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M/s. Videocon Industries Ltd. (Formerly Known As Videocon International Ltd.) (Videocon Narmada Glass) Ahmednagar v/s Oriental Insurance Co. Ltd., Divisional Manager, Ahmednagar

    Consumer Case No. 18 of 2011

    Decided On, 23 September 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, PRESIDING MEMBER

    For the Complainant: Harish Sandhu, Advocate. For the Opposite Parties: Abhishek Kumar Gola, Advocate.



Judgment Text

1. Heard Mr. Harish Sandhu, the counsel for the complainant and Mr. Abhishek Kumar Gola, the counsel for the opposite parties.

2. M/s. Videocon Industries Limited (the complainant) (hereinafter referred to as the Insured) filed the present complaint, for directing Oriental Insurance Company Limited and others (the Insurer) to pay (i) the claim of Rs.4,17,56,084/- under the Insurance Policy, (ii) interest @ 18% per annum on aforesaid amount, (iii) Rs.10/- lakhs as the compensation for mental agony and harassment, (iv) Rs. 5/- lakhs as cost of litigation and (v) any other relief as this Commission may deem fit and proper in the circumstance of case.

3. The facts as stated in the complaint are as follows:-

(a) M/s. Videocon Industries Ltd. was a flagship company of Videocon Group. Videocon Narmada Glass Division was a Colour T.V. glass shell factory at Chavaj, Bharuch, Gujarat. The Insured placed purchase orders, for purchasing Caterpillar Diesel Engine Generator Sets and accessories, to Caterpillar Motoren GmbH Company KG in Germany. After purchasing, the generator sets and the accessories were securely packed in 24 consignments and dispatched through voyage from Hamburg Seaport in France against separate Bills of Lading to Indira Seaport, Mumbai, India, where it were unloaded on 14.02.2004. Thereafter, these consignments were transported through road from Mumbai to the Insured premises at village Chavaj, district Bharauch, Gujarat during 17.02.2004 to 20.02.2004.

(b) The opposite party is a Public Sector Insurance Company. The Insured obtained Marine Cargo-Inland Transit-Cover Type-A (Rail/ Road) Open Policy No. 2004/168, effective from 18.08.2003 to midnight of 17.08.2004, covering all risk Cover Type (A)+ SRCC (Strike Riot & Civil Commotion Clause), from anywhere in India to anywhere in India. Total sum assured was Rs.80 crores, on which premium of Rs.4,20,000/- + Service tax of Rs.33,500/- total Rs. 4,53,001/- was paid on 18.08.2003. Limit per transit was Rs.8 crores. By paying extra premium, an endorsement in the said Policy was made on 12.04.2004, extending coverage to Rs.100 crores.

(c) The Insured arranged for unloading the Generator Set from the trailer on 23.02.2004. When the driver was shunting the trailer, for final place of unloading, one side rear wheel went in slope. Due to which, body of the trailer was tilted in one side and the Generator Set slipped from the trailer, fell down on the ground and damaged.

(d) The Insured informed the Insurer on 24.02.2004, regarding damage of the Generator Set, during transit and claimed Rs. 12/- crores, (the cost of the Generator set+ excise duty+ conveyance charges) as the loss. The Insurer appointed M/s. A.K. Gupta & Associates, Ghaziabad, for survey and assessment of the loss on 26.02.2004. The Surveyor inspected the spot on 28.02.2004 and 22.03.2004 and sought for various documents/information from the Insured, which were supplied to him. The Surveyor submitted his Status Report dated 23.03.2004. In this status report, the Surveyor noted that during his inspection, Generator Set was lying toppled on the ground. He requested the Insured to straighten it, so that external damage could be noted. He also requested to arrange for inspection of internal damages, but the request was avoided on one or other pretext. Technical report from the manufacturer was not supplied, to assess the loss. He tentatively assessed the loss of Rs. 7 crore, on repair basis. However, the Surveyor submitted that the Insurer’s liability is restricted to physical damages only, for the replacement of damaged part.

(e) The Insured arranged for repair of the Generator Set, through Caterpillar Chennai and their Engineer from Germany. After examination, they found that the Generator Set was repairable and assessed the cost of repair to Rs. 322.82 lakhs. The Insured informed the Surveyor, in this respect on 22.09.2004. Subsequently after examining the bills and vouchers, the Insured reduced his claim to Rs.257.76 lakhs as per letter dated 13.01.2005. The Insurer, however, did not make any settlement of the claim.

