State Consumer Disputes Redressal Commission
M/S. Shyam Transport vs The Manager, New India Assurance Co. ... on 5 June, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/17/2013 ( Date of Filing : 17 Jan 2013 ) 1. M/s. Shyam Transport 9, C.P.T.(Colony), Taratala, P.S. - Taratala, Kolkata - 700 088. ...........Complainant(s) Versus 1. The Manager, New India Assurance Co. Ltd. Claims Hub, Kolkata Regional Office, 4, Mangoe Lane, Kolkata - 700 001. 2. The Regional Manager, New India Assurance Co. Ltd. Kolkata Regional Office, 4, Mangoe Lane, Kolkata - 700 001. 3. The Chairman, New India Assurance Co. Ltd. Head Office at 87, M.G. Road, Fort, Mumbai - 400 001. 4. Indian Oil Corporation Ltd. G-9, Ali Yavar Jung Marg , Bandra (East) ,Mumbai-400051 ............Opp.Party(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Complainant: Mr. K.K. Ganguly Mr. S. K. Chowrasia Mr. Rajit Adhikary , Advocate For the Opp. Party: Mr. Ritobroto Banerjee. Mr. N. R. Mukherjee., Advocate Mr. Apurba Mondal, Advocate Dated : 05 Jun 2018 Final Order / Judgement Sri Shyamal Gupta, Member
This complaint is filed over repudiation of Complainant's insurance claim by the OPs.
In short, case of the Complainant is that on 15-11-2011, the insured tanker met an accident causing loss to the entire consignment of oil and lubricant worth Rs. 22,13,204/- (invoice value). Due intimation of such peril was given to the OPs immediately. Subsequently Carrier Legal Liability Claim Form was filled up and submitted by the Complainant. The Complainant severally and repeatedly followed up the matter of settlement of claim with the OP Nos. 1 and 2, but in vain. On the other hand, owing to non-refund of the price of oil lost in the wake of said accident, the Indian Oil Corporation (IOC) severed all business transactions with the Complainant. Therefore, the complaint is filed.
Counter case of the OPs is that the present complaint filed by Smt. Buchi Devi Yadav, acting on behalf of Shyam Transport is not maintainable in law because the policy was issued in the name of said firm. The service hirer being a proprietorship firm, namely, Shyam Transport and Smt. Buchi Devi being no way related to the said firm, the present case is not maintainable in its present form and prayer. Further case of the OPs is that, investigation into the matter revealed that there was no major accident suffered by the tanker. In is apprehended that the accident was stage managed and lubricant was stolen from the tanker. The Insurance Company, after due deliberation of the Surveyor report and other material on record, decided to repudiate the instant claim.
Points for consideration Whether the instant case is maintainable under the Consumer Protection Act, 1986?
Whether there is any deficiency in service on the part of the OPs?
Whether the Complainant is entitled to any relief?
Decision with reasons Point No. 1:
After the demise of Proprietor, the interest in the property of the firm automatically devolved on the legal heirs of the Proprietor. There is no legal bar for the legal heirs to continue business in the same name at their discretion.
Above all, in terms of Sec. 2(b) of the Consumer Protection Act, 1986, (b) "complainant" means--
(i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or (iii) the Central Government or any State Government, (iv) one or more consumers, where there are numerous consumers having the same interest; (v ) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;
Being the wife and legal heir of Shyaml Deo Yadav, since deceased, Smt. Buchi Devi Yadav committed no legal infirmity by filing this complaint case.
The OPs also questioned maintainability of this case on the ground that the Complainant company owns many tankers to promote its commercial interests and further that, element of self-employment is sorely missing here. Similar issue was raised by National Insurance Co. Ltd. before the Hon'ble National Commission and after deliberating the issue at sufficient length, the Hon'ble Commission held that since insurance policy was not taken for any commercial purpose or generating profit, but for indemnification of potential and unforeseen loss, the objection raised from the side of the Insurance company was not tenable. (Harsolia Motors v National Insurance Co. Ltd., I (2005) CPJ 26 (NC). Such observation of the Hon'ble Apex Consumer Commission makes complete hollow of objection of the OPs in this regard.
In view of this, the objection raised from the side of the OPs as regards maintainability of the case holds no water.
Point No. 2:
Appended below is the finding of Sri M.D. Shukla Surveyor deputed by the OP Insurance to cause spot inspection (Ref. his report dated 11-03-2012) " FINDINGS/OBSERVATION:
When the undersigned visited place of accident found the area surrounding the captioned truck socked with oil, on minute observation, it was felt that large quantity of oil has dropped/spread/soaked over the Ground.
After site inspection, the Insured's son was advised to lift the vehicle and take it to a weighment Bridge where the subject vehicle was weighed and gross weight of vehicle was found to be 9160 kgs. (weighment slip enclosed).
ASSESSMENT OF LOSS Vio of Lubricant Oil Loaded in Tanker 17919.132 Ltrs. Weight of Lubricant Oil Loaded in Tanker 17919.138 x 0.874301 = 15666.1729 Kgs. Wight of lorry after accident 9160 Kgs. Weight of Unladen weight 9270 Kgs. Hence, there total materials found drained out at side of accident. REMARKS: The weighment differ slightly became scale variation.
The Surrounding area of the site of accident was showing clear marks of spreading of the materials loaded in the Tanker.
Since, the vehicle remained at site in totally overturned condition for more than 24 hrs. and there no lifting arrangement nearby, Hence there was no chance of salvaging the materials.
....." (sic) It appears that another Surveyor was engaged by the OP Insurance Company to investigate the matter and accordingly, Sri Subrata Bose, Surveyor submitted his report dated 16-07-2012. Said Sri Bose raised several questions in respect of the findings of his predecessor, Sri Shukla. It appears from the record that the OP Insurance Company vide its letter dated 10-09-2012 sought for due clarification from Sri Shukla in respect of all the points mentioned in the final survey report by Sri Bose and in turn, Sri Shukla provided due clarification under cover of his letter dated 08-10-2012 which was duly received by the OP Insurance Company on 11-10-2012. However, Sri Bose discarded said clarifications vide his letter dated 17-11-2012.
In this regard, Ld. Advocate for the Complainant submitted as under.
The Ld. Advocate contended that, as per standing procedure of IOC while filling of tankers for transportation of oil/lubricants to their other Depots, all the inlets and outlets of such tankers are compulsorily locked and sealed and the keys of such locks are sent to the destination Depots for unlocking the outlets for unloading the lubricants/oil. Additionally, all the four manholes at the top of the tankers are also collectively tied with single iron rod which is also locked and sealed in addition to the independent lock and seal put on the individual manholes and thus, there remains no scope of siphoning the lubricant oil from the tanker without breaking open the said seals and locks.
The Ld. Advocate went ahead to argue that the photographs taken by the first surveyor, though taken for the purpose of showing the damages to the vehicle only and not on loss of lubricants, clearly shows mark of outflow/leakage of lubricant leaked out from the overturned tanker which is possible only if the inside caps beneath the manholes are damaged causing such leakage/outflow of lubricant.
The Ld. Advocate also stated that admittedly the vehicle was capsized 2 ft. below the road level and further that, there was a 2 ft. wide drain. The Ld. Advocate averred that, it may be rationally and reasonably presumed that immediately after the vehicle was capsized, lubricants started leaking gradually, among other points, from the manhole covers taking time for four days till the vehicle was lifted and lubricants being initially spread or did rest on the road surface went down to the 2 ft. wide drain existed just adjacent to the capsized vehicle. The spread of lubricants over the road surface covering certain area was admittedly recorded by the first Surveyor and the second Surveyor report on such point recorded after 8 months from the date of accident was based on imagination and speculation. As the said road undergone several repairing and renovation during the long span of 8 months from the date of accident, according to the Ld. Advocate, the soil at least up to a reasonable depth below the road surface ought to have been tested in order to unfold and testify the oil contents of the soil and such report should have been submitted before this Commission.
The Ld. Advocate pointed out that although the second Surveyor mentioned that he noticed very little damage to the tanker, he himself quoted the findings of Mr. Tapas Chakrabarti in his survey report, wherein it has been mentioned that, "overhead railing pipes have been broken and the chamber manhole covers and surrounding area have been dented and misshapen, which needs repairing...."
According to the Ld. Advocate, the very expression of the chamber manhole covers and surrounding areas which prima facie found to have suffered damages included damages of the round plate internally lying just beneath the manhole covers whereupon (1) the dipping pipe with cap, (2) filling pipe with cap, (3) emergency valve and (4) pressure vacuum valve were fixed and one of the manhole covers got absolutely damaged wherefrom profuse leakage occurred and the face of the caps thereon were broken and such profuse leakage could be detected on the external surface of the tank as it is evident from running page no. 21 of the Affidavit of Evidence of the OPs.
He further pointed out that the report of the second Surveyor was only related to the external observation on the chamber manhole covers. For some obscure reasons, he made no attempt whatsoever to discover the position of caps fixed on the plate just beneath the manhole cover. All such dipping and filling pipe caps being broken internally and the tanker being capsized there was no impediment to comfortable and profuse leakage of lubricants through such exits.
He asserted that, the existence of the 2 ft. wide drain along with the flank of the road ought to have been paid much significance through which gradual accumulation of lubricant kept on receding. The Ld. Advocate also drew the attention of the Bench to the fact that following such accident, one side tank plate was found so much cracked and damaged that a new plate had to be fixed and installed.
The Ld. Advocate of the Complainant also stoutly disputed the findings of the second Surveyor that the driver did not suffer any injury. In support of his contention, the Ld. Advocate drew our attention to the photocopy of a prescription dated 15-11-2011. The Ld. Advocate further clarified that since Sri Rajesh Yadav, the driver sustained injury, FIR could not be lodged forthwith.
Regarding detention of the subject tanker at a garage for a considerable period of time, it is clarified by the Ld. Advocate that Complainant's transport system is dependent on and contingent upon the schedule of allotment of consignment to the carriage contractor by the IOC Ltd. and the Complainant does not have any option to refute the same. The consignment of lubricant was allotted by the IOC to the Complainant on 30-10-2011 which was to be strictly adhered to and thereafter, the driver had to be released for a few days on account of Chhat Puja, who joined duty on 14-11-2011 and during such period, the mechanical condition of the tanker was reviewed, necessary greasing and change of mobil etc. done as required and journey commenced for Raipur on 14-11-2011. The Ld. Advocate rued the fact that, Complainant has been arbitrarily and despotically accused of theft of lubricant oil despite having no direct or indirect evidence or any technical observation to the effect that IOC seal was broken. The IOC Ltd. did put its seal on the tanker after filling it with lubricant oil and any theft of lubricant oil could not occur without breaking the said seal which has not been complaint of by adducing cogent documentary proof to that effect. The seal being not tampered with or broken, the Ld. Advocate claimed that it was sufficient proof of the fact that no theft of lubricant oil took place pertaining to the subject consignment and that the same leaked through the damaged manhole and overhead pipes.
The Ld. Advocate alleged that the OP Insurance Company, being unable to find out any lacunae against the Complainant, simply to hoodwink it from its legitimate claim, capriciously leaned upon distortion and disfiguration of fact as it would be evident from the reply given by the OPs to the question nos. 23, 24 and 25 of the questionnaire of the Complainant.
Ld. Advocate for the OP Insurance Company primarily pointed out the observation of the second Surveyor in order to establish that there was no arbitrariness in the decision making process.
On thoughtful consideration of the rival contentions of the parties and documents on record, it seems to us that gross injustice had been meted out towards the Complainant. Thus, relying upon the decision of Hon'ble National Commission reported in IV (2011) CPJ 378 (NC), we reject the report of the second Surveyor.
The first Surveyor in crystal clear terms admitted in his report that he found tell-tale sign of spreading of lubricant oil in the surrounding area where the subject tanker was capsized.
Notwithstanding the second Surveyor refused to buy the clarification given by the first Surveyor, in this regard, Ld. Advocate for the Complainant underlined the absence of soil testing report. Had the second Surveyor attached such a report along with the final survey report, we too feel, it would definitely give some sort of credibility to his report, which was otherwise prepared purely based on surmises and conjecture.
In between the intervening period when the second Surveyor prepared his report vis-à-vis date of peril, lot of water flown down the Ganges. It was virtually impossible for him to accurately note the finer aspects of the accident after so many months as during the said period, the particular pathway must have gone drastic changes. Therefore, if the second Surveyor had slighted doubt about the accuracy of the findings of the first Surveyor, he ought to arrange for carrying out soil testing at least up to a reasonable depth below the road in order to find out for sure if indeed the same contained spilt lubricant oil or not. Merely on the basis of sheer apprehension, it was indeed unfair on the part of the second Surveyor to flay the findings of another independent and competent Surveyor.
Ld. Advocate for the Complainant very resolutely addressed all the issues flagged by the second Surveyor in his report. Indeed his articulation was quite impressive to which we do not come across any equally thought-provoking rebuttal from the side of the OP Insurer.
We have also noticed that although the first Surveyor carried out joint inspection in presence of the representatives of the Complainant, this was not the case with the second Surveyor. It is always desirable that the working of an independent Surveyor should remain above board.
Naturally, for all practical purposes, the report of the first Surveyor outweighs that of the second Surveyor. The manner in which the second Survey Report has been prepared, does give credence to the apprehension of the Complainant that, it was done in a pre-determined mind to pave the way for repudiation of Complainant's claim. Such one-sided report deserves no favourable consideration; the same is rejected as such.
Such abrupt repudiation of Complainant's bona fide claim clearly points out gross deficiency in service on the part of the OP Insurance Company.
Point No. 3:
In the light of above findings, it appears to us that the Complainant definitely deserves due relief in the matter. Unquestionably, non-settlement of Complainant's bona fide claim dealt a severe body blow to the Complainant as taking strong exception to Complainant's inability to refund the loss amount, the IOC terminated all business contract with the Complainant company. We, therefore, hold the OPs liable to pay due compensation to the Complainant together with litigation cost.
The complaint, thus, succeeds.
Hence, O R D E R E D The case stands allowed on contest against the OP Insurance Company. OP Insurance Company is directed to pay Rs. 20,00,000/- to the Complainant within 40 days hence along with simple interest @ 10% p.a. over the aforesaid amount from the date of filing of this complaint, i.e., 17-01-2018 till full and final payment is made. That apart, OPs shall jointly/severally pay a sum of Rs. 10,000/- as litigation cost within the aforesaid stipulated period. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER