Punjab

Ludhiana

CC/16/198

Harjit Kaur - Complainant(s)

Versus

National Ins.Co.ltd - Opp.Party(s)

S.S.Kalsi Adv.

09 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 198 of 11.03.2016

Date of Decision          :   09.11.2016

 

Harjit Kaur aged about 53 years w/o S.Amarjit Singh Bedi r/o House No.2088, Sector 32-A, Chandigarh Road, Ludhiana.

….. Complainant

Versus 

1.The National Insurance Company Limited, Branch Office No.6, Millerganj, G.T.Road, Ludhiana-141003, through its Branch Manager.

2.The National Insurance Company Limited, Head Office at #3, Middleton Street, Post Box No.9229, Kolkata-700071, through its General Public.

3.Indusind Bank, SCO-21, Feroze Gandhi Market, Opp.Ludhiana Stock Exchange, Near Park Plaza, Ferozepur Road, Ludhiana through its Branch Manager.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       In person with Sh.S.S.Kalsi, Advocate

For OP1 & OP2             :       Sh.M.S.Jassal, Advocate

For OP3                         :       Sh.Tanbir Singh, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, the owner of truck/tanker bearing registration No.PB-29-L-8893, got the same insured with OP1 and OP2 vide policy No.401207431069 dated 7.3.2013 with validity period from 8.3.2013 to 7.3.2014. This vehicle was financed by OP3. The insured vehicle was on hire with M.P. Oil Carrier at Shop No.8, Transport Nagar, Near Gurudwara Nirmal Akal Banga Sahib, Ludhiana for transportation of Petrol/Diesel from Hindustan Petroleum Corporation Limited. This truck was driven by Mr.Pritam Singh son of Sh.Sewa Singh as the regular driver and he was holding a valid driving license and even holding a Training Certificate duly issued by International Driving School. The said driver was also having identity card issued by M/s M.P.Oil Carrier.

2.                On 8.5.2013 at about 11:30 P.M., when the above said vehicle after loading with Petrol of 24,000 liter of wroth of Rs.17,47,515.43P, reached near Bhawanigarh, then a wind storm came there, due to which, its driver Mr.Pritam Singh had to park the same towards the kacha side of the road at a vacant place near the hotel. Due to spark of high voltage wires, the said vehicle of the complainant stood set on fire and was totally damaged. Report in this respect was lodged in the nearest police station Sadar, Sangrur. Thereafter, fire report was duly issued by Municipal Council, Sangrur. All the original documents of the vehicle stood destroyed in the fire incidence and duplicate copies of the same were obtained. Immediately thereafter, Op1 was informed by the complainant regarding the said incident. Surveyor visited the spot of accident and thoroughly enquired into the matter. OP1 and OP2 procrastinated the matter regarding payment of compensation for more than two years and ultimately, they rejected the claim on 11.1.2016 without any sufficient cause. Due to this incident, complainant could not pay the installments to the financer i.e. Op3. However, complainant claims that she will pay the entire amount to OP3 after receipt of the claim amount. Op3 without sufficient cause initiated other proceedings against the complainant, despite several requests, but to no effect. Complainant after serving legal notice dated 24.12.2015 through counsel, filed this complaint by pleading deficiency in service on the part of Ops. Prayer made for directing Op company to pay the claim amount of Rs.18 lac along with interest and compensation of Rs.50,000/- for mental pain and harassment.

3.                In written statement jointly filed by Op1 and OP2, it is pleaded interalia as if complaint barred in view of section 26 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) and otherwise also is not maintainable. Admittedly, the complainant purchased the insurance policy in question and OP1 and OP2 after receipt of the information from the complainant on 11.5.2013 qua the damage to the insured vehicle in course of burning near Bhawanigarh, deputed Sh.Sanjeev Kumar Verma, Surveyor and Loss Assessor for spot survey, who after inspecting the oil tanker, snapping the photographs and conducting other enquiries, submitted preliminary report on 23.5.2013. Thereafter, the Regional Office of Ops appointed Sh.Ramesh Goel, Engineer, Surveyor and Valuer on 21.8.2013. The said surveyor visited the insured’s premises at Transport Nagar, Ludhiana on 21.8.2013 and thereafter, inspected the vehicle, took the photographs and documents and prepared the report dated 26.8.2013. Said surveyor called upon the complainant through letters dated 23.8.2013, 8.10.2013 and 30.10.2013 to submit documents mentioned therein, but the complainant has not provided those documents. Then Sh.Nishant Gupta Engineer, Valuer and Loss Assessor was appointed as investigator for verifying the genuineness and validity of the driving license of Pritam Singh, who submitted application dated 26.8.2013 with the D.T.O., Jalandhar. After getting verification report from Transport Office, Jalandhar, said Sh.Nishant Gupta prepared report dated 27.8.2013 and submitted the same. Thereafter, SA Investigating and Consulting Agency, Ashiana Canal Avenue, Abrol Nagar, Pathankot was appointed as investigator to verify the genuineness of RC of the vehicle and said investigator sent letter dated 29.10.2013 to the District Transport Officer, Moga and after getting verification report, he submitted his report. Again SA Investigating and Consulting Agency, Ashiana Canal Avenue, Abrol Nagar, Pathankot was appointed as investigator to know the genuineness of the route permit and he by filing an application dated 29.10.2013 with the District Transport Officer, Moga knew about the genuineness of the route permit and thereafter, submitted report dated 12.10.2013. Sh. Sarav Daman Bhalla, Investigator of Ashiana Canal View Enclave, Abroal Nagar, Pathankot was deputed by the Ops to know from the State Government, whether the endorsement of Hazardous Goods is required or not on driving license. Letter dated 22.2.2014 in that respect was written under RTI Act for seeking information and reply thereof was received and then investigator submitted report, but before that OPs wrote letter dated 20.3.2014 to the complainant to the effect that as per rules, a person cannot drive the vehicle without the training certificate, which means that endorsement   of the Hazardous Goods is mandatory on the driving license. SA Investigating and Consulting Agency, Ashiana Canal Avenue, Abrol Nagar, Pathaknot submitted report that damage to the vehicle caused on account of fire. Even OP1 and OP2 sent letter dated 13.6.2014 to the complainant for informing her that SA Investigating and Consulting Agency, Ashiana Canal Avenue, Abrol Nagar, Pathaknot(investigator) has pointed out in his report dated 24/2/2014 that there was gross negligence on the part of driver of the vehicle in question. Said investigator reported that driver stopped the vehicle at hotel for dinner and on asking of the owner of the hotel to park the vehicle behind the Dhaba, the driver looked for open space and parked the vehicle behind the hotel near the fields, where already fire due to stubble burning was there. There was high velocity wind blowing  and suddenly the high tension wires passing over the parked oil tanker sparked resulting in damage to the tanker. It was pointed that it was gross negligence of the driver of the tanker. Statement of insured even shows the negligence of the driver of the tanker and as such, claim to the complainant is not payable. Mr.Ramesh Goyal, Engineer was deputed for motor survey report final and he prepared final survey report on 18.3.2014. Insurance company after going through various reports of the surveyors and statement of the complainant came to know that loss to the insured vehicle occurred due to gross negligence of the driver as well as the insured of the tanker for not safe guarding the vehicle carrying hazardous goods because of its parking in the fields, where fire was already there and high voltage electric wires were passing over the oil tanker. It is claimed that claim of the complainant was duly repudiated on 11.1.2016 as per the terms and conditions of the insurance policy. Each and every other averment of the complaint denied.

4.                In separate written statement filed by OP3, it is pleaded that the complainant has not approached this Forum with clean hands because she has suppressed the material facts; no cause of action accrued in favour of the complainant and against OP3 and the complaint of the complainant is not maintainable in the present form. It is denied that the complainant is a consumer under the Consumer Protection Act. Admittedly, the truck/tanker in question was financed by OP3. However, it is denied that the complainant had been paying the installments regularly. Rather, when the complainant stopped making payment of installments of the vehicle in question, then OP3 was constrained to file complaint under section 138 of Negotiable Instrument Act regarding dishonouring of the cheque issued by her in the Court of Sh.Vijay Singh Dadhwal, JMIC, Ludhiana. An execution titled as Indusind Bank vs. Harjit Kaur is also pending before Sh.Rajesh Kumar, ADJ, Ludhiana for recovery of awarded arbitration award amount. This complaint alleged to be filed  in  counterblast of the above said cases. False allegations alleged to be levelled against OP3. Other averments of the complaint does not pertain to OP3 and as such, prayer made for dismissal of the complaint.

