National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs M/S Dimpsomania Export & Anr. on 16 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 354 OF 2007 (Against the order dated 22.02.2007 in Complaint Case No. 346/1992 of the Delhi State Consumer Disputes Redressal Commission) New India Assurance Co. Ltd. 87, M.G. Road Mumbai And Regional Office at Level V, Tower-II Jeevan Bharti Building Connaught Circus New Delhi-110001 And also at 57, Punchkuian Road New Delhi-110001 Appellant Versus 1. M/s Dimpsomania Export Through Proprietor Amit Sethi Kohat Enclave, Pitampura Delhi 2. Post Master General Dept. of Posts, India Delhi Circle, Delhi Respondents FIRST APPEAL NO. 485 OF 2007 (Against the order dated 22.02.2007 in Complaint Case No. 346/1992 of the Delhi State Consumer Disputes Redressal Commission) Amit Sethi Proprietor of M/s Dimpsomania Export 67, Kohat Enclave Pitampura, Delhi Appellant Versus 1. Post Master General Department of Posts, India Delhi Circle New Delhi-110001 2. New India Assurance Co. Ltd. 37, Panchkuia Road New Delhi-110001 Respondents BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER For Insurance Company : Mr. Niraj Singh, Advocate For Post Office Deptt. : Mr. Rajinder Nischal, Advocate For M/s Dimpsomania Exports : NEMO Pronounced 16th April, 2013 ORDER
PER VINEETA RAI, MEMBER
1. Being aggrieved by the order of Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in Complaint No. 346 of 1992, two cross appeals have been filed. While First Appeal No. 354 of 2007 has been filed by New India Assurance Co. Ltd., Opposite Party No.2 before the State Commission, First Appeal No. 485 of 2007 has been filed by Shri Amit Sethi, Proprietor of M/s Dimpsomania Exports, Complainant before the State Commission, for grant of 18% interest on the amount awarded by the State Commission.
Post Master General, Departments of Posts, who were Opposite Party No.1 before the State Commission, have, however, not filed any appeal.
2. Since the facts and the parties in both appeals are common/similar arising out of the same consumer complaint, it is proposed to dispose of these appeals by one common order by taking the facts from First Appeal No. 485 of 2007. The parties will be referred to in the manner in which they were referred to in the complaint i.e. Shri Amit Sethi, Proprietor of M/s Dimpsomania Exports as Complainant, Post Master General, Department of Posts as Opposite Party No.1 and New India Assurance Co. Ltd. as Opposite Party No.2.
3. In its complaint before the State Commission, Complainant through its Proprietor had contended that it had booked a consignment through air parcel from Delhi to Colorado, USA under Post Office Receipt No. 147 dated 11.09.1990 to be delivered to 1st International Bank of Englewood and thereafter to M/s Heera Enterprises, INC 12274, West Saratoga Avenue Morrison Colorado (CO), USA as per the postal receipt. Complainant had obtained Marine Policy No. 2131090100345 dated 11.09.1990 from Opposite Party No.2/Insurance Company covering all risks in respect of articles contained in the parcel. When Complainant received intimation from M/s Heera Enterprises, the consignee, that they had not received the consignment, Complainant lodged a report with Opposite Party No.1/Post Master General, who stated that the articles had been delivered to the addressee on 25.01.1991 at San Francisco, California (CA), USA. A claim was also lodged with Opposite Party No.2/Insurance Company, with whom the goods were insured, who rejected the same on the basis of the report of the Opposite Party No.1 stating that the goods had been delivered to the addressee. On receipt of this information, Complainant immediately wrote to Opposite Party No.1/Post Master General pointing out that the consignment had been delivered at California whereas it was booked for Colorado. Further, it was to be delivered to the 1st International Bank of Englewood and not directly to the addressee, for which necessary documents had also been sent to the above Bank through State Bank of India. Since Complainant did not receive any reply from either of the Opposite Parties despite several letters and reminders, it filed a complaint before the State Commission on grounds of deficiency in service against both the Opposite Parties. Complainant contended that Opposite Party No.1 failed to deliver the parcel to the proper addressee, as a result of which it was lost and since the parcel was insured against loss, damage etc., Opposite Party No.2/Insurance Company should have indemnified the Complainants claim, which it failed to do. The State Commission was, therefore, requested to direct the Opposite Parties to release Rs.4,48,000/- being the value of goods alongwith 18% interest per annum and Rs.50,000/- for damages on account of loss of business etc.
4. Opposite Parties on being served filed written rejoinders denying that there was any deficiency on their part. Opposite Party No.1/Post Master General stated that as per the inquiry got conducted by them following receipt of the complaint by the Complainant, it was found that the parcel had been delivered correctly to the addressee on 25.01.1991 and, therefore, there was no deficiency in service on their part and the complaint having no merit deserves to be dismissed.
5. Opposite Party No.2/Insurance Company stated that a Surveyor of the rank of Retired Superintendent of Police from CBI had been appointed, who concluded that the entire transaction appeared to be fishy and there was some nexus between the consignee and the Complainant. Further, it was inter alia doubted whether Complainant being a new entrant as an exporter of jewels was likely to send goods worth more than Rs.4 Lakhs to a party without payment in guarantee.
6. The State Commission after considering the evidence on record, so far Opposite Party No.1 is concerned, concluded that there was deficiency in service on the part of Opposite Party No.1 limited to the extent that the parcel was not delivered to the correct addressee i.e. the 1st International Bank of Englewood in Colorado and thereafter to M/s Heera Enterprises but to a total different State i.e. California. The State Commission further concluded that there was no malafide on the part of Opposite Party No.1 because though California and Colorado are two different States, their abbreviated forms i.e. CA and CO respectively could have caused some confusion. However, since there was no privity of contract between the Complainant and Opposite Party No.1, Opposite Party No.1 was held liable to compensate the Complainant only on the limited extent of damage or loss for the parcel, for which it had paid Rs.602/-.
The State Commission, therefore, directed it to pay Rs.10,000/- as compensation for this limited deficiency in service.
7. So far as Opposite Party No.2/Insurance Company is concerned, the State Commission found them guilty of deficiency in service in not indemnifying the claim since admittedly the insured goods were not delivered to the addressee and were thus lost. The relevant part of the order of State Commission in this connection is reproduced:
13. As regards O.P.2, it has an independent contract with the complainant.
As a matter of fact, the complainant should have filed an independent complaint against O.P.2 arising out of the contract of marine insurance and should not have joined as co-respondent.
The contract of complainant with O.P.1 is of different nature and different kind. It was only a contract of service for delivering a parcel at some place. Nothing more, nothing less and nothing beyond that.
14. However, in the instant case, O.P.2 has only relied upon the Surveyor who was a retired Superintendent of Police who has given a finding that there was some collusion and connivance between the complainant and the consignee for raising a false claim. Whatever may the reasons for the wrong delivery of the consignment, the insurance claim of the insured has to be assessed independently. The insurance claim was against the non-delivery or the loss of the consignment in transit. The marine insurance policy was a comprehensive policy and covered the risk of loss and therefore, delivery to a wrong person without the complainant having received its cost comes within the loss suffered by the insured.
The State Commission, therefore, directed Opposite Party No.2/Insurance Company to pay the Complainant a sum of Rs.4,48,000/- against the insurance amount of marine policy and Rs.10,000/- as compensation, which included cost of litigation.
7. Hence, the present first appeals.
8. Learned Counsel for Opposite Party No.1/Post Master General and Opposite Party No.2/Insurance Company were present and made oral submissions. No one was present on behalf of the Complainant.
However, since service was complete, it was decided to hear the case ex-parte.
9. Learned Counsel for Opposite Party No.2/Insurance Company contended that the State Commission erred in holding it responsible for deficiency in service.
In fact, it was Opposite Party No.1 who was responsible for not delivering the consignment to the correct addressee as also concluded by the State Commission and the Insurance Company cannot be held responsible for any deficiency on their part. Further, the report of their Investigator who was a retired police officer had seriously challenged the bonafides of the Complainant in respect of the consignment, including the value of goods contained therein.
10. We have heard learned counsel for parties and have also carefully gone through the evidence on record. The fact pertaining to the insurance policy taken by the Complainant covering all risks, including loss and damage, in respect of delivery of a parcel to 1st International Bank of Englewood and for further delivery to M/s Heera Enterprises in Colorado, USA is not in dispute.
It is also a fact that the goods were lost during the validity of the insurance policy. Opposite Party No.2/Insurance Company had repudiated the claim on the ground that there was some doubt regarding the bonafides and veracity of the complaint as per the report of their Surveyor. However, this is merely an observation of the Surveyor and has not been substantiated or backed by any credible evidence and, therefore, we are unable to accept this observation made by the Surveyor. Apart from this, it is an admitted fact and not denied by the postal authorities that the goods were not delivered either to the 1st International Bank of Englewood or the addressee in Colorado apparently because of some bonafide error due to the similarity in the abbreviations of the two States of USA i.e. Colorado (CO) where the consignment was to be delivered and California (CA) where the goods were purportedly delivered at some other address, which could not be traced. Thus, it is established by credible evidence that the insured goods could not be delivered to the consignee and was lost. Admittedly, it is not in dispute that the consignment was insured inter alia against damage and loss. An insurance policy has to be construed strictly on the basis of the terms and conditions contained therein. In the instant case, as stated above, it has been established beyond doubt and also concluded by the State Commission that the consignment was lost.
Therefore, since the goods were insured against such loss, Opposite Party No.2/Insurance Company erred in not indemnifying the claim, which they were bound to do in terms of the insurance policy. We, therefore, agree with the order of the State Commission that the Insurance Company was guilty of deficiency in service in not indemnifying the claim.
11. We have also considered the contention of the Complainant for interest on the awarded amount at 18% per annum. While we agree that interest on payment of the awarded amount is justified in view of the fact that Complainant was deprived of using this amount, we are of the view that 18% interest per annum requested for is very high and that 9% interest per annum on the awarded amount would be just and reasonable.
12. To sum up, First Appeal No. 354 of 2007 filed by Opposite Party No.2/Insurance Company is dismissed. So far as First Appeal No. 485 of 2007 is concerned, in partial modification of the order of the State Commission, we direct Opposite Party No.2/Insurance Company to pay the Complainant 9% interest per annum on the awarded amount from the date of filing of the complaint till its realization, in addition to Rs.10,000/- as compensation for mental agony and litigation costs.
13. Counsel for Opposite Party No.2/Insurance Company states that vide order dated 23.01.2009 this Commission had directed it to deposit the entire awarded amount with the State Commission. If that is so, then this amount alongwith accrued interest be released in favour of the Complainant and the balance of the amount, if any, be paid by Opposite Party No.2/Insurance Company to the Complainant within a period of 8 weeks.
14. Both the present first appeal stands disposed of on the above terms.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh