Replication to written statement in consumer complaint against insurance company over settled marine cargo claim
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BEFORE THE HON'BLE CONSUMER DISPUTES REDRESSAL COMMISSION AT DWARKA, NEW DELHI
COMPLAINT CASE NO. Complaint case number OF 2023
IN THE MATTER OF:
Complainant's name: COMPLAINANT
VERSUS
Opposite party's name: OPPOSITE PARTY
DATE OF HEARING: Date of hearing.2023
REPLICATION ON BEHALF OF THE COMPLAINANT TO THE WRITTEN STATEMENT FILED BY THE OPPOSITE PARTY IN THE COMPLAINT
MOST RESPECTFULLY SHOWETH:-
1.That the present Replication is being filed on behalf of the Complainant in reply to the Written Statement filed by the answering Opposite Party. It is submitted that the Opposite Party has made defamatory and scandalous allegations against the Complainant in its Written Statement, and the Complainant reserves its right to initiate such legal action against the Opposite Party as may be warranted under law.
2.That, without prejudice to the foregoing and without in any manner admitting any of the submissions, contentions or allegations contained in the Written Statement of the answering Opposite Party, save and except those expressly admitted, the Complainant tenders this Replication to the Written Statement as under:-
REPLY TO THE PRELIMINARY OBJECTIONS
1.That the contents of paragraph 1 of the Preliminary Objections are wrong and are denied. It is denied that the complaint filed is absolutely false, frivolous and vexatious and is therefore liable to be dismissed with costs.
2.That the contents of paragraph 2 of the Preliminary Objections are wrong and are denied. It is denied that the complaint has been filed without any cause of action and is hence liable to be dismissed forthwith.
3.That the contents of paragraph 3 of the Preliminary Objections are wrong and are denied. It is denied that the Complainant, being a profit-making undertaking, falls outside the purview of the Consumer Protection Act. It is further denied that the complaint filed is bad in law and liable to be dismissed.
4.That the contents of paragraph 4 of the Preliminary Objections are wrong and are denied. It is denied that the claim of the Complainant stands duly settled. It is further denied that the complaint, as put forth by the Complainant, is nothing but a concocted story to serve his ulterior motives.
5.That the contents of paragraph 5 of the Preliminary Objections are wrong and are denied. It is denied that the discharge voucher dated Date of discharge voucher, duly signed and executed by the Complainant, and the amount of Rs. Settled amount transferred (₹)/- transferred to his account, corroborate the full and final discharge of the Complainant's claim as raised under the Marine Inland Specific Voyage Policy bearing No. Marine policy number in the name of Name of insured under policy, valid from Policy validity start date till the end of the voyage. It is further denied that no protest of any kind was raised by the Complainant at the time of signing the discharge voucher or until the amount was transferred to his account. It is further denied that the filing of the present complaint is an afterthought and a subterfuge. It is further denied that the complaint is nothing but a misuse of law.
6.That the contents of paragraph 6 of the Preliminary Objections are wrong and are denied. It is denied that the entire calculation was shared with the Complainant before proceeding with the settlement of the claim. It is further denied that the Complainant voluntarily settled the claim without any demur; had it been a case of forced settlement, the Complainant would have been at liberty to sign or execute the discharge voucher under protest, which was never done.
7.That the contents of paragraph 7 of the Preliminary Objections are wrong and are denied. It is denied that the entire calculation and deductions made in the claim amount were carried out after the survey was conducted in the matter by the IRDAI-approved surveyor, and that the same was duly communicated to the Complainant over email as well. It is further denied that certain deductions were required to be made on various accounts, such as depreciation, exclusion of GST and TCS on the ground that the insured is eligible to claim input credit for the same, the claim of transportation and insurance premium with GST, pre-existing damages up to 5%, and depreciation of 5% based on age and useful life of the vehicle, and, most importantly, non-supply of documents such as the LR (lorry receipt). It is further denied that, after all the calculations, the net payable amount came to Net payable amount (₹) (Net payable amount in words) and the same was duly paid to the Complainant. The judgment cited in this paragraph is not applicable to the present case and is therefore denied.
8.That the contents of paragraph 8 of the Preliminary Objections are wrong and are denied. It is denied that a bald plea of fraud, coercion or duress is not tenable. It is further denied that a party who desires to raise such a plea is required to establish the same by placing sufficient prima facie material on record in that behalf. It is further denied that the settlement entered into between the Complainant and the Opposite Party was absolutely voluntary.
9.That the contents of paragraph 9 of the Preliminary Objections are wrong and are denied. It is denied that the Complainant has not approached this Hon'ble Commission with clean hands. It is further denied that there is no deficiency in service on the part of the Opposite Party, and that the complaint, being absolutely frivolous and devoid of any merit, is liable to be dismissed with costs.
10.That the contents of paragraph 10 of the Preliminary Objections are wrong and are denied. It is denied that the revised assessment of the claim of Rs. Revised assessed claim amount (₹) was duly communicated by the surveyor to the Complainant vide email dated Date of surveyor's email communicating assessment, against which the Complainant wilfully and voluntarily accorded his approval vide email dated Date of complainant's approval email. It is further denied that, vide email dated Date of surveyor's assessment email, the surveyor had categorically assessed the claim amount against the claimed amount of the Complainant, wherein, as stated in paragraph 7 above, certain deductions were made by the surveyor.
11.That the contents of paragraph 11 of the Preliminary Objections are wrong and are denied. It is denied that the Complainant was made aware that he was required to provide a signed and stamped discharge voucher, following which the payment of the claim would be released in his favour. It is further denied that the discharge voucher was signed and stamped on Date of signing of discharge voucher by the Complainant without any protest or grievance whatsoever.
12.That the contents of paragraph 12 of the Preliminary Objections are wrong and are denied. It is denied that thereafter the payment of Rs. Payment amount made (₹) was made to the account details of the Complainant on Date of payment into complainant's account, as already admitted in the accompanying consumer complaint.
13.That the contents of paragraph 13 of the Preliminary Objections are wrong and are denied. It is denied that the Complainant has failed to acknowledge that the stone crushing machine and parts forming part of the subject consignment were used machinery items. It is further denied that legitimate deductions were made by the surveyor towards the claim of the Complainant.
REPLICATION TO THE PARA-WISE REPLY
1.That the contents of paragraph 1 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that the Complainant, being a commercial profit-making entity, squarely falls outside the purview of the Consumer Protection Act, which is a beneficial piece of legislation.
2.That the contents of paragraph 2 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that the Complainant voluntarily entered into a settlement with respect to its claim and executed a valid discharge voucher in that regard. It is further denied that no protest was raised or registered at the time of execution of the discharge voucher or until the transfer of the amount to the Complainant's account. It is further denied that the complaint filed is an afterthought and a subterfuge to mint money.
3.That the contents of paragraph 3 of the reply are a matter of record and therefore require no replication, whereas the contents of the corresponding paragraph of the complaint are reiterated as correct.
4.That the contents of paragraph 4 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that the complainant miserably failed to supply the GR/LR as required by the opposite party for processing the claim. It is further denied that the processing of the claim requires an additional set of documents other than those submitted at the time of issuance of the policy, which the complainant allegedly failed to provide to the opposite party.
5-7. That the contents of paragraphs 5 to 7 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the complaint are reiterated as correct. It is denied that the processing of a claim is a complete process which is required to pass through various stages, inspections and scrutiny of documents. It is further denied that the final calculation of the claim amount is arrived at only after due scrutiny of the documents and in accordance with the terms and conditions of the policy.
8-9. That the contents of paragraphs 8 and 9 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the complaint are reiterated as correct. It is denied that the complainant miserably failed to supply the requisite documents, such as the LR, copy of the FIR, police report, pre-dispatch inspection report, claim bill, etc., as required by the opposite party.
10.That the contents of paragraph 10 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct.
11.That the contents of paragraph 11 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct.
12.That the contents of paragraph 12 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that a genuine calculation was shared with the complainant, which further necessitated certain clarifications before the final claim amount could be arrived at.
13.That the contents of paragraph 13 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that there was no compulsion upon the complainant to settle the claim. It is further denied that the complainant could have chosen to contest the claim at the first instance itself. It is further denied that the complainant chose to play both ways — first, by accepting the claim as approved by the opposite party without any demur, and thereafter filing a complaint without any rhyme or reason in respect of a claim already settled.
14.That the contents of paragraph 14 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that the calculation of the claim put forth by the complainant was absolutely vague and baseless.
15.That the contents of paragraph 15 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that the calculation, after due scrutiny and representations, was shared with the complainant. It is further denied that there was no compulsion upon the complainant to settle the claim. It is further denied that whatever calculation transpired from the surveyor's end was shared with the complainant openly. In so far as the deduction of 25% is concerned, it is submitted that the said deduction was made in the absence of the recovery documents, i.e., the LR, which admittedly have not been submitted by the complainant. It is further denied that vide email dated Date of surveyor's email on payment receipt, the surveyor had categorically informed the complainant that the consignment transported by him, after taking a vehicle on hire from Name of vehicle-hire company, was under a payment receipt without the LR/GR of a public carrier, and as such no provision of the Carriers Act could attach to Mr. Name of carrier/payment-receipt holder on the basis of the payment receipt. It is further denied that the e-way bill dated Date of e-way bill was generated by Name of e-way bill generator (Relationship of e-way bill generator to complainant the complainant), and hence the complainant was deemed to be a self-carrier (private carrier) of the consignment.
16-18. That the contents of paragraphs 16 to 18 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the complaint are reiterated as correct. It is denied that the complainant was duly called upon to provide documents to substantiate its claim but failed to do so, and that consequently the amount as admissible, after making deductions in the absence of clarifications, was conveyed to the complainant. It is further denied that the complainant made multiple statements regarding the documents, that the same would be supplied later, submitting that they must have been lost in the accident. It is further denied that the processing of a claim and the issuance of a policy require different sets of documents, such as a copy of the FIR, police report and LR, and hence the opposite party committed no wrong in calling upon the complainant to furnish the requisite documents. It is further denied that the complainant misguided the opposite party regarding the claim formalities and is now playing the innocent card after having accepted the claim amount.
19.That the contents of paragraph 19 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that if the complainant was not willing to accept the approved claim amount, he could have recorded his protest or declined the claim altogether. It is further denied that no protest was raised either in the email dated Date of complainant's email without protest, or on the discharge voucher, or at any time until the receipt of the claim amount from the opposite party. It is further denied that the complaint as filed is an afterthought and a subterfuge, and hence liable to be dismissed with exemplary costs.
20.That the contents of paragraph 20 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that disputing the settlement thereafter is against the tenets of law and only demonstrates malafide on the part of the complainant. It is submitted that any protest regarding the amount or the settlement, if at all, ought to have been registered at the time of giving consent or executing the discharge voucher, and not thereafter, as per the decision of the Hon'ble National Commission.
21.That the contents of paragraph 21 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct.
22.That the contents of paragraph 22 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that, having voluntarily accepted the insurance claim of ₹Accepted insurance claim amount (₹) without any demur or protest, the complainant has no cause of action to approach the Hon'ble Forum at this stage.
23.That the contents of paragraph 23 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that, having voluntarily accepted the insurance claim of ₹Accepted insurance claim amount (₹) without any demur or protest, the complainant has no cause of action to approach the Hon'ble Forum at this stage.
24.That the contents of paragraph 24 of the reply are a matter of record and require no replication, whereas the contents of the corresponding paragraph of the complaint are reiterated as correct.
25.That the contents of paragraph 25 of the reply are a matter of record and require no replication, whereas the contents of the corresponding paragraph of the complaint are reiterated as correct.
26.That the contents of paragraph 26 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the complaint are reiterated as correct. It is denied that the complainant, being a profit-making undertaking, falls outside the purview of the Consumer Protection Act. It is further denied that the complaint as filed is bad in law and liable to be dismissed.
27.That the contents of paragraph 27 of the reply require no replication, whereas the contents of the corresponding paragraph of the complaint are reiterated as correct.
The paragraphs contained in the prayer of the written statement are absolutely wrong and are specifically denied. The Opposite Party is not entitled to the relief claimed in the written statement.
Any allegation made in the written statement which is not specifically denied herein shall be deemed to be absolutely wrong and specifically denied, and the failure to specifically deny any such allegation shall not be construed as an admission on the part of the Complainant.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Commission may kindly grant the relief in favour of the Complainant and against the Opposite Party as prayed for in the main complaint, in the interest of justice, equity and in the circumstances of the case.
Pass such further order or orders as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case, in the interest of justice.
It is prayed accordingly.
Place of filingCOMPLAINANT
THROUGH
DATED:
Date of affidavit
ADVOCATES AND LEGAL CONSULTANTS
Advocate's name/firm number.,
Advocate's address
BEFORE THE HON'BLE CONSUMER DISPUTE REDRESSAL COMMISSION AT Commission location
C.C. NO.Complaint case number (affidavit) OF Complaint case year
IN THE MATTER OF:-
Complainant's name (affidavit): COMPLAINANT
VERSUS
Opposite party's name (affidavit): OPPOSITE PARTY
AFFIDAVIT
Affidavit of Mr. Deponent's name, Proprietor of M/s. Deponent's firm name, Deponent's firm address line, do hereby solemnly affirm and declare as under:-
1.That I am the Complainant in the captioned case and am, therefore, competent to swear this affidavit.
2.That the contents of the accompanying replication to the written statement have been read over and explained to me in the vernacular language, and having understood the same, I state that the facts stated therein are true to the best of my knowledge and belief and nothing material has been concealed therefrom. That the facts stated above in this affidavit are true to my knowledge and no part of the same is false and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION:-
Verified at Place of verification on this Date of verification that the facts stated in my above affidavit are true to my knowledge and no part of the same is false and nothing material has been concealed therefrom.
DEPONENT