PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The Complainant Mr. Sharma is the lawful owner of vehicle No.HR-55-A-5391 and is self-employed person and earning his livelihood by running the vehicles. The Opposite Party i.e. National Insurance Co. Ltd. is the Insurance Co. from whom the Complainant insured his above vehicle under the valid Policy No.260301/31/06/ 6300000239, dtd.28/05/2006 and the validity of insurance was from 28/05/2006 to 27/05/2007. The Complainant has alleged that the vehicle in question was not used by the Complainant for purely commercial use.

2)        According to the Complainant, on 12/04/2007, his driver loaded the boxes of Virosil Food and Beverages Biocide goods from M/s. Sansosil Biotech Pvt. Ltd., Andheri, Mumbai, through M/s. Nitco Transport, who is the contractor for the said company. At the relevant time the driver of the said vehicle was Mr. Rakesh Kumar S/o Bularam, having driving License No.10568. The said driver and cleaner after meeting the Complainant at 10.00 p.m. proceeded from Andheri via National Highway No.8 for Delhi.  On 13/07/2007 at about 7.15 p.m. the aforesaid vehicle was at Baroda city and while, the said vehicle was running at hello road near Bhajiyara petrol pump, the driver and the cleaner saw some fire in their vehicle and smoke emanating as seen in the side mirror.  The driver immediately stopped the truck in front of Way-white Hotel, got down and found that the backside of the truck had caught the fire and approximately the entire truck with materials had burnt in the fire. The driver immediately called the fire brigade and the situation was handled by the fire brigade.

3)        It is alleged that after the incident the driver of the Complainant informed the police on 13/07/2007 in Jarod O.P. Vagodia Police Station.  The police prepared Panchanama of the said incident place on 14/07/07 in the presence of punches and the copy of the Panchanama was handed over to the driver of the Complainant which is marked as Exh.‘A’. 

4)        According to the Complainant, on the request of the Complainant a duly authorized Surveyor, Mr. Mahendra R. Patel, surveyed the destroyed truck and prepared the survey report which was submitted to the Opposite Party. The Complainant duly paid the fees of Rs.7,618/-. Copy of the receipt is marked at Exh.‘B’.  The Complainant thereafter submitted the claim to the Opposite Party and demanded the claim amount.  The Opposite Party vide letter 15/02/2008 demanded some other documents i.e. final report of Vagodara Police Station and confirmatory letter from M/s. Sansosil Biotech Pvt. Ltd., which should certify that the goods were not inflammable and do not in ordinary circumstances catch fire.  It is alleged that the Complainant submitted the said documents to the Opposite Party for their examination which are marked as Exh.‘D’ & ‘E’.  It is alleged that thereafter the Opposite Party on one or other ground closed the Complainant’s file despite receiving the documents and receiving the surveyor’s report.  The Complainant has alleged that the Opposite Party is responsible for deficiency in his service and in his unfair dealing. The Opposite Party is adequately liable to compensate the Complainant. The Complainant therefore, prayed that the Opposite Party may be held guilty for deficiency in their service and unfair in his dealing and liable to pay compensation to the tune of Rs.4,50,000/- with interest as per law. 

5)        The Opposite Party contested the claim by filing their written statement.  It is contended that the complaint is not maintainable as the Complainant is not coming under the definition of the ‘Consumer’ as the Complainant is doing business of supply of tankers, hence, it is for commercial purpose.  It is contended that the Complainant has informed about the accident dtd.13/04/07 to the Opposite Party on 19/04/2009.  After the knowledge of the said accident the Company had appointed the Surveyor, Mr. M.R. Patil for assessment of the claim. Thereafter, the Company appointed Investigator, M/s. V.B. Associates for detail investigation of the accident.  According to the said investigator i.e. M/s. V.B. Associates by their letter dtd.06/07/2007 asked the Manager of Nitco Raodways Pvt. Ltd. to provide certain documents required for the processing the claim.  Further the Investigator M/s. V.B. Associates had made an enquiry with the concerned Vagodia Police Station about the accident and from the police station it was learnt that the said papers were forwarded to the DYSP, Dabhai.  The Investigator then visited the DYSP, Dabhai, where the investigator have scrutinized all the case papers and from the said papers it was found that the samples from the truck were collected and sent to Forensic Lab for chemical analysis and as per report of the Forensic Lab dtd.31/08/2007, there was no strain of Petroleum/ Hydro carbon found but in one of the sample sent for the analysis did contend “Acetic Acid”. The Surveyor and Investigator M/s. V.B. Associates by their letter dtd.28/12/07 to the Superintendent, Vagodia Police Station, Vadodara Rural, Gujarat has brought to the notice that the Forensic report confirmed the existence of Acetic Acid in the said vehicle. However, the challan provided by the transporter does not reflect the existence of any chemical in the truck and requested to send them the copy of the load challan and final investigation reports. The Opposite Party contended that the investigation report dtd.31/12/2007 clearly shows that the samples from the truck collected and sent to Forensic Lab for analysis did contend the ‘Acetic Acid’.  It is contended that the Opposite Party again by letter dtd.03/01/08 requested to send Police F.I.R./Panchanama/Final Investigation Report of Vagodia Police Station regarding the clarification of the existence of Acetic Acid in the insured vehicle.  The Opposite Party again send a reminder to the Complainant on 18/01/2008 and on 15/02/2008 for supplying the copies of the aforesaid police documents and informed that failure to provide these requirement within 15 days from the date of receipt of letter it will be presumed that the Complainant is not interested in the claim and file will be closed as “No Claim”.  The Opposite Party further contended that the Complainant had no valid registration to carry the dangerous/hazardous goods which itself is against the provision of Rule 132 of the Central Motor Vehicle Rules 1989 and there is no compliance at all in respect of the said rule which is clearly breach of the policy as well as Motor Vehicle Act.  It is therefore, contended that the complaint is liable to be dismissed.

6)        Both the parties have placed on record their affidavits and the written argument. We heard Advocate for the Complainant Mr. Amit Sharma and Adv.Mr. Nitin Patil for Shri. Sanjay Mhatre for the Opposite Party, in view of the authority placed on record of him. 

7)        In view of the rival contention of Opposite Party and claim made by the Complainant, in our view the documents placed on record by both the parties are required to be scrutinized while determining the claim made in this complaint. 

8)        It is undisputed that the truck of the Complainant bearing No.HR-55-A-5391 was insured with the Opposite Party for the period 28/05/2006 to 27/05/2007 upto Rs.7,50,000/- and the Opposite Party has accepted the liability in respect of anyone claim as per the Motor Vehicle Act, 1988.  The copy of the said policy is placed on record alongwith the complaint. The copy of the claim form submitted by the Complainant to Opposite Party dtd.19/04/2007 is also placed on record by the Complainant.  In written statement the Opposite Party has wrongly mentioned the date of knowledge of the accident as 19/04/09. While considering the claim made by the Complainant in our view investigation report submitted by M/s. V.B. Associates i.e. Surveyors and Investigators of the Opposite Party dtd.24/12/2007 is most important. The observations of the said Agency are noted below –

            a)  The motor truck bearing Regn.No.HR-55-A-5391, registered in the name of

                 Mr. Mohanlal Sharma was attached with Nitco Roadways (P) Ltd.

            b)  The aforesaid vehicle was covered under Package Policy 260301/31/06/

                 6300000239 for the period from 28/05/2006 to 27/05/2007.

c)     The aforesaid vehicle had sustained extensive damages due to fire, while it was on its way from Mumbai to Alipur, carrying the goods of Nitco Roadways (P) Ltd. on 13/04/2007.

d)     The Fire incidence is reported and recorded at Vagodia Police Station and after due investigation, the case was closed as “Accidental Fire”.  The papers were sent to DYSP Office, Dabhoi for necessary clarification. 

e)     Samples from the truck were found to be collected by the Panchas that was sent to Forensic Lab, for chemical analysis test, which revealed that there was no strain of petroleum or hydro carbon, but one of the sample was found to be acetic acid.

f)      The load challan provided by the transporters M/s. Nitco Roadways (P) Ltd. does not reveal the load of any chemicals, in particular acetic acid.

g)     The transporter verbally confirms that there was no chemical loaded in the IV at the material time of loss and their written confirmation is awaited.

h)     The concerned police station is informed of anomaly with regard to availability of consignment of acetic acid in the IV at the material time of loss.

i)       Acetic Acid is a moderate flammable liquid.

 In the said report the Investigators have given their views and opinion as under - 

I.  The damages to Insured vehicle bearing Regn.No.HR-55-A-5391, Truck

     LPT 1612, Year of Mfg. – 2002 with chassis No.373341BXZ710611 and

     Engine No.69TTC450DXZ87150V due to fire on 13/04/2007 within the

     jurisdiction of Vagodia Police Station is true.

II. In order to confirm the fire to be “accidental”, the following are the documents required to be submitted by the insured.

a.      Final Investigation Report of Vagodara Police Station.

b.      Clarification of the insured with regard to existence of consignment of acetic acid in the IV at the material time of loss, when the LR does not reveals so.  

