Haryana

Fatehabad

CC/385/2019

M/S Bola Petro City - Complainant(s)

Versus

United India Insurance Company - Opp.Party(s)

P.K Jindal

19 Apr 2024

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FATEHABAD.

 

                                                                                Complaint No. 385 of 2019

                                                                                Date of instt:  09.09.2019.

                                                                                Date of decision: 19.04.2024

                                                             

M/s Bola Petro City through its Partner Smt.Amanpreet Kaur widow of Late Yadvinder Singh r/o village Chinmon, Tehsil Ratia District Fatehabad.

                                                            ...Complainant.

Versus

1.Gurpreet Singh son of Karamjeet Singh r/o Ward No.3 near Purana Durga Mandir Ratia, Tehsil Ratia, District Fatehabad.

2.United India Insurance Company Limited having its registered and Head Office 24, Whites Road, Chennia-600014.

3.United India Insurance Company Limited, Micro Office at Shahid Bhagat Singh Chowk, Ratia, Tehsil Ratia District Fatehabad.

 

                                                                                    …Opposite parties.

Complaint under section 12 of

 

BEFORE:    Sh.Rajbir Singh,President.           

                  Smt.Harisha Mehta,Member                                                                                                               Dr.K.S.Nirania, Member

 

Present: -         Sh. P.K.Jindal, Adv. for complainant.

                        Sh. Sachin Goyal, Advocate for Op No.1(defence struck                   off VOD 19.04.2022).                                                                                     Sh.Kaushal Mehta, Advocate for Ops No.2 & 3.

 

 

ORDER

Sh.Rajbir Singh, President

 

                        The facts of the present case are that the OP No.1 is running petrol pump in the name and style M/s Bola Petro City Ratia and being an outlet of Bharat Petroleum Corporation Op No.1 was operating the same as sole proprietor having TIN No.06591404918, CST No.06591404918 issued on 09.01.2006 having personal PAN No.AZVPS7779L issued on 15.02.2006;  that Op No.1 is a contractor of BPCL for transporting the oil having vendor Code No.217725 and running separate business; that Op No.1 is also owner of oil tanker bearing registration No.HR62-2935; that Op No.1 is having two insurance policies bearing No.1119823118P104055809 for the period 03.07.2018 to 02.07.2019 (motor package policy) and 1119822718P104055421 (for carrying of petroleum products from the pumps of PBCL); that on 24.02.2018 the nomenclature of the aforesaid firm was changed from proprietorship to partnership firm by joining partner (complainant) by executing a DPSL agreement dated 24.02.2018 with BPCL; that the said firm turned into registered partnership firm with registration No.06-010-2018-00018 dated 07.03.2018 w.e.f. 24.02.2018 having its partner Amanpreet Kaur and Gurpreet Singh with GSTIN No.06AATFB1801F1ZR w.e.f 24.02.2018 besides having tin No.06591404918; that new PAN No.AATFB1801F dated 24.02.2018 was also taken by the complainant firm with vendor Code No.148275; that the said tanker was on the way with 10KL petrol and diesel on 10.09.2018 as per invoice No.1141521340 from Panipat Depot of BPCL to Bola Petrol City Ratia but it met with an accident; that in the accident entire oil got burnt and regarding this intimation was given to the local police and DDR No.30 dated 14.09.2018 was also entered with police station Uklana, Hisar through the driver of the tanker; that due intimation was given to the Op No.2 which paid the total claim of the vehicle of the Op No.1; that the complainant requested the Op No.1 to make the payment of loss of oil but it assured that the same would be cleared as he has also purchased another policy for the oil also but the Op no.2 declined the claim as per the report of CA/surveyor that on the invoice No.1141521340 dated 10.09.2018 PAN of the Op No.1 has been mentioned and he cannot claim for either any loss or loss of his own oil; that on enquiry it came to the notice of Op No.1 and the complainant that the BPCL had not changed the old PAN number of proprietorship firm in their software despite execution of new DPSL agreement; that on knowing clerical mistake a letter dated 24.06.2019 was issued to BPCL Hisar territory to the effect vide dispensing pump and selling license agreement dated 24.02.2018 with intimation qua re-constituting of partnership firm as well as working being dealership as partnership firm from 24.02.2018; that after correcting the mistake qua PAN No.AZVPS7779L by BPCL in all the invoices PAN number of the proprietorship firm had been changed and all the relevant documents were supplied to the Ops No.2 & 3, which were issued by Registrar of Firm and Societies, Fatehabad with new Tin Number in the name of complainant on 24.02.2018, but the Ops Nos. 2 & 3 did not consider the clarification given by Op No.1; that on the same invoice the vendor code was 148275 of purchaser firm and the vendor code No.217725 was mentioned as transporter code but the surveyor of the insurance company ignored this fact knowingly and deliberately despite the fact that the complainant firm is a separate entity having no relation with Op No.1/owner of the oil tanker as the relation of Op No.1 and complainant firm cannot be treated that of any servant, agent and subcontractor; that the surveyor of the insurance company treated the complainant firm as proprietorship concern instead of partnership firm by taking the resort of old documents and further the Ops No.2 & 3 wrongly and illegally repudiated the claim of  burnt oil on this count; that the claim No.1119822718C050001001 lodged before Op no.2 company for loss of oil in tanker was repudiated vide letter/memo No.1 dated 01.04.2019 intimated to the complainant on 07.05.2019 on the ground which is reproduced as under:

                        The claim lodged by you for the loss of 20,000 liter oil occurred on 10.09.2018 is not payable by company you proprietor of the firm cannot be given & taker for your own claim i.e. damage to own consignment falls under exclusion clause of the policy. Further there was no special contract with you to pay such loss to you. When you felt your non entitlement of claim of value of diesel and petrol being carried in your own tanker, you in a fraudulent move try to reflect prove the consignment (Petrol and diesel) of partnership firm M/s Bhola Petro City in order to supersede the exclusion clause, thus you has committed not only violation of term and conditions of the policy, rather breached the principal of utmost good faith, is backbone of contracture of insurance in between the parties. i.e. you and insurance company.

                        Unladen weight of registered vehicle was 8200 kg whereas if laden weight of 20000 ltr. Of petrol and diesel is added, then vehicle was having laden weight more than the permitted weight of 25000 kg, which is gross, deliberate and fundamental violation of Motor Vehicle Ac. Central Motor Vehicle Rules, violation of permit to carry petroleum product, term and condition of insurance policy.

                        Further you have concealed true and material fact willfully, deliberately and malafidely from the insurance company and did not get the license to carry petroleum in the name of firm. Insurance policy and permit were also in your name on 24.02.2018 were also not got transferred by you in the name of partnership firm. More particular when the partnership firm allegedly came into existence on 24.02.2018 by joining Amanpreet Kaur as second partner as in the said firm at Sr. no.14 all assets and liability of proprietorship firm were taken over by partnership firm. Assets of proprietorship firm means assets & liability of proprietor, as proprietorship firm does not have any legal entity.

                        Further if the consignment is considered to be that of firm, in that eventuality, clause 15 of the partnership deed reflect and prove the consignment to be also your own property. Consignment being partner of the firm, if clause 14 is considered. This material information  has been concealed and an attempt has been made by the firm as well as by you to get the loss paid to the firm, in which your partner, having common interest with the firm, thus without getting the endorsement recorded in the policy and by entering into with special contract of coverage of own consignment from the company by taking special coverage for the consignment, you both (Gurpreet Singh & Firm Bola Petro City) are not entitled for the loss. As both of you have common interest with each other in the consignment, hence loaded by you & M/s Bhola Petro city is hereby rejected.

 

That the complainant clarified the grounds of repudiation to the Ops No.2 & 2 vide letter dated 10.05.2019 qua the different entities as well as carrying capacity of vehicle in question and even the Op No.3 also brought the fact qua correction of IDV in the policy for treating the capacity as 20 KL instead of 10 KL in the knowledge of Op No.2 and further sent an email for necessary correction; that the accident was occurred on 10.09.2018, the report of surveyor was submitted with No.2 on 26.12.2018  but the claim was declined on 01.04.2019  and intimation to the complainant was given on 07.05.2019 despite the fact that the claim was to be decided within one month from the date  of receiving the report of surveyor; that the complainant requested the Ops No.2 & 3/insurance company to make the loss good besides compensation on account of mental agony, harassment and litigation charges but to no avail. The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice on their part. In evidence, the complainant has tendered affidavit Ex.CW1/A with documents Annexure C1 to Annexure C39.

2.                     On notice, Ops appeared but only Ops No.2 & 3 filed their joint reply whereas right to filing the WS of the Op No.1 was struck off by this Commission vide order dated 19.04.2022. Ops No.2 & 3 in their joint reply have taken preliminary objections such as cause of action, concealment of material facts, maintainability, estoppal, locus standi and jurisdiction etc. It has been further submitted that the loss of 20000 liter is not payable because there was no special contract   with the complainant to pay such loss; that the Op No.1 was carrying on own patrol and diesel in his own tanker and the complainant and Op No.1 in a fraudulent are trying to show that it was of partnership firm i.e. of complainant in order to supersede the exclusion clause; that the unladen weight of the vehicle was 8200 kg and if the laden weight of 20000 liter of petrol and diesel is added it cross the permitted weight of 25000 kgs which is violation of Rules of Motor Vehicle Act, Central Motor Vehicles Rules besides terms and conditions of insurance policy;  that the insurance policy and permit were issued in the name of Op No.1 on 24.02.2018; that if the consignment is considered to be that of firm, in that eventuality, clause 15 of the partnership deed reflects and prove the consignment to be also the complainant’s own property, consignment being partner of the firm, if clause 14 is considered; that the Op No.1 and the complainant are having common interest with each other in the consignment, therefore,  the claim was rightly repudiated  keeping in view the terms and conditions of the policy; that after receiving the intimation regarding the accident and damage of vehicle, surveyor was appointed who visited the spot and submitted his report on actual and factual position; that as per verification and report of surveyor of the company, the TIN No.06591404918 and PAN No.AZVPS7779L mentioned on invoice No.1141521340 dated 10.09.2018 and on visit of concerned website, it was noticed that the above said PAN No.AZVPS7779L was allotted to Gurpreet Singh and above said TIN No.06591404918 was allotted to M/s Bolo Petro City under the proprietorship of Gurpreet Singh which proves that the burnt diesel/petrol was pertaining to M/s Bhola Petro City under the proprietorship of Gurpreet Singh and the Tanker bearing registration No.HR62-2935in which burnt/diesel was loaded, was also registered in the name of Gurpreet Singh and as per exclusion clause No.2 the company shall not be liable in any circumstances qua the liability in respect of damage to property belonging to insured or to any servant, agent, sub contractor of the insured; that the carrying capacity was 10 tons whereas the loaded consignment in the vehicle was 20 KL which is clear cut violation of terms and conditions of the policy, therefore, the claim was rightly repudiated by the replying Ops. There is no deficiency in service and unfair trade practice on the part of replying Ops. Other contentions have been controverted and prayer for the dismissal of the complaint has been made. In evidence, the Ops No.2 & 3 have tendered affidavit Ex.RW1/A with documents Annexure R1 to Annexure R11.

3.                                 We have heard learned counsel for the parties and gone through the material available on the case file.

4.                                 Needless to say that the Ops No.2 & 3 had issued two policies to Op No.1, which are placed on the case file as Annexure R1 (package policy for vehicle) and Annexure R2 (carriers legal liability policy). Undisputedly, the insured/vehicle in question, when it was loaded with petroleum substances (Petrol/diesel), met with an accident, during the subsistence of the policy period and the claim on account of damaged vehicle has already been released in favour of the Op No.1 by the Ops No.2 & 3. The fact qua burning of 20000 KG petrol/diesel (10000+10000) having value of Rs.1505147/- is mentioned in claim form (Annexure C5) and this amount finds support from the invoice Annexure C6.

5.                                 The Ops No.2 and 3 have rejected the claim of the complainant on two grounds which are as under:

1.That the complainant firm was a proprietor firm of Op No.1 at the time of accident of the insured vehicle which was carrying petroleum substance (diesel/petrol)in it and not the partnership firm in the name of Amanpreet Kaur and Op No.1.

2.That the carrying capacity was 10 tons whereas the loaded consignment in the vehicle was 20 KL which is clear cut violation of terms and conditions of the policy.

 

6.                                 It is not disputed that the Op No.1 had purchased two policies after making huge premium for the same and both the policies were purchased keeping in view the protection from any untoward loss/accident but unfortunately the loss/accident occurred/happened in this case during the subsistence of the policies. The Ops No.2 & 3 on one hand has made the payment of package policy (Annexure R1) for the damage of the vehicle and on the other hand repudiated the second policy claim on the ground that the insured had committed violation of the terms and conditions of the policy and keeping in view the exclusion clauses No.2,14 and 15. It is strange that two claims were lodged for same accident and one was cleared and other was rejected owing to violation of the policy conditions. This act and conduct of the Ops No.2 & 2/insurance company looks double standard. It is matter of common knowledge that if there is violation of rules and regulations then the same formula would have been applied for deciding/considering two different claims but for us both claims are interlinked. If for the sake of arguments we treat the oil tanker of the property of Op No.1 even then such property cannot be presumed to be the property of partnership firm. On this point reliance can be taken from the case law relied upon by learned counsel of the complainant titled as Arjun Kanoji Tankar Vs. Santaram Kanoji Tankar 1969 (3) SCC 555 wherein Hon’ble Apex Court has held that Partnership Act, 1932, Section 14 Partnership Agreement-No mention of the personal property in dispute in the agreement-Such proper cannot be presumed to be the proper of partnership. There is no presumption as to property of partnership. Hon’ble Apex Court in this very judgment has also observed that Property belonging to a person, in the absence of an agreement to the contrary, does not, on the person entering into a partnership with others, become the property of the partnership merely because it is used for the business of the partnership. It will become the property of the partnership only if there is an agreement express or impliedth-at the property was, under the agreement of partnership to be treated as the property of the partnership.  In the present case it was for the Ops Nos. 2 & 3 to prove the fact that the tanker in question was used in proprietary capacity and not in the carrying of petroleum substances for partnership firm i.e. complainant but the insurance company has failed to release this burden. So far as to exclusion clauses or the terms and conditions of the policy are concerned it is relevant to mention here that it is matter of common experience, insurance companies often repudiate claims on grounds of non-disclosure of material information by the consumer. However they conveniently forget that there is an even greater statutory obligation cast on them to give full information to the consumer about the products they sell. The responsibilities of the insurer towards full disclosure is even more because (a) the Insurance Regulatory and Development Authority’s (IRDA) Regulation on the protection of Policyholders’ Interests’ specifically mandates this and (b) the contracts of insurance, which are ‘Adhesion Contracts’ or ‘Standard Form Contracts’ are drawn up unilaterally by the dominant party-the insurer. The consumer, being the weaker party has no bargaining power, nor knowledge of the terms of the contract. So, the apex court has often said that these contracts, therefore, demand a very high degree of fairness, good faith and disclosure on the part of the insurer. Here are two cases where the Hon’ble Supreme Court has reminded insurers of their obligation in this regard and warned them against violations. The two cases also show-case the kind of unfair practices indulged in by insurers. In Texco Marketing Pvt. Ltd. Vs TATA AIG General Insurance (CA No. 8249 of 2022, date of judgment: November, 9, 2022), for example the insurance company insured after due inspection, a shop located in a basement under the Standard Fire and Special Perils Policy, despite the fact that the policy specifically excluded basements. Subsequently, following a fire, when the policyholder made a claim, the insurer repudiated it on the basis of the exclusion clause. While ruling in favour of the consumer, the apex court observed that first and foremost, the insurer did not bring the exclusion clause to the notice of the consumer. And then, despite having knowledge of the exclusion clause, it insured the basement and received the premium benefits. After this, repudiating the policyholder’s claim on the basis of the exclusion clause was certainly an unfair trade practice. “This view is fortified by the finding that the exclusion clause is an unfair term, going against the very object of the contract, making it otherwise un-executable from its inception,” the apex court said. Some of the observations of the court in this case would go a long way in upholding the rights of the policyholders. For example, the court made it clear that an exclusion clause, if not brought to the notice of the consumer by the insurer or agent, would not be binding on the consumer. Similarly, an unfair term in an insurance contact would be un-executable. The Supreme Court also reminded insurers that an exclusion clause “is not a leverage or safeguard for the insurer, but is meant to be pressed into service on a contingency, being a contract of speculation”. Hon’ble State Commission while deciding the FA No.282 of 2019 on 01.05.2023 in case titled as M/s Star Health and Allied Insurance Company Vs. Dr. Jyoti etc.  has held that   before we part with this case, we would like to extend a word of caution to all the insurance companies on the mandatory compliance of Clause (3) and (4) of IRDA Regulation, 2022. Any non-compliance on the part of the insurance companies would take away their right to plead repudiation of contract by placing reliance upon any of the terms and conditions included there-under.   In the case in hand the Ops No.2 & 3 in their reply in para No. 3 of preliminary objections have admitted that on visit of the concerned website, it was noticed that the above said PAN No.AZVPS7779L  was allotted to Op No.1 but it is worthwhile to mention here that the Ops No.2 & 3 are trying to take the benefit of the document/work which was beyond the control of complainant and Op No.1 because the government machinery does not work on the asking of any person rather all the institutions work as per the guidelines and rules framed for them. There are chances that the concerned department may not have updated the PAN Number which was of the Op No.1 but it does not mean that the petroleum substance which was being carried in the tanker of the Op No.1 was not of complainant firm. Rather the BPCL, which is a government institution, vide Annexure C7 slashed the version of the Ops No.2 & 3 in the certificate mentioning therein that This is to confirm that M/s Bola Petro City- A Bharat Petroleum Corporation Limited Retail Outlet was a proprietorship firm with the DPSL signatory as Sh.Gurpreet Singh s/o Sh.Karamjeet Singh. However, vide dispensing Pump & selling license agreement dated 24.02.2018, the subject dealership was reconstituted into a partnership firm with the following signatories;

                                1.Sh.Gurpreet Singh s/o Sh.Karamjeet Singh

                                2.Smt.Amanpreet Kaur widow of Late Yadwinder Singh

Subsequent to the dispensing Pump and selling license agreement dated 24.02.2018, all the supplies have been done to the dealership as partnership firm.  Therefore, the ground No.1 taken by the Ops No.2 & 3 is hereby rejected  because at the time of accident the petroleum substances were being carried for a partnership firm and not for proprietor firm. 

7.                                 Now, we deal with the ground No.2. Undisputedly, surveyor was appointed by the Ops who visited the spot and submitted the report (Annexure R3) with the OPs No.2 & 3 wherein it has been mentioned that the unladen weight of the vehicle was 8200 KG and GV weight was 25000 KG which clearly shows that at the time of accident the vehicle in question was overweight being carried 20000 KG petroleum substance (10000+10000). Perusal of the case file reveals that the insurance cover (Annexure R2) was issued for carrying capacity of 10 tons. Though the complainant has moved an application (Annexure C38) for correction of carrying capacity as 20 KL instead of 10 KL but there is nothing on the case file to show that he had ever paid the premium as per the carrying capacity of 20 KL and even this application was moved on 04.03.2019 duly received on 05.03.2019 but it does not contain any stamp and seal of the Ops Nos.2 & 3/insurance company. Therefore, the prayer for making the claim amount of Rs.1505147/- as per invoice Annexure C5 is hereby rejected. Since the complainant has paid the premium for the carrying capacity of 10 tons, therefore, the end of justice would meet if we direct the Ops No.2 & 3 to make the payment of 10 tons. The surveyor in his report Annexure R3 has held that the next loss under the said policy is Rs.1225936/- keeping in view the 20 KL petroleum substances after deducting and applying all the clauses, therefore, after diving this amount of Rs.1225936/- into two parts the amount of Rs.612968/- comes for 10 KL petroleum substance for which the complainant is actually entitled. 

8.                                             In view of the above discussion, the present complaint deserves to be partly allowed against OP Nos. 2 & 3 only and the same is accordingly partly allowed. Ops & 3 are directed to pay a sum of Rs.612968/- to the complainant only and the complainant is not found entitled for any compensation and cost on account any count. The complaint against Op No.1 stands dismissed.   The order be complied within a period of 45 days, failing which, the awarded amount would carry interest @ 9 % per annum from the date of filing of the compliant till actual realization.      

9.                             In default of compliance of this order, proceedings against respondents shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the record room after due compliance.     

Announced in open Commission.                                                                                                     Dated: 19.04.2024                            

                               

                                                                                                               

                      (K.S.Nirania)               (Harisha Mehta)                (Rajbir Singh)                                       Member                             Member                                                              President