Haryana

Yamunanagar

CC/82/2012

M/s Pawan Oil Store - Complainant(s)

Versus

The Branch Manager,The Oriental Insurance Company Ltd. - Opp.Party(s)

R.P.Saini

09 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                              Complaint No. 82  of  2012.

                                                                                              Date of institution: 29.11.2012.

                                                                                              Date of decision: 9.6.2015.

M/s Pawan Oil Store, Jaroda Gate, Jagadhri District Yamuna Nagar through its Proprietor Pawan Kumar son of Shri Sunder Lal, resident of Jaroda Gate Jagadhri.

                                                                                                                                                                                                                                                                       …Complainant.

                                    Versus

 

1. The Branch Manager, The Oriental Insurance Company Ltd. Opposite Hindu Girls College, Old Court Road, Jagadhri through its Branch Manager.
2. The Regional Manager, The Oriental Insurance Company ltd. LIC Building, Northern Chowk, Ambala Cantt. Distt. Ambala ( Haryana) through its Regional Manager.   

 

                                                                                                                … Opposite parties.

 

                         

CORAM:          SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Ram Pal Saini, Advocate, counsel for complainant.   

              Sh. Parmod Gupta, Advocate, counsel for OPs.

 

ORDER

 

                        Brief facts are that complainant has filed this complaint against the respondents/OPs (hereinafter referred as OPs) under section 12 of the Consumer Protection Act 1986, for the payment of Rs. 8,00,000/- on account of damages to the oil tanker in accident on 8.5.2011 alongwith interest and litigation expenses, on the short allegations that the complainant firm is registered owner of oil tanker bearing registration No. HR-58-3393 and got it insured with the OPs insurance company vide policy bearing  No. 261701/31/2011/11347 valid from 20.3.2011 to 19.3.2012 for a sum of Rs. 3,75,000/- after paying premium of Rs. 11255/-.  During this period, when empty oil tanker was returning back to Ambala then met with an accident on 8.5.2011, which was being driven by Sh. Jagir Singh, who was having valid & effective driving license at the time of accident and oil tanker was totally damaged. In this regard, an FIR No. 16 dated 8.5.2011 was lodged by the local police of Himachal Pradesh at the police station Pooh, District Kinnaur (H.P.)  The OPs company was informed accordingly with required documents i.e. copy of FIR, Route Permit, Driving license alongwith certificate of refresher course issued by Indian Training Institute,  Ram Nagar, Rurkee. The surveyor alongwith the complainant went to the spot and found that oil tanker was shattered and its wreck was scattered on the steep hill slope at a steep slant depth of about 100 meters to 250 meters from the road head. The surveyor and loss assessor of the OPs company assessed the net loss of Rs. 2,84,000/- on total loss basis and submitted his report to the OPs company. The complainant further submitted that OPs company repudiated the claim of the complainant vide its letter dated 27.9.2012 on false and flimsy ground i.e. driver Jagir Singh was not holding valid and effective driving license authorizing him to drive the vehicle of hazardous goods. The complainant sent a registered legal notice on 13.10.2012, however, the same was replied by the OPs company vide reply dated 3.11.2012 reiterating their stands. In this way the OPs company have not performed its duties and unnecessarily harassed the complainant by refusing genuine claim amount and prayed for issuing direction to the OPs company to pay a sum of Rs. 8,00,000/-  i.e. market value of the oil tanker in question alongwith interest and litigation expenses. 

2.                     Upon notice, OPs appeared through counsel and filed its written statement taking some preliminary objections such as locus standi, cause of action, not comes with the clean hands and on merits the Forum has no jurisdiction as the oil tanker was being used for commercial purpose. The insured declared value of the said tanker was Rs. 3,75,000/- and as such the contention of Rs. 8,00,000/- raised by the complainant is totally wrong, incorrect and so denied. On additional pleas it is alleged that after receiving the intimation, the insurance company deputed Sh. Rajneesh Kumar Dhiman, an independent surveyor and loss assessor, who gave his fact finding report of the spot dated 14.9.2011 (Annexure R-3) mentioning it that driver Jagir Singh was not holding driving license of Hazaradous goods as is required under rule 14(i)(ii). Thereafter, another surveyor and loss assessor, Sh. Mohinder Kumar Sharma, was appointed to do the final survey, who gave his report dated 26.1.2012 assessing the loss of Rs. 2,84,000/- subject to terms and conditions of the insurance policy (Annexure R-4) and as such to say that the value of the tanker was Rs. 8,00,000/- is totally incorrect and denied.

