Haryana

Ambala

CC/73/2015

Deep Kumar - Complainant(s)

Versus

NIA.CO - Opp.Party(s)

R.P.Vig

16 Oct 2017

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                        Complaint No. 73 of 2015.

                                                        Date of instt:  19.03.2015.

                                                        Date of decision: 16.10.2017

                                        

Deep Kumar aged 43 years son of Sh.Bishan Dass Prop. M/s Jai Parwati Enterprises,12-A Golden Park, Near Ashok Nagar, Ambala Cantt.

...Complainant.

                                         Versus

The New India Assurance Company Limited Branch Office Code 353501, 5406 Cross Road No.3 Punjabi Mohalla, Ambala Cantt. through its Branch Manager.

                                                                             …Opposite party.

Complaint under section 12 of

 

BEFORE:  SH. DINA NATH ARORA, PRESIDENT.

                 SH.PUSHPENDER KUMAR, MEMBER.  

                 MS. ANAMIKA GUPTA, MEMBER                

 

Present: -  Sh. R.P.Vig, Adv. for complainant.

                Sh. Niklesh Bhagi, Adv. for OP.

 

ORDER:

 

                The facts of the present case are that the complainant is proprietor of M/s Jai Parwati Enterprises and he purchased one HTV vehicle bearing registration No.HR37B-3193 in the year 2005. He engaged services of driver Satnam Singh to drive the vehicle to load/unload the kerosene oil etc. for delivery to the destination places. He got the said vehicle insured (Carrier’s Liability Insurance)  with Op vide policy No.35350136141100000021 having validity from 05.07.2014 to 04.07.2015 by paying premium to the tune of Rs.10980/-.  The policy was covering the risk such as Damage to cargo directly caused by fire, explosion or accident to the carrying vehicle; Carrier’s liability for cargo; Cargo salvage, transshipment, emergency storage costs; Financial loss due to the lost fright in respect of the damaged part of the cargo; Legal and other costs, incurred in the litigation against the claimants; Costs of average adjusters; Breakage due to improper handling and Flood or water damage or damage by other cargo. On 14.10.2014 Indian Oil Corporation got loaded 9000 ltr of Kerosene oil from Ambala Cantt. to Leh (Jammu Kashmir State). The vehicle left Ambala on 14.10.2014 and on 17.10.2014 it overturned resulting into accident and regarding this an FIR No.122 dated 18.10.2014 was registered in police station 279 IPC on 28.10.2014.  After releasing the vehicle as per order of court, the vehicle was towed to the destination of Leh but the insurance company had paid only Rs.2500/- for toeing the vehicle. After the tanker was taken to the destination the tanker got unloaded only 4719 ltrs. kerosene oil only against 9000 ltrs oil. The Indian Oil after working out the loss of 4281 ltrs. Vide invoice No.DT/97473564/ 14.10.2014 deducted Rs.2,65,316/-from the complainant. The complainant lodged the claim for Rs.2,65,316/-with the insurance company as per terms and conditions of the policy but the OPs have only assessed the loss to the tune of Rs.56004/- against the actual amount which is not acceptable.  The act and conduct of the OPs is clear cut deficiency in service as they have refused to honour the claim amount of Rs.2,65,316/-.

2.             On notice, OP appeared and contested the complaint by filing its reply wherein it has taken many preliminary objections such as jurisdiction, estoppal, cause of action, maintainability and complainant does not fall within the ambit of consumer etc. it has been subjected that on 14.10.2014 the insured truck was loaded with 9000 ltrs. Kerosene oil value of Rs.1,28,253.24 vide consignment No.41772876 dated 14.10.2014 with an instructions to deliver the same at Leh Depot of Indian Oil Co. The above said truck met with an accident on 15.10.2014 and the kerosene oil leaked and 4281 ltrs oil was found short. The OP had appointed its surveyor who after inspection submitted his report and found loss of kerosene oil of 4281 @ 14.25/- = Rs.61004/- and after necessary deduction of excess clause of Rs.5,000/- net loss was assessed at Rs.56004/- and the insurance company has already passed the claim as per transfer voucher/ consignment note.  The insurance company has rightly given the amount of Rs.2500/- as per the policy norms instead of claimed amount of Rs.36000/- for toeing the vehicle. The claim of Rs.56004/- has already been passed on the basis of actual loss and the OP has no concern with the contract executed between M/s Jai Parvati
Enterprises and Indian Oil Corporation. The total value of 9000 ltrs is about Rs.128253/- mentioned in the transfer note dated 14.10.2014, so question of deduction of Rs.2,65,314/- does not arise at all and the insurance company is not liable to indemnify the same. The claim of Rs.56004/- has been approved on the basis of report submitted by IRDA approved surveyor and  the company is still ready to make the approved/passed payment of Rs.56004/- on the basis of actual cost of oil mentioned in consignment note/transfer voucher after deduction of excess clause on receipt of full and final settlement voucher.  There is no deficiency in service on the part of insurance company. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made.

3.                     We have heard learned counsels for the parties and gone through the case file very carefully.

4.                     It is not disputed that the truck bearing No.HR37B-3193 is insured with OP as is evident through Annexure C2. It is also not disputed that the truck in question was carrying 9000 ltrs kerosene oil (Annexure R4) when it met with an accident and 4281 ltrs less kerosene oil was delivered instead of 9000 ltrs at its destination at Leh due to its leakage at the time of accident.

5.                     The grievance of the complainant is that the OP has approved/passed the claim of meager amount of Rs.56004/- despite the fact that it was to indemnify the loss to the tune of Rs.2,65,316/-as per agreement executed between complainant and Indian Oil Corporation because the policy in question was for Carriers Legal Liability.

6.                     It is pertinent to mention here that the agreement executed between the complainant and Indian Oil Corporation is not binding on the insurance company because  the cost of 9000 ltrs has been mentioned in the Annexure 4 is Rs.1,28253/- and it is not disputed that 4281 ltrs less kerosene oil was delivered instead of 9000 ltrs at its destination at Leh due to its leakage at the time of accident, therefore, insurance company has rightly allowed the claim of Rs.56004/- after deducting the exclusion clause because the insurance company make the payment beyond the billed amount and in Annexure R4 the total amount has been mentioned as 1,28,253/-.  The surveyor in his report Annexure R6 has rightly assessed the loss to the tune of Rs.56004/-. On this point reliance can be placed regard reliance has been placed upon the law laid-down in 2013(3)CLT 126 titled Kaur Singh Vs. National Insurance Co. Ltd. whereby Hon’ble National Commission has held that: “Survey report is an important document and cannot be brushed aside,”  and 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.

                        Now, this Forum is to deal with the question as to when the insurance company has offered the complainant the amount of Rs.56004/-. As per the version of the complainant, the OPs had offered the amount of Rs.56004/- to the complainant on 09.02.2015  and the surveyor had assessed the loss on 07.01.2015. The loss to the kerosene oil was occurred on 17.10.2014 and the amount was offered on 09.02.215 i.e. within three months of the date of accident as well as date of survey on 05.11.2014 as mentioned in report of surveyor Annexure R6, therefore, the OPs cannot be held deficient in providing service. However, it was open for the complainant to take action as per law against Indian Oil Corporation as per his wishes for deducting any amount as claimed by him, if so desired.

                In view of above said discussion and in the interest of justice,  the Ops are directed to release the amount of Rs.56004/- as assessed by the Surveyor to the complainant within one month from the date of receiving of copy of this order failing which the amount would carry interest @ 9 % per annum for the default period. Hence, the present complaint is hereby disposed of accordingly. Copies 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: 16.10.2017                                  (D.N. ARORA)

                                                                                 PRESIDENT

 

                                               

                            

                                                                   (ANAMIKA GUPTA)

                                                                             MEMBER

 

 

                                                                   (PUSHPENDER GUPTA)                                                                                             MEMBER