- (1.) THIS appeal is directed against order dated 23.11.2007, passed by District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short), in complaint case No. 254/05, whereby the complaint of the appellant herein, in respect of the goods lost during transit and which were insured by the respondent under Marine Open Insurance Policy, was dismissed with a direction that the complainant may file Civil Suit, in this regard.
(2.) FACTS of the case in brief are that the complainant is a Company deals in steel products. Some consignment was sent by the Company to Belgam, Karnataka, through M/s. Tirupati Road Lines. That consignment was got insured from the respondent under a Marine Open Insurance Policy, for a period from 9.2.2004 to 8.2.2005 and the limit of insurance was Rs. 5,00,000 for each consignment. It is alleged that such consignment could not reach to the destination. When Transport Company was contacted by the complainant, an assurance was given that the company will look into the matter and will respond after some time. A letter was also written by the Transport Company in this regard that it was searching the truck in question. Intimation to the Insurance Company was also given immediately and then claim was preferred before it, for the loss of consignment during transit, which was insured. The Insurance Company instructed the complainant to produce the non -delivery certificate of the consignment issued by the transporter. In the meantime, Surveyor and Loss Assessor was also appointed by the Insurance Company. Ultimately, the claim was repudiated by the Insurance Company on the ground that desired document non -delivery certificate was not produced by the complainant. Facing this situation, the complaint under Section 12 of the Consumer Protection Act, 1986 was filed before District Forum, claiming in all compensation of Rs. 4,11,000 including the cost of consignment Rs. 2,61,579.
(3.) IN reply the Insurance Company averred that the Transport Company as well as the party, to whom the goods were sent, were also necessary parties in the case and in their absence, the complaint was not maintainable. It has also been averred that under the provisions of Carriers Act, under Section 10, notice within six months was required to be issued to the carrier for claim of compensation on account of loss. That notice was not issued by the complainant and so the complaint was not maintainable. It has also been asserted that the complaint has been filed by one Sunil Modani, but it has not been mentioned in the complaint, as to on what capacity, he was engaged in the company. It has also been averred that conditions of the insurance policy were violated and, therefore, no claim is maintainable, in respect of that policy. Learned District Forum has considered the material placed before it by both parties and found that there are many disputed facts in the case, involving complicated questions, which require detailed recording of evidence, which could only be done by a Civil Court. It has also been observed that Venkateshwar Ispat Limited, is the complainant whereas the complaint has been filed by Sunil Modani, without disclosing his capacity in the company. It was also observed that Tirupati Road Lines was a necessary party in the complaint, but the same was avoided for want of notice under Section 10 of Carriers Act, and thus the complaint is not maintainable. Lastly it has been observed that the Insurance Company appointed Surveyor and Loss Assessor, and had done whatever was possible for it, but the claim could not be decided for want of necessary documents, so there was no deficiency in service. On the basis of this finding the complaint was dismissed.;