Sri. Apurba Kr. Ghosh ……...................President

The Complainant has filed this case against the OP under the provisions of the Consumer Protection Act, 1986 as amended 2003 and praying for the following relief / orders:-

1. Direction against the O.P. to pay a sum of Rs. 5,64,534/- to the complainant which was paid by him to the P.P.C.L in respect of the loss of goods carried by the complainant which was insured by the O.P.
2. An award of interest @ 24% per annum on the said sum of Rs. 5,64,534/- since 1^st day of December, 2011 of raising claim but not paid.
3. An award of interest till realization @ 24% per annum on the amount of award.
4. Direction against the OP to pay a sum of Rs. 5,00,000/- to the complainant for mental harassment, torture.
5. Any other relief or reliefs to which the Complainant is entitled as per law.

BRIEF FACT OF THE COMPLAINT

1. The Complainant is a carrier of oil products of the company namely, M/s Bharat Petrolium Corporation Ltd.(B.P.C.L) for the last 30 years.  The complainant is carrying petroleum products of B.P.C.L. from their place of dispatch i.e. Rangapani D.U. to different places of destination as and when offered to carry.
2. That in order to carry petroleum Products the complainant engaged vehicle, specially oil tanker from the vehicle owner and those vehicle is given goods carriage permit having the name of the owner with the number of vehicle with description in particular by the R.T.A. Darjeeling at Siliguri after being satisfied with all requirement/ on being satisfied with all vehicular formalities and other allied formalities the B.P.C.L use to permit the carriers to carry the products/ As per requirement the carrier is to have open carriers legal liability insurance policy during the period of the contract job of carrying petroleum products as well so that in case of any untoward incident with the goods in transit B.P.C.L is sure guaranteed of their loss in transit from carrier side/ carrier is to have carriers legal liability policy to secure carrying products with no risk to the B.P.C.L. and carrier  has no other option but to pay the loss, if any of B.P.C.L. and the carrier is to realize/recover the value paid to the B.P.C.L. from the Insurance Company.
3. The OP is a company doing business of insurance including the policy called ‘Carrier Legal Liability’ in which the carrier is indemnified of any loss of those carried products as per user terms of the contract of Insurance.
4. That during the period from 17.02.2012 to 16.02.2013 the complainant had his open CLL with the OP having premium paid as per policy No. 150601/46/11/9700000413 with effect from 17.02.2012 to 16.02.2013 which was continuing policy being No. 1506014610970000246 of the complainant and the same goes for the last 30 years and the premium paid for the relevant period of Rs. 12,723/- as per the policy schedule issued by the OP Company.
5. That as per contract awarded  to the complainant by the BPCL for consignment of 7072 liter of oil products which was loaded in truck/ vehicle NO. WB 73A7231 permitted by the RTA to carry those goods of the complainant along with all other relevant document concerned for delivery to M/s Bhuttan Oil Distributor Account phuntsholling petroleum Dealers valued at Rs. 5,64,564/- as per  invoice NO. 1244029594 dated 25.10.2012 as per CLL policy issued by the OP and the same was insured with effect from 17.02.2012 to 16.02.2013/ the oil tank lorry started for delivery of the consignment from Rangapani Depot of BPCL to the office of Bhutan Oil Distributor on 25.10.2012 which was reached on 26.10.2012 with consignment with product and as per instruction of the Agent i.e. Bhutan Oil Distributor the complainant was sent back to delivery to the BPCL who booked the goods through the complainant i.e. carrier after customer clearance dt. 07.11.2013 through the office of the Regional Director Regional Revenue & Customs Office, Phuntsholling and the goods left for delivery by the principal to the Agent and was sent back by the Agent to the principal for its destination and in the meantime the BPCL asked the complainant to pay the invoice value of Rs. 5,64,534/- as the goods did not reach to the destination at Rangapani and on enquiry it was notice that, on 09.11.2022 when the oil tanker was sent by the Agent to Principal at his destination the vehicle met with an accident in night hours during transit and near Madarihat Police Station  in India resulting  to total damage of oil products in transit and the said accident was reported to Madarihat police station being FIR (MA) No. 7/2012 dt. 09.11.2022 having loss of goods valued at Rs. 5,64,534/- the matter was informed to the OP & BPCL/ investigation was started and after compliance of all legal formalities the vehicle was released to the owner.
6. That as per agreement  the complainant was duty bound to pay the value of goods being the carrier Rs. 5,64,534/- to the consignor for the goods duly consigned under CLL Policy of the OP and thereby the complainant paid the value to the BPCL through two drafts of Rs. 1,80,000/- and Rs. 3,84,534/- being draft No. 166071 dt. 22.11.2012 & 064622 dt. 22.11.2012 drawn in favour of BPCL as per legal liability.
7. That, despite having paid the value of goods cost in transit the OP was avoiding to indemnify the loss to the complainant as and when claimed and the OP had repudiated the claim on the grounds that the damage occurred cannot be attributed to have occurred due to the  negligence of the complainant or criminal acts of the  employees of the complainant  knowing fully well that, the driver of the vehicle was convicted and sentenced to pay fine of Rs. 500/- which was paid as per the order of the Ld. ACJM, Alipurduar and as per the surveyor or assessor the complainant is entitled to the claim and on being ask by the complainant the OP did not supply the report.
8. That, the OP repudiated the claim vide their letter dated 23.08.2013 in reply to the complainant’s letter dated 05.08.2013 on the plea of Non payment of premium for which coverage of using the vehicle on hire knowing that the vehicle was not owned  by the  complainant and as per previous information the vehicle was owned by Ujjal and was let out to the complainant on hire for carrying oil products to Bhuttan.
9. That, the complainant again asked the OP for reconsideration of the claim vide letter dated 25.10.2023 but the same was also repudiated by the OP on the new plea.
10. That, the complainant being the carrier of the goods in consignment has paid the loss to BPCL which was duly insured under open insurance policy sold by the OP which was entitled to receive of Rs. 5,64,534/- from the OP but the same has not been indemnified to the complainant being the purchaser of the policy.
11. That, the cause of action arose lastly in the month of January, 2014 when the OP’s letter dated 17.01.2014 they finally repudiated the claim and repudiated to reconsider the application dated 25.10.2013 of the complainant for settlement of his claim.  

