Haryana

Ambala

CC/356/2015

Jagdeep Kumar - Complainant(s)

Versus

United India Inss.co.Ltd. - Opp.Party(s)

Raj Mahak Rana

19 Dec 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 356 of 2015

                                                          Date of Institution         : 16.12.2015

                                                          Date of decision   :  19.12.2017

 

Jagdeep Kumar son of Shri Raj Kumar, resident of village Khudda Khurd, Tehsil and District Ambala.

……. Complainant.

Vs.

 

United India  Insurance Co.Ltd. Chandigarh-Nahan National High Way, Anshika Complex Ist Floor, Opp. New Bus Stand, Naraingarh, District Ambala, through its Manager.

                                                                             …….Opposite Party.

 

Before:        Sh. D.N.Arora, President.

                   Sh.Pushpender Kumar, Member.

                   Ms. Anamika Gupta, Member.                  

 

Present:       Sh. Raj Mehak Rana, counsel for complainant.

                   Sh. Dev Batra, counsel for the OP.

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant is owner of Truck TATA-1109, bearing registration No. HR-37-8977 which he insured with the OP vide policy number 110182/31/14/01/ 00000681 commencing from 30.07.2014 to mid night 29.07.2015. The complainant took a consignment of 300 Boxes of Cycle Aggarbati belonging  to N Ranga Rao & Sons Co. through Mudgil Goods Career Ambala Cantt for Dehradoon. The Mudgil Goods Career booked the truck of complainant on 17.03.2015 and the complainant loaded the consignment on 19.03.2015. However, when the complainant reached near Kalesar Distt. Yamuna Nagar, due to engine short circuit suddenly a fire broke out in the truck of complainant  as a result of which 300 Boxes of Aggarbati loaded in the truck of complainant  were burnt  and the truck of complainant was also damaged badly. To this effect, a DDR No.20(A) dated 19.3.2015 was registered in police of P.S.Khizrabad. The matter of this incident was also reported to the OP by the complainant and they conducted due verification/investigation of the incident through their authorized surveyor/agent paid the damages of the truck after deducting some amount to the complainant, but did not pay the price of Aggarbati which was loaded in the truck and was completely burnt out with the reasons best known to them, though the OP are liable to pay the price of consignment/damages upto Rs.7.50 lacs. as Third party property according to the terms and conditions of the policy of insurance, issued by the OP to the complainant, whereas, the policy was enforce at the time of the complaint who is  a poor person has already paid a sum of Rs. 5,37,966/-the cost of consignment loaded in the truck, to M/S.N. Ranga Rao & Sons Co. the owner of Cycle Aggarbati, through his transport Co. namely Mudgil Goods Career, whereas, this amount should have been paid by the OP as they are held responsible to pay the entire amount of loss i.e. damages to the truck in question and the consignment loaded therein, as per the terms and conditions of the insurance policy, which the OP has not paid. Since, the property of third party was to be given by the OP, but inspite of the repeated requests of the complainant has failed to make the loss good of the complainant and did not pay the price of Aggarbati i.e. Rs. 5,37,966/- as yet. The complainant got served legal notice registered A.D. dated 04.06.2015 upon the OPs but all fell on deaf ears.  In this way, the complainant has suffered a financial loss and mental harassment. Hence, the present complaint.

2.                Upon notice, OP appeared through counsel and tendered written statement raising preliminary objections qua complaint is not maintainable non joinder of necessary party, false & frivolous and suppressed the true and material facts etc. On merits, the counsel for the OP stated that   The alleged version of engine short circuit or DDR etc.  is fabricated and manipulated one. There is no FIR & the alleged version of DDR is never investigated. The alleged flammable aggarbati boxes were never insured for transit. The O.D.claim of the vehicle in  question i.e. Truck No.HR-37-C-8977 qua loss due to  fire was claimed under policy no beyond this was reported, claimed  or payable. Hence no relief qua third party loss is ever reported or even otherwise payable to the complainant & that too under policy abide. The complainant  has no legal right, title or interest to suo-moto pay the alleged amount of Rs. 5,37,966/- without any authority & now to claim the same from the OP. The counsel for the OP has further stated that it is only Marine Transit Insurance as per which goods in transit are covered. The goods carried inside the vehicle could not treat as property of a third party and even otherwise 3^rd party loss is claimable under Consumer Protection Act. There is no privity of contract between the OP and the complainant & even with the alleged owner of alleged goods or alleged transporter. There is no deficiency on the part of the OP and prayed for dismissal of the present complaint.

  3.              To prove his version complainant tendered his affidavit as Annexure C-1 along with documents as annexure C-2 to C-27 and close his evidence. On the other hand, counsel for the Op has also tendered affidavit as Annexure R/A alongwith documents as Annexure R-1 to R-5 and close his evidence.

4.                We have heard learned counsel for the parties and carefully gone through the case file.

5.                It is admitted fact that the OP has paid an amount of Rs.6,27,000/- qua Own Damage Claim with respect of the insured vehicle to the complainant as the damage has occurred during the subsistence of the policy in question i.e. having validity from 30.07.2014 to 29.07.2017. It is also not disputed by surveyor in his report Annexure R4 that the vehicle was loaded with 300 cases of Aggarbatties of M/s Ranga Rav & Sons at the time of accident vide consignment note NO.1306 dated 17.03.2015 of M/s Mudgil Goods Carrier from Ambala Cntt. To Dehradun, weighing 5100 Kgs.  The surveyor has also verified the factum of accident and damage to the effect that probably due to short circuiting of wiring of engine assy the vehicle caught fire initially in the engine assy compartment which was further proceeded to cabin assy and load body respectively reducing it to ashes before the fire could put off, causing extensive damage to it.  The surveyor has also pointed out that the spot survey has not been conducted by the company through their investigator.

6.                          Now, question arises whether the complainant is entitled for third party claim to the tune of Rs.5,37,966/- being loss on account of damage to the 300 cases of Aggarbatties of M/s Ranga Rav & Sons at the time of accident vide consignment note NO.1306 dated 17.03.2015 of M/s Mudgil Goods Carrier from Ambala Cntt. To Dehradun, weighing 5100 Kgs.

7.                          It is established on the case file that services of complainant were hired by M/s Mudgil Goods Carrier vide booking No.1306 dated 17.03.2015 for carrying 300 boxes of aggerbatties of M/s NRanga Rav & sons  from Ambala Cantt. to Dehradun. The said boxes were having weight 5100 Kgs.

8.                          Though during the pendency of this complaint OP moved an application to issue directions to the complainant to place on record original booking receipt No.1306 dated 17.03.2015 issued by M/s Mudgil Goods Carrier and to produce booking receipt book. The application was duly replied by the complainant wherein it has been mentioned that the all original documents including original receipt etc. got burnt and as per information no record/receipt book qua receipt No.1306 as available with it as after passing of one year the same has been destroyed by the firm. It is not disputed that the vehicle in question alongwith the material loaded with it got burnt, therefore, the ground mentioned in the application by the complainant appears to be plausible and cannot be disbelieved. Accordingly, we dispose of this application.

9.                          In order to resolve the controversy the complainant has placed on record Annexure C6 i.e. Goods Transfer memo amounting to Rs.85110/- vide booking No.1306 as well as Annexure C7 i.e. copy of Goods Transfer Memo amounting to Rs.9,10,110/-. The complainant has also placed on record copy of account of statement of Annexure C19 wherein it been mentioned that an amount of Rs.5,37,966/- has been paid to M/s Mudgil Goods Carrier on 16.05.2017 who further transfer that amount (Rs.5,37,966/-) to N.Ranga Rav, Ambala being the value of the damaged boxes of Aggarbatties 21.05.2017.

10.                        We have perused the insurance policy Annexure C4 and the same clearly depicts that Damage to the third party property in respect of one claim or services arising out of one event Rs.7,50,000/-  but this clause does not applicable in the present because the complainant was providing service for own benefit and profit as the tanker in question was hired by  M/s Mudgil Goods Carrier on 16.05.2017 for carrying the goods belonging to N.Ranga Rav, Ambala.  The complainant has not come with the plea that the goods carried out by him were taken after obtaining transit policy by making necessary premium.

                    Learned counsel for the complainant has argued that as per Section 95 of the Motor Vehicles Act, 1939 a policy was required to be taken covering damage to the property of a third party caused by or arising out of the use of vehicle in a public place and as the goods carried in the tanker of the complainant were the properties of third parties, the insurance company was liable to reimburse the amount of Rs.537966/- which the complainant had paid to M/s Mudgil Goods Carrier on 16.05.2015 who further transfer that amount (Rs.5,37,966/-) to N.Ranga Rav, Ambala being the value of the damaged boxes of Aggarbatties 21.05.2015.   On the other hand written submission given on behalf of the insurance company reveals that the vehicle having been set on fire on 19.03.2015 were not denied. However, it was pleaded that the goods carried in vehicle did not fall under the category of third party and risk for the value of goods was, thus, not covered by the terms of policy.  In support of his arguments reliance of case law titled as M.Nageswara Rao and another Vs. National Insurance Company  and another  2004 (2) CPJ  33 (NC). Hon’ble National Commission while deciding the case has held relied upon Section 95 of the said Act reads as under:

                   Requirements of policies and limits of liability:

                   1.In order to  comply with the requirements of this chapter of policy of insurance must be a policy which

                   (a) is issued by a person who is an unauthorized insurer or by a cooperative society allowed under Section 108 to transact the business of an insurer; and

                   (b) insures the person or classes of persons specified in the policy to the extent of specified in sub section (2)

                    (i)against any liability which may be incurred by him in respect of the death of or bodily injury, to, any person or damage to any property of a third party, caused by or arising out of, the use of the vehicle in a public place.

(ii)against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.

2.Subject to the provision of Sub-Section (1), the policy of insurance shall cover any liability           incurred in respect of anyone accident or up to the following limits namely

(d) irrespective of the class of the vehicle, a limit of Rs.6,000/- in all in respect of damage to any property of a third party.

Hon’ble National Commission  has further held as under :

                   “7.To be noted under the insurance policy in question for damage caused to the property of a third party, the insurance company had undertaken the liability to a limit of Rs.6,00,000/-. In our view, words ‘property of third party’ occurring  in the said section refers to the property not inside (carried) but outside the vehicle  and this conclusion finds supports from Kishori V. Chairman Tribal Service Co-op. Society Ltd. and others, 1998 rendered by High Court of Madhya Pradesh. That apart, liability for damage to the goods is to be determined with reference to the terms and conditions of the policy in question.   No contrary law has been given by the learned counsel for the complainant to rebut the pleadings as well as case law relied upon by learned counsel for the OP. It is not disputed that when the fire broke out then the boxes of aggarbaties were lying inside of the tanker and the complainant is also claiming the amount of the goods which were being carried by him in a tanker. It is not the case of damage of third party outside the vehicle. It is admitted fact the complainant has already received the OD claim amounting to Rs.6,27,000/-.

                             Keeping in view the above said facts and circumstances as well as the law laid down in M.Nageswara Rao and another Vs. National Insurance Company  and another  (supra),  which is squarely cover under law laid down, there is no deficiency in service on behalf of the OP insurance company and the complainant is not entitled for any compensation. Accordingly, we dismiss the present complaint leaving the parties to bear their own costs.  Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on: 19.12.2017    

 

 

                                                                                                                    

(PUSHPENDER KUMAR)   (ANAMIKA GUPTA)       (D.N. ARORA)

          Member                               Member                                President