Jammu and Kashmir

Jammu

CC/32/2017

tanveer oil carrier - Complainant(s)

Versus

oriental insurance - Opp.Party(s)

sanjay dhar

05 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No               506/DFJ           

 Date of  Institution      10/03/2016

 Date of Decision           05/02/2018

 

M/S Tanveer Oil Carrier,

74/2 Transport Nagar,Jammu

Through its Proprietor S.Nanak Singh,

S/O S.Gurbachan Singh,

R/O Chatha Farm Jammu.

                                                                                                                                                Complainant

                 V/S

The Oriental Insurance Company Ltd.

Branch Office Gangyal,Jammu

Through its Branch Manager.

                                                                                                                                                Opposite party

 

CORAM

                 Khalil Choudhary  (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                     Member

                  Mr.Ghulam Sarwar Chauhan                               Member                                         

       

In the matter of Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Sanjay K.Dhar,Advocate for complainant, present.

Mr.R.K.Jain,Advocate for OP,present.  

 

                                                                     ORDER

                 Grievance of the complainant is that M/S Tanveer Oil Carrier owned by S.Nanak Singh is dealing in transportation of petroleum products and having contract with Indian Oil Corporation for transportation of oil products, copies of contract and load challan are annexed as Annexure-A and he  being registered owner of vehicle bearing registration No.JK02X9385 used for transportation of oil products had obtained Carrier Legal Liability Policy bearing No.262202/48/2015/286 effective from 06/06/2014 to 05/12/2014 for a sum of Rs.7,00,000/covering the risk of consignments carried in said vehicle, copy of insurance policy is annexed as Annexure/B.According to complainant on, 04/09/2014 consignment of kerosene oil was loaded in the said vehicle from G.T.Road,Ambala terminal for carriage upto its depot at Leh and on,05/09/2014,the said vehicle was driven by driver,namely,Sh.Surinder Singh S/O Sh.Bagga Singh when reached near Gramphu (Khoksar)in Distt.Lahaul and Spiti Himachal Pradesh on way to Leh skidded off the road and rolled down near about 150-200 meters from the road due to negligent driving by the said driver. Complainant further submitted that after the accident driver of the vehicle lodged report with Police of P/O Khoksar,but the police only registered DD report No.8 dated 06/09/2014,but did not conduct the investigation on spot.Thereafter,the complainant moved application for registration of FIR before the Ld.Chief Judicial Magistrate,Kullu(HP)and upon the direction of Ld.CJM,FIR No.74/14 dated 16/09/2014 came to be registered for offence u/s 279 IPC by Police Station Keylong,copyof FIR alongwith order for release of vehicle is annexed as Annexure/C.Complainant further submitted that since the said vehicle met with an accident as a result of negligence of driver and the consignment of 9000 ltrs of K.Oil loaded in the said vehicle got split after it came out from the tanker due to extensive damage caused to it,therefore,complainant lodged claim with the Op for indemnification of loss under the policy of insurance and after the accident cost of said consignment amount to Rs.7,36,560/was debited from the account of complainant by Indian Oil Corporation on account of loss of product in the accident, copy of letter dated 10/02/2015 issued by OIC is annexed as Annexure-D.Allegation of complainant is that in response to the claim intimation given by him in respect to own damage caused to the said vehicle, the Op company deputed surveyor for conducting spot survey and also the surveyor, namely Mr.Ravi Kumar Gupta was deputed fro assessment of loss and the said vehicle was being plied with valid and genuine documents and the driver on wheels was also holding a valid and effective  driving licence and all the requisite documents were provided to OP for settlement of claim, but the Op failed to settle the claim. Finally the OP company rejected the claim for indemnification of loss with respect to consignment and this act of Op constitutes deficiency in service, hence the present complaint . In the final analysis complainant prays for indemnification of loss to the product to the tune of Rs.7,00,000/alongwith interest @ 12 persent per annum from the date of loss and in addition also prays for  compensation to the tune of Rs.1,80,000/including litigation charges.

                       On the other hand,OP filed written version and while denying the liability went on to submit that there is no deficiency in service on the part of OP,immediatey after getting the knowledge of occurrence, the OP Company performed its part strictly in accordance with terms and conditions of policy and thereafter appointed a surveyor for spot inspection. After the receipt of report of the spot survey, the OP company also investigated the matter through an independent person and it was brought to the knowledge of OP that no sign of kerosene oil was found on the soil at the time of occurrence and there was no negligence on the part of driver of vehicle, as per the investigation conducted by the police Agency, as such the Op company repudiated the claim of complainant on the basis of material on record with detailed reasons and the present complaint is not maintainable. The OP admitted that tanker bearing No.JK02X9385 was insured with it  w.e.f.06/06/2014 to 05/12/2014 under Carriers Legal Liability Policy  claim under Carrier Legal Liability, subject to terms and conditions of the policy. The Op vehemently denied that vehicle skidded off and rolled down from the road due to negligent driving on the part of driver and the vehicle was carrying consignment of kerosene oil of Indian Oil Corporation from G.T.Road Ambala Terminal for carriage upto its Depot at Leh.The Op further submitted that the concerned Police Agency after getting the information regarding the occurrence, registered an FIR and investigated the matter. After investigation it was found that there was no negligence on the part of driver which resulted in accident, Apart from investigation by the concerned Police Agency  independent surveyor and investigator also submitted their reports and as per investigation no sign of kerosene oil were found on spot  of occurrence alleged to have been any lost therefore, claim of complainant does not fall within the terms and conditions of the policy.

             In support of the complaint, the complainant has filed his own affidavit and affidavits of Harish Chander and Surinder Singh,respectively.Complainant has also produced copy of contract, copy of load challan,copy of insurance policy, copy of FIR, copy of letter dated 10/02/2015 issued by Indian Oil Corporation to complainant and copy of repudiation letter dated 14/01/2016

           On the other hand OP has filed the affidavit of Dhuni Singh Divisional Manager Oriental Insurance Company Ltd.

                 We have perused the case file and also heard learned counsels appearing for the parties at length. 

                     To be brief, allegation of complainant is that he obtained Carrier Legal Liability from OP,whereby vehicle bearing registration No.JK02X/9385 was got insured with OP under Policy No. 262202/48/2015/286 effective from 06/06/2014 to 05/12/2014 ,for sum of Rs.7,00,000/AnnexureA.According to complainant, Insurance Policy also includes loss of product being carried in the insured tanker,however,during currency of policy,i.e.on,05/09/2014,when insured vehicle was carrying S.K.O.(Kerosene Oil)from G.T.Road,Ambala Terminal  to Leh,same met with accident and S.K.O.(Kerosene Oil)spilled and destroyed. Complainant said to have intimated OP and raised claim for indemnification of loss to the extent of Rs.7,00,000/ but OP vide communication dated,14/01/2016 repudiated the claim on the ground that there was no negligence on the part of driver of insured vehicle,therefore,under the terms and conditions of Insurance Policy, insurer is not liable to indemnify the loss. At the same time, version of OP is also in tune with the letter of repudiation dated,14/01/2016.

                In order to substantiate his allegations, complainant supported his complaint with the Carrier Legal Liability policy, FIR regarding accident, certificate issued by O.I.Co.Ltd.whereby, amount to the tune of Rs.7,00,000/ deducted from complainant on account of loss of  S.K.O.Kerosene Oil loaded in tanker No.JK02X 9385.In addition, complainant supported his case by duly sworn evidence affidavits of Harish Chander and Surinder Singh,respectively. The deposition of witnesses is corroborative of allegations contained in the complaint,therefore,need no reiteration.

                On the other hand,OP also supported its version by evidence affidavit of Dhuni Singh,Divisional Manager of OP and again the deposition of witness is in tune with the version of OP,therefore,same also need no repetition.

                  L/C appearing for complainant would submit that at the time of entering into contract of insurance, he was only provided with the policy documents, while as, OP at no point of time provided terms and conditions of Insurance Policy, whereby insurer would be only liable to indemnify the insured, if accident has arisen on account of negligence of insured or negligence or criminal act of his servants. There is no evidence produced by the Op Company to prove that final report submitted by the police concerned as to whether same is accepted by the Judicial Magistrate as per law. On the other hand, complainant also filed the evidence affidavits of Driver & Conductor of vehicle and both the driver, as well as, conductor of accidental vehicle have deposed that accident was caused due to negligence of driver while reversing the said vehicle. The Op has not rebutted the evidence affidavits of driver and conductor nor opted to cross-examine the said witnesses.

                    The OP has only relied upon the report of investigator Mr.Sunil Kumar who has visited the spot after 10 months from date of occurrence and this report otherwise also cannot be considered in absence of any affidavit of said investigator filed by OP and complainant has not been provided with opportunity to cross-examine said witness. No affidavit of the person who investigated or made spot survey the case on behalf of OP & prepared the report was filed by Insurance Company before this Forum. The Honble High Court to J&K in Kotak Mahindra V/S J&K State Consumer reported in 2015(3)JKJ 301(HC)has held that

In absence of affidavit of investigator grounds of repudiation are legally unsustainable.

