Brief fact of the case is that, the Complainant had taken a Carrier's Legal liability Policy for the Oil tanker bearing Regd. No. OR-17-7751 for the period from Dt.08/07/1996 to Dt.07/07/1997 for a sum of Rs.2,80,000/-(Rupees two lakh eighty thousand)only. Which was financed by M/s Escorts Finance Limited. The said Tanker was insured against accident with the Oriental Insurance Company, Bargarh, the damage and loss to the vehicle had already been made good by the Oriental Insurance Company. But only the Tanker Transporting product of the customer is insured by the Complainant with the Opposite Party No.4(four) namely National Insurance Company, Bargarh vide Policy No.153403/9700001/ 96-97. After due negotiation between the parties, the premium was set as consideration for such insurance for the period from Dt.08/07/1996 to Dt.07/07/1997 and accordingly after payment of premium of Rs.3,611/-(Rupees three thousand six hundred eleven)only + S.T. Rs.181/-(Rupees one hundred eighty one)only = Rs.3,792/-(Rupees three thousand seven hundred ninety two)only, Policy bearing No. 153403/9700001/96-97 was issued by the Opposite Party No.4(four).
Under the said Policy of insurance, subject to the terms, exclusions exceptions and condition of the Policy of insurance, the company agree to indemnify the insured against legal liability for actual loss or damages to the goods in vehicle No. OR-17-7751 caused by fire or accident while being transported in the said vehicle.
On Dt.22/04/1997, the said tanker while carrying 12(twelve) K.L. of Motor Spirit from Vizag to Bharat Petroleum Corporation Ltd., Sambalpur met with an accident in between Raigada to Kirada and the Motor Spirit carried in the tank was damaged. As a result 11,295 (eleven thousand two hundred ninety five) liters of Motor Spirit leaked out from the tank which cost to the tune of Rs. 2,66,562/-(Rupees two lakh sixty six thousand five hundred sixty two)only and the balanced 705 (seven hundred five) liters of Motor Spirit could be saved which was delivered to Bharat Petrolium, Sambalpur. But the M/s Bharat Petroleum Corporation Limited issued a demand letter on Dt.08/05/1997 in favour of the Complainant to submit a demand draft of Rs.2,66,652/-(Rupees two lakh sixty six thousand six hundred fifty two)only towards the cost of product loss due to the said accident.
Soon after the accident, the Complainant informed to the Opposite Party No.4(four) and on receipt of the intimation from the Complainant, the surveyor H.N. Agrawal conducted the spot survey on the next date of accident i.e. on Dt.23/04/1997. The surveyor instead of working on the basis of field visit and verifying the genuine loss and without referring the demand letter of Bharat Petroleum Corporation, Sambalpur, certificate issued by the A.S.I. of Police, Seshikhal Outpost arbitrarily and intentionally wanted to show a loss of 4063 (four thousand sixty three) liter of Motor Spirit. For this intentional mischief of the surveyor, the Complainant informed the Branch Manager, Bargarh, Due to this reason the surveyor lodged the false report against the Complainant in the Police Station which was ultimately registered as G.R. Case No. 661/97 in the Court of S.D.J.M., Sambalpur. The Complainant submitted his claim application on Dt.19/05/1997 in the prescribed form before Opposite Party No.4(four) enclosing all the papers and documents claiming the estimated loss of Rs.2,66,562/-(Rupees two lakh sixty six thousand five hundred sixty two)only, but the Opposite Parties did not settle the claim of the Complainant and on the contrary, the Opposite Party No.4(four) intimated on Dt.24/07/1998 to Mr. Radheshyam Chinmanka, Advocate for the Complainant in response to his legal notice Dt.29/06/1998 to wait till the adjudication of the G.R. Case. Since a police case has been registered by their Surveyor Mr. H.N. Agrawal and it is subjudice before the S.D.J.M., Sambalpur. Finally after the G.R. Case was disposed off infavour of the Complainant, he submitted the Certified Copy of judgment before the Opposite Party No.4(four) requesting for early settlement of his claim but the Opposite Party Company wanted various documents concerning the claim of the Complainant. Accordingly, the Complainant submitted all the relevant papers by Regd. Post with A.D. but in vain.
Due to non payment of the loan in time, the financer of the said vehicle i.e. M/s Escort Finance Limited seized the tanker and sold it at under value rate of Rs.3,75,000/-(Rupees three lakh seventy five thousand)only instead of Rs.6,00,000/-(Rupees six lakh)only. This fact was also intimated to the Opposite Party through letter Dt.19/02/1998 and Dt.20/05/1998.
The Complainant further submitted that in spite of repeated legal notice and representations, the Opposite Parties neither settled the claim nor reply to the Advocate's notice which amounts to gross deficiency in service on part of them.
Being aggrieved, he filed the present case with a prayer to direct the Opposite Parties to
Pay Rs.2,62,562/-(Rupees two lakh sixty two thousand five hundred sixty two)only for the loss of Motor Spirit due to accident of the insured vehicle and its goods on Dt.22/04/1996.
To pay interest @ 18%(eighteen percent) per annum from the date of its loss till its payment.
To pay Rs.2,25,000/-,(Rupees two lakh twenty five thousand)only, the difference of the amount of the valued insured tanker.
To pay Rs.3,00,000/-(Rupees three lakh)only towards compensation for physical harassment and mental agony.
To pay Rs.50,000/-(Rupees fifty thousand)only towards litigation expenses.
The Complainant in support of his case has filed the xerox copy of following documents:-
Copy of carrier's legal liability policy bearing No.153403/970000/96-97 and agreement.
Letter Dt.19/05/1997 of Complainant to the B.M. National Insurance Company Ltd., Bargarh.
Way bill of 12 (twelve) K.L. Motor Spirit bearing Sl No. 623421.
Certificate Dt.24/04/1997 issued by A.S.I. Policy of Sashikhal Ouppost concerning accident.
Certificate Dt.24/04/1997 issued by A.S.I. Policy of Sashikhal Outpost regarding loss of Original Driving License of Driver.
Copy of Receipt Dt.08/05/1997 showing receive of 705 (seven hundred five) litres of Motor Spirit by M/s Bharat Petroleum Ltd., Sambalpur along with Demand towards the cost of product loss of Rs.2,66,652/-(Rupees two lakh sixty six thousand six hundred fifty two)only.
Reminder given by the insured on Dt.13/11/1997 to Opposite Party No.4(four).
Copy of Pleader Notice dated 29/06/1998 to the Opposite Party No.4(four).
Copy of F.I.R. Final form, Deposition of witness and judgment regarding G.R. Case No.661/1997.
Copy of Legal Notice Dt.26/08/2011 to the Opposite Party No.4(four).
Copy of Legal Notice Dt.21/0382012 to the Opposite Party No.4(four).
Copy of Reply Letter Dt.24/07/1998 by the Opposite Party No.4(four) in response to Legal Notice Dt.29/06/1998.
Copy of letter Dt.11/08/2012 regarding submission of document to the Opposite Party No.4(four).
Xerox copy of the accident claim through Policy No.345601/101/31/98/04 relating to Tanker bearing Regd No. OR-17-7751 made good by the Oriental Insurance Company, Bargarh in response to claim of Ashish Kumar Agrawal.
Copy of Policy issued by Oriental Insurance Co. Ltd. In respect of Tanker bearing Regd. No. OR-17-7751.
Driving License of Driver Manjur Khan bearing No. WB-01-F-26236, valid up to Dt.30/10/1999.
Copy of claim form submitted to National Insurance Company Ltd. by the insured regarding loss of transporting product in accident relating to Policy No. 153403/ 9700001/96-97.
The Complainant also filed written argument along with the decision of Hon'ble Supreme Court and National Commission, New Delhi.
Notice were duly served on the Opposite Parties. SR back from them and the case was posted for appearance and version by Opposite Parties. All the Opposite Parties appeared on Dt.12/11/2012 but could not file version, therefore all the Opposite Parties have set ex-parte on Dt.22/01/2013. On Dt. 06/02/2013, only the Opposite Party No.3(three) filed a set aside petition which was allowed by the Forum on Dt.11/02/2013 and posted for filing of written version. So accordingly on Dt.03/04/2013, the Opposite Party No.3(three) filed version and controverted the claim of the Complainant on different grounds. The grounds taken by the Opposite Party No.3(three) is on the Maintainability of the case challenging the status of the Complainant Under Section-2(1)(d) of the Consumer Protection Act-1986 besides contending the accident to be false, artificial. Man made and concocted by the Complainant in connivance with the Police personnel. While the Opposite Parties admitting the issue of Insurance Policy further submitted that since the driver of the Tanker had no valid Driving License, so the Opposite Party rightly repudiated the claim with based reason.
During the course of argument, the Opposite Party No.3(three) submitted that, it is the fundamental principle that for the loss, the Insurance Company is liable because the insured had paid the premium. The Opposite Party No.3(three) also stress his argument on the following points:-
Maintainability:- Since the Complainant is a firm and the transaction carried by him is for commercial purpose, so the Complainant is not a consumer under Consumer Protection Act-1986.
Repudiation of claim:- Since the Opposite Parties have committed no deficiency of service, so they have rightly repudiated the claim after application of proper Judicial Mind.
Basis of claim:- Since the accident is false, artificial, man made and concocted by the connivance with the police personal, further leakage of 11, 295(eleven thousand two hundred ninety five) liter of Motor Spirit at midnight in a lonely place is also man made by entering a false police diary that investigation, since No. F.I.R. was lodged and only a certificate was issued by police, so, the claim of Complainant is having no basis.
