| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 278 of 19-09-2017 Decided on : 10-11-2021 Jarnail Singh aged about 74 years, S/o Sh. Amar Singh, R/o #3027, Amrik Singh Road, Bathinda ........Complainant Versus The New India Assurance Co. Ltd., Mall Godown Road, Rampura Phul, District Bathinda 151 103 through its Branch Manager .......Opposite party
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member. Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Naresh Garg, Advocate. For opposite party : Sh. Rajan Singla, Advocate. ORDER Kanwar Sandeep Singh, President The complainant Jarnail Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against New India Assurance Co. Ltd., (here-in-after referred to as opposite party). Briefly stated, the case of the complainant is that he is the owner of the oil Tanker bearing Registration No. PB-03-M-9730. He purchased Carrier Legal Liability Insurance of Oil Tanker in this regard and opposite party issued Insurance Certificate No.36060436151100000031 w.e.f. 30-12-2015 to 29-12-2016 for a sum of Rs.10,00,000/-. The opposite party never issued any policy to the complainant in this regard although the same is mandatory. It is alleged that on 24-09-2016 the above said Tanker of the complainant met with an accident near Reliance Petrol Pump, Malout Abohar Road, Near Malout as all of sudden a stray animal came in front of tanker and while saving animal, tanker went out of control and overturned to left side on road resulting damages to the vehicle and diesel also spilled from oil tanker to some extent and spread on road. At that time, vehicle was being driven by Darshan Singh. It is further alleged that at the time of accident, the said tanker was loaded with HSD (Diesel) 12000 Ltr. (weighing 9984 Kg) of Hindustan Petroleum Corporation Ltd. (HPCL), for the amount of Rs.6,22,263.11, which is duly covered under Carrier Legal Liability Insurance of Tanker No.PB-03-M-9730. In this incident loss of HSD (Diesel) was 5046 Ltr. and HPCL deducted the loss amount of Rs 2,66,311.26 against the loss of HSD (Diesel) 5046 Ltr. from the account of the complainant. The quantity of HSD (Diesel) 12000 Ltr. fixed by the HPCL and the same can neither be less nor more and the same is fixed quantity loaded every time in the said tanker by the HPCL. It is further pleaded that intimation of accident was immediately given by the complainant to the office of opposite party. They appointed Spot Surveyor Mr. Arun Kumar from Abohar, who visited spot on the same day i.e. 24-09-2016 and confirmed the accident, loss of HSD (Diesel) and submitted his report dated 02-12-2016 to the opposite party. Thereafter, opposite party appointed surveyor Er. Gurjinder Singh from G.S. Associates on 26-09-2016. He conducted survey on the same day i.e. 26-09-2016 regarding Loss of Tanker and HSD (Diesel) and assessed loss of HSD (Diesel) as 5046 Ltr. The said surveyor of the opposite party confirmed and assessed the Loss of HSD (Diesel) as 5046 Ltr. under Carrier Legal Liability Insurance of Tanker No.PB-03-M-9730. It is alleged that HPCL, deducted the amount of Rs.2,66,311.26 from the account of complainant on account of loss of HSD (diesel) quantity 5046 Ltr and the deduction voucher duly supplied to the opposite party through their said surveyor. The surveyor of the opposite party assessed the loss of HSD (Diesel) as 5046 Ltr. of Rs.2,61,635/- against the loss of Rs.2,66,311.26 and submitted report on 05-06-2017 with the opposite party. No copy of the survey report was given to the complainant. Thereafter, the opposite party through NEFT transferred the amount of Rs.1,68,904/- only in the account of complainant, without any reason against the amount of Rs. 2,66,311.26. In this way, Rs.97,407.26 is still pending against the opposite party. It is further alleged that the opposite party through their said surveyor obtained signatures of complainant on blank claim form, blank vouchers, blank consent form and blank full and final voucher and gave assurance that full claim will be paid of the HSD (Diesel) under Carrier Legal Liability Insurance as the same is deducted by HPCL. The surveyors are under the thumb of Insurance Co. and they cannot afford to disoblige their master i.e. opposite party from where they obtain business and payments so they are always to toe the dictates of the opposite party. Surveyors made reports under the instructions of the Insurance Company. It is also alleged that Gurjinder Singh (G.S Associates) is not independent surveyor as he firstly came on the panel of the opposite party after taking License from IRDA, then appointed by the opposite party. The surveyor and opposite party never sent any Spot or Final Survey Report to the complainant although the same is mandatory under the regulations of IRDA Rules i.e. Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000 Rule (1) a surveyor or loss assessor shall submit his report to the insurer as expeditiously as possible, but not later than 30 days of his appointment. It is also alleged that the complainant inquired many times regarding his claim of HSD (Diesel) under Carrier Legal Liability Insurance from the office of the opposite party but they did not give any satisfactory reply and sitting over the balance claim of the complainant without any reason for the last about 11 Months. Due to Non-payment of the said balance claim of Rs.97,407.26 (Rs.2,66,311.26 (-) Rs.1,68,904/-) on account of loss of material HSD (Diesel) under Carrier Legal Liability Insurance by the opposite party, complainant has suffered mental agony and pains for which he claims Rs.50,000/-. On this backdrop of facts, the complainant has prayed for directions to the opposite party to pay claim amount of Rs. 97,407/- being loss of material HSD (Diesel) under Carrier Legal Liability Insurance with interest @18% p.a. with damages to the tune of Rs. 50,000/- for mental agony and pain in addition to Rs. 25,000/- as litigation expenses. Upon notice, the opposite party appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party raised legal objections that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the 'Act' and appropriate remedy, if any, lies only in the Civil Court. That the complainant has concealed material facts and documents from this Commission as well as opposite party. The complainant has concealed the fact that he is not maintaining log book which is mandatory as per provisions of the Motor vehicle Act. Further that as per R.C. book of the vehicle in question, the gross weight of the vehicle including material is only 16,200 kg. as approved by the D.T.O. office and the same has been mentioned in the R.C. Book of the vehicle in question which is duly certified by the D.T.O office. Further, the complainant illegally and in connivance with the officials of HPCL reported that 5046 HSD ltr has been damaged/lost in the alleged accident. As per report of HPCL the spot surveyor issued certificate regarding alleged loss and also assessed the loss on the basis of aforesaid certificate. However, the surveyor after removing the vehicle including material remained there and weighed the same then it came to 13,340 Kgs. As such, the loss occurred in the accident is only 2860 Kgs i.e. 3429 ltr and accordingly the opposite party has assessed the loss to the tune of Rs.1,77,794/- and after deducting Rs.8890/- on account of non-maintenance of log book, remaining amount of Rs.1,68,904/- has already been paid through NEFT in the account of complainant on 22-08-2017. The complainant received the said amount as full and final payment without raising any objection. Further legal objections are that the complainant is not the consumer and that the complainant has no locus standi or cause of action to file the present complaint. On merits, it has been pleaded that insurance is subject to terms and conditions of policy and provisions of Indian Motor Tariff (IMT). It is denied that the insurance policy has not been supplied to the complainant rather the insurance policy with terms and conditions, was supplied to him. It is admitted that at the time of alleged accident the vehicle was loaded with HSD (Diesel) 12000 Ltr. (weighing ( 9984 Kgs) of HPCL for the amount of Rs.6,22,263.11 and covered under insurance. It has been pleaded that complainant in connivance with the officials of HPCL reported that 5046 HSD (Diesel) has been lost in the said accident and the HPCL deducted the loss amount of Rs.2,66,311.26. However, when the vehicle was removed from the spot by the insured in the presence of surveyor, the weight of vehicle came to 13,340 Kgs on computerized scale as such the loss is only of 2860 Kgs i.e. 3429 ltr instead of 5046 Ltr. Accordingly a sum of Rs.1,77,794/- was assessed by the surveyor and after deducting 5% i.e. Rs.8890/- on account non-maintaining log book remaining amount of Rs.1,68,904/- has already been paid to the complainant as full and final settlement by the opposite party through NEFT and the complainant never raised any objection against the said amount. It has been further pleaded that the said surveyor confirmed the alleged loss due to wrong calculation of the weight of vehicle with HSD vide survey report dated 02-06-2017 and when the opposite party came to know about the wrong calculation, then sent mail dated 26-07-2017 regarding clarification of loss assessed by the surveyor and then said surveyor issued the corrigendum report dated 28-07-2017 assessing the loss of 2860 Kgs i.e. 3429 liter. It is denied that the opposite party through their surveyor obtained any signatures of the complainant on any blank claim form, or any blank papers, blank vouchers, consent form or blank full and final voucher. After controverting all other averments, the opposite party prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 8-12-2017 (Ex. C-1), photocopy of circular dated 24-9-2015 (Ex. C-2), photocopy of capacity chart (Ex. C-3), photocopy of Tank Truck Details (Ex. C-4), photocopy of Certificate (Ex. C-5), photocopy of payment detail (Ex. C-6), photocopy of transporter portal with respect to payment (Ex. C-7), photocopy of certificate (Ex. C-8), photocopy of bill (Ex. C-9), photocopy of payment voucher (Ex. C-10), photocopy of licence (Ex. C-11), photocopy of letter (Ex.C-12), photocopy of Map (Ex. C-13) and closed the evidence. In order to rebut this evidence, the opposite party has tendered into evidence affidavit dated 26-4-2018 of Ashish Pal (Ex. OP-1/1), photocopy of RC (Ex. OP-1/2), photocopy of receipt (Ex. OP-1/3), photocopy of licence (Ex. OP-1/4), photocopy of survey report (Ex. OP-1/5), photocopy of photograph (Ex. OP-1/6), photocopy of e-mail (Ex. OP-1/7), photocopy of survey report (Ex. OP-1/8), photocopy of claim settlement letter (Ex. OP-1/9), photocopy of payment voucher (Ex. OP-1/10), affidavit dated 27-4-2018 of Gurjinder Singh (Ex. OP-1/11) and closed the evidence. We have heard learned counsel for the parties and gone through the record. These are undisputed facts between the parties that complainant is the owner of oil Tanker bearing Registration No. PB-03-M-9730 He purchased Carrier Legal Liability Insurance of said oil Tanker and in this regard opposite party issued Insurance Certificate No.36060436151100000031 w.e.f. 30-12-2015 to 29-12-2016 for a sum of Rs.10,00,000/-. The tanker of complainant met with an accident on 24-9-2016 resulting damage to the vehicle as well as loss of diesel. As is evident from Ex. C-9 and admitted by both the parties that at the time of accident tanker was loaded with HSD (Diesel) 12000 Ltrs (weighing 9984 Kg) valuing Rs. 6,22,263.11. The complainant intimated the loss to opposite party and they appointed spot surveyor Mr. Arun Kumar, who visited the spot on the same day i.e. 24-9-2016 and submitted his survey report to the opposite party on 2-12-2016. Thereafter, opposite party appointed Mr. Gurjinder Singh of G S Associates, as final surveyor. He conducted survey on 26-9-2016 and assessed the loss to the tune of 5046 Ltr. valuing Rs. 2,61,635/- as per Ex. OP-1/5. The opposite party paid Rs. 1,68,904/- to the complainant under Carrier Legal Liability Insurance. The submission of learned counsel for opposite party is that as per R.C. Book of the vehicle, the gross weight of the vehicle including material is only 16,200 Kg and Unladen weight of vehicle is 6200 Kg. The surveyor M/s G.S. Associates assessed the loss to the tune of 5046 Ltrs on the basis of Ex. OP-1/3 whereas weighment slip Ex. OP-1/3 reflects Unladen weight as 7540 instead of 6200 Kgs. Therefore net recovery is 7140 Kgs instead of 5800 Kgs. The opposite party while processing the file came to know that there is calculation mistake and clarification was sought from surveyor. Accordingly, surveyor submitted corrigendum report dated 28-7-2017 assessing the loss of 2860 Kgs. i.e. 3426 ltrs valuing Rs. 1,77,794/-. Further an amount of Rs. 8890/- was deducted on account of non-maintaining Log Book by complainant. The opposite party paid the remaining amount of Rs. 1,68,904/- to complainant, so there is no deficiency in service. A perusal of file reveals that