Binod Kumar Agrawal vs New India Assurance Company Ltd. and Ors.

BEING aggrieved by order dated 29.7.2010, passed by State Consumer Disputes Redressal Commission, Cuttack (for short, ''State Commission''), petitioner has filed the present revision petition. Brief facts are that petitioner filed consumer complaint before District Forum, Kalahandi alleging that he is a transport contractor and owner of an oil tanker. The said tanker was insured with respondents/O.Ps. Petitioner had taken a motor policy and a Carrier''s Legal Liability Policy under which respondents agreed to indemnify petitioner against his legal liabilities for actual and physical loss or damage of goods or merchandise directly caused by fire/accident to the insured vehicle while such goods were being transported from one place to another. In spite of insurance, respondents did not give the insurance policy and other documents to the petitioner. On 12.5.1996, vehicle in question met with an accident while proceeding from Sambalpur to Dharamgarh the tanker caught fire and was completely burnt. At that time, the tanker was carrying in its oil tank 12 kilo litres of kerosene oil. Soon after the accident and loss caused to the petitioner, he informed both the facts, i.e., the fact of accident and the fact of loss of kerosene oil, to respondents, vide letter dated 12.5.1996. After receipt of the letter, respondents supplied him claim form and he lodged claim in respect of the tanker. The said claim has been settled and petitioner got the self -damage claim towards the tanker on 9.6.1996. But, in respect of the kerosene oil, which got burnt due to the accident, nothing was done by the respondents and no settlement has been made. However, vide letter dated 19.5.1998, respondent No. 1 informed the petitioner that they are not liable as no loss or damage was intimated to them within 15 days of the occurrence. Hence, claim of petitioner was summarily rejected. Thereafter, petitioner filed complaint praying that respondents be directed to compensate and indemnify him towards the loss of 12 kilo litres of kerosene oil for a amount of Rs. 89,024, which is the value of the said kerosene oil. Apart from that, petitioner has sought payment of Rs. 30,000 towards mental agony and inconvenience caused and Rs. 3,000 towards cost of litigation.

THE respondents in their written version denied the allegations of the petitioner and stated that they have no knowledge regarding the loss of kerosene oil in question. However, they admitted that claim of the petitioner towards damage caused to his tanker has been settled. It is further alleged that since petitioner has not applied in proper form as required by them, they were not able to do the needful by appointing and sending a surveyor to assess the loss caused to the kerosene oil, which was allegedly there inside the tanker. Since, the claim was filed at a very belated stage, although petitioner had all opportunities to file the same in time as required under the conditions of the policy, respondents rejected the claim of the petitioner. District Forum, vide order dated 21st May, 2001, allowed the complaint directing respondents to pay to the petitioner, a sum of Rs. 89,024 towards his legitimate claim, i.e., the cost of 12 kilo litres of kerosene oil, Rs. 5,000 as compensation for the mental agony and inconvenience caused to him, and Rs. 500 as cost of litigation.

AGGRIEVED by the order of District Forum, respondents filed appeal before the State Commission which allowed the same, vide its impugned order and complaint of petitioner was dismissed.

HENCE , the present revision. We have heard the learned Counsel for the parties and have perused the materials on record.

IT has been contended by learned Counsel for the petitioner that District Forum, on the basis of evidence and material available before it rightly awarded Rs. 89,024 towards the claim which was cost of 12 K.L. of kerosene oil. The petitioner has informed the respondents at the earliest with regard to the accident and accidental fire to the kerosene oil tanker. The State Commission erroneously presumed that after the settlement of claim in respect of the vehicle, petitioner has approached for indemnification in respect of kerosene oil for which he had no document and kerosene oil was being transported clandestinely without any document. These findings of State Commission are erroneous and against the record.

