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Judgment
THE complainant M/s. Best Food International is an export oriented partnership firm from Indri District Karnal, Haryana. The complainant firm got an order for supply of Indian Basmati Golden Sella Rice in 1500 jute bags weighing fifty kilos each from M/s. Ajwa RMTI, Al Lahmal Tower, Jeddah, Saudi Arabia (Annexure A''). The complainant procured the said guilty of rice from different places i.e., from local and other markets to meet its requirements. From its warehouse at Indri, the complainant sent 1500 jute bags of rice weighing 50 kilos each to Kandla Port for further shipment to Jeddah. It obtained an open declaration overseas policy, Marine Cargo Inland Transit Policy for a sum of Rs. 1,30,000 from opposite party i.e., National Insurance Company Limited (Annexure ( B'')). The policy covered rice packed in jute bags for conveyance by road, rail, sea, and, accordingly, Rs. 56,491 was accepted as premium by the opposite party. Policy No. 420501/4400106 dated 11.8.1997 in lieu of the Cover Note No. 173160/97 (Annexure C'') was being issued by the opposite parties.
AS there was a calamity in Kandla Port, the rice housed in the warehouse was severely hit by cyclone, high winds, rains and sea water etc., which resulted in damage to the stocks lying in warehouse. At the time of movement of the insured rice from Indri to Kandla, all the relevant declarations as sought by the opposite party were made to their satisfaction. Complainant filed a claim in respect of damage to the cargo of rice vide letter dated 12.6.1998.
OPPOSITE party appointed M/s. Bhatt and Associates, Assessors and Valuers at Ahmedabad to do the survey after the calamity was over. The Surveyors submitted the report stating that the consignment pertaining to the complainant was in good condition to be shifted to Saudi Arabia at the time when it was delivered at Kandla Port warehouse. The warehouse owner i.e., R.K. Associates, West Gate, New Kandla Port have also confirmed the placement of rice in question in their warehouse at West Gate and accordingly charged the rent for the same. Billing Report of R.K. Associates is also filed as Annexure G''. The damaged rice in question was declared as unfit for human consumption and it was destroyed in the presence of the Food Controller, Gujarat State and Dr. P.M. Patel of the Health Department. The complainant vide letter dated 13.11.1998 requested the opposite party to pay the claim at the earliest, but the claim was repudiated vide letter dated 30.11.1998 by the opposite party without assigning any reason (Annexure J''). Complainant wrote a letter on 15.1.1999 to the opposite party seeking the information as to the reasons for repudiating the claim, but the opposite party maintained silence and did not reply to this letter, therefore, the complainant was constrained to serve a legal notice dated 27.2.1999 upon the opposite party (Annexures L'' and M''). Aggrieved by the continued silence by the opposite party in not giving any information as to why the claim was repudiated, this complaint has been filed claiming the following reliefs against the opposite party for deficiency in service. (a) Payment of Rs. 21,00,000 as cost price of the rice in question.
(b) To compensate to the tune of Rs. 8,00,000 which complainant would have earned by rotating the said amount of Rs. 21,00,000 in its business;
(c) Damages for mental agony and physical sufferings to the tune of Rs. 6,00,000;
(d) Expenses of Rs. 22,000.
AS there was a calamity in Kandla Port, the rice housed in the warehouse was severely hit by cyclone, high winds, rains and sea water etc., which resulted in damage to the stocks lying in warehouse. At the time of movement of the insured rice from Indri to Kandla, all the relevant declarations as sought by the opposite party were made to their satisfaction. Complainant filed a claim in respect of damage to the cargo of rice vide letter dated 12.6.1998.
