F.A.No.213/2010  against C.C.No.68/2008,   Dist. Forum, Adilabad  .

Between:

The  United  India Insurance Co. Ltd.,

Rep. by its Divisional Manager,

D.O., D.no.6-6-4/1/7 , Bhoktapur,

N.H.No.7 Road, Adilabad.                             …Appellant/

                                                                  Opp.party

        And

M.Premender Reddy,

S/o.Bhooma Reddy, Aged:44 years,

Occ:Business,

Prop. of Thirumala  Filling Station,

R/o.Dasnapur, Adilabad.                               …Respondent/

                                                                   Complainant           

Counsel for the Appellant     :  Mr.G.Ramachandra Reddy   

Counsel for the Respondent :   Party in person  

CORAM:HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,

                                                      AND

SMT. M.SHREESHA, HON’BLE MEMBER,

             TUESDAY, THE THIRTY FIRST DAY OF AUGUST,

TWO THOUSAND TEN.

Oral Order :(Per  Smt. M.Shreesha, Hon’ble Member)

                                                ****

            Aggrieved by the  order in C.C.No.68/08  on the file of District Forum, Adilabad, the opp.party preferred this appeal.

         The brief facts as set out in the complaint are  that the complainant is  a dealer of  Bharath Petroleum Corporation Limited  having retail outlet  at  Dasnapur, Adilabad  under the name & style of ‘Tirumala   Filling  Station’ and he was  also owner of lorry tanker and has bulk POL transportation contract with the said company. On 24.3.2006  at about 2.30 p.m. complainant’s lorry bearing no.AP-01/V-0225  carrying speed petrol & diesel  while proceeding  towards  Adilabad  from Hyderabad  dashed a stationed lorry  in front of R.R.C.Venture on  N.H.No.7  as a result of which the lorry tanker’s  first compartment body was cracked and speed petrol in it  leaked out and the vehicle was also damaged.  On a complaint given by one Pampiri Nagesh,  police of  Toopran registered a case against the driver of lorry tanker of complainant  and issued F.I.R. No.71/06 dt.24.3.2006. The said vehicle was insured with the opposite party  under two policies, one package policy  bearing no.051900/31/05/00984 covering damage valid from 19.7.2005  to 18.7.2006  and another policy bearing no.051900/46/05/00030  covering product & risk under carrier legal policy valid from 19.7.2005  to 18.7.2006.   Immediately after the accident  the complainant informed to the opp.party  and a surveyor appointed by the opp.party   visited the accident spot and assessed the loss of product as 2220 liters of speed petrol valuing  at Rs.1,08,913/- and vehicle damages at about Rs.1,36,000/- and the complainant submitted a claim application on 14.3.2007   for payment of loss of product  and also for damages of the vehicle  and the opp.party  vide letter dt.15.5.2007  rejected the claim stating that the damage sustained to the product belonging to  the owner insured is not covered  under the policy  and by carrying unauthorised passengers policy conditions were breached. The complainant submits  as he was having contract of carriage for bulk POL transportation with Bharath Petroleum Corporation Limited,  he cannot be considered as owner of the goods until  it  reached the destination  i.e. the retail outlet of the complainant.     Alleging deficiency in service  on the part of the opposite party, the complainant approached the District Forum to direct the opp.party  to pay an amount of Rs.2,44,913/-  and also interest at 12% p.a.  and also to pay  compensation  of Rs.10,000/-.

        The opposite party filed counter denying that their surveyor assessed the leakage as 2220 liters of speed petrol   having value of Rs.1,08,913/-.  Opp.party submits that the complainant   failed to lodge  the claim within 14 days of accident  and as such  violated  condition no.3© of policy .  Opp.party further submits that the complainant was transporting his own speed petrol in  the tanker from Hyderabad to Adilabad  and the risk of goods of insured is not covered by the policy  and hence they have repudiated the claim of the complainant. The tanker used by the  complainant  was not a goods carrier vehicle but on the date of accident it was carrying passengers and hence the said tanker was under the head of general exception of the policy and that of permit, as such the claim of the complainant is not maintainable and hence they have repudiated  the claim of the complainant.  The opposite party submits that there is no deficiency in service on their behalf and seeks for dismissal of the complaint.

        Based on the evidence adduced i.e. Exs.A1 to A28 and B1 to B3   District Forum allowed the complaint directing the opp.party to pay Rs.2,45,000/- with 9% interest from the date of complaint  i.e. 1.7.2008  and to pay costs of Rs.300/- and to reimburse the court fee of Rs.200/-  till realization.

