State Consumer Disputes Redressal Commission
M/S Vardhman Agro Oil And Gen Mills vs The Oriental Insurance Co. Ltd. on 11 April, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 247 of 2015
Date of institution: 2.3.2015
Date of Decision: 11.4.2016
M/s Vardhman Agro Oil & Gen Mills, 132-135, Udyog Vihar, Sri Ganga
Nagar, Rajasthan (a unit of Shree Mahavir Oil Mills, Jagraon) through
partner Rajinder Kumar Jain.
Appellant/Complainant
Versus
1. The Oriental Insurance Company Limited, CBO-2, Ludhiana, Near
Clock Tower, GT Road, Ludhiana through Authorized Signatory.
2. The Oriental Insurance Company Limited, Registered & Head Office,
A-25/27, Asaf Ali Road, New Delhi - 110 002 through its Authorized
Signatory.
3. M/s Ahmedgarh Tanker Transport, Transport Contractor &
Commission Agents, Hira Nagar, Street No. 4, Opposite Speedways
Tyre Services, GT Road, Ludhiana, Punjab through Authorized
Signatory.
Respondents/Ops
First Appeal against the order dated
31.12.2014 passed by the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Munish Goel, Advocate
For respondent Nos.1&2 : Sh. Vinod Chaudhary, Advocate
First Appeal No. 247 of 2015 2
For respondent No. 3 : Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant(hereinafter referred as complainant) has filed the present appeal against the order dated 31.12.2014 passed by the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter referred as the District Forum) in consumer complaint No. 2 dated 1.1.2013 vide which the complaint filed by the complainant was disposed off with the direction to Ops to reopen and reconsider the claim of the complainant and pass a fresh order after considering the judgment titled as "Contship Container Lines Ltd. vs. D.K. Lall" II(2010) CPJ 12 (S.C.) and after going through directions on the record, Ops were further burdened to pay Rs. 2,000/- as litigation cost.
2. Complaint was filed under the Consumer Protection Act, 1986 (in short 'the Act') by complainant which is a partnership firm under the name and style of Shree Mahavir Oil Mills consisting two partners Daya Chand Jain and Rajinder Kumar Jain to earn their self employment and livelihood and that Rajinder Kumar Jain was duly authorised by the firm to file this complaint. Complainant hired the services of respondent No. 1 for obtaining Marine Cargo Open Policy for the period 22.9.2010 to 21.9.2011 after paying a premium of Rs. 22,304/- for sum insured of Rs. 10,11,00,000/- for insurance of mustard oil on consignment of all type of mustard oil, vegetable oil packed in tins, cannies, bottles, pouches and loose in tankers against risk with limit of Rs. 35,00,000/- per transit per location through mode First Appeal No. 247 of 2015 3 of transit rail/road. Cover note No. CHD-C144306 dated 17.9.2010 was issued. During the tenure of the said policy, complainant sent the mustard oil loose of 29.84 MT vide invoice No. 009651 dated 16.5.2011 for Rs. 18,84,697/- from Sriganga Nagar to consignee M/s Everest Indl. Corporation, 12, by sack street, Kolkota through M/s Ahmedgarh Tanker Transport vide their GR No. 28777 dated 16.5.2011 in their tanker bearing registration certificate No. PB-10- CB-2407. Unfortunately, Tanker No. PB-10CB-2407 met with an accident on 18.5.2011 at about 10.30 p.m. near Mathura Thana Refinery when a cow suddenly came in front of the loaded tanker and to save the said cow, the driver applied brake suddenly, the said tanker over turned and body of the tanker got broken due to load in the tanker due to which mustard oil was leaked from the tanker. Information of the same was given by the Driver of the Tanker to the complainant and also lodged complaint with Mathura Refinery Police Station. Then respondent No. 1 was informed telephonically as well as in writing vide registered letter dated 19.5.2011. Mr. Sanjay Narang visited the accidental place on 20.5.2011 and thereafter, Surveyors of Protocol Surveyors & Engineers P. Ltd., Noida visited the accidental site on 21.5.2011. Respondent No. 3 arranged a crane and tanker was lifted from the accidental site in empty condition. The surveyor got weight of the damaged tanker from B.P. Mathura, NH-2, Opp. Mathura Refinery. The surveyor also received the copy of the driving licence of the driver of the tanker, RC of the Tanker No. PB10- CB-2407 from respondent No. 3 and also demanded following documents vide letter dated 26.5.2011:-
