State Consumer Disputes Redressal Commission
Shri Ram Industries Thrue Propriter ... vs The Oriental Insurance Co.Ltd. Thrue ... on 16 April, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/13/24
Instituted on : 03.10.2013
Shri Ram Industries,
Through : Proprietor - Smt. Rashmi Lakhotia, Age 43 years,
W/o : Shri Bharat Lakotia,
Office - 31 & 42, Industrial Area, Rasmadha,
Durg, Tehsil & District Durg (C.G.) ... Complainant.
Vs.
1. The Oriental Insurance Company Limited,
Through : Divisional Manager,
Office - Parmanand Bhawan, G.E. Road,
Tehsil & District Durg (C.G.)
2. Shri Pawan Bhagwani,
Surveyor & Loss Assessor,
R/o : Deshlahra Nagar, Sindhi Colony,
Durg, Tehsil & District Durg (C.G.)
3. Shri Shyam Chhabra,
Surveyor & Loss Assessor,
L-8, Avanti Vihar Colony,
Near Vidya Niketan School,
Raipur, Tehsil & District Raipur (C.G.)
4. Proprietor,
Diamond Road Lines,
Fleet Owners & Transport Contractors,
Godown No.108, Truck Terminal,
Near Libra Weight Bridge,
Kalamboli, Navi Mumbai 410218 ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Rastogi, for the complainant.
Shri L.K. Joshi, for the O.P.No.1 to 3.
Shri A.K. Lahiri, for the O.P.No.4.
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ORDER
Dated : 16/04/2015 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 following reliefs :-
(i) To direct the O.P.No.1 to pay Rs.43,32,988/- , which is total claim amount of 1,28,000 pieces of Super Temp Inserts, which were brought to Durg from Italy under Marine Open Cover Policy.
(ii) To direct the O.P.No.1 (Insurance Company) to pay interest @ 18% p.a. on entire claim amount from date of damage till final realization.
(iii) To direct the O.P.No.2 & 3 to pay a sum of Rs.1,00,000/- towards compensation as they have submitted wrong Survey Report before the Insurance Company, thereby committing deficiency in service.
(iv) To direct the O.P.No.1 to pay a sum of Rs.1,00,000/- towards compensation for mental and physical agony.
(v) To directed the O.P.No.1 and 2 to pay a sum of Rs.17,000/-, as the complainant was required to obtain opinion of a Surveyor form Vishakhapatnam, for which he incurred a sum of Rs.17,000/-.
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(vi) To direct the O.P.No.2 & 3 to pay a sum of Rs.50,000/- towards cost of litigation and advocate fee to the complainant.
(vii) To direct the Insurance Company to pay any other compensation, as this Commission deems fit.
2. Briefly stated the facts of the case are that complainant is Proprietor of Shri Ram Industries, situated at Durg (C.G.). The complainant had obtained Marine Open Cover Insurance Policy from the O.P.No.1 and the insured amount was Rs.2.23,36,600/-. According to terms and conditions of the Cargo Insurance Policy, the consignment was to be delivered from Italy to Rasmadha, Durg via marine by road or by train and if in case the same was damaged during the transportation, the O.P.No.1 (Insurance Company) will be liable to indemnify to the complainant. On 09.07.2012, the complainant loaded consignment and the said consignment was reached at Mumbai on 30.07.2012 and after custom clearance, consignment was loaded in truck bearing registration No.P.B.06-D-2407 of Diamond Road Lines vide L.R.N.6493 on 01.08.2012. The said truck was coming to Durg on 04.08.2012, but during the transit period due to heavy rain, the consignment became wet. On 04.08.2012 when the truck was unloaded, then it was found that packets of goods were became heavily wet and were damaged. The truck driver Satish Kumar gave a certificate regarding above fact and it was declared that the goods were kept in 25 pallet in which total 780 boxes were found in which 212 cartons/boxes // 4 // were in good condition and other 568 boxes/cartons were badly damaged and were unusable. The complainant immediately gave intimation to Shri Chandresh Shrivastava, Development Officer of the O.P.No.1 and Shri Yogesh Vithlani, Divisional Manager of O.P.No.1 trough telephone regarding damages of the insured goods. On 05.08.2012, Shri Pawan Bhagwani, was appointed as Preliminary Surveyor by the O.P.No.1, who conducted preliminary survey and he found that 212 small boxes were in good condition and other 568 small boxes, which were unloaded in premises of the complainant, were badly damaged. Shri Pawan Bhagwani Surveyor submitted his