Haryana

Karnal

360/2012

Rajbir S/o Nishan Singh - Complainant(s)

Versus

Oriental Insurance Company Limited - Opp.Party(s)

J.P. Chaudhary

07 Feb 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No. 360 of 2012

                                                             Date of instt.25.07.2012

                                                                Date of decision:7.2.2017

 

Rajbir son of Shri Nishan Singh, resident of village Sarsa, Tehsil and District Kurukshetra.

 

                                                                   ……..Complainant.

                                                Versus

1. The Oriental Insurance Company Ltd. through its Divisional Manager, Karnal.

2. The Branch Manager, Oriental Insurance Company Ltd. branch office near York Hotel, G.T. Road, Karnal.

                                                                   ………… Opposite Parties.

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. J.P. Chaudhary Advocate for the complainant.

                    Sh. Rohit Gupta Advocate for the Opposite parties.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act, 1986, on the averments that on 7.9.2011 he purchased cloth from M/s Nihal Chand Atam Parkash, Wholesale Cloth Merchants, Krishna market, Kaithal, for Rs.1,56,440/-, vide bills no.364 to 366. He intended to sell the said cloth in Himachal Pardesh. Therefore, he hired a vehicle bearing registration no.HR38-L-4118 through Bharat Transport Company 155, Subzi Mandi, Karnal, for transporting the same from Kaithal to Bhagipur, District Rampur, Himachal Pradesh. The vehicle was owned and driven by Shish Pal. On 8.9.2011 he got insured the goods/cloth from opposite party, vide policy no.261301/21/2012/35 known as Marine Insurance Inland Transit Policy. On 10.9.2011, he loaded the said cloth in the vehicle hired by him and started from Kaithal to Bhagipur. When they reached in Shahbad, District Kurukshetra, the vehicle became defective and it was got repaired. Thereafter, he with the driver started journey via Kalaamb & Raipur towards Rampur. At about 5.00 a.m. when the vehicle reached in the area of village Gajehri about 8 kilometers from Theog District Shimla, the cylinder of the vehicle had broken and it fell down on the road. He and the driver lifted the same and put inside the vehicle. After going one kilometer from that place the engine of the vehicle caught fire and then the entire vehicle caught fire and burnt completely. The police reached at the spot and investigated the matter. The Daily Diary Report no.1 dated 12.09.2011 was entered in Police Station Theog regarding the said incident. The matter was also reported to the opposite party at Divisional office Shimla. Rajneesh Kumar Dhiman, the Surveyor and Loss Assessor, inspected the place of occurrence and submitted the report. Thereafter, the surveyor and loss assessor, vide letter dated 23.9.2011 asked him to submit the documents. He submitted all available documents alongwith letter dated 8.11.2011. However, the opposite parties repudiated his claim, vide letter dated 16.4.2012 on the ground that the vehicle carrying the insured material was owned by Shri Sheesh Pal, who was his partner in the business of hawking, because the vehicle owned by individual or his partner in the business does not fall within the meaning of public carrier . Infact, Sheeshpal was not the partner in his business and he only helped him in selling the cloth and used to get reward on daily basis in lieu of that, he had cleared that position to the opposite parties, vide letter dated 24.4.2012 and again requested the opposite parties for settlement of the claim, but to no avail. The claim was repudiated by the opposite parties on flimsy ground, which amounted to deficiency in service and unfair trade practice due to which he suffered physical and mental harassment apart from financial loss.

2.                Notice of the complaint was given to the opposite parties, who appeared and filed written statement controverting the claim of the complainant. Objections have been raised that the complainant has got no cause of action to file the complaint; that the complaint involves determination of complicated questions of facts and law, which cannot be decided by this forum under summary jurisdiction; that the complaint is not maintainable; that the complainant is not a consumer as defined in Consumer Protection Act; that the complainant is estopped from filing the complainant by its own acts and conduct and that there was no deficiency in service or unfair trade practice on the part of the opposite parties.

                   On merits, it has been submitted that Rajneesh Kumar Dhiman was appointed Surveyor and Loss Assessor and he submitted his Marine Survey Report dated 9.2.2012 subject to terms and conditions of the policy. Thereafter, R.L. Aggarwal Engineers, Surveyors & Loss Assessors were appointed for seeking opinion on admissibility of claim, who submitted their report dated 3.3.2012. After scrutinizing the documents, the claim was rightly repudiated, vide letter dated 16.4.2012 and the same was duly conveyed to the complainant. It was found that the vehicle carrying the insured material was owned by Shri Sheesh Pal, who was the partner of the complainant in the business of hawking, whereas the complainant had allegedly booked the vehicle for carrying goods from Bharat Transport Company, which was highly by regular. The vehicle owned by individual or his partner does not fall within the meaning of public carrier. In the First Information Report dated 12.9.2011 lodged by Sheeshpal, he submitted that the vehicle was owned by him and he was partner of the complainant in the business. Therefore, complainant is estopped from filing the complaint by his own acts and conduct. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit Ex. CW1/A and documents Ex.P1 to P17 have been tendered.

