CONTINENTAL CHEMICAL LIMITED vs Oriental Insurance Co.

BRIEFLY the facts of the case are that the complainant on 31st March, 1988 delivered 20,020 litres of detergent liquid packed in 572 carboys vide G.R. No. 19893 and 19894 to Respondent No. 2 at Noida for carriage to Bombay. The value of the goods despatched was Rs. 1,82,000/-. The complainant got the said consignment insured with M/s The Oriental Insurance Company Respondent No. 1. The cover note certificates issued by the said respondent is No. 37007 dated 30th March, 1990. Later, Respondent No. 1 issued insurance policy No. 21263/20/88/00023 dated the April, 1988.

THE goods was loaded by Respondent No. 2 in two trucks. Both the trucks reached the godown of ONGC (Oil & Natural Gas Commission) Bombay to whom the goods were to be delivered on 5th April, 1988. It was discovered there, that a number of carboys were in damaged condition and a considerable quantity of detergent was missing from them. THE complainant at the request of the respondents engaged M/s Standard Surveyors Pvt. Ltd. as Surveyors. THEy after carrying out detailed survey issued a report dated 19.4.1988 according to which oil from 444 carboys had completely leaked out and from 15 carboys it had partially leaked out. THE remaining 113 carboys were intact. THE detergent of the value of Rs. 1,43,517.37 was reported to have leaked out. The complainant, it is alleged, filed a claim of Rs. 1,43,517.37 with Respondent No. 1. However, their claim was rejected by the respondent. It is further alleged that the complainant suffered the said loss on account of negligence and misconduct on the part of respondent No. 2, and consequently respondent No. 2 has been made a party. A prayer has been made by the complainant that the respondents be directed to pay Rs. 1,43,517.37 alongwith interest @ 18% per annum from the date of the claim till the date of payment.

The claim has been contested by the respondents. Respondent No. 1, in the written statement, raised a preliminary objection that the Commission has no jurisdiction to try the complaint as there was no deficiency or imperfection in performance of the services provided by the said respondent. The respondent, it is pleaded, got the matter investigated from Shri Shambhulal M. Sharma, a retired Deputy Supdt. of Police (C.B.I.), a consulting and detective specialist. He investigated the matter and submitted his report covering 25 pages after recording the statement of Sh. Sukhvinder Singh, Sh. Om Prakash, Manager of respondent No. 2 at U.P. Ghaziabad and of the Branch Manager of respondent No. 2 at Noida respectively. After considering the report, the liability was repudiated by respondent No. 1 vide letter dated 28th April, 1989.

THE complainant again made a representation to respondent No. 1 and their claim was once again examined by the Regional Office (higher authority) of respondent No. 1. It also came to the same conclusion. THE complainant appealed to the Head Office of respondent No. 1 against the order communicated to them by respondent No. 1. It was not accepted by the Head Office. Respondent No. 2, in the written statement, denied their liability and inter alia pleaded, that the consignment was not handled by their employees negligently as alleged by the complainant. The pleaded that if there was any leakage that was due to defective packing and weak containers.

THE question that arises for determination is as to whether, the State Commission constituted under the Consumer Protection Act has got the jurisdiction to decide the present complaint. THE facts of the case as pleaded by the parties have been given in detail above. From the perusal of the pleas, it is evident that respondent No. 1, after making investigations through surveyor, rejected the claim of the complainant. In order to determine as to whether in view of the aforesaid situation, the complainant still can recover the amount from respondent No. 1 it requires leading of detailed evidence and examination & cross examination of the witnesses. In the circumstances, it is appropriate that the matter should be decided by the Civil Court. In the said view, we are fortified by a decision of the National Commission in M/s Janta Machine Tools v. Oriental Insurance Co. Ltd. (Original Petition No. 12/1990) -I (1991) CPJ 234 (NC) decided on August 21,1990. THE following observations of the Commission may be read with advantages : "From the facts disclosed by the record and particularly the averments contained in the counter affidavit filed by the first respondent it is seen that the Insurance Company had fully investigated into the claim put forward by the complainant, got surveys conducted and had finally come to the conclusion that the claim put forward by the complainant was false and accordingly informed the complainant that his claim was rejected. Thus this is not a case where the Insurance Company did not take prompt and necessary steps for deciding the claim under the policies of insurance. It may be that the complainant is not satisfied with the said rejection of his claim by the Insurance Company. Having regard to the facts and circumstances of this case and the nature of the controversy between the parties we consider that this is a matter that should be adjudicated before a civil Court where the complainant as well as the respondent will have ample opportunities to examine witnesses at length, take out Commission for local inspections etc. and have an elaborate trial of the case. Without prejudice to the right of the complainant to take resort to the remedy by way of civil Suit before the proper Court. We dismiss this petition".

Respondent No. 1 is a necessary party to the present proceedings. In the absence of respondent No. 1 it will not be proper to decide the complaint against respondent No. 2. For the aforesaid reasons, we dismiss the complaint. However, the complainant may have recourse to a civil suit against both the respondents before-the competent Court. No order as to costs. Complaint dismissed. _______________