Genuineness of documents:-Since all the documents are forged one, and unless the original are produced, the genuineness of document could not be come out. As because the documents are prepared for illegal gain, the Opposite Party rightly repudiated the claim with based reasons and prayed before the forum for dismissal of complaint case..
Heard learned counsel for both the Parties and perused the written argument filed by the Complainant and the materials available on record.
The learned counsel for the Opposite Party No.3(three) raised objection on the Maintainability of the case challenging the status of the Complainant that he is not a consumer and since the Complainant is a firm and the transaction carried by him is for commercial purpose, so the case not maintainable.
With regard to this issue, there is no dispute with regards to the policy filed by the Complainant. After perusal of the policy, we found that, the policy is a carrier's legal liability policy taken by an individual i.e. in the name of Complainant but not by a internship firm. In this case the agreement was entered in to and the consideration i.e. Premium and S.T. was paid by the Complainant. Accordingly to the Consumer Protection Act-1986, if service is to be rendered at price, then it comes under the definition of consumer, since the Complainant being the owner of the carrier business, he only concerned with his earning from Transport Charges and that is his earning.
On this point the Complainant rely on the decision of Hon'ble Supreme Court in case of Laxmi Engineering Work Vrs P.S.G Industries Institute reported in AIR 1995 page 1428 and also in 1995(2) CPR II, where the Hon'ble Court has held that “A person who buys goods and use them himself exclusively for the purpose of earning his livelihood by means of self employment is within the definition of expression consumer”.
Another decision of Hon'ble National Commission reported in 2005 (I) C.P.J-26 (N.C), Harsolia Motors Vrs National Insurance Company where it was held that “Petitioner has to be treated as a consumer qua insurance company providing insurance cover for his vehicle even if it was being used for commercial purpose. Even if the vehicle is being used for commercial purpose, the vehicle had been insured against accident and the insurance cover by it self can not be directly related to the generation of profits and hence the insurance company having accepted to insured the vehicle can not be allowed to repudiate the claim on the ground that it was being used for commercial purpose. The purpose of insurance is to indemnify the loss of insured. Loss can not be equated with profit. Hence dispute of insurance is different from dispute for commercial purpose.
It is also the admitted fact, that the Opposite Party has issued the policy for the goods in question and for that, the Complainant paid the premium and S.T. before the company and obtained a valid insurance policy which covers the period of liability from Dt.08/07/1996 to Dt.07/07/1997. The accident took place on Dt.22/04/1997. As because there is a valid insurance coverage and out of the accident the goods losted, the Complainant's claim of loss has to be met by the Opposite Parties. So, the Complaint petition a primafacie case. On the ground of limitation, the Complainant has filed an application U/s 24-A of Consumer Protection Act-1986 showing sufficient cause for not filing the case within time. So this Forum condone the delay and admit the complaint case. So the case is maintainable under the Consumer Protection Act-1986.
Thus the Opposite Party's contention is not sustainable in this regard.
The Opposite Party No.3(three) in his version has submitted that since accident is false, artificial, man made and concocted and the documents filed by the Complainant are forged one, therefore the Opposite Party rightly repudiated the claim. Accident means that any event which happens without any cause also an unfortunate event causing physical harm or damage caused by some unintentional act. Thus, the event which occurred in the present case is merely by chance and is covered by the word accident. A word is to be given its normal meaning by which it is understood by a common man. Thus the repudiation of the claim of the claimant on this ground is totally baseless devoid of any reasoning which has been adopted by the insurance company to cause harassment to the Complainant.
But after perusal of the record, we found that, the Complainant has filed the certificate issued by the A.S.I. Police of Sashikhal Outpost discloses clearly the date of accident and loss of Motor Spirit while tanker bearing Regd. No..OR-17-7751 proceeded to Sambalpur. The Demand letter Dt.08/05/1997 clearly shows the receipt of 705 liters of Motor Spirit and demanding Rs.2,66,652/-(Rupees two lakh sixty six thousand six hundred fifty two)only towards the cost of product loss due to accident. That apart the Complainant has filed the copy of the accident claim and cheque regarding Policy No.345601/ 101/ 31/ 98/ 04 relating to Tanker bearing Regd. No. OR-17-7751 showing that loss arising due to accident of this tanker has been made good by the Oriental Insurance Company Ltd, Bargarh in response to claim of Ashis Agrawal. The Driving License of Driver Majur Khan bearing No. WB-01-F-26236 is also valid up to Dt.30/10/1999. The letter Dt.24/07/1998 of Opposite Party No.4(four) to the Advocate of the Complainant also clearly shows that he has full knowledge about the accident and in that letter Opposite Party No.4(four) clearly stated that, after only the Judgment in the said case the exact quantum of loss could know and alter that they will dispose with the matter. Non-furnishing of F.I.R. will not mean that no accident has taken place. It is normal practice for the insurance company that it issue quarries to the claimant to elicit information on certain facts which are required for proof of a claim, but in the present case the facts on record do not reveal that the insurance company even asked the Complainant as to the place where the accident took place and whether any first information report was lodged. No advance presumption can be drawn against the Complainant on the basis of absence of these facts from the Complainant as the insurance company has also failed in its duty to elicit these information. This responsibility has not been discharged by the insurance company in the present case it can not take advantage out of its own mistakes in order to deny the benefits of the policy to the Complainant. All the above documents clearly show the date of accident and place of accident and the vehicle No. OR-17-7751. In the instant case the Opposite Parties have failed to prove what has been alleged in the version. We also not found any surveyor report and repudiation letter in the record. There is also no documents filed by the Opposite Party. So no presumption can be done in the absence of any cogent and convincing evidence either oral or documentary to prove contrary. So the Opposite Parties only tried to make allegation but the same is not tendered in evidence. We also perused the cheque bearing No.559697 of Oriental Insurance Company drawn on Dt. 05/01/1998 in favour of Asish Kumar Agrawal who have already settled the accident claim relating to tanker bearing Policy No. 31/97/2212. Here onus lies on the Opposite Party No3(three) to prove that the documents filed by the Complainant are forged one. So now the allegation of forged documents and accident is man made, false artificial is unjustified thus Opposite Parties contention is not sustainable in this regard.
Admittedly, the insured had paid premium in this policy and as such and as per the terms of the policy the Opposite Parties are bound to pay the insured amount and refusal to make the payment amount to deficiency in service. Since the Opposite Parties without proper verification and without any valid ground refused to claim and as such they are also liable to pay the compensation for causing mental agony to the Complainant.
Another issue that whether the Complainant is eligible to get his claimed amount towards loss of Motor Spirit transporting in the Tanker ?
From the record it appears that, the Opposite Party No.3(three) has issued an Carrier's Legal Liability Policy in favour of Sri Asish Kumar Agrawal, the Proprietor of Abhisekh Roadways.
Accordingly to the Policy of insurance, if during the carriage of the goods by the insured as a carrier, any damage was caused to the goods due to any accident and any legal liability is fastened on the insured as a carrier such liability is covered under the Carrier's Legal Liability Policy. Since at the time of accident, the insured was carrying the goods in the vehicle in question as a carrier and therefore, the claim of the insured is admissible under the Carrier Legal Liability Policy. In this case since the insured was the carrier and as per the term of the Policy of insurance obtained by the insured, the legal liability as a carrier had arisen.
Since the vehicle met with an accident on Dt.22/04/1997 while it was carrying Motor Spirit and the carrier of the good was himself the insured and since the Carrier's Legal Liability Policy obtained by the insured Asish Kumar Agrawal covered the Legal Liability of the insured as a carrier arising out of the loss of Motor Spirit being transported and since the policy of insurance covered the liability of the owner of the vehicle, the insurance company is liable to indemnify the loss.
The further issue that whether the Complainant is eligible to get his claimed differential amount of the valued insured tanker ?
Here in the instant case the insurance policy has been obtained from the Opposite Parties's against losses to the goods/product during carriage within the limit of estimated loss of Rs. 2,80,000/-(Rupees two lakh eighty thousand)only and the Opposite Parties are not liable for any loss or transaction between the Complainant and the Financer of the tanker for non payment of loan by the Complainant and its selling under valued by the Financer. Hence the Opposite Parties are only liable on the terms and condition of policy. Besides the M/s Escort Finance Ltd., the Financer of the alleged tanker bearing No. OR-17-7751 is not made party by the Complainant in this case and any order passed against him will be prejudicial to its interest.
Therefore, it is held that, the Respondent was at fault in not settling the claim of the Complainant. Hence Ordered:-
- O R D E R -
The Opposite Parties are directed, jointly and severally, to pay Rs.2,66,562/-(Rupees two lakh sixty six thousand five hundred sixty two)only to the Complainant, for the loss of Motor Spirit due to accident of the insured vehicle with simple interest @ 9%(nine percent) per annum from the date of filing of this complaint case i.e. 28/08/2012 along with compensation of Rs. 10,000/-(Rupees ten thousand)only towards harassment and mental agony and litigation expenses, within thirty days from the date of Order, failing which the total awarded amount shall carry 18%(eighteen percent) interest per annum till the date of actual payment.
The Case is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree,
(Miss Rajlaxmi Pattnayak) (Smt. Anjali Behera) ( Sri Pradeep Kumar Dash)
P r e s i d e n t. M e m b e r. M e m b e r.
