BEFORE THE PRESIDENT
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM
UNAKOTI JUDICIAL DISTRICT: KAILASHAHAR
CASE NO. CC 17/9
M/S P.C. Roy Choudhury & Sons
Rajbari, Dharmanagar,
District – North Tripura
Represented by Shri Biren Ghosh,
Son of late Atal Behari Ghosh
Of Office Tilla, PO m& nPS – Dharmanagar,
District – North Tripura
Being Attorney of Shri Pinaki Roy Choudhury,
One of the partner of M/S P.C. Roy Choudhury & Sons,
Of Rajbari, Dharmanagar
………… Complainant
Versus
Branch Manager,
United India Insurance Company Ltd.
PO – Kailashahar, PS – Kailashahar,
District - Unakoti
………… Opposite Party
PRESENT
SHRI P.K. DUTTA
PRESIDENT
DISTRICT CONSUMER REDRESSAL FORUM
NORTH TRIPURA DISTRICT :: KAILASHAHAR
AND
SMTI. S. DEB, MEMBER
COUNSEL
For the complainant : Shri C. Bhattacharjee, Advocate
For the opposite party : Shri A. Bhattacharjee, Advocate
DATE OF JUDGMENT: 18-09-2018
J U D G M E N T
This is a complaint filed u/s 12 of the Consumer Protection Act, 1986 by the complainant, namely, M/s. P.C. Roy Choudhury & Sons against the opposite party, United India Insurance Company Limited, Kailashahar Branch, Kailashahar for getting additional amount of compensation of R s. 1,91,531/- with interest.
2. The case of the complainant, as could be gathered from the complaint petition, is that the complainant is a registered carrying contractor of Indian Oil Corporation Ltd. on the strength of Work Order vide No. NEISO/ OPS/ POL/PT-4/2012/T-01/D, Dated 06-03-2014 issued by the Deputy General Manager and explosive licence No. P/EG/TR/11/42 issued by Deputy controller of explosive , Guwahati, Assam for transport petroleum in bulk mechanically propelled vehicle (Oil tanker) under registration No. AS-25-B-3673 in compliance with the provision of the Petroleum Act. valid up to 31/12/2014. It is further contended in the petition that on 30/07/2014 at about 1328 hours vehicle bearing No. AS-25-B-3673, which was duly insured by the O.P for the period from 28/07/2014 to 27/07/2015, had been proceeding for Dharmanagar from Guwahati IOC with full capacity load of 12000 Kl HSD and reached at Wahkoh village NH 44 , Meghalaya on 31/07/2014 at about 5 a.m. fell down into deep gorge inside a road bridge due to heavy rain fall and slippery condition of the road and as a result, the tanker had been extensively damaged and HSD loaded in all the three compartments of the said vehicle was almost drained out. The complainant informed the accident to the O.P and the O.P sent his surveyor and assessor for investigation and report. After investigation the Surveyor submitted his report on 29/04/2015 and on the basis of the report of the surveyor the O.P sent a cheque amounting to Rs.5,02,000/- vide cheque No. 36550, Dated 14/07/2015 drawn on SBI, Kailashahar branch towards final settlement. After receiving the cheque the complainant became surprised and astonished as to how the O.P settled such ludicrously law amount against the claim of the complainant to the tune of Rs.7,28,000/- as the IOC recovered Rs.7,28,000/- against short delivery of 12000 KL of HSD from the complainant. Thereafter the complainant made a prayer under RTI Act before the O.P and could know the break up of the settled amount acted upon by the O.P of the basis of the surveyor as follows:-
(i) Cost of Actual shortage of product :- Rs.5,36,509/-
(ii) Less policy excess :- Rs. 20,000/-
(iii) Less re-instatement premium :- Rs/ 14,509/-
Rs. 5,02,000/-
Thereafter on 12/01/2016 the complainant wrote a letter of objection in respect of the evaluation / assessment of the claim, but in vain. It is further contended in the complaint that as per policy it is the condition precedent to indentify against actual physical loss or damage of the commodity/ merchandise, which comes at Rs.7,28,040/- and thus the complainant to entitled to get Rs.1,91,531/- as less payment from the side of the O.P after all standard deduction with interest. It is further stated in the petition that the complainant with his best efforts time and again wrote letter to the O.P for getting the legitimate insured sum, but the O.P denied the payment and thus it is absolutely deficiency on the part of the O.P. Ultimately the complainant prayed for giving a direction to the O.P to make payment of rest amount Rs. 1,91,531/-
2. On receipt of the notice the O.P appeared before the Forum and submitted written statement stating, inter alia, that the complainant filed this case out side the jurisdiction because the alleged accident occurred at Meghalaya on 31/07/2014 and more so the case is barred by limitation. The complainant claimed money for loss of 12000 KL, but the surveyor had shown 10% less i.e., 1200 KL and so actual loss of quantity due to accident is shown as 10800 KL. It is further stated in the W.S that the surveyor visited Kalain on 12/09/2014 and found the said vehicle in a work shop and he came to know that just after the accident the driver left the place leaving the vehicle in abandoned condition and subsequently the vehicle was lifted by crane, but by this time huge number of local people came with plastic bucket and after breaking the inner locks of said tanker pumped out petroleum products from the compartment through plastic pipe, but 1200 letrs. remained in the compartments even after draining out or taken out. The higher authority of O.P assed the compensation on the basis of the report of the surveyor as Rs.5,02,000/- and issued cheque in favour of the complainant and said cheque was enchased by the complainant after his due satisfaction and he did not refuse or return of the said cheque. Subsequently the complainant filed this claim petition without any justification. The cost of petrol as assessed by the complainant was wrong and show higher rate instead of actual market rate. The petrol stolen by the local people was due to negligence on the part of the owner and driver of the said vehicle because they failed to inform the police after the accident or to provide adequate security of the said vehicle. It is revealed from the report of the surveyor that it is common phenomena that whenever any vehicular accident occurs the local people assembles near the vehicle and steal all materials from the vehicle and as such, the complainant is not entitled to get any amount beyond the amount of Rs. 5,02,000/- as assessed by the surveyor and accepted by the complainant as full and final settlement.
3. From the side of the complainant attorney of co-partner of complainant’s company submitted evidence replicating the same as is stated in the complaint petition and for the sake of brevity the examination of the chief of the complainant is not repeated.
In cross he stated that he got information about the accident, which took place in the early morning. Thereafter he rushed to the P.O and found the vehicle. One Rupak Chanda was the driver of the vehicle on the date of accident. He further stated in the cross that he got information from the P.S of the concerned area. P.W-1 admitted that he has not submitted the invoice or the challan relating to the quantum of petrol (fuel) that he put into his vehicle. He further admitted that they shifted the vehicle to Katigora after two days of the accident. He further admitted that he received an amount of Rs.5,02,000/- from the insurance company through cheque without any objection and he encashed the cheque amount and that, at the time of presentation of the cheque in the bank he was satisfied. He further admitted in his cross that insurance company did not instruct him that if he did not receive the cheque they will not make any payment to him.
4. From the side of the O.P Shri Harisankar Deb, Branch Manager of O.P submitted his evidence in the same tune as put down in the written statement and in order to avoid repetition the same is also not discussed.
D.W 1 was cross examined by the complainant. In cross he stated that he is unable to say whether the tanker was empty as per preliminary report of the surveyor. He denied that as per preliminary report there was leakage of 12000 ltrs. of petrol from the tanker and that at the time of receiving the cheque there was no objection from the side of the complainant and that their company made lesser payment against the claim of the complainant. In cross D.W 1 specifically admitted that in the insurance policy burglary was also included.
5. The point necessary for determination in this case are as follows:
- Whether there was deficiency in the service of the insurer/ opposite party?