5.                Counsel for the complainant tendered in evidence affidavit Ex.CA of complainant along with documents Ex.C1 to Ex.C16 and thereafter, closed the evidence.

6.                Sh.M.S.Jassal, Advocate for OP1 and OP2 tendered in evidence affidavit Ex.RA of Sh.R.K.Wadhwan, Senior Branch Manager of National Insurance Company Limited along with documents Ex.R1 to Ex.R54 and then closed the evidence.

7.                On the other hand, Sh.Bhavik Bhardwaj along with counsel Sh.Tanbir Singh, Advocate for OP3 tendered in evidence affidavit Ex.R3/A of Sh.Bhavik Bhardwaj, Special Power of attorney along with documents Ex.R3/1 to Ex.R3/5 and thereafter, closed the evidence.

8.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

9.                Admittedly, the vehicle in question was insured with OP1 and OP2 and the same caught fire during parking on vacant site, due to which, on lodging of claim of the insurance by the complainant, surveyors and investigators were appointed, but the claim was repudiated vide letter Ex.C16=Ex.R54. As claim of the insurance is stacked against OP1 and OP2 and as such, cause of action has accrued to the complainant against OP1 and OP2 only. Admittedly, Op3 is the financer and it has no role in the passing/settlement of the insurance claim. Therefore, complainant has no cause of action against OP3. Merely because OP3 is financer or it has initiated proceedings under Arbitration & Conciliation Act and under section 138 of the Negotiable Act, due to that alone it cannot be held that OP3 provided deficiency in service to the complainant or they indulged in unfair trade practice. Rather, OP3 by filing execution under Arbitration and Conciliation Act and complaint under section 138 of the Negotiable Instrument Act availed appropriate legal remedy instead of taking law in their own hands. So, submissions advanced by counsel for the OP3 has force that the complaint against OP3 is not maintainable.

10.              It is vehemently contended by Sh.M.S.Jassal, Advocate representing OP1 and OP2 that the evidence brought on record establishes that owing to act of negligence on the part of the driver of the insured tanker in parking of the same near high tension voltage wires, the incident occurred and as such, repudiation of claim is justified, particularly when near the place of parking of the tanker, fire was already there in the fields.

 

11.              On the other hand it is vehemently contended by counsel for complainant that there was no negligence on the part of driver of the vehicle because he could not foresee the shortening of high tension voltage wire at the time of parking the tanker at the back of hotel/dhaba. As there was storm like wind and that is why the driver could not see high tension wires above the place, where he parked the tanker.After going through copy of DDR no.35 dated 10.05.2013(ExC7), it is made out that driver Pritam Singh at about 11.30 night parked the tanker after finding the vacant place on the back of the hotel, but without noticing the existence of high tension voltage wires. As and when, storm blows, then            due to dazzling of the eyes with flowing  earth, one may not notice upward and as such, contents of DDR Ex. C7 cannot be ignored that driver could not ascertain the availability of high tension voltage wires above the parked place of the tanker. As the high voltage wires sparked resulting in taking place of the incidence of fire and as such, from the facts given in DDR Ex. C7, it can be made out as if the driver could not foresee the hazardous circumstance resulting in taking place of fire. However, it is vehemently contended by counsel for OP1 and OP2 that the investigation got conducted by Ops proves that due precaution was not observed by     the driver while parking the vehicle underneath the high tension wires and as such, repudiation of claim is justified.

