IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC /15/2015.
Date of Filing: 04.02.2015. Date of Final Order: 31.05.2016.
Complainant: Capital Indane Service, LPG Distributor Indian Oil at Golapbagh,
P.O.&P.S. & Dist. Murshidabad, Prop. Smt. Gargi Das, W/O Provakar Das.
-Vs-
Opposite Party: The National Insurance Co. Ltd., Berhampore Divisional Office,
26/23/1, S.S. Sen Road, P.O.&P.S. Berhampore, Dist. Murshidabad.
Pin-742101.
Present: Sri Anupam Bhattacharyya ………………….President.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
The instant complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for an award of Rs.2.45 lacs towards stolen LPG cylinder plus Rs.1270/- DD charges plus interest @ 12% pa and compensation of Rs.50,000/-.
The complaint’s case, in brief, is that the complainant is the Indian LPG Distributor. On 11/12 .8.12 at midnight 108 LPG cylinders ( 50 domestic filled of 14.200 Kg each and 58 commercial of which 20 pieces empty and 38 pieces filled of 19 Kg each ) were stolen. The matter was duly informed to the OP on 13.08.12 and FIR was lodged on 12.8.12 with Murshidabad P.S. The OP then deputed a surveyor and loss assessor Sri Ajit Kr. Chandra who visited the Godown and inspected register and enquired into the matter and asked the complaint by letter dt. 10.9.12 to produce documents and complainant accordingly submitted the same. The complainant also informed the incident to Sr. Area Manager IOL over phone and by letter dt. 13.8.12. The IOL immediately sent Sri Alik Kr. Dey, Dy. Manager (LP&GS) who inspected the matter and directed the complainant to pay Rs.2.45 lacs and the complaint accordingly paid the same by two DD of Rs.230500/- dt. 13.8.12 and Rs.14, 500/- dt. 16.8.12. The cost of those D.D was Rs.1270/- . Thereafter, the complainant requested the OP to settle the claim but no response. Then, the complainant by letter dt. 20.6.13 requested the OP to inform her current position of the claim. In response the OP sent a representative on 4.7.13 to her along with bank form with voucher of Rs.1, 40,031/- for full and final settlement of the claim through bank electronic mode. The complainant refused the same being the same was not properly assessed considering the documents filed by her. The, complaint gave advocate notice on 26.11.14 but no result. Then, the complaint has filed this case. Hence, the instant complaint case.
The written version filed by the OP-National Insurance Co. Ltd , in brief, is that the complainant insured the said Godown for Burglary and House Breaking for Rs.15,00,000/- and the stocks of that Godown on 12.08.2012 was shown as Rs. 24,69,100/- . So, the Ld. independent Surveyor took the average clause which comes to Rs.1,40,031/- and as such the Ld. Surveyor recommended the payment of Rs.1,40,031/- to the OP party. After receiving the report of the Ld. Surveyor the Opposite Party deducted the amount of Rs.236/- as settlement of re-instead Premium and approved an amount of Rs.1,39,795/- and offered the said amount to the Opposite party by letter, but the Opposite Party refused the said letter. The Opposite party had no deficiency in service. The complaint is liable to be dismissed with cost. Hence, the written version.
Considering the pleadings of the parties the following points have been arranged for the disposal of the dispute.
Points of decision.
- Whether the complaint is maintainable in its present form and law ?
- Whether the complaint is bad for defect of parties.
- Whether the complainant has any cause of action to file the present complaint?
- Whether the complaint is barred by law of limitation?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get.
Decision with Reasons.
Point Nos. 1 to 6.
All the points are taken up together for the sake of convenience.
The complainant is for praying for an award of Rs.2.45 lacs towards stolen LPG cylinder plus Rs.1270/- DD charges plus interest @ 12% pa and compensation of Rs.50,000/-.
The complainant’s case is that the complainant is an LPG distributor having insurance Policy with OP for the stock and on 11/12.8.12 108 cylinder was stolen out which 50 cylinder of 14.200 kg each were domestic . 58 Cylinders were commercial of 19 kg each out of which 20 cylinders were empty and the complainant informed the incident immediately to the OP-Insurance Co. and Indian Oil. Both investigated the case and on demand of the Indian Oil the complainant paid Rs.2.45 lacs by two DDs of Rs.230500/- and Rs.14,500/- dt. 13.08.12 and 16.8.12 and cost of DDs was Rs.1270. The complainant has claimed the said paid up amount with cost of DDs along with interest @ 12% p.a. and compensation of Rs.50,000/-.