Preliminary Survey Report before O.P.No.1 on 28.08.2012 vide Annexure C-5. The complainant sent legal notice to transporter Diamond Road Lines and its driver Satish Kumar (Annexure C-6). The O.P.No.1 issued claim form to the complainant and the complainant submitted claim form before the O.P.No.1. The complainant suffered loss to the tune of Rs.43,96,705/- but the Surveyor valued the price as Rs.43,32,989, and therefore, the complainant claimed a sum of Rs.43,32,989/- vide Annexure C-7. The complainant obtained instructions from Sidermes, Company of Italy, who sent a letter dated 16.08.2012 (Annexure C-8) mentioning that "the only way to ascertain the workable TC inserts and TOX, is to check the insulation. Insulation means the resistance between one of the two legs (Cu and CuNi pins) and the refractory cement, But the insulation test can be done only by // 5 // removing the steel cap, that means, every TC You Check cannot be used any longer. The above insulation (resistance) should be at least above 20 M (mega ohm) at 500 V.. Any insert below 20 M (mega ohm) is not reliable and is to be rejected. Such inserts should not be used in steel plants for taking temperature measurements, as it will give misleading reading and may result in nozzle choking during casting causing heavy loss of molten steel. Steel plants may impose heavy penalty on you in such a case, hence we will advise not to use such inserts at all." The said company specifically advised the complainant not to use the damaged goods. The O.P.No.1 appointed Shri Pawan Bhagwani and Shri Shyam Chhabra, as Surveyors for conducting joint survey. They came to the premises of the complainant and after holding after discussions with the complainant they prepared their Survey Report, but they submitted their report belatedly i.e. near about 3 months. According to Insurance Regulatory and Development Authority's Guidelines, it is incumbent duty of the Surveyor to submit his report within 30 days, but intentionally to help the O.P.No.1 the Surveyors submitted their report after 3 months and they assessed the loss to the tune of Rs.13,63,117/-. The O.P.No.1 sanctioned only Rs.9,82,134/- as against claim amount Rs.43,32,989/-. The Surveyors report was unreliable and biased and they gave their report on the instructions of the O.P.No.1 to help the O.P.No.1. The Surveyors were prejudice to the complainant & to help the O.P.No.1, they intentionally gave their // 6 // report on the instructions given by the O.P.No.1. O.P.No.2 & 3 wrongly mentioned in their Survey Report that only 35% of Super Temp Inserts were damaged, therefore, the report was not reliable and near about 1,28,000 Super Temp Inserts, were damaged. The testing of each and every piece is not possible for segregation method as the damaged pieces are huge quantity. The complainant is carrying out the testing in destructive manner as per advise of the manufacturer M/s Sidermes, Italy. There is no facility and knowledge available with the complainant for non-destructive testing. The cost of one piece is approximately @ Rs.30/- and the testing fee will range from 50 to Rs.300/- either in house or outside agency, which makes the 100% testing uneconomical and therefore, is not advised. Therefore, the claim bill for loss of 128000 pieces is Rs.43,32,988.92 which are thus treated as fully damaged is genuine and 1000 reimbursable, the complainant is entitled for Rs.43,32,988.92. The O.P.No.1 did not settle the claim of the complainant, hence the complainant filed complaint before this Commission seeking reliefs as mentioned in para 1 of this judgment.
3. The O.P.No.1 filed its written statement and averred that the Survey Report submitted by the Surveyor is reliable and cannot be doubted. The complainant intentionally disputed the above Survey Report. The transporter and driver had not taken precaution for security of the goods. The consignment was found to be loaded on a open trailer i.e. without walls and one torn tarpaulin was covered. Only // 7 // 35% of Super Temp Inserts were damaged. According to the Surveyor, the complainant only suffered loss to the tune of Rs.13,63,117/- and the complainant is only entitled for Rs.9,82,134/- which is 75% of the assessment amount i.e. Rs.13,63,117/-. The complainant is not entitled to get a sum of Rs.43,32,989/-.