(f) The Surveyor submitted his Report dated 20.04.2006, in which, he raised doubts, about the incident of loss having been occurred during transit, for the reasons i.e. (i) From the record of AIG General Insurance Co. Ltd. Mumbai, who instructed M/s. J.B. Boda Surveyors Pvt. Ltd. for inspection of the consignments, after unloading at seaport Mumbai, shows that the consignments had to be transported by (i) M/s. ABC India Ltd., Mumbai or (ii) Nambros Transport Pvt. Ltd., Gujarat, while according to the Insured, the consignments were transported by Pawan Transport, Ballad Pier, Mumbai, on same GR. (ii) The trailers reached the premises of the Insured on 20.02.2004 but unloading of Generator Set was allegedly done on 23.02.2004 and there was no reason for waiting three days. (iii) There was no endorsement in GR, regarding damage of the consignment, as produced by the Insured, (iv) Pawan Transport has issued damage certificate, although there was no evidence before him regarding the damages being caused during transit, as the driver, who caused damage, was allegedly absconding, (v) Unusual delay was caused by the Insured in submitting his declaration, (vi) During visit on 28.02.2004, Mr. P.S. Nathan, Engineer-in-charge of the Insured, orally informed that the Generator set was delivered in sound condition by the transporter. But when it was being shifted to generator room for installation, it was fallen down and damaged.

(g) After report dated 20.04.2006, several round meetings were held by the Insured with the officers of the Insurer. A meeting was held at the Regional Office, Pune on 14.06.2006. Thereafter, the Insurer appointed J.C. Bhansali & Co., Surveyor and Loss Assessor, Pune, for verification of the declaration of the Insured. The Surveyor of J.C. Bhansali & Co. visited the office of the Insured on 26.03.2007 but the Insured did not co-operate him. J.C. Bhansali & Co., through its letter dated 31.03.2007, requested to fix/inform the date, time and place for his verification but the Insured did not reply at that time. After various efforts, J.C. Bhansali & Co. ultimately verified the declaration and submitted its report dated 20.10.2008 that the declaration submitted by the Insured was verified and tallied from his record, except few consignments, which were not included in the declaration. He submitted clarification letter dated 20.04.2009, also.

(h) When the Insurer did not take any decision, the Insured appointed M/s. Trans Ocean Marine and General Survey Agencies, Navi Mumbai, who after inquiry submitted his report dated 10.07.2010, stating that the damage was caused, while unloading the Generator Set from the trailer. Even if the damage was caused during shifting the Generator Set to final place of storage, after unloading, then also the claim was liable to be settled as the transit continued till the delivery to the final warehouse at the destination, under duration clause-5 of the Policy. However, he disallowed certain expenses and assessed the loss to Rs.157.76 lakh.

(i) The Insured sent the report dated 10.07.2010 and an affidavit of P.S. Nathan to the Insurer, through letter dated 05.08.2010, and requested to settle his claim, according to this report. When nothing was done, then this complaint was filed on 28.02.2011.

