BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. Vs. M/S. OM INTERNATIONAL SHANTI BHAWAN SAUBHAG CLUB CIVIL LINES

JUDGEMENT

(1.) This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 27.11.2013 passed by the Rajasthan State Consumer Disputes Redressal Commission (for short 'the State Commission') in FA No. 329/2012, "M/s Om International versus Bajaj Allianz General Ins. Co. Ltd." vide which while allowing the appeal, the order dated 17.02.2012 passed by District Consumer Disputes Redressal Forum, Ajmer in consumer complaint no. 377/2010, dismissing the complaint was set aside and the consumer complaint in question was allowed directing the petitioner/OP to pay a sum of Rs. 1,40,174/- alongwith interest @9% p.a. from the date of filing the complaint as well as Rs. 10,000/- as cost of litigation.

(2.) In brief, the facts of the case are that the present respondent, M/s Om International are stated to have purchased water-filling machine for Rs. 9 lakh from Swami Samarth Aqua Filling Industries, Vasai (East), Thane, Maharashtra. The said machine was to be delivered from Barsai to Gaygal at the office of the complainant/respondent through a truck. Before the booking of machine with the transport company, the complainant got it insured from the petitioner vide Marine Cargo Policy bearing no. OG-09-1406-1002-00000003. The machine was delivered on 26.03.2009 at about 9:00 PM but it was found to be in a damaged condition. This fact was noted at the back of the GR (builty), and the Insurance Company as well as the vendor were informed. The vendor sent their mechanic / engineer and found that the machine was damaged. The claim was lodged with the Insurance Company which appointed a surveyor to assess the loss. However, the machine was got repaired by the complainant on payment of Rs. 2,08,783/-. According to the surveyor, the damage certificate by the transporter was not provided and the machine was not packed as per standard packing specifications and hence it got damaged. The surveyor assessed the loss to the tune of Rs. 1,40,174/- and after deducting Rs. 5,000/- as per excess clause, held the complainant entitled to

(3.) In their reply to the consumer complaint, the Insurance Company took the plea that in fact, the complainant had got the delivery of the machine in perfect condition, but later on, due to malafide intention and dishonesty, he got noted on the back of GR from the driver of the vehicle that the machine was damaged in transit and that the delivery was given in damaged condition. If the machine was damaged, the complainant should not have taken the delivery of the machine and should have informed the Ajmer branch of the petitioner and got the surveyor appointed before taking delivery. The complainant got the machine repaired on his own without informing the insurance company and hence he has done breach of the conditions of the terms of contract. It has further been stated that if the insured cargo is having insufficient or unsuitable packing or preparation, the insurance company was not liable to pay the claim as it would fall under the exclusion clause of the policy. The District Forum after taking into account the evidence of the parties found that the complainant had failed to prove that the machine was sent in transit after standard packaging and hence, they dismissed the complaint in question. An appeal was made against this order before the State Commission, which was allowed vide impugned order and the complaint was held entitled to get Rs. 1,40,174/- with interest @9% p.a. from the date of filing of the complaint as damages and Rs. 10,000/- as cost of litigation. It is against this order that the present petition has been made.