4. The O.P.No.2 & 3 filed their joint written statement and averred that the complainant did not suffer loss to the tune of Rs.43,32,989/-. The test report was collected from various institutions and thereafter the Surveyor prepared their reports and submitted the same before the O.P.No.1. There is no delay in filing survey report and they gave their report independently and without any bias or malafide intention. The report is reliable. The consignment was found to be loaded on a open trailer i.e. without walls and one torn tarpaulin was covered. Thus, due to rains during transit the torn tarpaulin did not provide adequate protection therefore, the insrued's consignment suffered the loss during transit especially in rainy season and distance covering. The items of TC inserts is a very sensitive item and likely to be affected coming in contact of water then adequate steps and proper procedure of packing and care during transportation i.e. it had to be transported in a closed truck body and with proper and adequate cover of tarpaulin, the manufacturer should have provided polythene cover inside the corrugated boxes. It appears that proper security measure was not followed by the transporter. The damage was caused to the // 8 // consignment due to negligent act of the transporter and therefore, the complainant is not entitled to get any compensation, as mentioned in the complaint.
5. The O.P.No.4 has also filed its written statement and denied the allegations leveled by the complainant against it.
6. The complainant filed documents. Annexure C-1 is copy of firm registration, Annexure C-2 is copy of invoice of the goods supplied, and copy of packing list, Annexure C-3 is copy of Certificate of Insurance, Annexure C-4 is Damage Certificate issued by the truck driver, Annexure C-5 is copy of Preliminary Survey Report dated 28.08.2012 , which was submitted by Shri Pawan Bhagwani, Surveyor before the O.P.No.1, Annexure C-6 is copy of registered notice sent by the complainant to M/s Diamond Road Lines and postal receipt, Annexure C-7 is copy of claim form and estimated claim bill, Annexure C-8 is letter issued by Sidermes, a company of Italy on 16.08.2012, Annexure C-9 is copy of Joint Survey Report submitted by O.P.No.2 and O.P.No.3 before O.P.No.1, Annexure C-10 is application submitted for obtaining Preliminary Survey Report and Final Joint Report, Annexure C-11 is letter sent by the O.P.No.1 to the complainant regarding acceptance of a sum of Rs.9,82,134/-, Annexure C-12 is request letter sent by the Advocate on behalf of the complainant to Chairman Cum Managing Director of the O.P.No.1, Annexure C-13 is postal receipt, Annexure C-14 is acknowledgement, Annexure C-15 is copy of // 9 // reminder sent by the Advocate on behalf of the complainant, Annexure C-16 is postal receipt, Annexure C-17 is the copy of the reply sent by the Advocate of the O.P.No.1, Annexure C-18 is copy of letter dated 12.05.2013 sent by advocate on behalf of the complainant to the O.P.No.1 regarding salvage along with postal receipt, Annexure C-19 is copy of reply sent by the O.P.No.1 regarding salvage, Annexure C-20 is copy of Report of Shri K.V. Siva Krishna Murty along with bill. The complainant has also filed copy of Survey Report dated 23.08.2012 of Shri K.V. Siva Krishna Murty and photographs.
7. The O.P.No.1 has also filed documents. D-1 is Marine Cargo - Certificate of Insurance, D-2 is letter dated 28.02.2013 sent by the O.P.No.1 to the complainant, D-3 is letter dated 15.03.2013 sent by the O.P.No.1 to the complainant, D-4 is letter dated 21.03.2013 sent by the O.P.No.1 to the complainant, D-5 are photographs taken by the Surveyors.
8. Shri R.K. Rastogi, learned counsel appearing for the complainant has argued that the complainant had taken Marine Cargo Policy from the O.P.No.1 and during subsistence of the policy, the consignment was damaged due to heavy rains. The O.P.No.1 appointed Shri Pawan Bhagwani, as Preliminary Surveyor and he found that 212 small boxes were in good condition and other 568 small boxes, which were unloaded in premises of the complainant, were badly damaged. The complainant obtained instructions from Sidermes, Company of Italy // 10 // who sent a letter dated 16.08.2012 (Annexure C-8) mentioning that " the only way to ascertain the workable TC inserts and TOX, is to check the insulation. Insulation means the resistance between one of the two legs (Cu and CuNi pins) and the refractory cement, But the insulation test can be done only by removing the steel cap, that means, every TC You Check cannot be used any longer. The above insulation (resistance) should be at least above 20 M (mega ohm) at 500 V.. Any insert below 20 M (mega ohm) is not reliable and is to be rejected. Such inserts should not be used in steel plants for taking temperature measurements, as it will give misleading reading and may result in nozzle choking during casting causing heavy loss of molten steel. Steel plants may impose heavy penalty on you in such a case, hence we will advise not to use such inserts at all." He further argued that the complainant has been able to prove her case, and therefore, she is entitled for compensation of Rs.43,32,989/- from the O.P.No.1.
9. Shri L.K. Joshi, learned counsel appearing for the O.P.No.1 to 3 contended that the complainant has not been able to prove her case and evidence produced by the complainant is not sufficient to establish that she had suffered loss to the tune of Rs.43,32,989/- in the incident. The reports submitted by the O.P.No.2 & O.P.No.3 are reliable. On the basis of Reports of the Surveyor, the complainant is only entitled for Rs.9,82,134/-.
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10. Shri A.K. Lahiri, learned counsel appearing for the O.P.No.4 has argued that the O.P.No.4 delivered the goods to the complainant and if any damage was caused to the goods due to rain, then the O.P.no.4 is responsible for any loss, therefore, the complaint is liable to be dismissed against the O.P.No.4.
11. We have heard learned counsels for both the parties and have perused the documents filed by the parties.
12. In the instant case according to the complainant Super Temp Inserts were damaged due to rain and the cost of per piece of Super Temp Inserts is Rs.30/- and the complainant suffered loss Rs.43,32,989/-. The complainant specifically pleaded that the cost of testing of each Super Inserts was Rs.50/- to Rs.300/-, therefore, it is not advisable for conducting test of each and every piece and from the Certificate issued by the driver of the truck, it is established that near about 568 boxes/cartons were damaged and in 568 Boxes / cartons 1,28,000 pieces were kept, therefore, the complainant is entitled to get compensation. The complainant also filed report of Shri K. V. Siva Krishna Murty, Surveyor, Loss Assessor & Investigator, who gave his report vide Annexure C-20 which is placed at Page No.164 to 167. In page no.167, it is mentioned thus :-
// 12 // CONCLUSION / OPINION "1. During my discussion with claimant and as per thorough verified the documents I have confirmed that the testing of each and every piece is not possible for segregation method as the damaged pieces are huge quantity i.e. 1,28,000 pieces. Then the claimant is carrying out the testing in destructive manner as per advise of the manufacturer M/s Sidermes, Italy which has to be relied, so even if the piece turns out to be OK/safe then also it is of no use to the claimant after testing.
2. There is no facility and knowledge available with the claimant for non-destructive Testing.
3. The cost of one piece is approximately @ Rs.30/- and the testing fee will range from 50 to Rs.300/- either in house or outside agency, which makes the 100% testing in uneconomical and therefore, is not advised.
4. The claim bill for the loss of 1,28,000/- pieces is Rs.43,32,988.92 which are thus treated as fully damaged is genuine and 100% reimbursable".
13. Now we shall examine whether the report of Shri K. V. Siva Krishna Murty, Surveyor, Loss Assessor & Investigator, is more reliable and weightage can be given to his report as against the report submitted by the O.P.No.2 & 3 ?
14. O.P.No.1 to 3 delivered questionnaire to Shri K. V. Siva Krishna Murty, Surveyor, Loss Assessor & Investigator. He gave his reply in the form of his affidavit. In para 3 of his affidavit, he stated that he has not conducted any survey. He gave opinion report on 22.06.2013 at // 13 // factory premises of the insured . In para 5 of his affidavit, he stated that has inspected the damaged material only and has given his opinion according to his opinion report and according to him he gave his report on the basis of Lab Reports submitted by Shri Pawan Bhagwani and Shri Shyam Chhabra. It appears that Shri K. V. Siva Krishna Murty, Surveyor, Loss Assessor & Investigator gave his report only on the basis of report submitted by Shri Pawan Bhagwani and Mr. Shyam Chhabra and after inspecting the goods and he has not obtained any Lab Report independently.
15. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
16. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
"17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. // 14 // Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
17. In Shankarlal Virji Thakkar vs. United India Insurance Co. Ltd. 2015 (1) CPR 821 (NC), Hon'ble National Commission has observed thus :-
"7. The report of the Surveyor appears to be quite reasonable and just. There is no evidence whatsoever to 501 affected bags + other bags which were not counted. Thos bags must have fetched some amount. There is no reason to discard the report of the Surveyor. It is a balanced report. It has considered all the factors. It is well settled that the report of the Surveyor has to be given due weightage in view of the celebrated authorities of the Hon'ble Apex Court in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19, para 7, D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC).
18. In New India Assurance Company Ltd. vs. Balaji Emporium, I (2015) CPJ 588 (NC), Hon'ble National Commission has observed thus :-
"9. We are of the considered view that the report made by the Surveyor appears to be correct. It is bolstered by sold and unflappable evidence. He has also considered the income tax reports and entries in the stock registered. The conclusion of the State Commission is vague, evasive and leads us nowhere."
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19. On the basis of above judgments, Hon'ble National Commission has held that the report of the Surveyor appointed by the Insurance Company has to be given more weightage than other evidence. In the instant case, the Surveyors, Shri Shyam Chhabra and Shri Pawan Bhagwani submitted their report. Questionnaires were also delivered by the complainant to them. Both the Surveyors have gave reply to the questionnaire in the form of affidavits. Shri Shyam Chhabra, Surveyor in para 6 of his affidavit has specifically stated that he received telephonic instruction from The Oriental Insurance Company Limited, D.O. Durg on 04.09.2012 and accordingly he started survey. In para 14 of his affidavit he stated that equipment was tested at M/s Bhilai Institute of Technology, Durg and M/s Mahakaushal Electric Engineering Works and two other places. Details are in survey report at page no.9, 10, 11, 12, 13. The minimum expenses was Rs.50/- per piece and maximum at BIT Durg was Rs.300/- per piece. The same statement was also given by Shri Pawan Bhagwani, Surveyor in his affidavit. Shri Pawan Bhagwani, Surveyor submitted Marine Survey Report on 15.12.2011, in which he mentioned that "We discussed the cause of loss with the insured official and they showed their ignorance and explained us that they had received the consignment with damaged packing and few cartoons have pressed deshaped so in my opinion as the consignment was found damaged/affected a sea port also so the damage might have been due to loading unloading at // 16 // consignor and consignee end. Document C-5 is Preliminary Survey Report dated 28.08.2012 of Shri Pawan Bhagwani, Surveyor & Loss Assessor, in which it is mentioned thus :-
"5. The consignment was found to be loaded on a open trailer i.e. without walls and one torn tarpaulin was covered. Thus, due to rains during transit the torn tarpaulin did not provide adequate protection therefore the insured's consignment suffered loss during transit. Specially in the rainy season and distance covering.
6. The item of TC inserts is a very sensitive item and likely to be affected by coming in contact of water then adequate steps and proper procedure of packing and care during transportation i.e. it had to be transported in a closed truck body and with proper and adequate cover of tarpaulin. The manufacturer should have provided policy cover inside the corrugated boxes in my opinion.
7. Thus, as per my observations of the consignment on trailer I am of the opinion that there is gross negligence of the insured during inland transit taking consideration of the value of consignment and sensitivity of item due to contact of water".
20. Annexure C-9 is Marine (Final) Joint Survey Report dated 27.12.2012 submitted by Shri Shyam Chhabra and Shri Pawan Kumar Bhagwani, Surveyors & Loss Assessors. In the said Survey Report, they mentioned that it has not been specifically mentioned by the insured that which sample marked is the affected piece but as per the test report it appears that the C type of pieces are from the affected lot and rest A, B and D are from the carton boxes. They also mentioned in their report regarding Test report of M/s JSW Steel Ltd. Vijaynagar // 17 // Works, Toranagallu, District Bellari, Test report of Joint Inspection/Testing Report, Letter of M/s Sidermes (Supplier of this product) and details checking/testing of samples by outside agency and after inspecting the above material they gave their report. In the Final Survey Report it is mentioned thus :-
"Assessment :-
- In my opinion the rain water has affected the cartons on top layer and as in one carton there are 1000 pieces so all 1000 pieces cannot be declared to be affected and this has been proved by sample testing of pieces for its resistance at different places by the instrument meggar (as per the guidelines of insured and supplier). Thus the claim of insured is for 1,28,000 pcs. and testing of each and every piece is not possible in the opinion of insured as it was also discussed with him & he showed his inability on this point and further the insured is carrying out the testing in destructive manner so even if the piece turns out to be OK/safe then also it is of no use to insured after testing.
- The testing of 47 pieces was carried out by one independent agency at Raipur in a non destructive manner and the test results of same are enclosed herewith the report. This is a very significant point to be noted by the insurers that a method of non destructive testing can also be devised / formulated in these circumstances.
- The cost of one piece is Rs.30/- and the testing fees charged by M/s. BIT is Rs.300/piece and other agency M/s. Mahakaushal Engineering, Raipur charged Rs.50/piece so it is not economical also to proceed for testing of all affected pieces because it exceeds much above the claimed amount so from economic point of view this exercise would not be beneficial for the insurers. The insured is advised for carrying out tests // 18 // of each and every piece in a non destructive manner in his in-house laboratory as he is the beneficiary of the safe items.
- Thus, in our independent opinion the insured has to check some parameters according to which i.e. by in house testing in his laboratory he has to segregate the safe and affected pieces and utilize the safe pieces for his trade.
