State Consumer Disputes Redressal Commission
The New India Assurance Co.Ltd. ... vs The Tripura Horticulture Corporation ... on 27 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, TRIPURA Appeal No.F.A-23/2013 The New India Assurance Co.Ltd. Agartala Division, 4,Mantri Bari Road,Agartala, P.S-West Agartala, District-West Tripura, Represented by its Divisional Manager, Agartala Division. . . . . Appellant. Vs The Tripura Horticulture Corporation Ltd. A.D.Nagar, Agartala, P.S. West Agartala, District-West Tripura, A Company registered under the Companies Act, Represented by its Managing Director. . . . . Respondent. PRESENT : HONBLE MR.JUSTICE S.BAIDYA, PRESIDENT, STATE COMMISSION MR.H.CHAKRABORTY,IAS (Retd), MEMBER, STATE COMMISSION. For the appellant : Mr.G.S.Das,Adv. For the Respondent : Mr.S.Saha,Adv. Date of Hearing : 26.02.2014. Date of delivery of judgment : 27.03.2014. J U D G M E N T
S.Baidya,J , This appeal under section 15 of the C.P.Act, 1986 filed on 19.06.2013 by the appellant-New India Assurance Co.Ltd. is directed against the judgment dated 13.03.2013 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C.-30/2009 by which the Ld. District Forum awarded damages to the extent of Rs.2,73,447/- along with compensation of Rs.5000/- and Rs.4490/- towards charge of the surveyor and Rs.1000/- as cost of the litigation with a direction to make the payment of these amounts within a period of one month, failing which it will carry interest @ 9% after the period of 30 days till the payment is made.
2. The case of the appellant as narrated in the memo of appeal, in brief, is that the present respondent, the Tripura Horticulture Corporation Ltd. procured cashew nuts grafts from Orissa State Cashew Grafts Development Corporation Ltd., Banipur, Bhubaneswar through consignment, namely, Sugam Parivahan Limited and total numbers of cashew nuts grafts as procured was 21,700/- and the date of booking were on 02.09.2007 and 03.09.2007.
3. It has also been stated that the respondent being the consignee obtained Marine Insurance Coverage by three number of Insurance Policies for those consignments from 01.09.2007 covering the risk basic cover including SRCC, but the Policy No.3 was issued mentioning the risk coverage as all risks including SRCC.
4. It has also been alleged that the respondent in the complaint petition stated that 13,925 numbers of cashew nuts grafts were received in good condition on 19.07.2007 and the remaining 7,775 number of cashew nuts grafts were damaged. It has also been stated that the appellant as per condition of the Insurance Policies could not repudiate the claim for damages of Rs.2,73,447/- as per assessment of the surveyor as appointed by the appellant Insurance Company along with other claims.
5. It has also been alleged that the appellant Insurance Company appeared before the Ld. District Forum, West Tripura, Agartala after receiving the notice and submitted the written statement denying the complaint of the complainant. It has also been alleged that the appellant Insurance Company asserted that the complaint petition was not maintainable in its present form as well as in law and also stated that the Insurance Company issued three number of policies covering the basic risk and SRCC, but inadvertently the Policy in serial No.3 of the complaint petition was issued covering all risks including SRCC. It has also been stated that the premium for all the policies was given only for basic coverage with SRCC and hence as per basic coverage the delay on transit is not covered by the policies and though the Surveyor assessed the loss, but ultimately the claim was repudiated.
6. It has further been stated that the Insurance Company received the premium on 31.08.2007 and the sailing started from 01.09.2007,but the respondent-petitioner received the alleged damaged cashew nuts grafts on 19.07.2007 which was beyond the policy-period and did not cover with the said consignment and ultimately prayed before the Ld. District Forum for dismissal of the complaint.
7. It has also been stated that the Managing Director of the respondent Corporation stated in his examination-in-chief on affidavit that the date of sailing of the policy started from 01.09.2007 and the respondent Corporation received the cashew nuts grafts on 19.07.2007 in damaged condition. It has also been stated that the appellant Insurance Company also examined one witness who stated in his examination-in-chief on affidavit that the policy does not cover for any delay on the way due to damage / breakage of bridge considering the basic coverage and also stated that inadvertently the Policy in Sl. No.3 was issued covering all risks including SRCC and that witness also stated that the transit started from 01.09.2007, but the respondent received the cashew nuts grafts on 19.07.2007 and such consignment did not cover with the policy period as obtained by the respondent.