In order to prove the case the complaint has annexed the following documents:-

1. Two numbers of certificate of insurance (Carriers legal liability) one during incident period only precious thereof.
2. Carriers’ legal liability Insurance policy of OPs.
3. Permit of vehicle involved carrying goods and affidavit of owner of vehicle, DL etc.
4. Invoice of goods sent by BPCL Rangapani (Principal) to Bhutan Oil Distributor (Agent) of valued Rs. 5,64,534/-.
5. Query letter of principal BPCL to petitioner dt. 09.11.2012
6. Letter dt. 31.10.2012 of Bhutan Distributor (Agent) to Regional Director
7. Letter dt. 30.11.2012 of BPCL acknowledging receipts of Rs. 5,64,534/- as damaged of the goods by two demand draft from the complainant.
8. Letter dt. 15.02.2012 Surrendering letter of consignment stock informing incident of accident.
9. FIR dt. 09.11.2012 of accident of vehicle with goods.
10. Final report
11. Request letter of claim settlement dt. 08.05.2013
12. Letter dt. 03.07.2013 by the OP rejecting claim of insurance on the grounds therein.
13. Reply by complainant of OP’s letter dt. 03.07.2013
14. Letter dt. 23.08.2013 of OP again rejecting claim on other ground
15. Letter dt. 24.09.2013 by the complainant to the OP for reconsideration of rejection of claim
16. Letter of OP in response to complainant’s letter dt. 19.11.2013
17. Letter dt. 17.01.2014 of the OP Senior Branch Manager repudiating claim of CLL policy.