- The insured's claim for 1,28,000 pieces i.e. 128 nos. of carton boxes had contained 1,28,000 pieces of inserts and as per the packing list in one pallet there are 24 cartons so out of 24 cartons if upper layer cartoon and side cartons exposed to sky are taken to be affected then approximately as per observing the photographs of preliminary surveyor maximum of 6 cartons in one pallet can be taken to be partially affected by the rain water and as the entire carton/corrugated box has not been sunk/soaked in water. Further the contents of corrugated box have also been partially affected i.e. maximum 20-25% of corrugated box can be taken as affected, so in our opinion out of 21 pallets of claimed item i.e. total of 5,00,000 pieces of the affected cartons if taken to be 25% then it comes out to be 1,25,000 pcs. of inserts & as the insured has claimed for 1,28,000 so we have also taken that out of 500 nos. of corrugated boxes 128 nos. of boxes can be affected by water in different percentages.
- So now the question arises that out of 1,28,000 pieces what is the actual quantity of pieces which can be declared to be affected for which the insurers can be held liable subject to policy terms and conditions and rest can be treated as safe pieces and as this segregation has not been made possible by the insured practically and he has claimed for all the 1,28,000 pieces and we cannot allow all the 1,28,000 pieces just on the basis of doubt that as the outer packing i.e. corrugated box has been affected so all is the liability is of the insurers for these entire boxes i.e. the insurers liability is only for the affected items.
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- The sample tests carried out also showed mixed type of results and few safe pieces also showed the resistance below 20MΩ and few damaged pieces declared by the insured also showed resistance above 20MΩ.
- In a small sample of 27 pcs. of wet items 18% were found to be safe as per the resistance results and out of 10 pcs., which were safe/good pieces as per the insured it was observed that 20% of the pcs. are showing resistance below 20MΩ. Further the small sample tests carried out at M/s. MMTC and M/s. Surana Electricals all the safe and affected pieces showed resistance below 20MΩ. Thus in the lot of 1,28,000 pcs. it is also a possibility that 25%, 50% or 75% may be safe and could show resistance about 20MΩ and this can be stated with surety after testing of each and every piece that too in a non-destructive manner. But, this can be stated with surety that as in a sample of 27 pcs. 18% of the pieces were found safe so in large sample though it is a possibility but about more than 50% pieces would be in safe zone as the water has affected the upper layers and pieces kept on out side exposed to sky and we have collected the sample for testing on random basis i.e. it was not clear in the unpacked and loose consignment that which piece is from the box which was exposed to the sky.
- As 20% of the pieces from the safe lot showed insulation level below 20MΩ so this makes us to think that from the safe lot (as per insured claim) of 3,72,000 in this consignment the 74,400 pieces will show insulation level below 20MΩ. This is only for the information of the insurers.
Basis of Assessment :
- The insured has claimed for 100% of items segregated by him i.e. 1,28,000 pcs. and test results from different agencies such as M/s. BIT showed that 50% of safe pieces are showing resistance below 20MΩi.e. out of 04 pieces so insurers can decide for 50% of liability if this basis is taken further if the tests conducted at MMCT & M/s. Surana // 20 // Electricals are taken as sole basis then all the affected & safe pieces showed resistance below 20MΩ then the insurers can even make the claim as "no claim" as all the pieces of this sample lead us to complications and directionless/confused and make us to think that which piece is safe and which is affected/damaged. Further in the large sample of 47 pieces about 20% pcs. from affected proved to be safe & 20% pcs. from safe lot proved to be affected on the guidelines of resistance test directed by the insured. So, on the basis of this we have arrived to a justified figure that 35% pcs. from the lot of 1,28,000 pcs. can be considered for indemnification subject to policy terms and conditions as the cartons were noted to be wet by preliminary surveyor so it cannot be denied that loss has not taken place but % of loss is an unknown figure so on the basis of different tests & our experience we have recommended 35% of the loss.
- Thus, to conclude the matter and to reach to any result of all the exercise carried out for testing and inspection etc. and all the circumstances mentioned in our report we are of the opinion that out of 1,28,000 pcs. from the lot of 5,00,000 pieces the insurers can indemnity the insured for 35% of 1,28,000 pcs i.e. for 44,800 pieces subject to policy terms and conditions and same has been assessed in our assessment enclosed in the Annexure 'B'.
Remarks :
- The affected item 'Supertemp insert type 'S' is an imported item from Italy and insured has submitted resistance tests to substantiate his loss that the pieces have been affected by entry of water and could not serve the purpose desired.