- Whether the complainant is entitled to any additional compensation as prayed for?
6. Heard argument of both sides. Learned counsel Mr. C. Bhattacharjee appearing for the complainant submitted that the OP did not make payment of the legitimate amount to the complainant, though the company of the complainant was having valid insurance policy at the time of accident and his policy covers all kinds of mishap, including burglary. Learned counsel submitted to award the balance amount of Rs. 1,91,531/- to the complainant with interest to be paid by the OP-Insurance Company.
On the other hand, learned counsel Mr. A. Bhattacharjee appearing on behalf of the OP submitted that the complainant could not prove his entitlement and as such, he is not entitled to receive any amount beyond the amount awarded by the OP.
FINDINGS AND DECISIONS
7. It is admitted fact that the oil tanker belonging to the complainant was having valid insurance policy for an amount of Rs.9,00,000/-.The accident took place on 31-07-2014 and the insurance policy was effective from 28-07-2014 to 27-07-2015, as admitted by the OP. It is also admitted that the IOC had recovered a sum of Rs. 7,28,000/- from the complainant as cost of the full capacity load of 12000 KL HSD which was put into the tanker vide dispatch cum invoice No. 97320873 dated 30-07-2014, as referred to by the surveyor in his report. Therefore, the complainant is entitled to get back the realized amount from the OP- insurance company, but the surveyor in his report marked exhibit 4/1 to 4/5 stated that he deducted 10% of the cost of the fuel and other prescribed deductions with interest suggesting an amount of Rs.5,02,000/-, which the higher authority of the insurance company agreed to pay and amount was accordingly paid to the complainant by way of a cheque and as the complainant received the said amount without objection the amount of Rs. 5,02,000/- is termed as full and final settlement. Once the complainant receives the amount without objection, it cannot be said that complainant has left with no other avenues to claim for any further amount, if it is found legitimate. The surveyor in his report recommended for 10% deduction and stated that it is his experience that in case of drained out of total fuel there must be residual to the extent of 10%. It is only surmise not proven fact and as such, it cannot be said that for draining out of the total fuel from the compartments of the oil tanker complainant is responsible. It is on record that after the accident information was duly transmitted to the police station of Umkiang and vide GD No.03 dated 31-07-2014 information was duly entered. In the written statement the OP-stated that the complainant could not make an arrangement to protect the theft of fuel. The accident took place in a hilly area and it is not at all possible to make arrangement for the security of the vehicle in a remote and hilly place. DW No.1 in his cross examination specifically admitted that in the policy condition issued by his company burglary was also included. The accident took place on 31-07-2014 in a hilly area and after the accident people stole the fuel from the compartments and left the oil tanker quite empty. The insurance company issued the policy for loss of fuel by any mishap, including theft. In the case at hand, fuel put into the oil tanker was stolen away and it is a clear case of burglary for which complainant cannot be held liable in any way and as per condition of the policy, which was valid on the date of accident, i.e., on 31-07-2014, the complainant is entitled to receive additional amount of Rs.1,93,531/- from the Op-insurance company. By not paying the legitimate amount the OP has been found deficient and as such, the OP is held liable to pay Rs.1,93,531/- to the complainant with interest at the rate of 7% per annum.
Both the issues are accordingly decided in favour of the complainant.
ORDER
8. In the result, it is ordered that the OP, Branch Manager, United India Insurance Company Limited, Kailashahar Branch, Kailashahar shall pay an amount of Rs. 1,93,531/- to the complainant with 7% interest per annum with effect from 13.06.2017, the date of filing of the petition, till realization within two months from today, failing which the complainant shall be entitled to 9% interest per annum till the date of payment.
With this observation, the case stands disposed of on contest.
Furnish copy of the judgment to the claimant and the OP free of cost through their engaged learned counsels.
ANNOUNCED
(P.K. DUTTA)
PRESIDENT
(S. DEB)
MEMBER