First Appeal No. 247 of 2015 4
1. Copy of GR/LR and invoice.
2. Copy of letter (Regd. AD) lodging monetary claim on defaulting carries and damaged certificate from them.
3. Your final claim bill with supporting documents.
4. Claim form duly completed, stamped & signed.
5. Your offer for the salvage of damaged items.
Abovesaid requirement was sent by the complainant to the Surveyor vide speed post letter dated 31.5.2011. Complainant submitted the claim of Rs. 18,85,697/- plus Rs. 12,448/- paid to the Surveyor. Complainant again vide registered letter dated 6.7.2011 requested the respondents to do the needful at the earliest. However, respondent No. 1 vide letter dated 9.8.2011 asked the complainant to submit the following documents:-
1. Damage/Non delivery certificate from the carrier.
2. Original postal receipt of Regd. A.D. whereby monetary claim was lodged.
3. Original invoice No. 008651 dated 16.5.2011.
4. Photocopy of RC of Truck No. PB10-CB-2407.
5. PAN No. of M/s Vardhman Agro Oil & Gen Mills.
6. Recovery papers.
Abovesaid requirement was sent by the complainant through registered letter dated 20.8.2011. Vide letter dated 16.9.2011 and 11.10.2011, complainant requested the respondents to issue the claim cheque. Representative of the complainant visited respondent No. 1 on 4.11.2011 to know the status of the claim but the respondent delivered the letter dated 23.10.2011 claiming following documents:- First Appeal No. 247 of 2015 5
1. Original Non delivery Certificate
2. Original invoice
3. Verification of dispatches from inception of policy till date of loss by independent chartered accountant.
4. In invoice No. 009651 you have charged the amounts of RS.
19,500/-, 19,500/-, 18,000/-, 13,000/- and 9377/77. You are requested to let us know the detail of above amounts.
5. Further the respondent requested the complainant to submit the copy of the carrier legal liability policy taken by the owner of tanker (Carrier legal liability policy).
Complainant vide letter dated 7.11.2011 sent the requisite documents through registered letter dated 8.11.2011. Complainant vide letter dated 11.11.2011 admitted the receipt of letter dated 7.11.2011 asked the complainant to clarify some mistake in the submitted documents. Complainant vide letter dated 18.11.2011 admitted the mistake due to oversight as a clerical mistake and rectified the mistake. Again complainant sent the registered letter dated 8.12.2011 to respondent No. 1 and Senior Divisional Manager with the request to do the needful. Then Sh. Devender Honda of M/s Royal Associate, SCF 132, IInd Floor, Sector 13 Market, Kurukshetra visited the complainant on 23.12.2011 in the capacity of investigator as appointed by the respondents and thereafter as per requirement of Mr. Honda, statement of partner Rajinder Kumar Jain was recorded and he vide letter dated 26.12.2011 submitted the following two documents:-
First Appeal No. 247 of 2015 6
1. Photocopies of bills from the inception of policy that is 22.9.2010 covering bill No. 9341 to date of loss covering bill no. 9651 dated 16.5.2011.
2. Photocopies of declaration from Sr. No. 1 to 88 needless to clarify that we are regular customer of company since long and this is our first claim so keeping in view our sincere and honest business and best reputation, claim may be sanctioned 100% and as earlier as possible as it is seven months have passed already and our business is suffering for want of funds.
Complainant again sent some more documents vide letter dated 19.1.2012 and then another letter dated 18.2.2012 sent to respondent No. 1 with the request to supply the claim at the earliest. In compliance of physical inspection and verification of facts by the 2nd investigator, complainant submitted the affidavit of Satnam Singh duly attested dated 2.5.2011. Complainant again vide letter dated 4.6.2012 requested respondent No. 1 to pay the claim amount alongwith interest at the earliest. However, respondent failed to supply the claim and then legal notice dated 8.12.2012 was served through Sh. M.S. Sethi, Advocate with the request to pay the claim of Rs. 18,84,697/- but no reply/response was received, which amounted to deficiency in service on the part of respondents. Hence, the complaint with the direction to the respondents to pay the claim of Rs. 18,84,697/- as per surveyor report dated 16.6.2011 plus Rs. 12,448/- paid to the Surveyor alongwith cost of RS. 15,000/- alongwith interest First Appeal No. 247 of 2015 7 @ 18@ from the date of filing the complaint till the date of settlement alongwith compensation and cost.
