JUDGEMENT

          Complainant by filing this complaint has submitted that complainant obtained a Marine Declaration Policy from the op no.1 by paying requisite premium and op no.1 issued a Marine Declaration Policy being No.51020021110200000035 and the said policy was valid from 20.02.2012 to 19.02.2013.

          On 28.08.2012 complainant loaded sesame oil (Till Oil) of 31315 Kgs in Oil Tanker No. WB23C-4173 belong to NavinLiquide carrier from the complainant’s mill at Rangamati, Medinipure and sent for weighment at Mahavir weighing, Rangamatiabout 3:34 P.M. and the said loaded Tanker Truck weighed at 16.07.52 hours at Mahavir weighing and weighment was 31315 Kgs (gross) and the said Mahavir weighing, Rangamati issued a weighment certificate.

          After weighment the said tanker truck was returning to complainant’s mill and near Birla Mill Gate the said tanker truck got break down and the driver of the tanker truck was rushed for searching of a mechanic for repairing the break down tanker truck.  The Driver of the said tanker truck on returning at the spot noticed that the valve of the said tanker truck was opened and oil was spilling and staff of the copmplainant was trying to close the valve of the said tanker truck.

          After closing the valve of the said tanker truck the driver of the said tanker truck brought the tanker truck again to the Mahavir weighing for ascertaining the loss of the oil.  After weighment it appears that the weighment of the oil after loss became 28710 Kgs and there is a loss of 2605 Kgs of oil.

          Thereafter the complainant lodged a complaint to the inspector-in-charge Kotwali Police Station, PaschimMedinipur and the Mahavir weighing where the tanker truck had gone for weighment issued a weighment certificate on their letter head on 14.09.2012 and the Carrier Navin Liquid Carrier also lodged a written complaint to the Inspector-in-charge, Kotwali P.S., PaschimMedinipur.

          That thereafter lodged an insurance claim to the op no.1 vide letter dated 20.10.2012 claiming a sum of Rs.2,24,030/- being the value of loss of sesame oil (2605 Kgs X Rs.86/-).  The complainant also claimed that the survey fees paid to P.K. Mitra surveyor on 11.10.2012 through NEFT amounting to Rs.10,200/- thus total amount of claim stands Rs.2,34,230/-.

          As because complainant is entitled to receive the survey report at the first instance and for which the complainant has paid the survey fees directly to Mr. Promode Kumar Mitra the surveyor and the said surveyor submitted his report on 29.09.2012 and complainant also received a certificate of damages dated 03.09.2012 from Navin Liquid Carrier which was handed over to the surveyor prior to submitting his report.

          Complainant thereafter by a letter dated 04.09.2012 addressed to the op no.1 submitted sever coloured photographs and information to the Kotwali Police Station Medinipore by Navin Liquid carrier and complainant on 14.09.2012 submitted further replies/documents to the op no.1 for quick settlement of the insurance claim of the complainant.  Thereafter by two letters dated 26.12.2012 addressed to op nos. 1 & 2 further requested for early settlement of the insurance claim but on a sudden the op no.2 by an E-mail dated 03.01.2013 repudiated the insurance claim of the complainant contending that “the claim is not admissible as the surveyor has pointed out there is no loss”.

          In the above circumstances, op for illegal and arbitrary decision and for not applying judicious mind and for repudiating the claim, ops are responsible and for which the complainant was compelled to file this complaint for relief.

          On the other hand op/Insurance Company by filing written statement submitted that there is no police report regarding such incident which occurred on 28.08.2012 and statement made by Navin Liquid Carrier in letter dated 01.09.2012 being the GD and letter dated 28.08.2012 of Mukund Oil Mill being another GD and statement of the driver dated 01.09.2012 to the local P.S. and the damage certificate dated 03.09.2012 of the carrier, it is found that the loaded tanker has been left un attended by the driver and somebody had opened the valve resulting in spillage of oil from the stranded truck and the tanker was left unattended and there is no such assertion that Khalasi or any employee of the complainant was there for guarding when the driver went for searching out mechanic and it tantamount to utter negligence on the part of the insured and a violation of clause 8.1 “duty of assured loss” and clause 5 “transit duration clause” incorporated in the insurance policy.

          Moreover in the complaint or in the claim application there is no such assertion that driver was with a helper or any second man who was left behind to guard the loaded tank.  The tanker was left unattended by the authorized driver and the insured cannot escape the vicarious liability of such act when the law is well settled that the terms and conditions of the insurance policy has to be strictly construed to determine the rights and liabilities of the insurer and the insured and there is no explanation as to how the valve got opened which shows that the insured has not come up with clean hands.  Further it is submitted that tanker went for weighment and was coming back to the mill with the weighment certificate after which the other documents were to be prepared and the journey/stroke shipment of oil, as covered under the marine transit policy was to commence and such journey did not commence at all and hence, the alleged loss which had occurred during some other transit to the weigh bridge and back do not come under the insurance coverage and the insurance coverage attached only when the carrier leaves the consignor for the consignee and for no other transit.  In the above circumstances, the alleged loss is not a loss under the insurance policy and the claim was rightly repudiated by the insurance company and such repudiation do not tantamount to deficiency in service.

          Practically the said alleged loss was caused or occurred during a movement of the carrier from mill to weigh bridge which was not covered under the policy.  Hence, no liability attaches under the policy and in the above circumstances after considering the report of the surveyor the op repudiated the claim and there was no illegality on the part of the op and so op has prayed for dismissal of this case.

Decision with reasons

          After hearing the Ld. Lawyers of both the parties and also considering that time fact that complainant holds a Marine Transit Insurance Policy and it is undisputed fact the parties are guided and controlled by the terms and conditions of the said Marine Transit Insurance Policy and it is settled principle of law as observed by the Hon’ble Apex Court in so many judgement that there is no scope on the part of the Consumer Forum up to higher stage to give any relaxation of the clause of the terms and conditions and there is no scope of any interpretation of the terms and conditions by the Forum even up the higher stage and in this regard we have gone through the total fact of the complaint and it is fact that the said transit loaded with sesame (Till Oil) was not proceeding towards Kerala.  But fact remains that transit was loaded with sesame and thereafter they were preparing the said truck for weighment and after weighment there was the said truck shall have to come back to the mill and thereafter further documents shall be prepared and after that the invoice, challan, transit challanetc shall be handed over to the carrier for transit.

          Most interesting factor is that in this case no document is filed by the complainant that all vouchers etc were handed over their carrier along with transit pass of the company and fact remains complainant has not denied that fact.  Then it is clear that before handing over transit pass along with invoice, vouchers, delivery challan from the mill, the incident took place and it took place at the time of weighing when other subsequent procedure has not been matured that is preparation of challan, preparation of invoice, preparation of delivery challan, preparation of transit challan etc.  Then it is clear at the time of loading and for preparing the same for transit incident took place.  But in the present Marine Transit Insurance Policy it is specifically stated that terms of the insurance is guided as per clause as mentioned in the said policy and in this case considering the terms and conditions of the Inland Transit Rail or Road Clause A it is found that the transit was not finally prepared for journey from PaschimMedinipore to Kerala.  But it was under preparation stage.  No transit pass was issued by the complainant to the driver of the carrier and practically transit matter was not performed and complainant has failed to produce any such paper that after handed over all papers and preparing all materials for transit from PaschimMidnapore to Kerala on way the incident took place.  So, considering the above fact it is clear that the said vehicle was not finally released by the complainant on transit and the vehicle on transit towards Kerala.

          Further fact is that as per Inland Transit Rail & Road clause A and as per terms and conditions of the policy, it is the condition precedent of the insurance that insurer is bound to report each and every dispatch coming under the scope of the policy without any exception and fact remains no dispatch was prepared and handed over to the driver or the carrier to prove that the said truck loaded with sesame was dispatched for Kerala and considering that term it is clear that truck was not dispatched for transit to proceed towards Kerala.  But during their processing the incident took place.

          So, we are strictly governed by the policy condition and no exception or realization can be made on account of the equity and in this regard we have relied upon one direction of National Commission reported in 2013 (4) CPR 165 (NC).  But anyhow in the present case Ld. Lawyer for the complainant submitted one judgement of the State Commission passed in S.C. Case No. FA 126/2012 and judgement dated 04.07.2012 and tried to convince that there was no fault on the part of the driver because complainant’s driver went to call a mechanic when the incident took place and it is accepted that he will keep security man to safeguard the vehicle and would not leave it unattended. 

          So, no terms and conditions of the policy have been violated.  No doubt we have gone through thatjudgement.  But fact remains Hon’ble Supreme Court already decided in so many judgements that the Forum cannot go beyond the terms and conditions of the policy and there is no scope to interpret any law by any Forum even up to highest level and fact remains in that judgement after reading the judgement it is found in that case of theft was committed in respect of one vehicle and practically it was the defence of the Insurance Company for repudiation of the claimon the ground that terms and conditions of the policy was violated but Ld. State Commission and insured is directly bound to follow the terms bit it is not expected that insured shall always depute security and would not leave vehicle unattended as observed by the Ld. State Commission.

          But in this regard we have gone through the interpreted sides of the judgement  of the Hon’ble Supreme Court and the judgement of National Commission reported in 2012 (4) CPR Page-4 (NC) wherefrom it is found that National Commission has confirmed no claim shall be entertained if on transit any incident of theft occurred due to drive or owners failure and if vehicle is found unattended and unlocked.  So question is what ruling shall be relied whether the State Commission or the National Commission.  But it is settled principle of law that verdict of highest Forum shall prevail.  So considering that ruling of National Commission as referred we find the judgement of the Ld. State Commission is not binding upon us and another factor is that Ld. State Commission orHon’ble National Commission have their no legal right to go outside the terms and conditions of the policy in view of the settled position as already delivered byHon’ble National Commission in a ruling reported in 2012 (4) CPR 165 (NC).  So, we are bound by the conditions of the insurance policy because it is the settled position of law and if anyone wants to interpret any statue in that case that authority must have some constitutional power to decide it and to declare it as ultra virus and if it is not ultra virus in that case no Forum has power to pass any order against the law and statute or legal contract.  So, we are unable to rely upon that judgement of State Commission.  Now we again entered into the terms and conditions what we have already discussed and it is found that no transit pass was handed over to the carrier or the driver and no dispatch voucher was handed over to carrier for delivery of the loaded tanker truck.

          The loaded truck was not dispatched by the complainant for journey from PaschimMidnapore to Kerala.  But prior to dispatch or transit of the said vehicle loaded with sesame was under preparation for delivering several papers related to dispatch for the transit with loaded sesame and to handover invoice, vouchers etc including weighment chart.  So it is proved that it was under preparation stage and the complainant has failed to prove that the transit pass was dispatched for transit and no such document is produced.  So, considering that fact and also relying upon the ruling reported in 2013 (4) CPR 165 (NC) we are convinced that we are strictly governed by the policy condition and we have no power to give any explanation whatever it may be on the ground of equity also.  But in this case it is proved that as per terms and conditions of the insurance policy the truck loaded with sesame was never dispatched or was not on the transit or was never delivered to the carrier along with invoice sheet for delivery to Kerala and it was not on the way to Kerala.

          But it was under preparationstage and first stage to collect invoice sheet after loading that was never taken.  So, it is proved that as per terms and conditions of the policy the said truck loaded with sesame were not on transit and it was never dispatched from the mill along with all papers, vouchers, invoices of the delivery challan and consignment letter by handing over the same to the carrier and the driver.  So, under any circumstances, the complainant has failed to prove that the vehicle was dispatched from the mill after handing over the dispatch letter, other invoice sheet and other related matters to the driver through carrier.  So, it is proved that loss was caused during preparation before dispatch and so we are convinced that particular alleged loss had occurred during the movement of the tanker to weigh bridge which is not covered under the policy and in the above circumstances we are convinced to hold that claim was rightly repudiated by the op because as per terms and conditions of the transit policy vehicle was not released by the mill after handing over dispatch vouchers, letters to the carrier or the drive of the vehicle and the said vehicle did not leave after taking dispatch with other papers.  So, the entire claim is not covered by the present policy and for which complainant is not entitled to get any relief for which the complaint fails.

          Hence, it is

ORDERED

          That the complaint be and the same is dismissed on contest without any cost against the ops.