State Consumer Disputes Redressal Commission
Amit Strips vs National Insurance Co.Ltd. & Anr. on 27 August, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/14/710
Instituted on : 16.10.2014
Amit Strips, Registered Partnership Firm
Having Its Office at Village Hirapur, Jarwai,
Sondongri Road, Raipur (C.G.).
Acting Through Its Authorised Signatory
Shri Pramesh Kumar S/o Shri Sunderlal Agrawal,
Aged 38 Years, Resident of : Village : Hirapur Jarwai,
Sondongri Road, Raipur (C.G.) ... Appellant
Vs.
1) Chairman & Managing Director,
Head Office, National Insurance Company Limited,
3, Middleton Street,
Kolkata - 700 061 (W.B.)
2) Branch Manager, Raipur Divisional Office,
National Insurance Company Limited,
Mobeen Mahal, G.E. Road,
Raipur (C.G.) .... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Nikhil Agrawal, for the appellant.
Shri D.L. Rathore, for the respondents
// 2 //
ORDER
Dated : 27/08/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 12.08.2014, passed by the District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum" for short), in Complaint Case No.403/2012. By the impugned order, the complaint of the appellant (complainant) has been dismissed by the District Forum.
2. The brief facts of the complaint are that the appellant (complainant) is registered partnership firm having its office at Village Hirapur, Jarwai, Sondongri Road, Raipur (C.G.). The complaint has been filed by Shri Pramesh Kumar, who is duly authorised by the firm. The appellant (complainant) obtained a Marine Cargo Policy inclusive of Coverage for RR TPND insurance policy bearing No.285100/21/10/4400000040, which was valid from 22.12.2010 to 21.12.2011 for insuring its product M.S. Angle, channel and/or other iron products during from its office address to anywhere across India. In the ordinary course of business, the appellant (complainant) sold its product vide bill No.171 dated 25.11.2011 to M/s. Garg Engineers, Ltd., M-49, Phase - 4, Industrial Area, Ghamariya, Jamshedpur, Jharkhand, through a broker M/s. M.K. Steel Agency, Shop No.216, Radha Mohan Tower, Bhaisthan, Raipur. The appellant (complainant) sold near about 16.520 ton @ Rs.36,686.93 per ton and total price of the // 3 // product was Rs.6,99,863.00. The said product was transported on 25.11.2011 on the vehicle bearing registration No.OR-11-D-3669 which was driven by the driver Dhirendra Pandey. The product was not delivered to the M/s Garg Engineers Limited. The appellant (complainant) received information from M/s Garg Engineers Limited regarding non-delivery of the transported product, then the appellant (complainant) reported the matter to Amanaka Police Station, Raipur, where First Information Report was recorded and the matter was also intimated to the respondents (OPs). The appellant (complainant) made claim before the respondents (OPs) but the respondents (OPs) did not settle the claim of the appellant (complainant) and repudiated his claim on 07.02.2012. Hence, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The respondents (OPs) filed their written statement and averred that the First Information Report was not lodged immediately before the concerned Police Station and intimation regarding theft of the vehicle was also not given to the respondents (OPs) immediately, therefore, the complaint is liable to be dismissed. The complaint was not filed by the authorized person, therefore, the complaint is not maintainable. The complainant is not a "consumer" of the respondents (OPs), therefore, the respondents (OPs) have rightly repudiated the // 4 // claim of the appellant (complainant). The complaint is liable to be dismissed.
4. Learned District Forum, after having considered the material placed before it by the parties, has dismissed the complaint.
5. The appellant (complainant) filed documents. Annexure C-1 is registration certificate dated 01.11.20104 of M/s Amit Strips, Annexure C-2 is Extract of Resolution passed at the meeting of all partners of Amit Strips, Held on 18.09.2012, Annexure C-3 is Insurance Policy No.285100/21/10/4400000040 dated 22.12.2010, Annexure C-4 is bill No.171 dated 25.11.2011 issued by Amit Strips, Annexure C-5 is Marine Inland Transit Declaration, Annexure C-6 is Consignment Note / Cum Bill, Annexure C-7 is First Information Report (Under Section 154 Cr. P.C.), Annexure C-8 is letter dated 21.02.2012 sent by Amit Strips to the Manager, National Insurance Company Limited, Raipur, Annexure C-9 is letter dated 07.02.2013 sent by Ajay Nakhale, Divisional Manager, National Insurance Company Limited, Raipur Divisional Office, Raipur (C.G.) to the appellant (complainant), Annexure C-10 is letter dated 17.07.2010 sent by the appellant (complainant) to the Manager, National Insurance Company Limited, Raipur Divisional Office, Raipur (C.G.).
