Jammu and Kashmir

Jammu

CC/379/2017

HARDIT SINGH - Complainant(s)

Versus

NEW INDIA ASSURANCE - Opp.Party(s)

SATINDER GUPTA

08 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                  193/DFJ           

 Date of  Institution   :     13-09-2014

 Date of Decision      :       30-08-2018

Hardit Singh,

S/O Sh.Rawail Singh,

R/O H.No.5,Gole Gujral,Jammu.

                                                                                                                        Complainant

              V/S

The New India Insurance Company Ltd.

Branch Office,Near Satwari Chowk,Jammu Cantt.-180003.

                                                                                                                        Opposite party

CORAM:-

                  Khalil Choudhary             (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

 Mr.Satinder Gupta,Advocate for complainant, present.

Mr.Jugal Kishore,Advocate for OP,present.

                                                          

                                                                                        ORDER

                        Grievance of the complainant is that he is being registered owner of Petrol Tanker(HTGV)bearing registration No.JK02P-5965 and also partner of firm under the name and style of M/S Kuldeep Oil Carrier situated at TPT Nagar Yard No.1 Shop No.22 Ext.Narwal Jammu which is engaged in the business of transportation of petroleum products,(Copies of Registration Certificate and partnership deed are annexed as Annexure-A&B) and the partnership firm of the complainant got tender from the Indian Oil Corporation with regard to the transportation of M/S HSD(High Speed Diesel)and branded Fuels and got his own tanker also attached, including other vehicles with the Indian Oil Corporation (copy of allotment is annexed as Annexure-C).That during the course of business of the firm, the tanker of the complainant bearing No.JK02P-5965 loaded 12,000 ltrs of SKO of the Indian Oil Corporation Ltd.from Jammu Depot dated 18-12-2012 to be delivered at Srinagar Zeewan Depot.and regarding the goods the complainant obtained a carrier policy from OP to indemnify the loss of goods suffered during transportation(copy of policy of insurance is annexed as Annexure-D).That during the subsistence of insurance policy, while enroute to Srinagar,the tanker of complainant suffered accident at Ballinalla,on 21-12-2012 and in the accident 1926 litrs of product was got loss out of total 12,000 ltrs of SKO.It is important to mention here that Indian Oil Corporation has deducted sum of Rs.1,25,190/-from the bills of complainant for the loss of 1926 litrs of SKO and has issued a certificate dated 22-01-2013(copy of certificate is annexed as Annexure-E). That Immediately after the accident, claim was lodged by the complainant with the OP for indemnification of loss of SKO suffered and all the requisite documents were provided to the OP as demanded by OP.That thereafter the OP vide its letter dated 05-02-2013 addressed to complainant asking for long list of documentations to be required for processing of claim, which was accordingly provided to OP, but despite providing all the documents as required, the OP vide its letter dated 31-05-2013 informed the complainant that the OP has rejected the claim as “No Claim “on the ground that the policy has not been issued in the name of carrier, the insurable interest does not exist. So keeping in view the policy terms and conditions, filed has been closed as no claim wholly upon your own risk and responsibility (copy of letter dated 31-05-2013 is annexed as Annexure-G).That the claim of complainant has been rejected by OP deliberately with malafide intention to deprive the complainant of the benefits of the policy and this act of OP constitutes deficiency in service and un fair trade practice. Hence the present complaint .In the final analysis complainant prays for indemnification of loss to the tune of Rs.1,25,190/-alongwith interest @ 12% p.a.from the date of accident and in addition also prays for compensation to the amount of Rs.50,000/-under different heads.

                   The opposite party filed objections and contested the claim on the ground that the complainant has no locus standi to file the present complaint. The SKO in respect of which the present complaint has been filed having not been entrusted to the complainant, no claim in respect thereof can be paid to the complainant.Admitttedly the SKO in respect of which the claim had been lodged by the complainant was the property of the partnership firm M/S Kuldeep Oil Carrier and therefore the complainant has no right to seek claim in respect thereof. That there exists no insurable interest between the carrier M/S Kuldeep Oil Carrier and the OP company the claim in question is not payable. That there has been no deficiency of service on the part of OP Company in processing the claim of complainant. Deficiency of service is a requirement sine-quo-non for invoking the jurisdiction of this Forum under Consumer Protection Act. The claim of complainant was duly processed and was found to be not payable for the reasons stated above. It is admitted that  the complainant is the registered owner of Oil Tanker Bearing Registration No.JK02AP-5965,however,it is submitted that it was never brought to the knowledge of OP Company that complainant is a partner in the Firm M/S Kuldeep Oil Carrier at the time of insurance of vehicle or before the occurrence of the accident in question. It is admitted to the extent that the Oil Taker bearing registration No. JK02AP-5965 was insured with the OP Company under Carrier’s Legal Liability  Insurance Policy for the period from 29-08-2012 to 28-08-2013 in the name of complainant and not in the name of firm M/S Kuldeep Oil Carrier.However,perusal of copy of partnership deed will show that the complainant became the partner in the Firm M/S Kuldeep Oil Carrier w.e.f.01-12-2011 and further the perusal of said partnership shows that the insured vehicle belonging to complainant was attached with the firm M/S Kuldeep Oil Carrier. It is submitted that the claim was lodged by the complainant with the OP Company with regard to insured vehicle bearing registration No.JK02AP-5965 met with an accident on,21-12-2012,the OP Company immediately appointed Mr.Daljeet Singh Sangral Surveyor and Loss Assessor for making the spot survey. The surveyor after inspecting the accidental vehicle on site submitted  preliminary survey report dated 21-01-02013 to OP Company. As per observation of the spot survey though there had been leakage of SKO,but the shortage of SO could not be measured as the locked inlet ports could not have been opened without the proper permission from Indian Oil Corporation. The OP Company simultaneously also deputed M/S Sharma Surveyor for final assessment of loss caused to the SKO.M/S Sharma Surveyor after making assessment of loss caused to the SKO .As per final assessment report of M/S Sharma Surveyors there had been loss of 1926 litrs of SKO and the value of which comes to Rs.1,09,514/-which was subject to deduction of Rs.2000/-on account of excess clause therefore,the net lsos assessed to the tune of Rs.1,07,514/-only.  The insurer having repudiated the claim under Insurance Policy,bonafidely cannot be held guilty of deficiency in service. In the final analysis OP prays for dismissal of complaint.

             In support of the complaint, the complainant has filed his own affidavit and affidavits of Gurmeet Singh and Ramneek Singh,respectively.Complainant has also produced copy of Registration Certificate and Partnership deed, copy of allotment, copy of policy, copy of certificate issued by Indian Oil Corporation Ltd.and copies of mails exchanged between the parties.

           On the other hand OP has filed the affidavit of G.S.Bali Divisional Manager New India Assurance Company Ltd. OP has placed on record copy of surveyor report.      

                 We have perused the case file and also heard learned counsels appearing for the parties at length. 

                        Briefly stated facts of the case are that the complainant is being registered owner of Petrol Tanker(HTGV)bearing registration No.JK02P-5965 and also partner of firm under the name and style of M/S Kuldeep Oil Carrier situated at TPT Nagar Yard No.1 Shop No.22 Ext.Narwal Jammu which is engaged in the business of transportation of petroleum products and the partnership firm of the complainant got tender from the Indian Oil Corporation with regard to the transportation of M/S HSD(High Speed Diesel)and branded Fuels and got his own tanker also attached, including other vehicles with the Indian Oil Corporation.That during the course of business of the firm, the tanker of the complainant bearing No.JK02P-5965 loaded 12,000 ltrs of SKO of the Indian Oil Corporation Ltd.from Jammu Depot dated 18-12-2012 to be delivered at Srinagar Zeewan Depot.and regarding the goods the complainant obtained a carrier policy from OP to indemnify the loss of goods suffered during transportation.That during the subsistence of insurance policy, while enroute to Srinagar,the tanker of complainant suffered accident at Ballinalla,on 21-12-2012 and in the accident 1926 litrs of product was got loss out of total 12,000 ltrs of SKO.It is important to mention here that Indian Oil Corporation has deducted sum of Rs.1,25,190/-from the bills of complainant for the loss of 1926 litrs of SKO and has issued a certificate dated 22-01-2013. That Immediately after the accident, claim was lodged by the complainant with the OP for indemnification of loss of SKO suffered and all the requisite documents were provided to the OP as demanded by OP.That thereafter the OP vide its letter dated 05-02-2013 addressed to complainant asking for long list of documentations to be required for processing of claim, which was accordingly provided to OP, but despite providing all the documents as required, the OP vide its letter dated 31-05-2013 informed the complainant that the OP has rejected the claim as No Claim on the ground that the policy has not been issued in the name of carrier, the insurable interest does not exist. So keeping in view the policy terms and conditions, filed has been closed as no claim wholly upon your own risk and responsibility and the claim of complainant has been rejected by OP deliberately with malafide intention to deprive the complainant of the benefits of the policy and this act of OP constitutes deficiency in service and un fair trade practice.

                        On the other hand,sand of OP is that the complainant has no locus standi to file the present complaint as the SKO in respect of which the present complaint has been filed having not been entrusted to the complainant, as such, no claim in respect thereof can be paid to the complainant.Admitttedly the SKO in respect of which the claim had been lodged by the complainant was the property of the partnership firm M/S Kuldeep Oil Carrier and therefore the complainant has no right to seek claim in respect thereof. That there exists no insurable interest between the carrier M/S Kuldeep Oil Carrier and the OP Company the claim in question is not payable. That there has been no deficiency of service on the part of OP Company in processing the claim of complainant.

                          Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

                     After hearing L/Cs for parties and perusing the case file, the point for consideration is, as to whether or not OP is deficient in service in not redressing the grievance of complainant.

                             While noticing the insurance policy enclosed with the complaint, the name of insured person is Mr.Hardit Singh,R/O H.No.5 Gole Gujral,Near New Power Station,Jammu,but the certificate issued by Indian Oil Corporation Ltd.for loss of product is in the name of M/S Kuldeep Oil Carrier,Upper Gadi Garh,Jammu.The complaint was not lodged before this Forum by proper person who insured the same, thus instant complaint is not maintainable on this count.

           We have meticulously perused surveyor report dated 22-04-2013 issued by Sharma Surveyors, perusal whereof reveals at para 5 as

     The legal liability policy has been issued in the name of Mr.Hardit Singh,whereas,the carrier contract is in the name of M/S KULDEEP OIL CARRIER .Moreover, liability as per the contract has been raised against KULDEEP OIL CARRIER by OIC  not on the Insured who has been provided legal cover under the policy.However,Mr.Hardit Singh is one of the partners of the firm M/S Kuldeep Oil Carrier.

                           As this Forum in matter of jurisdiction and its functioning has a very limited scope involving summary procedure to conduct enquiry in the case involving the matter simplicitor relating to the consumers.

                            The law is well settled where there is such a situation as found existent in a case involving complicated question of law and fact, the case could be heard by any other appropriate Forum.

                       To lend support in the case reliance can be placed on the judgment of National Consumer Disputes Redressal Commission,New Delhi in case titled Niwas Spinning Mills Ltd.and others V/S Canbank Mutual Fund and another reported in 2002(1)CLT 113,wherein it has been held as:

       Consumer Protection Act,1986 ,Section 12-Complex issue of law and fact-Complaint filed claiming damages worth Rs.4.68 crores with interest @ 18% Held that the complaint raises various complex issues both of law and facts-There are numerous documents which have to be proved to sustain the claim made in the complaint-Such type of complaint requires tremendous amount of time for recording evidence and hearing arguments-The Commission has to decide a complaint within a set time schedule and exercises summary jurisdiction .the complaint is not fit to be entertained-Complaint dismissed and complainant left to seek his remedy before appropriate Forum.

                        This Forum indeed drives its powers and is clothed with the jurisdiction merely under the provisions of Consumer Protection Act, which is a complete legislation in its working and procedure and manner of conducting the enquiry in a summary way not so exhaustively and in an elaborate manner as is done by the other Forums.

                        Further also to make it more clear, as for as the terms of the policy are concerned reliance can be had to judgment in case titled Indraprastha Gas Ltd.V/S New India Assurance Co.Ltd.& Ors. reported in 1(2015)CPJ 279(NC)wherein the relevant para it is laid down:

        The court has to give material meaning to the document. It is not open to the court to make any addition to or subtraction from the terms and conditions contained in Insurance Policy.                      So in view of above said legal position of law and further the complainant has no locus standi to file the present complaint. As per insurance policy annexed with the complaint, the name of the insured person is Mr.Hardit Singh,but the certificate issued by Indian Oil Corporation Ltd.is in the name of M/S Kuldeep Oil Carrier Upper Gadi Garh,Jammu,therefore,the policy has not been issued in the name of carrier, the insurable interest does not exist.

                     In afore quoted back drop, complaint is accordingly, dismissed.However,complainants is at liberty to seek appropriate remedy, if so advised.However,in the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records

Order per President                                              Khalil Choudhary

 

Announced                                                            (Distt.& Sessions Judge)

30 -08-2018                                                                 President

                                                                              District Consumer Forum

                                                                                    Jammu

Agreed by                                                  

                                                             

                                                        

Ms.Vijay Angral                                                .

Member                              

 

Mr.Ghulam Sarwar Chauhan

Member