State Consumer Disputes Redressal Commission
The United India Insurance Company ... vs Ch.Kesava Rao,Kodada , Nalgonda ... on 25 June, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD F.A.No.21/2012 against C.C.No.266/2010, Dist.Forum-II, Vijayawada , Krishna Dist. Between: The United India Insurance Company Ltd., Rep. by its Manager, Sitaramapuram, Jaggaiahpet, Krishna District. Appellant/ Opp.party And Ch.Kesava Rao, S/o. Ramaiah, Proprietor, M/s.Divya Oil Products, Kodada , Nalgonda District. Respondent/ Complainant Counsel for the Appellant : Mr.E.Venugopal Reddy Counsel for the respondent : Notice returned and held sufficient. QUORUM: SMT. M.SHREESHA, HONBLE INCHARGE PRESIDENT, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
TUESDAY, THE TWENTY FIFTH DAY OF JUNE, TWO THOUSAND THIRTEEN .
Oral Order: (Per Sri S.Bhujanga Rao, Honble Member *** The appeal is directed against the order dt.13.7.2011 of the District Consumer Forum-II, Vijayawada, Krishna Dist. made in C.C.No.266/2010 which is filed by the respondent/complainant claiming a sum of Rs.6 lakhs towards the damage caused to the property, under Package Policy.
The brief case of the respondent/complainant as per the complaint is that he owns an oil transport truck of Ashok Leyland make bearing no.AP09 U 2628 and the said truck was insured with the opposite party vide policy no.150704/31/05/01/00001245 for the period from 31.1.2006 to 30.1.2007 and the policy was known as Package Policy. While so, on 16.8.2006, the said oil tanker, while carrying the oil products from Kakinada to Kodad met with an accident at PB Devam village, Samarlakota Mandal, East Godavari Dist. at about 00.30 hours, because of it, oil worth about Rs. 6 lakhs fell on the road. Immediately, the same was reported to the SHO., Samarlakota P.S., who registered the same as a crime. The complainant has also intimated to the opposite party about the accident by submitting relevant documents, but the opposite party failed to settle the claim and pay the damages. Even for legal notice dt.02.11.2010, got issued by the complainant, there was no response from the opposite party. Hence the complaint.
The opposite party filed written version admitting the issuance of the policy in favour of the complainant. The opposite party, while denying the material allegations, contended that soonafter receiving information from the complainant about the accident, the opp.party deputed one Ramakrishna Rao surveyor/loss assessor, who inspected the accident spot on 17.8.2006 and submitted his report to the opposite party, assessing the loss at Rs.4,97,539/-. Basing on the surveyors report, the opposite party repudiated the claim of the complainant on 3.10.2007 and intimated the same to the complainant.
The opposite party further contended that the consignee and carrier are one and the same. In view of Sec.148 of Indian Contract Act, bailment is the entrustment of goods by one person to another for a specific purpose, between two persons, whereas in the present case, both persons are one and the same, hence there cannot be bailment. So also under Sec.25 of the Indian Contract Act, Clause 2 (a) of Exclusions, the company shall not be liable to pay damages to the property. As such, the repudiation of the claim is totally correct and that there was no deficiency in service on the part of the opposite party. The complainant is not entitled for any claim, much less, with interest. Hence, the complaint is liable to be dismissed with costs.
During the course of enquiry, before the District Forum, the complainant himself filed evidence affidavit and got marked Exs.A1 to A5. On behalf of the opp.party, one Sri G.Syam Babu, the Administrative Officer of the opposite party filed his evidence affidavit and got marked Exs.B1 to B15.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum allowed the complaint, in part, directing the opposite party to pay an amount of Rs.4,97,539/- to the complainant with interest at 9% p.a. from the date of filing of the complaint till the date of payment. The opposite party is also directed to pay Rs.2000/- to the complainant towards costs.
Aggrieved by the said order, the opposite party preferred the above appeal, questioning the validity and legality of the order.
We heard the counsel for both the parties and perused the material placed on record.
Now the point for consideration is whether the order of the District Forum is vitiated for misappreciation of fact or law?
It is an admitted fact that the complainant is the owner of the oil transporting truck bearing no.AP 09 U 2628 and he insured the same with the opposite party vide policy no.150704/31/05/01/00001245 a Package Policy for the period from 31.1.2006 to 30.1.2007 . It is also not in dispute that the accident occurred on 16.8.2006 while the tanker was carrying oil products, from Kakinada to Kodada and that there was loss of oil .
The only contention raised by the learned counsel for the appellant/opp.party in this appeal is that the complainant is no other than the consignee. As per Clause 2 of Exclusions of the policy, the opposite party company shall not be liable in respect of damage to property belonging to the insured or anyone connected with him, unless such property is covered by a contract of carriage entered into by the insured in an approved form. Ex.A1 policy indemnifies the insured against his legal liability, but not the insured. Therefore, the terms and conditions of the policy, clearly excludes the liability of the insured. The District Forum without considering the above facts, erroneously awarded a sum of Rs.4,97,539/- with interest and costs without any basis. The impugned order is therefore liable to be dismissed and consequently the complaint is liable to be dismissed.
There is considerable force in the submission of the learned counsel for the appellant. Ex.B1 is the Carriers Legal Liability Policy issued by the opposite party in the name of the complainant. Under Ex.B1 policy, the opposite party insurance company agreed to indemnify the insured against his legal liability for actual physical loss or damage to goods or merchandise directly caused by fire and/or accident to the vehicle registered under no. AP 09 U 2628 whilst such goods or merchandise are actually transported in the said vehicle provided that the fire or accident has arisen on account of negligence or criminal act of his servants. In this case, it is not the case of the complainant, that the accident has arisen on account of negligence or criminal act of the servants of the complainant.
As per Exclusions 2(a) of the policy , the Company, shall not, in any circumstances, be liable, under this policy in respect of liability, in respect of damage to property belonging to the insured or to any servant, agent, sub-contractor of the insured or to third parties, unless, such property is covered by a contract of carriage entered into by the insured in an approved form.
In view of the above terms and conditions of the policy, the company shall not in any circumstance be liable under the policy in respect of liability under any contract or agreement, unless such liability would have arisen and the insured would have being liable to law notwithstanding such an agreement. The liability in respect of damage to property belonging to the insured or to any servant, agent, sub-contractor of the insured or to third parties, unless such property is covered by a contract entered into by the insured in an approved form.
From the above, it is clear that Ex.B1(A1) indemnifies the insured against his legal liability, but not the insured. Therefore, in our considered view under Ex.B1(A1), the appellant/opp.party company is not liable to indemnify the loss caused to the complainant on account of the accident. The District Forum has not considered the above terms and conditions of the policy. We do not find any deficiency in service on the part of the opposite party. The impugned order of the District Forum is, therefore, not sustainable under law and is liable to be set aside.
In the result, the appeal is allowed. The impugned order of the District Forum, is set aside. The complaint in C.C.No.266/2010 filed by the respondent/complainant is dismissed. In view of the facts and circumstances of the case, there shall be no order as to costs.
INCHARGE PRESIDENT MEMBER PM* Dt. 25.6.2013