State Consumer Disputes Redressal Commission
M/S Beekay Engineering Corporation vs The New India Assurance Company Limited ... on 15 September, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.12/12
Instituted on : 20.07.2012
M/s Beekay Engineering Corporation,
45/47, Industrial Estate,
Bhilai, District Durg (C.G.) ... Complainant.
Vs.
1. The New India Assurance Company Limited.
Through : The Divisional Manager,
Choudhary Chambers, G.E. Road,
Bhilai, District Durg (C.G.)
2. The New India Assurance Company Limited,
Through : The Branch Manager,
Above Dena Bank, Nandini Road,
Bhilai, District Durg (C.G.)
3. The New India Assurance Company Limited,
Through : The Chief Regional Manager,
M.P. Nagar,
Bhopal, District Bhopal (M.P.)
4. New Dashmesh Road Lines,
Through : Its Proprietor Ram Gopal,
S/o Late Shri Tula Ram,
Office at Near Toll Tax Barrier, P.O. Chikamberpur,
Delhi U.P. Border, Ghaziabad (U.P.),
R/o : 548/B, Mansarowar Park, G.T. Road, Shadara
Delhi - 32 ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.K. Rastogi, for the complainant.
Shri P.K. Paul, for the O.P.Nos.1 to 3.
Shri Ashish Surana, for O.P.No.4.
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ORDER
Dated : 15/09/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking relief as under :-
(A) The OPs may be directed to pay the complainant, jointly or severally a sum of Rs.28,70,0138 (Rs. Twenty Eight Lacs Seventy Thousand and One Hundred Thirty Eight only) towards the value of non-delivered consignment weighing 45.345 of Steel Castings.
(B) To pay interest @ 18% per annum there on since the date of claim lodged till the date of claim lodged till the date of payment or till realization.
(C) To pay the sum of Rs.1,00,000/- towards mental torture and harassment in not settling the claim which is pending with the O.P.Nos.1 to 3 for the last 30 months.
(D) To pay cost of the litigation amounting to Rs.50,000/-. (E) Any other relief which the Hon'ble Commission deems fit to meet the ends of justice.
2. Brief facts of the complaint are that : the complainant had obtained a Marine Cargo (Open Policy) for transporting raw material, // 3 // machinery and other related items from anywhere in India to anywhere in India by Air, Rail, Road vide Policy No.451201/21/09/02/00000021 for a sum insured of Rs.5 Crores and per limit transit and location for Rs.1 Crores. The policy was for a period of one year commencing from 23.09.2009 to 22.09.2010. All risk including SRCC was covered and a three pages Insurance Policy was issued by O.P.No.2 on 23.09.2009 without any enclosure of Terms and Conditions of the Policy. During the currency of the policy, the consigner had dispatched 1 truck-trailer of Steel Casting through the road carrier, New Dashmesh Road Lines, Ex. Mandi Gobindgah, Punjab to Bhilai, District Durg (C.G.) under GR No.152 dated 05.12.2009 and GR No.074 dated 07.12.2009. The Consignment was loaded in Truck trailer No.HR-63-A-5802, for safe carriage and delivery at destination Bhilai. That under goods receipt No.152 dated 05.12.2009, from A.K. Multimetals Pvt. Ltd., 6 pieces weighing 35.065 MTs was loaded, valued at Rs.19,04,483/- and under goods receipt No.074 dated 07.12.2009 from KISCO CASTINGS 3 pieces weighting 13.280 MTS was loaded, valued Rs.9,65,655/-. That in normal course of transit, the consignment ought to have been delivered to the complainant within one week from the date of dispatch but the said consignment has not reached to destination station till date and has remained undelivered to the complainant. The consignment was not delivered within a reasonable period of time, the complainant continuously approached and made several correspondence with the // 4 // carrier. The carrier vide letter dated 25.12.2009 intimated that the Truck
- trailer with consignment is still untraceable and therefore, FIR has been lodged on 18.12.2009. By way of various correspondence with the carrier, it has been proved that the Truck - trailer was missing with the consignment resulting the non-delivery of the goods to the consignee (complainant). The carrier has also issued a non-delivery certificate dated 12.01.2010. The booked consignment was insured with the respondents immediately after the loss being know, it was intimated to the Insurance Co. vide letter dated 30.12.2009. Despite intimating the loss to the OPs and furnishing all the necessary and relevant documents the claim put forward by the complainant was not settled. Therefore, the complainant once again vide letter dated 08.04.2011 reminded to settle the long pending claim. The said letter was also followed by e-mail on 09.04.2011 to the OPs. The O.P.No.2 vide his e- mail dated 07.05.2011 repudiated its liability without assigning any reason but referring to some letter, which has not been received by the complainant. The claim of the complainant was not settled despite numerous reminders; once again a reminder was sent through e-mail dated 04.04.2012 to settle the claim immediately. The complainant was left with no other alternative but to send a legal notice to the O.P.No.1 through his counsel dated 10.06.2012, copy of the same was marked to Regional Manager, Bhopal to take early steps for settlement of the claim. The complainant also filed Rejoinder and pleaded that // 5 // the complainant had served mandatory notice to the carrier as stipulated under Condition 8.2 of the Indian Transit Clause (A) on 21.12.2009 and 30.12.2009. The complainant further averred that under Consumer Protection Act, 1986 mandatory notice is not required but the O.P.No.1 to 3 did not settle the claim of the complainant. Hence complainant filed complainant.