Notice was sent from this Commission for serving the same upon the O.P. On receipt of notice the OP appears before this Commission through Vokalatnama, filed their W/V, denied all the material allegations of the Complainant. In the W/V the OP has stated That, the complaint is not maintainable either in law or in facts/ the claim of the complainant against the OP is false, fabricated, concocted for his wrongful gain/the complainant has not come in clean hands/the complainant has suppressed the facts for his wrongful gain/the oil tanker being WB 73A/7231 was registered and issued in the name of Sri Ujjal Mandal as goods carrying commercial vehicle which was being hired commercially used by the complainant for his business and thereby the complainant is not a consumer with the meaning of the Consumer Protection Act./ The complaint is frivolous, vexations, fabricated, baseless and the complainant has no locus standi to file the case/ the complaint is barred by the principles of waiver, estoppels, acquiescence, non-joinder of necessary party/ Ujjal Mondal is a necessary party and that Ujjal Mondal has not been impleaded as a party to this case/ regarding  the statements made in Para No. 1 of the complaint the OP denies/disputes the same/ the OP denies that the carrier is not entitled to recover/realize the value paid to the BPCL from the OP and it is also stated that, the policy wordings are framed and prescribed by the IRDA which is a Govt. Autonomous Body for regulating all insurance business and the insurance company can not deviate or change the policy conditions prescribed by the IRDA. The OP has also stated in the W/V that the statements of Para No. 2 & 3 of the complaint are matter of record and statements regarding Para No. 4, 5, 6, 7, 8 & 9 of the complaint the OP disputes and denied the same and the OP has stated that, in the instant case neither the insured nor any of his servants had been charged by the police for any negligence or criminal act and the police charged Shankar Das who was the driver of the Ujjal Mondal in the capacity of driver of Oil Tanker being in No. WB 73A/7231 of which Ujjal Mondal is registered owner. The OP has further stated in the W/V that,  the OP had repudiated the claim by assigning proper reasons as under the Carrier’s Legal Liability Policy if the vehicle is not registered in the name of the Carrier, additional Premium towards  wider cover has to be paid but the complainant has not taken wider cover in spite of using hired vehicle owned by Ujjal Mondal, no additional premium was paid by the complainant. It is also stated by the OP that, no cause of action arose in filing of this case against the OP and the complainant is not entitled to get relief as prayed for. The OP has further stated that, the complainant is not a consumer and there was no deficiency of service on the part of the OP. By filing the written version the OP praying for dismissal of this case.

In order to falsify the case of the OP No. 1 has filed the following documents:-

1. Policy schedule issued in the name of the complainant along with carriers legal liability policy containing the exclusions, terms and conditions etc.
2. Invoice No. 1244029594 issued by BPCL dt. 25.10.2012.
3. Letter dated 31.10.2012 issued by Sr. Manager of Bhutan oil distributors to regional Disrector, regional revenue & customs office, phuentsholing.
4. Motor claim form submitted by Sri Ujjal Mandal.
5. Survey report submitted by Mr. B.R. Chakraborty.
6. Letter dated 03.07.2013 issued by the OP insurance company to the complainant.
7. Letter dated 23.08.2013 issued by the OP insurance company to the complainant.
8. FIR lodged by the OP insurance company against the complainant.
9. Other papers and documents will be filed at the time of final hearing of the above case and/or as and when directed by this Ld. Forum.

Having heard the Ld. Advocate of both the parties and on perusal of the Complaint, Written version, as well as documents filed by the parties the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1. Whether the Complainant is a Consumer as per the provision of C.P. Act. 1986?
2. Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. ?
3. Whether there is any cause of action to file this case by the Complainant?
4. Whether there was deficiency in service on the part of the OP  as alleged by the Complainant?
5. Is the Complainant has able to prove this case and entitled to get any relief as prayed for?

                   DECISION WITH REASONS

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

The Complainant was given liberty to adduce evidence to prove his case. The complainant has adduced evidence before this Commission by filing written deposition in the form of an affidavit. In the written evidence the complainant has corroborated the contents of his complaint.

At the time of hearing of argument Ld. Advocate of the complainant argued that the complainant has filed written notes of argument and stated everything in their WNA. He further argued that, the complainant has been able to prove his case not only through written evidence but also by producing several documents in support of its complaint. He further argued that, there is no need of Civil  Court Verdict to indemnify the loss which the complainant has paid to the BPCL. He also argued that, the Bhutan Oil Ltd being the Agent has not unloaded the goods for any reason and sent back the vehicle with Oil to the Principal in loaded positions, so the goods are in transit and in case of damage of Oil by any accident the OP is liable to indemnify the loss which the complainant has paid to the BPCL. It is further argument of the complainant that, the evidence of the complainant has not been damaged through  cross examination on the side of the OP. Ld.  Advocate of the complainant further argued that, the vehicle stands in the name of Ujjal Mondal under agreement of BPCL, Motor Vehicle Department, Bhutan Oil Ltd. Which was within the knowledge of the OP who insured the goods in transit and the vehicle.

To falsify the case of the complainant the OP has adduced evidence by filing written evidence in the form of an affidavit. In their written evidence the OP has corroborated the statements made in its written version.

In the written evidence, the OP has stated that, the Complainant is not a Consumer according to the provision of the Consumer Protection Act and by suppressing the actual fact the Complainant has filed this case against the OP. In the written evidence, the OP has further stated that, the Complainant has violated the policy conditions and without taking any written consent from them the Complainant allegedly paid a sum of Rs. 5,64,534/- to the BPCL.

At the time of hearing of argument, Ld. Advocate of the OP argued that, they have already filed written notes of argument and stated everything to prove their case and the Complainant has failed to prove the case against the OP by producing valid evidence either documentary or oral. It is also argument of the OP that, the Oil Tanker which was hired  by the Complainant bearing no. WB 73 A /7231 was registered and insured in the name of Ujjal Mandal as Goods carrying commercial vehicle which the Complainant hired and used for his business activities and thereby the Complainant is not a Consumer within the meaning, scope, ambit and purview of the Consumer Protection Act. It is further argument of the OP that, the carriers legal liability policy clearly states, that, the insurance cover will commence with the loading of cargo on the vehicle and will be in force until unloading of the cargo at the discharging point or expiry of three days after the first arrival of the vehicle at the destination of the town whichever may first occur. It is further argument of the OP that, in the instant case the loss has arising due to mixing up of two different oil products contained into two separate chambers by spilling over each other through the partition dividing the two chambers without the happening of any fire, explosion or accident to the vehicle which reached safely to the discharging point and the vehicle was placed for unloading and the transit is deemed to have ended / seized with the unloading operation put to motion. It is also argument of the OP that, the consignee/ Bhutan Oil Distributer after breaking the seal / lock no. XB4208/91087 as mentioned in the invoice of the Oil Tankers’ compartment of Oil Product and starting unloading operation, tested the oil which was found to be adulterated, contaminated, inseparable in one another and changing the basic nature and character of two products which got converted due to mixing-up to an indescribable products altogether using their originality of the MS and HSD which has got separable mixed up so the consignee refused to accept the mixed oil and therefore the consignee Bhutan Oil Distributer has not accepted the said oil and returned the said oil and unloading operation had already been put to motion the transit deemed to have been ended instantly. It is further argument of the OP that, the insurance cover will commence with the loading of cargo on the vehicle and will be in force until unloading of the cargo at the discharging point and as the operation had already been put to motion the transit deemed to have been ended instantly and thereby the claim was repudiated. It is further argument of the OP that, the vehicle met with an accident while returning from the destination / discharging point and after the coverage granted under the policy seized to operate upon unloading operation having been put to motion at the consignee’s address thereby ending the transit from the consignor’s point to consignee’s point and for which the claim was repudiated. It is also argument of the OP that, M/S Bhutan Oil Distributers is not an agent of BPCL and therefore the question of the Agent and the Principal is not applicable in this case, the BPCL sold the said oil to Bhutan Oil Distributer by invoice no. 1244029594 dated 25.10.2012 and BPCL was the consignor and Bhutan Oil Distributor was the consignee and the story of Agent and Principal as narrated by the Complainant with the intention of misleading this Commission. It is further argument of the OP that, BPCL is not the Principal of M/S Bhutan Oil Distributor and Bhutan Oil Distributor is not the agent of the BPCL and the relation between the BPCL and M/S Bhutan Oil Distributor is the seller and the buyer as well as the consignor and the consignee. Therefore the question of Principal and Agent does not arise at all. It is further argument of the OP that, the insured is governed by the Carriers Act, 1865 and BPCL nor B.O.D files any civil suit before the competent court of law for recovery of damages from the Complainant under the Carriers Act 1865 and no decree has been passed by any court of law holding the Complainant to be legally liable for the alleged damages. It is also argument of the OP that, the condition no. 3 (d) of the policy clearly states that, the insured shall give to the company notice in writing with full particulars of any claim or other subsequent proceeding as soon as possible after the same shall have come to the notice of the insured and or his agent.

At the time of hearing of argument, Ld. Advocate of the OP referred decision of 2014 SAR (Civil) 514 Supreme Court  & IV (2010) CPJ 38 Supreme Court of India & VOL- I (2009) CPJ 6 SC & VOL IV (2004) CPJ 15 SC & VOL III (2014) CPJ 373 NATIONAL COMMISSION & VOL I (2012) CPJ 488 NATIONAL COMMISSION. By referring those decisions, Ld. Advocate of the OP argued that, the Policy is contract between the Insured and the Insurer- rights and obligation under policy governed by terms of the said contract which are binding upon parties – non observance of terms of policy can vitiate policy and may absolve insurance company of its liability to indemnify the loss and it is also held that the insurance policy is a contract between the parties and both parties are bound to obey the terms of contract.

