Haryana

Ambala

CC/11/2018

Balwinder Singh - Complainant(s)

Versus

NIC - Opp.Party(s)

22 Mar 2019

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA

 

 

                                                                      Complaint case no.        : 11 of 2018

                                                          Date of Institution         : 04.01.2018

                                                          Date of decision    : 22.03.2019

 

 

1.       Balwinder Singh, son of Sh. Bachan Singh, resident of 626, Village Meerpur, Post Office, Mubarakpur, Tehsil Dera Bassi, District Mohali, Prop. of M/s Girn Oil Carrier.

2.       M/s Girn Oil Carrier Village Mubarakpur,Post Office, Mubarakpur, Tehsil Dera Bassi, District Mohali,

……. Complainant.

 

 

1.       National Insurance Company Limited, 106, Railway Road, Ambala Cantonment, Ambala Cantt-133001(Haryana)

2.       Indian Oil Corporation Limited, G.T.Road, Ambala Cantt.

 

 

     ….…. Opposite Parties.

 

Before:        Ms. Neena Sandhu,  President.

                   Ms. Ruby Sharma, Member,

Sh. Vinod Kumar Sharma, Member.

                  

                            

Present:       Sh. D.S.Punia,  counsel for complainant.

Sh. Mohinder Bindal, counsel for OP No.1.

Sh. Tejinder Mohan Singh Liberhan, counsel for OP No.2.

 

Order:         Smt, Neena Sandhu, President

Complainants have filed this compliant under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties(hereinafter referred to as ‘Ops’) praying for issuance of  following directions to them:-

1. To pay Rs. 5,02,663,/- towards total loss of oil.
2. To pay Rs. 1,00,000/- as compensation for the mental  agony and physical harassment suffered by  him.
3. To pay Rs. 55,000/- as litigations charges. 
4. To pay interest @18% p.a. on the amount mentioned above.
5. Any other relief which the Hon’ble Forum may deem fit.  

 

Brief facts of the case are that the complainant no.1 is the owner of the tanker No.HR.37-B-9917, which he plies for carriage of oil and other allied goods, for the purpose of earning his livelihood by way of self employment. The complainant no.1, being the proprietor of M/s Girn Oil Carrier i.e complainant no.2, had entered into an agreement with Indian Oil Corporation Limited, vide letter of intent dated 23.05.2012, for transportation of MS/HSD and branded Fuels Ex Ambala terminal against Tender Reference No.DSO/OPS/POL/AMBALA/2011-2012. On 27.05.2016, the tanker in question was carrying  11 Kls fuel i.e. MS 5000 litres and HSD 6000 litres, worth of Rs. 5,02,663/-, from Indian Oil Corporation Depot, Ambala Cant to M/s Maheshwar Kissan Sewa Kender, Indian Oil Petrol Pump, Kuthari(H.P.). All the precautions were taken to carry oil and the tanker was plied at a reasonable speed. However, unfortunately the tanker met with an accident with a Himachal Roadways Transport Bus near Laffu Ghati, as a result whereof, the tanker over turned, got damaged badly and all the oil contained in it drained out. The police authorities reached at the spot and on account of some VIP movement and to avoid abrupt disruption on the road, in the hilly terrain, the tanker was removed from that place, despite of request of the complainant/his representative, to not to remove the tanker from spot of accident before the spot survey by surveyor. A General Diary No.008 dated 27.05.2016 at Police Station, Theog was recorded by the Police Authorities as per the Citizens report. Since the Insurance Company, OP No.1 had issued a Carriers Legal Liability Policy bearing Policy No. 42400/46/15/9700000163 valid from 27.08.2015 to 26.08.2016 covering liabilities, therefore, an intimation of loss was given to the Development Officer(DO), Sh. Arora of the insurance company. The OP No.1 took the services of DO, Shimla, for appointment of surveyor for spot survey.  The surveyor conducted the spot survey of the damaged vehicle but had shown his inability to assess the loss regarding drainage/ spillage of oil from the tanker. The said surveyor, visited the spot on the same day i.e. 27.05.2016 and verified the circumstances of the mishap and had also verified all the relevant documents with regard to consignment. However, he seems to have made an unfounded and unrealistic observation in his Survey Report dated 05.06.2016, towards loss of fuel to the extent of 2500 litres without making any measurement. The complainant no.1 has been requesting, the OP No.1 to provide him copy of the report of surveyor, Sh. Suresh Gopan but it was not given to him. In the meantime a final survey was conducted for assessment of loss of the vehicle. The OP No.1 further appointed Sh. N.K.Sehgal, Investigator, who submitted his report dated 26.12.2016 to the OP No.1 but the OP No.1 did not supply the said report. In the meantime, the OP no.1 settled the claim with regard to damage of the insured tanker and deposited Rs.1,21,683/- through NEFT in his Bank account on 28.03.2017. Since the OP No.1 did not pay the amount of Rs. 5,02,663/-, as deducted by the OP No.2 from the account of complainant no.2 vide shortage debit note advice dated 09.09.2016, therefore, the complainant no.1 requested the OPs to release  the remaining amount but of no use. On 03.10.2017 complainants received a letter from OP No.1 stating therein that competent authority has approved the said claim Rs. 1,14,522/- The complainant no.1 again approached to OP No.1 and made a request to release the remaining amount but it did nothing. Hence, the present complaint.