3. The O.P.Nos.1 to 3 have filed joint written statement. In the reply they admitted the para 1 of the complaint only to the extent that the O.P.No.2 has issued a Marine Cargo Open Policy No.451201/21/09/02/00000021 for a sum insured of Rs.5 Crores covering transit by Air, Rail or road of Raw Material, Machineries and Other related items subject of course to strict adherence to policy terms and conditions and exclusions inherent thereto and forming part and parcel of the policy, but the averments in para 1 of the complaint that only 3 page policy was tendered to the complainant has been specifically denied. The OPs complete set of documents including the policy enclosures containing the terms and conditions and exclusion clause were furnished to the complainant at the time of issuance of the policy. The OPs admitted to have received declaration of dispatch of 6 Pcs (35.650 MT) of Steel Castings vide vehicle No.HR-63-A-5802 of Transporter New Dashmesh Road Lines said to have been dispatched from M/s A.K. Multimetals and declaration of dispatch of 3Pcs (13.280 MT) from M/s Kisco Castings vide the same vehicle. The O.P.No.1 to 3 // 6 // denied that goods has not reached destination station till date. The complainant continuously approached and made several correspondences with the carrier is denied by the O.P.No.1 to 3. The Policy clearly mentions that in the event of any loss or damage which may result in a claim under the insurance immediate notice must be given to the policy issuing office or the nearest branch office. Nothing of the above sort has been exercised by the insured. Rather the intimation to the O.P.Nos.1 to 3 was exorbitantly delayed thereby infringing the policy terms. O.P.No.1 to 3 further pleaded that the complainant despite intimating regarding loss to the O.P.No.1 to 3, did not furnish all relevant documents as asked by the O.P.No.1 to 3 and the complainant failed to supply the required documents to the Insurance Company, therefore, the claim was not settled by the Insurance Company. As per I.R.D.A. directives it was not possible for the O.P.No.1 to 3 to keep the file open for a long time and hence the file was closed as "no claim" under intimation to the complainant. The O.P.Nos.1 to 3 denies having received any legal notice dated 10.06.2012 from the complainant. No deficiency in service has been committed by the O.P.Nos.1 to 3. The complainant is not entitled for getting any compensation from the O.P.No.1 to 3.
4. Initially, the complaint was filed by the complainant against The New India Assurance Company Limited, which is arrayed as O.P.No.1 to 3. During the pendency of the complaint, the complainant filed an // 7 // application under Order 1 Rule 10(2) CPC, which has been allowed by this Commission vide order dated 06.05.2014 and New Dashmesh Road Lines has been arrayed as O.P.No.4 in the complaint. The O.P.No.4 has also filed written statement.
5. The O.P.No.4 filed written statement and pleaded that the O.P.No.4 is not necessary party in the instant complaint case, as there is no grievance and claim against the O.P.No.4 raised by the complainant. The complainant has not averred any deficiency of service or negligence and misconduct on the part of the O.P.No.4 The O.P.No.4 has made all the efforts for recovery of the goods lost while transportation and has acted in due diligence by getting lodged the First Information Report with Musa Nagar Police Station, Sub - District Bhognipur, Kanpur Dehat (U.P.) on 18.12.2009, immediately when the trailer transporting the complainant's goods could not be traced. The goods entrusted by the complainant were transported through the trailer No.HR-63-A-5802 hired by the O.P.No.4 from Mr. Wazir Singh, who is registered owner of the vehicle. The averment made that the complainant continuously approached and made several correspondences with the O.P.No.4 has been specifically denied.
