Case nº Revision Petition No. 4068 Of 2010, (Against the Order dated 30/07/2010 in Appeal No. 355/2008 of the State Commission Andhra Pradesh) of NCDRC Cases, May 19, 2017 (case National Insurance Co. Ltd. Vs A.S. Moosani & Co.)
| Judge | For Appellant: Mr. Yogesh Malhotra, Adv. and For Respondents: Mr. K. Maruthi Rao & Mrs. K. Radha, Advs. |
| President | Mrs. Rekha Gupta,Presiding Member |
| Resolution Date | May 19, 2017 |
| Issuing Organization | NCDRC Cases |
Order:
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The present Revision Petition has been filed against the Order dated 30.07.2016 passed by A.P. State Consumer Disputes Redressal Commission at Hyderabad (for short, ''the State Commission'') in First Appeal No.355 of 2008.
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The brief facts of the case as per the Respondent/Complainant that on 3112.2004, Respondent obtained a Marine Cargo(Open Declaration) policy bearing No.551201/21/04/44000067 for Rs. One crore valid from 31.12.2004 to 30.12.2005. The Respondent /Complainant submitted monthly declarations declaring the consignments for which insurance cover was required from January to August, 2005 worth Rs.49,26.489/-, by covering consignments of acetic acid, methanol, formic acid, formaldehyde, phenol, acetone, aniline oil and chemicals. On 03.09.2005, the Respondent imported 100 MT of Hydrated Phenol from Republic of Korea. The shipment was received at Kandla port in Gujarat and the consignment weight was 16,620 KG and valued worth Rs.9,50,987/-. It was loaded in a Tanker No. GJ-18-T-1368 LR No.7676 through M/s. Arab Road Lines for transportation from Kandla to Hyderabad, the tanker met with an accident and fell down from the bridge into the river on 06.09.2005 due to which the entire consignments of Hydrated Phenol was lost. On 07.09.2005, the Respondent was received the intimation of the said loss from the carrier. On 08.09.2005, the Respondent informed the same to the Insurance Company and also submitted its claim. The Surveyor appointed by the carrier submitted his report and thereafter on 23.08.2006, the Petitioner appointed an investigator who submitted his report on 23.08.2006. On 20.09.2006, the Petitioner repudiated the insurance claim of the Respondent on two grounds i.e. (i) as per the investigator''s report, the sum insured of Rs.one crore in the above policy had been exhausted within 18 days of taking of the policy (ii) proper post-accident precaution was not taken immediately after the accident. Thereafter, on 22.11.2006, the Respondent has served a legal notice to the Petitioner, which was duly replied by the Petitioner Company on 10.11.2007. The Respondent contended that sum assured could be exhausted only on the basis of declarations made to the Petitioner. It cannot be said that the sum insured was exhausted in the first 18 days based on the total sale/purchase made by the insured in the absence of any declarations from the insured. The insured reserve his rights to decide and declare which consignments were to be insured. The insured carried out a lot of business, but at the same time he did not want all the business and transaction, covered under the insurance policy and he had the choice as to which consignment was to be covered or not. Accordingly, in the present case, the Respondent had given monthly declarations as required till August, 2005 covering the consignments worth of Rs.49,26,489/- and premium payable thereon was Rs.6,897.08/-. The balance premium available as on 10.09.2005 was Rs.14,868.92/-. The consignment covered in the accident was included in the declaration made in September, 2005 covering the value of Rs.39,90,140/-. Hence, the repudiation of the claim was not justified. It was also submitted that in the event of any ambiguity in any clause or where two interpretations were possible, an interpretation which favours the policy-holder should be given. Hence, having no other alternative, the Respondent filed a Consumer Complaint before the District Forum with the following prayers;
"1) To direct the Opposite Party to pay a sum of Rs. 9,51,986.41 paise along with interest @ 12% per annum from 6.9.2005 till date of payment.
2) To direct the Opposite Party to pay a compensation of Rs.10,000/-
3) To grant costs of the complaint and legal expenses.
4) And pass such other relief or reliefs as this Hon''ble Forum may deem fit and proper in the circumstances of the case.
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The Petitioner/Opposite Party filed his written statement denying therein all the allegations levelled by the Respondent/ Complainant against it except issuance of issuance of a Marine Cargo (Open Declaration) Policy to the Respondent. However, it was stated that the policy in question taken by the Respondent was with a limit per transit of Rs.8,00,000/- which remained in force for a period of 12 months from 31.12.2004 to 30.12.2005 unless the sum assured was previously exhausted by declaration and as per the condition of the insurance policy, subject to open policy clause attached, the declaration had to be furnished within 15 days from the date of shipment in case of imports or arrival of ship, whichever was earlier. Condition No.1 of the Policy provided that the insured was bound to declare ''each and every dispatch shipment without exception''.
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It was stated that on 06.09.2005, a tanker allegedly carrying 100 MT of Hydrated Phenol imported from Republic of Korea going Kandla to Hyderabad, allegedly met with an accident on 06.09.2005 and fell from a bridge and the Respondent intimated the Petitioner about the alleged loss/leakage of consignment consisting of 16.620 Kgs of H. Phenol. Further, without even waiting for a sufficient time and without giving due intimation to the Petitioner immediately after the alleged accident, at the instance of the Respondent, the Carrier Arab Road lines, Gandhidham appointed one Sh. S.P. Bhatt, Surveyor to conduct the survey. The said Surveyor on 27.01.2006 submitted a survey report stating therein that he had received the instructions from the transporters at about 3.00 P.M. on 08.09.2005 for the survey and he reached at 5.00 P.M. on 08.09.2005. At the time of Survey, it was found that the Tanker was in a topsy-turvy condition and the top of tanker on rear side was submerged in the water canal. At the time of survey, while hitting the bottom portion of tanker it was giving sound of its empty condition. At the time of survey, it was seen that at no side of the tanker were there any markings, tempering/denting, which could lead to complete leakage of the material. He again visited the site of accident to find out the marking/dentin/shearing of compartments of tanker. It was found that there was no such marks or damages to the tanker which could lead to complete leakage of the Hydrated Phenol. There were also no heavy damages to the Manhole on top of tanker and/or twisting of pipes, which could result into complete leakage. Further, there were some discrepancies as per record which had to be verified/checked while processing the claim such as the total distance covered by the tanker from Kandla to site if accident was only 350 km and the time taken till the accident site was about 60 hours which was not justified. As per police complaint made by the driver he had not been injured but as per his statement dated 03.01.2006, he was found injured. The...
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