          Having heard the Ld. Advocate of both the side and on perusal of the evidence of the Complainant as well as evidence of the OP and on perusal of the documents submitted by them it is admitted fact that, the Complainant is a carrier of oil products of the company namely M/S Bharat Petroleum Corporation Limited. It is also admitted fact by the Complainant that in order to carry the petroleum product the Complainant used to engage vehicle, specially oil tanker from the vehicle owner and those vehicle is given Goods Carriage Permit in the name of the owner with the number of the vehicle

In the case in hand, the OP has raised a question that, the complainant is not a consumer within the meaning, scope, ambit and purview of the Consumer Protection Act 1986. On the other hand, Ld. Advocate of the complainant during argument submits that, the complainant is a consumer and has proved its case against the OP and he is entitled to get the relief as prayed for.

In this case the complainant has claimed that the BPCL is the principal and M/S Bhutan Oil distributors is the agent of the BPCL.  But in the compliant as well as in the evidence the complainant has specially stated that, the BPCL sold oil to the Bhutan oil distributor. From the said statement it is proved that the relation between the BPCL & Bhutan oil distributors is the seller and buyer. Therefore the complainant has claimed two contradictory statements at a time which he cannot claim. The complainant therefore has failed to explain or prove specifically as to whether the relation between the BPCL & M/s Bhutan oil distributors is ether principal and Agent or consignor & consignee or buyer and seller.

It is pertinent to mention here that, there is a condition No. 3(d) of the policy which clearly speaks that, the insured shall give to the insurance company a notice in writing with full particulars of any claim or other subsequent proceedings as soon as possible after the same shall have come to the notice of the insured or his agent. But in the case in hand the complainant has failed to prove that, prior to making payment of Rs.5,64,534/- to the BPCL he gave written notice to the OP with all particulars of the claim. Accordingly we can easily hold that, the complainant has violated the condition no. 3(d) of the said policy. It is settled provisions of law that, non observance of terms of policy can vitiate policy and may absolve insurance company of its liability to indemnify the loss  (vol III (2014) CPJ 373 by N.C.D.R.C.)

Now let us see whether the complainant is a consumer within the meaning of the Consumer Protection Act or not?

According to Section 2(d) of the Consumer Protection Act says that consum­er means any person who—

      (i)   Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approv­al of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

   (ii)   Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment, and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred pay­ment, when such services are availed of with the approval of the first mentioned person;

Explanation.—For the purposes of the sub-clause (i), “commercial purpose” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his liveli­hood, by means of self-employment.

          In this case, it is admitted fact by the complainant that, he is not the owner of the vehicle (Oil Tanker) in question which met with an accident. It is also admitted by the complainant that, he hired/ engaged the oil tanker from the vehicle owner of those vehicle having Goods Carriage Permit issued by the RTA Darjeeling at Siliguri. It is also admitted fact on the side of the complainant that, the Oil tanker belongs to Ujjal Mandal . But in the instant case the complainant neither implead Ujjal Mandal as OP or Pro OP, nor the complainant adduced evidence by him in support of its case. Moreover, it is not the case of the complainant that, he engaged/ hired the oil tanker from Ujjal Mandal exclusively for the purpose of earning his liveli­hood, by means of self-employment. The complainant himself is neither owner of the oil tanker nor he was the driver of the same. It is needless to mention here that, any individual who obtains any vehicle from the owner of the same for using the vehicle for commercial purpose is not considered as a consumer under the provision of the Consumer Protection Act. It is fact that, the case of the complainant was undertaking a commercial activity.

          From the evidence of the parties, it is also proved that, the terms and conditions of the Insurance Policy has not been obeyed by the complainant. On the basis of the above discussion, we hold that, the complainant is not a consumer as per the provisions of the Consumer Protection Act 1986.

In this case, no averment was made, in the complaint, that the complainant was running the business, for earning his livelihood, by way of self employment. Rather, the the complainant was running business, on a large scale, with the motive of earning huge profits, and, thus, he did not fall within the definition of a consumer. 

Considering all we are of the view that, the complainant has not been able to prove the case against the OP.

Hence, it is therefore,

O R D E R E D

That the instant Consumer case being in No. 35/2014 is hereby dismissed on contest.