Tripura

West Tripura

CC/12/79

Sri Ratan Majumder - Complainant(s)

Versus

National Insurance Co. Ltd. And Others. - Opp.Party(s)

Mr. G.S. Bhattacharjee

18 Mar 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC- 79  of   2012

Sri Ratan Mazumdar,
S/O- Sri Monoranjan Mazumdar,
Chandrapur, Agartala,
Tripura West.                     .........Complainant.

     ______VERSUS_____

     1. National Insurance Co. Ltd.
         Represented by its Divisional Manager,
         Agartala Divisional Office, Akhaura Road,
         Agartala, Tripura West.

     2. Indian Oil Corporation,
         Represented by the Executive Director,
         Assam Oil Division, Ramnagar,
         Silchar.                  ........Opposite Parties.
    

                    __________PRESENT__________

 SRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant       : Sri G. Bhattacharjee.
                          Advocate. 
                           
For the O.P. No. 1         : Sri A. L. Saha, 
                  Sri J. Paul and 
                  Sri B. Debnath,
                  Advocates.

For the O.P. No. 2        : Sri S. Debnath.
                  Advocate.             

        
JUDGMENT  DELIVERED  ON : - 18.03.15.

J U D G M E N T

         This is a complaint U/S 12 of the Consumer Protection Act, 1986(herein after referred to as 'the Act') filed by the complainant, Sri Ratan Mazamdar of Chandrpur, Assam Agartala Road, Agartala, West Tripura against the O.Ps, namely National Insurance Co. Ltd, Agartala Divisional Office and Indian Oil Corporation, Assam Oil Division, Silchar over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.Ps.

2.        The fact of the case as gathered from the record is that the complainant is a carrying contractor under Indian Oil Corporation Ltd. He was having a Oil Tanker truck bearing registration no- AS 25 C 6777 for carrying oil products from Gwahati to various parts of Tripura. He obtained two policies of insurance from the O.P. No.1 – one for damage of the vehicle and another for loss of goods in transit. The policy for the loss of goods in transit was valid from 22.09.10 to 21.09.11 and the sum insured was Rs.4,50,000/-. On 23.12.10, while the said oil tanker loaded with 12000 ltrs of HSD (high speed diesel) was proceeding from Gwahati, Assam to Dharmanagar, Tripura, it met with an accident at Nongpoh, Meghalaya. The Oil tanker fell into a filed by the side of the main road and overturned. As a result, the entire HSD stored in the oil tanker drained away and spread on the field and the Oil tanker also got badly damaged due to such accident. Soon after the accident, the complainant reported the incident to the Indian Oil Corporation Ltd., Dharmanagar Oil Depot and the local police. The staff of the Indian Oil corporation Ltd. and the local police being accompanied by Fire Service Authority rushed to the spot of accident. The damaged oil tanker truck was also inspected by the Motor Vehicle Inspector of Nongpoh District. The complainant informed about the accident to the O.P. Insurance Company in writing on 24.12.10. The surveyor appointed by the O.P. No.1 also visited the spot of accident and submitted his report fully supporting the claim of the complainant. The O.P. No.2, the Indian Oil corporation Ltd., after conducting field enquiry recovered Rs.4,64,280/- being the price of 12000 ltrs of HSD from the Complaimnant, though in the challan the total cost of 12000 ltrs of HSD was shown to have been mentioned as Rs.3,88,089.84. Having notice such discrepancy in the rate mentioned in the challan with that of the amount actually recovered from he as cost of 12000 ltrs of HSD, he took up the matter with the O.P. No.2 who informed him that the rate shown in the challan was subsidized price of HSD. But this rate would not be applicable until the item reaches to the State Depot and taken into the State Account. It is asserted that the O.P. No.1 settled the claim preferred by him towards damage of  vehicle (oil tanker). But they did not pay the cost of HSD though the goods in transit were under the coverage of insurance with them. He requested the O.P. No.1 to settle the claim as to the loss of goods in transit by a  written representation followed by repeated reminders but it yielded no results. According to the complainant, the O.P. No.1 is guilty of negligence and deficiency in rendering service. Hence this Complaint.

3.        The O.P. No.1, National Insurance Co. Ltd. and O.P. No.2, The Indian Oil Corporation Ltd. have contested the case by filing separate written objections.
        The O.P. No.1, in their written objection, has pleaded that the fact of accident was not intimated to them in time and no step was taken for timely recovery of the damaged oil tanker. Further that, since the accident occurred due to the failure of brake, the complainant is not entitled to any compensation towards the loss of goods in transit as per terms of policy of insurance. It is also asserted that though the surveyor appointed by them submitted his report supporting the claim, yet the report was not accepted as it was not prepared in terms of policy of insurance. It is denied that there was any negligence and deficiency in service on their part.

        The O.P. No.2, in their written objection, has admitted the fact that the complainant was a carrying contractor under them and they recovered Rs.4,64,280/- from him towards Complete damage of 12000 ltrs of HSD  in transit due to accident which occurred on 23.12.10 at Nongpoh, Meghalaya. 

4.        In support of the claim, the complainant has examined himself as P.W. 1 and has proved and exhibited the following documents:-
    Exhibit 1:- Letter dated 19.01.11 addressed to the Divisional Manager, NIC, 
    Exhibit 2:- Policy of Insurance,
    Exhibit 3:- Letter dated 04.01.11 addressed to the Deputy  Manager (Operation), IOC Ltd. 
    Exhibit 4:- Copy of information dated 23.12.10 given to the in-charge, Nongpoh P.S.,
    Exhibit 5:- Letter dated 24.12.10 addressed to the Senior Terminal Manager, IOC Ltd.   

5.        On the other hand, one Sri Joydeep Ghosh, Administrative Officer of the O.P. no.1, has examined himself  as O.P.W.1 and has proved and exhibited the following documents:
        Exhibit A:- MVI Report,
        Exhibit B:- Report of the Surveyor.
        No evidence either oral or documentary has been adduced on behalf of the O.P. no.2. 
                FINDINGS:-
6.        The points that would arise for consideration in this case are:-
        (i) Whether the O.P. no.1 Committed illegality by not settling the claim of the Complainant with regard to the loss of 12000 ltrs of HSD in transit due to accident;
        (ii) Whether the O.P. No.1 was guilty of negligence of deficiency in rendering  service. If so, Whether the Complainant is liable to the compensated by the O.P. No. 1.

7.        We have already heard the arguments advanced by the learned counsel appearing for the parties. Also perused the pleadings, documents on record, evidence adduced by the parties and the memorandum of written argument filed by the complainant meticulously.
    
8.        There is no dispute on the fact that the complainant was a carrying contractor under the O.P. No.2, Indian Oil corporation Ltd and he was having a Oil tanker truck bearing registration no- AS 25 C 6777.  He took two policies of insurance from the O.P. No.1- one was the apprehensive policy for damage of the vehicle and another was for the loss of goods in transit covering the period from 22/09/10 to 21/09/11 for the sum insured of Rs.4,50,000/-. It is also not in dispute that on 23.12.10, while the said oil tanker loaded with 12000 ltrs of HSD was proceeding from Gwahati to Dharmanagar, it met with an accident at Nongpoh, Meghalaya. The oil tanker fell into the field by the side of the main road and turned turtled. The entire HSD stored in the oil tanker drained away and spread on the field. The O.P. No.2, after conducting filed enquiry, recovered the cost of 12000 ltrs of HSD amounting to Rs.4,64,280/- from the complainant. It is alleged by the complainant that though he reported the fact of accident and about the complete loss of goods in transit to the O.P. Insurance company in time on 24.12.10, yet his claim has not been settled without any justifiable cause though he has been paid compensation towards the damage of the oil tanker.

9.        On the contrary, it is plea of the O.P. Insurance company that the accident was not intimated to them in time and no step was taken for timely recovery of the damaged oil storage tanker. Further that, the claim was not entertainable as the accident was the result of brake failure of the vehicle.
    