The Opposite Party has placed on record the letters dtd.30/01/08, 18/01/08, 15/02/08 and 31/03/08 issued to the Complainant under which the Opposite Party had requested the Complainant to forward police FIR/Panchanama/Final Investigation Report.  In the claim form submitted to the Opposite Party the Complainant has given required information that the accident was reported to the police and it was reported to Vagodia Police Station.  The Complainant has placed on record the copy of Panchanama and the copy of F.I.R. lodged by the driver of the Complainant Mr. Rakeshkumar. The report of the Investigator placed on record shows that on 24/12/07, the Investigator had visited Vagodia Police Station and met the duty Officers at Crime Branch Mr. Ramanbhai and held detailed discussion on the subject claim. The Investigator has also reported that Mr. Ramanbhai confirmed that the truck bearing Regn. No.HR.-55-A-5311 had sustained heavy damages due to fire on 13/04/2007 that was recorded by their police station vide Accident Regn.No.2/2007 and vide Fire Regn. No. 3/2007, dtd.13/04/2007.  The case was investigated by them by PSI, Gulabhai and was closed as ‘Accidental Fire’.  From the report of Investigator, it also appears that they have visited the Fire Brigade office at Vadodara and met Mr. Mahendrabhai N. Shelar and Mr. Desai - Executives of the Fire Station.  Mr. Mahendrabhai confirmed that they were intimated of the fire from Dhandia Bazar Fire Brigade at 21.10 hrs. who were informed by Mr. Gulabhai Singh of Jarod Outpost Police Station that a truck had got fire on Vadodara Halol Highway in front of Vivek Hotel.  Due to heavy traffic, it took longer time for them to reach spot by when the vehicle already burnt to the extent of 55 to 60%.  After extinguishing the fire they returned back to the fire station at 01.10 hrs.  of 14/04/07.  In our view the Opposite Party has wrongly raised objection that in Forensic Laboratory, report in one sample of the samples collected from the spot of accident Acetic Acid was found present and the Complainant is not entitle for the claim as per the Rule 132 of the Motor Act. The Surveyor and Investigator in its observation referred above has specifically noted and observed that the Acetic Acid is a Moderate Flammable Liquid.  Further the Investigator of the Opposite Party has also observed that the fire incidence existence is reported and recorded at Vagodia Police Station and after due investigation the case was closed as ‘Accidental fire’.  In our view therefore, the request made by the Opposite Party to the Complainant for supplying the Final Investigation Report of the concerned police station and on that count closing the claim file regarding the accident caused to the Complainant’s vehicle as “No claim” is totally unjust and improper. We found that the submissions made by the Advocate of Opposite Party- Shri.Nitin Patil relying on the report of Forensic Laboratory that in the sample collected from the accident, Acetic Acid was found in one sample and the Complainant has not obtained the necessary permit to carry Dangerous and Hazardous goods and thereby committed breach of policy as well as the Motor Vehicle Act, can be said without substance.  In the case of Pravin Kumar V/s. The New India Assurance Co. Ltd. (1994) I  CPR 341 Chandigarh (Hariyana). The similar type of claim appears to have been dealt with by the said State Commission.  In the said case the truck caught fire in which the truck as well as the goods loaded were completely burnt.  The Claim made with the Insurance Company was repudiated on the ground that the vehicle was being used against the terms of the permit and in the valuation of Sec.79 of the Motor Vehicle Act. Thus, a complaint was filed.  The plea of the Insurance Co. was that the permit issued to the vehicle did not allow carriage of Hazardous and dangerous chemical.  In the said case the Commission reached the conclusion that a plain reading of the permit would show that the same was granted without any limitation as regards the nature of goods to be carried.  Thus, rejection of claim on this ground was arbitrary and amounts to deficiency in service.  It was also observed that the Rule 129 to 137 of Central Motor Vehicle Rules, 1989 did not per-se debar a public goods carrier from transporting hazardous and dangerous goods.  Since the permit issued did not place any restriction on nature of goods to be carried, it would not amount to violation of Sec.79 of the Motor Vehicle Act.  Thus, the complaint was allowed.  In our view considering the above decision as well as the ground on which the claim was closed by the Opposite Party of the Complainant is totally improper and arbitrary.  We are of the view that in the Surveyors report placed on record by the Opposite Party itself, all the factual aspects regarding the fire accident to the truck of the Complainant have been elaborately reported to the Opposite Party.  In the said report it is also reported that as per the Police Investigation the vehicle had burnt to a extent of  55– 60%.  The Surveyor has also reported that the aforesaid vehicle had sustained extensive damages due to fire while it was in its way from Mumbai to Alipur carrying the goods of Nitco Roadways (P) Ltd. on 13/04/07.  Furthermore the Certificate issued by M/s. Nitco Raodways (P) Ltd. dtd.16/02/08 which is also referred in the survey report shows that the product of M/s. Sansosil Biotech Pvt. Ltd., which was carried in the truck of the Complainant was non-hazardous and non-inflammable as per the parties letter.  The certificate of M/s. Sansosil Biotech Pvt. Ltd. is also on record which also confirms the said fact.  Under such facts and circumstances, we hold that the attitude of the Opposite Party regarding closing of claim for non submissions of  Final Investigation Report necessarily amounts to deficiency in service as well as the same is arbitrary.  We therefore, hold that the Complainant is entitled for the claim of Rs.4,50,000/- as claimed in the present case.  We also hold that the Complainant is entitled for interest @ 9% p.a. on the said amount from the date of lodging of claim i.e. 19/04/2007 and cost of Rs.5,000/- towards this proceeding.  In the result the following order is passed.

O R D E R

i.                    Complaint No.228/2009 is allowed against the Opposite Party.

ii.                 Opposite Party is directed to pay compensation on account of fire accident occurred to Truck No.HR-55-A-5391 of the Complainant on 13/07/2007 to the tune of Rs.4,50,000/- (Rs. Four Lac Fifty Thousand Only) to the Complainant with interest @ 9% p.a. from the date of lodging of claim to the Opposite Party i.e. 19/04/2007 till its realization.

iii.               Opposite Party is directed to pay an amount of Rs.5,000/- (Rs.Five Thousand Only) to the Complainant towards cost of this proceeding.

iv.               The Opposite Party is directed to comply with the above order within four weeks from the date of service of this order.  

v.                  Certified copies of this order be furnished to the parties.