State Consumer Disputes Redressal Commission
Mr. Ashish V Shah vs National Insurance Co Ltd on 4 January, 2018
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
FIRST APPEAL NO. A/13/126
(Arising out of order dated 30/04/2013 passed by South Mumbai
District Forum at Parel, Mumbai in CC/10/191)
Mr.Ashish V. Shah,
Prop. Of "Ashish Steel"
Off. At - 410, 4th floor, Bussa Industrial Estate,
S.N.Lane, Off. G.K.Marg, Behind Penunsula
Corporate Park, Lower Parel, Mumbai 400013.
.....Appellant
Versus
National Insurance Co. Ltd.,
Divisional Office No.8,
United India Building, 3rd floor,
Sir P.M.Road, Fort, Mumbai 400 001. .........Respondent
BEFORE: Justice A.P.Bhangale, President
D.R. Shirasao, Judicial Member
PRESENT:
For the Appellant(s) : Advocate Mr.Ganesh Shirke
For the Respondent(s) : Advocate Mrs.Sneha Dwivedi
ORDER
Per Mr.D.R.Shirasao, Judicial Member [1] Being aggrieved by judgment and order passed by the learned District Consumer Disputes Redressal Forum, South Mumbai District at Parel, Mumbai in consumer complaint no.191/2010 on 30/04/2013 dismissing consumer complaint, complainant has preferred this appeal.
[2] Brief facts of the case are as under:-
Complainant had filed consumer complaint for getting insurance 2 claim along with costs and compensation against the opponent. Complainant submitted that complainant imported 49 bundles of Crane Rails under invoice no.ASZZ-ASHISH-00908 dated 21/03/2008. To insure said consignment against all risks during transit from China to JNPT/Mumbai and from there to Kalamboli, complainant had obtained marine insurance policy from opponent to insure the said consignment. The policy was bearing no.250800/21/07/4300002168 covering risk for an amount of Rs.79,30,472/- and for that purpose, complainant had paid premium of amount of Rs.16,304/- to the opponent. Said consignment was entrusted to Gudami International Pvt.Ltd. as their custom house agent to complete all formalities and to take safe delivery of consignment on behalf of the complainant. Complainant had appointed M/s.R.R.Nayak & Co., surveyor for supervising and surveillance the clearance and delivery of the said consignment. Accordingly, the surveyor had conducted the survey and supervision on 09/06/2008, 10/06/2008, 11/06/2008, 12/06/2008 and 14/06/2008. The complainant submitted that in presence of surveyor, out of 49 bundles, 35 bundles were cleared and loaded onto lorries for onward dispatch to final destination. Complainant submitted that the surveyor confirmed that 14 bundles were not traceable and hence the surveyor had given report about shortage of 14 bundles. The custom house agent of the complainant by their letter dated 7/06/2008 requested the opponent for appointment of surveyor for assessing the loss. Accordingly, the opponent appointed surveyor, M/s.P.M.Patel & co. for carrying out the preliminary survey and to assess the loss and to issue the survey report. Complainant submitted that M/s.P.M.Patel & Co. also noticed shortage and confirmed that 14 bundles of consignment are not available in the port for delivery. Complainant submitted that they had repeatedly requested to M/s.P.M.Patel & Co. for giving their survey report. However, they had not given survey report to the complainant. Complainant submitted that after taking delivery of 32 bundles, 35 pieces lying in premises of 3 dockyard. They were not matching with the specification, quality and quantity of the complainant's consignment. However, officers of the Mumbai Port Trust insisted the complainant for taking those pieces and clear the area of port. Complainant submitted that in order to minimize the loss of the complainant, he agreed to accept those 35 pieces. Complainant submitted that for that purpose, the custom house officers had also imposed heavy demurrage on the complainant. Complainant submitted that as M/s.P.M.Patel & Co., surveyor appointed by the opponent had not given their survey report, he was required to engage another surveyor to assess the loss. For that purpose, the complainant had appointed M/s.Wilson Surveyor and Adjusters Pvt.Ltd. for assessing the loss. Complainant submitted that by letter dated 03/07/2008, they had informed about the same to the opponent. Complainant submitted that M/s.Wilson Surveyor and Adjusters Pvt.Ltd. also inspected that 35 pieces lying in the port were accepted by the complainant to minimize the loss and thereby assessed the loss by issuing survey report on 07/07/2008. Complainant submitted that the cost of 14 missing bundles was Rs.21,73,968/-. However, as the complainant had taken away all 35 pieces worth Rs.10,14,575/-, loss suffered by the complainant