8. It has also been stated in the memo of appeal that the Ld. District Forum after hearing both the parties allowed the complaint petition and passed the impugned judgment against the present appellant.
9. That being aggrieved by and dissatisfied with the impugned judgment dated 13.03.2013 passed in case No.C.C.30/2009 the appellant Insurance Company has preferred instant appeal on the grounds that the Ld. District Forum illegally and arbitrarily allowed the complaint petition of the respondent with cost without considering the factual position of the case, that the Ld. District Forum travelled beyond the pleadings of the parties as because the case of the complainant was that the cashew nuts grafts were received in damaged condition on 19.07.2007 and also on the ground that the Ld. District Forum in the judgment at page-2 in para-2 stated that the cashew grafts reached in Tripura on 19.09.2007,that the Ld. District Forum ought to have rejected the complaint petition of the respondent as the cashew grafts received on 19.07.2007 did not cover the policy covering the risk from 01.09.2007 during the transit period, that the Ld. District Forum ought to have considered that there was no deficiency in service on the part of the appellant-Insurance Company and very rightly repudiated the claim of the respondent-petitioner. Hence the instant appeal has been filed praying for setting aside the impugned judgment passed by the Ld. District Forum and also for dismissal of the complaint petition of the respondent-complainant.
10. The moot points centered round the instant appeal are (1) whether the Ld. District Forum was right and justified in passing the impugned judgment and (2). Whether the impugned judgment can be sustained in the eye of law.
Decision with Reasons.
11. Considering the cases of the parties and the evidences on record we find certain admitted facts.
12. Admittedly, the present respondent who is the complainant in the District Forum procured cashew nuts grafts from Orissa State Development Corporation Ltd. through consignment, namely Sugam Parivahan Ltd and the total number of cashew nuts grafts as procured was 21,700 and the date of booking were 02.09.2007 and 03.09.2007. It is also admitted fact that the respondent herein being consignee obtained Marine Insurance coverage by three number of Insurance Policies for those consignment from 01.09.2007 covering the risk basic cover including SRCC and the Policy number three was issued mentioning the risk coverage as all risks including SRCC.
13. At the outset it is necessary to mention that in the complaint petition the complainant who is respondent herein categorically pleaded that the petitioner received 13,925 number of cashew grafts in good condition on 19.07.2007 and the remaining 7,775 numbers of cashew grafts were damaged. It has also been pleaded in the complaint petition that Sugam Parivahan Ltd.,transporter issued certificate dated 08.10.2007 and stated that the damage was caused due to route damage / bridge breakage in Assam and Bengal. But the Ld. District Forum in para-2 at page-2 of the judgment under appeal while narrating the case of the complainant stated that the cashew nuts grafts reached Tripura on 19.09.2007. It is not understandable as to wherefrom this date i.e. 19.09.2007 has been taken and mentioned in the judgment while narrating the case of the complaint. It is found that the learned advocate for the appellant-Insurance Company assailed the impugned judgment on this point stating that the Ld. District Forum travelled beyond pleadings of the parties by making out a third case rendering judgment under appeal unsustainable in law.
14. The learned advocate for the appellant submitted that this date 19.07.2007 cannot be taken as erroneously typed because the Ld. lawyer for the present respondent while sending the advocate notice to the Insurance Company on 14.07.2008 also stated that his client M/S Tripura Horticulture Corporation Ltd received 13,925 numbers of cashew grafts as good condition and 7,775 numbers cashew grafts as damaged condition on 19.07.2007. In this regard, the learned advocate for the appellant has taken us to the said advocate letter lying with the file of the complaint case No.C.C.-2009 of the Ld. District Forum.
15. The learned advocate for the Insurance Company also submitted that not only so, the Managing Director of the respondent Corporation deposed in the said complaint case as P.W.1 and he categorically on oath stated before the Ld. District Forum that the petitioner (present respondent) received only 13,925 number of cashew grafts in good condition on 19.07.2007 and the remaining 7,775 numbers in damaged condition. He also submitted what the complainant stated in the complaint petition has been asserted by the P.W.1 in his examination-in-chief on affidavit and that evidence of the P.W.1 has not been falsified or the said date 19.07.2007 has not been proved before the Ld. District Forum as erroneously printed. But the Ld. District Forum disregarding this unrebutted evidence passed the impugned judgment allowing the complaint petition which is undoubtedly erroneous and not sustainable in law.
