State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited ... vs Vipin Agrawal on 10 September, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/13/398
Instituted on : 19.06.2013
1) The Oriental Insurance Company Limited,
Through : Divisional Manager, Divisional Office No.1,
Madina Manjil, Kutchery Chowk,
Raipur (C.G.)
2) Branch, The Oriental Insurance Co. Limited,
Extension Counter, Gandhi Mandir Ward,
Bhatapara, District Raipur (C.G.) ... Appellants.
Vs.
Vipin Agrawal, S/o Deep Chand Agrawal
Proprietor of M/s Radharani Udyog,
Sanjay Ward,
Bhatapara, District Raipur (C.G.) ... Respondent
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri N.K. Thakur, for appellants.
Shri R.K. Agrawal, for respondent.
ORDER
Dated : 10/09/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 17.05.2013, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"), in Complaint Case No.72/2010. By the impugned order, learned District Forum, has partly allowed the // 2 // complaint filed by the respondent (complainant) and directed the appellants (OPs) (Insurance Company) to pay within a month from the date of the order a sum of Rs.1,60,338/- along with interest @ 6% p.a. from the date of filing of the complaint i.e. 11.01.2010 till date of payment. The District Forum has further directed the appellants (OPs) (Insurance Company) to pay a sum of Rs.1,000/- cost of litigation to the respondent (complainant).
2. Briefly stated the facts of the complaint case before the District Forum are that on 15.09.2008, Bags 200 Nos. of Chana Dal containing 50 kgs in each bag, sent to M/s Amit Traders, Sainthiya through a truck bearing registration No.W.B.-23-A-4676 and after reaching the goods to Sainthiya the same was found in damaged conditions and survey was conducted by Shri Biswanath Chatarjee of Kolkata. Shri Biswanath Chatterjee, was appointed by the consignee who has assessed the loss to the tune of Rs.1,60,338/-. As the appellants (OPs) (Insurance Company) has not paid the claim, so consumer complaint was filed before the District Forum seeking relief as mentioned in the relief clause of the complaint.
3. The appellants (OPs) resisted the complaint and averred in the written statement that the incident was not covered under the insurance policy and neither any goods were loaded in the truck, which was mentioned in the complaint nor goods suffered any // 3 // damages, so the Insurance Company was not liable to pay any compensation. It has also been averred that on the date of loading of goods in the truck, the risk was not assumed by the Insurance Company, as premium was not paid by the respondent (complainant).
4. Earlier the complaint filed by the respondent (complainant) has been decided by the District Forum vide order dated 22.06.2011 whereby learned District Forum, has partly allowed the complaint filed by the respondent (complainant) and directed the appellants (OPs) (Insurance Company) to pay within a month from the date of the order a sum of Rs.1,60,338/- along with interest @ 6% p.a. from the date of filing of the complaint i.e. 11.01.2010 till date of payment. The District Forum has further directed the appellants (OPs) (Insurance Company) to pay a sum of Rs.1,000/- cost of litigation to the respondent (complainant). The appellants (OPs) filed appeal No.404/2011 before this Commission challenging order of the District Forum dated 22.06.2011. This Commission vide order dated 30.11.2011 allowed the appeal, set aside the order of the District Forum dated 22.06.2011 and remanded back the case to the District Forum with a direction to provide one opportunity for amending the complaint as well as written version to both parties and if sought, then opportunity for cross-examining witness of the opponent, be also provided.
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5. After remand of the matter, learned District Forum, again after appreciation of material available before, it partly allowed the complaint and directed the appellants (OPs) to pay compensation to the respondent (complainant), as mention in para 1 of this order.