Ex. OP-1/5 is the final survey report of M/s. G S Associates which is material document to decide the controvery. Opinion of said surveyor given under the heading “Description of Loss/Damage attributed Cause of Loss” is reproduced :- “....So the damages caused to the oil tanker which resulted in drainage of HSD (diesel) from the oil tanker. Hence the cause of loss is accidental and is admissible under the policy terms and conditions. I confirmed that the same coincide with the cause of accident. On my visit on 26-09-2016, the captioned tanker was lying as it is at Bathinda. On inspection the tank lorry found as it is and valve seals found intact. So there was no pilferage possible. The captioned tank lorry was shifted to Dashmesh Computer Kanda, Barnala bypass, Bathinda. The decanting of balance HSD was done in my presence and again weighment carried out of empty vehicle. There was saved HSD 5800 Kgs under CLL liability. In volume 5800/density 834.3=6954 Ltrs. So, there is loss of HSD 12000 Ltr – 6954 Ltr = 5046 Ltrs (Loss)”
Therefore, when the surveyor has specifically mentioned in his survey report that on inspection tank lorry was found as it is and valve seals found intact. So there was no pilferage possible. The decanting of balance HSD was done in his presence and again weightment was carried out of empty vehicle meaning thereby the actual loss was physically verified by the surveyor at the spot. Ex. OP-1/3 is the receipt regarding weight issued by Dashmesh Computer Kanda. A remark/note has also been given by surveyor under his signatures on this Weighment Slip that “weightment at Dashmesh Dharam Kanda in my presence arranged by Surveyor”. The said surveyor even issued certificate Ex. C-5 to this effect. The opposite party with an intention to reduce the loss made the basis of registration certificate of tanker in question considering Tare weight mentioned therein, and obtained corrigendum report from the surveyor. The surveyor M/s. G S Associates in Corrigendum Report (Ex. OP-1/8) has reduced the actual loss suffered by complainant by mentioning that earlier he has assessed the loss as per weighment difference considering 5800 Kgs HSD and in Ltrs 5046 and now as per discussions made with Mr. Harminder Pal Singh, the weight shown after leakage is 13340 Kgs and gross vehicle weight (carrying capacity) is 16200 Kgs as per RC. It is a matter of surprise that surveyor has amended his report after discussion with insurance official and reduced the loss whereas first report was based on the actual weight which he physically verified. The opposite party wants to take benefit of unladen weight of vehicle mentioned in R.C. Unladen weight mentioned in RC has nothing to do with actual controversy. Therefore, so called corrigendum report issued by final surveyor is not valid and the same is issued according to the wishes of opposite party. It is proved on file and admitted fact that HSD loaded in vehicle was 12000 Ltrs i.e. 9984 Kgs and after accident and loss of HSD (Diesel) in accident when weightment of vehicle was done, its weight was 13340 Kgs and later on after decanting of diesel, when vehicle was against weighed, its weight came to be 7540 Kgs i.e. diesel left in vehicle after accident was 13340 Kgs minus 7540 Kgs = 5800 Kgs i.e. 6954 Ltrs (density @834.3) meaning thereby loss of HSD 12000 Ltrs minus 6954 Ltrs = 5046 Ltrs. It is also proved by document (Ex. C-7) vide which HPCL deducted Rs. 2,66,331.26. Thus, the complainant is held entitled to net loss of HSD (Diesel) 5046 Ltrs @ 51.85 Per ltr valuing Rs. 2,61,635/- as assessed by final surveyor vide final survey report (Ex. OP-1/5) after physical inspection and verification. Keeping in view the facts, circumstances and the evidence placed on file by the parties, this Commission is of the view that there is deficiency in service on the part of the opposite parties in reducing the claim of the complainant without any valid reason. Resultantly, this complaint is partly allowed with Rs.10,000/- as cost and compensation. The opposite party is directed to pay the balance amount of Rs. 92,731/- (Rs, 2,61,635 - 1,68,904/- = 92,731/-) with interest @9% w.e.f. 22-08-2017 till payment. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 10-11-2021 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur) Member
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