State Consumer Disputes Redressal Commission
M/S. Sparkling Traders Pvt. Ltd. vs M/S. New India Assurance Co. Ltd on 5 September, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Consumer Complaint No.:477/1999 Date of Order: 05/09/2009 M/s. Sparkling Traders Pvt. Ltd. Complainant Office at 501, Commercial Manor, 68/70, Clive Road, Danabunder , Masjid (E), Mumbai- 400 009. V/s. 1. M/s. New India Assurance Co. Ltd. Opposite Parties Office at 112800 at 315/316, Vyapar Bhavan, 49, P.DMello Road, Masjid Bunder(East), Mumbai-9. And Head Office at- New India Assurance Bldg., M.G.Road, Fort, Mumbai-1. 2. M/s. Pooja Road Links, Office at Room No. 29, 3rd floor, Rajabahadur Building, 130, Kazi Sayyed Street, Mumbai-9. Corum : Shri S.R.Khanzode, Honble Presiding Judicial Member.
Smt S.P.Lale, Honble Member.
Present : Adv.Mr.Abhijit Gondwal for complainant.
None for opposite parties.
-: ORDER :-
Per Shri S.R.Khanzode, Honble Presiding Judicial Member:-
This consumer complaint is filed since the insurance company repudiated the insurance claim on account of loss in transit of the goods i.e. 400 k.g. of Palmorosa oil (essential oil, hereinafter referred as PM oil) contained in two drums of 200 k.g. each.
Undisputed facts are that the complainant-M/s.Spark India Pvt. Ltd. sent a consignment claimed to have contained 400 k.g. of PM oil to its branch office at New Delhi through opposite party no.2-M/s.Pooja Road Links (hereinafter referred as Carriers). The goods were insured with opposite party no.1/ M/s.New India Insurance Co.Ltd. (hereinafter referred as Insurance Company). There was a pre-survey report of the consignment as well as survey report after damage was reported. On total loss basis insurance claim of Rs.5,83,130/- was lodged by the complainant with the insurance company and which stood repudiated as per insurance companys letter dated 12/07/1999 on the ground of identity of the goods claim to have been lost and further stating that loss cannot be attributed to the transit hazards. The relevant portion of the repudiation letter reads as under:-
Also based on the further examination of the documents furnished to us by you, it is observed that the pre-dispatch Surveyor, M/s.Alok Shankar Pappu Technocrafs (Pvt.) Ltd. did not notice any specific Marks viz L.K.P.NEP/INDIA Under the circumstances, it could not established that the drums surveyed by the Pre-dispatch Surveyors at Mumbai and that by M/s.S.S.Kashyap & Co. at Delhi after the reported loss, were the same.
It is further observed the drums surveyed and multiple holes at different places which type of loss cannot be attributed to transit hazardas.
Feeling aggrieved by the repudiation of the insurance claim, this consumer complaint is preferred. The carrier preferred to remain absent and did not file any written statement. Insurance company filing their written statement denied the insurance claim in line with the repudiation reasons, supra.
Complainant filed affidavit of its Director, Mr.Satish Mehra as a claim affidavit while the insurance company laid its evidence on affidavit by filing affidavit of its Assistant Manager, Mr.K.D.Powdwal. Besides this, copies of insurance policy, pre-dispatch survey report dated 05/10/1998 issued by M/s.
Alok Shankar Pappu investigator to alleged loss, surveyor loss report dated 13/01/1998 issued by M/s.J.Basheer & Associates Surveyors Pvt. Ltd, non delivery certificate dated 13/10/1998 issued by the carrier were also placed on record. Consignment note no.302 dated 28/09/1998 and copies of correspondence were filed and produced on record. Documents viz. Insurance policy, surveyors report and the correspondence are not in dispute though the insurance company raised doubt as to the actual loss of given quantity of PM oil during the transit and also stated that even if there is such loss it cannot be attributed as a loss occurred in en-route and since insurance policy afford protection only against the loss caused by fortuitous or accidental occurrence, the same will not fall within purview of contract of insurance.
As per the report of surveyor/M/s.Alok Shankar Pappu (hereinafter referred as first surveyor prior to dispatch) only examined the sealed containers reported to have contained PM oil but did not actually verified the contents of containers thereof and thus, obviously simply relied upon the statement made by the complainant as a Consignor. The total quantity as per the said survey report as well as bills for the sale issued, mentions the quantity as 400 kgs. contained in two drums of 200 k.g. each. Since the consignment was transported from main office of the complainant at Mumbai to its branch office at New Delhi, it can not be a bill for sales. If at all this is a sale, it ought to have been accounted in the account books and those documents could not been made available to the investigator when asked for. The transporters receipt against this mention as quantity weighing is 444 k.g. and does not mention any name of insurance company.
After the alleged loss empty damaged containers i.e. drums were inspected/surveyed by M/s.S.S.Kashyap & Co., Surveyor and Loss Assessor (hereinafter referred as End Surveyor). Its report dated 13/10/1998 is on record. In the said report, it is mentioned that the survey was held on 12/10/1998 consequent to the application for survey dated 08/10/1998. The loss was found and reported at the time of delivery on 04/10/1998. The reason attributed for loss and nature of loss are respectively mentioned as, holing and cutting of drums, leakage. Observations of the end surveyor regarding the condition noticed, reads as under:
SURVEY: Two drums were put up for survey. Both the drums were found empty & these were found cut at a number of places. Soap was found fixed on the cuts. Photographs of the drums are enclosed. These drums were sealed but the seals did not have any printing & were plain seals. We had contacted the local office of the carriers at Qutab Road to inquire about the leakage & the multiple cut marks on these drums. We met Mr.Pandey, who is in charge of the office (Geetanjali Carriers as agents for the original carriers). He informed that the driver had come to his office after unloading the drums & had informed him about the receipt given by the party & the loss. He was not aware of the facts of the case as loading was done by Mumbai office & the driver prior to visiting his office had unloaded the drums.