// 5 //
6. The respondents (OPs) have filed terms and conditions of the insurance policy.
7. Shri Nikhil Agrawal, learned counsel appearing for the appellant (complainant) has argued that the product was booked through Tata Raipur Road Carrier and the product was loaded in vehicle bearing registration No.OR-11-D-3669, which was being driven by driver Dhirendra Pandey. He further argued that the product was not delivered to M/s Garg Engineers Limited, therefore, the provisions of The Carriage By Road Act, 2007 and The Carriers Act, 1865, are not applicable. The appellant (complainant) obtained Marine Inland transit basic Policy, in which theft was also covered. In term TPND the word "theft" is also covered. The product was not delivered to M/s Garg Engineers Limited and the product was utilized by the transporter and his driver and they misappropriated the product and the product was duly insured with the respondents (OPs), therefore, the appellant (complainant) is entitled to get compensation from the respondents (OPs). The respondents (OPs) have wrongly repudiated the claim of the appellant (complainant). The product was not transported by the transporter, therefore, provisions of Section 10 of The Carriers Act, 1865 and Section 16 of The Carriage By Road Act, 2007 are not attracted, hence notice is not required to be issued and the case of the appellant (complainant) is maintainable. Learned District // 6 // has erroneously dismissed the complaint of the appellant (complainant) without going through the facts of the case. The respondents (OPs) themselves issued policy, therefore, the terms and conditions of the Marine Cargo Policy are also binding on the respondents (OPs). The impugned order passed by the District Forum, is perverse and is contrary to law, therefore, the same is liable to be set aside. He placed reliance on orders of Hon'ble National Commission in First Appeal No.43 of 2008 - M/s Associated Road Carrier Ltd. vs. M/s Pioneer Products Ltd., order dated 04.08.2014; Revision Petition No.2417 of 2005 - Shree Vaidyanath Ayurved Bhawan Ltd. vs. Vishal Goods Transport Company and another, order dated 05.05.2008; & First Appeal No.190 of 2001 Transport Corporation of India Ltd. and another Vs. Oriental Insurance Company Limited & another and First Appeal No.191 of 2001 - Transport Corporation of India Ltd. & another vs. The Oriental Insurance Company Limited and another, order dated 13.10.2011.
8. Shri D.L. Rathore, learned counsel appearing for the respondents (OPs) has supported the impugned order passed by the learned District Forum and argued that notice under Section 10 of The Carriers Act, 1865 is mandatory and notice was not given by the appellant (complainant) to the transporter and the transporter is a necessary party in the complaint, but the appellant (complainant) has not arrayed the transporter as party in the complaint, therefore, the // 7 // complaint is liable to be dismissed. He further argued that theft, shortage and non-delivery of the product is not covered under the Marine Cargo Policy, therefore, the respondents (OPs) have rightly repudiated the claim of the appellant (complainant). The appeal of the appellant (complainant) is liable to be dismissed.
9. We have heard learned counsel for the parties and have also perused the record of the District Forum.
10. In the instant case, the respondents (OPs) did not plead regarding giving notice under Section 10 of The Carriers Act, 1865 or notice under Section 16 of The Carriage By Road Act, 2007 to the transporter. In the appeal, during the course of final arguments, the respondents (OPs) raised said objection.
11. Section 10 of The Carriers Act, 1865 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.]
12. Section 16 of The Carriage By Road Act, 2007 runs thus :-
"16. No suit or other legal proceeding shall be instituted against a common carrier for any loss of, or damage to, the consignment, unless // 8 // notice in writing of the loss or damage to the consignment has been served on the common carrier before the institution of the suit or other legal proceeding and within one hundred and eighty days from the date of booking of the consignment by the consignor."