6. The complainant filed documents. Annexure C-1 is Insurance Policy, Annexure C-2 is copy of the goods receipt, Annexure C-3 is copy of the good receipt, Annexure C-4 is copy of invoice letter issued by A.K. Multimetals Pvt. Ltd., Annexure C-5, is goods receipt of // 8 // carrier, Annexure C-6 is letter issued by Kisco Casting, Annexure C-7 is invoice letter issued by Kisco Casting, Annexure C-8 is letter issued by Kisco Casting, Annexure C-9 goods receipt of carrier, Annexure C-10 is letter dated 25.10.2009 issued by carrier, Annexure C-11 is copy of FIR dated 18.12.2009, Annexure C-12 is letter dated 12.01.2010 issued by carrier, Annexure C-13 is information letter dated 30.12.2009 issued by the complainant, Annexure C-14 is letter dated 08.04.2001 issued by complainant , Annexure C-15 is copy of E-mail dated 09.04.2011 issued by complainant, Annexure C-16 is copy of repudiation letter through e- mail dated 07.05.2011 issued by O.P.No.2, Annexure C-17 is copy of email letter dated 07.05.2011 issued by complainant, Annexure C-18 is copy of email letter dated 04.04.2012 issued by complainant, Annexure C-19 is legal notice dated 16.06.2012 issued by advocate of the complainant, Annexure C-20 is final report, Annexure C-21 is non- delivery certificate, document Annexure C-22 is information letter issued by transporter on 16.12.2009, Annexure C-23 is letter issued by the complainant, Annexure - 24 is letter issued by complainant, Annexure - 25 is letter issued by the complainant, Annexure C-26 is letter issued by the transporter, Annexure C-27 is letter issued by the complainant, Annexure C-28 is acknowledgment.
7. The O.P.No.1 & to 3 have also filed documents. Annexure OP-1 is insurance policy with Policy enclosures, Annexure OP-2 is declaration details, Annexure OP-3 is declaration intimations, // 9 // Annexure OP-4 is declaration intimation, Annexure OP-5 is letter to M/s A.K. Multimetals Pvt. Ltd., Annexure OP-6 is letter to M/s Kisko Castings, Annexure OP-7 is Intimation letter dated 30.12.2009, Annexure OP-8 Police Final Report dated 09.01.2010, Annexure OP-9 is letter of Transporter dated 12.01.2010, Annexure OP-10 is letter dated 25.03.2011, Annexure OP-11 is ledger accounts of Kisco Castings, Annexure OP-12 is ledger accounts of A.K. Multimetals Pvt. Ltd., Annexure OP-13 is L/C receiving payment dated 22.05.2012, Annexure OP-14 is letter dated 03.10.2011 to transporter, Annexure OP-15 is letter dated 03.10.2011 to complainant, Annexure OP-15 is letter dated 03.10.2011 to complainant, Annexure OP-16 is reply by transporter dated 03.11.2011, Annexure OP-17 is Investigator's letter dated 15.10.2011 to complainant, Annexure OP-18 is Investigator's letter dated 15.10.2011 to transporter, Annexure OP-19 is Marine Claim Form, Annexure OP-20 is Investigator's letter to complainant dated 19.02.2012, Annexure OP-21 is Investigator's letter to transporter dated 19.02.2012, Annexure OP-22 is Non delivery certificate dated 24.02.2012, Annexure OP-23 is reply to Investigator's letter dated 24.02.2012, Annexure OP-24 is reply by complainant to Investigator dated 29.02.2012, Annexure OP-25 is Marine Investigation report dated 05.07.2012, Annexure OP-26 is Marine Special Claim Note, OP-27 is legal opinion.
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8. The O.P.No.4 also filed documents. Annexure R-4/1 is copy of quotations made to complainant, Annexure R-4/2 is copy of bill, Annexure R-4/3 is copy of cheque showing payment, Annexure R-4/4 is copy of certificate of registration, Annexure R-4/5 is copy of national permit, Annexure R-4/6 is copy of insurance policy, Annexure R-4/7 is copy of payment voucher, Annexure R-4/8 is copy of loading receipt, Annexure - R-4/9 is copy of order dated 07.01.2010.
9. On the basis of averments of both the parties, the points for determination are :-
1) Whether notice under Section 10 of The Carriers Act, 1865 is required in the instant case, if yes, then whether complainant has served such notice to the carrier and Insurance Company ?
2) Whether the complainant is entitled to receive compensation from the O.P.No.1 to 3 (Insurance Company), as mentioned in relief clause of the complaint ?
Discussions and its conclusion:
Question No.1.
10. Firstly, we shall consider whether notice under Section 10 of The Indian Carriers Act, 1865 is required in the instant case, if yes, then whether complainant has served such notice to the carrier and Insurance Company ?
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11. Shri R.K. Rastogi, learned counsel appearing for the complainant has argued that mandatory notice under Section 10 of The Indian Carriers Act, 1865, is not mandatory in the complaint case under Consumer Protection Act, 1986, even then the complainant sent notice to the carrier, which is proved by letters dated 21.12.2009 and 30.12.2009. He further argued that under Consumer Protection Act, 1986 mandatory notice is not required to be served to the carrier because notice is only required to be served in a suit and not in a complaint, therefore, under the rights of Subrogation, the recovery of the amount is protected and the amount is recoverable from the carrier. He further argued that as soon as the loss of consignment was intimated to the complainant, the same was immediately intimated to the Insurance Company, but the Insurance Company did not give any response to the claim of the complainant and has shut down its eyes and ears and has wrongly closed the file as "No Claim" . The delay was caused by the OPs and thus the OPs committed deficiency in service. The complainant has completely complied with the terms and conditions of the insurance policy and has timely reported the incident to the O.P.No.1 to 3 (Insurance Company), and therefore, the Insurance Company has wrongly closed the claim file as "No Claim". He further argued that according to Procedural Manual of Marine Cargo Claims the Insurance Company is under obligation to guide the claimant properly on receipt of claim intimation. He further argued that the // 12 // Investigator has not intimated the complainant regarding the investigation and he has not complied the Clause 3.8 of the said Manual.
12. Shri P.K. Paul, learned counsel appearing for the O.P.No.1 to 3 (Insurance Company) argued that provision of Section 10 of The Indian Carriers Act, 1865 is mandatory provision and also applicable in the complaint filed under Consumer Protection Act, 1986. The notice which is required to be sent to the carrier under Section 10 of the Indian Carriers Act has not been sent to the Insurance Company & carrier, therefore, the complaint of the complainant is liable to be dismissed on that count. The terms of the insurance policy have to be construed as it is and we cannot add or subtract something in the insurance policy. The Insurance Policy is binding on the parties and it is not open to interpret the expression appearing in policy in terms of common law. The complainant has not intimated the Insurance Company regarding the incident immediately as well as has not informed that how much loss was suffered by the complainant. According to document OP-7, the complainant intimated the Insurance Company and gave formal intimation regarding loss in transit. In the said document, there is no mention regarding loss suffered by the complainant. He further argued that O.P. No.4 filed complaint before Musa Nagar Police Station, Sub - District Bhognipur, Kanpur Dehat (U.P.) and after investigation the said report was found false and an offence under Section 182 was // 13 // registered against the informer. The complainant could not supply the relevant documents to the Insurance Company therefore, the claim file was closed as No Claim and the complainant was intimated in this regard by the Insurance Company vide letter dated 25th March, 2011 (document O.P.10). Document No.OP-11 and OP-12 are Statement of Account of the complainant. In document No.OP-11 there is entry regarding payment on account to the tune of Rs.9,65,655/- on 06.03.2010. In the said document there are entries made on 30.12.2010. It appears that a sum of Rs.9,65,655/- was received by the complainant. He further argued that the Investigator was appointed by the Insurance Company, who gave his report in which he found that the incident of theft was highly doubtful. Therefore, the complainant has not been able to prove that he suffered loss due to theft of the goods which were loaded in truck trailer and non traceable of the truck trailer.
13. Shri Ashish Surana, learned counsel appearing for the O.P.No.4 has argued that truck trailer was not traceable and matter was reported to Musa Nagar Police Station, Sub - District Bhognipur, Kanpur Dehat (U.P.) and after some time truck trailer was found near near Sonali Road, Sabji Mandi, Panipat, Haryana. Thereafter again intimation was given to Police and truck was found empty and loaded goods were taken away by some unknown persons. The matter was also again reported to concerned Police Station. The Judicial Magistrate First Class, having jurisdiction, ordered for investigation. It // 14 // appears that the truck trailer was stolen by some unknown miscreants and they took away the goods, which were loaded in the truck trailer. He further argued that the matter was immediately reported to Police Station Musanagar, Sub - District Bhognipur, Kanpur Dehat (U.P.) and the matter was also intimated to the complainant. There is no deficiency in service and negligence on the part of O.P.No.4, therefore, the O.P.No.4 is not liable to pay any compensation to the complainant, hence the complaint is liable to be dismissed.
14. We have heard learned counsels for both the parties and have perused the documents produced by the parties.
15. Clause 3.8 of the Procedural Manual of Marine Cargo Claims runs thus :-
"3.8. The processing of the claim intimation upto the appointment of Surveyor should be completed within 24 hours of its receipt."
16. Section 10 of The Indian Carriers Act, 1965 runs thus :-
"10. Notice of loss or injury to be given within six months.- No suit shall be instituted against a common carrier for the loss of, or injury to [goods (including container, pallets or similar article of transport used to consolidate goods) entrusted] to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.] // 15 //
17. In the case of Patel Roadways Ltd., vs. Birla Yamaha Ltd. (2000) 4 Supreme Court Cases 91, Hon'ble Supreme Court has observed thus:
"30. From the provisions of the Consumer Protection Act noted in the foregoing paragraph the position is clear that the consumer disputes redressal agencies, i.e. District Forums, State Commissions and the National Commission are vested with powers of adjudication of all types of consumer disputes. No exception is made in case of consumer disputes in which the allegations made in the complaint regarding deficiency of service causing damage to or loss of the goods are contested. Indeed finality is attached to the orders of the redressal agencies and provision is made for execution and implementation of the orders passed by them treating such orders as decree of the court. It is relevant to state here that on a perusal of the provisions of the Act it is clear that the scheme of the statute is to provide a hierarchy of redressal forums for attending to the grievances of consumers regarding deficiency in service promptly and give finality to the orders passed by the agencies. Therefore, it is difficult to accept the contention that the dispute redressal agencies provided in the Consumer Protection Act are not forums which have jurisdiction to entertain the complaints in which claims for loss or damage to goods entrusted to a carrier for transportation is seriously disputed."
18. In the case of P. Rama Rao vs. P. Nirmala and Others, (1997) 1 Supreme Court Cases 757, it is observed by Hon'ble Supreme Court that "Notice under Section 10 of the Carriers Act has to be issued, when the damage was caused to the goods, which is being carried due to an accident covered under the policy of insurance. So, a notice is required to be issued to the Insurance Company within six months from the date of the knowledge of the injury to or loss of the goods entrusted for carriage before filing the suit. In this case, such a notice was issued after expiry of six months from the date of the accident. The appellant - petitioner stepped into the shoes of the carrier i.e., P. Notice issued by the Indian Oil Corporation to the // 16 // petitioner as well as common carrier and the Insurance Company would not be construed to be a notice under Section 10 . Under these circumstances, it must be held that the suit against the Insurance Company would not lie, though a suit may lies against the common carrier."
19. In the case of Arvind Mills Ltd. Vs. Associated Roadways, 2004 CTJ 1041 (Supreme Court) (CP), Hon'ble Supreme Court has observed thus :-
"8. .................... Merely because the procedure under the Consumer Protection Act is summary in nature does not in any way warrant the abrogation of the requirement to serve notice under Section 10 of the Carriers Act before fastening any liability under that Act on the carriers."
20. In the case of Delhi Assam Roadways Corporation Ltd. Vs. B.L. Sharma, 2003 CTJ 491 (CP) (NCDRC), Hon'be National Commission has observed thus :-
"15. In P. Rama Rao v. P. Nirmala & others, 1997 (1) SCC 757 Supreme Court observed that reading of Section 10 of Carriers Act would make it clear that no suit shall be instituted against a common carrier for the loss or injury to the goods entrusted to him for carriage unless notice in writing of the loss or injury to the goods has been given to him before institution of the suit within six months of the time when the loss or injury to the goods first came to the knowledge of the plaintiff. If a notice as required by Section 10 is not issued a suit would not lie against the common carrier. In the case before the Supreme Court, however, insured had recovered the loss occasioned to him from the insurer in respect of his goods lost by the common carrier."
