PANSARI VEGETABLE AND OILS PVT LTD vs ORIENTAL INSURANCE CO LTD

-THE appellant was the complainant before the State Commission where they had filed a complaint alleging deficiency in service on the part of the respondent/opposite parties.

VERY briefly stated, the facts leading to filing of complaint are, that the appellant/complainant placed orders for purchase of 13 MT of mustard oil from M/s. Laxmi Oil Mill, Lehar, District Bhind for a consideration of Rs. 3,55,000. It was the case of the complainant that M/s. Laxmi Oil Mill engaged/hired the services of M/s. Shivam Oil Tankers of Kalpi Road, Kanpur wherein the above quantity of oil was loaded in tanker No. UP-78-B-2731 on 17. 4. 1997 for sending the consignment of oil from Bhind to the works of complainant at Howrah, for which goods receipt was issued but when within reasonable time, the consignment did not reach the appellant, the matter was taken up with the transporter as also the first respondent Insurance Company from whom a marine policy had been obtained and who had been informed about this consignment as well. Non-delivery status was also informed to the first respondent Insurance Company who appointed an investigator. Yet, when the matter was not getting sorted out, and the Insurance Company was not paying the insured amount on account of non-delivery, a complaint was filed before the State Commission who after hearing the parties and perusal of material on record, directed the first O. P. M/s. Oriental Insurance Company Ltd. to pay a compensation of Rs. 1,00,000 for the loss suffered giving liberty to the first opposite party to proceed against O. P. No. 2 for compensatory loss as per terms of policy. Not satisfied with this relief, the appellant/complainant had filed this appeal for enhancement of compensation to Rs. 3,54,580 along with interest and compensation for mental agony amounting to Rs. 20,000. We have heard the learned Counsel for the parties and have also perused the material on record, especially, the investigator''s report dated 19. 9. 1997.

The report is quite clear that the consignment was loaded in the earlier mentioned tanker No. UP-78-B-2731 at consignor''s end at Bhind for onward transportation. It is the inquiry about the status of the tanker, and its ownership which has been extensively dealt with in the report of the investigator. We reproduce the material under observation: "observations-Based on the above investigation a number of salient features were observed-The Transporters Shivam Oil Tanker seems to be very ignorant about the whole state of facts and has shown total non-cooperation as related to the informations asked for. The owner Mr. Bhadoria of the Transport Company has been coming up with statements with no documentary evidence and has been referring to people who are no way related to the concerned consignment. A story of the Tanker having an accident has been put up but no FIR to that affect has been made nor the exact location of such accident has been furnished which may prove the occurrence. It was revealed that survey had been conducted, but on repeated pursuation on the report of such survey was not available, nor the name of the surveyor could be identified. The said Tanker was found stranded in front of Mr. Bhadoria''s residence in empty condition, but there is no definite answer as regard to the contents of the Tanker. The person who may be convicted as per Mr. Bhadoria is absconding. The consignor ended his responsibility by sending the material but ignorant about the consequences of the consignment. The consignor''s endeavour to procure the consignment was not sufficient. Conclusion: based on the above investigation and observations we are of the opinion that the said consignment has not been delivered to the consignee. But we may add here that the reason for such non-delivery has not been established. However, it is also to be considered that the irresponsibility, negligence and ignorance on the part of the Transport cannot be ruled out. "

AFTER perusal of material on record, especially the report of investigator, we are unable to lay the blame squarely on he respondent Insurance Company. It is also interesting to note that the appellant/complainant did not make M/s. Laxmi Oil Mill a party to the complaint either before the State Commission or before us. It is they who had hired the truck, whose ownership itself was in question as brought out in the report of the surveyor. For not making M/s. Laxmi Oil Mill a party, it is the petitioner himself who is to be blamed as the truth would have been revealed by M/s. Laxmi Oil Mill but this appellant had decided not to do so. If in these circumstances, the appellant has been granted a compensation of Rs. 1 lac, we do not think that it calls for any interference in view of the facts and circumstances, especially, the report of the investigator and also the consignor not being made a party. In view of the above, we find no merit in this appeal which is dismissed. However, the appellant shall be at liberty to proceed against the respondent/opposite parties before any other Fora of competent jurisdiction to recover the money from the consignor/the transporter or to anyone else liable under the law, for which, if they file a suit before a competent civil Court, they will be entitled to a set-off of the period spent before the Consumer Fora for the purpose of limitation under Section 14 of Limitation Act as per law laid down by the Hon''ble Supreme Court in the case of Laxmi Engineering Works v. P. S. G. Industrial Institute, II (1995) CPJ 1 (SC)=1995 (3) SCC 583.

THIS appeal stands disposed of in above terms. No order as to cost. Appeal disposed of.