                     The Op has also not proved as to whom the complainant has sold K.Oil, as alleged in the repudiation letter, but on the other hand, cost of K.Oil destroyed in accident has been recovered by Indian Oil Corporation from the complainant as per certificate on record.

                         It is settled preposition of law and need no lengthy discussion that inter alia, valid contract is formed when parties are at idem. There is material evidence produced by the complainant which has gone unrebutted by the  OP  and once it is proved that vehicle met with an accident and had fallen into about 200 ft.deep from the road, it cannot be said that accident was not caused due to negligent driving of the driver. The photographs produced by the complainant on record evidences the fact that vehicle has gone into deep George from the road at the place of occurrence and this fact is also substantiated from the perusal of surveyor report on record. The report of investigator filed by the OP does not inspire the confidence and same is entirely a hear say, because investigator himself in his report has said that area is snow bound and he has visited the spot after about 10 months from the date of occurrence, thus it was not possible for him to find the traces of kerosene oil. The report of spot surveyor admits the fact that chamber of the oil tanker were dented and damaged,therefore,it is apparent that due to accident vehicle has been completely damaged and chances of splitting of oil from the chambers are more. Under these facts and circumstances emerged in the case,repudiation of claim by OP is patently bad and cannot sustain legally and is against the policy document and so also runs contrary to contract of insurance, therefore, repudiation of claim on account of loss to the product made by OP amounts to deficiency in service, which calls for interference. In a similar case titled The Oriental Insurance Company Ltd.V/S Santokh Singh passed by Honble State Consumer Commission, it has been held in para 12 & 13 as under

                  12.The police report submitted thereby is only in the realm of allegations and not a conclusive proof of guilt of the accused. It has further scrutiny to a judicial finding, which ultimately clinches the issue. If the intention of the legislature was to await final decision of the court then it is not possible for any claimant to file a claim under these circumstances in the absence of a finding by the court. As already stated herein above, the final report which is filed in the court is already in the realm of allegations,therefore,is not a conclusive of the fact that the accused is guilt of negligence.

           13.Therefore,the contention of the appellant that since there is no finding of the court nor final report submitted with respect to the alleged cause of the accident, the claim can not be acceded. What is intended in the policy is that the accident must have caused due to negligence of the driver. The word’negligence’has been used only to ensure that the accident was not caused by any intention but due to casualness of the driver.Thereofre,at this stage when the claim is preferred, the registration of the FIR by itself is sufficient to prove that there was sufficient material to register the case, for which the investigation was launched. It is not necessary that there has to be a finding that he was negligent. It is not in dispute that vehicle has suffered damage due to the accident. This all itself is sufficient that it was due to the negligence that such accident was caused. The determination of the fact whether it was due to negligence of the driver is to be done by the court.Therefore,the findings recorded by the court below that since the accident has taken place on account of the vehicle striking the stone is sufficient to prima facie establish the negligence of the driver

                        Therefore, in our opinion, complainant successfully brought home the point of deficiency in service, as such,OP cannot shirk from its liability to reimburse the loss.

                            So in view of recent decision of Honble State Commission delivered in similar facts of the case as compared to the facts of the instant case, we are of the view that the complainant is entitled to the reimbursement of insurance claim to the extent of amount deducted by Indian Oil Corporation from the bills of  complainant and in the given facts and circumstances of the case, it appears that Insurance Company has arbitrarily rejected the claim of complainant  to the extent of amount charged by corporation and it amounts to deficiency in service.

                    It is needful to recall the judgment of Honble Supreme Court passed Oriental Insurance Company Ltd.V/S M/S Ozma Shipping Co.and Anr.2010 AIR SCW 514

Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.

 

                         Therefore, in view of the foregoing reasons the complaint filed by the complainant for redressal of his grievance is allowed and opposite party is directed to pay to the complainant an amount of Rs.7,00,000/alongwith interest @ 6% per annum w.e.f.14/03/2016 i..e.two months after the repudiation of claimtill its payment. The complainant is also entitled to compensation of Rs.5000/for causing unnecessary harassment and mental agony and litigation charges of Rs.5000/.The opposite party shall comply the order within two months from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                            Khalil Choudhary                                                           

                                                                              (Distt.& Sessions Judge)

Announced                                                                President

05/02/2018                                                  District Consumer Forum

                                                                                     Jammu.

Agreed by                                                                

 

Ms.Vijay Angral                                                                                                            

 Member  

 

 Mr.Ghulam Sarwar Chauhan

Member