State Consumer Disputes Redressal Commission
Sachidananda Sahoo vs New India Assurance Company Ltd. & ... on 24 June, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK C.D. CASE NO.321 OF 2003 Sachidananda Sahoo, S/o. Late Artabandhu Sahoo, Prop. M/s. Shree Basudev Filing Station, At/P.O- Nimapara, District- Puri. Complainant. -Versus- 1. New India Assurance Company Ltd., represented by its Branch Manager, Nimapara Branch, At/P.O- Nimapara, Dist- Puri. 2. Divisional Manager, New India Assurance Company Ltd., Bhubaneswar Divisional Office-1, 94- Janpath (2nd Floor) Bhubaneswar-1. 3. Senior Officer (Operation), Bharat Petroleum Corporation Limited, Januganj, Remuna Golai, Balasore-756019. 4. Insurance Ombudsman Bhubaneswar, 62-Forest Park, Bhubaneswar-9. Opposite Parties For the Complainant : M/s. B.P. Satapathy & Assoc. For the Opposite party nos.1 & 2 : M/s. P.K. Panda & Assoc. For the Opposite party no.3 : M/s. S. Udgata & Assoc. P R E S E N T : THE HONBLE SMT. BASANTI DEVI, MEMBER A N D SHRI SUBASH MAHTAB, PRESIDENT IN-CHARGE. O R D E R
DATE: - 24TH JUNE, 2008.
The complainant claiming himself as the Proprietor of M/s. Sri Basudev Filling Station, Nimapada, District- Puri has filed this case claiming compensation of rupees 12,94,335/- against New India Insurance Company Limited, in short, Insurance Co. represented through its Branch Manager and Divisional Manager, opposite party Nos.1 and 2 respectively.
2. Complainants case in brief is that he engaged vehicle No.OR-02A/6525 a tanker for carrying Petroleum Product under Bharat Petroleum Corporation Ltd., in short, B.P.C. Ltd. at Balasore depot with PCVO-Code-4051. The vehicle was covered under Miscellaneous Accident Insurance Policy for one year from 08.06.1999 to 07.06.2000 (Annexure-1). The policy extends to cover riot and strike risks. B.P.C. Ltd. issued credit invoice (Annexure-2) on 30.10.1999 at 10.40 A.M. for supply of 11.5 K.L. H.S.D. to C.C.E. (R.D) Dhamara under Basudevpur police station of Bhadrak District. On 30.10.1999 when said vehicle was carrying aforesaid quantity of diesel, it could not proceed further from Narasingpur village under Basudevpur police station as the road was blocked by a fallen tree due to super cyclone affecting the coastal area of Orissa. He came to know from a driver of similar type of tanker on 04.11.1999 that when his vehicle was stopped at Narsinghpur, a group of people came to said vehicle which is a tanker lorry and threatened to his tanker staff and forcibly stolen away entire 11.5 KL H.S.D. from his tanker lorry. On very same day i.e. on 04.11.1999, he informed about this to the Branch Manager of Insurance Co. (vide letter Annexure-3) and was advised to submit the claim with copy of the F.I.R. and load challan for necessary action. The Divisional Manager of Insurance Co. also advised him to contact their Bhadrak Office as per Annexure-4. On 05.11.1999, he lodged F.I.R. (Annexure-5) at Basudevpur Police Station, in short, P.S. with a written report. He also sent a copy of the F.I.R. and photocopy of the challan (Annexure-6) to the Branch Manager opposite party No.1. As per the advice of the B.P.C. Ltd. he made payment of rupees 1,51,578/- through draft dated 12.11.1999 (Annexure-7). But vide letter dated 31.03.2000 (Annexure-8) the Assurance Co. through its Branch Manager intimated him that his claim has been repudiated as the claim cannot be kept open which may be reopened after resubmission of Final Form by the police. The police submitted final form (Annexure-9) as No Clue, mentioning in the report that the entire stock of diesel has been forcibly taken away by local people on the night of 30.10.1999. Though he submitted the copy of the final form to the opposite party Nos.1 and 2 and requested to consider his claim yet they repudiated the claim vide letter dated 31.03.2001 (Annexure-13) without making a speaking order. On being moved by him, the Insurance Ombudsman, Bhubaneswar vide his order dated 11.06.2002 (Annexure-14) confirmed the repudiation of claim by opposite party Nos.1 and 2. Complainant also moved to Honble High Court of Orissa filing W.P.(C) No.3888 of 2002. But vide order dated 20.11.2003 (Annexure-16) the Honble High Court has disposed of the writ petition making an observation that the appropriate course is open to the petitioner either to file a Civil Suit or to proceed with the provisions of Consumer Protection Act. According to the complainant the alleged loss during Super Cyclone is due to arson and looting by the local people which action of the local people is within the meaning of riot and the policy extends to cover riots and strikes risks for which he is entitled to the price of the lost diesel rupees 1,51,578/-. He is entitled to loss and compensation as he has sustained loss of diesel worth aforesaid amount beyond his control during natural calamity. Therefore, he filed the C.D. Case to direct opposite party Nos.1 and 2 to indemnify the loss of rupees 1,51,578/-, interest rupees 72,757/-, to and fro expenses rupees 50,000/-, loss towards mental agony and loss of business rupees 20,00,000/- and cost of litigation rupees 20,000/-, in total rupees 22,94,335/-.
