State Consumer Disputes Redressal Commission
Sri Sumeet Agarwal vs The Regional Manager, Cro Ii, National ... on 26 July, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/168/2015 ( Date of Filing : 13 May 2015 ) 1. Sri Sumeet Agarwal Director, M/s D. Manoharlal(Shellac) Pvt. Ltd., Room no.24, 1st floor, Sarvamangala House, 5, Dr. Rajendra Prasad Sarani, Clive Row, Kolkata -700 001, West Bengal. ...........Complainant(s) Versus 1. The Regional Manager, CRO II, National Insurance Co. Ltd. 8, Indian Exchange Place, 6th floor, Kolkata - 700 001. 2. The Divisional Manager, National Insurance Co. Ltd. 28, Bidhan Sarani, 2nd Floor, Kolkata - 700 006. ............Opp.Party(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Complainant: Mr. Uttiya Saha Ms. Keka Chakraborty , Advocate For the Opp. Party: Mr. Debajit Dutta., Advocate Dated : 26 Jul 2018 Final Order / Judgement Sri Shyamal Gupta, Member
This complaint case is filed by M/s D. Manoharlal (Shellac) Pvt. Ltd. against the National Insurance Co. Ltd. over repudiation of its insurance claim for a sum of Rs. 43,59,619/- by the OP Insurance Company.
The case of the Complainant, in short, is that it took a Marine Insurance Policy being no. 154300/21/13/4300000227 in respect of an export consignment. The consignee, after inspecting the goods, found that all the goods were in damaged condition. Therefore, it reported the matter to the agent of the OP. Vide its letter dated 29-11-2013, the Complainant asked the OP Insurance Company to settle its claim. However, the OP repudiated the said claim which necessitated filing of this complaint case.
The OPs contested the case by filing WV. It is stated by the OPs that as per the policy terms and conditions the Complainant was under solemn obligation to immediately intimate occurrence of any peril. However, in this case, intimation was given after several days. Further allegation of the OP is that, Shellac being a very sensitive product, is required to be kept under controlled temperature. But, in this case, there is no proof that the goods were kept in controlled temperature. During inspection, the Surveyor on several occasions tried to obtain the data logger from both the Complainant as well as the consignee, but it was not provided to him. Besides that, during the survey work, it was established that the shellac cakes were covered by cotton bags only. Quite naturally, those cakes came in contact with the oxygen resulting which the cakes got hardened. According to the OP, such hardening of shellac cannot be considered as an event of fortuity, which was a primary condition for being entitled to any claim under the subject policy of insurance. Besides that, the agent, namely, W K Webstar International Pte Ltd. also by email dated 24-03-2014 explained in details about futility of said claim. As such, the claim of the Complainant being not falling under the category of fortuity event, was repudiated by the Insurance Company.
The core issue to be decided in this case is whether the Complainant is entitled to any relief.
Decision with reasons Parties were represented by their respective Ld. Advocates. Apart from hearing them, we have extensively gone through the documents on record, including the citations referred to in the matter.
Ld. Advocate for the OP Insurer argued that in terms of the insurance policy, it was obligatory on the part of the Complainant to convey due intimation about alleged damage to the Surveyor forthwith. However, it was communicated after nearly a week.
However, on going through the documents on record (email of W K Webster & Co. Ltd., London dated 24-03-2014), it transpires that the consignee, i.e., M/s Markaids (Malaysia) SDN, BHD did not discover the damage until 06-11-2013.
Ld. Advocate for the OP Insurance Company although refused to buy such claim; it is hardly believable that despite detecting damage to the consignment, the consignee simply kept mum for several days. It seems that neither the Surveyor nor the agent of the OPs, M/s W K Webster (International) Pte Ltd. found any fault with the consignee in this regard. On due consideration of the facts and circumstances of the case and in absence of any tangible proof to suggest any mala fide intention on the part of either the consignee or the Complainant, we deem it fit and proper to accord benefit of doubt to the Complainant in this regard.
Ld. Advocate for the OP Insurer suspected that the goods being not kept under controlled temperature, it got hardened. However, he did not put forth any material proof to suggest that there was any lacuna on the part of the consignee in maintaining the product properly. In fact, in the Survey report, it is clearly mentioned that the cargo was placed in the designated room under controlled temperature.
It is though alleged in the WV that the Surveyor repeatedly asked both the Complainant as well as the overseas consignee to provide data logger, no such communiqué is furnished on record by the OP Insurer, wherefrom it could be ascertained that the Complainant was ever communicated of such requirement by the Surveyor concerned. It is mentioned in the survey report that the Surveyor asked the consignee to provide data logger; but, there is no mention of such fact in the survey report that the Complainant was ever apprised of such requirement.