13. In the instant case, the appellant (complainant) specifically pleaded that the product was booked through one road lines, Tata Raipur Road Carrier and the vehicle bearing registration No.OR-11-D- 3669 was being driven by driver Dhirendra Pandey. The appellant (complainant) also pleaded that the product was not delivered to M/s Garg Engineers Limited, M-49, Phase - 4, Industrial Area, Ghamariya, Jamshedpur, Jharkhand. The appellant (complainant) filed copy of the First Information Report. According to the appellant (complainant), the product was booked on 25.11.2011 and the matter was reported to the concerned Police Station on 03.12.2011 i.e. after near about 7 days. In the First Information Report, it is mentioned that in truck bearing registration No.OR-11-D-3669 MS Angle about 16.520 MT worth Rs.6,99,863/- was transported, but the same was not reached at the concerned place and product was not received by the consignee at the destination.
14. In First Appeal No.43 of 2008 - M/s Associated Road Carrier Ltd. vs. M/s Pioneer Products Ltd. (Supra), Hon'ble National Commission has observed thus :-
// 9 // "6. The said provision envisages that no suit/proceedings can be initiated against a Common Carrier for the loss of, or injury to the goods entrusted to him for carriage unless a notice in writing is given to him within six months of the time the loss or injury first comes to the knowledge of the party suing the Carrier. It is clear that notice under Section 10 of the Carriers Act postulates a notice in case where there is loss or injury to the goods. It is therefore, manifest that when the goods are not transported by the Common Carrier and are intentionally kept with themselves for whatever reason, the provision would not be attracted. Moreover, there is no specific format in which a notice under the said Section is required to be issued. Information about the loss or injury of the goods to the Carrier is sufficient compliance with the said requirement.
7. The scope and purport of Section 10 of the Carriers Act has been succinctly explained by the Hon'ble Supreme Court in Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd.
(2007) 3 SCC 142 as follows :-
Section 10 requires a notice in the manner set out therein, for initiation of a proceedings against a common carrier for loss of goods or injury to goods entrusted for carriage. The notice need not say specifically that it is issued under Section 10 of the Carriers Act, 1865. It is sufficient if the notice fulfils the requirement of Section 10, that is to inform the carrier about the loss or injury of the goods. Such notice under Section 10 will certainly be required where the common carrier delivers the goods in a damaged condition, or where the common carrier loses the goods entrusted for carriage and informs about such loss to the consignor/consignee/owner. The object of the section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make good the loss occasioned. But where there is no loss or injury // 10 // to the goods, but the common carrier wrongly or illegally refuses to deliver goods and the person entitled to delivery initiates action for non-delivery, obviously Section 10 will not apply. Similarly, where the common carrier informs the person entitled to delivery (consignor/consignee/owner) that the consignment is being traced and process of tracing it is still going on and requests him to wait for the consignment to be traced and delivered, but does not subsequently inform him either about the loss of the consignment, or about its inability to trace and deliver the consignment, the claim by the consignor/consignee, will not be for loss or injury to goods but for non-delivery of goods. The requirement relating to notice within six months in Section 10 will not apply to a claim based on such non-delivery. In fact Section 10 does not use words "non-delivery" of goods, but uses the words "loss of" or "injury to, goods". A case of "non-delivery" will become a case of "loss" of consignment, only when the common carrier informs that consignor / consignee about the loss of the consignment. (Emphasis added)."
15. In Revision Petition No.2417 of 2005 - Shree Vaidyanath Ayurved Bhawan Ltd. vs. Vishal Goods Transport Company and another (Supra), Hon'ble National Commission has observed thus :-
"6(a) ..............................