4. The Insurer contested the case and filed its written reply on 22.07.2011, in which the facts that the Insured obtained Marine Cargo-Inland Transit-Cover Type-A (Rail/Road) Open Policy No. 2004/168, effective from 18.08.2003 to midnight of 17.08.2004, covering all risk Cover Type (A)+ SRCC (Strike Riot & Civil Commotion Clause), from anywhere in India to anywhere in India, endorsement in the said Policy on 12.04.2004, extending coverage to Rs.100 crores and transportation of Caterpillar Generator Set from Mumbai dock on 17.02.2004 and reaching it to the factory of Insured at village Chavaj, Bharuch, Gujarat on 20.02.2004, were admitted. However, relying upon the report of M/s. A.K. Gupta & Associate dated 20.04.2006, the Insurer has been stated that loss did not occur during transit of the Generator Set rather it occurred while shifting it at the place of installation, due to mishandling by the agents of the Insured. During survey, when the surveyor of M/s. A.K. Gupta & Associate visited the spot on 28.02.2004, M.S. Nathan, Engineer-in-charge of the Insured, orally informed that Generator Set was unloaded from the trailer on 20.02.2004, in sound condition; when it was being shifted on 23.02.2004 to the place of installation, then due to mishandling by the agents of the Insured, it was fallen down on the ground and was damaged. However, M.S. Nathan refused to give his aforesaid statement, in writing. The Insured did not supply requite information and documents as demanded by the surveyor in usual time. Later on, the Insured gave a GR No. 754 of Pawan Transport, alleging that Generator Set was transported to his factory premises through Pawan Transport. This GR was clean, inasmuch as it did not contain any writing of the driver or the Insured that the damage was caused at the time of unloading. The Insured took plea that at the time, when the Generator Set slipped from the trailer, his employees were busy in arrangements and taking advantage of it, the driver run away from the spot along with trailer; this story created a doubt, inasmuch as FIR of the incident was lodged with inordinate delay on 08.03.2004. The alleged driver of Pawan Transport was never brought before the Surveyor. During survey, the Surveyor checked the papers of Indira seaport, Mumbai and found that after unloading the consignments from ship on 14.02.2004, M/s. J.B. Boda Surveyors Pvt. Ltd. Mumbai had conducted a survey of the consignments, on the instructions of M/s. Tata AIG General Insurance Company Ltd. In the report of M/s. J.B. Boda Surveyors Pvt. Ltd., the transporters were as (i) ABC India Ltd. Mumbai and (ii) Nambros Transport Pvt. Ltd., Gujarat. On its basis, the Surveyor in his report dated 20.04.2006, raised a grave doubt regarding the version of the Insured that the consignments were transported by Pawan Transport. In GR No. 754 of Pawan Transport, as supplied by the Insured to the surveyor, trailer registration numbers were mentioned as GRS 5406 and GRS 5407. On inquiry from Regional Transport Office, it was found that Nambros Transport Pvt. Ltd., Gujarat was registered owner of these trailers. The Insurer then approached the office of Nambros Transport Pvt. Ltd., Gujarat, who informed that the consignments of the Insured were transported through its trailer (registration No. Gj 15 X-8053) vide GR No. 754 on 17.02.2004 from Mumbai and it was delivered on 20.02.2004 to the factory of Insured at village Chavaj, Bharuch, Gujarat, in sound condition, as is proved from GR No. 754, containing the seal of the Insured and signature regarding delivery of the consignments on 20.02.2004. The Insured, in order justify his claim procured a GR from Pawan Transport, Ballad Pier, Mumbai, containing same number of GR, although Pawan Transport was not mentioned as the transporter, in the report of M/s. J.B. Boda Surveyors Pvt. Ltd. Pawan Transport has also issued a declaration relating to loss although it is alleged that the driver was absconding and the proprietor was not an eye witness of the incident. The surveyor was not permitted for external and internal examination of the Generator set. After delivery of the Generator set at the factory premises of the Insured on 20.02.2004, insurance cover terminated. After examination of all the papers, Regional Office was of the opinion that insurance claim of the Insured was liable to be repudiated. Regional Office forwarded all the papers, along with its comments to Head Office on 14.10.2009. The Head Office, after scrutinizing the papers agreed with the recommendation of Regional Office and through Memo dated 19.12.2010, accorded permission to repudiate the claim. However, these papers were misplaced, as such, no order could be passed at that time. After notice of this complaint, the Head Office again wrote a letter with copy of Memo dated 19.12.2010. On receiving this letter, the papers were traced and forwarded to Divisional Office, who was competent authority in this matter and then repudiation letter dated 11.04.2011 was issued to the Insured.

5. The Insured filed his Rejoinder Reply dated 20.09.2011, in which the facts stated in the complaint were reiterated. The Insured filed an Affidavit of Evidence of A.M. Gawarikar, to prove the report of M/s. Trans Ocean Marine and General Survey Agencies, Navi Mumbai dated 10.07.2010. The Insured filed documentary evidence i.e. (i) Copies of the Insurance Policies as Annexure-A, (ii) Copy of Survey Report dated 20.04.2006 as Annexure-B, (iii) Copy of Survey Report dated 10.07.2010 as Annexure-C, (iv) Copy of the letter dated 05.08.2010 as Annexure-D, (v) Copy of Affidavit of P.S. Nathan as Annexure-E and (vi) Various letters, communication between the Insured, Insurer and the Surveyors (collectively) as Annexure-D to the complaint. The Insurer filed Affidavit of Evidence of Masood Wahab. The Insurer filed documentary evidence (i) Copy of repudiation letter dated 11.04.2011 as Annexure-R-1, (ii) Copies of various letters written by M/s. A.K. Gupta & Associates (collectively) as Annexure-R-2, (iii) Copy of Status Report dated 23.03.2004 as Annexure-R-3, (iv) Copy of letter dated 23.05.2005, as Annexure-R-4, (v) Various letters, communication between the Insured, Insurer and the Surveyors (collectively) as Annexure-R-5, (vi) Copy of letter dated 31.03.2007 of M/s. J.C. Bhansali as Annexure-R-6, (vii) Copy of letter dated 13.12.2007 of M/s. J.C. Bhansali as Annexure-R-7, (viii) Copy of report of M/s. J.C. Bhansali dated 20.10.2008 as Annexure-R-8, (ix) Copy of letter dated 20.04.2009 of M/s. J.C. Bhansali as Annexure-R-9, (x) Copy of the letter of Head Office dated 19.02.2010 as Annexure-R-10, with counter reply. Both the parties filed their written submission.

6. I have considered the arguments of the counsel for the parties and examined the record. In repudiation letter dated 11.04.2011, Divisional Manager found that from the report of J.B. Boda Surveyors Pvt. Ltd. Mumbai, it was proved that the consignments were delivered in sound condition at the seaport Mumbai. The transporter of the consignment did not report any damage to Generator Set during transit from Mumbai to the factory of the Insured at Chavaj, Bharuch, Gujarat. The loss has happened due to mishandling by the agency of the Insured, while shifting to generator room. After delivery of the Generator set at the factory premises of the Insured on 20.02.2004, insurance cover was terminated. Therefore, the claim was repudiated.

7. According to the Insured, the Generator Set was transported by Pawan Transport, Ballad Pier, Mumbai, on GR No. 754, from Mumbai to Chavaj. The trailers reached the premises of the Insured on 20.02.2004, but Generator Set was being unloaded on 23.02.2004 as they could not arrange technical staff previously. When the driver was shunting the trailer, for final place of unloading, one side rear wheel went in slope. Due to which, body of the trailer was tilted in one side and the Generator Set slipped from the trailer, fell down on the ground and damaged.

8. The aforesaid facts have been proved to be incorrect. On the basis of the report of J.B. Boda Surveyors Pvt. Ltd. Mumbai, it was noticed that the consignments had to be transported by (i) ABC India Ltd. Mumbai and (ii) Nambros Transport Pvt. Ltd., Gujarat. In GR No. 754 of Pawan Transport, as supplied by the Insured to the surveyor, trailer registration numbers were mentioned as GRS 5406 and GRS 5407. On inquiry from Regional Transport Office, it was found that Nambros Transport Pvt. Ltd., Gujarat was registered owner of these trailers (Pages-246, 247, 320 and 321). The Insurer then approached the office of Nambros Transport Pvt. Ltd., Gujarat, who informed that the Generator Set of the Insured were transported through its trailer (registration No. Gj 15 X-8053) vide GR No. 754 on 17.02.2004 from Mumbai and it was delivered on 20.02.2004 to the factory of Insured at village Chavaj, Bharuch, Gujarat, in sound condition, as is proved from GR No. 754, containing the seal of the Insured and signature regarding delivery of the consignments on 20.02.2004 (page-322). Thus entire story of the Insured that Generator Set was transported by Pawan Transport, Ballad Pier, Mumbai, on GR No. 754 and after the incident, the driver run away along with trailer has been proved to be false.

9. The Insured lodged FIR of the incident on 08.03.2004, i.e. with delay of about 15 days. FIR was the own version of the Insured. The alleged Panchnama was executed on 28.02.2004. The Panches of this Panchnama were not an eye witnesses of the incident as such Panchnama and FIR are not reliable documents.

10. M/s. Trans Ocean Marine and General Survey Agencies, Navi Mumbai, in his report dated 10.07.2010, has stated

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that even if the damage was caused during shifting the Generator Set to final place of storage, after unloading, then also the claim was liable to be settled as the transit continued till the delivery to the final warehouse at the destination, under duration clause-5 of the Policy. Clause-5 of the Policy is quoted below:- “5. This insurance attaches from the time of the goods leave the warehouse and /or the store at the place named in the policy for the commencement of transit and continues during ordinary course of transit including customary transhipment, if any, until delivery to the final warehouse at the destination named in the policy.” 11. The term “until delivery to the final warehouse at the destination” has been used. It does not mean or include the place of instalment. From GR No. 754, as obtained from Nambros Transport Pvt. Ltd., Gujarat, it is proved that the Generator Set of the Insured was transported through its trailer (registration No. Gj 15 X-8053) on 17.02.2004 from Mumbai and it was delivered to the factory of Insured at village Chavaj, Bharuch, Gujarat, in sound condition, on 20.02.2004, GR No. 754, contains the seal of the Insured and signature regarding delivery of the consignments on 20.02.2004. The Insured did not take a plea that the Generator Set was not delivered at his warehouse on 20.02.2004. Shifting of the Generator Set from warehouse to the place of installation is not covered under the Inland Transit Policy. Supreme Court in Bajaj Allianz General Insurance Company Ltd. Vs. State of M.P., 2020 SCC OnLine SC 401 has held that an action that is wholly unrelated to usual or ordinary method of pursuing the transportation of goods would prevent the goods from being covered under definition of the expression “in transit” under the policy. O R D E R In view of the aforesaid discussion, the complaint has no merit and is dismissed.
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