H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 146/2007

Date of Decision 07.04.2009.

United India Insurance Company Limited, through its

Assistant Divisional Manager, Shimla Division, Timber

House, Cart Road, Shimla 171 001.

……..Appellant.

Versus



Sh. Pawan Kumar S/o late Shri Thakur Dass,

R/o Vill. Sanoura, PO Kopra, Tehsil Nurpur, Distt. Kangra, HP.



……. Respondent.



For the Appellant. Mr. Harish Bahl, Advocate.



For the Respondent. Mr. Rakesh Bharti, Advocate.



Appeal No. 280/2007.



Sh. Pawan Kumar S/o late Sh. Thakur Dass

R/o Vill. Sanoura, PO Kopra, Tehsil Nurpur, Distt. Kangra, HP.



…….Appellant



Versus



1. United India Insurance Company Ltd., through its

Senior Divisional Manager, Divisional Office Pathankot

Distt. Gurdaspur (Punjab)



2. The Branch Manager, United India Insurance Company

Ltd. Branch Office Pathankot, Distt. Gurdaspur (Punjab).



…………Respondents.



For the Appellant. Mr. Rakesh Bharti, Advocate.



For the Respondents. Mr. Harish Bahl, Advocate.





Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? Yes.



O R D E R:



Justice Arun Kumar Goel (Retd.) President (Oral)



Since these appeals have arisen out of the order dated 23.2.2007, passed by District Forum, Kangra at Dharamshala, Camp at Nurpur, in Consumer Complaint No. 345/2004, as such they have been heard together and are being disposed of by this order.

2. Pawan Kumar hereinafter to be referred as the complainant filed complaint against the United India Insurance Ltd., and another, hereinafter being referred to as the OPs., alleging deficiency in service on their part because of non settlement of his claim after his Maruti Van was burnt on 15.1.2004.

3. Case set out by the complainant was that he was the owner of a Maruti Van bearing registration No. HP-57-0307. On 15.1.2004 it is admitted case of the parties, that it was insured with the OPs under a valid policy of insurance, when it got burnt. FIR was lodged in police station Nurpur on 16.1.2004. Maruti van was totally burn. Damage caused to it was assessed by M/s Classic Motor Garage, Maruti Authorised Service Station, Jassur. As per their assessment damage was to the tune of Rs. 1,77,928/-. After fire incident surveyor deputed by the OPs had also inspected the vehicle. Necessary documents were provided by the complainant, but claim was not settled. This resulted in issuance of legal notice dated 14.6.2004. When despite notice, the claim was not settled complaint was lodged.

4. When put to notice, stand of the respondents by way of preliminary objections was, that the complainant had no locus standi to file the complaint, he had no cause of action, there was no deficiency of service on their part. After receipt of intimation regarding fire incident surveyor was appointed who opined that LPG Gas Kit was fitted in the vehicle. Fire was due to blast in this Kit, as a result of it body shell roof and dicky door panel, both were detached, which would not have been the situation in case of fire. This was only due to blowing up of the LPG cylinder fitted in the rear floor of the car. At the place where the kit had been fitted, there had developed a hole. Vehicle had caught fire due to leakage of gas and the cylinder containing gas blasted. LPG Gas Kit could not have been fitted. Thus according to the OPs they were not liable to pay any claim.

5. On merits while admitting the insurance, fire having been caused due to leakage of LPG kit fitted in the rear floor of the insured car resulting in body, roof and dicky door panel having got detached set out as defence. This was not possible due to fire. Rejoinder to this reply was filed. While reiterating his stand in the complaint, averments to the contrary in reply were denied. Reliance was placed on the report of the Forensic Science Laboratory, Junga Annexure C-9 wherein it had been mentioned that some particles of petrol were found in the ash of the van. This was sent by the police to the laboratory.

6. We may observe here that in the vehicle in question as per its registration certificate Ext. OP/A, fuel to be used in engine was “petrol”. Report of the surveyor is Annexure OP-2. He had specifically opined that the incident was due to impact in rear floor panel. What he has observed in remarks is extracted for ready reference:-

“Remarks:- We inspected badly burnt Maruti Omni. We observed that roof penal detached from its original position, Maruti Omni floor on rear side had impact and fuel tank found burnt [Fuel tank did’nt blow up]. It is submitted to insurer that body shell roof and digey door penal cannot detach due to fire but it can detach due to blow of LPG cylinder which was fitted on rear of floor so there was impact on rear floor penal. Moreover we found hole on front mudguard r/s where LPG kit was fitted as hole on this point is not created by manufacturer on left front mudguard [see snap 25]. We concluded after inspecting the condition of vehicle that Maruti Omni caught fire due to leakage of LPG cylinder and LPG cylinder blasted thus roof penal & digey door penal detached from its position. Insured had not taken extended risk of own damage cover for LPG kit in bifuel system in policy [IMT-25 is not applicable in policy] and LPG kit is also not endorsed/permitted by Registered Authority of vehicle. So in our opinion this loss is outside scope of policy.”



7. District Forum below vide impugned order has allowed the complaint and directed the OPs jointly and severally to indemnify the complainant in the sum of Rs. 82,000/- within 30 days after the receipt of copy of the order, failing which it shall carry interest @ 9% per annum from the date of complaint, (i.e. 23.8.2004) till realization, alongwith Rs. 2,000/- as cost.

8. In the aforesaid background, Appeal No. 146/2007 has been filed by the OPs for setting aside the impugned order, whereas Appeal No. 280/2007 has been filed by the complainant for enhancement of compensation.

9. Before proceeding further it may be appropriate to notice here, that the vehicle was insured as per Insured Declared Value in the sum of Rs. 90,000/-. Therefore we are of the view that compensation on account of damage caused to the vehicle if it is to be allowed on total loss basis, it cannot be beyond the sum insured i.e. Rs. 90,000/. And in such a situation complainant is bound to return the salvage of the vehicle to the OPs or else its price is to be deducted out of the compensation payable to the complainant.

10. We shall first take up the appeal filed by the insurance company, i.e. Appeal No. 146/2007. On the basis of the evidence on record, as also keeping in view the report of the surveyor, we are satisfied that the complainant was plying the vehicle having unauthorisedly fitted it on the LPG kit. Thus he violated Section 52 of the Motor Vehicles Act, 1988. Registration certificate so far use of fuel was concerned, supports this point. Accident was due to use of LPG fuel and not petrol. Insurance undertaken is established of a vehicle that was registered to be run of petrol, and not of LPG. In case the complainant wanted it to be run of LPG fuel, then first and foremost thing was that use of LPG should have been permitted by the concerned RTA. And in such a situation the kit fitted in the vehicle was to be got further insured separately at an additional premium @ 4% of the value of such kit to be specifically declared by the insured in the proposal form and or in the letter forwarding part of the proposal form.

11. Report of the Forensic Science Laboratory, Junga Annexure C-9, that particles of petrol were found in the burnt ash of the vehicle in our opinion does not improve the case of the complainant. This report does not deal with the aspect of the roof etc. having been blasted and hole having been developed in the rear floor, due to explosion in LPG kit. Police also did not examine the matter from this point of view. Besides this there is nothing placed from police record to suggest whether during investigation cause of blast of the roof, dicky and the hole in the rear floor was gone into. Thus in our opinion neither the police examined the case in the right perspective, nor the Forensic Science Laboratory was called upon to deal with and examine the vehicle. In these circumstances our view that the vehicle was burnt due to unauthorized use of LPG fuel is re-inforced. District Forum below thus was fell into error while awarding the amount of compensation by ignoring this vital aspect.

12. Submission of Mr. Bharti in Appeal No. 280/2007 that while upholding the award, interest needs to be enhanced to 15% per annum on the awarded compensation as also cost of litigation needs to be enhanced has no merit. Reason being that these plea will need consideration only when it is held that the complainant is entitled to compensation. As such his prayer for dismissing the appeal of the insurance company, while allowing that of the complainant and enhancing the interest as well as cost of litigation is hereby rejected.

13. On the basis of the evidence on record, we are satisfied that the vehicle was being plied on LPG fuel by unauthorisedly having fitted the van with LPG kit in the rear floor which blasted due to leakage of gas in it. It not only blasted the roof of the van, door and dicky, but also caused hole in the rear floor. As such findings recorded by the District Forum below to the contrary and then holding the OPs liable for indemnifying the complainant need to be set aside. Ordered accordingly. Once this conclusion is arrived at, then there is no escape, but for allowing the appeal filed by the OPs-Insurance Company and dismissing the appeal of the complainant.

14. No other point is urged.

In view of the aforesaid discussion Appeal No. 146/2007 filed by the OPs-Insurance Company is allowed, and as a result of it order dated 23.2.2007 in Consumer Complaint No. 345/2007 passed by District Forum Kangra at Dharamshala, Camp at Nurpur is set aside, at the same time appeal filed by the complainant Pawan Kumar, i.e. Appeal No. 280/2007 is hereby dismissed. As a sequel to this complaint No. 354/2004 stands dismissed, leaving the parties to bear their own costs.

All interim orders passed from time to time in Appeal No. 146/2007 shall stand vacated forthwith.

Learned counsel for the OPs has undertaken to collect copy of this order from the Court Secretary free of cost as per rules and as submitted by Mr. Bharti office is directed to send copy of order in both appeals to the complainant (Pawan Kumar) in like manner.

Office is directed to place authenticated copy of this order on the file of Appeal No. 280/2007.





Shimla.

7th April, 2009 (Justice Arun Kumar Goel) Retd.

Karan* President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.