Haryana

Ambala

CC/61/2017

M/s Aggarwal Carrier - Complainant(s)

Versus

NIA - Opp.Party(s)

Uday Singh

30 Mar 2018

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                        Complaint No. 61 of 2017

                                                        Date of instt:  27.02.2017.

                                                        Date of decision: 30.03.2018.

                                        

M/s Aggarwal Carrier through its Proprietor Sanjay Aggarwal Office AT # 18-C, Shastri Nagar, Ambala Cantt.

...Complainant.

Versus

1. New India Assurance Company Limited Civil Lines,Arya Chowk, above OBC Bank, Ambala Branch Office Ambala City.

 

                                                                              …Opposite party.

2.M/s Indian Oil Corporation Ltd. Thrh.Its Terminal Manager G.T.Road, Ambala Cantt.

 

                                                               …Performa Opposite party.

 

 

Complaint under section 12 of

 

BEFORE:          SH. DINA NATH ARORA, PRESIDENT.

                        MS. ANAMIKA GUPTA, MEMBER                 

 

Present: -          Sh. U.S.Chauhan, Adv. for complainant.

                        Sh. Niklesh Bhagi, Adv. for OP No.1.                                                Performa OP No.2 exparte.

 

 

ORDER:

 

 

                        The facts of the present case are that the complainant is running business of catering the product of perform OP from one destination to various destinations as provided under the contract. The complainant had purchased Carriers Legal Liability Insurance vide policy No.35350236161100000017 for covering the loss upto Rs.7,00,000/- in addition to Motor Vehicle insurance for truck tanker bearing registration No.HR37-C-3685 on 13.06.2016 and the same was having validity from 13.06.2016 to 12.12.2016. On 05.07.2016 the tanker was en-route to Leh Depot for offloading the SKO 10 KL loaded from IOC Ambala Terminal under invoice No.98861833 dated 04.07.2016 but it met with an accident and fell into more than 400 ft. down into the ditch of the valley and tanker tuned into pieces and entire loaded oil fell down in the ditch of the valley. The complainant lodged claim regarding damage of vehicle and product to the OP and also submitted all requisite documents but the OP No.1 has only paid Own Damage Claim of Truck Tanker under the motor insurance policy and failed to indemnify the actual loss of product under CLL insurance policy. The IOCL had already recovered the said product loss of Rs.5,83,996/- from pending transportation bills of the complainant. The complainant has also submitted shortage debit note advice issued by performa OP prior to settlement of the claim but it failed to indemnify the actual loss suffered by it and arbitrarily assessed the loss to the tune of Rs.1,42,457/-after deducting policy excess and declined to consider the actual claim of total loss of product amounting to Rs.5,83,996/- under the CLL policy. The OP No.1 had paid Rs.1,42,457/- against the total loss  by giving unethical reasoning that surveyor has assessed the loss to the tune of Rs.1,44,957/-. The OP No.1 has wrongly and illegally denied the actual loss of product. The act and conduct of the OP No.1 clearly amounts to deficiency in service on its part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C6.

2.                     On notice, OPs appeared but only Op No.1 contested the compliant by filing reply to the complaint wherein it has taken preliminary objection such as jurisdiction, estoppal, maintainability, limitation and concealment of material facts from this Forum. It is submitted that on 04.07.2016 the insured truck/oil tanker was loaded with 10 KL Kerosene oil having value of Rs.144957.20 vide consignment note/transfer voucher No.52989097 (invoice 98861868) dt.04.07.2016. The said truck had met with an accident and got damaged besides loss of kerosene oil of 10000 liter @ 14.49/- (Rs.144957/10000 ltr.) = Rs.144957 as assessed by IRDA approved surveyor in his report and after necessary deduction of excess clause of Rs.2500/- the net loss was Rs.1,42,457/- which has already been paid to the complainant, therefore, the present complaint is not maintainable. Moreover, the insurance company has no concern with the agreement allegedly executed between complainant and performa OP.  The insurance company cannot be made liable for any excess amount of loss of the goods not mentioned in the consignment note/transfer voucher.  The policy in question was issued with regard to cover the loss damage in transit over truck No.HR37-C-3685 as per consignment note/ invoice and not to cover the loss of India Oil Corporation.  The Op No.1 has no concern with the shortage debit note   as the claim has rightly been passed as per the report of surveyor keeping in view the loss of product in the vehicle in question. There is no deficiency in service on the part of Op no.1. Other contentions have been controverted and prayer for dismissal of the claim has been made. The performa Op No.2 neither filed any reply to complaint nor remained present before this Forum during the proceedings of this complaint, therefore, it was proceeded against exparte vide order dated  27.09.2017. In evidence the OP No.1 has tendered affidavits Annexure RX, Annexure RY and documents Annexure R1 to Annexure R4.

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

4.                     Purchasing of Carriers Legal Liability Insurance from Op No.1 (Annexure C1) is not disputed. It is also not disputed that the damage to the product has occurred during the subsistence of the policy. The grievance of the complainant is that the Op No.1 has not paid the actual loss to the tune of Rs.5,83,996/- rather it has illegally paid meager amount of Rs.1,42,457/-, on the unethical reasoning recorded by surveyor in his report Annexure R2, after deducting excess clause of Rs.2500/- despite the fact that Shortage Debit note Advice issued by performa OP, wherein total loss to the tune of Rs,5,83,996/- has been mentioned,  was submitted to OP No.1 before settling the claim.

5.                     On the other hand the Op No.1 has come with the plea that the truck/oil tanker bearing No.HR37C-3685 was loaded with 10 KL Kerosene oil having value of Rs.144957.20 vide consignment note/transfer voucher No.52989097 (invoice 98861868) dt.04.07.2016, therefore, the claim to the tune of Rs.142457/- of the complainant has rightly been assessed and paid to the complainant on 10.11.2016.  It has been further argued that the insurance company has no concern with the agreement executed between the complainant and performa Op No.2, therefore, shortage debit note advice (Annexure C4) is also not binding upon it.

6.                     Undisputedly, in the present case the surveyor was appointed by the insurance company who after physical verification gave his report Annexure R2 duly supported with his affidavit. Perusal of this very document reveals that the surveyor had assessed the net liability of insurer to the tune of Rs.1,42,457/- keeping in view the consignment note/transfer voucher No.52989097 (invoice 98861868) dt.04.07.2016 (Annexure R3) after deducting the excess clause Rs.2500/- and the complainant has not denied about receiving of said amount on 10.11.2016. There is nothing on the file to show that the complainant had received the above said amount under protest and the agreement executed between complainant and performa Op No.2 is binding on the insurance company in the settlement of present claim.  If any amount paid by the complainant as per the Shortage debit note advice to the performa Op No.2  then it has no binding upon the insurance company because the claim has already been settled on the value of the kerosene oil which was being carried out at the time of accident and amount in the bill Annexure C3 has been shown as Rs.1,44,957.20/-. Moreover, Hon’ble Supreme Court in case titled as Bhagwati Prasad Pawan Kumar Vs. Union of India (2006) (5) Supreme Court 311 has held that Conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer-Each case must rest on its own facts- If facts disclose that the offeree had a reservation/protested in accepting the offer, his conduct may not amount to acceptance in terms of S.8. It has been further held that in case protest and non-acceptance of the offer are conveyed before encashment of the cheque it would not amount to acceptance-However protesting after encashment of the cheque would be of no avail, as such encashment of the cheque would amount to unequivocal acceptance- An offeree cannot be permitted to change his mind after unequivocal acceptance of the offer.  Section 8 of the Contract Act says Acceptance by performing conditions, or receiving consideration-Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal is an acceptance of the proposal. In the present case, the complainant has failed to show any evidence that he had lodged any protest before or after receiving of the amount, therefore, we have no hitch to reach at a conclusion that the acceptance made by the complainant by accepting the amount of Rs.1,42,457/- without any protest ceased him to approach this Forum by way of the present complaint.  So, as per legal proposition, when the complainant has already received and accepted the amount assessed by the Surveyor without any protest, the complainant cannot agitate now this matter before this Forum. The Hon’ble National Consumer Disputes Redressal Commission New Delhi in a case H.C.Saxena Versus New India Assurance Co. & Anr. 2012 (1) CPC 632 has held that “Report of surveyor is an important document prepared under the legal provisions and should not be brushed aside without reasons.” The Hon’ble National Commission in case titled as D.N. Badoni Versus Oriental Insurance Co. Ltd. 2012 (1) CPC 528 again has held that “The Surveyor report should not be ignored in which the amount of claim has rightly been determined.” The above-said law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi is fully applicable to the present case as in the present case, the Surveyor had assessed the loss of the vehicle in question and same was accepted by the complainant without any protest. Moreover, the complainant has not led any evidence to counter the assessment made by surveyor in his report Annexure R2. There is no deficiency in service on the part of insurance company in settling the amount, therefore, the present complaint deserves dismissal.

7.                In view of the above-said factual position and legal proposition, we are of the view that there is no merit in the complaint and as such, the complaint stands dismissed with no order as to costs. Copy of this order be supplied to the parties. File be consigned to record after due compliance.

 

Announced on: 30.03.2018                                 

 

 

         

                                       (ANAMIKA GUPTA)             (D.N.ARORA)

                                       MEMBER                                 PRESIDENT