2.                 Upon notice, OP No.1 appeared through counsel and filed written version, raising preliminary objections qua complaint is not maintainable, no jurisdiction, no cause of action, not come with clean hands and the complaint is ex-facie misconceived, vexations. On merits, it is stated that after receiving the intimation on 27.05.2016, regarding occurrence of the incidence, a surveyor, Mr. Suresh Gopan was immediately deputed for spot survey, who without wasting time, immediately visited the place of accident. The said surveyor disclosed that the tanker no. HR-37B-9917 was parked by the side of road and was lifted and put back on the wheel by the staff of NHAI, immediately to restore the traffic, on the highway being an important road. The deputed surveyor visited the spot and took photographs of the spot. The surveyor inspected the place of accident as well as the tanker in question, to ascertain the extent of loss of fuel loaded in the said tanker. To his estimate, as per the position of the tanker, extent of oil lying in the chambers and the marks of oil on the road and soil at and near the place of accident was not more than 1000-1500 litres. After completing his initial formalities, surveyor talked to the complainant and driver, to take the tanker to Shimla for weighing but he found that the complainant no.1, without informing the surveyor, straightaway, shifted the tanker to Mani Majra without getting  it weighed at Shimla. Thus deprived the surveyor an opportunity to assess the exact loss of oil by not getting the tanker weighed. The surveyor and complainants arrived at consensus that the loss of the oil was less than 2500 litres. In view of the said circumstances and situation, an investigator Mr. N.K.Sehgal was appointed to investigate the matter and to give its fact finding report about the loss and other factors related to this case. After going through the papers submitted by the insured,  report of surveyor Mr. Suresh Gopan and the report  of the investigator and after  scrutinizing  and elaborating  the whole facts,  records  and the evidence,  the loss  was finally assessed  by the competent authority to the tune of Rs 1,14,522/-, on average basis after considering the loss of 2500 litres although it was much less to that. The complainant was thereafter, asked to submit duly filled in loss voucher alongwith this bank details but on his failure to do the needful, the competent authority was compelled to close the said claim as no claim. The complainant was duly informed about the fate of his claim finally vide letter dated 01.02.2018.

Upon notice, OP No.2 appeared through counsel and tendered written version, raising preliminary objections qua complaint is not maintainable and not come with clean hands. On merits, it is stated that on 27.05.2016, the tanker bearing registration no. HR-37B-9917 was carrying 11 KLS fuel from the terminal of Indian Oil Corporation Ambala Cantt for delivery to M/s Maheshwar Kissan Sewa Kender, Kuthari(HP). Rest of the allegations levelled by the complainants are denied for lack of knowledge and prayer has been made for dismissal of the present complaint.

