BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 24thJune 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.158/2015
(Admitted on 27.4.2015)
Mr.Bharath Kumar Shetty,
S/o Late Gangayya Shetty,
Aged about 44 years,
Residing at Nandadeepa,
K.S.Rao Layout, Ekkur,
Mangalore.
……… Complainant
(Advocate forComplainant by Sri MR)
VERSUS
The Authorised Signatory,
United India Insurance Co.ltd,
Shree Vittal, N.H 17, Main Road,
Surathkal, Mangalore.
…. Opposite Party
(Advocate for Opposite Party.Sri.AKK)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
- This complaint is filed under section 12of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.
The brief facts of the case are as under:
The complainantis registered owner of a Truck/Tanker bearing Registration No.KA.19.D.6772, chassis no. MAT373348C7C15477 and Engine no. 697T69CXY106879. The complainant used to transport diesel/ petrol from India Oil Corporation to various destinations within Karnataka and elsewhere by road with the help of tanker. The complainant for his vehicle has secured goods carriage permit from Regional Transport Authority which is valid from 18.7.2012 to 17.7.2017. The complainant has been granted requisite license to transport petrol/diesel product in bulk on road for the said truck by Deputy Chief Controller of Explosives, Mangalore. The complainant has insured his truck to indemnify him in the event of damage with the oriental insurance company ltd. The said policy is bearing No.422290/31/2013/294. The said policy was in force between 12.7.2012 to 11.12.2013. The complainant in order to indemnify himself for the loss of product has secured Carriers Legal Liability Policy from the Opposite Party. The said policy bearing No.070804/46/12/70/00000181, was valid from 21.11.2012 to 20.11.2013 with the liability limit up to Rs.8,00,000/ issued by the Opposite Party. The truck was loaded 4 KL MS (petrol) and 89 KL HSD (Diesel) on 27.5.2013 to be transported to Blue Moon Service station, Mercara Mysore Road, Kushalanagar, Madikeri. The invoice value of the product for 4 KL MS (petrol) was Rs.2,69,146.35/. And product for 8 KL HSD (Diesel) was Rs.4,27,033.91/ the total invoice value of both the product was at Rs.6,96,180/. The truck enroute to Kushalanagar from Mangalore on 27.5.2013 toppled near Jalsoor at 2.30 p.m.resulting in loss of entire product besides damage to the vehicle. The loss of product was assessed by Universal Marine Surveyors and Loss Assessors on behalf of the Opposite Party. The said surveyors has got confirmed of the fact that the complainant had to pay a sum of Rs.7,82,383/ as penalty for non delivery and for loss of the product to Indian Oil corporation ltd. The Chief Terminal Manager of Indian Oil Corporation ltd has also issued a letter dated 12.6.2013 confirming the fact of the product loaded to afore referred vehicle, quantity of product lost and the amount recovered as penalty from the complainant. Indian Oil Corporation has confirmed the fact vide their letter dated 8.7.2013 that, they have recover in all a sum of Rs.7,82,383/ from the complainant as penalty i.e. at the rate of Rs.71,130/ per KL for 4 KL MS (petrol) and Rs.62,226/ per KL for 8 KL HSD (diesel). Further a sum of Rs.68,118/ recovered from the complainant was refunded on recovery of contaminated product by the Indian Oil Corporation ltd. Aforesaid fact can be borne out from the letter dated 8.7.2013. Thus, the complainant in all had suffered a loss to the tune of Rs.7,14,265/. The Opposite Party assessed the value of the entire product at Rs.6,20,000/ being the cost of the product not inclusive of sale value and not at Rs.7,14,265/ which is the actual loss suffered by the complainant. Thus, a difference of Rs.94,265/ stands remains to be paid by the Opposite Party for the loss suffered by the complainant. The Opposite Party has failed to comply with the terms of the policy and indemnify the complainant has assured. Therefore, the complainant was constrained to issue legal notice to the Opposite Party on 16.3.2016 for which the Opposite Party has sent false and frivolous reply and thereby declining honour the claim of the complainant. Hence the above complaint filed by the complainant before this forum under section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction to pay the a sum of Rs.94,265/ to the complainant towards the difference amount of the claim and to pay interest at 12% p.a from 10.10.2013 date of part payment made and for Rs.25,000/ towards special damages for causing harassment and monitory loss and such other reliefs.
