Date of filing:09.01.2023

                                                                                                Date of Disposal:10.08.2023

BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 10^th Day of August 2023

PRESENT

Mr. K B SANGANNANAVAR: JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

APPEAL NO. 07/2016

ORDER

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:

1. This is an appeal filed by OPs in CC/145/2014 on the file of District Consumer Disputes Redressal Forum, Dharwad aggrieved by the order dated 19.10.2015 (The parties herein after will be referred as to their rank assigned by the Forum below).

2. The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels.

3. The brief facts of the case of the complainant before the Forum below were to direct insurer to pay Rs.5 Lakhs along with interest @ 12% p.a. from May 2014 till payment and pay Rs.1 Lakh as compensation for loss and harassment and to pay litigation cost on the alleged rendering deficiency in service on the part of OPs.

4. It is not in dispute that complainant was the owner of vehicle Ashok Leyland Truck bearing registration No.KA-25-C-0638 which was insured with OP1/appellant herein under Commercial Vehicle Goods with comprehensive insurance policy covering the risk covering from 18.02.2013 to 17.02.2014.  It is not in dispute that complainant insured had paid Rs.19,142/- and the IDV of the said vehicle was Rs.5 Lakhs.  The vehicle is of 2008 make.  On 14^th December 2014 during the policy period in the insured vehicle cotton lint bales belongs to one Shivanna Nandigonnanavar was transporting from Santosh Jinning Mill to Channabasaveshwara Cotton Jinning Mill at Guttal Village. The driver of the said vehicle loaded 32 cotton lint bales as per norms.  It was weighed in the Way Bridge situated at Haveri Road and after weighing the vehicle the vehicle was moving on its way to Channabasaveshwara Cotton Jinning Mill situated at Guttal Village.  The driver observed a local fair is going in the said village at that time and due to mob big crowd gathered on the main road and as there was huge scruple        drive to avoid the crowd, with abundant caution took the truck to the right side of the road and at that time heard hue and cry from the mob uproar fire and mob started shouting about the sparks.  The electric sparks fell on the cotton lint bales load.  The driver in order to avoid heavy causality took the truck to nearby ground and tried to unload the cotton lint bales and he made the truck turtle but failed.  The mob gathered around the said truck and the general public tried their level best to save the cotton lint bales and truck which went in vain.  This incident was immediately informed to fire station.   The local people helped   to extinguish accidental fire by pouring water to save at least the truck from the loss.  Inspite of such efforts cotton lint bales worth Rs.8.50 Lakhs and the insured truck cost at Rs.8 Lakhs were burned to ashes.  The 32 cotton lint bale loaded in the truck had no transit insurance but the truck was insured with OP1/appellant herein.

5. The fire accident narrated above was immediately reported to Guttal Police Station and the police have reported a Cr.No.A/F-4/2014 and they were also drawn up a mahajar at the spot.  The complainant informed OP1 and after due inspection, OP1 assessed damages caused to the insured vehicle and was opined it was a total loss case.  OP1 insurer made investigation of the fire accident only after 02 months and on 27.05.2014 wrote a letter repudiating the claim by stating that vehicle was over loaded beyond the permissible weight in violation of Motor Vehicle Act.  It was informed to the complainant that complainant broke permit conditions and the insurer is not liable to settle his claim.  In such circumstances, complainant raised a consumer complaint U/s 12 of Consumer Protection Act, 1986 before the Forum below which was contested by the OP Nos.1 and 2. 

6. On the contrary OP1 admitted intimation of the accident and their surveyor Mr.Shekar was deputed to inspect the place of accident had submitted a report on 17.02.2014 and after that Mr.Anand Kalaghatagi conducted investigation, had submitted report on 18.03.2014 with all details and as per his report the insured vehicle was carrying excess height of cotton lint dokras and this was resulted in causing fire accident.  There is no deficiency in service on the part of insurer. OP2 denies its liability as there is no fault on its part and OP2 is nowhere concerned to the rendering deficiency in service and the complaint is liable to be dismissed.   .

7. In view of rival contentions of the respective parties to the complaint, Forum below held an enquiry by receiving materials from both parties, thereby allowed the complaint in part and directed OP1 to pay Rs.5 Lakhs to the complainant, Rs.5,000/- as compensation and Rs.3,000/- towards cost of litigation within 60 days failing which such amount shall carry interest @ 09% p.a. till realization and further held as there was also contributory negligence on the part of complainant and OP2.  The liability of paying compensation amount of Rs.5,000/- and Rs.2,000/- as cost of litigation is fixed on OP2 and with such direction OP2 to pay Rs.7,000/-.  It is this order being assailed in this appeal by OP1, contending that Forum below committed grave error of law and facts, in not noticing the fact that complainant had committed breach of fundamental terms of the policy by overloading the cotton lint bales against the permitted height and the driver of the lorry added peril while passing on a kaccha road wherein the live electrical wires were hanging at 15 ft. height from the ground level instead of going on the main road.  Complainant had broke the fundamental terms of policy in transporting excessive goods against the permitted height as provided in the MV Act, which has resulted in the loss of consignment as well as the insured vehicle.  The Forum below failed to observe that the loading area of the lorry is 931 CFT namely height is 7 ft., length is 19 ft. and width is 7 ft., wherein the consignment occupied is 3840 CFT because lint is of 6 ft. length about 4 ft. height and 5 ft. width. The excess height of the cotton lint dokars was 2909 CFT which was the main cause to get touched to the hanging live electrical wires.

8. Let us examine the impugned order, wherein could see though OP1 admits receipt of information of fire accident failed to depute a surveyor to inspect the spot immediately and the Forum below found one Mr.Shekar, Surveyor submitted report on 17.02.2014. The fire accident was occurred on 14.12.2014. And after the first report OP1 referred to one Mr.Anand Kalaghatagi to hold investigation regarding genuinely of the accident and submission of the report   submitted on 18.03.2014.  Thus Forum found 02 reports, one submitted by Mr.Shekar on 17.02.2014 and another   by Mr.Anand Kalaghatagi on 18.03.2014.  It is not in dispute that fire accident was occurred on 14.12.2014 within the jurisdiction of Guttal Police Station and case in Cr.No.A/F-4/2014 was registered.  The Forum below also found drawing of Mahajar at the spot by the said police, which in our view also play a vital importance and was also taken in to consideration by the forum below.  OP2 Assistant Executive Engineer, HESCOM, Haveri is made as one of the OP to seek relief under CPA, 1986 and the Forum below held OP2 HESCOM and complainant have also contributed their negligence and thereby directed OP2 HESCOM to pay Rs.7,000/- (Rs.5,000/- + Rs.2,000/-) which in our view is not correct.  In so far as deciding on the complaint for the alleged rendering deficiency in service on the part of OP1 could be said maintainable, since their relationship is that of insured and insurer by virtue of premium paid at Rs.19,142/- to obtain insurance policy in respect of the vehicle bearing KA-25-C-0638 for the period from 18.02.2013 to 17.02.2014. The enquiry establishes fire accident was occurred, while vehicle was transporting cotton lint bales on 14.12.2014, within the period of insurance coverage risk.  It is not that   electrical live wires on village road was at an expected height level expecting playing of such vehicles on such village road, since we have to take judicial notice of the fact that cotton crops normally grown in and around the Haveri district and it is quite natural for cotton crop growers to transport cotton lint bales in such trucks to the Jinning mills and APMC markets.  The enquiry revels that 32 cotton lint bales were loaded in KA-25-C-0638, in order to transport to Santosh Jinning Mill and before proceeding to Santosh Jinning Mill truck was weighed in a way bridge at Haveri and only after proceeded.  It is also come in the enquiry that while the vehicle was proceeding towards Jinning Mill driver observed villagers were celebrating local fair and due to rush of crowd gathered on the main road and as a result driver took the lorry to the right side of the road and at that point of time electrical spark spell on the cotton lint bales load resulted in fire peril.  If these facts are to be considered in our view his taking truck to right side of the road to move on village road could not be said not an act of a prudent   driver. In other words driver could not be held contributed his negligence in commission of the fire incident. The driver took the truck slightly towards right side to avoid the   crowd gathered on the main road which was expected from any prudent driver and in such circumstances he never anticipated spark spelling on the cotton lint bales. The incident was never anticipated and while in such process without his notice electric sparks spell on cotton bales resulted fire accident. In our view in such a situation even driver cannot stop the truck at the same place till mob or crowd would clear from the road to move further on the road. It has also come in the enquiry, after the incident, driver and   villagers made sincere efforts to save the truck by titling which went in vain.   Admittedly,   32 cotton lint bales were not insured but facts remain lorry was insured and its IDV was Rs.5 Lakhs. 

9. In view of the above facts in our view, it was also the duty of the OP2 HESCOM to maintain electric live wires at a safe height in order at the save live and stocks. The cotton bales are transporting only on a high way, since they are loaded from villages as such OP2 is duty bound to keep electric live wires at a safe height even on mud or village roads which was not at all examined by the forum below. Admittedly   cotton crop growers more located in and around Haveri district. The land in the said district is a black cotton soil which in fact could not be denied by Ops.  In our view though the Forum below rightly examined the complaint of the complainant but wrongly examined the defence case of the OP2 HESCOM. In so far as deciding on the negligence of OP2 HESCOM is beyond the scope of the consumer commission, since there is no relationship of consumer and the service provider between them.    In so far as the dispute between complainant and OP1 being a consumer and service provider dispute alone has to be examined before the Forum below and in our view commission cannot saddle the liability on the OP2 on the ground that it was also contributed. In other words it is still for the complainant and OP1 to seek relief against the alleged negligence on the part of OP2 HESCOM before proper authority for not laying live electric lines at the safe height.

10. Mr.Vijay Patil described the accident in his report marked as Ex.C9 “driver of the vehicle took the truck to right side and electrical wire touched and fire caught up”.  According to OP1 in the case of vehicle other than a Double Decker transport vehicle shall not exceed 3.8 meters.  Hence driver violated terms and conditions but that was not the case found from Panchanama driven by police concerned as there was a delay in inspecting the spot by the surveyor and the police Panchanama would play a vital importance. Admittedly insured vehicle was transporting the cotton lint bales on the date of alleged fire accident at the said place. According to insurer exceeding the permitted height of the vehicle cotton was transporting and such height alone resulted in fire accident and the surveyor in Ex.C7 has stated “incident was investigated by an independent investigator. Upon through investigation he had confirmed that the live electric wire was hanging about 15 ft. and the HESCOM orally confirmed that in the particular spot the wires were hanging above the permissible height only”.  In our view, this portion of the report cannot be acceptable as it is since it was only a oral confirmation and it is quite natural and it also the tendency of the person responsible to pass on the responsibility on others to avoid their liability or responsibility as the case may be.  We did not find any concrete or acceptable evidence to show   that the live electric wires were hanging   above 15 ft or below 15 ft. It is not that complainant had approached seeking compensation for the loss of 32 cotton lint bales transported in the insured vehicle but sought for compensation for the fire accident that was occurred on 14.02.2013 at 18:34hrs which was well within the period of insurance to the said truck.  Admittedly, IDV was Rs.5 Lakhs and the insured vehicle was burnt into ashes and  was a total loss.  According to complainant as on the date it was costing at Rs.8.50 Lakhs, since IDV was Rs.5 Lakhs, Forum below is justified in awarding Rs.5 Lakhs.  In fact the first surveyor in his report submitted complete vehicle parts are damaged and nothing is safe in the vehicle.  He found 32  cotton docars  are fully burnt. It is marked as Ex.R27. He has also reported due to KEB electrical wires short circuited resulting in fire accident and it was happened while the  driver suddenly took the insured vehicle towards Beerappa temple open ground, which in our view in the circumstances expected by any prudent driver, yet the cotton  bales and vehicle was burnt was rightly appreciated by the Forum below and the forum below in right in allowing the complaint in part on the ground burden of proving that insured had made false representation and suppressed material facts is undoubtedly on OP1 is not expelled to  discharge the same. In view of our discussion the impugned order in so far as directing OP1 to pay Rs.5 Lakhs along with compensation of Rs.5,000/- and Rs.3,000/- towards cost of litigation is concerned does not call for any interference, however for the reasons stated supra while in our discussions order requires modification and we hereby observed it is for OP1 to indemnify the complainant as ordered and if advised to recover award amount from OP2 by approaching proper forum.  Hence we proceed to allow the appeal in part and directed OP1/appellant to pay Rs.5 Lakhs to the complainant along with interest @ 06% p.a. from the date of repudiation till realization and to pay Rs.5,000/- as compensation and Rs.3,000/- towards litigation cost within 45 days.  The complaint against OP2 is held untenable before the Consumer Fora and the impugned order in so far as OP2 is concerned is set aside.
11. The Amount in deposit is directed to be transfer to the Commission below for needful.

12. Remit back the LCR to Commission below and send a copy of this Order to the District Commission and parties to the appeal.

  Lady Member                               Judicial Member             

*GGH*