Andhra Pradesh

Chittoor-II at triputi

CC/44/2016

Baiggari Chand Basha, S/o Bashu Mia, Prop. KGN Company - Complainant(s)

Versus

The Divisional Manager - Opp.Party(s)

G.Ramaiah Pillai

28 Dec 2016

ORDER

Filing Date: 04.05.2016

Order Date:28.12.2016

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE TWENTY EIGHTH DAY OF DECEMBER, TWO THOUSAND AND SIXTEEN

 

 

 

C.C.No.44/2016

 

 

Between

 

 

Baiggari Chand Basha,

S/o. Bashu Mia,

Muslim, aged 46 years,

Prop. KGN Company,

R/at. D.No.19-8-213, Hathiramji Colony,

Bairagipatteda,

Tirupati.                                                                                             … Complainant

 

 

 

And

 

 

1.         The Divisional Manager,

            United India Insurance Co.Ltd.,

            Divisional Office,

            Room No.7 & 8, TTD,

            Sridevi Complex, 1^st Floor,

            Tilak Road,

            Tirupati – 517 501.

 

2.         The Divisional Manager,

            United India Insurance Co. Ltd.,

            Regd. Office 24, Whites Road,

            Chennai – 600 014.                                                              …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 14.12.16 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for complainant, and Sri.Prem Kumar Karanam, counsel for opposite parties 1 and 2, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Sections – 12 and 14 of C.P.Act 1986, by the complainant for the following reliefs against the opposite parties 1) to direct the opposite parties 1 and 2 jointly and severally to pay the Carrier Legal Liability for Rs.6,42,963/- which included VAT + ST + Cess towards loss of diesel oil on account of accident on 19.02.2015 to the complainant vehicle AP-03-Y-5042,  2) to direct the opposite parties 1 and 2 to pay Rs.3,00,000/- towards compensation for causing mental agony and deficiency in service, 3) to pay costs of Rs.5,000/-    

            2.  The averments of the complaint in brief are:-  that the complainant for eking his livelihood purchased a lorry / tanker for carrier purpose bearing regn.No.AP-03-Y-5042 and the same was insured with opposite party No.1 for comprehensive liability covering the period from 28.02.2014 to 27.02.2015 with a premium of Rs.6,965/- under policy No.051200/46/13/70/00000116 for ID value of Rs.8,00,000/-. The complainant also insured for GCV public carrier under policy No.0512003113P107896486 for ID value of Rs.9,00,000/- on payment of premium of Rs.23,172/-.

            3.  That the complainant also service provider to Bharat Petroleum Corporation Limited (BPCL), South Region, 11^th Main Road, Anna Nagar, Chennai-40, for transporting the diesel oil / upliftment of product from Ex.TADA Depot within the State and outside the State (Andhra Pradesh) from 01.02.2014 to 31.01.2016 and for further period of one year from 31.01.2016. While so, on 19.02.2015 BPCL entrusted the complainant for carrying out 12,000 liters of diesel oil valued at Rs.3,56,415/- to be delivered to its branch at GNT Road, Tada. The vehicle while in transit met with an accident at 11 a.m. on 19.02.2015 near Kamaraj Nagar, Port Gate, Kattupalli, and sustained damage for 3 comportments of tanker / lorry with a quantum of loss of 12,000 litres of diesel.

            4.  The driver of the vehicle informed the police and BPCL Chennai, and to opposite party No.1, about the accident. A surveyor also deputed and he assessed the damages and submitted his report. A case was registered by Kathur P.S. of Thiruvallur District on 21.02.2015 noting the damages caused to the tanker and cabin. That the complainant made claim for his damaged vehicle AP-03-Y-5042, and also made claim form for the value of Rs.6,42,963/-. The opposite party by its letter dt:15.12.2015 repudiated the claim as “No Claim” on the ground of exclusion clause-(2) i.e. liability in respect of the damages to property belonging to the insured or to any servant or agent, sub-contractor of the insured, unless property is covered by a contract of carriage entered in to by the insured in an approved form. That the complainant is an authorized person for the transport of diesel oil from BPCL during the period of insurance coverage from 28.02.2014 to 27.02.2015, as such the repudiation is unjust and nothing but the opposite party is evading its liability. The Surveyor’s report dt:21.09.2015, states that the claim under Carrier Legal Liability is tenable. Inspite of his representation dt:16.03.2016 and notice dt:22.02.2016, the opposite party did not consider his claim and that there is deficiency in service on the part of the opposite parties. Hence the complaint.

            5.  Opposite party No.1 filed its written version and the same is adopted by opposite party No.2. Paras.1 to 11 of the written version is general denial of parawise allegations in the complaint. The opposite party in their written version contended that the complainant insured his lorry bearing No.AP-03-Y-5042 with opposite party No.1 as GCV public carrier other than the 3 wheeler package policy for one year from 28.02.2014 to 27.02.2015 with policy No.0512003113P107896486 to cover the risk of own damages and third party claims. That the complainant also taken another policy under Carriers Act for the said lorry as Carriers Legal Liability Policy for a period of one year from 28.02.2014 to 27.02.2015 with policy No.051200/46/13/70/00000516 for the risks of cargo transported in the said vehicle pertaining to third parties.

            6.  The opposite parties admitted that the said lorry met with an accident on 19.02.2015 while transporting his diesel in the said lorry and the said lorry sustained damages and the entire diesel was drained out from the lorry. Immediately, after the intimation, opposite parties have deputed a surveyor to conduct survey and to obtain reports pertaining to accident. After receiving the records from the surveyor and complainant, opposite parties have settled the claim of the complainant for the damages of his vehicle as per the terms and conditions of the policy bearing No.0512003113P107896486. The opposite parties repudiated the claim of the complainant under Carriers Legal Liability Policy, as the cargo which was transported on the date of accident in the said lorry is pertaining to the complainant and as there is no relationship of consigner and consignee and transporter and owner of the goods.

            7.  That the owner of the goods and transporter are one and the same. As per the terms and conditions of the policy under Carriers Legal Liability, it shall not cover the risk of the cargo pertaining to the insured or his agents and the same was clearly mentioned in the exclusion clause of the terms and conditions of the policy. Therefore, the transporter and owner of the cargo are one and same and the policy shall not cover such type of risks. Immediately, after receiving the surveyor’s report and basing on the papers submitted by the complainant, the opposite parties informed the complainant that the opposite parties are unable to process his claim, as there is clear breach of terms and conditions of the policy and accordingly his claim is repudiated. There is no deficiency in service on the part of the opposite parties. There is no cause of action for filing the complaint. That this Forum has no jurisdiction and prays the Forum to dismiss the complaint with exemplary costs.

            8.  The complainant and the Divisional Manager of opposite party No.1 have filed their respective evidence affidavits as P.W.1 and R.W.1 and also filed their respective written arguments, and got marked Exs.A1 to A7 for complainant and Exs.B1 to B5 for the opposite parties. Heard the counsel for both parties.

            9.  Now the points for consideration are:-

            (i).  Whether the complainant is entitled for the claim under Carriers Legal

                   Liability Policy bearing No.051200/46/13/70/00000116, as owner-cum-

                  transporter of the goods?                     

            (ii)  Whether the complaint is maintainable before the Consumer Forum?

            (iii)  To what relief?

            10.  Point No.(i):-  it is the admitted fact that the complainant is the owner of the lorry / tanker bearing No.AP-03-Y-5042, and he has insured the said lorry with the opposite party No.1 and took two policies 1) one policy bearing No.0512003113P107896486 for Rs.9,00,000/- with a premium of Rs.6,965/- commencing the period from 28.02.2014 to 27.02.2015, to cover the risk of own damages and third party claims under GCV Public Carrier other than 3 wheeler package policy for the vehicle bearing No.AP-03-Y-5042 under Ex.A1. 2) another policy bearing No.051200/46/13/70/00000116 for Rs.8,00,000/- with a premium of Rs.23,172/- under Carriers Legal Liability Policy covering the period from 28.02.2014 to 27.02.2015, for covering the risk of cargo transported in the said vehicle pertaining to third parties.

            11.  Admittedly, the lorry / tanker bearing No.AP-03-Y-5042 met with an accident on 19.02.2015 at about 11 a.m. near Kamaraj Nagar, Port Gate, Kattupalli, consequently the vehicle suffered damages. The claim under policy covering the risk of own damages of the vehicle under Ex.A1 is admittedly settled as per the terms and conditions of the policy, as such there is no dispute with regard to the claim of policy under Ex.A1.

            12.  The dispute is only in respect of 2^nd policy covered by ExA2 under Carriers  Legal Liability policy bearing No.051200/46/13/70/00000116. According to complainant, the opposite parties 1 and 2 are jointly and severally liable to pay his claim under Carriers Legal Liability Policy, but the claim was repudiated on the ground that the complainant has violated the terms and conditions of the policy, wherein it was specifically mentioned in Exclusions Clause No.2 that liability in respect of damage to property a) belonging to the insured or to any servant, agent, sub-contractor of the insured…. as per Ex.B4. Similarly, Ex.A2 policy “Carriers Legal Liability Policy” issued by opposite party No.1 in favour of complainant, page.4 under the head of Exclusions reads as follows:- “provided always that the company shall not in any circumstances be liable under this policy in respect of Clause.2 Liability in respect of damage to property a) belonging to the insured or to any servant, agent, sub-contractor of the insured, or to third parties unless such property is covered by a contract of carriage entered into by the insured in an approved form,      b) in and / or under the control of the insured or of any servant, agent, or sub-contractor of the insured unless such property is covered by a contract entered into by the insured in an approved form”. According to the opposite parties no such contract was entered into between the complainant and opposite parties and no such approved form is submitted to the opposite parties, as such the property i.e. diesel oil, which was transported by the time of accident, when belongs to the complainant himself, the complainant who is the owner of the lorry and also transporter of the goods. That apart the complainant himself admitted that he is the service provider of BPCL, that complainant himself cannot be a service provider. The policy under Ex.A2 did not cover the damages of owner property except the lorry / tanker. Thus, Exclusion Clause-2 (a) and (b) of Ex.A2 and Ex.B4 clearly shows that the opposite parties are not liable in respect of damage to property belonging to the insured or to any servant or agent or sub-contractor of the insured. The complainant filed Ex.A6 in which number of documents were placed / shown. As per the complainant the surveyor report dt:21.09.2015 stated that the “legal liability claim” is tenable, but the complainant did not mention later part of the report, which clearly shows that “in view of the reasons as narrated in the agreement, details of the survey report, we opine that the subject Carriers Legal Liability claim is tenable under the policy subject to: the insured has to submit the original documentary proof to the extent he has remitted the amount to BPCL, solely for the lost / short delivery of HSD due to accident occurred on 19.02.2015, and further it stated that in the subject claim the owner of the vehicle and the transporter are one and the same. Hence, claim may be waived”. It was further mentioned in the surveyor’s report under the head of details of consignment that oil tanker bearing registration No.AP-03-Y-5042 was subsequently after reaching Tada Co-op. Depot after the accident the depot officials again raised one invoice for 12 KL HSD petroleum product under invoice No.1320170295 dt:23.02.2015 at about 11.50 a.m. and the value is Rs.6,42,963/- including DLY/Taxable charges since the invoice was raised in favour of M/s.K.G.N.Company, Bharat Petroleum Dealers, Hathyramji Colony, Tirupati. The K.G.N.Company belongs to the complainant. When the accident was occurred on 19.02.2015, immediately on 23.02.2015 again the lorry took the petroleum in 12KL HSD capacity to the petrol bunk of the complainant. Thus the complainant is doing business transporting petrol to his own petrol bunk i.e. filling station.