3. Opposite party Nos.1 and 2 the insurer have only filed written version denying the entire case and claim of the complainant. According to them, the policy in question is for coverage of risk called Carriers Legal Liability (C.L.L) which usually covers risk of fire and accident with an extended coverage of Riot and Strike. But complainants case / allegation is not of Riot and strike. It is highly improbable that people will steal diesel coming to Narsinghpur where the tanker was parked covering 50 to 60 k.m. when the speed of the cyclonic wind per hour was 350 k.m. Moreover, when the investigating report of the police is a determining factor of occurrence of theft or riot the Final report of the police does not speak about such a situation. The complainant has made his own interpretation of a theft to riot to bring the alleged incident into the coverage of riot. It seems, according to them, that no such occurrence was occurred at all and in order to grab illegal money taking advantage of super cyclone, the complainant had planted the empty tanker there. Opposite party Nos.1 and 2 have also challenged the maintainability of the complaint petition here claiming so much amount against them when hardly the claim in the worst case, would be rupees 12,94,335/- as per his own narration in paragraph 30 and prayer portion of his complaint petition. Thus they have claimed for dismissal of the C.D. Case.
4. It is not disputed that as per letter dated 31.03.2000 (Annexure-8), the New India Assurance Co. Ltd. had closed the claim file after repudiating the claim stating therein that the file may be reopened for consideration of the claim after submission of final police report. Thereafter complainant had submitted final form / police report and vide letter dated 31.03.2001 (Annexure-13), the New India Assurance Co. Ltd., even after reopening of the claim file basing on the letter of the complainant, has repudiated the claim on the ground of loss not coming within the scope of the Insurance Policy.
5. Now therefore question arises as to whether;
(a) the alleged loss is coming within the scope of the policy in question ?
and
(b) whether repudiation of claim of the complainant by opposite party Nos.1 and 2 is justified ?
and
(c) to what relief the complainant is entitled for.
6. In respect to the aforesaid point (a), it is clear from Annexure-1 and is not disputed that the policy extends to cover Riot and Strike risks. Question of Strike risks need not be examined as according to the complainant 11.5 K.L. H.S.D. from the tanker was taken away by group of miscreants on the alleged date. In his F.I.R. and complaint petition, complainant has mentioned that theft has been committed and the copy of the F.I.R. shows that P.S. Case No.140 dated 05.11.1999 has been registered for offence committed under Sections 379/34 IPC. That means in furtherance of common intention theft has been committed. Xerox copy of the final form arising out of said P.S. Case as per which G.R. Case No.1229 of 1999 was registered, the offence committed has been registered under Sections 143/379 IPC which means an unlawful assembly is alleged to have committed theft. As per Final Form, the investigating officer has reported that there was no clue of commission of said offence. Though in the Final Form, the I.O. has reported that he had inspected the spot and on examination of witnesses they proved that on 30.10.1999 at about 3 P.M. a group of people making unlawful assembly came to the spot where tanker loaded with 11.5 KL H.S.D. stood and opened the Valbe of the tanker and committed theft and returned to their respective shelter and none identified the culprits, but we find from the statements of 7 witnesses including the driver of the tanker Sri Babaji Charan Malik and its helper Kabiraj Das that except Kabiraj Das none other witnesses have seen the alleged theft. Though Kabiraj has seen yet he has neither stated as to how many people had committed theft nor identified any of them. There is nothing also to test the veracity of Kabiraj Das. Complainant and Babaji Charan Malik are not eye witnesses to the alleged occurrence. Thus during police investigation or otherwise no sufficient evidence is available to arrive into a conclusion that an assembly of 5 or more persons with common object to indulge themselves into unlawful or criminal activities so as to constitute unlawful assembly under Section 141 IPC had appeared at the spot and have committed theft of 11.5 KL H.S.D. on 30.10.1999 at Narsingpur. There is also hell and heaven difference between offences theft and Riot as per the definition of I.P.C. Riot under Section 146 I.P.C. means whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, offence of riot is said to have been committed. But no materials or proof are forthcoming that miscreants numbering 5 or more forming an unlawful assembly in prosecution of common object, have caused such offence and removed diesel from the tanker. Therefore, the offence of riot alleged by the complainant is not there. So, the loss as alleged, if any being not due to riot, does not come under the scope of the policy in question.
7. Coming to aforesaid point (b), as the alleged loss is not proved and it is not proved that the loss in the worst case is due to riot, repudiation of claim of the complainant by the opposite parties is justified.
8. In respect to aforesaid point (c), our cocenscious finding in view of the analysis made above that the complainant has no basis to make such claim against opposite party Nos.1 and 2. Therefore, the C.D. Case is not maintainable.
9. In the result, the C.D. Case is dismissed on contest against opposite party Nos.1 and 2 and opposite party Nos.3 and 4 on ex-parte against whom no relief was sought for without cost.