P.B. Joshi, Presiding Judicial Member:
1. The Complainant has obtained an Insurance Policy from Opponent under Marine Open Cover Policy bearing No.120400/21/026/11/021548/98. The Complainant had received a purchase order on 17.12.1998 from Rajasthan State electricity Board for supply of 12.5/132 KW - 3 Phase 50 HZ Transformer oil cooled with standard spares and accessories. The same was prepared for shipment after clearance from Central Excise with Inland Transit Insurance from the Opponent. The Opponent insured the same under Marine All Risk - Inland Transit from Thane to Sagwara, Rajasthan for Rs.43,68,862/- and corresponding premium was paid by the Complainant. The goods reached the destination on 09.06.1998 but the material was in damaged condition, while in transit which was observed on 11.06.1999 as evident from M/s. RSEBs inspection report. Since the goods were misfit for use which were returned for repair. Opponent held Insurance Survey on 13.06.1999 through their Surveyor M/s. A.K. Dedwania, whose survey report is dated 12.07.1999. On receipt of the material at the plant of Complainant the Opponent resurveyed the same through their Surveyor on 27thand 28thAugust, 1999 as reported by M/s. M.M. Vaidya and Co. had quantified the prima-facie the loss of Rs.8,86,405/- on 27.12.1999 based on its findings and guidance the entire repairs were completed and material was returned to RSEB on 6thNovember, 1999. Thereafter the Complainant registered a claim for Rs.11,81,879/- being loss sustained on 28.06.2000 on the Opponent. The Opponent failed to appreciate the facts and damage while in transit underinsurance cover and failed to honour its contractual liability. Hence, complaint was filed by the Complainant with the prayer that the Opponent be directed to pay an amount of Rs.11,81,879/- with minimum interest @12% per annum from the date of damage/claim until payment.
2. The Opponent resisted the claim by filing written version and has not disputed about the insurance policy. However, contended that transporter is a necessary party and as transporter is not a party the complaint is liable to be dismissed. It was contended by the Opponent that the oil was leaking at the joint of the radiator lower terminal pipe with the main tank and that the malafides were writ large on the part of the Complainant would be cleared from the fact that M-seal had been pasted and painted to hide the leakage which was at many joints/places at the M.V. side of the transporter. The Opponent prayed for rejection of the complaint.
3. Considering the rival contentions of the parties and considering the record and scope of the complaint following points arise for our determination and our findings thereon are as under:
|(i)||Whether goods were damaged during transit as covered under the Insurance Policy?||Yes.|
|(ii)||Whether the claimant is entitled for amount of Rs.11,81,879/- as loss sustained?||Entitled for amount of Rs.8,86,405/-.|
|(iii)||What order?||What order?|
From the record and from the submissions made before us it is clear that issuance of policy is not in dispute. The damage of goods is also not in dispute. The dispute is, whether goods were damaged during transit or not. It is the contention of the Complainant that during transit the goods were damaged. To support its contention the Complainant has filed affidavit in evidence of one Mr.Pravinkumar Jha - Manager-Legal and Company Secretary of the Complainant. It is the contention of the Complainant that there was inspection of the goods before dispatch of the goods and that inspection was done by Chartered Engineer, Fellow of the Institution of Engineers (India). Certificate of Pre-despatch Inspection (PDI) is at page 24 of the complaint compilation. It is mentioned in the said certificate that at request of M/s. Emco Limited, the Chartered Engineer attended the work for pre-despatch inspection and verified that:
1. RSEBs (Sagwara, Rajasthan) PO. No.RSEB/SE/SSPC/E3A3/TN 2474/D-2815 of 17thDec., 1998.
2. Invoice No.72 of 26/5/99 for Rs.36,74,705/- AND
It was further mentioned that usual inspection of Brand New - Manufactured 3 phase/50 Hy - 12.5/ 132 KV Transformer with 9300 liters of Transformer Oil.
Observatrions upon close inspection and careful examination of the contents and quality it was established that the same was manufactured and found as per RSEBs PO and enclosed invoice referred above. Conclusions were, above goods were meant for supply as per contract to RSEB-Sagwara, hence loaded per Trailor No.:HR-47/617 under LR No.9487 of 26/5/999 issued by M/s.Descent Cargo Movers, Mumbai for onward transportation. On the basis of submissions made before us and the said Pre-despatch inspection certificate the contention of the Complainant that before dispatch there was no damage to goods, is to be accepted. On the other hand the contention of the Opponent was that the damage was not during transit but it was prior to transit cannot be accepted as there is nothing on record to support said contention of the Opponent. On the other hand the said certificate of pre-despatch inspection issued by Chartered Engineer as referred above makes position clear that there is no substance in the contention of the Opponent that damage was prior to transit. Thus, it is clear that the damage to the goods was caused during transit. Hence, we answer point no.(i) in the affirmative.
The Complainant has claimed an amount of Rs.11,81,879/-. However, the Complainant has not explained how that amount was arrived at. On the other hand in the complaint itself it is mentioned that the Surveyor M/s. M.M. Vaidyaand Co. appointed by Opponent has submitted a report and assessed the loss to the tune of Rs.8,86,405/-. Said survey report is at page no.36 of the complaint compilation. In view of the said report and in absence of any material on record in respect of claim of Rs.11,81,879/- said amount of Rs.8,86,405/- is to be accepted as the loss sustained by the Complainant. Hence, Complainant is entitled for Rs.8,86,405/- and not Rs.11,81,879/- as loss sustained. Hence, we answer Point No.(ii) accordingly.
In view of the answer of Point Nos. (i) and (ii) complaint deserves to be partly allowed. Hence, we pass the following order:
(i) Complaint is partly allowed.
(ii) Opponent is directed to pay to the Complainant an amount of Rs.8,86,405/- along with interest thereon @9% per annum from the date of filing of the complaint i.e. from 03/07/2002 till realisation.
(iii) Opponent is directed to pay to the Complainant the aforesaid amount within a period of four months from the date of this order, in default the interest will be increased to 12% per annum from the date of complaint till realization.
(iv) Opponent is directed to pay to the complainant Rs.20,000/- as costs of litigation.