The drums had multiple cut marks & a few drops of the Oil fell out on moving the drums. The drops of the Oil that fell down evaporated immediately.
It is pertinent to note that damaged drums inspected by end surveyor contains specific marks, L.K.PNET- India while first surveyor report does not mentions anything of this kind. When it is brought to the notice of the complainant, their reply was rather blunt saying that first surveyor might have escaped to mention the same and for which they cannot be blamed. When several questions were asked by the investigator as per their query dated 13/01/1998 to the complainant to verify the identity of the goods dispatched, inter alia including the details as to the purchase of those goods, such as, details as to the storage prior to dispatch, reasons for late disposal/dispatch of material appear to have been procured in April 1997 after a lapse of 17 months, chemical properties and profile of said product, whether the consignment is locally manufactured or imported from overseas, laboratory test report if any, about the marks and proofs on the drums consignment i.e. product flash point, and whether it is hazardous or non hazardous material, etc.etc. To this complainant had replied as per its letter dated 18/01/1999 and mentioned that it was a natural herbal product manufactured in UttarPradesh (northern part of India), the stock was non perishable for at least five years, no specific marks and numbers were either given by them nor by the suppliers to the containers and it was their first consignment of the product, which they have transshipped to their Delhi Branch.
From the statement made or contained in above referred query or reply of the complainant, it could be seen that out of three drums purchased of the same product by the complainant, only two are dispatched to its branch office at the relevant time. If this is so then one drum containing the same product ought to have been available in the godown, where the goods were stored by the complainant. Nothing has been mentioned about it. Since it would have offered examination of its contains to establish the identity of the goods sent as disputed consignment. If there was any specific marking which is noticed by the end surveyor on drums, then the first surveyor ought to have noticed it. Non mention thereof speaks otherwise. The complainant cannot avoid its responsibility and obligation to disclose all the information in their possession, which would have helped to establish the identity of the consignment. This could have been done besides circumstances mentioned earlier by producing storage godown details, declaration made at the time of storage etc. Referring to the end survey report, it could be seen that number of holes and cutting marks were noticed by the surveyor. Considering the large number of such marks all over the drums, it is quite unlikely that they were caused during the transit due to jerk, which is the reason which is mentioned in the certificate of the carrier (certificate dated 13/10/1998).
The carrier also did not explain as to when such leakage was noticed by it and who had applied and fixed the soap on the cuts (the facts which is mentioned in the end survey report). It is also not mentioned and explained if any precaution is taken by the carrier to save the loss. The insurance policy covers only loss in transit caused by fortuitous or accidental occurrence. It is not a case of accident. As far as fortuitous loss is concerned, it means happening by chance rather than design. Considering the number of cuts and nature of scattered holes, the possibility of happening by design cannot be ruled out. It is also not established that consignment is really of PM oil and nothing else and as such, the declaration made while taking insurance policy was proper and there is no breach of utmost faith. The first surveyor report is based upon assumption of such alleged declaration by the complainant that the sealed two drums contain PM oil. No further fact is verified about the correctness of such declaration. Under circumstance the first survey report made by the survey based upon such assumption if ignored by the insurance company or doubted by the insurance company for valid reasons, the insurance company cannot be blamed.
There is one more aspect which needs attention. As per the end surveyor report, when the surveyor examined the damaged drums on 12/10/1998 i.e. almost 8 days after the consignment was delivered in damaged condition, few drops of oil came out. On emptying the drums all the drops of the oil that fell out, evaporated immediately. Thus, the oil fell out and noticed by end surveyor is a part of alleged consignment. It is pertinent to note that the said quantity, however small, remained as residue of the contents of damaged drums, which had multiple cuts and holes for quite number of days, then it ought not to have contained anything which gets evaporated immediately in contact with atmosphere. Even if those drops of oil evaporated, it ought to have left behind the smell of said oil and had it been the PM oil, it would have left rosy fragrance, which is the characteristic of PM oil and it ought to have been noticed by the end surveyor and would have found mention in its report. Their absence thereof, thus, speaks otherwise.
PM oil properties could be stated as under as could be viewed by the general literature available on the internet and of which judicial notice can be taken:
Palmorosa oil has sweet floral, with of rose small and is pale yellow in colour with nearly watery viscosity Botonical Name: Cymbopogon Martini.
Colour : Pale Yellow Consistency : Thin Perfumery Note: Middle Strength of initial aroma: Strong. Aromatic Description: Fresh, Floral, sweet, somewhat similar to geranium oil. Therefore, considering the
cumulative effect of all these attending circumstances, it could be seen that the repudiation by the insurance company is neither arbitrary nor unreasonable nor without any basis. Hence, the repudiation cannot be faulted with and as such, no deficiency in service could be attributed to the insurance company. Thus, no compensation could be awarded as per this consumer complaint to the complainant for alleged deficiency in service on part of insurance company. We hold accordingly and pass the following order:-
:-ORDER-:
1. Complaint stands dismissed.
2. However, in the given circumstances no order as to costs.
3. Copies of the order herein be furnished to the parties.
(S.P.Lale) (S.R.Khanzode) Member Presiding Judicial Member Nbh