Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that complainant carries a business under name and style of banner Bhupinder Oil Carrier at 57/2, Diamond Harbour Road, Kolkata – 23 and for parking his vehicle including goods loaded, if any, complainant purchased one insurance policy bearing No.51020036111100000030 and sum assured is Rs.25 lakhs and he paid premium of Rs.10,600/- and that on 21-11-2011 complainant booked a Carriers Legal Liability Insurance from the OP for premium of one year commenced from 21-11-2011 at 12-00 a.m. to 20-11-2011 at 11.59 p.m. for a premium of Rs.10,600/- and the sum assured was Rs.25,00,000/- only regarding vehicle TATA/25ISTC.

          On 23-11-20112 at about 10-30 a.m. the insured vehicle i.e. the tanker of the complainant which was carrying the goods i.e. Diesel met with an accident near Gram Damua where the vehicle turned down and oil spilt everywhere blocking the road and finally the crane was called for shifting the tanker and make free the road from blockage and to that effect G.D was placed before the local Police Station.  After accident the complainant immediately forwarded the notice along with the claim form to the OP for disbursement of the claim what the complainant suffered due to the accident took place on 23-11-2011.

          On receipt of the claim the OP Company started playing ploy with complainant and at the very beginning they kept mum about the disbursement and on 23-07-2012 they sent a letter whereby asking from the complainant to submit the original FIR, original seizure list and release order and core banking account mention cheque but even after fulfillment of the required formalities done by the complainant OPs lastly on 11-03-2013 repudiated the valid claim of the complainant as ‘no claim’ on the ground of hyper technical ground and such denial of the OP regarding valid claim of the complainant proves gross deficiency on the part of the OP and due to such sudden accident damage of the vehicles was caused heavily and due to such damage of goods the IOC Ltd has deducted a sum of Rs.7,20,488/- as against the product value.

          Though the insurance policy covers the vehicle as well as the consignment initiated on 21-11-2011 such insurance policy as issued was a comprehensive insurance policy covering almost all possible accidental loss and damages and it is not disputed that accidental loss occurred on 23-11-2011 however it is the plea of the OP insurance company that the tanker was actually loaded on 08-11-2011 when there was no insurance policy and such plea is absolutely frivolous since the insurance company has consciously issued the policy for the loaded tanker on 21-11-2011 and the accident took place on 23-11-2011 and the loss and damages due to such accident is fully covered under such policy.  The plea of the insurance company is absolutely untenable since there is no fundamental breach of policy terms and condition and as per insurance claim it cannot be repudiated by the insurance company unless there is a fundamental breach of policy terms and condition by the insured. 

          The entire action as made by the OP is illegal, uncalled for and at the same time it is unfair trade practice and as because the OP Insurance Company did not give any relief for which complainant has appeared for proper redressal before this Forum.

          On the other hand, insurance company by filing written version has submitted as per provision of Section 13(2) the onus of proving the allegation made in the complaint principally lies on the shoulder of the complainant who makes such allegations and in the instant case the complainant has failed to establish that the complainant has sustained heavy loss and damage due to alleged deficiency in service and complainant must have to establish the contractual rights and obligations between the parties and to make out a case of deficiency in service against the OP.  No doubt complainant has challenged the repudiation of claim but there is no evidence whatsoever brought forward by the complainant in support and/or to justify their challenge.

          Fact remains the insured Bhupendra Oil Carrier was covered under a liability insurance policy for the period from  21-11-2011 to 20-11-2012 but insured was transporting oil for India Oil Corporation in tanker which allegedly met with an accident on 23-01-2011 resulting in loss and draining out of oil.  The IOC lodged a claim of Rs.7,20,488/- on the carrier insured for such loss/drainage of oil.  Accordingly the insurance company was intimated who inter alia appointed a government licensed surveyor Mr. Dilip Kumar Saha, who surveyed and submitted his final report, wherein it has been specifically pointed out by the said surveyor that the particular tanker in question was placed at the Indian Oil Corporation terminal on 08-11-2011 and was loaded on the same date, but it did not commence its journey then and the tanker thereafter was detained for 12 days till the policy was taken on 21-11-2011 and the journey also commenced simultaneously and, thereafter, the alleged accident occurred on 23-11-2011.   As per terms and condition of the Carriers Liabilities and Policies – “the cover will commence with the loading of cargo on the vehicle and will be in force until unloading of the cargo at the discharging point or expiry of 7 days after the first arrival of the vehicle at the destination town whichever may first occur” and that in the instant case when the cargo was loaded on the vehicle on 08-11-2011, there was no insurance coverage and hence, the particular cargo remained uninsured and hence, the alleged accident took place subsequently causing loss of the cargo.  The said loss cannot be covered under the particular insurance policy since no cargo was loaded after initiation of such policy but was loaded before initiation of such policy and as such the same remained uninsured.  In other words, only such cargo which is loaded after initiation of the insurance policy shall come within the sweep of the coverage.  So, this condition is applicable to both the parties equally and there is no question or repudiation on hyper technical ground but as per terms and condition complainant’s claim in respect of the damage of the goods is not tenable and admissible for which it was turned down and repudiated and there is no documentary materials that OP acted illegally or deficiency in service or negligence or adopted any unfair trade practice for which the entire claim should be dismissed.

Decision with Reasons

On careful consideration of the complaint and the written version and also the argument as advanced by the Ld. Lawyers of both the parties and further on overall evaluation of the agreement in between the parties in respect of the Carriers Legal Liability Policy it is clear that policy commenced on and from 21-11-2011 and accident took place on 23-11-2011.  But truth is that vehicle was loaded with diesel or mobil etc. on 08-11-2011 as per IOC invoice and Carrier detained the same for 12 days after loading on release of the same from IOC premises when the said tanker had no insurance policy including the loaded goods and on the very date that is on 21-11-2011 it was insured and insurance commenced on that when tanker was already loaded but that was not disclosed by the complainant at the time of insuring the same and truth is that from 08-11-2011 to 20-04-2011 the said tanker including the loaded article was not insured one.  Practically, proposal for insurance was submitted to the office of the OP to the complainant only on 21-11-2011 but as per the Carrier’s Legal Liability Clause “the cover will commence with the loading of cargo on the vehicle and will be in force until unloading of the cargo at the discharging point or expiry of 7 days after the first arrival of the vehicle at the destination town whichever may first occur”.  If the above Clause is applied with the present commencement date of the policy and loading of the goods on 08-11-2011 when there was no insurance of the goods of the vehicle we are convinced to hold that no doubt complainant at the time of submitting the proposal form for purchasing the policy on and from 21-11-2011 did not disclose that they already loaded the said vehicle with goods from IOC Depot on 08-11-2011 and there was no insurance policy at that time and at the same time complainant did not disclose that he detained the said vehicle along with goods/load for 12 days to his custody due to non-existence of any insurance policy.  Truth is that as per Carrier’s Legal Liability Clause on the date of loading of the goods if there was no insurance coverage of goods including the vehicle, on the date of commencement of the present policy on 21-11-2011 no loading of article was made by the complainant in the said vehicle.  But it was already loaded and kept for some other place of the complainant with any insurance policy and considering that fact apparently complainant violated the terms and condition of the policy.

          Another fact is that the insurance company appointed surveyor.  Surveyor after considering the entire facts and circumstances, materials as produced by the complainant came to a conclusion no doubt there was shortage of 9034 litres or 9.04 KL. and for which loss assessor assessed loss of Rs.5,32,475/- but surveyor came to the conclusion that insurance cover will commenced with the date of loading of cargo on the vehicle and will be enforced until unloading of the cargo at the discharging of the goods or expiry of 7 days after the first arrival of the vehicle at the destination town whichever may first occur.  So, applying the provision of exclusion clause considering the policy condition surveyor came to a conclusion that complainant did not comply the terms and condition of the policy and admitted that loading of the goods was not on 21-11-2011 but it was on 08-11-2011 when there was no coverage.  So, the cardinal condition of the coverage from the date of loading was not covered with causing the claim violating outside the scope of the policy of the insurance and accordingly, that claim was turned down.

          In this context, Ld. Lawyer for the complainant submitted that Hon’ble Apex Court already directed to settle the claim on non-standard basis if condition is violated by the insured and in support of that ruling reported in II(2009) CPJ 9 SC was referred and also referred one ruling reported in II(2006) CPJ 144 NC those judgments reveal that at the time of accident driver violated the terms and condition of the policy so the claim was settled as non-standard basis complainant also relied upon the ruling II(2006) CPJ 83 NC in which vehicle met with an accident for carrying unauthorized person when National Commission settled the claim on non-standard basis.

          Considering the above rulings and spirit of the ruling including the present facts and circumstances, it is found that it is the verdict of the Apex Court and the National Commission the claim of any insured must not be refused even if such condition is violated but the claim shall be settled on non-standard basis and considering that spirit of law and the present facts and circumstances, it is clear that no doubt complainant violated the terms and condition of the policy and fact remains violation is very vital because the cargo was loaded on 08-11-2011 when the vehicle including the goods were not insured and it was detained for 12 days without any insurance and fact remains it was insured on 21-11-2011 but at the time of filling the proposal form of insurance policy complainant did not disclose the fact it is no doubt another violation on the part of the complainant.  In the above circumstances, we find that two violations have been committed by the complainant and so as per ruling in II (2013) CPJ 48 NC it is clear that complainant no doubt suppressed the fact and no doubt complainant violated one terms and condition but truth is that in respect of the vehicle OP has released the compensation for damages in respect of the vehicle and cost of repairing.  But fact remains the vehicle was insured on 21-11-2011 when that vehicle was loaded with mobil or diesel and when in respect of the vehicle amount had been released by the insurance company in that case some amount ought to have been released in support of the goods.          When the accident took place on 23-11-2011 the vehicle was insured then invariably the goods which were in the container of the vehicle so it must be treated as insured and it is settled principle of law that insured vehicle which contains any article shall be treated as insured as per policy condition but truth is that complainant at the time of loading goods in the vehicle was not insured then principle is that if any goods is loaded with a vehicle when the vehicle was not insured it is subsequently insured suppressing that fact in that case only the vehicle shall be covered by the insurance policy not the goods and that is the principle of Carrier’s Legal Liability Policy.  So, apparently, we have gathered that complainant has no doubt suppressed the truth that he loaded the article on 08-11-2011 when the vehicle was not insured at the time of insuring it on 21-11-2011 and for each violation i.e. for two violation 25% of amount on account of each violation of terms of policy shall be deducted which would be appropriate and to settle the matter on non-standard basis we have also relied upon those judgment and in this case no doubt complainant has claimed Rs.7,20,488/- but loss is assessed by the surveyor to the extent of Rs.5,32,475/- for loss of H-150 lobs due to shortage of 9034 litres of lobs.  So, considering that fact we relied upon the assessment of the surveyor who, assessed loss to the extent of Rs.5,32,475/- out of which 50% shall be deducted i.e. Rs.2,66,237-50 for violation of the two terms, one non-disclosure of the loading of the vehicle on 08-11-2011 when it was not insured and also for  not mentioning the same at the time of purchasing the new policy and further even after loading it was not reported wherefrom cargo was loaded on which date and accordingly, the whole claim of the complainant is settled on non standard basis relying upon the above ruling and for which the complainant is entitled to Rs.2,66,237/- as final compensation on settlement of the same by this Forum on non-standard basis after deducting 50% of the assessed loss by the surveyor for violation of the terms and condition of the policy and non-disclosure of the position of the vehicle and the loaded goods. 

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest without any cost against the OP.

          OP is hereby directed to pay a sum of Rs.2,66,237/- (Rupees Two lakhs sixty six thousand two hundred thirty seven only) as final settlement of claim on non-standard basis as settled by this Forum to the complainant within one month from the date of this order failing which for non-compliance of the same Rs.200/- per shall be assessed as penal interest which shall be paid to this Forum till full satisfactions of the decree.

          OP is directed to comply the order very strictly within one month from the date of the order failing which penal action shall be started against them for which further penalty and fine may be imposed upon them.