        It is the case of the complainant that he took  two policies with the opp.party  i.e.  one Package Policy and one Carrier Legal Policy both valid from 19.7.2005  to 18.7.2006.  On 24.3.2006  while  the policies  were in force the lorry tanker carrying speed petrol and diesel  met with an accident as a result of which, the compartment body was cracked and speed petrol leaked apart from vehicle damage.  FIR was lodged on 24.3.2006  i.e. on the same day of accident   vide Ex.A2. Ex.A3 is copy of the  remand case diary . Exs.A5 and A7 are the copies of the insurance policies i.e. copy  of Carrier Legal Policy no.051900/46/05/00030 and Package Policy nos.051900/31/05/00984 respectively.  It is the case of the complainant  that he owns a lorry tanker and has bulk POL transport contract (carriage contract)  with  Bharath Petroleum  Corporation  Ltd.  In support of his case the complainant filed Exs.A10 and A11 which are the copies of invoices of Bharat Petroleum  Corporation Ltd.  dt.24.3.2006 and also filed    Ex.A27 which is the dealership agreement, Ex.A28 which is the extension of the contract for six months from 1.12.2005 to 31.5.2006. These exhibits  clearly establish  that the complainant  had an agreement with  Bharath Petroleum Corporation Ltd.   The complainant submits that  on information to the opposite party,  a surveyor  was appointed, who visited the accident spot and assessed the loss of  2220  liters  of speed petrol  at Rs.1,08,913/-. He further submitted that   the vehicle damages as per Ex.A12 to A26  amounts to  Rs.1,36,000/-   but the  opposite party vide its letter dt.15.5.2007  repudiated the claim of the complainant   on the ground that the product belonging to the  owner is not covered  under the  policy and that unauthorized passengers were also carried by the vehicle and relied on the  copy of the F.I.R. Ex.B3.   

        The  first contention of the appellant/opp.party  is that the goods were not insured is unsustainable  in the light of the Carrier’s Legal Liability Policy in which it is stated  as follows:

        “during  the currency of this policy and any further period (s)  for which it may be in force, subject to the limits, terms, provisions, exclusions, exceptions and conditions contained herein or endorsed hereon or otherwise expressed hereon, the Company hereby agrees to indemnify the Insured against his legal liability for actual physical loss of or damage to goods or merchandise  directly caused by fire and/or accident to the vehicle registered under No.AP 1V 0225 whilst such goods or merchandise are actually transported in the said vehicle provided that the fire or accident has arised on account of negligence or criminal act of his servants.”

The learned counsel relied on  Exclusion Clause  2(a) of the policy  which is as follows:

        “Liability in respect of damage to property

 (a). 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 into by the insured in an approved form.”

         Relying on  the afore mentioned clause  the appellant/opp.party  stated that the goods  belong to the same owner and  therefore they are not covered under the policy.  But it is clear from  Exs.A27 and A28 agreements and  Exs.A10 and A11 invoices  that the complainant was carrying the said goods for Bharath Petroleum Corporation Limited and he is having contract of carriage for  bulk POL transportation.     Ex.A28  dt.9.5.2006  specifies that there is an extension of contract for 6 months from 1.12.2005 to 31.12.2006  and therefore the contention of the appellant/opposite party  that the  complainant  was transporting his own speed petrol  in the absence of any documentary  evidence is unsustainable. The second contention of the  appellant/opp.party is that the  vehicle was carrying unauthorized passengers and learned counsel relied on Ex.B3  FIR which states that there were 6 passengers, two injured and four non injured passengers  in the said vehicle.  The complainant     has also  not denied this.  However keeping in view the judgement of Supreme Court in AMALENDU SAHOO vs. ORIENTAL  INSURANCE  COMPANY LTD.  reported in II(2010) CPJ 9 (SC) wherein  it is held as follows:

  In the afore mentioned judgement, the Apex Court observed that    when there is  breach of condition i.e. carrying unauthorized passengers the insurance company can settle 75%  of admissible claim  at non standard basis.    In the instant case 75% of the repair charges of the vehicle  i.e. 75%  of  Rs.1,36,000/-  which amount  the  District Forum has observed  based on the  bills filed by the complainant.  We confirm the order of the District Forum  with respect to allowing of Rs.1,08,913/-  as assessed by the surveyor  for loss of stock. But however we modify  the order of the District Forum with respect to repair charges i.e. we allow 75%  of the claim  Rs.1,36,000/-  while  confirming  the rest of the order  of the District Forum.

        In the result this appeal is allowed in part and  order of the District Forum is modified. We award  on  non standard basis 75% of the amount of Rs.1,36,000/-  awarded by the Dist. Forum  which comes to  Rs.1,02,000/-   while we confirm the  order of the Dist Forum  with regard to direction for payment  of Rs.1,08,913/-.  The  appellant/opp.party  is directed to pay in total  Rs.2,10,913/-  (Rs.1,02,000/- + 1,08,913/-)  to the complainant  while confirming rest of the order of the District Forum.  Time for compliance  four weeks.    

PRESIDENT

                                                                MEMBER

                                                                Dt.31.8.2010

Pm*