BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION HYDERABAD
F.A.No.1932/2005 against C.D.No.41/1999 , District Forum, East Godavari , Kakinada.
Between-
Yanam Agro Oil Industries (P) Ltd.,
Mattakuru Village, Yanam, rep. by its
Director Sri Alok Kumar Aggrawal,
S/o.T.K.Aggrawal, aged about 41 years and
R/o.Kakinada. ... Appellant/
Complainant
And
1.United India Insurance Company,
Kakinada, East Godavari District,
Rep. by its Divisional Manger.
2.United India Insurance Company,
Yanam, rep by its Branch Manager.
3. S.L.T.Transport NH 5, Lalcheruvu ,
Rajahmundry – 533 106. ... Respondents/
Opp.parties
Counsel for the appellant - M/s.V.Gowrisankar Rao
Counsel for the respondents - Mr.CH.Srinivas – R1 & R2.
R3 – served .
CORAM-THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
SMT.M.SHREESHA, HON’BLE MEMBER
AND
SRI G.BHOOPATHI REDDY, HON’BLE MEMBER
MONDAY, THE TWENTY EIGHTH DAY OF JULY,
TWO THOUSAND EIGHT .
Oral Order - (Per Sri G.Bhoopathi Reddy, Hon’ble Member)
----
This is an appeal filed by the appellant/complainant under Section 15 of the Consumer Protection Act ,1986 to set aside the dismissal order passed by the District Forum , East Godavari , Kakinada in C.D.No.41/1999 dt. 31.10.2005.
The appellant herein is the complainant before District Forum . It filed complaint under Section 12 of the Consumer Protection Act,1986 to direct the opp.parties to pay Rs.4,52,430/- towards the loss suffered due to oil spilling from tanker lorry , Rs.44,337/- towards interest at 1.75 percent p.m. from 13.7.98 to 31.12.98 , Rs.550/- towards amount paid to the surveyor and also award subsequent interest and costs.
The case of the complainant is as follows-
The complainant is a private limited company at Yanam , that it booked the tanker lorry bearing registration no.WB-03A-5026 from the 3rd opp.party for transport of oil stock from Yanama to Ricco Oil Mills (P) Ltd at Mahesh Talla , Budge in the District of 24 Para-gana South , West Bengal . Loading oil stock was done at Yanam on 17.6.1998 under consignment note no.LR 3107 and invoice no.26/98-99 . The oil stock was duly insured by United India Insurance under policy no.150504/21/26/11/402/97 issued by Yanam Branch of the Insurance Company . The enquiries made by the complainant revealed that the tanker on its way to destination met with an accident at about 4 a.m. on 21.6.1998 at Dhuliara village on NH 5 road in the limits of Panskura Police Station in Midnapore District, West Bengal as it overturned and fell into roadside ditch as a result of which almost the entire oil spilled out without any possibility to retrieve it and nothing was left in the tanker. The said fact was immediately informed to the opp.parties 1 and 3 but there was no information from them. The complaiannt learnt that the accident was reported at Panskura Police Station and Crime No.20/98 was registered on 23.6.1998 . The consignee Ricco Oil Mills Private Limited, reported the matter to the Divisional Office of United India Insurance Company Limited in Howra and the latter deputed a surveyor by name Partha Chowdary. The surveyor assessed the loss due to accident at Rs.4,47,480/- . The consignee met all the formalities and collected all the required documents for settlement of the claim. The complainant submitted all the documents with covering letter dt.13.7.1998 to the 1st opp.party. The complainant gave a registered notice on 6.11.1998 to the opp.parties 1 and 2 and also sent a copy of the same to the 3rd opp.party but there was no reply. The complainant received a letter dt. 5.11.1998 from the 1st opposite party repudiating the claim on the ground that the claim was fabricated one and the insurance company had no liability raising nearly 10 points for repudiation. Alleging deficiency in service the complainant approached the District Forum to direct the opp.parties to pay Rs.4,52,430/- towards the loss suffered due to oil spilling from tanker lorry , Rs.44,337/- towards interest at 1.75 percent p.m. from 13.7.98 to 31.12.98 , Rs.550/- towards amount paid to the surveyor and also to award subsequent interest and costs.
The opp.party no.1 filed counter contending that the complainant was not entitled to rely upon the biased and one sided report of the surveyor who was appointed at the instance of the consignee and the said surveyor did not make proper investigation. The Spy Eye Detective Agency made thorough probe and reported that the claim was not true . There was no evidence to show that the accident occurred on 21.6.1998 at Panskura and coconut oil weighing 9040 kgs. valued at Rs.4,47,480/- was lost by leakage as the tanker turned turtle. There was clear violation of policy conditions by not declaring all the consignments and there would be no balance of sum insured available in the open policy at the relevant time and hence there was no liability for the insured. The detective agency appointed by the insurance company had gone deep into the matter and made observations which created a lot of suspicion about the procurement of the oil claimed to have been transported by the complainant. The 3rd opp.party also suspected the claim and fil4ed a suit and got a commissioner appointed. The investigator observed that attempts made to screen the tanker from the notice of the Commissioner. The detective agency observed that the complainant had not made the records and accounts available for dealing with material issues. There were several inconsistencies and contradictions in the claim regarding the date of accident and other material particulars. This opposite party repudiated the claim only after the matter was thoroughly investigated into by a detective agency. Repudiation of the claim was rightly made and there was no deficiency in service. The complainant is not entitled to file the present complaint and even if he feels aggrieved his remedy is only to work out his rights in a civil court as the matter involves complicated questions of facts and law the opp.party no.1 prayed for dismissal of the complaint with exemplary costs
The opposite party no.2 filed a memo adopting the written statement of the opp.party no.1.
The opposite party no.3 filed counter contending that on the request of the complainant they have arranged for oil tanker bearing no.WB -03A-5026 under lorry receipt no. 3107 on 17.6.1998 for transportation of F.C.N.Coconut oil from Yanam to 24 Parganas in West Bengal . This opposite party has few tankers and also takes on hire some tankers for transport of oils for which it gets commission from both the parties i.e. tanker supplier and product supplier. The business of this opposite party is that of a transport agent and it gets commission for transport of products as per trade usage and custom. Out of Rs.14,000/- which the complainant agreed to pay towards freight , he paid Rs.7000/- as advance to the lorry driver Naresh Chowdary. It is pertinent to note that on the reverse of the L.R. , terms were clearly printed and one of the terms was that the goods were being dispatched under owner’s risk only . If at all any loss was caused the complainant has to get reimbursement only from the insurance company as per terms of the insurance policy. This opposite party supplied oil tankers only to transport goods to different places but it would not undertake liability for any loss or damage done to the goods while transporting the goods to different places. The complaint is filed only to harass this opposite party and to have wrongful gain. The opp.party no.3 prayed for dismissal of the complaint with costs.
The complainant filed evidence affidavit and documents Exs.A1 to A21. Affidavit of R.B.V.Sesha Rao, Assistant Divisional Manager in the office of the 1st opposite party has been filed but no documentary evidence has been filed on behalf of the opp.parties. The District Forum based on the evidence adduced and pleadings , dismissed the complaint.
Aggrieved by the dismissal order of the District Forum the complainant preferred this appeal contending that the District Forum has not properly appreciated the documentary evidence as well as law position and dismissed the compliant on the ground that Civil Court is having jurisdiction to determine the dispute., the said finding is not sustainable. The District Forum failed to see that the insurance policy Ex.A21 is subsisting on the date of dispatch of the consignment and the oil tanker met with an accident on 21.6.1998 at Dhullar, West Bengal and that M/s.Recco Oil Mills Pvt. Ltd., Mahesh Talla the customer of the complainant lodged a complaint with Panskura Police station as is evident from Ex.A7 certificate dt. 24.6.1998 issued by the said police authorities. The District Forum has not properly appreciated the surveyor report Ex. A9 in which the net loss was assessed at Rs.4,47,480/-. The District Forum failed to see that the opposite party repudiated the claim without justifiable grounds. The appellant prayed to set aside the order of the District Forum and allow the appeal.