6. The respondent (complainant) filed documents. Document Ex.P-1 is duplicate bill issued by Radha Rani Issued in favour of Amit Trading Company, Setiya, document Ex.P-2 is Way Bill/Challan No.187 dated 15.09.2008 issued by Bengal Maharashtra Carrier, Raipur, document Ex.P-3 is Provisional Cover Note No.23717 for the period from 09.09.2008 to 08.09.2009, document Ex.P-4 is receipt dated 17.09.2008issued by Oriental Insurance Company Limited, document Ex.P-5 is Marine Cargo Open Policy (Policy No.152390/21/2009747), document Ex.P-6 is Surveyor Report of Shri Biswanath Chatterjee along with Bill, document Ex.P.-7 is Test Report of R.V. Bridges & Co. Private Limited, Kolkata, along with receipt, document Ex.P.8 is Marine Insurance Inland Transit Claim Form, document Ex.P.9 is registered notice dated 12.08.2009 sent by Shri J.P. Dixit, Advocate to the appellants (OPs), document Ex.P.-10 is acknowledgement, document Ex.P-11 is the enveloped returned by the Postal Department, letter dated 16.04.2010 sent by Shri Biswanath Chatterjee to Radha Rani Udyog, Bhatapara (C.G.), Way Bill/Challan No.187 dated 15/09/2008 issued by Bengal Maharastra Carrier, Raipur (C.G.).
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7. The appellants (OPs) also filed documents. Document OP-1 is Original Marine Cargo Open Policy issued on 17.09.2008 for the period from 09.09.2008 to 08.09.2009, document OP-2 is Marine Cargo Open Policy Schedule, document OP-3 is letter dated 30.06.2009 issued by The Oriental Insurance Company Ltd. Divisional Office - I, Raipur (C.G.) to M/s Radha Rani Udyog, Bhatapara, Dist. Raipur (C.G.),
8. In the instant appeal, the respondent (complainant) has filed certified copy of Statement of Account of respondent (complainant) in respect of Account No.010721611756 with State Bank of India, Bhatapara Branch, and the declaration given by The Oriental Insurance Company Ltd. to the respondent (complainant) and requested to take the same on record.
9. We have heard learned counsel for both the parties.
10. Looking to the facts and circumstances of the case, the documents sought to be filed by the respondent (complainant) as additional evidence at appellate stage are taken on record.
11. Shri N.K. Thakur, learned counsel, appearing for the appellants (OPs) that the impugned order passed by the learned District Forum, is perverse and not sustainable in law. The learned District Forum has failed to appreciate the facts brought on record and has miserably failed to bring home the ingredients of defining the "deficiency in // 6 // service" by overlooking the facts that the appellants (OPs) had already repudiated the claim of the respondent on merits. He further argued that it is not in dispute that intimation in respect of the alleged loss was not given immediately and assessment of the alleged loss was conducted by Mr. Biswanath Chatterjee of Kolkata, who was appointed by respondent (complainant) and not by the appellants (OPs), depriving the appellants (OPs) to ascertain the actual loss. Moreover the insurance policy no. is not mentioned in the Survey report. But the learned District Forum has failed to consider the same and ignored the provisions of Section 64 UM of the Insurance Act, 1938. Therefore, the impugned order of the District Forum, is liable to be set aside.
12. Shri R.K. Agrawal, learned counsel appearing for the respondent (complainant) has supported the impugned order and argued that document Ex.P-5 Marine Cargo Open Policy was issued by Bhatapara Branch Office of the appellants (OPs). The respondent (complainant) deposited amount of premium with Bhatapara Branch Office of the appellants (OPs) and thereafter policy was issued by the Insurance Company in his favour. The goods to be transported were insured with the appellants (OPs). The insurance policy was effective for the period from 09.09.2008 to 08.09.2009. The goods were loaded in the truck bearing registration No.W.B.-33A-4676 and the goods were to // 7 // be delivered to Sainthiya M/s Amit Traders (consignee). When the goods were reached to the consignee, then it was found that the goods were in damaged condition. The consignee appointed Shri Biswanath Chatterjee as Surveyor to inspect the damaged goods and to give his report. On the basis of report of Shri Biswanath Chatterjee, Surveyor, the learned District Forum, allowed the complaint of the respondent (complainant) and awarded compensation to the respondent (complainant) as per para 13 of the impugned order. The impugned order passed by the learned District Forum, is a reasonable and speaking order and does not call for any interference by this Commission.