3. Respondents No. 1 & 2 in their written reply took the preliminary objections that the complaint was barred under Section 26 of the Act; complaint was not maintainable as immediately on receipt of the claim, it was duly registered and processed. M/s Protocol Surveyors and Engineers Pvt. Ltd. was appointed as Surveyor and Loss Assessors. The said Surveyor assessed the loss on 21.5.2011 and on subsequent date at the accidental site. Thereafter, M/s Royal Associates Investigating and Detective Agency was appointed as investigator to investigate the claim, who made thorough investigation and submitted his report dated 29.2.2012. Then Sh. Kiranjit Singh Romana r/o 21529, Street No. 6/3, Power House Road, Bathinda was appointed as Investigator to investigate the Marine Policy loss in accident of vehicle No. PB-10CB-2407. Said investigator thoroughly investigated the matter and prepared his report dated 21.5.2012 and Kiranjit Singh Romana also submitted his additional investigation report vide their letter dated 28.5.2012. The respondents then called for M/s Royal Associates, to submit certain clarifications and information, which was supplied by M/s Royal Associates vide their letter dated 1.7.2012. After going through these reports and applying the mind by the officials of respondents, claim of the complainant was repudiated vide letter dated 9.1.2013 on the ground of non-disclosure/mis-representation of fact by respondent No. 3 i.e. transporter and as per report of investigator M/s Royal Associates, 20-25% of the mustard oil was handed over to the First Appeal No. 247 of 2015 8 complainant whereas the complainant claimed the total loss and complainant did not take proper steps to minimize the loss. Complainant was stopped by his own act and conduct to file this complaint and had not come to the Forum with clean hands. They adopted fraudulent means and devices to get the claim and misrepresented the fact that 20-25% of mustard oil was handed over to the complainant as per the statement of the transporter and report of M/s Royal Associates. Since the complicated questions of law and facts were involved, which required elaborate evidence both oral and documentary, therefore, it was not possible for the Forum to decide this matter and matter be relegated to the Civil Court; complaint was not maintainable as M/s Vardhman Agro is neither a registered partnership firm nor Mr. Rajinder Kumar Jain is a registered partner; No form A and C issued to the firm was placed on the record; complaint was barred under Section 69 of the Partnership Act; complainant was not a consumer as defined under the Act and that the complaint was bad for pecuniary jurisdiction of the Forum. On merits, averments as stated in the preliminary objections were reiterated. It was denied that complainant is unit of partnership firm under the name and style of Shree Mahavir Oil Mills. It was denied that Daya Chand Jain & Rajinder Kumar Jain were duly authorised by the other partners to file this complaint. It was admitted that complainant had obtained Marine Cargo Open policy, which was issued alongwith terms and conditions of the policy but the complainant intentionally had not produced the terms and conditions of the policy. Therefore, complainant was bound by the terms and First Appeal No. 247 of 2015 9 conditions of the policy. The insurance policy issued in favour of the complainant was admitted. Claim was lodged. After that Surveyor and Investigators were appointed as duly explained in the preliminary objections. However, the claim of the complainant was repudiated as no claim vide letter dated 9.1.2013 on the ground of non-disclosure of facts and mis-representation of fact that as per transport's statement 20-25% mustard oil was handed over to the complainant but complainant claimed the total loss and also on the ground that the complainant did not take proper steps to minimise the loss. There was no deficiency in service on the part of these respondents. Complaint was without merit, it be dismissed.