had come to Rs.11,59,394/-. The complainant submitted that the complainant had required to pay Rs.8,027/- towards demurrage charges for the consignment for the period from 20/06/2008 to 04/07/2008 to the Mumbai Port Trust as the opponent had not given survey report in time. Hence, the complainant had made claim Rs.12,82,468/- with the opponent on 26/07/2008. Complainant submitted that M/s. P.M.Patel & Co., after about 3 months by letter dated 28/08/2008, demanded some of the documents from the complainant for issuing their survey report. Complainant submitted that although all the required documents given to M/s.P.M.Patel & Co., they failed to submit survey report. Complainant submitted that by letter dated 18/11/2008, surveyor had demanded the surveyor fees to the complainant.4
Complainant submitted that complainant had engaged another surveyor; they informed M/s.P.M.Patel & Co. that they may take charge from the opponent. Complainant submitted that surveyor had closed file of the complainant. Complainant had given reminders to the opponent for settlement of claim. However, the opponent by issuing letter dated 16/02/2009 informed the complainant that as he had appointed another surveyor, there is deviation in appoint of surveyor and he had not also given documents to the surveyor of the opponent and had not paid their fees and hence they repudiated the claim of the complainant. Hence, the complainant has filed consumer complaint for getting amount of Rs.12,90,495/- from the opponent along with interest and costs & compensation.
[3] Opponent contested complaint by filing written version on record. They submitted that the claim of the complainant was investigated by them thoroughly and after having satisfied itself that the claim is not proved and not maintainable under the purview of the said policy, the same has been closed as 'No claim'. They submitted that they have informed about the same to the complainant. They submitted that the complainant themselves have committed breach of terms and conditions of the policy and hence the complaint is therefore not maintainable under the law and is liable to be dismissed. Opponent submitted that the complaint involves complicated questions and intricacies which cannot be decided by this Commission. The opponent admitted that the complainant had taken Specific Voyage Policy bearing no.250800/21/07/4300002168 against all risks. They also submitted that by letter dated 17/06/2008, the complainant requested the opponent to depute a surveyor for assessing the loss, accordingly the opponent deputed M/s.P.M.Patel & Co., surveyor and assessor for conducting preliminary survey of the consignment. Opponent submitted that the complainant failed to give necessary documents to them and had not paid their fees. They submitted that as against this, the complainant had engaged another surveyor and 5 submitted survey report dated 07/07/2008 issued by M/s.Wilson Surveyor & Adjusters Pvt.Ltd. Hence there has been deviation in appointment of surveyor and thus the file of complainant was closed as no claim and informed him accordingly by letter dated 06/11/2009. Opponent denied that the complainant paid Rs.8,027/- towards demurrage charges for the consignment and also denied that the complainant suffered total loss of Rs.12,90,495/-. Opponent submitted that the complainant is not entitled to any relief against them as claimed or at all and prayed for dismissal of the complaint with costs.
[4] Considering rival contentions of the parties, learned District Forum has come to conclusion that the opponent was right in repudiating the claim of the complainant as the complainant had not co-operated with the surveyor appointed by the opponent for ascertaining loss and hence dismissed the claim. Being aggrieved by the same, complainant has filed this appeal.
[5] Learned advocate appearing for the appellant submitted that consignment was insured with the opponent. He submitted that the consignment of the complainant had been given to Mumbai Port Trust. 14 bundles were missing in it. At that time, 35 other pieces were lying in the premise of port trust. To minimize loss, the complainant had accepted those pieces at the insistence of officers of the port trust. He submitted that the custom house agent of the complainant had already informed about the same to the opponent. Opponent engaged their surveyor M/s.P.M.Patel & Co. He had also verified the loss. However, he had not submitted his report in time. He submitted that hence for clearing the delivery of consignment, the complainant was required to engage another surveyor, M/s.Wilson Surveyor and Adjusters Pvt.Ltd.
