UNITED INDIA INSURANCE CO. LTD. vs Ramesh Chandra Ajay Kumar And Ors.

THE present revision petition has been filed by the insurance company, which was Opposite Party Nos. 1 to 3 before the District Forum. Respondent No. 1 is the original complainant and respondent No. 2 is the owner of truck, which was carrying the wood, which allegedly got burnt along with the truck.

BRIEFLY stated, the facts, as stated in the complaint, are that on 14.06.2001, the respondent/complainant bought 88 quintals of teak and Sal beading from Vinayak & Co., Jabalpur and Patel & Co., Jabalpur, which was to be taken from Jabalpur to Gwalior by truck No. MP -23D -4656 belonging to respondent No. 2. The complainant/respondent took transport permits Nos. 470/72 dated 13.06.2001 and 470/85 dated 14.06.2001 from the Forest Department. Before transporting the wood, the complainant insured the same with the petitioner insurance company and the goods were sent through New Modi Roadlines by Lorry receipt No. 2601 dated 14.06.2001 for which he paid 9,000/ -. On 17.6.2001, while coming from Jabalpur, near Sehore in District Shivpuri, there was sudden short circuit in the wiring and the insured goods and the truck were burnt. The driver informed the police about this incident. On receiving information, the insurance company appointed a surveyor. The surveyor wrote to the complainant asking for some information to which a reply was sent. It is alleged that the surveyor kept sending letters asking for the same information repeatedly. On 28.12.2001, the insurance company repudiated the claim of the respondent/complainant for loss of goods in transit. Meanwhile the owner of the truck, i.e., respondent No. 2, had lodged a complaint with the Insurance Ombudsman, who found the truck owner''s claim to be valid and directed the insurance company to settle his claim with interest. Aggrieved by the repudiation of his claim by the insurance company in respect of the insured goods carried by the truck, the complainant lodged a complaint with the District Forum, which dismissed the same. In the appeal that was filed by the complainant against the order of the District Forum, the State Commission reversed the order of the District Forum and accepted the appeal by its impugned order dated 12.01.2007 in terms of the following directions: - - "In view of the aforesaid discussion, this appeal is allowed, and the impugned order of the forum below is set aside. Respondents No. 1, 2, and 3, are directed to pay to the complainant, jointly and severally, a sum of Rs. 4,57,620/ - with 6% interest from the date of filing of the complaint i.e. 23.7.02, failing which the amount shall carry interest at the rate of 9% from the date of order till payment. They will also bear the appellant''s cost of this complaint and the same is quantified at Rs. 2000/ -."

IT is against the aforesaid order of the State Commission that the present revision petition has been filed by the petitioner insurance company. The grounds on which the petitioner has challenged the impugned order may be reproduced thus: - - "A. Because the Hon''ble State Commission did not appreciate the evidence of Surveyor/Investigator Shri Ram Mohan Gupta and Shri M.P. Tiwari and their report of the Investigation /Survey which mentioned the repudiation of the claim on the basis of the falsity of the claims.

C. Because the State commission overlooked there was no coal and ash present at the site which in all probability had to be present if wood in such large quantity was gutted in a fire.

E. Because the Hon''ble State commission failed to appreciate that Claimant and the owner of the truck are father and son and are being habitual in abusing the insurance policy by making false claims.

H. Because the Hon''ble State commission overlooked that the route taken by the driver was an unauthorized one as per the marine policy cover issued by the petitioner company.

J. Because the State commission did not appreciate the Police Station was hardly 100 mtrs. away from the alleged place of accident and still the driver reported the incident to the police after a delay of 7 hours. Thus, no efforts were made by driver to mitigate the loss."

WE have heard Shri V.S. Chopra, Advocate for the petitioner and Shri Gaurav Agarwal and Ms. Shristi Gupta, Advocates for the respondents and perused the record. The District Forum, going by the report of the surveyor concluded that the story put up by the complainant appeared to be false and dismissed the complaint. The observations made by the District Forum in paras 9 and 10 in this regard are relevant and may be reproduced thus: - - "9. The whole story looks false as such a big fire not affecting the diesel tank underneath the body was not found affected. Had 88 quintal wood and the truck body been burnt the heat could have turned the diesel in the tank into gas and the tank could have burst and within the truck could have fragmented. This diesel tank being unaffected is sufficient to prove that the whole story is false.

NA has based its decision of repudiation on the facts and circumstances brought out in the Survey Report and the story being found false, has committed no deficiency in service."

WHILE the District Forum seems to have totally relied on whatever has been stated by the surveyor in his report, the State Commission has examined the grounds of repudiation in great detail before reversing the order of the District Forum and accepting the appeal. The grounds of repudiation have been enumerated in para 3 of the impugned order and the State Commission has dealt with each one of them in paras 5 to 10 as under: - - "5. The allegation of the Insurance Company that the appellant did not provide necessary information to the surveyor is without merit. We have on record, registered letters written by the appellant to the Insurance Company answering their queries. They have also alleged that the engine number and chassis number of the truck which was burnt, differed from that of truck No. MP 23 D 4656. This point has already been settled by the Insurance Ombudsman, who found no merit in the argument, and we see no reason to disagree with his findings.