21. In the instant case, the complainant has taken a view that notice was not required to be served under Consumer Protection Act, 1986 even then notice was duly sent to carrier on 21.12.2009 and 30.12.2009.
// 17 // The complainant has filed copy of letter dated 25.12.2009 sent by New Dashmesh Road Lines to the complainant (document Annexure C-10). The complainant has also filed intimation letter dated 30.12.2009 sent to The Branch Manager, The New India Assurance Co. Ltd., Bhilai (Annexure C-13) and legal notice dated 16.06.2012 sent by Om Sai Associates, to the Divisional Manager, The New India Assurance Co. Ltd., Bhilai, District Durg (C.G.). In letter dated 30.12.2009 (Annexure C-13) which is written by Shri S.G. Mani, G.M. (Fin.), Beekay Engineering Corporation, Bhilai to the Branch Manager, The New India Assurance Company Limited, Bhilai, it is mentioned that "Since transportation is on our scope, materials from both the companies were loaded in single Trailor of the Transporter and the vehicle has left Mandi Gobindgarh for Bhilai with materials from both the Suppliers. On its way to Bhilai, the Trailor was lost in the State of Uttar Pradesh with the cleaner of the Trailor also missing. The incident has occurred between 9th and 13th December, 2009 and FIR has also been filed by the Driver of the vehicle. Till date the vehicle along with our materials is yet to be traced out by the U.P. Police and the search is going on.
Hence, we hereby lodge our formal intimation regarding loss in transit. We are enclosing the copy of First Information Report for your reference. Kindly do the needful."
22. Looking to the contents of document Annexure C-13, it appears that the complainant gave formal intimation to the Insurance // 18 // Company regarding missing of the truck trailer along with materials. Document Annexure C-14 is letter dated 8th April, 2011 sent by Shri S.G. Mani, G.M. (Fin.) Beekay Engineering Corporation, Bhilai to The Branch Manager, The New India Assurance Company Limited, Nandini Road, Bhilai in which it is mentioned that vide letter dated 30.12.2009 intimation has been given to O.P.No.1 to 3 (Insurance Company) regarding the transit loss occurred while transportation of our materials from Mandi Gobindgarh to Bhilai and the complainant requested to O.P.No.1 to 3 (Insurance Company) to do the needful for settlement of the claim immediately. Document Annexure C-19 is legal notice dated 16.06.2012 sent by Om Sai Associates, Durg (C.G.) to the Divisional Manager, The New India Assurance Co. Ltd. Bhilai, District Durg (C.G.). The said legal notice was issued to the Insurance Company in response to letter dated 25.03.2011 sent by the Insurance Company informing the complainant that his claim file has been closed as No Claim.
23. We have perused the documents produced by the parties. Document Annexure C-10 is dated 21.12.2009 and Annexure C-27 is letter dated 30.12.2009 sent by the complainant to the O.P.No.4 New Dashmesh Road Lines in which simple information regarding missing of the truck was given. In document Annexure C-27 it is specifically mentioned that "This is to inform you that we have authorized you as our approved transporter for loading of our materials from above mentioned // 19 // parties of Mandigobindgarh. Hence you will be held responsible for financial loss to us, in case of Non-Delivering the materials to us in safe condition."
24. Document Annexure C-10 and Annexure C-27 are containing simple intimation regarding the incident and both the letters would not fulfill the requirement of Section 10 of the Indian Carriers Act, 1865, therefore, it cannot be said that notice was given to carriers and Insurance Company under Section 10 of the Indian Carriers Act, 1865. Provision of Section 10 of the Indian Carriers Act, 1865 is mandatory condition and there is no document which shows that such notice was given to the Insurance Company or Carrier within six months from the loss or injury first came to knowledge of complainant. The complainant received information from the O.P.No.4 regarding the incident on 25.12.2009 and complainant simply sent letter to the O.P.No.1 to 3 (Insurance Company) on 30.12.2009 giving formal intimation regarding the incident. It appears that provision of Section 10 of the Indian Carriers Act, 1865 has not been complied with by the complainant. Merely because the procedure under the Consumer Protection Act is summary in nature does not mean that a notice as required under Section 10 of the Carriers Act is not to be served on a carrier before fastening liability on it.
25. In the instant case, the complainant did not comply with the mandatory provision of Section 10 of the Indian Carriers Act, 1865, // 20 // therefore, the complaint of the complainant is not maintainable and is liable to be dismissed.