4.                On the other hand, in evidence of the opposite parties, affidavit of R.S.Bahlan Senior Divisional Manager Ex.OP1/A and documents Ex.O1 to Ex.O4  have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The complainant purchased cloth worth Rs.1,56,440/- from M/s Nihal Chand Atam Parkash, Wholesale Cloth Merchants, Krishna market, Kaithal, on 7.9.2011, vide bills the copies of which are Ex.P3 to Ex.P5. He hired the vehicle bearing registration no.HR38-L-4118 owned by Sheeshpal through Bharat Transport Company 155, Subzi Mandi, Karnal and paid the freight charges of Rs.7500/-, as is evident from Ex.P7. The cloth was loaded in the said vehicle for transporting the same to Himachal Pradesh. While on the way, the vehicle caught fire in the area of Police Station Theog District Shimla and insured cloth loaded therein was also burnt. Daily Diary Report no.11 dated 12.9.2011 was entered in the Police Station Theog regarding the said incident and the copy of the same is P11. The complainant intimated the insurance company, who appointed surveyor and Loss Assessor. Loss was assessed and claim was duly lodged by the complainant, but the claim was repudiated on the ground that according to the First Information Report and the statement of Sheeshpal the vehicle was owned by Sheeshpal himself, who was his partner in the business.

7.                Thus, the material question which falls for consideration is whether Sheeshpal whose vehicle was hired by the complainant for transporting the cloth to Himachal Pradesh was partner in the business of sale of cloth by hawnking and if so whether his vehicle could not be considered as a public carrier hired through Bharat Transport Company Karnal

8.                The main plank of the opposite parties is the copy of the Daily Diary Report, the copy of which is Ex.P11. The said Daily Diary Report was entered on the basis of the statement of Sheeshpal, who stated that he and the complainant were engaged in selling cloth by hawking in the area of Himachal Pradesh and for that purpose he  had purchased one Maruti Van vehicle. The complainant in the complaint has also admitted that Sheeshpal used to accompany him to Himachal and help in selling cloth, but he added that Sheeshpal was paid for that purpose on daily basis. There is no documentary evidence which may show that there was any partnership business of the complainant and Sheeshpal. The bills Ex.P3 to P5 regarding purchase of cloth were issued in the name of Rajbir Singh. The freight to Bharat Transport Company Karnal for transporting the cloth to Himachal Pradesh, was also paid by Rajbir Singh, as clear from the copy of the bill issued by Bharat Transport Company Ex.P7. Therefore, it cannot be accepted that Sheeshpal was a partner with the complainant in the business of selling cloth. Had Sheeshpal been partner, then the bill regarding purchase of cloth must have been issued in the name of their firm or in the name of both i.e. complainant and Sheeshpal. The evidence of the complainant by way of affidavit Ex.CW1/A that Sheeshpal was not his partner and he only used, to help him in his work and was paid on daily basis, has gone completely unrebutted and unchallenged. The concerned surveyor and loss assessor on whose report the opposite parties relied upon, has not come forward to file his affidavit to assert that Sheeshpal was a partner in the business with the complainant. Therefore, there is no reason to disbelieve the evidence of the complainant in this regard. Even otherwise, in the Daily Diary Report Sheeshpal did not state specifically that he and the complainant were partners in the business. He only stated that he and the complainant used to do the work of selling cloth by way of hawking. That does not mean that they were partners in the business. Shishpal was helping the complainant in selling cloth, therefore, there was nothing wrong in his statement, if he stated he and the complainant were doing the work of selling cloth by hawking. Under such facts and circumstances, Sheeshpal is not established to be partner with the complainant in the business of selling cloth.

9.                The complainant had hired the vehicle of Sheeshpal through Bharat Transport Company, Karnal. Had Sheeshpal and the complainant being partners there was no need of hiring the vehicle of Sheeshpal through transport company. Hiring of the vehicle of Sheespal through transport company indicates that the vehicle of Sheeshpal was being used as a public carrier and anybody could hire his vehicle through the said transport company.

10.              In view of the aforediscussed facts and circumstances, we arrive at the conclusion that the opposite parties have failed to establish that Sheeshpal was a partner in the business with the complainant and the vehicle of Sheeshpal used by the complainant for transporting cloth was not a public carrier. Therefore, repudiation of the claim of the complainant on such ground amounted to deficiency in service on the part of the opposite parties.

11.              As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite parties to pay Rs.1,56,440/- to the complainant  alongwith interest thereon @ 9% per annum from the date of filing of complaint till its realization. We further direct the opposite parties to pay Rs.3300/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 7.2.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member