4. Respondent No. 3 in its written reply/version took the preliminary objections that the complaint was not maintainable against this respondent as the dispute relates between complainant and respondents No. 1 & 2 only; the Forum had got no jurisdiction to decide the complaint against respondent No. 2 as there was no deficiency in service/negligence on the part of respondent No. 3 and that complainant hired the services of respondent No. 3 for consideration against the insurance claim, therefore, complaint against respondent No. 3 be dismissed. On merits, averments stated in the preliminary objections were reiterated. Complaint with without merit, it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Rajinder Kumar Jain Ex. CA-1, First Appeal No. 247 of 2015 10 authority letter Ex. C-1, partnership deed Ex. C-2, insurance policy Ex. C-3, letter dt. 19.5.11 of complainant Ex. C-4, Invoice/bill Ex. C-5, GR copy Ex. C-6, weight details Ex. C-7, police report Ex. C-8, weight details Ex. C-9, claim bill Ex. C-10, certificates Exs. C-11 & 12, GR No. with bill Ex. C-13, photographs Ex. C-14, surveyor report Ex. C- 15, letter dt. 30.5.11 Ex. C-16, postal receipts Exs. C-17 & 18, Marine Survey Report Ex. C-19, letters/correspondence between the parties Ex. C-20 to 32, affidavit/statement Ex. C-33, letters Ex. C-34 to 36, repudiation letter Ex. C-37. On the other hand, respondents No. 3 had tendered into evidence affidavit of Sukhwinder Singh Ex. RW-1, affidavit of Lakhwinder Singh Ex. RW-2, affidavit of Driver Satnam Singh Ex. RW-3, copy of DL Ex. R-1. Respondents Nos. 1 & 2 had tendered into evidence affidavit of Jagmohan Singh SDM Ex. R-A, affidavit of Sunil Arora Ex. R-B, affidavit of Kashmira Singh Ex. R-C, affidavit of Kiranjit Singh Romana Ex. R-D, letter dt., 9.1.13 of OIC Ltd. Ex. R-1, report of Mr. Romana Ex. R-2 and other documents relating to claim Exs. R-3 to 69.
6. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, the complaint was disposed of as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the parties and have carefully gone through the record of the District Forum with the assistance of the parties.
First Appeal No. 247 of 2015 11
9. In the appeal, it has been argued by the counsel for the appellant that the District Forum has not properly appreciated the evidence on the record and wrongly directed to reopen and reconsider the claim after relying upon the judgment "Contship Container Lines Ltd. Vs. D.L. Lall", II(2010) CPJ 12 (SC).
10. We have gone through the said judgment. In that judgment, it was observed that in the absence of any contractual obligation/stipulation, unpaid seller's lien under the Sale of Goods Act stands terminated upon the delivery of goods to a carrier. The goods from that stage onwards at the risk of the buyer. In that way, the property vested in buyer and seller had no insurable interest. What may be the position, in case the District Forum is of the opinion that seller had no insurable interest in the goods then there was no reason for the District Forum not to dispose of the complaint. The Ops have already appointed Surveyors and Loss Assessors and Investigators and their reports are on the record, evidence of both the parties is complete then the matter can be decided on the basis of evidence on the record and the order passed by the District Forum to reopen the case is incorrect to which counsel for the Ops also subscribed to that entire evidence of the parties is on the record and the District Forum should decide the matter in one way or the other.
11. In view of the above position that when both the parties have completed their evidence, the pleadings of the parties further prove on the record that on receipt of intimation regarding the incident and claim was submitted and then Surveyor and Loss Assessors and Investigator were appointed and they have submitted their report in First Appeal No. 247 of 2015 12 case some concealment fact is there, it can be considered at the time of adjudicating the claim. Similarly, the goods were transferred to buyer and if seller does not have any insurable interest that point also can also be decided by the District Forum but there is no reason for giving the directions to the respondents to reopen the case. Therefore, we are of the opinion that the order so passed by the District Forum is not justified.
12. Accordingly, we accept the appeal. Impugned order is set-aside. Complaint is remanded back to the District Forum, Ludhiana to decide the complaint on the basis of evidence already on the record in accordance with law.
13. Parties through their counsel are directed to appear before the District Forum on 12.5.2016.
14. Copy of the order alongwith file be sent back to the District Forum, Ludhiana immediately.
15. The arguments in this appeal were heard on 31.3.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member April 11, 2016. (Surinder Pal Kaur) as Member First Appeal No. 247 of 2015 13