State Consumer Disputes Redressal Commission
Hotal Ayush International , vs Indian Oil Corporation Ltd on 31 July, 2015
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BEFORE THE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, RAJASTHAN,
BENCH NO.3 JAIPUR
ORIGINAL COMPLAINT CASE NO: 40/2011
Hotel Ayush International, Sitapura Industrial
Area, RIICO, Jaipur through it's Manager - Vinod
Agarwal
..........Complainant
Vs.
1. Indian Oil Corporation Ltd., through it's
Regional Manager, Adarsh Nagar, Jaipur.
2. Rajasthan Industrial Investment Corporation,
through Regional Manager, Tilak Marg, Jaipur.
3. The New India Assurance Co. Ltd., Registered &
Head Office at New India Assurance Building,
M.G.Road, Mumbai-01 through Managing Director.
..........Opposite Parties
Date of Order - 31.07.2015
Before:
Hon'ble Mr.Anil Kumar Mishra - Presiding Member
Hon'ble Mr.Kailash Soyal - Member
Mr.Jitendra Mitruka . . . . . Counsel for the
complainant.
Mr.Anant Kasliwal & Mr.Tapesh Agrawal . . . . .
Counsels for the Opposite Party No.1 (IOCL).
Mr.Chandra Shekhar . . . . . Counsel for the
Opposite Party No.2 (RIICO).
Mr.Vizzy Agarwal . . . . . Counsel for the Opposite
Party No.3 (Insurance Company).
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JUDGMENT
PER MR.ANIL KUMAR MISHRA (PRESIDING MEMBER)
1. The present complaint has been filed by the Hotel Ayush International, (hereinafter referred to as "the complainant") against the opposite parties (OPs) with an averment that the complainant is a Unit of Ayush Hospitality & Health Services (P) Ltd. and is engaged in the business of hospitality and health services. The complainant's unit is adjacent to Depot of Indian Oil Corporation Ltd. (IOCL). A huge fire took place on 29.10.2009 in the depot of IOCL, which caused huge damage and loss to the complainant's premises and an FIR was lodged in the matter. The opposite party No.2 (RIICO) issued a public notice on 11.12.2009 (Annex.5) for providing ad-hoc relief to the units, which suffered loss due to the incident. The complainant in response to the aforesaid notice got the loss assessed by Mr.Arun Kumar Patni, an IRDA Surveyor, who assessed the loss to the extent of Rs.40,17,919.91 (Annex.6). 3 The IOCL had obtained a third party indemnification policy from the New India Assurance Company Ltd. (hereinafter referred to as "the Insurance Company") and at the directions of the IOCL, the complainant submitted it's claim (Annex.8) before the Insurance Company, but instead of deciding the claim, the Insurance Company appointed another Surveyor and the claim has not been settled and hence, the present complaint be allowed against the opposite parties and the complainant be awarded an amount of Rs.40,17,919/- the actual loss + Rs.20,00,000/- against compensation for harassment and deficiency in service + Rs.30,00,000/- against compensation for economic loss + Rs.25,000/- for cost of proceedings i.e. in all Rs.90,42,919/-.
2. The IOCL (the OP No.1) in it's reply to the complaint submitted that the complainant has neither bought any goods nor hired any services for consideration from it and there is no privity of contract between the complainant and the 4 OP. It had obtained an Umbrella Public Liability Policy from the Insurance Company to cover third party claims arising out of accidents. The IOCL paid Rs.50 Crores as gesture of goodwill to proportionally make good any losses suffered by the units as a result of fire that took place in it's depot. The claim submitted by the complainant was forwarded to the Insurance Company, but it could not be settled for want of documents from the complainant. The IOCL is not liable to indemnify the complainant for any loss and hence, the complaint be dismissed.
3. The RIICO (the OP No.2) in it's reply to the complaint submitted that the complainant is a commercial unit and hence, it is not competent to file present complaint. Though, a fire took place on 29.10.2009 in the IOCL depot and it released Rs.50 Crores for ad hoc relief to the units which suffered loss in the fire. The complainant is not a legal entity because it is not an allottee of the RIICO, but plot No.C-52 has been allotted 5 to Ayush Hospitality & Health Services Pvt. Ltd. The State Government authorized the RIICO for disbursement of ad hoc relief as per directions of the Hon'ble High Court in various writs pending before it. Rs.25,000/- (Annex.R5) were instantly given to the complainant and as per the assessment of loss made by Mr.Arun Patni, the Surveyor of the complainant, who assessed the loss to the extent of Rs.40,17,919.91, an amount of Rs.16,41,687/- i.e. 40.85% determined by the committee, was paid to the complainant on 03.06.2010 (Annex.R6). The complainant does not come within the definition of consumer and hence, the complaint be dismissed.
4. The Insurance Company (the OP No.3) in it's reply to the complaint submitted that the IOCL and other Petroleum Companies had obtained an Umbrella Public Liability Insurance Policy and the complainant has not been insured under the policy. There is no privity of contract between the complainant and the Insurance Company and 6 hence, it is not a Consumer vis-a-vis IOCL. The complaint has been filed under the garb of being a beneficiary under the policy. The policy taken by the IOCL seeks to indemnify the IOCL against any liability fastened upon it in pursuance of any legal suit or action brought against it and there is no judgment yet of any liability against the IOCL. The complainant is a hotel, which is a commercial activity and hence, the complaint is not maintainable. The complainant is not an allottee of the RIICO and hence, not competent to file the present complaint.
The authorized Surveyor of the IRDA assessed the loss to the complainant to the extent of Rs.13,06,492/- only subject to deduction of Compulsory Excess of 0.5%. The complainant has already received a sum of Rs.25,000/- as ad hoc relief on 08.01.2010 and Rs.16,41,687/- on 03.06.2010 from RIICO against damages caused on account of the incident. Thus, the complainant has already received a 7 compensation in excess to the damages as assessed by the Surveyor. The complainant is seeking unjust enrichment at public expense, though it has already been compensated. Further, the Insurance Company is not liable under the Exclusion Clause No.8 for the loss arising out of deliberate, willful or intentional non- compliance of any statutory provisions and intentional disregard of the insured's technical or administrative management to take all reasonable steps to prevent claims. In the present matter, the police submitted charge sheet No.123/2010 against the officers of the IOCL, which shows gross disregard of the statutory provisions for the safety of the depot and hence, the complaint be dismissed.
5. The complainant has submitted an affidavit of Mr.Vinod Agrawal and documents Annex.1- 10, whereas Mr.Kamaljit Singh submitted his affidavit on behalf of the IOCL and Mr.D.K.Sharma submitted his affidavit on behalf of RIICO, along with documents (Annex.R1-7). The Insurance Company 8 submitted the affidavit of Mr.Naveen Jain and Mr.Arun Gupta and documents Ex.OP.3/1 to OP.3/14.
6. We have heard the arguments of the learned counsels of the complainant and the Opposite Parties and carefully perused the record, documentary evidence and the written submissions of the parties.
7. It is an admitted fact that the complainant is a unit of Ayush Hospitality and Health Services Pvt. Ltd., which is the original allottee of the plot No.C-52 by the RIICO and it is engaged in the business of hospitality and health services and thus, it is a beneficiary of the parent Company. It is also admitted fact that the premises of the complainant is adjacent to the IOCL Depots and a huge fire took place on 29.10.2009 in the petrol, diesel and kerosene tanks of the IOCL. The complainant suffered huge losses to it's premises. It is also an admitted fact that the IOCL, along with other Petroleum Company were insured against third party claim under the Umbrella 9 Public Liability Insurance for an insured value of rupees One Hundred Crores for a period from 01.04.2009 to 31.03.2010 (Ex.OP.3/4). It is also an admitted fact that the complainant submitted a claim (Annex.8) for an amount of Rs.1,83,45,419/- before the Insurance Company under the Umbrella Policy, but the same could not be settled.
8. The main contention of the learned counsels for the OPs is that the complainant is not a consumer and it is engaged in commercial activities and there is no privity of contract between the complainant & the OPs and hence, the complaint is not maintainable. It is true that there is no privity of contract between the complainant and the OPs, but the complainant has come for indemnification of it's loss due to fire that occurred in the Depot of IOCL. The IOCL is insured by the Insurance Company for third party claim under the Umbrella Policy and hence, the complainant is a beneficiary under the policy and can claim 10 damages from the IOCL and the Insurance Company for the loss suffered by it in the incident. It is true that the complainant is engaged in commercial activities, but it is no bar to claim indemnification of the loss suffered by it due to fire in the IOCL depots. We are of the view that the complainant is merely an allottee of an Industrial plot by RIICO (the OP No.2) and therefore, the later it is not liable for any loss and payment of compensation to the complainant due to the fire incident in the IOCL Depot.
It also appears from the record that the various FIRs had been lodged with the concerned police stations with respect to the incident and few writs were also filed before the Hon'ble High Court. It also appears from the record that at the instance and direction of the Hon'ble High Court, the IOCL released an amount of Rs.50 Crores for disbursement of some ad hoc relief to various units that suffered loss due to incident. The RIICO also by way of public notification dated 11 11.12.2009 (Annex.5), invited claims from various units that suffered loss due to the fire incident and formed a committee for the proportional disbursement of ad hoc relief from Rs.50 Crores released by the IOCL.
9. It is also an admitted fact that the RIICO made a payment of Rs.25,000/- to the complainant on 08.01.2010 (Annex.R5 & Ex.OP.3/3) as an ad hoc relief. The complainant's surveyor Mr.Arun Kumar Patni assessed the loss to the extent of Rs.40,17,919.91 and the committee appointed by the Government and RIICO rounded off the aforesaid amount to Rs.40,18,000/- (Annex.R4) and made a payment of Rs.16,41,687/- to the complainant on 03.06.2010 out of the aforesaid amount i.e. 40.85% of the loss, as recommended by the committee appointed at the directions of the Hon'ble High Court (Annex.R6 & Ex.OP.3/14). Thus, an amount of Rs.16,66,687/- had been paid to the complainant till 03.06.2010 by the RIICO against the loss.
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10. It also appears from the Survey Report (Annex.6) prepared by Mr.Arun Kumar Patni, the Surveyor of the complainant that he assessed the loss to the complainant to the extent of Rs.40,17,919.91 and the complainant submitted a claim of Rs.1,83,45,419/- (Annex.A8). On the other hand, the Associated Surveyor and Consultants, the IRDA's licensed Surveyors of the Insurance Company, assessed the loss to the complainant's premises to the extent of Rs.13,06,492/- (Ex.3/6). It also appears from this survey report of the Insurance Company that the same is based on physical verification of the premises, the stock and other documents, whereas the survey report (Annex.6) prepared by Mr.Arun Kumar Patni is not substantiated by any document or record or physical verification or by his affidavit. It is pertinent to mention here that Mr.Arun Gupta, the Surveyor of Associated Surveyors also submitted his affidavit in support of the survey report Ex.OP.3/6. It is noteworthy to mention here that the so 13 called survey report (Annex.6) by Mr.Arun Kumar Patni is merely a kind of certificate of loss and nowhere it is mentioned in it that on what basis the said certificate/report was prepared. Therefore, the survey report Ex.OP.3/6, prepared by Associated Surveyor and Consultants is more reliable and trustworthy as compared to the report submitted by the complainant.
11. The Hon'ble Supreme Court in IV (2006) CPJ 17 (National Insurance Company Ltd. Vs. Nipha Exports Pvt. Ltd.) and III (2007) CPJ 317 (Oriental Insurance Company Ltd. Vs. Mehta Wool Store) has laid down that due weightage should be given to the report of the IRDA Surveyor and it cannot be ignored without assigning any reasons. Moreover, the complainant did not submit any objections or protest against the Survey Report (Ex.OP.3/6) of the Associated Surveyors of the Insurance Company. There is nothing on record to disbelieve, disapprove or ignore the aforesaid Survey Report of Associated 14 Surveyors. Therefore, the report of Associated Surveyor is more reliable than the report (Annex.6) of Mr.Arun Kumar Patni, the Surveyor of the complainant. Thus, the complainant is entitled to indemnification to the extent of Rs.13,06,492/- only, the amount of loss assessed by Associated Surveyor (Ex.OP.3/6), whereas the complainant has been paid Rs.25,000/- (Annex.R5 & Ex.OP.3/13) as an ad hoc relief and Rs.16,41,687/- (Annex.R6 & Ex.OP.3/14) on 08.01.2010 & 03.06.2010 respectively by the RIICO. Thus, the complainant has been paid an amount of Rs.16,66,687/- in all against the loss, whereas the Surveyor assessed the loss only to the extent of Rs.13,06,492/-. Hence, the complainant has already received compensation in excess to the loss suffered by it. Therefore, we are in agreement with the contention of the learned counsel of the OPs that the complainant cannot be allowed to unjustly enrich itself at the cost of public exchequer.
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12. It is evident that the IOCL, along with other Petroleum Companies, had obtained an Umbrella Public Liability Industrial Risk Policy for an insured declared value of rupees one hundred crore. It also appears from the perusal of the policy (Ex.OP.3/4) that this policy is an indemnification policy, which seeks to indemnify the insured (IOCL) against any legal liability to pay compensation including claimants cost, fees and expenses in accordance with Indian Law. Thus, the Insurance Company is liable to indemnify only the IOCL against any legal liability fastened upon it in pursuance of any legal action brought against it under the Indian Law. We are in agreement with the contention of the learned counsel for the Insurance Company that there is no judgment yet or any liability fastened against it by any Court and the complainant would be at liberty to submit it's claim before the Insurance Company as and when any such liability is fastened against the IOCL and the complainant cannot place itself in the 16 shoes of the IOCL to seek indemnification directly from the Insurance Company.
13. It is true that as per the public notice dated 11.12.2009 of RIICO (OP No.2), the ad hoc relief has not to affect individual insurance/ third party claims of the units. But we are of the view that this term and condition of the notification can only bind the State Government or the RIICO, but not the Insurance Company as the later is not a privy to the notification. We are in agreement with the contention of the learned counsel for the Insurance Company that when the complainant has already been compensated out of money (Rs.50 Crore) provided by the IOCL, then the former cannot be re- compensated for the same loss under the Public Liability (Industrial Risks) Insurance Policy held by the IOCL, particularly when it has received a compensation in excess to the loss sustained by it in the incident. For the aforesaid reasons, the complainant is not entitled to get any damages/ compensation 17 from the Opposite Parties and the present complaint of the complainant is liable to be dismissed.
ORDER
14. The present complaint of Hotel Ayush International is dismissed. Both the parties shall bear their own cost for the proceeding.
(KAILASH SOYAL) (ANIL KUMAR MISHRA) MEMBER PRESIDING MEMBER PINKKY JAIN, UDC