II. Version Notice served to the opposite parties by RPAD, Opposite Parties filed version stating that issue of Carrier Legal Liability insurance policy bearing no.70804/4612/70/00000181 valid from 21.11.2012 to 20.11.2013 to the vehicle bearing Registration No.KA.19.D.6772 vehicle is met with an accident on 27.5.2013 while it was being plied enroute to Kushalnagar from Mangalore with a load of 4KL MS 9petor) and 8 KL HSD (diesel) and a case was registered in this regard by police concerned and upon receipt of said claim, this Opposite Party has immediately deputed the surveyors from M/s Universal surveyors and loss assessors to assess the actual loss. As per the invoice dated 27.5.2013 of IOCL, complainants vehicle was loaded with 4 KL MS (petrol) and 8KL HSD (diesel) which is valued at Rs.6,96,180/ which includes all the applicable taxes thereon the said product and after the alleged accident, product worth Rs.68,118/ has been recovered. Therefore the net loss due to the loss of said product was Rs.6,28,062/ as rightly assessed by the qualified authorized surveyor, who has inspected the vehicle at the spot and assessed the actual loss and accordingly in terms of the applicable policy excess net loss is assessed at Rs.6,20,000/. The loss has been assessed strictly with reference to policy conditions. Considering the survey report and taxes recovered on the said product, and the quantity of the product recovered in the vehicle, and also applicable policy excess, the Opposite Party has re assessed the loss and allowed a sum of Rs.6,20,000/ and the complainant has received a by voluntarily executing discharge voucher, towards full and final settlement of his above claim under the said policy. Their maximum liability in respect of complainants claim under the said policy if Rs.6,20,000/ which has been already reimbursed to the complainant. The Opposite Party is not in any way further liable to pay in respect of above referred claim, much less Rs.94,265/ claimed in the above complaint. The penalty allegedly recovered from the complainant, by IOCL is in accordance with the transport contract entered between the complainant and IOCL which amounts consequential loss arose out of loss of goods for which this Opposite Party is not liable to reimburse. In terms of the above policy, this Opposite Party is liable to reimburse the loss of goods and not the consequential loss. Under the exclusion clause of the above referred CLL policy, this Opposite Party shall not in any circumstances be liable under the above policy, in respect of consequential loss arising from the loss or damage to goods,hence prays for dismissal.
III. In support of the above complaint, the complainantMr.Bharath Kumar Shetty,filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents not markedat No.1 to 10 as detailed in the annexure here below. On behalf of the opposite party Mr.Pundalik M Nayak (RW1) Divisional Manager, also filed affidavit evidence and answered to the interrogatories served on him and produced documents got marked at Ex.R1 to R3 as detailed in the annexure here below.
IV. In view of the above said facts, the points for arise for our consideration in the case are:
- Whether the Complainant proved that the Opposite Party committed deficiency in service?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
We have considered the arguments submitted by the complainant and Opposite Party and also considered the materials that, placed before the Fora and answered the points are as follows:
Point No. (i) :Negative
Point No. (ii) : Negative
Point No.(iii): As per the final order.