The Ld. Advocate for the OPs also tried to find fault with the quality of packing being done in respect of the consignment. According to him, due to improper packing that too with cotton bags, the shellac cane in contact with oxygen resulting which the same got hardened.
In this regard, the Surveyor's finding is worth mentioning:
"Packing/storing the flakes in plastic bags or plastic jars may help slow the hardening process but, over time, oxygen will permeate the plastic and harden the flakes. In this, flakes were inwardly packed in a cotton bag and outwardly in a carton and gunny sack thus oxygen can easily permeate and harden the flakes."
A bare reading of the aforesaid observation of the Surveyor makes it quite clear that there is no foolproof way to save the shellac from getting exposed to oxygen. An Insured is always expected to take reasonable care of the insured product. The OPs have not placed before us any standard packaging norm for shellac to suggest that putting the shellac in cotton bags was in contravention of standard packaging norm for such product.
Further, in this regard, the email of M/s W K Webster (International) Pte Ltd. carries immense significance. Relevant portion of their email is appended below which is self-explanatory.
"Although the Surveyor indicated in the report that their view is that the loss is due to inherent vice, we clarified the matter with the surveyor and our exchange of correspondence with them is attached for your easy reference.
As you can see from the same, it may not be easy to deny the claim on the ground of inherent vice for the following reasons:-
1)The consignee received similarly packed shipments from the same shipper in the past and there was no problem with those shipments.
2)The unstuffing took 2 hours and it did not take place in a room + 6 deg C and the shipment was stored in a designated room with a controlled temperature of 15 deg C.
3)The consignee did not clause the delivery receipt when they received it on 31 October, 2013.
4)The damage sustained to the shipment was not discovered until 6 November 2013, days after receipt of the same".
It becomes absolutely clear, in the light of aforesaid afterthought on the part of the Surveyor that, the instant claim could not be reasonably repudiated on any of the aforesaid grounds pointed out by the Ld. Advocate for the OPs.
Finally, the Ld. Advocate for the OPs' justified repudiation of Complainant's claim on the ground that no fortuity in the course of the transit was noted. However, we find that, the Surveyor derived at such conclusion without consulting the data logger. The Surveyor although blamed the consignee for not providing the same, in absence of copy(ies) of concerned correspondence(s), we could not find out, if the consignee was duly hard-pressed by the Surveyor to procure the same or it was merely a general requisition letter/email.
We find that that the shipment reached the destination dock on 30-10-2013 and the Surveyor prepared his report on 04-02-2014. In our considered opinion, before finalizing his report, the Surveyor could caution the consignee about the prospect of placing an adverse report in absence of the data logger or could ask the Complainant to impress upon the consignee to expedite procuring the said evidence.
The concerned agent, M/s W K Webster (International) Pte Ltd. advised to argue that since the shipment was kept in a controlled temperature, the possibility of such extensive damage within a period of just 6 days of reaching the consignment at its destination port was quite remote.
The approach of all concerned - be it the Surveyor or the OP Insurance Company or M/s W K Webster (International) Pte Ltd., makes it abundantly clear that they were hell bent repudiating the instant claim by hook or crook. In absence of any tangible proof to find fault with the consignment concerned, clearly, they resorted to surmises and conjecture. Such approach on the part of the Insurance Company sets very poor precedent. It is indeed unfortuante that the Surveyor did not arrange for forensic analysis of the damaged shellac in order to unearth the truth.
Survey report carries immense importance in order to determine the fate of a claim. Thus, the job of survey cannot be taken so lightly. The Surveyor went on finding fault with the instant claim one after another only to backtrack subsequently in respect of most of his own findings/observations as it transpires from the copy of email written by M/s W K Webster (International) Pte Ltd. While the fortune of the Complainant was at stake, it is indeed surprising that the Surveyor did not get in touch with him to create due pressure upon the consignee to obtain the data logger, but simply submitted the survey report based on sheer guessing.
We afraid, surmises and conjecture being the DNA of survey report in question, we cannot accept it at its face value. In our considered opinion, the instant claim was illegally repudiated and therefore, we cannot endorse such arbitrary decision of the OPs.
The case, thus, succeeds.
Hence, O R D E R E D The case stands allowed on contest against the OPs with a cost of Rs. 25,000/-. The OPs are directed to pay Rs. 43,59,619/- within 40 days from today along with simple interest @ 9% p.a. from the date of filing of this case, i.e. 13-05-2015 till full and final payment is made, i.d., the Complainant shall be at liberty to execute this order in accordance with law. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER