BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                 Dated this the 9^th of December 2010

PRESENT

                                                    SMT. ASHA SHETTY           :   PRESIDENT

                                                                      SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.130/2010

(Admitted on 17.04.2010)

Ms.Prabhu Ganesh Transport,

Bulk Carriers and Transport Contractors,

Varija Complex,

Opp: MRPL Cargo Gate,

Bala, Mangalore  575 030.                 …….. COMPLAINANT

(Advocate for the Complainant: Sri.Manoraj R.)

          VERSUS

The General Manager,

Oriental Insurance Company Limited,

Balmatta Road,

Mangalore.                                ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Smt. Hemalata Mallya).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The case of the Complainant is that, the Complainant had taken Carrier Legal Liability Policy from the Opposite Party to the tune of Rs.7,00,000/-.  The Complainant submits that, he had insured Aviation Turbine Fuel (herein after called ‘ATF’) product transported from Mangalore to Bangalore through goods vehicle bearing Registration No.KA-19B-9788 with the Opposite Party.  It is further stated that, the aforesaid vehicle had met with an accident at Nelyadi and ATF products of 13378 liters lost out of 20,000 liters.  The balance 6,622 liters was returned to the HPCL Terminal by the Complainant.  As per the contractual terms, the Complainant was liable to make good of the loss to the HPCL and accordingly, he had paid Rs.3,57,868/- to HPCL for the lost product.  The cash receipt issued by the HPCL towards PCB claims transit account produced along with the complaint. 

It is stated that, he had lodged his claim with regard to the aforesaid matter, the Opposite Party has paid a sum of Rs.2,62,000/- instead of Rs.3,57,868/-.  The Opposite Party honoured the claim on the basis of the value shown in the debit note of HPCL, the same is not actual loss suffered by the Complainant.  The value shown in the debit note of HPCL is the basic value of the product on stock transfer between inter branches of the Corporation and not the sales realization of the product as applicable at receiving destination.  The loss value is determined on the basis of sale realization value of the product as applicable at the receiving destination.  It is stated that, the confirmation/clarification in this regard issued by the HPCL, despite of that, the Opposite Party failed to pay the difference amount of Rs.95,868/-.  Hence, the Complainant was constrained to issue a legal notice requesting and demanding to honour his claim but the Opposite Party failed to comply the demand made therein.  Therefore, the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay a sum of Rs.95,868/- towards the difference amount of the claim along with interest at 12% p.a. from the date of repudiation till payment and also claimed Rs.25,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version, admitted the policy and stated that, this Opposite Party issued a Carriers Legal Liability Policy to the Complainant and the said policy was valid upto 31.10.2009.  The above vehicle met with an accident on 10.05.2009 and it was carrying 20,000 liters of ATF from Mangalore to Bangalore and the invoice value is Rs.4,17,506.24.  The Opposite Party has appointed the Surveyor and the Surveyor has assessed the loss of ATF to the extent of 13,232 liters.  As per the invoice, the value of the said ATF comes to Rs.2,62,994.84 only.  After applying the policy conditions, the Opposite Party has paid Rs.2,62,000/- to the Complainant and the same has been accepted as full and final settlement and discharged the voucher to that effect on 30.06.2009.  It is stated that, the Legal Liability is only for actual physical loss and it does not cover any profit.  The contract between the Complainant and the third party is not binding upon the Opposite Party and contended that, the claim is settled on the basis of actual loss and policy conditions and there is no deficiency as alleged by the Complainant and prayed for dismissal of the complaint. 

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Sri.S.Prabhu Ganesh (CW1) – Proprietor of M/s.Prabhu Ganesh Transport filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   The Complainant produced 11 (eleven) documents as listed in the annexure.   One Mr.Sudhakara (RW1), Senior Divisional Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him.  One Mr.Harsha D’Souza (RW2) – Surveyor, Loss Assessor and Valuer – witness of the Opposite Party filed affidavit and answered the interrogatories served on him.  Ex R1 to R6 were marked for the Opposite Party as listed in the annexure.   The Complainant produced notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:                          

                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

The fact which are not in dispute is that, the Complainant had taken Carrier Legal Liability Policy from the Opposite Party for a sum of Rs.7,00,000/- and the same is valid from 06.02.2009 to midnight of 31.10.2009 (i.e., as per Ex R3).  It is also admitted that, under the above said Insurance Policy, the Complainant had insured Aviation Turbine Fuel (herein after called ‘ATF’) product transported from Mangalore to Bangalore through the goods vehicle bearing Registration No.KA-19B-9788 with the Opposite Party.  It is also admitted that, the aforesaid vehicle met with an accident on 10.05.2009 at Nelyadi and ATF products of 13,378 liters lost out of 20,000 liters.  It is also admitted that, the Opposite Party has paid a sum of Rs.2,62,000/- under the above said policy. 

Now the point in dispute between the parties before this FORA is that, even after admitting the Insurance Policy and the sum assured under the policy, the Opposite Party paid only Rs.2,62,000/- as against the loss of Rs.3,57,868/- i.e., the sales realization value of the product as applicable at the receiving destination from the Complainant.  According to the Complainant, he is entitled for sale realization value of the product as applicable at the receiving destination and not the value shown in the debit note of the HPCL.

The Opposite Party interalia contended that, after applying the policy condition, the Opposite Party has paid Rs.2,62,000/- to the Complainant and the same has been accepted as full and final settlement and discharged the voucher.  The legal liability is only for actual loss and it does not cover any profit. 

The Complainant filed oral evidence by way of affidavit and produced 11 (eleven) documents.  Opposite Party also filed oral evidence by way of affidavit and produced Ex R1 to R6.

On perusing the admitted facts as well as material evidence on record, we find that, the Complainant obtained the Carrier Legal Liability Policy from the Opposite Party for a sum of Rs.7.00 lakhs and the same is valid upto midnight of 31.10.2009.  We also noticed that, the above said vehicle met with an accident on 10.5.2009 and ATF product of 13,378 liters lost out of 20,000 liters which belongs to HPCL. The HPCL being a public sector company engaged the transport contract with the Complainant and thereby the Complainant has being permitted to transport the petroleum product of the HPCL as required by the Company.  We also noticed that, the Complainant’s vehicle bearing registration No.KA-19B-9788 was filled with 20,000 liters capacity of aviation turbine fuel of the HPCL to be transported from Mangalore to Bangalore.  As per the invoice, the value of the 20,000 liters of AFT was shown as Rs.4,17,506.24.  The said value which has been shown in the stock transfer document is the basic price but not the sales realization value of the product as applicable at the destination.  The HPCL determined the loss value on the basis of sales realization value of the product as applicable at the receiving destination, accordingly, the HPCL debited Rs.3,57,868/-  and not Rs.2,62,000/- as determined by the Opposite Party.  The above said amount was paid by the Complainant, the same is not contradicted by the Insurance Company. The only dispute is that, Opposite Party Company is not liable for the sales realization value of the product at the destination.  In the present case, we observed that, HPCL raised a claim from the Complainant for Rs.3,57,868/- i.e., the loss held responsible by the Complainant and recovered the same from him.  When that is so, the Complainant is entitled for the loss suffered by him, because Complainant insured the product on transit and the said product which was being carried in the tanker was met with an accident, the Opposite Party being a Insurance Company shall reimburse the loss suffered by the Complainant to the extent of Rs.3,57,868/- and not Rs.2,62,000/-.  The Opposite Party Company basing on the Surveyor’s report dated 02.06.2009 paid the partial loss i.e., Rs.2,62,000/- to the Complainant which is not correct.  The Opposite Party being Insurance Company must interpret the insurance policy as per the terms and conditions incorporated under the policy and not otherwise.  The insurance policy is obtained only for indemnifying the loss suffered by the insured under the policy.  But in this case, the interpretation of the Insurance Company is devoid of merits. 

We have further noticed that, the surveyor appointed by the Opposite Party Company in this case not considered the loss suffered by the Complainant but has relied only the basic value of the fuel which is not correct.  Hence, the surveyor’s report to that extent is not acceptable.  The documents i.e., document No.1 to 11 produced by the Complainant before this Forum proved beyond doubt that, the Complainant suffered a loss to the tune of Rs.3,57,868/- i.e the sale realization value of the product at the destination recovered by the HPCL.  By considering the above, we hold that, Opposite Party i.e., Oriental Insurance Company Limited represented by its Divisional Manager is hereby directed to pay the difference amount of Rs.95,868/- to the Complainant along with interest at 10% p.a. from the date of complaint till the date of payment.  That, the interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.  Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.                                     

6.       In the result, we pass the following:                                  

ORDER

The complaint is allowed.  Opposite Party i.e., Oriental Insurance Company Limited represented by its Divisional Manager is hereby directed to pay the difference amount of Rs.95,868/- (Rupees ninety five thousand eight hundred and sixty eight only) to the Complainant along with interest at 10% p.a. from the date of complaint till the date of payment.  And also pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order. 

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 9^th day of December 2010.)

          PRESIDENT                                                    MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.S.Prabhu Ganesh – Proprietor of M/s.Prabhu Ganesh Transport.

Documents produced on behalf of the Complainant:

Doc. No.1: 21.05.2009: Claim letter cum debit note.

Doc. No.2: 01.06.2009: Letter issued by H.P.C.L.

Doc. No.3: 18.06.2009: Letter written by the Complainant to HPCL.

Doc. No.4: 07.07.2009: Copy of the letter written by the Complainant to the Opposite Party.

Doc. No.5: 12.11.2009: Copy of the legal notice issued by the Complainant to the Opposite Party.

Doc. No.6: 12.11.2009: Postal receipt.

Doc. No.7: 16.11.2009: Postal acknowledgement.

Doc. No.8: 25.05.2009: Copy of the Demand Draft issued by the Complainant to HPCL.

Doc. No.9: 30.06.2009: Copy of the cheque issued by the Opposite Party to the Complainant.

Doc. No.10: 09.09.2009: Letter written by the Opposite Party to the Complainant. 

Doc. No.11: 17.06.2010: Photocopy of the judgment passed in complaint No.243/2009 passed by the Hon’ble Forum.

Witnesses examined on behalf of the Opposite Party:

RW1 – Mr.Sudhakara, Senior Divisional Manager of the Opposite Party.

RW2 – Mr.Harsha D’Souza – Surveyor, Loss Assessor and Valuer – witness of the Opposite Party.

Documents produced on behalf of the Opposite Party:    

Ex R1 – 09.09.2009: Letter of the Opposite Party to the Complainant.

Ex R2 – 30.06.2009: Discharge voucher.

Ex R3 -                 : Carrier’s Liability Policy bearing No.422200148/2009/2535 for the period from 06.02.2009 to 31.10.2009 along with conditions.

Ex R4 – 02.06.2009: Survey report issued by Sri.Harsha D’Souza, Surveyor, Loss Assessor and Valuer along with photos (23 in numbers).

Ex R5 – 14.08.2009: Report along with rate list.

Ex R6 – 09.05.2009: Invoice.

Dated:09.12.2010                            PRESIDENT