BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 19^th October 2015

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 145/2014  

Complainant/s:       Vijay S/o.Mahantgouda Patil,

Age: 40 years, Occ: Business, R/o.No.785, Panchakshari Nagar, Navanagar, Hubli 580025.

                                (By Sri.B.S.Hoskeri, Adv.)

v/s

Respondent/s:  1.    Bharati Axa General Insurance Co. Ltd., II Floor, Reliance Digital Building, Opp: Vidya Nagar Police Station, Hubli 580021. R/by its Branch Manager.

(By Sri.S.S.Karegoudar, Adv.)

2.    The Asst. Executive Engg. HESCOM, Beside Govt. Hospital, P.B.Road, Haveri 581110

(By Sri.A.K.Mahantshettar, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.5 lakhs with interest @12% P.A. from May 2014 till payment, to pay Rs.1 lakh as compensation for loss, harassment and to pay the cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant is the owner of the vehicle Ashoka Leyland Truck bearing registration No.KA 25 C 0638. The said truck was duly insured with respondent 1 under commercial vehicle goods comprehensive insurance policy no.FCV/11178975/E6/02/D1E618 covering the risk for the period from 18.02.2013 to 17.02.2014 for IDV value of Rs.5 lakhs with annual premium of Rs.19,142/- & the insured vehicle is of 2008 make. On 14.12.2014 during the policy tenure the vehicle was transporting cotton lint bales belongs to one Shivanna Nandigonnanavar from Santosh Jinning Mill to Channabasaveshwara cotton Jinning mill at Guttal village. Accordingly the driver on that day loaded 32 cotton lint bales as per norms in the insured truck at Santosh Jinning Mill and proceeded to way bridge situated on Haveri road. After weighing the vehicle was on its way to the destination of Channabasaveshwar Mill. Since on that day villagers were observing a local fair at that time due to rush of crowd gathering on the main road due to fair there was a huge scuttle, to avoid the rush and with a caution driver took the truck to the right side of road and at the time heard the hue and cry from the mob uproar fire, fire and started shouting about the sparks. On learning that electric sparks fell on the cotton lint bales load. The driver in order to avoid heavy casualty took the truck to a nearby ground and tried to unload by making the truck turtled but failed. However the mob gathered and public tried their best to save cotton lint bales and insured truck. Even the fire fighter was immediately informed and the local people helped their own to smash the accidental fire by pouring water by unlatching loading ropes in order to save atleast the truck from the loss. Inspite of it the cotton lint bales worth Rs.8.50 lakhs and insured truck costing Rs.8 lakhs burnt in toto causing huge loss to the insured. Loaded lint had no transit insurance. Accident was immediately reported to jurisdictional Guttal police station, police have registered incident under their crime no.A/F-4/2014 & have conducted the spot panchanama. After complainant informed respondent 1, respondent 1 approached and carried out necessary inspection and assessed the damages caused to the insured vehicle & respondents were of opinion total loss. The complainant furnished all relevant documents and submits claim but, respondent 1 was not shown any interest in processing the claim. The investigation was made only after 2 months of the accident. Thereafter the respondent 1 on 27.05.2014 wrote letter stating it was confirmed that the vehicle was overloaded beyond the permissible weight which is violation of MV Act and breach of permit condition, by quoting MV Act and rules and taken contention the company is not liable to settle the claim. After that the complainant personally visited the respondent.1 and persuaded to settle the claim, but the respondent.1 did not responded. The respondent.1 tried shirk its lawful responsibility stating the complainant had violated the terms and conditions of the policy. The complainant not loaded the vehicle beyond the permitted load and height. Even then the loaded vehicle had passed several crossing electric wires on the way it was not touched the electric live wire except in the incident spot, even then without proper investigation with respondent.2 about the height of the electric wire the respondent.1 unilaterally arrived and taken an unlawful decision. The incident took place due to improper laying of electrical wires and it is a clear incident of negligence. Hence, the respondent 1 and 2 are jointly and severally responsible to the claim as their service are deficient in nature. The non settlement of the claim amounts to a deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail.

4.     The respondent.1 admits written version contending that, the very complaint is false, illegal and not maintainable either on law or on facts and prays for dismissal of the complaint. Further the respondent taken contention that the matter involved is complicated question of law and facts and it requires voluminous trial and hence the Forum under summary jurisdiction cannot adjudicate the same and prays for dismissal of the complaint. While the answering respondent admits the issuance of the policy, coverage of the risk to the date of accident, IDV Value and the liability is subject to parameter of terms and conditions of the policy.  While the respondents denies transportation of 32 dockras of cotton lint by the complainant at that time and also denies the way of occurrence of the incident as narrated in the complaint and took contention that the story of the accident is contradictory to the facts in the police complaint and also disputes the value of the cotton bundles burnt in the incident and also the value of the truck. While the respondent admits intimation of the accident, deputation of the surveyor to inspect and to report accordingly one Shekhar surveyor submits report on 17.02.2014 subsequently matter is referred to Mr.Anand Kalaghatagi for investigation regarding genuinity of the accident and submission of the report by the said surveyor on 18.03.2014 with all details. As per the survey report on the date of accident the insured vehicle was carrying excess height of cotton lint dokras. Due to transportation of cotton lint at exceeding limit cause result for the accident and asserted the report with all photographs. Apart from admissions and denials the answering respondent in detail reveals the nature of the contract, bindings of the parties to the terms and conditions by narrating the MV Act provisos supported with apex courts judgments and contended there is no deficiency in service on the part of the answering respondent and the incident took place at the negligence of the complainant himself and prays for dismissal of the complaint.

5.     The respondent 2 also filed the written version taking contention that the complaint is not maintainable either in law or on facts and prays for dismissal of the complaint on those grounds and also on the grounds the complainant has not approached the Forum with clean hands and puts the complainant in strict proof of the complaint averments. The answering respondent also denied the complaint averments made by the complainant with regard to the incident took place and incident occurred due to electrical spark and other complaint averments made with regard to the value of cotton and value of the truck and the loss sustained by the complainant. The answering respondent also denied the service of notice and puts the responsibility on the complainant contending that the complainant allowed to load the truck beyond the permitted height by discarding all road traffic rules and regulations. Further contended that as per police records and panchanama there is no fault on the part of respondent and further taken contention that the respondent 2 noway concerned to the negligence and thereby not liable to make good any loss as prayed and prays for dismissal of the complaint with costs.

6.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit, respondent.1 examined one more witness as RW 1-2. Since RW 1-2 not tendered for cross examination despite ordered for tender, the evidence of RW 1-2 has no evidenciary value to that extent, relied on documents. The complainant and respondent 1 apart from argument relied on citations.  Heard. Perused the records.

    Complainant relied on relevancies

1. AIR Manual 5^th Edn. (Rel. Page.2)
2. LIC vs. G.N.Channabasamma – 1990 (2) SCALE 1191
3. I (2014) CPJ 2313 (CN ) Kerala
4. 2015 (3) CPJ 580 NC

Respondent.2 relied on relevancies

1. Civil Appeal No.1557 /2004 – SCI  dtd.17.01.2013
2. Civil Appeal No.3905/2012– SCI dtd.25.04.2012
3. Civil Appeal No.1375/2003 – SCI  dtd.08.10.2010.

Finding on points is as under.

1.   Affirmatively
2.   Accordingly  
3.   As per order

Reasons

Points 1 and 2

7.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the truck in question is insured with the respondent 1 and to the date of incident the insurance policy was in force.   

8.     Now the question to be determined is, whether non settlement of the claim amounts to a deficiency in service, if so, for what relief the complainant is entitled.

9.     Since the facts have been revealed in detail which requires no repetition.

10.   By looking into the C-3, C-4, C-5, C-6 i.e. police records it is evident that the insured vehicle was loaded with cotton lint and burnt completely in the fire accident met. Even the Ex.R1(2) investigation report and Ex.R1(27) motor spot report of surveyor reveals at the time of accident the truck was overloaded with cotton lint.

11.   On assertion by the complainant and desertion by the respondent this Forum on 12.02.2015 suemoto ordered for report from Inspectorate of Electricity, Haveri District, as the incident has took place within the jurisdiction of Inspectorate of Electricity, Haveri District. In compliance to the commission warrant the Deputy Inspectorate of Electricity, Haveri District submits his report on 16.03.2015 with their opinion, the driver of the vehicle had plied the truck with overloaded cotton beyond its limit and without observing the electric lines rund across the road came with contact with the live wire, due to it the fire incident had occurred. If the driver would have drew the vehicle with care and cautious by observing the crossed electric lines the said accident would have not occurred and also is of opinion that the respondent.2 had violated Indian Electric Rules, 1956 Clause.82(A). By this it is evident that there is gross negligence of both truck driver as well as the respondent.2. Even though respondent.2 had laid the electric wires by violating the rules 82(A) of Indian Electric Rules, 1956, if the driver would have taken care while passing and in not loading the cotton lints to its extremity height in such an event the incident could have been avoided.

12.   But there is no evidence with regard to exactly to what height the cotton lints were loaded in the accident involved vehicle.  No clear evidence putforth by both the parties i.e. by the complainant or by the respondent.1. But it is certain the vehicle in question is running on the public road.

13.   However there is no dispute with regard to the fact the insured vehicle met with the accident and burnt in the fire accident and also at the time of accident it covers valid risk coverage. Under those circumstances the respondent.1 shall indemnify the insured to the tune and coverage under the policy in accordance with the terms and conditions of the policy. In the instant complaint the surveyor has conducted the survey and assessed the loss as per Ex.R1(27) with an opinion complete vehicle parts were damaged nothing is safe in the vehicle. Under those circumstances the present claim shall be considered constructive total loss. Admittedly there is no dispute with regard to the IDV Value. So also it is admitted fact that there was no transit insurance and goods coverage which burnt in the accident is not covered with any risk and no claim also made with regard to goods burnt. Case laws relied by the complainant and respondent.1 are taken into consideration and applied. Under those circumstances the respondent.1 shall liable to make good of entire IDV value by treating it as constructive total loss. In view of the discussions and conclusion we have arrived the complainant has established his case of deficiency in service in not settling the claim and accordingly the complainant is entitled for the relief to an extent as observation made and inclined to answer issue.1 in affirmatively and issue.2 accordingly.

14.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

        The complaint is allowed in part. The respondent.1 shall pay the IDV value of Rs.5 lakhs to the complainant.  Further the complainant is entitled to  Rs.5,000/- as compensation and Rs.3,000/- towards cost of the proceedings. The award amount shall be paid within 60 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization. Since there was also contributory negligence on the part of complainant and respondent no.2 also as observation made. The complainant is denied with interest on the insured amount from the date of incident till the date of expiry of stipulated period of 60 days from the date of service of certified copy of the order as his part of negligence. The liability of paying compensation amount of Rs.5,000/- and Rs.2,000/- cost of the proceedings is fixed on respondent no.2 on its part of contributory negligence and respondent.2 shall pay to the complainant within the specified period fixed

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 19^th day of October 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR