BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.
Complaint No. 299 of 2015
Date of instt: 12.10.2015.
Date of decision: 14.12.2017
1.Isha Sales Corporation, Village Mohra, Dukheri Road, Ambala Cantt. through its proprietor Manish Jain aged 24 years s/o Naresh Jain.
2.Manish Jain aged 24 years s/o Sh.Naresh Jain, Proprietor of M/s Isha Sales Corporation, village Mohra, Dukheri Road, Ambala Cantt.
...Complainants.
Versus
- National Insurance Company Limited, Division No.18, Palika Bhawan, 1st Floor, Ring Road, R.K.Puram, Sector 13, New Delhi through its Branch Manager.
- National Insurance Company Limited Branch Ambala City through its Branch Manager.
…Opposite parties.
Complaint under section 12 of
Consumer Protection Act, 1986.
BEFORE: SH. D.N. ARORA, PRESIDENT.
SH. PUSHPENDER KUMAR, MEMBER.
MS. ANAMIKA GUPTA, MEMBER.
Present: - Sh. P.S.Sharma, Adv. for complainants.
Sh. R.K.Vig, Adv. for OPs.
ORDER:
The facts of the present case are that the complainants are running business under the name and style M/s Isha Sales Corporation and the firm was insured for all intents and purposes with the OPs vide policy No.351800/21/13/4400000792 Marine Open Policy w.e.f. 01.06.2013 to 31.05.2013 for a sum of Rs.6,00,00,000. M/s Adani Wilmar Ltd. Dhruv Adani Port Road, Mundra (Gujrat) placed an order of 274.05 Qnt. of Sunflower Oil (expeller) with the complainant and the complainants hired Tanker from M/s Ganesh Oil Carrier of Bhatinda and vide Tanker No.GJ-12AW/6827 dispatched 274.05 Qtl. of Sunflower Oil (expeller) on 13.07.2013 for a sum of Rs.20,47,159/- vide invoice No.1112. When the tanker was on Tharad-Gandhidham highway around 5 KM away from Vav Town towards Gandhidham side Kutcch Gurjrat on 17.07.702013 at about 5 A.M. truck overtook a truck coming from opposite side and due to sudden movement of truck, the driver steered the tanker in question on left side to avoid head on collision. On left side, there was soft sand and due to fresh rain it become slipper and one tyre of running tanker in question went on soft sand and it got out of control and it toppled on road side ditch on soft sandy ditch. Due to impact and left weight tanker body got ruptured at three places and deep cuts developed from top lead sealing and due to this liquid oil started leaking. The matter was reported to the police and the OPs were also intimated. On 19.07.2013 survey was conducted and total loss of oil (27.405 MT) invoice cost of Rs.20,47,159/- was opined and accordingly, the complainant lodged claim of Rs.20,62,834/- including the surveyor fee of Rs.15,680/-. The OPs have credited only Rs.14,96,981/- in the account of the complainant on 23.10.2013 and an amount of Rs.5,65,853/- has been withheld. The complainant requested the Ops vide letters dated 09.11.2013, 16.11.2013, 28.11.2013 and emails dated 03.02.2014, 20.01.2014 and 12.07.2014 to release the balance amount but it was intimated that the loss of consignment was on account of overloading and the overloading was the proximate cause of action and the loss is attributable to the complainant being willful conduct. The complainant also approached Insurance Ombudsman but to no avail. The OPs have wrongly and illegally withheld the balance amount of Rs.5,50,173/- out of Rs.20,62,834/- which clearly shows that they are deficient in providing service and also indulged in unfair trade practice. Hence, this complaint. In evidence, the complainants have tendered affidavit Annexure CX and documents Annexure C1 to Annexure C20.
2. On notice, OPs appeared and contested the complaint by filing joint reply to the complaint wherein it has been submitted that consignment of 274.05 Qtl. Of sunflower oil (expeller) was sent through Ganesh Oil Carrier vide GR No.1610, however, the capacity of tanker was 250 Kilo-liters and the same was also pointed/printed on the body of the same. The surveyor has also reported that on verification of the documents of the tanker and the weight bridge slip the total weight of the consignment was 274.05 Kgs and there was overloading of 3.00 tons. On 23.10.2013, an amount of Rs.14,96,981/- has already been paid to the complainant on account of this episode against Rs.20,62,834/- as per the terms and conditions of the policy as per the surveyor report dated 22.07.2013. It is denied that the amount was credited in his account without his knowledge and assent. The insurance company cannot go beyond the terms and conditions of the policy. There is no deficiency in service on the part of OPs as the root cause of the accident is overloading of the tanker, therefore question of unfair trade practice also does not arise at all and the complainants are not entitled for Rs.5,50,173/- because of overloading of truck. The complainants were duly intimated about the report of surveyor vide letter dated 04.08.2014. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavit Annexure RX and documents Annexure R1 to Annexure R7.
3. We have heard learned counsels for the parties and have gone through the case file very carefully.
4. Perusal of Annexure C20 copy of letter dated 04.08.2014 written by the insurance company to complainants intimating about settling of the claim on Non-standard Basis at 75 % of the assessed loss as well as making the payment to the tune of Rs.14,96,981/- as full and final payment. In this letter at para No.3 it has been specifically mentioned that The surveyor has reported that on verification of the documents of the tanker and Weight Bridge Slip the total weight of the consignment was 2740.5 Kgs and the capacity of the tanker was 24.40 tons and there was overloading of 3.00 tons. It has been further mentioned in this letter that overturning of the tanker, clearly established that there was direct nexus between the accident and the overloading. Undisputedly, the complainants in par No.3 of the complaint have mentioned that the tanker was loaded with 274.05 qutl. of Sunflower oil. The surveyor in his report has mentioned that on the tanker body the load capacity was written as 25K. It is a matter of common knowledge that if a vehicle is loaded above the carrying capacity, there is every chance of the driver losing control and resultant overturning of the vehicle. Perusal of Annexure R5 (copy of RC) reveals that the unladen weight was 10800 and the gross weight of the vehicle was 35200. 35200 - 10800 = 24400 but load on the vehicle was 274.05 Qntl. i.e. 3 ton extra. The complainant has remained mum about this fact that the load capacity of the tanker was not 25 K. Hon’ble National Commission in case titled as Delhi Assam Roadways Corporation Ltd. Vs. United India Insurance Company Limited, RP No.3226 of 2012 decided on 03.09.2013 has held that One cannot over-look the fact that overloading of a vehicle beyond certain limit does have an impact on the control of the driver on the vehicle. For example, when the brakes are applied to a moving vehicle, the breaking distance would be directly proportionate to the laden weight of the vehicle. Otherwise also, the increase of load on a vehicle also have an impact on the steering control.
5. From the above facts and circumstances it is clearly established that the tanker was overloaded and the insurance company has settled the claim on non-standard basis as per the verification and report of the surveyor. Hon’ble National Commission in 1(2010)CPJ 272 (NC) titled New India Assurance Company Ltd. Vs. Subash Kumar, has held that: “Surveyor’s report has considerable evidential value, cannot be ignored, unless discredited by producing contrary evidence- Settlement of claim on repair basis directed as per surveyor’s report”.
6. Keeping in view the above discussion we have no hitch to reach at a conclusion that the insurance company has rightly settled the claim of the complainants and the payment has already been made to the complainants. The complainants have failed to prove any deficiency in service and unfair trade practice on the part of OPs by leading cogent and reliable evidence, therefore, present complaint deserves dismissal. Accordingly, we dismiss the present complaint leaving the parties to bear their own costs. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.
Announced on: 14.12.2017
(PUSHPENDER KUMAR) (ANAMIKA GUPTA) (D.N. ARORA)
MEMBER MEMBER PRESIDENT