- The inland transit of the consignment from Mumbai to Durg has taken place in an open trailer i.e. all the four sides of the carrying vehicle is without walls and further the tarpaulin cover provided over the loaded // 21 // goods was noted to be in badly torn condition so that in the event of rains there is no protection to the consignment.
- The said consignment is prone to be affected by water / moisture and this is known to the insured as he is in this business from a long time and in rainy season no sufficient and proper protection has been taken by the insured. This is for the information of the insurers.
- There has been gross negligence in packing and transportation procedure in our opinion. The consignment should have been transported in a closed trucks from sides and properly covered with sound quality of tarpaulin so that in the event of rains there should have been negligible or minimum loss even if due to heavy rains the water could have penetrated the tarpaulin.
- The loss could be of 10% had the insured/supplier taken sufficient care considering the rainy season and sensitivity of the item that it is easily affected by moisture/water.
- The supplier has not made any provision of fixing polythene inside the cartons/corrugated box and only one polythene cover has been wrapped on one pallet which is insufficient in my independent opinion considering the item to be sensitive/vulnerable to be affected by water/moisture. Further the supplier as well as the insured could not provide any manual or guideline regarding the international standards of packing of this type of material and in my opinion there must be some standard rules of it.
- We recommence the insurers to take appropriate action for the gross negligence of the insured regarding inland transportation which resulted in the loss of the consignment.
- We discussed the matter of packing with the manufacture/supplier M/s. Sidermes, Italy and as per their reply mail they have shown their // 22 // inability to provide any guidelines/manual regarding the packing of this type of material, which is vulnerable to be affected by water / moisture.
- The overseas transit takes place through sea and there is moist conditions while the transit takes place through sea and further during rainy season of 3-4 months the inland transit is also risky for these equipments. The supplier is not providing any polythene cover inside the corrugated boxes i.e. if rain water affects the corrugated boxes then the items inside the boxes are sure to be damaged and the insured will claim for the total loss of the items on the doubt that he cannot sell though it may be partially affected.
- In our corrugated box there are 1000 pcs. of inserts and all the 1000 pcs. cannot be affected by entry of water as the corrugated boxes have not been sunk inside the water but rain water has fallen over it from top and it have been arranged in stacks on wooden pallet so majority of boxes in between i.e. the top layer and boxes on sides have been mainly affected by the rain water and out of 1000 pcs. a certain percentage of pieces have been affected by the water moisture.
- In our opinion the insured has to test all the samples in their in house laboratory and conduct a non destructive testing to exactly segregate all the affected pieces. The insured is in this business from about last many years and practically they can understand that how they can best utilize these pieces as the good pieces are also showing less insulation than the desired.
- The insured did not cooperate in submitting all the terms and conditions on which they are selling the item thermocouple to the purchaser and they are very much concerned of the quality and further the insured did not provide us any information that what has been done in the past regarding any material being rejected in quality or gave wrong results then what action the purchaser has taken against them and what is their accountability and this point has cropped up because // 23 // the piece of safe box has also shown the resistance below 20MΩ so if this happens in any consignment which is not in claim then how it comes in the knowledge of insured i.e. seller".
21. On the basis of above material, Shri Shyam Chhabra and Shri Pawan Bhagwani, Surveyor & Loss Assessors, reached to the conclusion that the complainant suffered total loss of Rs..13,63,177/-. The details reasons for assessment of the said amount have been given by them in their Marine (Final) Joint Survey Report dated 27.12.2012.
22. In Sunanda Kishor Bhand & Anr. v. United India Insurance Co. Ltd. I (2014) CPJ 369 (NC), Hon'ble National Commission has observed thus :-
"11. It is well settled law that a surveyor's report has significant evidentiary value, unless is proved otherwise, which the complainant has failed to do so in the case. This view was taken in the case of D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) CPJ 272 (NC).
23. In D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) CPJ 272 (NC), Hon'ble National Commission has observed thus :-
"10. The facts pertaining to the insurance policy taken by the petitioner and his vehicle being buried under snow for several months is not in dispute, it is also a fact that because of the washing away of the roads and inclement weather where the tanker was stranded, it took several months before the Surveyor could get the vehicle inspected and this delay could not, therefore, constitute deficiency in service. We have carefully gone through the report of the Surveyor based on his inspection of the vehicle and note that he has meticulously listed out the // 24 // physical condition of the vehicle at the time of his inspection, which clearly indicates that no damage had been caused to the vehicle including to its engine and other mechanical systems. As a result of being buried under the snow, some paint had got chipped off from the body of the tanker and there was some external rusting and minor cracks in the tyre.
11. We see no reason to disbelieve the report of the Surveyor particularly since the petitioner has not been able to produce any credible evidence to contradict the same. The contention of the authorized agent of the petitioner that the Surveyor had admitted that the loss suffered was Rs.93,340 is not correct. In fact, in his report Surveyor has just quoted the assessment and the details of the repairs given by the petitioner.................."
24. In the case of Ashu Textiles v. New India Assurance Company & Anr., III (2009) CPJ 272 (NC), Hon'ble National Commission observed that "the Surveyor's report has to be given more weightage than the report of Fire Brigade and compensation to be assessed on basis of detailed survey report".
25. In Khimjibhai & Sons v. New India Assurance Co. Ltd., IV (2011) CPJ 458 (NC), Hon'ble National Commission observed that "It is to be noted that it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order."
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26. In the case of Ankur Surana v. United India Insurance Co. Ltd., I (2013) CPJ 440 (NC), Hon'ble National Commission observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
27. The complainant relied on the report of Shri K.V. Siva Krishna Murty, Surveyor, Loss Assessor & Investigator. Shri K.V. Siva Krishna Murty, was appointed by the complainant herself as Surveyor and the complainant herself paid a sum of Rs.17,000/- to him. It appears that Shri K.V. Siva Krishna Murty, was not an independent Surveyor, therefore, his report cannot be given weightage than Joint Survey Report submitted by Shri Shyam Chhabra and Shri Pawan Bhagwani. The complainant did not adduce any cogent evidence against the Survey Report given by Shri Pawan Bhagwani and Shri Shyam Chhabra, Surveyors. Merely, the Survey Report was submitted after three months by the Surveyors, it cannot be presumed that the Survey Report, was prepared by Shri Pawan Bhagwani and Shri Shyam Chhabra, Surveyors to help O.P.No.1.
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28. Shri Shyam Chhabra and Shri Pawan Bhagwani, Surveyor & Loss Assessors assessed total loss to the tune of Rs.13,63,117/- after making deduction, therefore, the Surveyors report is reasonable and the complainant has not been able to prove that the Surveyors have prejudiced to the complainant and they gave their report to help the O.P.No.1 (Insurance Company) malafidely.
29. The complainant could not produce any evidence to show that actually she suffered loss of Rs.43,32,988/-, therefore, the complainant is only entitled to get a sum of Rs.13,63,117/- on the basis of Final Survey Report of the Surveyors.
30. In the instant case, the O.P.No.2 & 3 are Surveyors and have been duly appointed by the O.P.No.1 and they conducted Survey and gave their report, therefore, if any loss has been suffered by the complainant, then the Surveyors are not responsible to indemnify the loss suffered by the complainant. The O.P.No.4 is a transporter and consignment was insured with O.P.No.1, therefore, O.P.No.1 only is liable to compensate the complainant, hence the complainant is entitled to get compensation from O.P.No.1.
31. The complainant prayed for granting a sum of Rs.1,00,000/- towards compensation for mental agony and interest @ 18% p.a. So far as compensation for mental agony is concerned, it appears that the Surveyors submitted their report after three months and after // 27 // receiving Survey Report, the O.P.No.1 only agreed to pay a sum of Rs.9,82,134/- to the complainant and the O.P.No.1 did not settle her claim immediately, therefore, the complainant is entitled for getting a sum of Rs.1,00,000/- as compensation for mental agony from the O.P.No.1.
32. So far as granting interest to the complainant is concerned, the complainant prayed for granting interest @ 18% p.a, which is on higher side. We find that the complainant is entitled for interest on Rs.13,63,117/- @ 9% p.a. from the date of filing of the complaint i.e. 21.10.2013 till realisation.
33. Therefore, we allow the complaint of the complainant in part and direct the O.P.No.1 (Insurance Company) to pay within two months from the date of this order a sum of Rs.13,63,117/- (Rs. Thirteen Lakhs Sixty Three Thousand & One Hundred Seventeen only) to the complainant along with interest @ 9% p.a. from the date of filing of the complaint i.e. 21.10.2013 till realisation. The O.P.No.1 (Insurance Company) is also directed to pay a sum of Rs.1,00,000/- (Rs. One Lakh Only) as compensation for mental agony and a sum of Rs.7,000/- (Rs. Seven Thousand only) to the complainant as cost of litigation.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/04/2015 /04/2015
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