Orissa

Sambalpur

CC/19/2012

Gyan Prakash Tulshyan - Complainant(s)

Versus

Divisional Manager (United India Insurance Co. Ltd.). - Opp.Party(s)

Smt. S. Mishra

21 Jun 2022

ORDER

1. The complainant is the owner of oil Tanker bearing No. OR 09B-5125, insured the vehicle with the O.P. vide policy No. 034200/31/09/01/0000038 and product policy No. 034200/46/09/07/0000038 and the policy was valid for the period 19.11.2009 to 18.11.2010. The vehicle was insured under the carriers legal liability policy and the O.P. indemnified the insured for actual physical loss or damage to goods or merchandise directly cause by fire and/or accident to the vehicle.

The Complainant was transporting the POL products of Indian Oil Corporation Ltd. from Paradeep to Cuttack loaded with high speed diesel being engaged by M/s Maruti Service station, an authorised transporter of I.O.C.L.

The vehicle met an accident on 06.02.2010 at about 6.30AM near Jaipur, Hatasahi due to dense fog. The oil tanker was capsized to the left side of the load and overturned. The oil came out from the tanker and flow on the road side and open field, completely drained out, without injury to anybody. Under Tirtol Police Station S.D.E. No. 117 dated 06.02.2010 was made.

The Complainant submitted the motor claim intimation letter on 15.02.2010 to the O.P. After the accident the vehicle was brought to Darshan Body Garage, Baraipali for repairing under intimation to O.P.

The O.P. deputed a surveyor cum loss assessor. The Cost of high speed diesel was Rs. 6,48,552/-. On 25.02.2011 the O.P. asked the Complainant to submit consignment note/way bill under invoice No. 0637275901 dated 06.02.2010 and asked further information regarding legal relationship between the consignee and transporter. Detail information was provided to the O.P. which was received on 19.08.2011. After receipt of all documents the O.P. failed to settle the claim.

2. The case of the O.P. is that the dispute is not a consumer dispute. There is no any deficiency in service of O.P. As per insurance policy No. 034200/46/09/70/00000038 the limit of liability per event is Rs. 7,10,000/- and during policy period the policy excess is 5%. The O.P. is not liable in following cases:

1. xxxxxxxxxxxxxx
2. Liability in respect of damage to property.

1. Belonging to the insured or to any servant, agent, sub-contractor of the insured or to the third parties unless such property is covered by a contract of carriage entered in to by the insured in an approved form.
2.  In and/or the control of the insured or of any servant, agent or sub-contractor of the insured unless such property is covered by a contract entered in to by the insured in an approved form.
   2282660643347437600.  

        The surveyor/loss assessor of the O.P. submitted a report assessing the loss at Rs. 5,94,894/- before policy Excess of 5%. The surveyor informed that the consignor of the goods was I.O.C. Ltd., Service Station, Sason, Sambalpur and the insured, owner of the vehicle is also the proprietor of Maruti filling station.

        The Complainant has violated the policy exclusion clause, the Complainant asked to submit the consignment Note/Way bill for the material drawn under in voice No. 637275901 dated 06.2.2010. The insured replied on 19.08.2011 that the consignment note was destroyed in accident. As the O.P. could not find any legal relationship between the consignee and transporter accordingly requested to submit further documents but the insured failed and the claim remained unsettled.

        The vehicle was used for commercial purpose, hence the case is not a consumer dispute. The case is premature as all the documents are not submitted with O.P., to harass the O.P. the Complainant has filed the complaint and accordingly not entitled for the claim.

3. After perusal of the complaint, version of O.P. and documents filed by the parties the following issues are framed:
103606587.  

1. Whether this complaint will be covered as a consumer dispute and the alleged vehicle was meant for commercial purpose?
2. Whether the Insurance Company is liable to-wards the damage of property belonging to the insured or to any servant, agent, sub-contractor of the insured or to third parties unless such property is covered by a contract of carriage entered in to by the insured in an approved form?
3. Is there any deficiency in the part of the O.P. not settling the claim?

ISSUES NO.1:- Whether this complaint will be covered as a consumer dispute and the alleged vehicle was meant for commercial purpose?

                   It is the admission of the opposite party that the Complainant has the carrier’s legal liability policy of insurance bearing No. 034200/46/09/70/00000038 valid from 15.08.2009 to 14.08.2010 MN and the Complainant has paid Rs. 10,475/- to-wards premium, service tax and stamp duty. Hence consumer relationship exist between the parties.

                   Relating to use of commercial vehicle, the oil tanker is a commercial vehicle itself and is used for transportation of material is within the knowledge of the O.P. while insuring the policy bond. Subsequently that cannot be denied by the O.P.

                   Accordingly, the issue is answered in favour of the Complainant.

ISSUE NO.2:-Whether the Insurance Company is liable to-wards the damage of property belonging to the insured or to any servant, agent, sub-contractor of the insured or to third parties unless such property is covered by a contract of carriage entered in to by the insured in an approved form?

                   The Complainant claimed the value of high speed diesel Rs. 6,48,552/- in the complaint. The surveyor/loss assessor assessed the loss as Rs. 5,94,894/- and specifically mentioned that Tanker bearing No. OR 09 B 5125 and proprietor of maruti filling station Sasaon, Sambalpur( the consignee) used to receive consignments from chief operation manager of I.O.C.L, Sambalpur for road transportation of bulk POL vie few tankers including the tanker in subject (i.e OR 09 B-5125). The Complainant submitted the transportation agreement dated 30.04.200. Goods carriage permit No. oc/PP/15/232/07 issue date 30.06.2007 valid till 30.06.2012 for the vehicle OR-09B-5125, D.L. of driver etc. Further the O.P. acknowledge the payment details paid to I.O.C.L of Rs. 6,48,552/- dated 29.03.2010, P.O. No. 012483, Axis Bank Ltd., Sambalpur.

                   From the aforesaid documents it is clear that the Complainant had a valid consignment, which was damaged due to an accident on 06.02.2010 and as per policy term the limit of liability per event is Rs. 7,10,000/- and the claim is below the limit i.e. Rs. 6,48,552/-

                   Accordingly as due procedure has been followed by the IOCL, M/S Maruti service station and Transporter having proper agreements & the insurance policy is valid, the O.P. is liable to pay the damaged property covered in policy.

ISSUE NO.3:- Is there any deficiency in the part of the O.P. not settling the claim?

                   From time to time the Complainant has filed the claim form, related relevant documents and basing on the report of assessor the O.P. should have settle the claim. The documents filed by the Complainant establish the legal relationship between the consignee and transporter of the material. On 19.08.2011 the insured intimated that consignment note was damaged in accident. After receiving all documents about relationship between consigner, consignee and transporter also the O.P. not settled the claim which amounts to deficiency in service. For years together for non settlement of claim the complainant is being harassed and was compelled to come to litigation.

                   Accordingly the issue is answered against the O.P.

ISSUE NO.3:- What relief the Complainant is entitled to get?

                   Basing on the issues discussed supra, the Complainant is entitled for the relief claimed and accordingly it is ordered:

ORDER

                   The Complaint is allowed on contest the O.P. is liable to pay Rs. 6,48,552/- to-wards carriage liability under the policy, Rs. 1,00,000/- to-wards harassment mental agony and financial loss and Rs. 10,000/- to-wards litigation expenses. The O.P. is directed to pay the above amount within 30 days with 4% interest P.A. from the day of accident i.e. 06.02.2010 failing which the amount will carry 8% interest P.A. till realisation.

                   Order pronounced in open court on this 21^st day of June 2022.

                   Supply free copies to the parties.