He had also noticed the missing consignment and 35 pieces accepted by the complainant to minimize the loss. He submitted that as the surveyor of the opponent had not given his report, under these 6 circumstances, complainant was required to engage another surveyor and as such there is no mistake at the instance of the complainant. He submitted that by accepting 35 pieces, he minimized the loss. He submitted that repudiation of the claim of the complainant by the opponent is not proper. He submitted that however the learned District Forum had not considered all these facts properly and rejected the claim of the complainant by dismissing his contention. He submitted that the appeal be allowed and order passed by the learned District Forum be set aside and consumer complaint of the complainant be allowed.
[6] Learned advocate appearing for the appellant for that purpose relied upon the following rulings:-
i. Order passed by this State Commission in Consumer complaint no.CC/07/37 dated 22/02/2013 in the matter of
- Yogi Enterprises vs. United India Insurance Co.Ltd. In this case, this Commission by relying upon the order passed by the Hon'ble Supreme Court in the case ofr Venkateswara Syndicate vs. Oriental Insurance Co.Ltd. reported in III (2009) CPJ 81 (SC); observed that appointment of second surveyor is not prohibited under the Insurance Act.
ii. I (2011) CPJ 112 (NC) - New India Assurance Co.Ltd. vs. Sukhdham India Pvt.Ltd. - In this case, the Hon'ble National Commission considered that the insurance company has given deficient service to the complainant and not given any surveyor's report, although surveyor was appointed by them.
iii. II (2006) CPJ 20 (NC) - Shri Krishna Woolen Mills Pvt.Ltd. vs. United India Insurance Co.Ltd. - In this case, the Hon'ble National Commission observed that repudiation of claim of the complaint on the ground of non-furnishing details 7 required by them more than two years is not proper. Surveyor could have assessed the loss on the basis of material supplied to them.
[7] Heard learned advocate appearing for the respondent/original opponent. She submitted that as per request of the complainant, opponent had already engaged surveyor M/s.P.M.Patel & Co. He had gone to Port Trust and verified the situation present there. He has also seen missing bundles. She submitted that for assessing loss of the complainant, surveyor demanded documents from the complainant. Complainant had not provided the documents and also not paid charges of that surveyor. Hence, that surveyor had not given their report and closed the case of the complainant as no claim. She submitted that without obtaining permission of the opponent, complainant appointed another surveyor, M/s.Wilson Surveyor and Adjusters Pvt.Ltd. and had made deviation in appointing another surveyor. Report given by such surveyor is not binding upon the opponent and it cannot be accepted by the opponent. She submitted that when 14 bundles were missing, the complainant had not claimed the amount for the same. She submitted that as against this, complainant had accepted 35 pieces lying there as per their invoice and minimized claim. She has also submitted that 35 pieces were not part of the consignment of the complainant and were not included in the policy. Hence, she submitted that in respect of amount of those pieces, the claim of the complainant cannot be considered. She submitted that as the complainant had not co-operated surveyor appointed by the opponent, opponent was constrained to close the case of the complainant and repudiated the claim. She submitted that opponent could not assess the loss and arbitration of the claim made by the complainant and therefore rejected the claim of the complainant. Hence, consumer complaint was liable to be dismissed with costs and hence appeal filed against that order be dismissed.
8[8] Learned advocate appearing for the respondent/opponent for that purpose relied on the order passed by this State Commission bearing no.CC/07/131 on 15/11/2016 in the matter of - Gayatridham Phase II Co-op.Hsg.Soc.Ltd. vs. 1. The New India Assurance Co.Ltd. & ors. In this case, claim was neither rejected nor accepted by the insurance company. The complainant had produced survey report of one surveyor. However, he was not licensed surveyor by IRDA. Hence, this Commission has not accepted report of that surveyor.
[9] Perused record of the case, evidence given by both the parties and documents produced on record. On perusal of the same, it has become clear that the complainant had imported 49 bundles of Crane Rails under invoice no.ASZZ-ASHISH-00908 dated 21/03/2008. The said consignment was sent to to JNPt/Mumbai from China port. Complainant had taken insurance policy of consignment from the opponent. The policy was bearing no.250800/21/07/4300002168 covering risk for an amount of Rs.79,30,472/- and for that purpose, complainant had paid premium of amount of Rs.16,304/- to the opponent. The consignment had reached to JNPT Port on 02/06/2008. In this case, it is an admitted fact that the complainant had appointed Gudami International Pvt.Ltd. as their custom house agent to complete all formalities and to take safe delivery of consignment on behalf of the complainant. Complainant had appointed M/s.R.R.Nayak & Co., surveyor for supervising the clearance and delivery of the said consignment. In this case, it is an admitted fact that while taking delivery of the consignment only 35 bundles were cleared and 14 bundles were missing out of 49 bundles. Hence, custom house agent of the complainant had informed this fact to the opponent and for appointing surveyor. Accordingly, opponent appointed M/s.P.M.Patel & Co. as surveyor for carrying out preliminary survey and to assess the loss. M/s.P.M.Patel & Co. had gone to the port trust office and confirmed that out 49 bundles, 14 bundles are missing. However, in that respect, surveyor of the opponent has not 9 given any preliminary report. Hence, the complainant had appointed another surveyor M/s.Wilson Surveyor and Adjusters Pvt.Ltd. for assessing loss of the complainant. Accordingly, M/s.Wilson Surveyor and Adjusters Pvt.Ltd. had conducted survey and noticed loss of 14 bundles of the complainant and submitted that the loss of the complainant is of Rs.21,93,968/-. It is the contention of the complainant that at that time 35 pieces were lying in the port area. They were not matching with the consignment of the complainant. However, officers of the port trust were insisting the complainant to receive the same. They had also imposed demurrage charges on complaint of Rs.8,027/- for the same. Complainant submitted that to minimize his loss although those pieces were not matching his consignment. Complainant had accepted the same. They were worth Rs.10,14,575/-. Reducing that amount, complainant had claimed amount of Rs.11,59,394/- from the opponent. However, surveyor of the opponent and finally opponent also repudiated the claim of the complainant. Hence, the complainant demanded that amount in this complaint along with demurrage charges of Rs.8,027/- charged by the port.
[10] Learned advocate appearing for the respondent/opponent has mainly taken objection on the ground that the complainant did not co- operate the surveyor of the opponent and appointed another surveyor on his own accord and had made deviation about the same. Hence, she submitted that the report given by the surveyor of the complainant in not binding on the opponent and cannot be taken into considered. However, contention of the advocate appearing for the respondent in this respect cannot be accepted. On perusal of record, it has become clear that consignment of the complainant had reached to JNPT port on 02/06/2008. Custom house agent of the complainant had appointed surveyor, M/s.R.R.Nayak for taking delivery of the said consignment. That work was going on till 14/06/2008 in presence of the surveyor. After taking final delivery, it was found that 14 bundles 10 were missing. They could clear only 35 bundles and delivery of the same was given to the complainant. As there was missing of 14 bundles. Custom house agent of the complainant had informed about the same to the opponent and requested for appointment of their surveyor. Accordingly, opponent had engaged M/s.P.M.Patel & Co. for verifying loss sustained by the complainant. Accordingly, officers of the M/s.P.M.Patel & Co. also visited office of the port trust and seen that 14 bundles of the complainant are missing. It is the contention of the complainant that at that time 35 other pieces were present in the premises of the port trust and officers of the trust insisted him to take all those pieces. Hence, he was in urgent need of the preliminary survey done by M/s.P.M.Patel & Co. However, surveyor of opponent had not given survey report to the complainant. Under these circumstances, complainant was required to engage another surveyor and he appointed M/s.Wilson Surveyor and Adjusters Pvt.Ltd. for assessing the loss sustained by them. Accordingly, M/s.Wilson Surveyor and Adjusters Pvt.Ltd. by verifying the situation ascertained that 14 bundles are missing and submitted survey report. It appears that M/s.P.M.Patel by giving letter dated 28/08/2008 for the first time had demanded some documents from the complainant for giving survey report and hence it has become clear that surveyor of the opponent remained idle for 2 to 21/2 months and had not given any survey report to the complainant. In view of the rulings on which the learned advocate appearing for the appellant/complainant has relied, it has become clear that appointment of second surveyor is not totally barred by the Insurance Act. We are of the opinion that looking into the facts and circumstances brought on record by complainant, it has become clear that as the surveyor of the opponent had not given survey report in due time to the complainant, the complainant was constrained to appoint another second surveyor and as such deviation in appointing surveyor was not due to mistake of the complainant, but due to mistake of the opponent. Hence, now the opponent cannot take 11 benefit of the same. Hence, we are of the opinion that the survey report given by M/s.Wilson Surveyor and Adjusters Pvt.Ltd. assessing the loss of the complainant can be taken in consideration.
[11] The learned advocate appearing for the respondent has also contested the case on the ground that why the complainant had accepted those 35 pieces lying in the premises of the port trust although they were not as per consignment of the complainant. She submitted that as those 35 pieces were not as per consignment of the complainant they were not covered under the policy issued by the opponent. Hence, she submitted that the claim of the complainant in that respect cannot be considered. However, contention of the learned advocate for the respondent in this respect cannot be accepted as the complainant is not demanding that amount from the opponent. On the contrary, that large amount has been deducted by the complainant from the total claim which he can make against the opponent. On perusal of the record, it has become clear that 14 bundles were missing. Price of the same is Rs.21,73,968/-. As the complainant had accepted 35 pieces lying in the premises of the dockyard worth Rs.10,14,575/-, he reduced the claim made against the opponent to Rs.11,59,394/-. We are of the opinion that as the amount in respect of those pieces is not claimed by the complainant from the opponent, contention of the opponent in this respect cannot be accepted. Hence, it appears that by reducing claim in respect of those 35 pieces, the complainant had demanded an amount of Rs.11,59,394/- only from the opponent. Opponent was required to pay the same to the complainant. Complainant was also required to pay demurrage charges of Rs.8,027/- as he could not clear the delivery of the consignment within stipulated period as he could not get the survey report from the surveyor appointed by the opponent. We are of the opinion that the complainant is also entitled to get that amount from the opponent as he required to pay the same because of mistake of the opponent. Complainant had claimed that amount from the opponent 12 by submitting his claim on 26/07/2008. However, opponent by giving letter dated 16/06/2009 finally repudiated the claim of the complainant. We are of the opinion that the grounds on which the opponent had repudiated the claim of the complainant are not proper and cannot be accepted. However, the learned District Forum has not considered this fact properly and dismissed the consumer complaint filed by the complainant. Hence, we are of the opinion that the appeal filed by the complainant/appellant is to be allowed and order passed by the District Forum is to be set aside by allowing the consumer complaint filed by the complainant. Hence, we proceed to pass the following order.
ORDER
1) The appeal is hereby allowed.
2) Order passed by the South Mumbai District Forum in consumer complaint no.CC/10/191 on 30/04/2013 dismissing the consumer complaint is hereby set aside.
3) The consumer complaint bearing no.CC/10/191 filed by the complainant against the opponent is hereby allowed.
4) The opponent is hereby directed to pay an amount of Rs.12,90,495/-[Rs.Twelve Lakhs Ninety Thousand Four Hundred Ninety Five only] to the complainant along with interest on that amount @9% p.a. from the date of lodging of claim i.e. 26/07/2008 till realization of the amount by the complainant.
5) The opponent is hereby also directed to pay compensation of Rs.1,00,000/-[Rs.One Lakh only] and to pay an amount of Rs.20,000/- [Rs.Twenty Thousand only] towards costs of the complaint and this appeal to complainant.
6) The opponent is hereby directed to pay the amount of 13 compensation and costs to the complainant within a period of one month from the date of passing of this order otherwise the opponent will have to pay an interest @9% p.a. on these amounts from the date of this order till realization of the amount by the complainant.
7) Free certified copy of the order be furnished to the parties forthwith.
Pronounced Dated 4th January, 2017.
[JUSTICE A.P.BHANGALE] PRESIDENT [D.R.SHIRASAO] JUDICIAL MEMBER pg