The Insurance Company has also alleged that there was no ash or coal at the site of the incident. However photographs filed by them belie this allegation. The photographs show a sufficient amount of ash at the side of the truck and also under the truck. What has to be considered is that the truck was carrying wood beading. The wood was thin, dry and had an average length of 10 inches and thickness of approximately 2 inches. It could not have taken more than an hour or two for this dry thin beading to burn out completely, leaving small quantity of ash or coal. There was no question of the fire lingering on for days. Photographs show that the incident occurred in the wilderness, at a spot far from human habitation. It would not be rational, to expect a driver to go in the middle of the night seeking a police station to report the incident. And to expect a fire brigade to come to this spot, miles away from any large town, is being totally unrealistic.

THE respondent Insurance Company allegation that there was no consignment at the time of the fire in the truck is also baseless. The appellant has filed photocopies of receipts of Vinayak & Co of Rs. 4,51,340/ - and D R Patel & Co of Rs. 6280/ -, from whom he purchased the beading. It is true that in the insurance policy the lorry receipt number has been mentioned number as 3601. This is very evidently a typographical error. The lorry receipt number of New Modi Roadlines which is 2601, clearly mentions the truck no as MP 23 D 4656 carrying 88 quintals of beading. Also filed on record is the transit pass of the Forest Department and the forest barrier passes, where the truck was checked en route and fount to be carrying the specified goods. The passes also have the same truck number. The route taken by the truck driver might not have been very good, but the driver did not have a permit for U.P., and the route he chose to take must have been one he was familiar with. To attribute motives for taking a particular route is unjustified.

FINALLY , during arguments, the learned counsel for the Insurance Company, Shri Pradeep Nighoskar, argued that the appellant couldn''t be said to be a consumer. He placed reliance on a case decided by this Commission, (Poona Bangalore Carriers (11(2004) CPJ 118), in which he consignor had been billed for the freight charges, but the transport corporation had filed the complaint. The instant case is distinct. The appellant had purchased the goods and was transporting them to Gwalior. He had paid or was required to pay Rs. 9000/ - as freight charges, which is evidenced by the lorry receipt. The Marine Cargo Policy is also in the name of the appellant. He paid premium Rs. 2512/ - for the policy. As consideration has been paid, the appellant is a consumer as defined under Section 2(1)(d)(ii) of the Act.

IN our considered view, the Insurance Company has wrongly repudiated the appellant''s claim. Their repudiation is based merely on surmises and conjectures, without any evidence to support the charges they have levied." 7. We agree with the view taken by the State Commission. The District Forum gravely erred in blindly relying on whatever has been stated by the surveyor in his report without analyzing it critically. We have gone through the surveyor report and we find that the report is rather biased and is full of conjectures and surmises. While lamenting about the non -submission of information/clarification and documents in connection with the claim by the complainant, it is interesting to note that the surveyor has miserably failed to mention as to which information or clarification or documents were not furnished by the complainant. In the absence of such mention/clarification by the surveyor, we are not aware as to where the complainant failed to furnish the information/clarification and how relevant they are for the purpose of assessment of the loss. Regarding the assessment of the loss, the surveyor has simply said that "We are not assessing the loss, as in our opinion, no consignment was present in the truck at the time of fire". Not only this, the surveyor has also concluded that the truck, which was stated to be burnt in the fire was not the same truck bearing No. MP 23D 4656 and therefore he has concluded that the consignment in question was not burnt. We may note that the Insurance Ombudsman had already directed the insurance company to settle the claim of the owner of the truck with interest. Each ground of repudiation as contained in the surveyor report, which is the basis of repudiation of the claim by the insurance company has been dealt with by the State Commission in its impugned order, which is reproduced above. Nothing has been produced by the petitioner insurance company before us which could persuade us to take a different view. Not only this, as rightly held by the State Commission we cannot brush aside or ignore the findings of the Insurance Ombudsman, who has already accepted the claim of the owner of the truck, respondent No. 2 herein, which got burnt in the incident. After going through the impugned order, we find that the State Commission has taken pains to examine the grounds of repudiation carefully while returning its finding of facts based on which it has non -suited the defence of the petitioner insurance company and accepted the appeal. No fault could be found with the view taken by the State Commission in the facts and circumstances of this case.

Section 21(b) of the Consumer Protection Act, 1986, under which this revision petition has been filed confers rather limited powers on this Commission and unless there is material irregularity or jurisdictional error, our interference with the orders of fora below cannot be justified.

In view of the above discussion, we do not find any substance in this revision petition and therefore dismiss the same leaving to the parties to bear their own costs.