                        On investigation and on the basis of documents i.e. FIR submitted by the complainant, it was revealed that, at the time of accident, 2-3 unauthorized passengers alongwith driver Jagir Singh & his son Harjit Singh were travelling in the said oil tanker, as three dead bodies including the dead body of Jagir Singh driver was lying at the spot and as such oil tanker was driven in violations of the terms and conditions of the insurance policy.  The complainant submitted the driving license of Jagir Singh and after getting the same verified from D.T.O. Patiala found that the said license was valid for LMV/Motorcycle and HTV only and was not valid for driving vehicle carrying hazardous goods and as such the driver was not holding a valid and effective driving license at the time of alleged accident. The claim of complainant was rightly repudiated and there is no deficiency of service on the part of OPs Company and prayed for dismissal of complaint.  

3.                     To prove his case, the complainant has tendered into evidence his affidavit as Annexure CX and documents such as Annexure C-1 Photo copy of FIR No. 16 dated 8.5.2011 ,  Annexure C-2 Photo copy of National Permit,  Annexure C-3 Photo copy of driving license of Jagir Singh, Annexure C-4 Photo copy of safety training certificate for safe transportation of hazardous goods issued by Indian Training Institute, Ram Nagar, Roorkee (Uttrakhand), Annexure C-5 Photo copy of Legal notice dated 13.10.2012, Annexure C-6 reply of legal notice dated 3.11.2012,  Annexure C-7 Photo copy of R.C. of Oil Tanker, Annexure C-8 Repudiation letter dated 27.9.2012, Annexure C-9 Photo copy of insurance cover note and closed his evidence, whereas on the other hand, counsel for the OPs has tendered into evidence affidavit of Sh. Rajneesh Kumar Dhiman, Surveyor  & Loss Assessor as Annexure RX, affidavit of Shri Mohinder Kumar Sharma, Independent Surveyor and Loss Assessor as Annexure RY and documents such as Annexure R-1 Photo copy of Claim Form, Annexure R-2 Photo copy of claim intimation, Annexure R-3 Photo copy of Surveyor report dated 14.9.2011 of Rajneesh Kumar Dhiman, Annexure R-4 Photo copy of Survey report dated 26.1.2012 of Sh. Mohinder Kumar Sharma, Annexure R-5 Photo copy of Insurance Policy, Annexure R-6 Photo copy of verification report of driving license of Jagir Singh son of Bachan Singh, Annexure R-7 Photo copy of repudiation letter dated 27.9.2012, Annexure R-8 Photo copy of driving license of Jagir Singh, Annexure R-9 Photo copy of FIR No. 16 dated 8.5.2011.

5.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely & carefully.  Learned counsel for the complainant argued that the OPs have wrongly repudiated the claim of complainant on the ground that at the time of accident the driver was not holding valid and effective driving license to drive the vehicle meant for carrying hazardous goods. There is no endorsement in the DL of Jagir Singh (Annexure C-3) regarding any refresher course for safe transport of Hazardous goods. Learned counsel for the complainant further argued that 2 (two) unauthorized passengers namely Raj Kumar Dey & Gayal Chann were also travelling at the time of accident in the said oil tanker and 3 (three) dead bodies were found in the Dhaak ( Khai) and out of them one dead body was of Jagir Singh driver of the tanker in question.  Learned counsel for the complainant argued that OPs Company used to issue Insurance Policy to the complainant firm without any terms and conditions. The Surveyor has assessed the net loss to the tune of Rs. 2,84,000/- instead of Rs. 8,00,000/- vide his report dated 26.1.2012 by applying deductions clauses subject to terms and conditions of the insurance policy. Learned counsel for the complainant has drawn the attention of this Forum towards the case laws reported in 1(2000) CPJ page 1 Supreme Court titled as Modern Insulators Vs. OIC exclusion clause, 2005(3) CPR page 24 NC titled as Atlas vs. NIA Exclusion cause,2013 (1) CLT page 589  (National Commission), titled as NIA versus Pabhati Sridevi etc. and 2014(2) CLT page 305 (National Commission) titled as The Oriental Insurance Company vs. Satpal Singh wherein it has been held that “ when the terms and conditions have not been supplied/ communicated to the consumer, it cannot be invoked against the consumer. When the exclusion clause never disclosed to the insured, insurance company cannot take the benefit of the said clause. Insured/consumer cannot be affected by such exclusionary clause”.       

6.                     On the other hand, counsel for the OPs argued that the claim of complainant has rightly been repudiated on the ground that unauthorized passengers were travelling in the said oil tanker at the time of accident and three persons including driver Jagir Singh have expired at the spot as is clear from contents of FIR. Learned counsel for the OPs further argued that after enquiry it was found that driver Jagir Singh was not holding a valid and effective driving license to drive vehicle carrying of hazardous goods as is required under rule 14(i)(ii) at the time of accident and as such the complainant has violated the terms and conditions of the policy.  Learned counsel for the OPs further argued that the final survey was carried out by Sh. Mohinder Kumar Sharma, who gave his report dated 26.1.2012 and assessed the loss of Rs. 2,84,000/- on total loss basis subject to terms and conditions of the policy and as such to say that the value of the tanker was Rs. 8,00,000/- is totally wrong.   It is pertinent to mentioned that the oil tanker in question was insured against IDV of Rs. 3,75,000/- with the OPs. The claim of the complainant was rightly repudiated and there is no deficiency in service on the part of answering OPs and prayed for dismissal of complaint.

                         Learned counsel for the OPs relied upon the case law titled as Sukhbir Singh vs. Oriental Insurance Company Ltd. 2004(2) Consumer Law Today 0020 passed by the Consumer Disputes Redressal Commission, Union Territory, Chandigarh wherein it has been held that Insurance Claim-repudiation- Ground that license for driving license heavy vehicle but did not have endorsement as required by proviso to Section 14(2) (a) of the M.V.Act for driving oil tanker carrying hazardous goods-the driver of the vehicle also did not attend any refresher courses or possessed educational qualification as required by Rule 9 of the Rules of 1989-Claim held rightly repudiated.  Learned counsel for the OPs has further relied upon the case law titled as Naina Rambabu Versus Oriental Insurance Co. Ltd. Visakhapatnam (A.P) & Others 2013 (2) ClT page 118 wherein it has been held that “Driving license-accident of lorry-Insurance- Repudiation- Insurance company repudiated the claim of petitioner based on the driving license verification from the Road Transport Authority, who certified that the driver of the accident vehicle did not possess required endorsement to transport hazardous goods-Complaint accepted by district Forum-Plea of insurance accepted by State Commission and appeal allowed thereby dismissing the complaint.”

                        Learned counsel for the OPs has further relied upon the case law titled as U.P. Power Corporation ltd. & Others Versus Anis Ahmad, 2013(3) CLT page 227 passed by our Hon’ble Supreme Court of India wherein it has been held that deficiency in service-nature of transaction under section 126 of Electricity Act 2003 does not come within the ambit of complaint. Commercial purpose-Consumer-Complaint-Complainant person(s) availing services for commercial purpose do not fall within the meaning of “consumer” and cannot be a “complainant” for the purpose of filing a “complaint” before the Consumer forum.

                        The counsel for OPs has further relied upon case law titled as United India Insurance Company vs. Bhriguram Mondal & Others, 2014(1) CLT page 255 passed by our Hon’ble National Commission wherein it has been held that Insurance Claim-Survey report- Claim is to be allowed on the basis of survey report alone-Complainant was under an obligation to file documents to rebut survey report otherwise survey report being an authentic document is to be relied.

7.                     It is the admitted fact of both the parties that accident had taken place and oil tanker was totally damaged in the accident. The main points are involved in the case in hand are that (i) Whether any unauthorized person were travelling in the oil tanker at the time of alleged accident or not? (ii) Whether the oil tanker being driven by its driver Jagir Singh was having a valid and effective driving license and if he was having the same as to whether the OPs are liable to pay the claim of the complainant to what extent?  (iii) Whether the complainant firm, which is carrying on commercial activities, is a consumer under the provisions of C.P. Act or not?

                        First objection of the OPs is that 2-3 unauthorized persons were travelling in the oil tanker at the time of accident as three dead bodies including dead body of Jagir Singh driver has been recovered by the police from the spot, hence there is violation of the terms and conditions of the Insurance policy on the part of complainant.  In this regard contents of the FIR were referred, except the contents of FIR, no other cogent evidence have been filed or referred by the counsel for OPs. We have perused the contents of the FIR very carefully and minutely but from its contents, it is nowhere established that the said 2-3 persons were died due to travelling in the oil tanker or died otherwise being passerby. Hence we are of the considered view that the contention of the OPs Company on this point is not tenable. 

                        Second basic objection raised by the OPs company is that the driver Jagir Singh though was holding driving license for HTV vehicle, however it was not endorsed authorizing him to drive the vehicle carrying Hazardous goods as required under Rule 14(i)(ii) of M.V.Rule.

                        The complainant has produced Annexure C-4 which is a certificate issued by Govt. approved Training Institute, Rurkee certifying that Jagir Singh had completed the basic refresher safety course under the provision of Central Motor Vehicle Act 1988  section 14(2)a, Rules 1989 rule 9(1) under the provisions of OISD- 154 for Safe Transport of Hazardous good satisfactorily. Moreover, it is admitted proposition of the OPs that when the oil tanker met with an accident it was not carrying any hazardous goods rather it was empty. Hence, the plea of OPs on this point is also not tenable to our mind. Learned counsel for the OPs referred the case laws titled as Sukhbir Singh vs. Oriental Insurance Company Ltd. and Naina Rambabu Versus Oriental Insurance Co. Ltd. Visakhapatnam (A.P) & Others, however, facts of the said cases are totally distinguishable with the present case as in the said ruling, the driver of the vehicle did not attend any refresher course. In the present case in hand, the complainant has successfully proved that the driver had undertaken such course and coupled with the facts that oil tanker was empty at the time of accident, therefore, the opposite parties are not justified in repudiating the claim.   

                        We are also not agreed with the arguments advanced by the counsel for the OPs on the point that oil tanker was being used for commercial purpose, hence, this Forum has no jurisdiction. However, from the perusal of repudiation letter, it is clear that OPs have not repudiated the claim of the complainant on this ground and as such now OPs cannot take the new plea and low cited on this point is also not applicable to the facts of the present case. Moreover, person who takes insurance policy to cover envisaged risk not takes policy for commercial purpose. Policy is only for indemnification of actual loss, not intended to generate profit. From the above, it is manifestly clear that the complainant firm has not obtained the policy in question to earn profit rather for indemnification of the loss, if any, suffered by complainant during the course of business. As such, the present complaint is squarely covered under the provisions of Consumer Protection Act and the complainant firm is consumer and can maintain the present complaint.

                        Now the next question arises as to what extent the complainant is entitled for damages. Although the complainant has lodged a claim of Rs. 8,00,000/- but it was insured with the OPs for a sum of Rs. 3,75,000/- vide insurance policy in question. The surveyor & Loss Assessor recommended the amount of Rs. 2,84,000/- on the net loss basis as per final survey report dated 26.1.2012 (Annexure R-4) and the complainant also failed to point out any discrepancy or ambiguity in the said report.

                        It is settled proposition of the law that credence should be given to the surveyor report and as such we deemed it proper and appropriate to grant an amount of Rs. 2,84,000/- on account of damages caused to the oil tanker in accident in question and the OPs being the insurer are liable to pay the amount of Rs. 2,84,000/-. Repudiating the genuine claim is deficiency in service on the part of OPs. The circumstances noted above, we are of the considered view that we have no option except to allow the present complaint and therefore we direct the OPs Insurance Company to comply with the following directions within 30 days from the date of communication of this order:

1. To  pay a sum of Rs. 2,84,000/- alongwith interest at the rate of 7% per annum from the date of filing of complaint to the date of decision.
2. To pay a sum of Rs. 3000/- as compensation on account of unnecessary harassment.
3. To pay Rs.2,000/- as cost of litigation expenses.

                  The aforesaid directions must be complied with by the OP-Insurance Company within the stipulated period otherwise aforesaid awarded amount shall attract further simple interest @ 9 % per annum for the period of default. The complaint is partly accepted accordingly in the above terms. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.

9.6.2015.

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER

 

All the 1 to 9 pages of this judgment

are checked and signed by me.  

 

 

 

President

9.6.2015.