ON the other hand, it has been contended by learned Counsel for the respondent that there is no ambiguity or infirmity in the impugned order. The State Commission rightly rejected the claim of 12 K.L. of kerosene oil. District Forum, in its order has held: 8. Now it has to be examined whether the petitioner has informed the opposite parties regarding the loss of 12 K.L. of kerosene oil which was carried in the tanker of the vehicle in question from Sambalpur to Dharamgarh. On this score the petitioners saying in petition is that the aforesaid fact has filed the Xerox copy of the letter dated 17.5.1996, vide Annexure -1. On a perusal of the same it appears that the petitioner has informed the opposite party No. 1 in writing on the date of accident in question that the vehicle in question met with an accident near village Bandakutra and at the time of the accident his vehicle was carrying 12 KL of kerosene oil from Sambalpur to Dharamgarh. Due to the accident, the vehicle caught fire and requested the opposite party No. 1 to depute spot surveyor at the earliest possible time.

It is admitted by the opposite party that basing on Annexure -1 they have settled the dispute of loss caused the vehicle in question, while settling the dispute the O.Ps. must have sent their surveyor etc. as it is their procedure to be followed. In that view of the matter it is not understood as to why and how the O.Ps. did not chose to assess the loss of kerosene oil at that time. The O.Ps. have also not filed or produced the surveyor''s report in this connection which they must have prepared at the time of settling the dispute of damage caused to the vehicle in question. If the same would have been proved in this case, it would have thrown much light in our mind to know the actual state of affairs of the dispute in question. The same they have not filed in this case, it is not open for the O.Ps. to say at a belated stage that since the petitioner has not applied regarding the loss of kerosene oil within fifteen days of the accident and loss is not entitled to be indemnified by the opposite parties. In other words, the contention raised by the learned Counsel for the O.Ps. at this score of the case has got no force. That apart, the Court of Forum as the case may be does not exist to find fault with the parties but it has to charge whether parties effected has come to the Court with clean hand. If it is found that the petitioner has come to the Forum in clean hand, the liberty of equity has to be extended to him.

THE State Commission, while allowing the appeal of the respondents in its impugned order observed; There is no dispute about the fact that there was an accident. It is also not the case of the appellant -opposite parties that no kerosene oil was being transported in the tanker by the complainant. But the fact remains that since there was no claim advanced by the complainant for some reason or the other best known to him, timely action could not be initiated by the Insurance Company to process the claim by appointment of a surveyor. Mr. Mund, learned Counsel for the complainant -respondent, strenuously urged that although the complainant tried his best to get a claim form to make the claim towards the loss of kerosene oil, no claim form was made available to him, and when he applied to appellant No. 1, the latter requested him to get it from appellants 2 and 3. Though he had intimated about the loss and claimed to be indemnified under the carrier''s legal liability policy, the same was rejected and was not entertained. The submission that the complainant had made several correspondences to get the claim form, which was deliberately not supplied, has perhaps been answered by Mr. Dutta, learned Counsel for the appellant, and we also find from the L.C.R. that not a single copy of the said letters has been filed before the learned District Forum to at least make us believe that the complainant had not sit tight but had tried to get the claim form. There is no reason why a claim form would be denied, when such form was supplied for making the own damage claim in respect of the vehicle. This itself goes to show that only after settlement of the claim in respect of the vehicle (own damage claim), the complainant has tried to be indemnified in respect of the kerosene oil, for which he has/had no document and perhaps it was being transported clandestinely without document. If at all he would have made any claim at that point of time, the clandestine deal would have been revealed.

SHORT question which arises for consideration is as to whether petitioner is entitled to the cost of 12 KL of kerosene oil, which was there in the vehicle in question at the time of the incident. As per final survey report, dated 30.7.1996 placed on record by the respondents, it has been clearly stated that "Oil tanker was loaded with kerosene". Further, the surveyor has assessed the cost of 12 KL of kerosene as "Rs. 80,000".

THUS , as per respondents own case, the tanker was loaded with 12 KL of kerosene oil, then we fail to understand as to for what reasons, respondents have rejected the claim of "kerosene oil", while respondents themselves have allowed the claim towards the "damage caused to the oil tanker". There is no dispute that at time when the accident took place, the tanker was loaded with 12 KL of kerosene oil. Under these circumstances, we hold that District Forum rightly allowed the claim of the petitioner with regard to the cost of 12 KL of kerosene oil. The State Commission without any cogent reasons has set aside the order of the District Forum.

ACCORDINGLY , we allow the present revision and hold that order of the State Commission is not sustainable under the law. Consequently, the order passed by the District Forum is restored and the complaint of the petitioner stands allowed. No order as to cost.