3.                 To prove his version complainant tendered his affidavit as Annexure C/A along with documents as Annexure C-1 and C-16 and closed his evidence. On the other hand, learned counsel for OP No.1 tendered affidavits as Annexure R-X, R-Y & R-Z alongwith documents as Annexure R-1 & R-15 and closed their evidence. Learned counsel for OP No.2 tendered affidavit as  Annexure RW-1/A and closed their evidence.

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

5.                 The learned counsel for complainants has argued that complainant No.1 is running the business of goods carrier, in the name and style M/s Girn Oil Carrier, for earning his livelihood by way of self employment. Complainant No.1, being the proprietor of the said firm and owner of the tanker having registration no. HR-37-B-9917, got it insured with OP No.1, for the period from 27.08.2015 to 26.08.2016. Complainant No.1, being the proprietor of M/s Girn Oil Carrier, entered into an agreement with the Indian Oil Corporation Limited vide letter of Intent dated 23.05.2012, Annexure C-2,  for transportation of MS/HSD and branded fuels Ex Ambala Terminal against Tender Reference no. DSO/OPS/POL/Ambala/2011-2012. On 27.05.2016, the said tanker was carrying 11 KLs fuel i.e. MS 5000 Litre and HSD 6000 Litres,  worth of Rs. 5,02,663/- from  Indian Oil Corporation Depot, Ambala Cantt to M/s Maheshwar Kissan Sewa Kender, Indian Oil Petrol Pump, Kuthari(Himachal Pradesh). Unfortunately, the said tanker met with an accident with a Himachal Roadways Transport Bus near Laffu Ghati and over turned, as a result whereof the fuel tank got burst and all the fuel drained out. Information regarding the said incident was immediately given to police authorities. The police officials, reached at the spot immediately and on account of some VIP movement and to avoid destruction on the road, removed the tanker from the spot despite of the request of the complainant to not to remove the tanker from the site before the spot survey. Information regarding the incidence was also given to the OP No.1, immediately. OP No.1 got conducted the survey but did not supply the copy of the surveyor report. However, the OP No.1 credited, Rs.1,21,683/- through NEFT in the account of complainant No.1 on 28.03.2017. The complainants have suffered a loss of Rs. 5,02,663/- but the OP No.1 had paid claim amount of Rs. 1,21,683/- only. By not paying the remaining amount of Rs. 3,80,980/, -the OP No.1 i.e. insurance company has committed in deficiency in service.

On the contrary the learned counsel for the OP No.1 has argued that on getting the information regarding the accident, a surveyor was appointed to conduct the spot survey. As per the said surveyor, the tanker was lifted and put back on wheel by the staff of NHAI, immediately after the accident, to restore the traffic, on the highway being a very rushy road. The said surveyor asked the complainant to take the tanker for weighing to Shimla to ascertain the exact loss of oil/fuel but the complainant instead of taking it to Shimla had taken it away to Manimajra. As such the surveyor was deprived of the opportunity to assess the loss. Thereafter, the surveyor and the complainants arrived at consensus that loss was of less than 2500 litres. The claim amount of Rs. 1,21,683/- has already been paid to the complainant no.1 on 28.03.2017 as assessed by the surveyor. Thus the complainants have no occasion to file the present complaint and the same deserves dismissal. 

The learned counsel for the OP No.2 has argued that the matter regarding indemnification of loss is involved in the present case and it has nothing to do with it, thus the complaint filed against it may be dismissed with cost.

6.                From the letter of intent dated 23.05.2012, Annexure C-2, it is evident that M/s Girn Oil Carrier, entered into an agreement with Indian Oil Corporation Limited, for transportation of MS/HSD and Branded Fuels Ex Ambala Terminal against tender Reference no.DSO/OPS/POL/ Ambala/2011-2012. From the copy of certificate of registration, Annexure C-1, it is evident that complainant No.1 i.e Balwinder Singh is the owner of the tanker in question. In the DDR dated 29.05.2016, Annexure C-4, it is stated that tanker met with an accident with a bus and over turned, due to which the fuel tank of the tanker got burst and all the fuel drained out. The plea of the OP No.1 is that the surveyor who went to conduct the spot survey told the complainant no.1 to take the tanker for weighing to Shimla but he instead of taking to Shimla had taken away it to Manimajra. However, in support of this plea, the OP No.1 has not adduced any cogent and convincing evidence. Even no such document has been placed on record by the OP No.1 to establish that the complainant no.1 and surveyor have arrived at consensus that the loss of the fuel was less than 2500 litres. No plausible reason has been given by the surveyor as to how and on what basis, he has ascertained that loss of the fuel was of less than 2500 litres. Whereas, in support of this plea that due to accident, the tanker in question over turned and the fuel tank got burst, as a result whereof,  all the fuel drained out and it was a total loss, the complainant has placed reliance on DDRs, Annexure C-3 & C-4 and letter dated 09.09.2016, Annexure C-7. In the DDR dated 29.05.2016, it is stated that the tanker in question met with accident and over turned as a result whereof the fuel  tank got burst and all the oil drained out. From the perusal of the letter dated 09.09.2016, it is revealed that on 21.06.2016, the OP No.2 had debited Rs. 5,02,633/- from the account of M/s Girn Oil Carrier for total loss of product. Taking all these facts and circumstances into consideration, we are of the view that the surveyor report is not based on credible evidence, thus no reliance can be placed on the said report to ascertain as to what was the extent of actual loss suffered by the complainants. In the case of New India Assurance Co. Ltd Vs. Pradeep Kumar, (iv) 2009 CPJ 46(SC), the Hon’ble Supreme Court has been held that although the assessment of the loss by approved surveyor is a pre-requisite for payment of settlement of the claim by the insurer, but the surveyors report is not last and final words. It is not that sacrosanct that it cannot be departed from; it is not conclusive, the surveyor report is neither binding upon the insurer nor insured. Since the surveyor report is not based on credible evidence, therefore the OP No.1, who, on the basis on the said surveyor report has indemnified the complainants to the tune of Rs. 1,21,683 /-, cannot be said to be right. From the letter dated 09.09.2016, it is evident that OP No.2 had debited an amount of Rs. 5,02,683/- from the account of the complainant no.2 , therefore, OP No.1 is liable to indemnify the complainants to that extent. The OP no.1 has already paid Rs. 1,21,683/- to the complainant no.1 on 28.03.2017. Thus OP No.1 is liable to pay the remaining amount of Rs. 3,80,950/-  to the complainants alongwith interest. OP No.1 is liable to compensate the complainant No.1 for the mental agony and physical harassment suffered by him. It is also liable to pay the litigation expenses to the complainants. It may be stated here that the complaint filed against OP No.2 is liable to be dismissed because neither any specific allegation has been levelled against it by the complainants nor it has been proved.

7.                In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and allow the same against OP No.1. The Op No. 1 is directed in the following manner:-

1. To pay Rs.3,80,950/-(Three lack eighty thousand nine hundred fifty only) to the complainants along with interest @ 7% p.a. w.e.f. 28.03.2017(the date of payment of Rs. 1,21,683/-) till its realization
2. To pay Rs. 5,000/- as compensation to complainant No.1 for mental agony and physical harassment suffered by him.
3. To pay Rs. 3,000/- as litigations expenses to the complainants.

 

The Op No.1 is further directed to comply with the aforesaid directions within the period of 30 days from the date of receipt of the certified copy of this order. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :22.03.2019

 

 

 

          (Vinod Kumar Sharma) (Ruby Sharma)     (Neena Sandhu)

              Member                        Member             President