(b) In the Transport Corporation of India case, the Apex Court held, inter alia, as under [SCC 148, supra]:
"7. ... ... Section 10 requires a notice in the manner set out therein, for initiation of a proceeding against a common carrier for loss of goods or injury to goods entrusted for carriage. The notice need not say specifically that it is issued under Section // 11 // 10 of the Carriers Act, 1865. It is sufficient if the notice fulfils the requirement of section 10, that is, to inform the carrier about the loss or injury to the goods. Such a notice under Section 10 will certainly be required where the common carrier delivers the goods in a damaged condition, or where the common carrier loses the goods entrusted for carriage and informs about such loss to the consignor/consignee/owner. The object of the section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make good the loss occasioned. But where there is no loss or injury to the goods, but the common carrier wrongly or illegally refuses to deliver goods and the person entitled to delivery initiates action for non-delivery, obviously Section 10 will not apply. Similarly, where the common carrier informs that person entitled to delivery (consignor / consignee / owner) that the consignment is being traced and process of tracing it is still going on and requests him to wait for the consignment to be traced and delivered, but does not subsequently inform him either about the loss of the consignment, or about its inability to trace and deliver the consignment, the claim by the consignor / consignee will not be for loss or injury to goods but for non-delivery of goods. The requirement relating to notice within six months in section 10 will not apply to a claim based on such non-delivery. In fact section 10 does not use the word "non-delivery" of goods, but uses the words "loss of, or injury to, goods". A case of "non-
delivery" will become a case of "loss" of consignment, only when the common carrier informs the consignor / consignee about the loss of the consignment.
8. ............................"
// 12 //
16. 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."
17. 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.
// 13 // 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 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."
18. 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."
19. 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 // 14 // 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."
20. From the bare perusal of the order of the Hon'ble National Commission in First Appeal No.43 of 2008 - M/s Associated Road Carrier Ltd. vs. M/s Pioneer Products Ltd. (Supra), it is clear that when the goods are not transported by the Common Carrier and are intentionally kept with themselves for whatever reason, the provision would not be attracted and where there is no loss or injury to the goods, but the common carrier wrongly or illegally refuses to deliver goods and the person entitled to delivery initiates action for non- delivery, then Section 10 will not apply. In the instant case, the appellant (complainant) has not proved that the common carrier had not informed him regarding non-delivery or loss of the consignment. It appears that the transporter informed the appellant (complainant) regarding loss of the consignment, therefore, provisions of Section 10 of the Carriers Act and Section 16 of the Carriage By Road Act, 2007 are applicable in the instant case. The facts of the judgments cited by the appellant (complainant) is quite distinguishable from the facts of the instant case, therefore, the above judgments do not help the respondent (complainant). In the instant case, the appellant (complainant) did not send notice to the transporter / carrier under // 15 // Section 10 of The Carriers Act, 1865 or Section 16 of The Carriage By Road Act, 2007. The above provisions are applicable in the matter related to Consumer Protection Act, 1986. The appellant (complainant) did not serve notice upon the transporter under Section 10 of The Carriers Act, 1865 or Section 16 of The Carriage By Road Act, 2007 and he violated the provisions of Section 10 of The Carriers Act, 1865 or Section 16 of The Carriage By Road Act, 2007, therefore, the complaint is not maintainable.
21. The appellant (complainant) has filed copy of Marine Cargo Policy in which it is mentioned :-
"Risk Covered : Basis Cover Term of Insurance : As per the following classes written hereunder, current on date of sill or dispatch and / or otherwise stated and attached hereto.
..................
..................
RR TPND."
22. The respondents (OPs) have filed terms and conditions of the Marine Cargo Insurance Policy, in which it is mentioned thus :-
"These are significant additional coverages. Wet damage from sea, lake or river water and accidents in loading and discharge are covered, but there is no coverage for theft, shortage and non-delivery."
23. From the perusal of the Insurance Policy, it appears that the product was insured under Marine Cargo Policy and as per terms and conditions of the said insurance policy theft, shortage and non- delivery were not covered under the said insurance policy. Therefore, // 16 // we agree with the contentions of the respondents (OPs) that the report regarding theft was lodged and the insurance policy was Marine Inland Transit Basic Policy, in which theft was not covered. The respondents (OPs) have repudiated the claim of the appellant (complainant) on justified grounds.
24. Therefore, the finding recorded by the District Forum, is well reasoned and does not suffer from any infirmity or illegality and does not call for any interference by this Commission.
25. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (NarendraGupta) President Member Member Member /08/2015 /08/2015 /08/2015 /08/2015