13. We have heard learned counsel for both the parties and have perused the record of the District Forum.
14. In the instant case, the complainant filed copy of the Marine Cargo Open Policy No.152390/21/2009/47 issued on 17.09.2008 by the Oriental Insurance Company Limited. The appellants (OPs) have also filed Original of the Marine Cargo Open Policy No.152490/21/2009/47 issued by them on 17.09.2009 in favour of the respondent (complainant). The respondent (complainant) has filed duplicate insurance policy. In the said insurance policy the date of issuance of policy is mentioned as 17.09.2008 and Period of Insurance is from 09.09.2008 to 08.09.2009. In document Ex.P-4 Collection Code // 8 // and Name - 152390 - Extension Counter, Bhatapara, Collection No.51- 01/88390000935, Collection Date 17.09.2008 16:49 is mentioned. In Ex.P-5 which is copy of Marine Cargo Open Policy, the Period of Insurance is mentioned as 08.09.2008 to 08.09.2009. In Ex.P.5 date was hand written and looking to the said documents, prima facie it appears that the date was written in hand whereas other parts of this document are typed in computer.
15. The appellants (OPs) filed document OP-1 which is Original Marine Cargo Open Policy. In the said document against the column of period of insurance the date is hand written and month and year was typed. The collection No. and Date is mentioned as CHQ88390000935-17.09.2008. Document OP-2 is also Marine Cargo Open Policy in which period of insurance is mentioned from 17.09.2008 to Midnight on 16.09.2009, collection no. and date is mentioned as CHQ 88390000935 - 17.09.2008.
16. In Deokar Exports Pvt. Ltd. vs. New India Assurance Company Ltd. , I (2009) CPJ 6 (SC), Hon'ble Supreme Court has observed thus :-
"11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter - proposal, // 9 // in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter proposal of the respondent (that is respondent's acceptance with modification) which would result in a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date".
17. In Life Insurance Corporation of India vs. Batthini Rama Rao, II (2009) CPJ 340 (NC), Hon'ble National Commission has observed thus :-
"5..................
"6.................. The Forums under the Consumer Protection Act, committed gross error in construing Clause 4 - B of the policy and giving the same meaning to the two expressions in the aforesaid Clause 4-B namely "the date on which the risk under the policy has commenced" and "the date of the policy is issued".
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18. In Kolla Vijaya Laxmi vs. Life Insurance Corporation of India & Anr. I (2010) CPJ 137 (NC), Hon'ble National Commission has observed thus :-
"4..............................in the case of LIC of India v. Raja Vasireddy Komalavalli Kamba & Ors., AIR 1984 SC 1014. In the said case, the Supreme Court more fully dealt with the question as to when a concluded contract of life insurance could be said to have come into existence. In the above cited case, the facts noted and law laid down are as under :
"One late Raja Vasireddi Chandra Dhara Prasad died intestate on 12th January, 1961. He had filled a proposal for insurance for Rs.50,000/ on 27th December, 1960. There was medical examination by the doctor on the life of the deceased on 27th December, 1960. The deceased issued two cheques being the consideration towards the first premium of Rs.300 and Rs.220 respectively which were encashed by the appellant on 29th December, 1960 and 11th January, 1961. On 16th January, 1961, the widow of the deceased wrote to the appellant intimating the death of the deceased and demanded a payment of Rs.50,000. The Divisional Manager, Masulipatam Branch denied liability on behalf of the appellant on 28th January, 1961. Thereafter there was correspondence between the parties between 1st February, 1961 and 23rd December, 1963. On 10th January, 1964, the respondents filed a suit in the Court of Subordinate Judge, Masulipatam. The Trial Court dismissed the suit holding, inter alia, that there was no concluded contract, that the proposal was not accepted by the Divisional Manager for some reason or the other by time the deceased had died, that neither the encashment of the two cheques created a contract of insurance, in appeal, the High Court after ordering // 11 // certain other additional documents set aside the Trial Court judgment. Hence, the appeal by the Corporation after obtaining the special leave.
"1. Having regard to the clear position in law about acceptance of insurance proposal and the evidence of record in this case, it is clear that the High Court was in error in coming to the conclusion that there was a concluded contract of insurance between the deceased and the Life Insurance Corporation.
2. Though in certain human relationship silence to a proposal might convey acceptance but the case of insurance proposal, silence does not denote consent and no binding contract arises until the person to whom an offer is made says or does something to signify his acceptance. Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offer or the general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Whether the final acceptance is that of the assured or insurers, however, depend simply on the way in which negotiations for an insurance have progressed.
3. When an insurance policy becomes effective is well settled by the authorities but it is clear that the expression 'underwrite' signifies accept liability under that. The dictionary meaning also indicates that, it is true that normally expression 'underwrite' is used in Marine insurance but the expression used in Chapter III of the Financial Powers of the Standing Order in // 12 // this case specifically used the expression 'underwriting and revivals' of policies in case of Life Insurance Corporation and stated that it was the Divisional Manager who was competent to underwrite policy for Rs.50,000 and above.
4. The mere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy document is not acceptance. Acceptance must be signified by some acts or acts agreed on by the parties or from which the law raised a presumption of acceptance.
5. In the instant case, the High Court was in error in coming to the following conclusion; (i) that there was not sufficient pleading that there was no concluded contract, and non-acceptance of the proposal was not sufficient averment that the Divisional Manager was the only competent authority to accept the proposal;
(ii) in its view about the powers of the different authorities under Chapter III of the Standing Order 1960, dealing with the financial powers; (iii) about the view that the Assistant Divisional Manager having accepted the proposal; and (iv) about the assurance given by the Field Officers that the acceptance of the first premium would automatically create a concluded contract of insurance.
The Court however, directed half the amount of the insurance amount of Rs.85,000 paid to the respondents to be refunded to the Corporation."
19. Looking to the insurance policy, it appears that the premium amount was collected by the appellants (OPs) on 17.09.2008 and as per // 13 // judgment of Hon'ble Supreme Court in Deokar Exports Pvt. Ltd. vs. New India Assurance Company Ltd. (Supra) and Hon'ble National Commission in Life Insurance Corporation of India vs. Batthini Rama Rao, (Supra), the policy was effective only after receiving amount of premium. The insurance policy (OP-1) filed by the appellants (OPs) shows that it was issued on 17.09.2008 for the period from 17.09.2008 to 16.09.200. In document Ex.P-4 also the collection date is mentioned as 17.09.2008 16:49. It appears that the premium amount was received on 17.09.2008 and policy was issued on 17.09.2008, therefore, the policy was not effective with retrospective effect. Document Ex.P.5 filed by the respondent (complainant) is highly suspicious and doubtful. whereas the insurance policy (Ex.P-5) In document Ex.P.5, collection No. & date is mentioned as CHQ 8839000935 17.09.2008 therefore, it appears that policy was not issued from a retrospective date without receiving premium amount.
20. Therefore, it appears that there was no privity of contract between the respondent (complainant) and the appellants (OPs).
21. In the instant case, the respondent (complainant) did not send intimation to the appellants (OPs) regarding the loss of goods or damages to the goods to be transported to the consignee and thereby the appellants (OPs) were deprive from appointing a Surveyor to investigate in the matter. The Insurance Company has statutory right // 14 // to appoint Surveyor or Investigator for assessment of loss suffered by the insured, but in the instant case the respondent (complainant) did not the Insurance Company, and M/s Amit Traders, who is consignee has appointed the Shri Biswanath Chatterjee, Surveyor for conducting survey, who gave his report. In his report dated 30.09.2008, he mentioned Truck No.W.B.33-A-4766 whereas initially in the complaint truck no. W.B.33-A-8676 was mentioned which was corrected as W.B.33-A-8676.
22. The respondent (complainant) did not send intimation to the appellants (OPs) regarding the loss or damages to the goods to be transported to the consignee and thereby the appellants (OPs) were deprived from appointing a Surveyor to investigate in the matter and thus he deprived the Insurance Company from its statutory right. The appellants (OPs) could not appoint Surveyor and Loss Assessor and the Surveyor was appointed by the consignee himself and the Surveyor gave his report. On the basis of report of the Surveyor appointed by the consignee, the appellants (OPs) (Insurance Company) is not liable to pay compensation to the respondent.
23. The respondent (complainant) has utterly failed to prove that insurance policy was issued on 09.08.2008 and goods loaded in the truck for transportation were insured with the appellants (OPs), therefore, the impugned order dated 13.05.2013 passed by the District // 15 // Forum, suffers from illegality and irregularity and is liable to be set aside.
24. For the foregoing reasons, in our opinion the appeal filed by the appellants (OPs) deserves to be allowed. Therefore, the appeal is allowed and impugned order dated 13.05.2013 is set aside and consumer complaint filed by the respondent (complainant) before the District Forum, shall stand dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
/09/2014 / 09/ 2014 /09/2014