Jammu and Kashmir

Jammu

CC/539/2017

HAMARA PUMP - Complainant(s)

Versus

United India Insurance - Opp.Party(s)

BALDEV SLATHIA

19 May 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No.:                 118/DFJ         

 Date of  Institution   :  08-06-2016

 Date of Decision      :    14-05-2018

 

 

M/S Hamara Pump,

Prop.Rattan Chand

S/O Late Shri Punnu Ram,

R/O 37/7 Trikuta Nagar,Jammu.

                                                                                                                                                Complainant

                    V/S

Divisional Manager,

United India Insurance Co.Ltd.

Divisional Office-1,Opp.Convent Presentation School,

National Highway 21-C/B Gandhi Nagar,Jammu.

                                                                                                                                                Opposite party

CORAM

                  Khalil Choudhary    (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                      Member

                  Mr.Ghulam Sarwar Chauhan                                Member.

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Baldev Slathia,Advocate for complainant, present.

 Mr.Sanjay K.Dhar Advocate for OP,present.

 

 

                                                                  ORDER

                      Facts relevant for the disposal of complaint on hand are that complainant Rattan Chand Prop.of M/S Hamara Pump is a Carriage Contractor of Hindustan Petroleum Corporation Ltd. and the complainant engaged oil tanker bearing registration No.JK02X-1295 for carriage of HSD&MS of Hindustan Petroleum Corporation Ltd.from Jammu to Srinagar and complainant insured the product loaded in the said tanker with OP company under Product Insurance Policy. cording to complainant on,01-04-2014 the insured tanker bearing registration No.JK02X-1295 after loading HSD&MS from the POL Depot of Hindustan Petroleum Corporation Ltd.behind Railway Station, Jammu left the depot for its destination at Srinagar when reached  Thurd near Udhampur met with accident  and fell 30 feet deep in George from the National Highway and got totally damaged and sufficient quantity of product loaded in the said vehicle,i.e.HSD and MS of Hisdustan Petroleum Corporation Ltd.of complainant which was also insured with OP Company under Product Policy was lost/washed away. Complainant further submitted that the police of Police Station Udhampur registered FIR No.126/2014 and after investigation recorded the statement of witnesses ,prepared the challan and produced before Hon’b le Court at Udhampur against the driver of said vehicle and complainant informed OP Company about the quantity of product lost/washed away  i.e.HSD&MS loaded in the said vehicle and the OP deputed surveyor to assess the loss of said material, who visited the spot and after verification asked him to submit the loss of product /material loaded in the said vehicle. That the complainant submitted the quantity of product loss i.e.1108 ltrs Ms and 2264 ltrs HSD to the surveyor amounting to Rs.3,61,992.01.Allegation of complainant is that the surveyor/investigator of the company after spot inspection of ill fated vehicle directed him to shift remaining product in the said vehicle and the owner of vehicle  shifted the product/material  to another vehicle which was taken to Hindustan Petroleum Corporation Ltd.and handed over to the Corporation and the Hindustan Petroleum Corporation Ltd.accepted the said material and asked complainant to pay cost of Rs.3,61,922.01/-of the product washed away due to said accident. That the complainant informed Hindustan Petroleum Corporation about the insurance of the product carried by the said vehicle and  requested Hindustan Petroleum Corporation Ltd.that as and when the claim is settled with the OP company, the amount shall be deposited, but despite that the Hindustan Petroleum Corporation Ltd recovered the amount of product lost amounting to Rsa.3,61,922.01ps. That to the utter dismay of complainant, the OP Company vide its letter dated 04-02-2016 intimated him that his claim has been repudiated and closed as “No Claim”(Annexure-2). In the final analysis, non settling of claim by OPs,according to complainant, amounts to deficiency in service, therefore, complainant prays for sum of Rs.3,61,922,01/-i.e. cost of product i.e.HSD&MS  and in addition also prays for compensation of Rs.1,60,000/- under different heads.

                    On the other hand,OP filed version and while denying its liability in toto,went on to submit that complaint is bad for mis-joinder & non-joinder of necessary parties since the same is filed against the officer of the Company and no suit or complaint lies against the official of a registered company being a legal entity that can sue and be sued in its own name. That the complaint is not maintainable and deserves out right dismissal in view of the fact that the claim of complainant under Carriers Legal Liability Policy has bonafidely been repudiated and closed as No-Claim by the OP,on,25-01-2016 after thorough investigation and proper application of mind in accordance with the terms and conditions of contract of insurance and law on the ground,that the insured vehicle bearing registration No.JK02X-1295 (Petrol Tanker)carrying petroleum products falling under the category of dangerous and hazardous goods was being driven by the driver,namely,Balvinder Singh at the time of alleged accident without holding a valid and effective driving licence for driving the category of vehicle insured as per Section 3 of M.V.Act,1988 read with Drivers Clause contained in the Policy of Insurance.It is pertinent to mention here that own damage claim relating to the above insured vehicle carrying petroleum products having arisen out of the same accident has also gbeen rejected by the OP Insurance Company inter alia on the ground of ineffective and invalid driving license,thus any claim under Carriers Legal Liability Policy is subject to admission of the liability under Motor Own Damage Policy as per mandate of Warranty Clause of the Carriers Legal Liability Policy.(Annexure-RA) It is submitted that after receipt of the claim intimation with regard to accident of vehicle bearing registration No.JK02X-1295(Petrol Tanker)and loss to the product carried in the said vehicle, the OP immediately deputed Sh.Mahesh Badyal Independent IRDA approved Surveyors for conducting spot surveyor of the reported loss.The said surveyor after making inspection of the damaged vehicle on spot and carrying out the spot survey in detail submitted his report No.MB/10302/15/U-2 dated 22-2-02015  to OP and thereafter M/S Alak Consultants (Surveyors &N Loss assessors)was deputed to conduct final survey and for making the assessment of loss,who after carrying out necessary survey issued & submitted report No.ALAK/5641-14/C-1 dated 09-03-2015 thereby making the actual assessment of loss of product at Rs.3,59,992/-(Annexure-RB).It is further submitted that upon receipt of the above said reports claim of complainant was processed and during scrutiny of the claim papers and other documents relating to Driving Licence of driver,Balvinderf Singh and the vehicle engaged by the complainant for carrying petroleum products,it was observed and noted that at the time of accident 4 persons were being carried unauthorisdely as gratuitoujs passengers in the said vehicle in contravention of terms and conditosn of the policy and further the driver balvinder Singh was not holding a valid and effective driving licence for driving the vehicle in question as his driving licnece was not endorsed for driving the vehicles carrying Dangerous and Hazardous Goods as on date of accident(Annexure-RC).Lastly it is prayed that there is no deficiency of service or unfair trade practice on the part of OP and the complaint is liable to be dismissed.  

                        Complainant adduced evidence by way of duly sworn his own affidavit and affidavit of Balvinder Singh.Complainant has placed on record, copy of General Power of Attorney, copy of certificate issued by Hindustan Petroleum Corporation Ltd, copy of repudiation letter  issued by  OP to complainant and copy of driving licence.

                 On the other hand,OP adduced evidence by way of duly sworn affidavits of Ravi Dhar,Director Alak Consultants Pvt.Ltd. and M.L.Verma Divisional Manager United India Insurance Co.OP has placed on record, Copy of policy, copies of reports, copy of repudiation letter dated 09-03-2015 driving licence,verification report and police challan.

                     We have perused case file and heard L/Cs for the parties at length.

                          To be brief, allegation of complainant is that the insured tanker suffered damage during currency of Insurance Policy, but OP failed to indemnify the loss. On the other hand, version of OP is that at the time of accident, insured tanker was being driven by the driver, who was not holding valid and effective driving licence,as during investigation it was found that insured vehicle was loaded with hazardous goods at the time of accident and the driving licence of driver,namely,Balvinder Singh for driving the vehicle for hazardous goods was valid from 24-04-2014 to 23-04-2015,while as, accident took place on,01-04-2014,therefore,there was breach of policy terms and conditions, hence Op rightly repudiated the claim.

             After hearing L/Cs for parties and perusing the case file, in our opinion dispute purely hinges on the point, as to whether or not at the time of accident, driver of insured tanker,namely,Balvinder Singh was holding valid and effective driving licence.

               In support of its contention that driver was not holding valid and effective driving licence at the time of accident,OP relied upon certificate dated,15-05-2014 issued by Licencing Authority,Jammu.Perusal of certificate dated,15-05-2014  and surveyor report would reveal that the driver,namely,Balvinder Singh was holding driving licence with DHR endorsement valid from 24-04-2014 to 23-04-2015 and the driving licence of the driver,namely,Balvinder Singh was not having any endorsement of DHR as the endorsement DHR/75/MVD/RTOJ on the copy of driving licence is effective from 24-04-2014  and valid upto 23-04-2015,whileas,accident took place on,01-04-2014,therefore,there was no endorsement as on the date of accident, which amounts to breach of policy, terms and conditions, hence OP right repudiated the claim.Admittedly,tanker in question met with accident on,14-09-2012.Therefore,admittedly at the time of accident, driving licence was without endorsement of DHR to drive the vehicle, carrying hazardous and dangerous goods at the time of accident, as per Section 14 of Motor Vehicles Act,1988.

                   L/C for Op vehemently argued that own damage claim relating to the above insured vehicle carrying petroleum products having arisen out of the same accident has also been rejected by the OP company inter alia on the ground of ineffective and invalid driving licence,thus any claim under Carrier’s Legal Liability Policy is subject to admission of the liability under Motor Own Damage Liability Policy  as per mandate of Warranty Clause of the Carrier’s Legal Liability Policy.Perusal of Conditions of the Carrier Legal Liability Policy reveals that claim under the said policy can be only paid if claim under Own Damage Policy of vehicle is admitted ,but in this case OP has validly rejected the claim of vehicle in question on account of Own Damage,therefore,as per Policy condition claim for loss of product is also not admissible Hence the OP has rejected the claim legally.

 

.             While dealing with the scope of terms and conditions of Insurance Policy,Honble Supreme Court in Suraj Mal Ram Niwas Oil Mills (P) Ltd.V/S United India Insurance Co.Ltd.& Anr.(AIR 2010 SC(Supp)23(2)held:-

               22. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity. In General Assurance Society Ltd. (supra), a Constitution Bench of this Court had observed that:

In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. (See also: Oriental Insurance Co. Ltd. v. Sony Cheriyan19; Vikram Greentech (supra) Sikka Papers Limited v. National Insurance Company Limited and Ors.20; New India Assurance Company Limited v. Zuari Industries Limited and Ors.21; Amravati District Central Co-operative Bank Limited v. United India Fire and General Insurance Company Limited.22)

19. (1999) 6 SCC 451 : AIR 1999 SC 3252 : 1999 AIR SCW 3226.

20. (2009) 7 SCC 777 : AIR 2009 SC 2834 : 2009 AIR SCW 4353.

21. (2009) 9 SCC 70 : 2009 AIR SCW 6832.

22. (2010) 5 SCC 294 : 2010 AIR SCW 4537.

23. Similarly, in Harchand Rai Chandan Lals case (supra), this Court held that:

The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended."

24.Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.                   

                   

                      Therefore, from above proposition of law laid down by Honble Supreme Court, it is settled that terms of policy have to be construed, as it is and the words used there in must be given importance, as contract between the parties form on the basis of terms and conditions of Insurance Policy,therefore,these terms have to be strictly construed to determine the extent of liability of the insurer.

                       In the afore quoted back drop, complaint fails, accordingly, same is dismissed. In the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records.

Order per President                                   Khalil Choudhary

                                                                (Distt.& Sessions Judge)

Announced                                                     President

14-05-2018                                           District Consumer Forum

Agreed by                                                      Jammu.

                                                             

  Ms.Vijay Angral          

  Member                                                                                              

.               

 Mr.Ghulam Sarwar Chauhan

Member