12.              Ex. C1 to Ex. C6 are the documents produced on record to show the payment of taxes to Government regarding vehicle in question or issue of RC and the driving licence of the vehicle in question in favour of Pritam Singh as well as that the vehicle in question was insured with National Insurance Company. Driving licence Ex. C5 of International Driving School shows that Pritam Singh got training from International Driving School and was able to obtain this training certificate. Ex. C10 is the document showing as if the tanker was loaded with petroleum products of hefty amount. Fire report Ex. C9 was submitted and news item Ex. C8 regarding incidence was even published. Occurrence in question as reported to the police at the earliest is a fact borne from contents of Ex. C7 because this report was lodged almost within one day of the occurrence. Information sought through Ex. C11 by Ops was submitted by complainant through letter Ex. C12, but despite that claim not paid and that is why the complainant got legal notice Ex. C13 served through counsel through postal receipts Ex. C14 and Ex. C15. However, repudiation of claim took place through letter Ex. C16=Ex. R54 in which it is mentioned that due to negligence on the part of driver for not safeguarding the vehicle carrying hazardous goods, claim is repudiated by competent authority. Name of that competent authority not at all disclosed and as such, partial intimation qua repudiation of claim alone given to complainant through Ex. C16=Ex. R54. Reasons for conclusion qua not safeguarding the vehicle or of negligence of driver are not assigned in Ex. C16 or Ex. R54 and as such, virtually complainant kept in dark qua the circumstances leading to repudiation of the claim. As per rule 133 contained in the terms of insurance policy Ex. R2, each driver of a goods carriage transporting any dangerous or hazardous goods through carriage, will observe at all times all the directions necessary for preventing fire, explosion or escape of dangerous or hazardous goods carried by him in the carriage. Due care for preventing fire to the vehicle in question was not taken by the driver and that is why he parked the same at a place from above which high tension wires were passing and as such, it is vehemently contended by Sh. M.S. Jassal, Advocate that in view of breach of rule 133(2) of Ex. R2, repudiation of the claim is justified. Certainly driver is required to take as much precaution as is expected from a man of ordinary prudence in safeguarding the hazardous goods carrying in a vehicle. Even a man of ordinary prudence during high velocity winds on way journey, may be unable to find  during night about the passage of the high tension wires above the place, where a goods vehicle going to be parked by him. This parking by driver Pritam Singh took place on 11.30 PM during night in darkness is a fact borne from contents of Ex. R3=Ex. R7 and as such, bare act of parking the vehicle underneath high tension wires cannot be considered as an act of negligence.

13.              In claim form Ex. R4, it is mentioned that high tension wires going overhead stood broken resulting in taking place of fire, but that fact is not mentioned in DDR Ex. C7=Ex. R3 or in Ex. R5 because mention of short circuit alone made therein and as such, it is contended that complainant shifting stand, which shows that manner of taking place of incidence of fire sought to be concealed. These contradictions of course exist for disclosing about the manner of taking place of incidence of fire and that shows facts suppressed by complainant. Even if that be the position, despite that other material available on record needs to be taken into consideration to find as to whether really it is a case in which negligence on the part of driver resulted in taking place of fire incidence or not.

14.              In statement Ex. R12 of complainant (translation copy of which produced on record Ex. R13), it is mentioned that stubble in the field was burning nearby the place whereby the vehicle was parked and owing to strong winds, the high tension wires collided with each other and fell on the tanker/vehicle in question resulting in taking place of incidence of fire. However, Harjit Kaur complainant was not present at the spot of incidence as such her statement Ex. R12 is just hearsay. The earliest ever version regarding occurrence/incidence was given by Pritam Singh, driver himself through Ex. R3=Ex. C7 and as such, that version cannot be ignored. Mention of stubble burning in the nearby fields not made in Ex. R3=Ex. C7 and as such, first ever version qua incidence does not disclose about the role of stubble burning in the incidence in question. Repudiation has not taken due to invalidity of driving licence or RC or the route permit, but on account of negligence of the driver in taking due precaution and as such, document Ex. R14 to Ex. R23 does not throw light qua the manner of incidence in question at all.

15.              Sh. Ramesh Goyal, Engineer through preliminary survey report Ex. R25 claimed through clause No.17 that the version of complainant is same as is given in Ex. C7=Ex. R3. Mention of role of stubble burning not made in Ex. R25 at all. However, in Ex.R25, it is mentioned that endorsement of carrying hazardous material not made on driving licence of driver, but same at the most is a circumstance showing as if driver was not authorized to drive the vehicle carrying hazardous material. However, rejection of claim has not taken place on this ground and as such, the same cannot be treated as a circumstance for finding that repudiation is justified. Ex. R37 to Ex. R39 are the documents showing that verification report of RC, route permit and fitness certificate were obtained. Whereas Ex. R27 to Ex. R34 are the photographs showing the position of damaged tanker and of wires having fallen on the tanker. These photographs as such reflect that high tension wire after breakage even fell on this tanker. Driver of the tanker ran away from the spot of occurrence is a fact borne from contents of fire report Ex. R44/Ex. R43

16.              S.A. Investigating & Consulting Agency, the appointed investigator through report Ex. R45 claims that case of loss was due to falling of high tension wires on the parked vehicle. In this report Ex. R45 dated 24.02.2014 mention regarding stubble remains, after fire burning, is made. However persons present nearby site of location did not get their statements recorded is a fact borne from page No.3 of  Ex. R45. Driver Pritam Singh left services and his whereabouts were not known and that is why Surveyor could not record his statement as per contents of Ex.R45. However, as per this report Ex. R45, Munshi of Police Station Sadar Sangrur confirmed about the genuineness of incidence in question having taken place on 08.05.2013. However, this surveyor visited spot on 29.10.2013 at Bhawanigarh and as such, visit by this surveyor was after more than 5 months of occurrence in question. However, DDR No.35 dated 10.05.2013 was lodged immediately after the incidence in question. On secret investigation the surveyor found the damage to vehicle due to fire and same fact confirmed by Punjabi Vaishno Dhabha owner i.e. the place where the incidence took place is a fact borne from page No.4 of Ex. R45. After getting RTI information S.A. Investigating and Consulting Agency mentioned that loss suffered due to negligence on the part of driver of vehicle because damages from PSPCL even not claimed.  In the last page of report Ex. R45 opinion given to the effect that there are certain aspects which need attention of the investigator. In this opinion, it is mentioned that insurer may take into consideration certain aspects at the time of settlement of the loss. What certain aspects needs the attention of S.A. Investigating and Consulting Agency, those are not mentioned in the report Ex. R45 and as such, virtually this report Ex. R45 itself cast suspicion qua certain aspects leading to the damage by fire to the vehicle in question. So repudiation of claim on the basis of report Ex.R45 is unwarranted. However in report Ex. R46 dated 18.03.2014, it is mentioned that endorsement for carriage of hazardous goods was not existing on the driving licence of the driver and as such, claim is not maintainable. However, that is not made as a ground for repudiation of the claim through letter Ex. C16=Ex. R54. In case repudiation of claim on this ground to take place, then claimant must be informed about that, which is not done and as such, in view of all these circumstances matter required to be reconsidered by OP1 and OP2 afresh. As repudiation of the claim was improper and as such, complainant entitled to compensation for mental harassment and also to litigation expenses from OP1 and OP2 alone.

17.              Therefore, as a sequel of the above discussion, complaint allowed in terms that OP1 and OP2 will reconsider the claim of complainant within 60 days from the date of receipt of copy of order after giving opportunity of personal hearing to complainant. Complaint against OP3 however dismissed. Compensation for mental harassment of Rs.10,000/- (Rupees Ten Thousand only), but litigation expenses of Rs.5,000/- (Rupees Five Thousand only) allowed in favour of complainant and against OP1 and OP2 only. Payment of the amount of compensation and litigation expenses be made within 30 days from date of receipt of copy of orders. Copies of order be supplied to parties free of costs as per rules.

18.                        File be indexed and consigned to record room.

 

                      (Vinod Bala)                                (G.K.Dhir)

                       Member                                          President

Announced in Open Forum

Dated:09.11.2016.

Gurpreet Sharma.