There is no dispute that the complainant is a private limited company manufacturing oils and it booked a tanker lorry bearing registration no. WB-03A-5026 from the third opposite party engaged in supply of tankers for carrying oils While transporting the oil in the tanker accident occurred on 21.6.1998 . Immediately after accident owner of the tanker has reported the matter to the police and police also registered a criminal case and it was also informed to the insurance company. . The insurance company deputed a surveyor Partha Chowdary and he also submitted a report Ex.A9. The appellant firstly contended that the nature of the dispute is not involved any complicated questions of law and facts , the opp.party no.3 is a supplier of tankers for transporting oil and the tanker supplied by it was involved in an accident and the driver was also having valid driving license . The respondent contended that the nature of the dispute is of civil nature , owner of the lorry tanker fabricated the claim in order to gain wrongfully and the said dispute is to be determined by the Civil Court. We are of the opinion that the dispute is not in civil nature . While transporting the oil in tanker supplied by the opp.party no.3 the accident occurred. Immediately after accident owner of the vehicle has complained to the police and the police also registered a criminal case. On the complaint of owner of the vehicle , the insurance company also appointed a surveyor who has inspected the place of accident and estimated the loss and submitted a report Ex.A9. The District Forum has not considered the said survey report.
Ex.A1 is the delivery note showing that the consignment of 9140 kgs. of coconut oil of the complainant was transported to Ricco Oil Mills Pvt. Ltd. West Bengal . Ex.A2 is the invoice cum delivery challan with endorsement of oil consigner and mentioning the name and address of the Driver. Ex.A3 is copy of L.R.No.3107 issued by the opp.party no.3 containing the signature of driver Naresh Chowdary. . Ex.A5 is the way bill containing the stamp and signature of Excise Department officials and check gate at Chikola , Ganjam , District.. All the documentary evidence goes to show that the complainant has transported the oil through the tanker of opp.party no.3 and while transporting it was involved in an accident as a result the entire oil was lost. The value of the oil was also mentioned in the invoice. Ex.A21 is the copy of open policy issued by the second opp.party in favour of the complainant. The policy was also valid on the date when the consignment of oil was entrusted to the opp.party no.3 for transportation and on the date of accident. The complainant has submitted a claim under Ex. A14. The claim was repudiated under letter dt. 5.11.98 Ex.A15. . In the said repudiation letter it is stated that during the investigation it was proved that the insured, his younger brother at Calcutta and oil tanker owner are good friends and they have fabricated all the documentary evidence and hence the claim of the complainant was repudiated. The burden lies on the respondent to prove the same. The respondents has not filed any evidence affidavit of investigator or any other documentary evidence to substantiate their claim. The insurance company itself has appointed a surveyor and his report Ex.A9 dt. 30.6.98 discloses that the “Insured had despatched one tanker load of coconut oil to their customer in Calcutta. The tanker met with an accident on the way at Panskura as it overturned on 21.6.98 . The tanker was pulled up on the road and towed to Calcutta on 24.6.98 in the afternoon “ The surveyor mentioned that the total quantity of coconut oil is 9140 kgs. and net shortage of oil is 9040 kgs. and net loss is estimated at Rs.4,47,480/-.
Ex.A9 survey report discloses that on account of the lorry falling down the entire coconut oil lost. The surveyor has recommended cost of the oil which was lost in accident at Rs.at Rs.4,47,480/- . The insurance company has not considered their own surveyor’s report . The repudiation order passed by the Insurance company is illegal . There was deficiency in service on the part of the opp.parties
In the result appeal is allowed. Order of the District Forum is set aside . The respondents 1 and 2/ Opp.parties 1 and 2 are directed to pay an amount of Rs.4,47,480/- along with interest at 9 percent p.a. from the date of repudiation till the date of realisation and costs of Rs.5000/- to the complainant . The order to be complied within six weeks. The appeal against the respondent no.3 /opp.party no.3 is dismissed .
PRESIDENT LADY MEMBER MALE MEMBER
Dt.28.7.2008
Pm