Question No.2.
26. Now we shall consider Whether the complainant is entitled to receive compensation from the O.P.No.1 to 3 (Insurance Company), as mentioned in relief clause of the complaint ?
27. Bare perusal of document Annexure C-2 to C-9 reveals that the goods were booked in truck trailor bearing registration No. HR-63-A- 5802 through O.P.No.4 New Dashmesh Road Lines, from Ex. Mandi Gobindgarh, Pubjab to Bhilai, District Durg (C.G.). The documents filed by the complainant also indicates that the value of the goods is Rs.9,65,655/- and Rs.19,04,483/-. The complainant submitted that the goods were not delivered on its destination and he received letter dated 25.12.2009 from New Dashmesh Road Lines (O.P.No.4) intimating that truck trailer was untraceable and the matter was reported to Police Station Musa Nagar, Sub - District Bhognipur, District Kanpur Dehat (U.P.). The O.P.No.4 admitted the above facts in its written statement. Looking to document Annexure C-10, it also appears that the truck trailer was untraceable and First Information Report was lodged in Musa Nagar Police Station, Sub - District Bhognipur, Kanpur Dehat (U.P.) on 18.12.2009. The complainant also filed copy of First Information Report and order sheet dated 12.11.2010 passed by Judicial // 21 // Magistrate, Bhomnipur, Kanpur Dehat in Miscellaneous Case No.90/11/10 - 270 - 2009 Brijendra Singh vs. Unknown.
28. Now we shall examine whether the complainant suffered loss as mentioned in complaint ?
29. We have perused the documents Annexure C-2 to C-9. From bare perusal of the documents, it appears that the goods were booked for transportation in truck trailor bearing registration No.HR-63-A- 5802 through O.P.No.4 New Dashmesh Road Lines. Document Annexure C-10 is a letter dated 25.12.2009 written by O.P.No.4 New Dashmesh Road Lines to M/s B.K. Engineering Corporation (complainant) in which it is mention that trailor is still untraceable and First Information Report (FIR) was lodged with Police Station Musa Nagar, Sub District Bhognipur, Kanpur Dehat (U.P.) on 18.12.2009. Document Annexure C-11 is copy of FIR.
30. Looking to the above First Information Report (FIR), it reveals that O.P.No.4 New Dashmesh Road Lines lodged First Information Report in Police Station Musa Nagar, Sub District Bhognipur, Kanpur Dehat (U.P.) on 18.12.2009 regarding missing of truck trailor. Looking to document Annexure C-13, Annexure C-27 and OP-7, it appears that formal intimation was given regarding loss in transit to the Branch Manager, New India Assurance Company Limited, Bhilai on 30.12.2009 and to O.P.No.4 New Dashmesh Road // 22 // Lines on 30.12.2009. Document Annexure OP-7 is letter dated 30.12.2009 sent by the complainant to the Branch Manager, New India Assurance Company Limited, Bhilai giving intimation regarding loss in transit which was received in the office of O.P.No.1 to 3 on 15.01.2010. In the said letter it is endorsed that DM, BHILAI D.O. : Please take note of the above and advise us further action in the matter. Signature, date and seal of the Insurance Company are affixed in the said letter. It appears that the said letter was received by the Insurance Company on 15.01.2010 i.e. after near about 20 days of the incident.
31. The O.P.No.1 to 3 (Insurance Company) appointed Shri Deepak Kumar, Proprietor of M/s Risk Consultants, Kanpur as Investigator. Shri Deepak Kumar gave his detailed report dated 05.07.2012 and has opined that "In our opinion Post Deputation We tried to verify Incident of Loss at reported place of Loss and near by Locality but the Incident of Loss as reported not established. However as stated earlier in report that 1st I.O. FR was against Carrier/Driver which was hide by Insured Intentionally & 2nd I.O. FR which was submitted by Insured Confirming Non - Traceability of Consignments as reported, which lead to the claim under the aforesaid policy. The insured also not taken any action to protect the recovery from the carrier for the reason best known to them, but the way the insured is protecting the carrier suggest the possibility of collusion too. The Insurer may decide the liability as per terms and conditions of the policy; however a legal opinion is also advised before taking any decision."
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32. Legal opinion was also sought by the O.P.No.1 to 3 (Insurance Company) and one Bhatnagar & Associates, Advocates, gave their legal opinion dated 06.09.2012 to the Insurance Company in which it is mentioned thus :-
"There are other facts which has been explained by the investigator in his report which creates a doubt regarding the genuineness of the claim because the police authorities have found that there was no such incident and therefore recommended to initiate action against the complainant U/s 181, which clearly demonstrates the fact that the carrier has cooked up a false and fictitious story conniving with the insured to take undue benefits from the policies of Insurance.
The claim legally at this juncture has also become suit barred. The date of booking is 5th and 7th Dec. 2009 and a recovery suit against a carrier, under the rights of subrogation can only be preferred in the Civil Court within 3 years, that was upto 7th September, 2012.
Looking into the complete scenario of this case the claim which has been put forward by the insured violates major conditions of the policy. Secondly the insured has also unable to prove and demonstrate by legal and cogent evidence that the theft is genuine. Therefore the Insurance Company under these circumstances is left with no other alternative but to repudiate the claim on the grounds mentioned above. The repudiation letter should contain all the grounds of repudiation and the same may be sent to the insured under registered post AD."
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33. The incident of theft took place in the month of December, 2009. Document Annexure OP-10 is letter dated25.03.2011 sent by The New India Assurance Company Limited, Bhilai Branch to the complainant in which it is mentioned that "This has reference to your letter No.BKE/NIACO/2010-11/291 dated 30.12.2009 vide which an intimation was given to us. After that till date we have not received any relevant papers from your end in connection with the claim. The matter was well discussed time to time with your good officials but even after lapse of 15 months we have not received any kind papers or any communication reg. the developments in the matter from your end. Since it not possible for us to keep the claim file open for a long time presuming your non interest in the claim we are closing the file as "NO CLAIM". It appears that the complainant could not furnish relevant document which were required by the O.P.No.1 to 3 (Insurance Company) and when the Insurance Company has not received any relevant papers from the complainant, then the Insurance Company closed the file as NO CLAIM.
34. Shri Deepak Kumar, Risk Consultant specifically opined that the incident was doubtful. Shri Mahavir Bhatnagar, Advocate, who gave legal opinion on the matter also opined that the insured violates major conditions of the policy and the insured has also unable to prove and demonstrate by legal and cogent evidence that the theft is genuine. Affidavit of Shri Deepak Kumar, Risk Consultant has been filed by the // 25 // O.P.No.1 to 3. The report of Shri Deepak Kumar and his affidavit have not been rebutted by the complainant by leading cogent evidence. Shri Deepak Kumar is an independent Investigator and no material has been brought on record by the complainant for disbelieving the report given by Shri Deepak Kumar.
35. In document OP-8 it is mentioned that primarily it was observed by the concerned Police that report lodged by the O.P.No.4 New Dashmesh Road Lines is false and an offence under Section 182 was registered against lodger of the report. The complainant also filed a document i.e. Annexure C-20 which is order passed by Judicial Magistrate, Bhomnipur (Kanpur Dehat) passed in Miscellaneous Case No.98/11/10 - 270 - 2009 (Under Section 406 IPC) Brijendra Singh vs. Unknown. Initially final report (Khatma Prativedan 29/09) was accepted on 09.01.2010 and thereafter one Brijendra Singh filed an application for cancellation of acceptance of Khama Prativedan and the concerned Judicial Magistrate allowed the application and ordered for further investigation in the matter.
36. Looking to the above circumstances it is not clear whether charge sheet was filed against any person or again final report was accepted. No such document was filed by the complainant. Therefore, merely that direction for further investigation was given by the concerned Judicial Magistrate, it cannot be said that report submitted by Shri Deepak Kumar is unreliable.
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37. Looking to the facts and circumstances of the case, the complainant has not been able to comply with the provision of Section 10 of the Indian Carriers Act, 1865 and the incident of theft is also doubtful. The O.P.No.1 to 3 have specifically submitted that the complainant has not supplied the relevant documents as asked for by the O.P.No.1 to 3, therefore, the claim file of the complainant was closed as No Claim.
38. In view of above discussions, we are of the view that the complainant has not complied with the mandatory provisions of Section 10 of The Indian Carriers Act, 1865. For want of service of mandatory notice, the complaint of the complainant, is not maintainable. The complainant has not been able to prove that the incident of theft was occurred and the complainant suffered loss of Rs.28,70,138/-. Therefore, the complainant is not entitled to get any compensation. The complaint of the complainant is dismissed. No order as to the cost of this complaint.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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