Ld Advocates are present. Judgement is delivered in open Commission.

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case is that the Complainant is a permanent resident within the jurisdiction of this court and his address has been described in the cause title. The Complainant is the registered owner of vehicle being NO. WB29A/5936 (Tanker) and the complainant has been using the said vehicle for the purpose of his livelihood having engine No. 21H63283054, Chassis No. – MAT466420C2H19696. The Complainant took an insurance policy for the said vehicle vie policy No. 030600-3119P 108312810 for the period 24.09.2019 to 23/09/2020 from the Opposite Party whose Idv was Rs. 15,00,000/-.The said vehicle being No. WB29A/5936 (Tanker)  was loaded with bitumen which got damaged due to fire on 15.12.2019 while the workers put fire in normal course into the chimni pipe for modifying bitumen and suddenly the tanker got blast and it is damaged. It is well known that in normal course bitumen forwarded as a semi solid product and in normal practice for unloading purpose heat is supplied for melting bitumen as liquid condition, but unfortunately while the same process was going on the way the tanker got blast. Then fire brigade came and opposite party was informed and they came to the spot and surveyor was also appointed and after that as per opposite party’s advice. The tanker was repaired and repair cost was Rs. 4,00,000/-. The Complainant has submitted all the relevant papers to the O.P. the claimed the insurance claim, but the O.P. did not care and did not want to settle the matter. By a letter dated 17.03.2020 the O.P. has repudiated the insurance claim. For that reason the complaint has been suffering from mental agony and for deficiency of service by the O.P. resulting a loss of Rs. 4,00,000/-. The cause of action arose on and form 17.03.2020. Under the above circumstances, the Complainant prays before the  Commission to direct the opposite party to give said insurance claim of Rs. 4,00,000/- to the complainant with 10% interest p.a. from 15.12.2019 till realization ,to pay compensation of Rs. 70,000/- for mental agony to the complainant and to pay a litigation cost of Rs. 20,000/- to the complainant for conducting of this case.

Upon receiving the notice op appeared in this case but it filed written version beyond the statutory period of 45 days so it was not accepted ; the ld Advocate for the op sought leave for advancing his arguments on law point. However the proceeding of the case run ex-parte against it.

Points for determination are:

1.    Is the case maintainable in its present form and in law?                      2.      Is the complainant entitled to the relief(s) as sought   for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused and assessed the affidavit of the complainant, evidence of complainant alongwith documents.

Having regards had to the facts and circumstances of the case it is evident that  the complainant being a consumer has alleged deficiency in service against the op-; the bundle of facts indicate that this case is maintainable in its present form and in law.

In his evidence the complainant has deposed that The said vehicle being No. WB29A/5936 (Tanker)  was loaded with bitumen which got damaged due to fire on 15.12.2019 while the workers put fire in normal course into the chimni pipe for modifying bitumen and suddenly the tanker got blast and it is damaged. It is well known that in normal course bitumen forwarded as a semi solid product and in normal practice for unloading purpose heat is supplied for melting bitumen as liquid condition, but unfortunately while the same process was going on the way the tanker got blast. Then fire brigade came and opposite party was informed and they came to the spot and surveyor was also appointed and after that as per opposite party’s advice. The tanker was repaired and repair cost was Rs. 4,00,000/-.

Now, it appears from the driving license of the driver of the vehicle Manoj Kumar Yadav had no valid driving license to drive the Tanker carrying Bitumen.Bitumen is hazardous its exposure can cause lung and stomach cancer; when hot bitumen releases hydrogen Sulphide gas into the air, suffocation and even death may occur. The potential danger of Bitumencan not be understood by any ordinary driver or workman. The Driving License  of the concerned driver does not bear any endorsement to the effectthat the driver is qualified/ or trained to drive vehicle carrying hazardous goods in terms of the provision of Central Motor Vehicle Rules. It appears that  the vehicle was put to several negligent manners for carrying bitumen which is known as hazardous goods without any skilled driver and operators violating all the rules and regulations of plying such type of vehicle and also without adopting proper and reasonable care and devices  violating the terms and conditions of the Policy of Insurance. It has been stated that the tanker was repaired and repair cost was Rs. 4,00,000/-. The complainant has filed estimate of repairing of the vehicle but he has not filed any voucher showing that he actually or at all repaired the vehicle as per estimate. He has not filed any invoice/voucher / cash memo to show the costs of repair of the vehicle. Thus there is no proof that the vehicle was at all repaired. The present status of the vehicle has not been disclosed to ascertain the salvage value if any. The accident which occurred due to negligence by the insured  is not covered under the policy.

We have gone through the referred Judgements of the Hon’ble Supreme Court of India in the Civil Appeal No-1042 of 2020 and in the case of  PannalalJankidasvsMohanlal and another reported in AIR 1950 SCR 979.It is worthy to be mentioned that  the Ld Advocate for the complainant has not explained as to how the principles of law as enunciated in the said judgments are applicable in the instant case. However, upon reading of the aforesaid judgment’s of the Hon’ble Apex Court it is found that the facts and circumstances of the referred cases are totally different from the facts  and circumstances of the case in hand ; therefore the principles of law as enunciated in the said Judgments are not  applicable in the instant case.

As such, the claim has been rightly repudiated and the same was informed to the complainant. This O.P. Insurance Co. was not on fault in repudiating the claim of the Complainant while there is violation of the terms and  conditions of the Insurance Policy ; and there is also no negligence or deficiency of service on the part of this O.P.The complainant is not entitled to get any relief in this case.

Both the points are decided accordingly.

Thus, the complaint case  does not succeed..

Hence, it is

O R D E R E D

That the CC/11 of 2022 be and the same is dismissed ex-parte against the OP. No order of costs is passed.

Let a copy of the judgment be supplied to each of the complainant and the OP free of cost.