JUDGEMENT

          Complainant by filing this complaint has submitted that complainant is a proprietorship concern carrying transport business having one heavy goods carrying vehicle bearing registration no. WB-11A-9947 having permit to travel Jharkhand, West Bengal, Assam, Bihar, Orissa, Uttarpradesh issued by the Regional Transport Authority.

          To secure safety and secutiry of the vehicle the complainant obtained one insurance policy from the op no.2 on payment of premium bearing policy no.150100/31/08/6300034076, for the period from 17.03.2009 to 16.03.2010 and sum assured was Rs.10,00,000/-.  Complainant also obtained Carrier Legal Liability policy from the op no.2 on payment of premium for safety and security of goods/products or the vehicle bearing policy no. 150100/46/09/9700004747 for the period from 25.11.2009 to 24.11.2010, limit of liability per event of Rs.8,00,000/- with carrying capacity of 16 metric tons in respect of the present vehicle.

          During the policy period the complainant obtained the responsibility to transport Furnace Oil Regular (in Mtns) of 15730 Metric Tons of Indian Oil Corporation Ltd. from Haldia Refinery, Haldia, Midnapur to Jindal Steel & Power Limited, Barbil, Orissa on 29.03.2010 and total value of the product was Rs.4,94,710/-.  During the transportation from Haldia the said vehicle bearing No.WB-11A-9947 met with an accident on 29.03.2010 near Bhawanipur Police Statio Brojolal Chak BDO Office cannel when the said tanker to overtake one trolley contacted with road side culvert for which the delivery pipe of the tanker has broken and the entire oil came out from the tanker on road.  The driver, khalasi and road side walkers of the area did not sustain any injury from the accident though the vehicle sustained damages.

          After receiving information about such accident the complainant Matelab Khan immediately lodged one complaint before the Bhawanipur Police Station, Purba Medinipure on 30.03.2010 which has been registered as Bhawanipur Police Station M A Case No. 04/2010 dated 30.03.2010.  On the same date also intimated such incident to the op no.2 with the request to appoint one surveyor for necessary investigation and survey and to provide one claim form for submission of claim.  Accordingly ops appointed one surveyor namely M/s Associated Services at P.O. & P.S. Durgachalk, Haldia, Purba Medinipur for necessary survey and investigation and also for assessment of loss and said surveyor after investigation and survey has submitted final report dated 27.04.2010 before the insurance company which has been received on 06.08.2010 by the insurance company and the said surveyor in its report dated 27.04.2010 has categorically stated “ according to our survey/inspection and verification in all aspects it was revealed that the loss quantity of cargo due to the accident found to have been genuine”. 

          But in respect of submission of survey report by the surveyor the ops insurance company till date did not settle the claim but the reasons best known to them and having no other alternative the complainant sent one letter dated 13.02.2012 to the op no.2 which was received by the op on 15.02.2012 for immediate settlement of claim and it is to be mentioned that as per agreement with the Indian Oil Corporation Ltd. due to such accident the entire loss of Oil compelled the complainant to pay the cost/value of such oil to the Indian Oil Corporation Ltd. for an amount of Rs.4,94,710/- and further for not taking any proper step and not for settling the matter, op has committed gross harassment, unfair trade practice and for which the complainant has prayed for refund of the claim amount including interest and compensation.

          On the other hand op Insurance Company by filing written statement submitted that the claim had been repudiated on 16.03.2011 what had been duly received by the complainant and it is specifically mentioned in that letter on 16.03.2011 to that effect “ as you know that liability under the above policy is subject to the condition that the vehicle being damaged at the same time and claim thereof being admitted under the Motor Policy.  Since no claim has been admitted under the relevant Motor Policy, the above loss of cargo under the above Carrier’s Legal Liability cannot be entertained”.  In view of the above circumstances complainant did not comply this policy condition and also did not submit any claim in respect of the damage of the vehicle for which the claim was repudiated on 16.03.2011 and that was accepted by the op for which the present complaint has to be dismissed and the entire claim is not maintainable.

                                                     Decision with reasons

          After hearing the Ld. Lawyers and also argument, considering the repudiation it is undisputed fact that on 16.03.2011 op sent letter of repudiation reporting the fact that the vehicle if damaged at the same time claim thereof being admitted under the Motor Policy and since no claim has been admitted under the relevant Motor Policy, the above loss of cargo under the above Carrier’s Legal Liability cannot be entertained and considering that letter, it is clear that complainant received the said letter and suppressed the fact that the repudiation was made on the ground that complainant himself reported to the op that the vehicle was repaired at his own cost.  But he did not pray for any damage in respect of the vehicle.

          But fact remains that the policy which was purchased by the complainant in respect of the vehicle was under the Motor Policy and if the damage of the vehicle is not claimed in that case any article or goods contained in the said vehicle cannot be taken into account and loss of any content or goods for such accident of the vehicle cannot be entertained and no doubt in this case complainant has failed to prove that as per Motor Policy, he submitted any document or material that the vehicle was damaged for which the article i.e. Furnace Oil came out from the tanker on road and he was compelled to pay the said amount to the Indian Oil Corporation.

          Another factor is that from the report of the surveyor it is found that due to accident as per version of the complainant all connected flange/outlet delivery pipe (with box) of each compartment of the tanker vehicle No.WB-11A-9947 got cracked/broken and the total quantity of loaded Furnace Oil got drained out from each compartment through all breakage connected flange/outlet delivery pipe of the said tanker vehicle and that accident took place on 29.03.2010 at about 06:30 P.M..  But truth is that same was not reported to the police by the driver or the Khalahsi etc.  But that was reported to police station by the complainant on 30.03.2010 at about 20:15 hours.  But peculiarity is that complainant has not submitted any document to show that vehicle was damaged and at the same time the surveyor did not find any damaged vehicle at the spot or at any place and there is no police report also that the said damaged vehicle was seized by police or no claim was submitted by the complainant to the op for damaged vehicle and as per policy condition, it is must that in case of any loss of content/article in the said vehicle, the claim must be informed along with damaged vehicle which is mandatory in respect of the Carrier’s Legal Liability Policy and when complainant has not prayed for any claim or did not lodge any claim in respect of his own damage of the vehicle then release of any damage claim, in respect of content of the said vehicle is not admissible.  Further considering the conditions of the policy, it is found that loss incurred in respect of the goods arising out of the same incident cannot be considered separately and for which the claim was repudiated positively on the right ground and as per terms of the policy conditions fact remains complainant has suppressed that fact in the present complaint.

          Truth is that complainant did not lodge any claim for his own damaged vehicle.  If damage of the vehicle is not proved, for loss of content if the said vehicle cannot be considered by the Insurance Company and that is settled principle of law as per terms and conditions of the policy.  So considering that fact, it is clear that complainant has failed to search out and to prove that he lodged complaint for damage of the vehicle and Insurance Company got such chance for inspecting the said vehicle and to ascertain that actually the said vehicle faced accident and due to accident the said tanker of the vehicle was completely damaged and broken and truth is that during inspection also complainant failed to show that damaged vehicle to the surveyor for which invariably rightly the claim was repudiated and there was no deficiency or negligence on the part of the Insurance Company for which we have gathered that the present complaint bears no merit in the eye of law and at the same time the complainant’s claim to the effect that claim was not settled is completely false.  But truth is that on 16.03.2011 the claim was repudiated and it was within the knowledge of complainant and complainant received that letter and in that letter it is specifically mentioned for what reason the claim was repudiated.

          Moreover after considering the argument of the Ld. Lawyer for the complainant, we have gathered that complainant’s Ld. Lawyer has tried to convince the loss of the contents of the tanker and the damage of the tanker but that is the condition of clause of the policy.  But as per conditions of the policy the insured shall have to show that the tanker sustained damaged due to accident and for which the content or article or oil was drained out and so in respect of such claim it must be proved at first that the tanker in question sustained that has been damaged for which the oil were drained out.  But in this case complainant has failed to prove by any cogent materials that tanker were completely broken.  There is no such observation of Motor Vehicle Act in respect of the complainant has filed before the police.  Not only that complainant failed to show the surveyor actual position of the said tanker and when complainant has not prayed for any claim for damages of his own vehicle.

          Then invariably as per policy condition, complainant cannot get any damage for the content which was in the said tanker and in view of the above findings, we are convinced that the repudiation was rightly made by the op.  But op has searched out a false story of the complainant that his claim has not been properly settled and that is proved false story and it is also proved after consulting the record that this complaint was filed on 16.04.2013 whereas the repudiation was made on 16.03.2011 and considering that fact it is found that this complaint  was filed after expiry of two years from the date of receipt of the said repudiation dated 16.03.2011 and for which apparently it is found that this complaint is barred by limitation and at the time of filing this no application u/s 27 of C.P. Act for condoning delay also.  But we are not so much anxious about delay, but we have considered, particular materials which was the cause of repudiation and after applying our judicial mind and also considering the policy condition and the present claim of the complainant before the Insurance Company we are convinced that repudiation was rightly done and fact remains that complainant was bound by the policy condition but claim of damages in respect of his own vehicle must be filed when vehicle faced accident and when it was not made in respect of loss of the tanker of the vehicle the claim was not settled and closed and invariably for that reason that was repudiated.  So, there was no negligence and deficiency on the part of the op.

          Thus the complaint fails.

          Hence, it is

                                                              ORDERED

          That the complaint be and the same is dismissed on contest against the ops without any cost.