OPPOSITE party appointed M/s. Bhatt and Associates, Assessors and Valuers at Ahmedabad to do the survey after the calamity was over. The Surveyors submitted the report stating that the consignment pertaining to the complainant was in good condition to be shifted to Saudi Arabia at the time when it was delivered at Kandla Port warehouse. The warehouse owner i.e., R.K. Associates, West Gate, New Kandla Port have also confirmed the placement of rice in question in their warehouse at West Gate and accordingly charged the rent for the same. Billing Report of R.K. Associates is also filed as Annexure G''. The damaged rice in question was declared as unfit for human consumption and it was destroyed in the presence of the Food Controller, Gujarat State and Dr. P.M. Patel of the Health Department. The complainant vide letter dated 13.11.1998 requested the opposite party to pay the claim at the earliest, but the claim was repudiated vide letter dated 30.11.1998 by the opposite party without assigning any reason (Annexure J''). Complainant wrote a letter on 15.1.1999 to the opposite party seeking the information as to the reasons for repudiating the claim, but the opposite party maintained silence and did not reply to this letter, therefore, the complainant was constrained to serve a legal notice dated 27.2.1999 upon the opposite party (Annexures L'' and M).
AGGRIEVED by the continued silence by the opposite party in not giving any information as to why the claim was repudiated, this complaint has been filed claiming the following reliefs against the opposite party for deficiency in service. (a) Payment of Rs. 21,00,000 as cost price of the rice in question.
(b) To compensate to the tune of Rs. 8,00,000 which complainant would have earned by rotating the said amount of Rs. 21,00,000 in its business;
(c) Damages for mental agony and physical sufferings to the tune of Rs. 6,00,000;
(d) Expenses of Rs. 22,000; and
(e) Interest on the amount for the period from 22.5.1998 till date @ 24%.
Opposite party''s version
IN the reply filed by the opposite party it is contended that the basic documents in support of the claim furnished by the complainant were fake and fabricated and that there are many discrepancies in the said documents. On receipt of the intimation on 12.6.1998 regarding the damage due to cyclone on 9.6.1998, opposite party appointed M/s. Bhatt and Associates, who, submitted their report on 10.7.1998 assessing the loss at Rs. 21,00,000. But, when it is found that in the documents furnished by the insured there were discrepancies, the opposite party appointed M/s. has Consultant Private Limited to investigate into the matter, vide letter dated 29.8.1998, and made two important observations, which are as under: "(1) One of the three consignments booked under G.R. No. 221 dated 22.5.1998 furnished by the parties is incorrect. He had stated that as per record of the carriers Truck No. HR 45/1633 loaded 560 Katta rice on 23.4.1998 Ex -Taraori to Ambala in the account of M/s. Mahavir Industries.
(2) Inquiry at the office of the Kandla Port Trust revealed that certificate dated 10th July, 1998 furnished by M/s. Best Food International is not correct and not issued by the authorised officer of K.P.T."
THE said investigators thoroughly investigated and submitted their report on 3.9.1998 with the following observations: 1. There is a discrepancy in the records of M/s. Mahavir Transport Co. about the despatch of the cargo. It appears from the investigation that they collect some charges from Truck driver/owner/consignor and hand over blank printed GRs to driver to fulfil the requirement of transit by road.
It appears from the original declaration No. 47 cancelled by the party that date of the declaration has been tampered.
Since no records of truck incoming and outgoing in the premises are available, hence it is very difficult to comment upon the despatch dates of GRs to driver to fulfil the requirement of transit by road.
Owner of Truck No. HR -45/2288 also could not be able to furnish any documents to prove the despatch of the trucks as per GRs.
KPT certificate submitted by the party seems to be incorrect and not issued by authorised officer of KPT.
OPPOSITE party was constrained to repudiate the claim on the following grounds. "(1) The G.R. No. 221 dated 22.5.1998 furnished by the insured was incorrect. The inquiries revealed that as per the record of the carrier, truck No. HR -45/1637 was loaded with 560 bags of rice on 23.4.1998 Ex -Taraori to Ambala A/c M/s. Mahavir Industries.
(2) The proprietor of the carriers M/s. Mahavir Transport Co. confirmed that the G.R. Nos. 346, 347 and 221 are not of their company and the GRs of their Company are signed by the owners namely Dharam Pal and Om Prakash. The signatures in the said GRs are not of either of them (Page 23 of the affidavit Volume of Insurance Company).
(3) The inquiries at Kandla Port Trust revealed that the destruction certificate dated 10.7.1998 furnished by the complainant was also not correct. Shri R.K. Aggarwal, Assistant Traffic Manager, Kandla Port Trust endorsed that the said certificate was not furnished by the authorised officer of K.P.T. (Page 32 of reply).
(4) The said certificate alleged to have been issued by K.P.T. and Superintendent Co. of India do not identify the consignment (Page 22 of reply).
(5) The photographs obtained by the Surveyors of destroyed cargo also raise doubts as the brand name differs.
(6) Invoice proforma Serial Nos. 1, 2 and 3 of the complainant, export advice of the complainant Nos. 3, 1 and 2 and GRs of Mahavir Transport Company seem to have been prepared by one person and even the signature on these documents have been put by one person only. (Pages 14 -22 of the affidavit Volume of Insurance Co.) The movement of trucks coming in and out of the factory premises of the insured were not furnished.
(7) G.Rs. have been issued in the name of Prashant Shipping Co. consignor and Best Food International as consignees though it should have been the other way round (Page 16 of the affidavit Volume of Insurance Company).
(8) The consignment in question was insured only from Indri to Kandla as per the declaration submitted to the Insurance Company by the complainant though the consignment was to be shipped to Saudi Arabia (Pages 11 to 13 of the affidavit Volume of Insurance Company).
(9) Since the consignment was insured only from Indri to Kandla, the liability of the company would cease once the consignment reaches Kandla. The policy being transit policy, the company would be liable only for the loss in transit and not for the loss after the consignment reaches the destination i.e. Kandla as per the declaration. The movement sheet of Prashant Shipping Co. confirmed that the consignment was received on 28.5.1998 and 29.5.1998. The alleged loss is dated 9.6.1998.
(10) As per the letter dated 1.5.1998 issued by AJWA RMTI, Jedda (Page 17 of complaint) indicate sale of rice to Best Food International and the damaged goods bears the marking AJWA'' (Kindly see photo -graphs pages 24 to 29 of the reply). If the said rice has been sold to Best Food International i.e. the complainant herein by AJWA, how it came to be insured from Indri to Kandla. The rice alleged to have been damaged therefore was not insured under the policy in question and the complainant is trying to take the benefit of the insurance cover for the consignment which was not insured under the policy."
COMPLAINAN T in its evidence by way of affidavit and also in its rejoinder to the reply of the opposite party emphatically denied the allegations made by the opposite party. Learned Counsel for the complainant submitted that since there was no sea -route from Indri to Kandla for shipment of consignment, this particular shipment at the very first stage of journey to Saudi Arabia got damaged, and hence, complaint is maintainable. Various allegations made by the opposite party have not been produced on affidavits from Sri Dharam Pal and Om Prakash (owner of M/s. Mahavir Transport Company ) and Shri R.K. Aggarwal, the Assistant Traffic Manager, Kandla Port Trust, the Inspector, etc. and hence, the contentions raised by the opposite party are not prudent. M/s. Bhatt and Associates, who were appointed by the opposite party rightly assessed the loss and that the complaint should be allowed. Learned Counsel for the complainant also submitted that just one word repudiated'' has no meaning unless it is given with reasoning for reaching such decision. Non -disclosure of reasons is against the law and principles of natural justice. The repeated request of the complainant seeking disclosure, of the reasons were unheard by the opposite party, which itself is deficiency in service. It is argued by the learned Counsel for the complainant Mr. Saxena that the letters sent by the complainant, even the notice given to opposite party was ignored deliberately and intentionally and urged that the complainant is entitled to the reliefs, as prayed for, in the complaint. Our findings:
WE heard both the learned Counsel for the parties at length and perused the documents on record.
WE agree with the version of the opposite party, which doubted the authenticity of the documents produced by the complainant especially regarding the G.R. numbers that were not tallying. The Insurance Company filed an affidavit based on the investigations carried out through an independent investigator, which clearly shows that the G.R. No. 221 dated 22.5.1998 furnished by the insured was incorrect and does not tally with the record of the carrier because the said truck was loaded with 560 bags of rice on 23.4.1998 Ex -Taraori to Ambala A/c M/s. Mahavir Industries. This shows that the complainant has furnished fabricated documents.
THE proprietor of the carriers M/s. Mahavir Transport Company confirmed that the G.R. Nos. 346, 347 and 221 are not of their Company and the signatures as shown in the said G.Rs. are not of either of the owners, namely, Dharam Pal and Om Prakash. M/s. Ilas Consultants Private Limited in its report stated that there are forged documents and we agree with the same.
REGARDING despatch of the cargo, it does not tally with the version of the complainant. The consignment has reached Kandla on 28.5.1998 and 29.5.1998 as per the movement sheet of Prashant Shipping Company, where the alleged loss is dated 9.6.1998. As per the transit policy, the opposite party is liable only for the loss in transit from Indri to Kandla and not for the loss after the consignment reaches the destination i.e., Kandla as per declaration.
THE Assistant Traffic Manager, Kandla Port Trust endorsed that the destruction certificate dated 10.7.1998 furnished by the complainant was not furnished by the authorised officer of the Kandla Port Trust. This discrepancy in the documents shows that the complainant has produced fake and fabricated documents.
MOST importantly, the letter dated 1.5.1998, issued by AJWA RMTI Jeddah, indicates sale of rice to Best Food International, which is given here as under: "We are pleased to confirm to sell you subject to the terms/conditions as specified below and overleaf.
"COMMODITY
: INDIAN BASMATI GOLDEN SELLA RICE FULLY SORTEX
QUANTITY :
75 M. Tons.
PACKING :
50 kgs Jute Bags
PRICE :
US 770/ PER MT CIF JEDDAH
SHIPMENT :
BY STEAMER TILL 15.7.1998
PAYMENT :
AT SIGHT
INSURANCE :
BY BENEFICIARY
TOTAL
AMOUNT :
US 57750 (Fifty -seven thousand seven hundred fifty only)
Coditions:
Phytosanitary and Fumigation certificate must attach with the original documents.
Invoice and Certificate of origin should be legalised by the Saudi Consulate.
Document to be sent by DHI to National Commercial Bank, after effecting the shipment."
THE wording confirm to sell you'' is something that speaks volumes of this case. The complainant has merely mentioned that it is a typographical mistake and tried to brought it aside. In order to prove its case, the complainant could have produced authenticated evidence to show that it was mistakenly mentioned sell'' to fortify their pleadings, which they did not do for the reasons best known to them.
THIS clearly shows that the rice alleged to have been insured under the policy in question had already been damage and even the photographs produced also show AJWA'' on the damaged goods, which indicate that these damaged goods have actually been sent to the complainant who tried to take the benefit of the same alleged goods under the insurance cover for the consignment. Mahavir Transport Company, who is the transporter, admitted that Annexure R.7 was not signed by them, which has been relied upon by the complainant.
IN view of the various discrepancies that have been shown by M/s. Ilas Consultants Private Limited, the record that has been produced by the complainant, wherein the complainant has not rebutted or placed reliable evidence to counter the contentions raised by the opposite party to justify their claim, we find there is no merit in this complaint. As for the repudiation of the claim, we agree with the complainant that the opposite party ought to have given appropriate reasons for repudiation.
THE Insurance Company submitted that they have informed the complainant the reasons for repudiation and that it is of no surprise to the complainant. In our view, the complainant has supported his claim based on fabricated statements and fraudulent documents and has not come with clean hands. There seems to be some kind of arrangement between AJWA RMTI, JEDDAH, and the complainant whereby some damaged Basmati rice has been used to make a false and exaggerated claim to get a windfall from the Insurance Company. Even the photographs placed on record and the markings on the bags indicate the falsity of the claim. The alleged certificate of destruction on investigation was found to be false and incorrect.
IN view of the above discussion, we do not find that there is deficiency in service on the part of the opposite party in repudiating the claim. The complainant has not supported the complaint by countering the allegations made by the opposite party except to harp on the fact that the claim was repudiated without assigning any reasons.
IT is well settled principle of insurance that the contract of insurance is that of utmost good faith, and in the present case, it is vitiated by fraudulent act of the complainant, who furnished fabricated documents in support of their claim and hence it is not maintainable. Complainant has come with unclean hands to take the benefit of the insurance cover on false grounds by suppression of material facts, false contentions and fraudulent documents and cannot expect remedy or redressal under the Consumer Protection Act. Hence, the complaint is dismissed. Complaint dismissed.