10.        The plea taken by the O.P. Insurance company is not acceptable to us for the reason that it has come out from the cross examination of the O.P.W. 1, Sri Joydeep Ghosh, Administrative officer of the O.P. No.1 that the complainant had already paid compensation for the damage suffered by the oil tanker. Admittedly, there was complete loss of goods in transit due to same accident. If the complainant was compensated by the O.P. No.1 forwards the damage of the oil tanker basing on the intimation of the accident given by him, then why not in the case of loss of goods in transit when it was under the coverage of the insurance. Therefore, we are not in agreement with the O.P. No.1 that the intimation of the accident was not given to them in time. 

11.        From the report of the M.V. Inspector (Exhibit 7) it appears that the accident occurred as the brake of the vehicle had gone out of order. If so, it can not be said that the accident was the result of negligent driving of the vehicle by its driver. The accident happened due to sudden mechanical disorder of the vehicle which was beyond the control of the driver. We are at a loss to understand how the question of violation of the terms of policy of insurance with regards to the payment of compensation towards the loss of goods in transit could arise when the complainant  was compensated by the O.P. No.1 for the damage of the vehicle relying on the same terms and conditions of policy of insurance. The surveyor appointed by the O.P. Insurance Company  by his report dated 11.11.10 (Exhibit-B), which has been proved by the O.P.W.1, has fully supported the claim of the complainant as to the loss of goods in transit. The surveyor in his report explained the reasons for recovery of Rs.4,64,280/- as cost of loss of HSD from the complainant though in the challan cum invoice dated 23.12.10 the value of the HSD was shown as Rs.388009.84. Finally, the surveyor assessed the loss of the goods in transit as Rs.4,50,000/- since the limit of liability per event as per policy was up to that extent. It is also seen that the O.P. No.2 by its certificate dated 17.09.11 (Exhibit-8) has confirmed that they had recovered an amount of Rs.4,64,280/- from the complainant towards short delivery of 12000 ltrs of HSD due to the accident. 

12.        The complainant, in the complaint as well as in his evidence as P.W. 1, explained the reason for discrepancy in the value of lost HSD in transit between the invoice cum challan and the recovery certificate issued by the O.P. No.2 and this has not been disputed by the O.P. No.1 in their pleading. So, it hardly requires any further discussions.

13.        It appears that the accident occurred on 23.12.10 and the complainant reported the fact of the accident to the O.P. No.1 by a letter dated 24.12.10 which appears to have been received by the office of the O.P. No.1 on the same day. Therefore, it can not be said that there was inordinate delay on the part of the complainant in reporting the accident.

14.        By the police report and the report of the surveyor, the complete HSD in transit carried by the oil tanker owned by the complainant has been well proved. Though the O.P.W. 1 in his evidence has stated that the claim of the complainant for reimbursement of the cost of lost HSD in transit has been repudiated by the O.P. No.1, yet there is no document (letter of repudiation) to substantiate their plea. In our opinion, non-settlement of the claim for a longer period without any justifiable cause amounts to negligence and deficiency in service.

15.        Admittedly, as per policy of insurance(Exhibit-2), the limit of liability per event was Rs.4,50,000/-. Though an amount of   Rs.4,64,280/- was recovered from the complainant by the O.P. No.2, Indian Oil Corporation Ltd. towards the complete loss of HSD  in transit due to accident, yet he is entitled to reimbursed Rs.4,50,000/- from O.P. No.1 being the limit of liability for the sum insured.

16.        In the result, therefore, the complaint U/S 12 of the Act filed by the complainant is allowed on contest. The O.P. No.1, National Insurance Co. Ltd. is directed to pay Rs.4,50,000/-(Rupees  Four Lacs Fifty Thousand) to the complainant  being the price of 12000 ltrs of HSD lost in transit with interest @ 9% P.A. from the date of presentation of the complaint before this Forum on 11.09.12 till the payment is made. The O.P. No.1 is further directed to pay Rs.5000/-(Rupees Five Thousand) to the complainant as compensation for mental agony and harassment with Rs.2000/-(Rupees Two Thousand) as the costs of litigation.

17.                   A N N O U N C E D

 

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

 
SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA    SRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA