IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA
Dated this the 21st day of July, 2014
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member-I)
Smt. Sheela Jacob (Member-II)
C.C.No.149/2013 (Filed on 23.11.2013)
Between:
M.C. Joseph,
Manaladil Fuels,
Idinjillam,
Perumthuruthi.P.O.,
Thiruvalla – 689 107.
(By Adv. Siby James) ….. Complainant
And:
- Divisional Manager,
United India Insurance Co.,
Divisional Office,
Kizhakkedathu Building,
P.B.No.34, Main Road,
Pathanamthitta – 689 645.
(By Adv. P.D. Varghese)
- Branch Manager,
State Bank of Travancore,
Idinjillam, Thiruvalla.
(By Adv. G. Santhosh) ….. Opposite parties
O R D E R
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The brief facts of this complaint is as follows:- The complainant is the Proprietor of Manaladil Fuels, Thiruvalla, which is a retail outlet of Hindustan Petroleum Corporation. The said retail outlet of the complainant is insured with the first opposite party for Rs. 35 lakhs under Fire and Special Perils policy vide policy No.101784/11/12/11/00000001 which is valid from 05.04.2012 to 04.04.2013. The said policy was taken through the 2nd opposite party in connection with the loan transaction between the complainant and the 2nd opposite party. For stocking the petroleum products, the complainant had 3 tanks, having capacity of 22 KL., 16 KL and 9 KL. While so on 17.08.2012, water entered into the 9 KL diesel tank due to heavy rain occurred on that day and thereby 5209 liters of diesel was contaminated. Further 3 vehicles filled with the diesel from the said tank also sustained engine complaints. Immediately, the complainant intimated the matter to the 1st opposite party, who deputed a Surveyor and Loss Assessor who is inspected the site and prepared his survey report. Thereafter the complainant submitted the claim form before the 1st opposite party on 03.09.2012 claiming an amount of Rs.3,81,963-57. Subsequently, the 1st opposite party sent a letter to the complainant on 10.10.2012 asking the complainant to submit certain documents and directed to give clarification for 8 matters. Accordingly, the complainant had submitted the documents demanded by the first opposite party and he had also furnished his explanation as desired by the first opposite party. Thereafter, so many correspondences were made in between the first opposite party and the complainant. Finally on 30.01.2013, the first opposite party repudiated the complainant’s claim by stating that the Standard Fire and Special Perils Policy covers only named perils and rain water damages not a named peril and is not covered as an insured peril. Since the complainant’s damage is due to the flood consequent to the heavy rain, the repudiation of the complainant’s claim is an illegal act and is a deficiency in service. The complainant estimated his total loss and sufferings due to the acts of the first opposite party as Rs.10,82,693/- and the opposite parties are liable to the complainant for the same. Hence this complaint for the realization of Rs.10,82,693/- from the opposite parties under various heads.
3. First opposite party filed their version with the following main contentions:- First opposite party admitted the policy in question. According to them, the said policy was issued in the name of the 2nd opposite party for the complainant and hence the complainant ought to have been filed by the 2nd opposite party. So this complaint filed by the complainant is not the proper person and hence it is liable to be dismissed. However, on getting the information regarding the loss of the complainant, the first opposite party deputed Sri. Abraham Cherian, the approved Surveyor and Loss Assessor who inspected the spot and filed his survey report dated 25.09.2012. In the said survey report, he had stated that the said petrol pump has 3 under ground tanks for filling petrol and diesel and 2 tanks have diesel storage and one tank for petrol storage. The 22 KL. tank and the 9 KL. tank was used to fill diesel and 16 KL. tank was used to fill petrol. Each tanks were in separate concrete pits covered with concrete slabs having separate man hole pits about 2.5 x 2.5 feet square in size. The inlet and outlet flanges of the tanks are inside the pits. These pits are covered by M.S plates which can be removed for sample collection and filling of tanks. On 17.08.2012 due to the heavy rain, water entered into the concrete pits and water seeped inside the 9 kl. diesel tank, but water did not entered into the other 2 tanks. The entry of water only to the 9 kl. tank was caused due to the negligence on the part of the employees while capping/closing the manhole gasket. Further, the letter of HPCL Area Sales Manager submitted by the complainant also showed that entry of water happened due to rupture of manhole gasket due to torrential rain occurred during that day. The rupture of manhole gasket can be caused due to wear and tear also. As per the terms and conditions of the policy in question, coverage is given only to named perils and the rain water damage is not covered as an insured peril. Since the damage was caused due to rain water which is not covered under the policy in question, the first opposite party had repudiated the claim of the complainant. So the complainant had no cause of action against the first opposite party and he is not entitled to get any amount as prayed for in the complaint as the first opposite party has not committed any deficiency in service as alleged by the complainant.
4. The contentions in the version of the second opposite party is as follows: Second opposite party admitted that Rs.32 lakhs was given to the complainant as cash credit loan and the second opposite party had taken a Standard Fire and Special Peril Policy for the complainant for a period from 05.04.2012 to 04.04.2013 covering said Rs.32 lakhs. The said policy was taken for recovering the loss from the first opposite party, if the complainant sustains any loss. Therefore, the second opposite party is not responsible for the losses of the complainant and the second opposite party is not liable to pay any amount to the complainant. With the above contentions, second opposite party prays for the dismissal of the complaint against them.
5. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
6. The evidence of this complaint consists of the oral deposition of PWs.1and 2 and Exts.A1 to A13 and Ext.B1. After closure of evidence, first opposite party filed their argument note and both parties were heard.
7. The Point:- The complainant’s case is that the Petroleum Retail Outlet owned by the complainant is insured with the first opposite party for Rs.35 lakhs vide the first opposite party’s Standard Fire and Special Perils Policy and the said policy was valid from 05.04.2012 to 04.04.2013. During the currency of the policy, due to heavy rain, water entered into a diesel tank and 5209 liters of diesel got contaminated and become useless. Apart from the losses of diesel, the motherboard and keypad of the dispensing unit was also damaged due to the said incident which was also repaired by the complainant. Because of the above said incidents, the complainant had sustained a total loss of Rs.10,82,693/- on account of the loss of diesel, repairs and business loss etc. Since the policy is valid, opposite parties are liable to pay the said amount. But they have repudiated the complainant’s claim without any justifications. The above said act of the first opposite party is a clear deficiency in service which caused financial loss and mental agony to the complainant and hence the first opposite party is liable to the complainant for the same. Hence the complainant prays for allowing the complaint.
8. In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of his chief examination along with 12 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A12. Apart from PW1, the insurance surveyor who conducted the spot survey was also examined as PW2 and Ext.A13 is marked through PW2. Ext.A1 is the certified copy of complainant’s electoral I.D card. Ext.A2 is the certified copy of the letter dated 09.11.2009 issued by Hindustan Petroleum Corporation Ltd. in the name of the complainant showing the appointment of the complainant as the proprietor of the petroleum retail outlet. Ext.A3 is the letter dated 24.02.2014 issued by the second opposite party in the name of the complainant showing that the second opposite party had taken the policy in question. Ext.A4 is the copy of the policy certificate in question. Ext.A5 is the copy of the policy schedule and the terms and conditions of the policy in question. Ext.A6 is the news paper dated 18.08.2012 of Malayala Manorama daily. Ext.A7 is a copy of the weather report issued by India Meterological Department, Vikas Bhavan, Thiruvananthapuram showing the weather condition on 17.08.2012. Ext.A8 is the copy of daily stock register during 2012 August. Ext.A9 is the copy of the letter dated 18.10.2012 of Hindustan Petroleum Corporation Ltd. issued to the first opposite party. Ext. A10 is the invoice dated 16.08.2012 issued by Hindustan Petroleum Corporation Ltd. showing the delivery of 8000 liters. of diesel to the complainant. Ext.A11 is the service report dated 25.08.2012 issued by Tokheim India Pvt. Ltd. showing the complaint of the motherboard and keypad of the dispensing unit. Ext.A12 is the repudiation letter dated 30.01.2011 issued by the first opposite party. Ext.A13 is the survey report dated 25.09.2012 prepared by insurance surveyor (PW2).
9. On the other hand, the contention of the first opposite party is that, though there are 3 fuel tanks, the diesel contained in the 9 KL. tank alone is contaminated due to the entry of rain water. There was no contamination in the other 2 tanks. From this, it is clear that the contamination of diesel by seeping water into the 9 KL. tank shows that the said contamination was caused due to the negligence from the part of the employees while capping/closing the manhole gasket of the said tank or due to the rupture of manhole gasket due to torrential rain occurred during that day. The rupture of manhole gasket can be caused due to wear and tear also. So according to them, the first opposite party is not liable to the complainant as the loss was due to the negligence of the complainant. Further, they contended that the policy does not covers the losses caused due to rain water as the rain water based loss is not a named peril and the policy coverage is only for named perils. Therefore, they argued for the dismissal of the complaint.
10. In order to prove the contention of the first opposite party, the first opposite party’s counsel cross-examined PW1 and PW2 and produced the policy schedule and terms and conditions of the policy in question which is marked as Ext.B1 with the consent of the parties. Apart from the above evidences, first opposite party has not adduced any oral or documentary evidences in their favour.
11. Second opposite party’s contention is that in this dispute they have not committed any deficiency in service to the complainant as they are strangers to the disputed issue. But they have not adduced any oral or documentary evidence in their favour.
12. On the basis of the contentions and arguments of the parties, it seen that, the parties have no dispute with regard to the validity of the policy and the loss and damages of the complainant. The only dispute of the first opposite party is that, as per the terms and conditions of the policy, they are liable to indemnify the named perils and the rain water damage is not a named peril. It is true that rain water damage is not mentioned in the policy in question. But the damages due to flood is specifically mentioned and covered in the policy in question. The dictionary meaning of the word ‘flood’ is as follows: “A great flow of water”. It is an undisputed fact that the loss and damages of the complainant was occurred due to a flow of water. Ext. A6 news paper report and Ext. A7weather report clearly shows that on 17.08.2012 there was heavy rain fall in the State including Thiruvalla where the complainant’s petrol pump situates. Further Exts. A9 and A13 also shows that rain water entered into 9 KL tank and 5209 litres of diesel kept in the said tank was also contaminated. The said contamination was occurred due to a natural calamity and is an unexpected event and it so happened not due to the fault of the complainant. Further, the first opposite party has no case that the said event is man made and it was so made for defrauding the first opposite party and for getting an illegal enrichment from the first opposite party. Further, insurance policies are launched for safeguarding the unexpected and an unintentional losses and sufferings of the policy holders. In the circumstances, the complainant’s claim is genuine and the first opposite party being the insurer is liable to honour the claim of the complainant as per the terms and conditions of the policy in question as the loss and damages of the complainant is due to the heavy rain fall and flood occurred on 17.08.2012. So the denial of the complainant’s claim by the first opposite party is a clear deficiency in service.
13. From the facts and circumstances and the available materials on record, this Forum is of the view that the second opposite party is not a material party to the disputed matter and hence we find that the second opposite party has not committed any deficiency in service and they are not liable to the complainant.
14. Though the complainant claims a total amount of Rs. 10,82,693/-, he has not adduced any evidence for supporting his entire claim. He has not adduced any evidences for proving the loss and expenses etc. sustained to him on account of repairs of the dispensing unit, cleaning of the diesel tank etc. As per Exts. A8, A9, A10 and A13, it is seen that 5209 litres of diesel was contaminated. Further it is also seen that the complainant had taken much efforts for collecting the weather report and for furnishing the clarifications before the first opposite party in respect of their demand for the same. Therefore, this complaint can be allowed in part.
15. In the result, this complaint is partly allowed, thereby the first opposite party is directed to pay an amount of Rs. 2,27,945/- (5209 litre diesel x Rs. 43-76) (Rupees Two lakhs twenty seven thousand nine hundred and forty five only) being the cost price of the contaminated diesel) with 10% interest from the date of filing of this complaint along with compensation of Rs. 15,000/- (Rupees Fifteen thousand only) for the mental agony and other expenses and cost of Rs. 5,000/- (Rupees Five thousand only) within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount ordered herein above with 12% interest from today till the realization of the whole amount.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 21st day of July, 2014.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member-I) : (Sd/-)
Smt. Sheela Jacob (Member-II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : M.C. Joseph.
PW2 : Abraham Cheriyan.
Exhibits marked on the side of the complainant:
A1 : Certified copy of complainant’s Electoral Identity Card.
A2 : Certified copy of letter dated 09.11.2009 issued by Hindustan
Petroleum Corporation Ltd. in the name of the complainant.
A3 : Letter dated 24.02.2014 issued by the 2nd opposite party in
the name of the complainant.
A4 : Copy of the policy certificate.
A5 : Copy of the policy schedule and the terms and conditions of
the policy.
A6 : News paper dated 18.08.2012 of Malayala Manorama Daily.
A7 : Copy of the weather report dated 15.11.2012 issued by
India Meterological Department, Vikas Bhavan,
Thiruvananthapuram.
A8 : Copy of daily stock register during 2012 August.
A9 : Letter dated 18.10.2012 of Hindustan Petroleum
Corporation Ltd to the 1st opposite party.
A10 : Invoice dated 16.08.2012 issued by Hindustan Petroleum
Corporation Ltd. to the complainant.
A11 : Service report dated 25.08.2012 issued by Tokheim India Pvt.
Ltd.
A12 : Repudiation letter dated 30.01.2011 issued by the 1st
opposite party to the complainant.
A13 : is the survey report dated 25.09.2012 prepared by insurance
surveyor.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties:
B1 : Policy copy with conditions.
(By Order)
Copy to:- (1) M.C. Joseph, Manaladil Fuels, Idinjillam,
Perumthuruthi.P.O., Thiruvalla – 689 107.
(2)Divisional Manager, United India Insurance Co.,
Divisional Office, Kizhakkedathu Building,
P.B.No.34, Main Road, Pathanamthitta – 689 645.
(3)Branch Manager, State Bank of Travancore,
Idinjillam, Thiruvalla.
(4) The Stock File.