16. Learned advocate for the appellant further submitted that the present respondent as complainant in the District Forum produced not a single scrap of paper for establishing that the alleged cashew nuts grafts were actually received on 19.09.2007.
17. The learned advocate for the appellant-Insurance Company also submitted that the said 21,700 number of cashew nuts grafts as per case of the complainant were booked through Sugam Parivahan Ltd on 02.09.2007 and 03.09.2007 and the said consignment were insured with the appellant starting from 01.09.2007. He also submitted that as per case of the complainant, the damaged cashew nuts grafts were received by the complainant-Corporation on 19.07.2007, these damaged cashew nuts grafts were not covered under the said three policies and as such the Insurance Company rightly repudiated the claim of the present respondent. He also submitted that the Ld. District Forum thinking that the said consignment and the receiving of the alleged damaged cashew nuts grafts were within the coverage period of insurance policy, allowed the complaint petition by the impugned judgment which practically being otherwise is not sustainable in law and is liable to be set aside.
18. The learned advocate for the Insurance Company submitted that out of three Insurance Policies the policy in Sl. No. 1 & 2 of the petition of complaint covers the risk of the goods on the transit only for basic i.e. LTR and for SRCC, but as regards the policy of the Sl.No.3 in the petition of complaint while issuing this policy it has been wrongly noted all risks including SRCC. He also submitted that for covering all risks including SRCC the premium of the policy obviously should be on a higher side and the premium for the policies only for basic coverage is on the lower side. He also submitted that the respondent-complainant while obtaining these three policies did not pay any premium on the high side in respect of policy mentioned in Sl. No.3 of the petition of complaint and obviously, this noting in the policy i.e. all risks including SRCC was erroneous and that policy should be treated as a policy for basic cover including SRCC, but the Ld. District Forum is of the view that the basic coverage for LTR is the coverage of risk of the goods which were transporting by the Lorry. He then submitted that this sort of interpretation should not be accepted at the cost of the appellant-Insurance Company which is dealing with the public money.
19. We have gone through the last Para of points No.4 at page-3 of the impugned judgment wherefrom we find that according to the Ld. District Forum, the basic coverage for LTR is the coverage of risk of goods which were transporting by the Lorry. According to us, if any damage is caused to the goods in course of transit by Lorry from one place to another, that would come under the basic coverage of LTR. We are of the view that the opinion formed by the Ld. District Forum in this regard is correct and acceptable and as such we are unable to accept the submission made the learned advocate for the appellant-Insurance Company in this regard.
20. The learned advocate for the appellant then submitted that for all the grounds mentioned above the judgment under appeal is not sustainable in the eye of law and should be set aside and the complaint petition filed by the present respondent in the District Forum registered as C.C.-30/2009 should be dismissed.
21. On the other hand, the learned advocate for the respondent-Corporation referring to the application filed on 06.02.2014 in the name of written objection submitted that the respondent booked goods on 02.09.2007 and 03.09.2007, but due to typographical mistake the date of receiving was shown as 19.07.2007 which was nothing but an inadvertent error and in fact, the date of receiving of the said cashew nuts grafts was 19.09.2007 and 20.09.2007. He also submitted that this application has been filed by the respondent with a view to clarify the above typographical mistake. He also submitted that the appellant practically has no case and as such the judgment passed by the Ld. District Forum which is under appeal should be upheld and the appeal should be dismissed.
22. We have gone through the pleadings of the parties, the evidences both oral and documentary, the impugned judgment and the submissions made by the learned advocates of both sides. The three receipts of Sugam Parivahan Ltd (Ext.1series) indicate that the cashew nuts grafts were booked for transporting from Katak, Orissa to Tripura on 02.09.2007 and 03.09.2007. From the insurance papers (Ext.1 series) it is also found that the same were properly insured with the present appellant-Insurance Company. From the Xerox copy of three certificates issued by the Sugam Parivahan Ltd on 08.10.2007 (Ext.1 series) it is also found that there is no mention of the date of reaching of the three consignments to Tripura. Practically, the date of delivery in the said three certificates is lying blank. There is a note in the three certificates indicating damage of some cashew nuts grafts due to route bridge/breakage in Assam and Bengal, but nowhere in the said three Xerox copy of the certificate has mentioned about the date of reaching of the consignments to Tripura from Orissa in which some cashew nuts grafts became damaged. From the letter dated 11.10.2007 issued by the Managing Director of respondent-Corporation addressing the Manager of the New India Assurance Co.Ltd (Ext. 1 series) it is found that the said paper also does not show on which date the consignments reached to Tripura. From another letter dated 30.01.2008(Ext.1series) sent by the Managing Director of respondent-Corporation to the Branch Manager, appellant-Insurance Company it contains no date regarding reaching of the said consignments to Tripura. From the letter dated 03.03.2008 issued by the said addressor to the same addressee it is found that the Managing Director of the respondent-Corporation made a demand for Rs.2,73,447/- for damaged cashew nuts grafts. Another letter dated 02.04.2008 (Ext.1series) is also similar to earlier one. From the Final Survey Report on Transit Losses (Ext. I series) of E.R Dipak Paul appointed by the appellant-Insurance Company on prayer of the respondent-complainant it is found that the said report is also conspicuously silent regarding the date of arrival of the transshipments, rather the said report indicates the date of arrival is nil. From the notice issued by the learned advocate of the respondent-Corporation to the Branch Manager of the appellant-Insurance Company dated 14.07.2008 (Ext.1 series) it is evident that his client, M/S Tripura Horticulture Corporation Ltd received 13,925 number of cashew grafts as good condition and 7,775 numbers cashew grafts as damaged condition on 19.07.2007 which has been mentioned earlier. From the reply letter dated 18.08.2008 issued by Mr.G.S.Das, advocate for the appellant-Insurance Company addressed to M/S Tripura Horticulture Corporation Ltd (Ext.1 series) it is also evident that long before the filing of the complaint petition in the District Forum by the present respondent it was mentioned at page-2 of that letter that some cashew grafts were received in damaged condition on 19.07.2007 as reported by the learned advocate for the present respondent in the advocates notice. No other document has been produced as documentary evidence before the Ld. District Forum. Where there is also substantive evidence of a witness (P.W.1) which discloses that the consignments were received in Tripura by the respondent-Corporation on 19.07.2007 which undoubtedly does not cover by the three Insurance Policies, we have no alternative, but to hold that the receiving of the alleged cashew nuts grafts in damaged condition on 19.07.2007 under no stretch of imagination can be said to have been covered by the said three Marine Insurance Policy. It is found that the surveyor appointed by the Insurance Company on the prayer of the present respondent even could not ascertain on which date the said consignments reached Tripura, otherwise the date of receiving of the said consignments would have been mentioned in his report. It is further found from his report that he counted the number of damaged cashew nuts grafts lying in the complex of the present respondent, but that does not mean automatically that the said damaged cashew nuts grafts were included in the said three consignments. So, considering all these matters including the facts and circumstances and the evidences on record we are not in a position to hold that the said three consignments reached to Tripura either on 19.09.2007 or 19.09.2007 and 20.09.2007 as mentioned in the application of the present respondent filed before us. In the face of examination-in-chief of the Managing Director of the respondent-Corporation as P.W.1 the objection petition filed before us containing verification signed by the two learned advocates for the Corporation cannot be accepted being legally untenable.
23. It transpires that the Ld. District Forum committed an error in passing the impugned judgment assuming that the said consignments were received in Tripura on 19.09.2007, but the fact and circumstances and the evidences are altogether otherwise. That being the position, we are unable to hold that the Ld. District Forum was right in passing the impugned judgment. It is needless to say that by accepting the date 19.09.2007 as mentioned in the complaint petition in para-2 at page-2 of the impugned judgment instead of 19.07.2007 as mentioned in the complaint petition the Ld. District Forum travelled beyond the pleadings of the parties.
24. On the basis of the findings made above we are of the view that the Ld. District Forum was not legal and justified in passing the impugned judgment and as such it is not sustainable in law and therefore, it is liable to be set aside.
25. In the result, the appeal is allowed and the complaint petition registered as C.C. 30 of 2009 is dismissed. The impugned judgment passed by the Ld. District Forum stands set aside, but no order as to cost.
MEMBER PRESIDENT State Commission State Commission Tripura Tripura