            13.  The opposite parties specifically contending that the complainant has violated the terms and conditions of the policy under Ex.A2, that the complainant being the owner of the lorry transporting petroleum for his own petrol bunk / filling station in the name and style of M/s. KGN Company, Tirupati, the diesel that was being carried in the vehicle of the complainant belongs to the complainant and no insurance was taken for the goods i.e. diesel transporting in the vehicle. Therefore, the complainant being the insured of the vehicle is not entitled to the claim under the policy covered by Ex.A2. For this objection, there is no answer from the complainant either in his complaint or in his evidence affidavit or in his written arguments. Therefore, under the above circumstances, we are of the opinion that the repudiation of the claim in respect of the policy under Ex.A2 made by the opposite parties is justified. Accordingly, this point is answered.

            14.  Point No.(ii):-  in order to answer this point, we have to state that though the complainant in his complaint stated that he purchased the lorry / tanker bearing No.AP-03-Y-5042 to eke-out his livelihood, infact it was established by the record that it is a goods carrier vehicle and the complainant is doing business under the name of M/s. KGN Company and that he is the proprietor of the said M/s.KGN Company, that he is using the vehicle AP-03-Y-5042 for commercial purpose. Thus, it is clear that the complainant being the owner of the lorry doing business of petrol filling station of BPCL at S.No.269, Tiruchanur Road, Tirupati, Chittoor District, to this extent, document filed under Ex.A6 issued by Government of India, No.P/SH/AP/11/9057(P249744), renewal of the licence of the complainant, to transport petroleum Class-A or Class-B in bulk on land by mechanically propelled vehicles, subject to the provision of the Petroleum Act 1934 and rules made thereunder, and the licence shall be valid upto 31.12.2012. Subsequently, on 03.12.2004 Letter of Appointment issued by Bharat Petroleum Corporation Limited (A Government of India Enterprise) addressed to M/s. K.G.N.Company, D.No.19-8-213, Hathiramji Colony, Bairagipatteda, Tirupati, Chittoor District, under reference No.NLR/TRT/Tirupati, in which it was stated that this is further to you acceptance to the terms and conditions as set out in the LOA issued vide ref:NLR/TRT/Tirupati, Dt:02.09.2004, we have pleasure in offering you a MS/HSD Dealership in respect of your filling station at S.No.269, Tiruchanur Road, Tirupati, Chittoor District, A.P. with effect from 02.09.2004. We note that the dealership will be run as an arm of your this transport firm in the same name and style of M/s.K.G.N.Company, as Licencee with the following as proprietor Shri B.Chand Basha (complainant), S/o. Bashamiya, and it shall be remain in force for a period of 15 years from that date. So, it is clear that the complainant is having dealership in respect of filling station at S.No.269, Tiruchanur Road, Tirupati, in the name and style of M/s.K.G.N.Company, and his licence will be in force for about 15 years from 02.09.2004. Therefore, it is clear that the complainant is doing business, which is a commercial one. The complainant did not file original documents, even the photographs of the vehicle are also Xerox copies, which are totally appears black in colour and some of the documents are not visible, as such genuineness of the documents were appears to be suspicious. Now, it is pertinent to refer definition of Consumer under Section-2(1)(d) of C.P.Act 1986, which runs as follows:-                                   

      “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 [but does not include a person who avails of such services for any commercial purpose] [Explanation of Section-2(1)(d) further contends that purposes of this clause “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”

 

            15.  Here, in this case though the complainant used the words that he purchased the lorry / tanker for the purpose of earning his livelihood by means of self-employment, the facts on record are quite different. He himself stated that he is the service provider for BPCL. If this is true, when the lorry met with an accident and the entire diesel was drained out from the lorry / tanker, the BPCL who entrusted the transport of diesel to Tada, definitely would have made a claim against the complainant, but no such claim is there, it itself shows that the complainant himself is the owner of the goods / diesel oil and as well as the lorry / tanker. Thus, it is clear that the complainant is doing business by maintaining filling stations (Petrol Bunk) and he is using the vehicle bearing No.AP-03-Y-5042 for the commercial purpose. Under the above circumstances, we are of the opinion that the complainant since using the vehicle for commercial purpose, the complaint before the Consumer Forum is not maintainable. Accordingly, this point is answered.

            16.  Point No.(iii):-  in view of the discussions made under points 1 and 2, and in view of the own documents of the complainant under Exs.A2 and A6, it clearly shows that the complainant is not entitled to the claim under Carriers Legal Liability Policy under Ex.A2, and that the complainant since using the lorry for commercial purpose and he is also doing business in maintaining filling station in the name and style of M/s.K.G.N.Company, as proprietor, the complaint is not maintainable before the Consumer Forum.

            In the result, complaint is dismissed. No costs. 

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 28^th day of December, 2016.

 

      Sd/-                                                                                                                       Sd/-                        

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1:  Baiggari Chand Basha (Chief Affidavit filed).              

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: G. Chinnanna (Chief Affidavit filed).    

 

             EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s            

Exhibits (Ex.A)	Description of Documents
	GCV Public carrier other than 3 wheeler package policy. Policy No.0512003113P107896486 for registered vehicle AP-03-Y-5042 for a period of 28.02.2014 to Midnight of 27.02.2015 for ID value of 9 lakhs issued by the Opposite Party No.1.
	Carrier’s Legal Liability Policy. Policy No.051200/46/13/70/00000116 issued by the Opposite Party No.1for ID value of 8 lakhs for the registered vehicle AP-03-Y-5042 in favor of the complainant. Period of Insurance from 28.02.2014 to Midnight of 27.02.2015.
	Letter from Opposite Party No.1 intimating to the complainant repudiating the claim as No Claim. Dt: 15.12.2015.
	Letter from the Complainant to the Opposite Party No.1 to furnish the copies of claim form along with Surveyor’s Report under RTI Act by enclosing Postal Order of Rs.20/-. Dt: 10.02.2016.
	Office copy of Legal Notice to the Opposite Party No.1 by the complainant marking copy to the Opposite Party No.2 along with news item of Eenadu. Dt: 27.11.2015.  Dt: 22.02.2016.
	Letter from Regional Manager, United India Insurance Co. Ltd., Hyderabad furnishing the information under RTI Act along with Surveyor’s report etc. Dt: 17.02.2016.
	Office copy of Legal Notice to Opposite Party No.1 to reconsider the complainant’s claim as per Surveyor’s report and to settle the matter with Postal Ack. Dt: 16.03.2016.

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Copy of the GCV- Public Carrier other than 3 wheeler package policy copy bearing No.0512003113P107896486 filed on behalf of the Opposite Party. Period of Insurance from 28.02.2014 to Midnight of 27.02.2015.
	Copy of Carrier’s Legal Liability Policy bearing No. 051200/46/13/70/ 00000116 with terms and conditions filed on behalf of the Opposite Party.
	Claim form submitted by the claimants filed on behalf of the Opposite Party.
	Letter addressed to the Complainant by the Opposite Party filed on behalf of the Opposite Party. Dt: 15.12.2015 with Ack.
	Report submitted by the surveyor filed on behalf of the Opposite Party. Dt: 21.09.2015.

                                                                                                                                         

                                                                                                                                    Sd/-  

                                                                                                                                 President

                                     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

           Dist. Consumer Forum-II, Tirupati.

  

         

Copies to:-     1.  The complainant.

                        2.  The opposite parties.