ORIENTAL INSURANCE CO LTD Vs. BANDEY KESAR CO

JUDGEMENT

(1.) This appeal has been filed by the appellant against order dated 21.8.2007 passed by State Commission in Complaint Case No.C-184/1998- M/s. Bandey Kesar Co. Vs. The Oriental Insurance Co. Ltd. & Ors.; by which complaint was allowed and opposite party No. 1 & 2 were directed to get the actual loss assessed from the surveyor.

(2.) Brief facts of the case are that complainant/respondent No. 1 is engaged in the business and obtained 'Marine Open Insurance Policy' from opposite party/petitioner for a sum of Rs. 40,00,000/- vide cover note dated 10.7.1996 in respect of all risks of transit of 'saffron' by road or by air. Complainant got post parcels No. 52 & 53 fully insured for a sum of Rs. 10,000/- each from Postal Department and despatched consignments on 18.2.1997 worth Rs. 4,99,200/- containing 10 kg. 'saffron' by speed post through opposite party No. 4/respondent No. 2. Consignee found consignments but seals were found broken/tampered. Consignee immediately informed the complainant who lodged complaint with opposite parties. On 25.2.1997, surveyor conducted survey and opined that marine policy did not cover post parcel. It was further alleged that mode of transport of 'saffron' was specified in proposal form as well as in Marine Insurance Declaration and opposite party acknowledged the same, but opposite party repudiated claim wrongly. On 6.2.1998, opposite party No. 3 cancelled aforesaid Policy and remitted cheque of Rs. 8,065/- to the complainant which was not encashed by him. Alleging deficiency on the part of opposite parties, complainant field complaint before State Commission. Opposite party No. 1,2 & 3 resisted complaint and submitted that opposite party did not accept any proposal of the complainant but cover note was issued to the complainant alongwith terms & conditions of insurance. Cover note specifically provided coverage for the consignments to be sent by road or by air only, but, not by post parcel. It was, further, submitted that when consignee opened one parcel and did not find 'saffron' but found foreign material, he ought to have informed the Insurance Co. and Postal Authorities and should not have opened the second box and should have given opportunity to opposite parties to examine atleast second parcel. It was, further, submitted that consignment was insured only for Rs. 20,000/- which is much below the original price of the commodity and prayed for dismissal of complaint. Opposite party No. 4 submitted that record has been weeded out so no comments can be made. It was, further, submitted that in the case of insured articles, amount for which postal articles was insured, is considered for the purpose of calculation of insurance fee. Neither the cost of articles nor invoice was exhibited on the postal articles cover. It was, further, submitted that booked consignment was delivered to the consignee intact and prayed for dismissal of complaint. Learned State Commission after hearing all the parties, allowed the complaint and directed as above against which this appeal has been filed alongwith application for condonation of delay.

(3.) Heard Learned Counsel for the parties and perused record.