SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
1. The complainant has filed this case alleging deficiency-in-service by the Ops, where Ops are the Authorities of Oriental Insurance Company Limited situated at different places.
2. The case of the complainant, in brief, is that the complainant, being the owner of an oil tanker bearing Regd. No.OR-01U-0957, was insured by the OP No.1 having Policy No.267002715P111957280 under Carrier’s Legal Liability Insurance. The truck in question met with an accident on 29.4.2016, as such the complainant registered her claim along with required documents before the OP No.1 as well as Bhadrak Rural P.S. Case No.251 of 2016 dated 30.4.2016. OP No.1 requested the complainant to furnish the required documents for the purpose of proceeding further. The complainant redressed her claim again and again to meet the legal liability as demanded by M/s Hindustan Petroleum Corporation Limited to safeguard her transport business, but the complainant was awarded with settlement amount of Rs.9,01,105/- only against actual loss of Rs.12,23,214.64 paisa, for which she received said lesser amount under protest in order to meet her exigencies arising out of ill-fated accident of the vehicle. The complainant sent a protest letter in writing to the OP No.1 appraising her dissatisfaction for deducting the sum insured as policy excess from the claim ascertained/ estimated by the Surveyor of the OP No.1. But, the OP No.2 vide his letter dated 9.12.2016 stood by the settlement and cited the report of the Surveyor and discussion with the Asst. Manager of M/s Hindustan Petroleum Corporation Limited which led the OP No.1 in settling the liability as per the invoice price of the damaged consignment ignoring the debit note of Hindustan Petroleum Corporation Limited for Rs.12,23,214.64 paisa as per retail selling price of the damaged consignment. The OP No.1 has intentionally committed deficiency in providing service to the complainant. For the above reason, the complainant was sustained a loss of Rs.1,93,746/-. Further, violation of the policy conditions against the impugned award while settling her claim not only amounts to deficiency in service, but also unfair trade practice committed by the Ops.
Cause of action arose on 28.10.2016, on 9.12.2016 and on 20.11.2016. The complainant has prayed for compensation for loss towards policy excess along with compensation for mental agony and litigation cost.
3. Ops have filed their written version denying on the point of maintainability, jurisdiction as well as its cause of action. The Ops have further submitted that the complainant had obtained a Carrier’s Legal Liability Insurance policy bearing No. 267002715P111957280 against her vehicle bearing Regd. No.OR-01U-0957 (Oil Tanker) for the period from 10.1.2016 to 9.1.2017 from this OP No.1 having limits of liability per accident Rs.11,00,000/- and limits of liability per policy period of Rs.11,00,000/- from the OP No.1 for fulfillment of her liability subject to terms and conditions of the policy. On 29.4.2016, the husband of the complainant intimated the OP No.1 that the said vehicle met with an accident near Ranital Check gate on NH-5 while loaded with petroleum product, accordingly one Surveyor-cum-loss assessor was deputed in order to assess loss caused due to alleged accident. Thereafter, on 30.4.2016 intimation of loss in writing was submitted before the OP No.1, who in turn handed over a set of claim form with a request to submit the same with all relevant documents. The Surveyor-cum-loss assessor submitted his report to OP No.1 on 9.5.2016 assessing loss which was sent to OP No.2. On 13.5.2016, OP No.2 appointed on independent Surveyor to assess the loss of 19.710 Kl of motor sprit due to road accident. On 31.5.2016, OP No.1 sent the preliminary survey report to the Surveyor for assessment of loss. On 13.6.2016, Surveyor submitted his report before OP No.2 which was sent to OP No.1, who assessed the loss to the tune of Rs.9,06,254/- only, subject to deduction of policy excess as per terms and conditions of policy which was approved by the OP No.2 and intimated the same fact to the complainant requesting her to submit a cancelled cheque and detail particulars of her bank account for payment. On 28.10.2016 the complainant submitted cancelled cheque for payment and on receiving the same, OP No.1 processed for payment of Rs.9,01,105/- after deduction of premium of Rs.5,149/- from the settled amount of Rs.9,06,254/- towards reinstatement of policy. Thereafter, due to some technical defect and mismatch of the signature of the authorized signatory, the amount was finally disbursed to the complainant in cash and accordingly, the complainant has received Rs.9,06,254/- towards her full and final settlement of claim for loss of 19.710 Kl of motor sprit caused due to the accident on the alleged date and as such there is no deficiency of service on the part of the Ops.
4. The points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has any cause of action to file this case?
(iii) Whether the case is maintainable?
(v) Whether the complainant is entitled to get the relief, as sought for?
F I N D I N G S
5. In order to substantiate their claim, both the parties have filed certain documents as per list. Perused the documents filed. It has been argued on behalf of the complainant that after registration of her claim along with required documents before the Ops, the complainant was awarded with settlement amount of Rs.9,06,254/- against actual loss of Rs.12,23,214.64 paisa, which is deduction of 5% of sum insured as policy excess, which is totally illegal and arbitrary, for which he has approached this Commission praying for compensation for loss towards policy excess along with compensation and litigation cost. On the other hand, it has been argued on behalf of the Ops that after report of the Surveyor, loss was assessed to Rs.9,06,254/- and on the basis of policy excess as per agreement, 5% of sum has been deducted from the sum insured amount. So, there is no illegality on the part of the Ops. According to Annexure-2 filed by the Ops, policy excess for Tanker, 5% of the sum insured or Rs.11,00,000/- each and every claim, whichever is higher. So, in the instant case, the Ops have deducted 5% of the sum insured amount as policy excess causing no illegality. The discharge voucher available in the case record discloses that it was simply received by the complainant without any protest. But, in her pleading, the complainant has stated that she has received the amount under protest. So, according to settled principle of Law, protest should be in writing and the oral protest has no value when challenged. However, the learned counsel for the OP has relied upon the authority reported in 1999 (3) CPR-53 (SC) in the case of United India Insurance V. Ajmer Singh Cotton & General Mills and Ors, wherein it has been observed by the Hon’ble Apex Court that mere execution of discharge voucher and acceptance of claim would not estop consumer from making further claim. But, that should be that the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. Similar view is taken in the Authority reported in 2008 (4) CPR-96 (SC) in the case of National Insurance Company Ltd. V. Nipha Exports Pvt. Ltd, wherein it has been observed by the Hon’ble Apex Court that where insurance claim was settled and received by insured, in absence of any evidence that discharge voucher or receipt had been obtained from complainant fraudulently or by exercise of undue influence or by misrepresentation or the like or coercive bargaining, consumer complaint would not lie. So, in the instant case, there is no question of undue influence or misrepresentation or coercive bargaining on the part of the Ops while obtaining the discharge voucher by the complainant.
6. So, now on careful consideration of all the materials available in the case record and on the basis of principles laid down by the above Authorities as discussed earlier, this Commission found no illegality on the part of the OPs and there is no deficiency of service committed by the OPs and the complainant has failed to prove any illegality against the OPs, for which the complainant is not entitled for any relief, as prayed for.
Hence, it is ordered -
O R D E R
The complaint of the complainant be and the same is dismissed on contest against the OPs, but in the peculiar facts & circumstances, no order as to costs.
Pronounced in the open court of this Commission, this the 13th day of August, 2024 under my signature & seal of the Commission.