On the other hand, OP-Insurance Co’s. case is that as per policy condition of average is there and as per terms the appointed Surveyor of OP-Insurance Co. Mr. Ajit Kr. Chandra investigated the case and assessed the loss and entitlement and as per report the complainant is entitled to get Rs.140031/- and the same was offered but the complainant refused the same.
In this case the complaint has adduced his evidence on affidavit and Xerox copies of the relevant documents namely two DDs in favour of the Indian Oil Co. with counter foils of bank’s receipts for the same and Advocate notice, Insurance Policy and Trade Licence, FIR and FRT and LPG Dealer Licence and Surveyor’s letter seeking documents from the complainant.
On the other hand the OP has filed the surveyor’s report dt. 21.3.13 and documents showing policy terms as to average and reported decision in 2005(1) TAC 267(NC) B.M. Rajashekaraiah Vs-Oriental Insurance Co.
In this case theft of 108 cylinder of the complainant is admitted.
The amount paid to the Indian Oil Co. by the complaint for such theft is also not disputed.
The only dispute is relating to entitlement of the claim of the complainant according to policy terms as to average.
The complainant has not adduced any document rebutting the said policy terms.
In the reported decision in 2005 (1) TAC-267 in the case of B.M. raja Shekaraiach-Vs.-Oriental Insurance Co. referred by the OP-Insurance Co. the dispute was for carrying extra 4/5 passenger in a goods vehicle where damages caused to vehicle and some passengers were injured wherein it was held for strict construction of exclusion clauses and held that carrying 4/5 passengers cannot be the cause of accident where the main purpose of the policy is to indemnify the damage caused to the vehicle and accordingly revision preferred by the complainant was allowed as per assessed liability assessed by the surveyor at Rs.36750/-.
In this regard the ld. lawyer for the complainant has advanced argument that the above reported decision is not applicable in this case as the fact of that reported decision is relating to motor accident claim.
In the case of the a foresaid reported decision there was guideline for strict construction of exclusion clause to ascertain whether carrying 4/5 persons in goods vehicle violating terms of the policy and it was held that carrying 4/5 passengers cannot be the cause of accident.
The same is not the subject matter of this case.
Be that as it may, the settled principle is that surveyor’s report will prevail if not rebutted.
Here, only dispute is relating to application of average clause to ascertain the liability of the OP Insurance Co. as to loss sustained for theft of admittedly 108 cylinders and payment of Rs.2.45 lacs plus Rs.1270 cost of DDs to the IOC for the said theft of cylinders.
The surveyor report has indicated details calculation showing amount of stolen cylinders as per IOC Panel Rate and as per policy rate separately. Also, the report has shown the actual stock before loss and the liability of OP –Insurance Co. assessed considering average clause.
The ld. lawyer for the complainant has strongly advanced argument raising objection that no such average clause is applicable in this case where admittedly, the complainant paid Rs.2.45 lacs to IOC for the admitted number of stolen cylinders.
But, the complainant has failed to adduce any cogent evidence rather any document to rebut the document as to non-application of average for the burglary and house breaking policy.
Where, the OP-Insurance Co. has filed the relevant document to justify the same.
Considering the above discussions as a whole we have no other alternative but to hold that surveyor report will prevail and the labiality of the Insurance. Co. for the theft of 108 cylinders as per complaint case is Rs. 140,031/-
The same amount of Rs.1,40,031/- being offered by the OP-Insurance Co. to the complainant before filing this case and the same being refused by the complaint we are of view that the complainant is not entitled to get any compensation.
But, the same amount being not disbursed to the complainant and the same being lying with the OP we find that the complainant will get interest @7%p.a. on Rs. 1,40,031/- from the date of claim till realization.
On the basis of above discussion we find that all the points are disposed of in part in favour of the complainant and the complainant will get Rs.140031- along with interest @ 7% p.a from the date of claim till realization.
Hence,
Ordered
that the Consumer Complaint No. 15/2015 be and the same is hereby allowed on contest but in part without any order as to cost.
The complainant will get Rs.1,40,031/- along with interest @7% p.a. from the date of claim till realization.
The OP-Insurance Company is directed to pay Rs.1,40,031/- along with interest @7% p.a. to the complainant within two months from the date of this order, failing which the OP is to pay Rs.100/- as fine for each day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
Member Member President