REASONS
V. POINTS No. (i) and (ii):The averments of the complainant that the Opposite Party assessed the value of the entire product at Rs.6,20,000/ being the cost of the product not in classic of sale value and not at Rs.7,14,265/ which is the adduced loss suffered by the complainant. Thus, a difference of Rs.94,265/ stands remains to be paid by the Opposite Party for the loss suffered by the complaint. The complainant vehicle was loaded with 4 KLMS (petrol) and 8KL HSD (Diesel) which is valued at Rs.6,96,180/ which includes all the applicable taxes thereon the said product and after the alleged accident the product worth Rs.68,118/ has been recovered. Therefore net loss due to the loss of said product was Rs.6,28,062/ as rightly assessed by the qualified surveyor which is not objected by the complainant. The surveyor who has inspected the vehicle at the spot and assessed the actual loss and accordingly in terms of the applicable policy excess net loss is assessed at Rs.6,20,000/. The loss has been assessed strictly with reference to policy conditions to which complainant is party. There is not dispute as to the assessment of loss done by the surveyor. That the penalty allegedly recovered from the complainant by IOCL is in accordance with the transport contract entered between the complainant and IOCL which amounts consequential loss arose out of loss of goods for which the Opposite Party is not liable to reimburse. In terms of the policy Opposite Party is liable to reimburse the loss of goods and not the consequential loss. Under the exclusion clause of the CLL policy Opposite Party shall not in any circumstances be liable under the above policy in respect of consequential loss arising from the loss or damage to goods. As per survey report Ex.R2 the product value is Rs.6,96,180/ and as per document no.8 Rs.7,82,383/ as penalty towards the product loss due to accident on 27.3.2013 and the above amount has been recovered by way of adjusting from the transport bill amount payable to the complaint for the month of May 2013 which is issued by the Indian Oil Corporation Ltd. Out of Rs.7,82,383/ the Indian Oil Corporation Ltd as per document no.7 for Rs.68,118/ received from the MRPL transferred to the complainant for the contaminated cargo unloaded at MRPL. Further, the complainant received Rs.6,20,000/ by voluntarily executing, discharge voucher towards full and final settlement of his claim as per Ex.R3 and which is not disputed by the complainant nowhere in his pleading or his evidence. The maximum liability in respect of claim under the policy is Rs.6,20,000/ which is after deduction recovered product of Rs.68,118/ from the value of the product and which has been already reimbursed to the complainant by voluntarily executing discharge voucher towards full and final settlement of the claim under the said policy. Hence the Opposite Party is not committed deficiency in service in liable to pay Rs.94,265/ and not claimed in the complaint. Hence considering the above document Opposite Party is not liable to pay the amount and not proved the deficiency in service from the Opposite Party. As such answer in the point No.1 and 2 negative.
In the result, accordingly we pass the following Order.
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9directly dictated by Memberto the Stenographer typed by him, revised and pronounced in the open court on this the 24th June 2017)
MEMBER PRESIDENT
(LAVANYA M RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr.Bharath Kumar Shetty
Documents produced on behalf of the Complainant:
No.1:The copy of the certificate of registration of complainants truck bearing No. KA.19.D.6772.
No.2: The copy of goods carriage permit issued by Regional Transport Authority for complainants.
No.3: The copy of license issued to transport petrol/diesel to complainants truck bearing No. KA.19.D6772 by Deputy Chief Controller of Explosives, Mangalore.
No.4: The copy of the motor insurance certificate cum policy schedule issued to complainant.
No.5: The copy of carrier’s legal liability policy bearing
No.070804/46/12/70/00000181, issued to complainants.
No.6: The copy of check report cum receipt along with the copy of complaint, spot mahazar, receipt, endorsement.
No.7: the copy of the letter dated 8.7.2013 issued by Indian Oil Corporation ltd. to universal marine surveyors.
No.8: The copy of letter dated 12.6.2013 issued by the Chief Terminal Manager of Indian oil corporation ltd.
No.9: Office copy of the legal notice issued by the complainant to the Opposite Party dated 16.3.2015 along with postal receipt
and acknowledgement.
No.10: Reply notice issued by the Opposite Party to the complainant’s advocate dated 24.3.2015.
Witnesses examined on behalf of the Opposite Party:
RW1: Mr.Pundalik M Nayak (RW1) Divisional Manager
Documents marked on behalf of the Opposite Party:
Ex.R1: Carriers Legal liability insurance policy copy pertaining to vehicle bearing Registration No. KA.19.D.6772 with terms
and conditions.
Ex.R2: Survey report of M/s Universal Surveyors and loss Assessors.
Ex.R3: Claim disbursement voucher.
Dated: 24.6.2017 MEMBER
