Madhu Sood vs ORIENTAL INSURANCE COMPANY LIMITED

THIS is a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter called the ''Act'') praying for directions to be issued to the opposite parties to pay Rs. 8 lacs along with 18% per annum interest.

BRIEFLY stated the facts of the case are that the complainant purchased a vehicle (tanker) after taking loan from Canara Bank, Civil Lines Branch, Jhansi on 20.3.1996, the registration of which is MP 17 C1494. The complainant has all the valid documents. It was further stated that said vehicle was being used for carrying oil to different States and was engaged in the business of transporting the oil to different places. The complainant got the vehicle insured with Oriental Insurance Company Limited for the period 20.6.1998 to 19.6.1999 and accordingly a Cover Note No. 513641 was issued. Further on 20.6.1998 the complainant''s tanker started from Mathura for Jhansi at 11.00 a.m. and the vehicle reached the Sales Tax Barrier, Ambabai and at the Sales Tax barrier the entry to the effect was made. At 11.20 a.m. the tanker reached the Bundelkhand Degree College which is about 14 kms from the Sales Tax Barrier and at the Bundelkhand Degree College the vehicle was inspected by the Insurance Agent Mr. Deepak and after inspecting the tanker for 5 minutes the tanker was allowed to proceed to its destination and started preparing the cover note after inspecting the vehicle at 11.30 a.m. on the same day the tanker of the complainant, it was alleged, reached Haji Sons Pump which is 3 kms. from the petrol pump where fire took place and the vehicle of the complainant was burnt. Information to this effect was made to the police station and the fire brigade reached the sport and made efforts to control the fire. On 22.6.1998 the complainant lodged an F.I.R. The complainant submitted an application on 23.6.1998 to the Divisional Manager, Oriental Insurance Company Ltd. along with original copy of the F.I.R. on 10.7.1998 the employees of the Oriental Insurance Company Ltd. took the statement of the complainant. Further on 23.7.1998 the Surveyor and Loss Assessor of the opposite parties wrote to the complainant and asked her to furnish certain documents, which was done by the complainant. However, the claim of the complainant was not satisfied. On 10.11.1998 the complainant sent a legal notice to the opposite parties asking them to settle the claim of the complainant. Finally a complaint was filed by the complainant on 10.12.1998 on the wrong advice in the District Consumer Forum, Jhansi which was not maintainable on pecuniary jurisdiction. On 23.2.1999 the complainant withdrew the complaint with a view to file it before the State Commission.

The claim of the complainant has been rejected by the opposite parties on 15.2.1999. Then the complaint has been filed.

NOTICE was issued to the opposite parties on 15.5.2000 but the opposite parties have not filed by written statement. Several opportunities have been provided to the opposite parties to file written statement and on 9.1.2004 the Commission passed an order as under : "Inspite of time having been granted to Sri B.P. Dubey on several last occasions followed by stop order to file the same within two months passed on 31.10.2003, no written statement has been filed. Mr. Deepak Shukla is present and opposses strongly any further adjournment. Objection is sustained. Let ex parte evidence be filed by complainant within one month. Matter be listed for ex parte hearing in April 2004."

Complainant has filed affidavit and also a supplementary affidavit along with 11 annexures and three annexures respectively.

THE learned Counsel for the complainant Mr. Deepak Shukla has been heard at length and perused the records. It is an admitted fact that the vehicle in question was insured with the opposite party which was valid from 11.30 a.m. on 20.6.1998 to 19.6.1999 and the premium of Rs. 20,813/- was paid. It is also admitted by the Insurance Company that the tanker in question was valued at Rs. 6,50,000/-. Now there are two questions of dispute; whether the fire took place after 12 noon on 20.6.1998 or from 11.30 to 11.45 a.m. on the same day. From the perusal of the affidavit filed by Smt. Madhu Sood, it is evident from Annexure No. 2 that the vehicle in question was insured at 11.30 a.m. on 20.6.1998 which means that the vehicle was insured when the fire took place. In the statement of Smt. Madhu Sood recorded by the employees of the opposite party, which is Annexure 4 of the said affidavit, it is clearly indicated that the vehicle in question was destroyed by fire at 11.30 a.m. on 20.6.1998. It is also clearly stated that after proceeding to the destination, the vehicle reached Hazi Sons petrol pump and the fire occurred and the tanker of the complainant was burnt in the flames of fire. In para 8 of the said affidavit, it is also indicated that at 11.30 a.m. the vehicle of the complainant reached the Bundelkhand Degree College, which is about 14 kms from the Sales Tax barrier and at the Bundelkhand Degree College, the tanker was inspected by the Insurance Agent, Mr. Deepak and after inspecting the said tanker, cover note was issued at 11.30 a.m. on the same date meaning thereby the fire occurred after 11.30 a.m. because the distance from Bundelkhand Degree college is about 14 kms while the case of the opposite party was that the place where vehicle of the complainant was burnt is about 4 kms. It is clearly indicated that the fire took place on 20.6.1998 after 11.30 a.m. to 11.45 a.m.

THE claim of the complainant was repudiated on 15.7.1999 on this ground only that the fire took place after 12 Noon on 20.6.1999 is not correct and the fire took place between 11.30 to 11.45 a.m. on 20.6.1998.

ON this point we agree with the view of the learned Counsel for the complainant that the fire took place after the insurance was effected. The complainant further argued that he has claimed a sum of Rs. 8 lacs from the opposite party. Affidavit of Smt. Madhu Sood does not indicate how much compensation has been claimed from the opposite party. ONly the insurance of the vehicle in question was made for Rs. 6,50,000/- and the vehicle was burnt, as per Surveyor''s report and the claim of Rs. 6,50,000/- is made, which is liable to be allowed. So far as the interest is concerned, learned Counsel for the complainant has argued that 21% interest should be awarded as the complainant had purchased the vehicle in question after taking loan from Canara Bank, Civil Lines Branch, Jhansi. However, considering the facts of the case in our considered opinion 9% interest would meet the end of justice.

The learned Counsel for complainant has also invited our attention to the judgment of Hon''ble High Court of Allahabad in the case United India Insurance Company Ltd. v. Smt. Shadma Begum & Ors., reported in III (2002) ACC 186=2002 (3) ICC 261 (All) in which it was held that "The liability of the Insurance Company starts from the date when the cover note is issued to the insured and not from the date of amount of premium is received in its office ....."

FURTHER in the case of National Insurance Company Ltd. v. Chinto Devi (Smt.) & Ors., reported in V (2000) SLT 740=II (2000) ACC 353 (SC)=(2000) 7 Supreme Court Cases 50 it was held that "A change in this principle is brought through decision of this Court which holds, if there is any special contract mentioned in the policy, it would be operative in terms of that contract hence where time is mentioned when it was issued then the liability would cover only from the time it was issued". This case is distinguishable. In view of the above discussion, we are of the view that the complaint is liable to be allowed in part. ORDER The complaint is partly allowed. The opposite parties are directed to pay Rs. 6,50,000/- for the loss of vehicle with 9% per annum interest from the date of repudiation of the claim till the date of actual payment. Under the circumstances there will be no order as to the costs. Let copy as per rules be made available to the parties. Complaint partly allowed.