appellant (complainant). Hence, the appeal is liable to be dismissed. He placed reliance on Delhi Assam Roadways Corporation Limited vs. United India Insurance Company Limited, IV (2013) CPJ 334 (NC).
9. We have heard learned counsel for the parties and have also perused the record of the District Forum.
10. The appellant (complainant) filed a document Annexure 16 which is photocopy of insurance policy. According to the said insurance policy, the appellant (complainant) obtained Marine Cargo Insurance Policy No.451203/21/10/04/00000134 for the period from 16/12/2010 to 15/12/2011. In the complaint, the complaint pleaded that on being received an order from Nilesh Steel and Alloys Private Limited, Jalna Mahashtra for supply of sponge iron, the appellant (complainant) after loading the sponge iron in truck bearing registration No.C.G.-07-E-8368 of Bengal Maharashtra Roadway, Raipur to Nilesh Steel and Alloys Private Limited, Jalna, Maharashtra vide bilty No.990 and 991 on 14.08.2011 and the price of the goods was Rs.10,47,607/-. The above goods was insured with the respondent (O.P.) under the insurance policy. The respondent (O.P.) admitted the above facts.
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11. The appellant (complainant) specifically pleaded in para 3 of the complaint that on 16.08.2011, when the above truck reached Bagh Nadi, Near Bullard Paam, it fell down in the River due to technical problem. On account of this, the entire sponge iron kept in above truck was damaged due to sinking and flowing. The appellant (complainant) filed Spot Inspection Panchnama (Annexure 1). The appellant (complainant) has also filed a letter dated 16.08.2011 (Annexure 2), which was sent by the appellant (complainant) to the Manager, Bengal Maharashtra Roadways, G.E. Road, Tatibandh, Raipur (C.G.) in which it is mentioned that the said vehicle has met with an accident at Pounar on Nagpur - Wardha Highway. The material has got fully damaged and is now unusable. As per invoice, the value of the material was Rs.10,47,607.00 (Rs. Ten Lakh Forty Seven Thousand Six Hundred Seven Only) along with taxes. Document Annexure 17 is Survey Report dated 20.08.2011, which was given by Shri D.K. Khedkar, Surveyor. In the Survey Report, it is mentioned thus :-
"OUR FINDINGS :
01. ................
02. The truck was found fully submerged in the River water, which is flooded due to rainy season. I have found 5/6 swimmers trying to locate the truck in the submerged water, and they found it some 5' away from the bridge, on the L.H.S. while going towards Wardha.
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02. As can be seen in the enclosed photographs, there are 2 bridges on the same river [Dham River] at Pawnar village. Incidentally, Pawnar is a famous tourist spot, being the place, where Mahatma Gandhi has stayed many years, and nearly all the bigwigs in political circle visits the place regularly.
03. One Bridge, [Newly constructed] is located on the L.H.S. as can be seen in the photographs, is having 2 lanes, and the smaller one [Old Bridge], is there where hardly one vehicle pass at a time. If two vehicles comes from opposite direction, then it becomes an extremely difficult crossing.
04. As learned, the New bridge was closed due to an accident on the bridge. Hence the traffic was being diverted from the old bridge. In an attempt to cross the bridge, and giving side to vehicle from opposite side, the truck mentioned above, was moving from extreme L.H. corner. Somehow, its one wheel skidded and came down the bridge. In attempt to see, what has gone wrong, Driver stepped down from the truck. However, the facts regarding Accident on the Larger bridge and diversion of traffic could not be confirmed, officially in any way."
In the Survey Report, under the head Police Panchnama :-
It is also mentioned that police visited to the Accident spot on 17/08/2011, after the written intimation given by one Mr. Prafulla S/o Bhayyaji Chawake. Truck Owner Mr. Pramod S/o Shyamrao Wanjari, was available at the Accident spot & he provided all the details to the Police.
In the Survey Report, against the column Cause of Loss :
It is mentioned that as is evident the cause of loss is damages due to heavy rains enroute.
The Loss is covered under Policy Perils.
In the Survey Report, against the column of Salvage Value: It is mentioned that there is no Salvage value as all the material is offloaded in River basin, while lifting the Truck with the help of 2 Cranes.
Even, if some material would have been left, it was useless, as the same is not usable after reaction with water."
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12. From the bare perusal of the Survey Report, it appears that vehicle Truck bearing registration No.C.G.07-E-8368 met with accident and goods which were loaded in the said vehicle was completely damaged to sinking and flowing.
13. The main ground of repudiation of the claim of the appellant (complainant) by the respondent (O.P.) is that at the time of accident the loading capacity of truck was 17,000 Kgs while the same is loaded with 40,000 Kg which is quite a exorbitant overloading which comes under violation of Policy condition, Motor Vehicle Act and also comes under negligence.
14. In Invoice Cum Challan (Annexure 4) the quantity of the Sponge Iron has been mentioned as 24.000 MT. Even in the bility (Annexure 5) it is also mentioned that the actual weight of Sponge Iron is 24.000 MT.
15. In Oriental Insurance Company vs. Girbar Sinh Nandwanshi & Anr. 2015 (3) CPR 299, Hon'ble National Commission has observed that "the claim repudiated on ground of overloading, in a case of overloading claim has to be processed on non-standard basis. In case of overloading of a vehicle, beyond licensed carrying capacity, claim preferred by Insured should be paid @ 75% of admissible claim."
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16. In Oriental Insurance Company Limited & Anr. vs. Rajak 2015 (3) CPR 375 (NC) Hon'ble National Commission has observed that "In case of overloading of vehicle beyond licence carrying capacity claim is admissible upto 75% on non-standard basis."
17. The facts of the judgments relied by the appellant (complainant) and the facts of the instant case are similar, therefore, on the basis of above judgments cited by the appellant (complainant), we are of the view that the judgments relied by the respondent (O.P.) will not help the respondent (O.P.).
18. In the instant case, the Surveyor was appointed by the respondent (O.P.), who inspected the place of accident and gave his Survey Report. In his Survey Report, he assessed loss to the tune of Rs.10,47,607.00/-. The Surveyor is an independent person and the Report of the Surveyor is a reliable document and cannot be brushed aside lightly. It is well settled law that a surveyor's report has significant evidentiary value, unless is proved otherwise. In the instant case, both the parties have filed Survey Report dated 20.08.2011 of Shri D.K. Khedkar, Suveyor, in which he assessed loss to the tune of Rs.10,47,607/-, therefore, the appellant (complainant) is entitled to get 75% of Rs.10,47,607/- towards compensation on non-standard basis, which comes out to Rs.7,85,705/-.
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19. Therefore, we hold that the appellant (complainant) is entitled to get a sum of Rs.7,85,705/- towards compensation from the respondent (O.P.).
20. Hence, we allow the appeal filed by the appellant (complainant) and set aside the impugned order dated 13.03.2015, passed by the District Forum and it is directed that the respondent (O.P.) will pay within a period of one month from the date of this order a sum of Rs.7,85,705/- (Rupees Seven Lakhs Eighty Five Thousand Seven Hundred and Five Only) towards compensation to the appellant (complainant) along with interest @ 9% p.a. from the filing of the complaint i.e. 23.09.2013 till realisation. The respondent (O.P.) will also pay a sum of Rs.5,000/- (Rupees Five Thousand only) towards cost of litigation to the appellant (complainant).
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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