State Consumer Disputes Redressal Commission
M/S Star Packaging Through Pr0P Mrs ... vs Indian Oil Corporation Ltd. on 31 July, 2015
1
BEFORE THE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, RAJASTHAN,
BENCH NO.3 JAIPUR
ORIGINAL COMPLAINT CASE NO: 14/2011
M/s Star Packaging, Sitapura Industrial Area,
RIICO, Jaipur through Proprietor Mrs.Shyama
Kapoor.
..........Complainant
Vs.
1. Indian Oil Corporation Ltd., through it's
Regional Manager, Adarsh Nagar, Jaipur.
2. Rajasthan Industrial Investment Corporation,
through Regional Manager, RIICO Industrial
Area, 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 . . . . . Counsel 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).
2
JUDGMENT
PER MR.ANIL KUMAR MISHRA (PRESIDING MEMBER)
1. The present complaint has been filed by M/s Star Packaging, the complainant (hereinafter referred to as "the complainant") against the opposite parties (OPs) with an averment that the complainant is a proprietorship firm of Mrs.Shyama Kapoor and is engaged in manufacturing of corrugated boxes, paper rolls and paper sheets in it's premises. The complainant's unit is adjacent to the 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 firm and an FIR was lodged in the matter. The complainant submitted the claim to the IOCL on 04.11.2009 with a copy of the assessment of loss to the extent of Rs.10,92,400/- + Rs.1,65,000/- done by the complainant's surveyor (Annex.5, 6 & 7). The opposite party No.2 (RIICO) issued a public notice on 11.12.2009 for providing ad-hoc relief to 3 the units, which suffered loss due to the incident. The complainant in response to the aforesaid notice got the loss assessed by an IRDA Surveyor, who assessed the loss to the extent of Rs.10,60,326/- (Annex.11-
12). The IOCL had obtained a third party indemnification policy from the New India Assurance Company Ltd. (hereinafter referred to as "the Insurance Company"), but despite completing the formalities and sending various reminders (Annex.13-17), the opposite parties did not settle the claim of the complainant and hence, the present complaint be allowed against the opposite parties and the complainant be awarded an amount of Rs.10,13,826/- the actual loss + Rs.10,00,000/- against compensation for harassment and deficiency in service + Rs.20,00,000/- against compensation for economic loss + Rs.25,000/- for cost of proceedings i.e. in all Rs.40,38,826/-.
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 4 from it and there is no privity of contract between the complainant and the 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 a 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 as ad hoc relief to the units, which suffered loss in the fire. The State Government authorized the 5 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/- were instantly given to the complainant. As per the assessment of loss made by the Surveyor of the complainant, who assessed the loss to the extent of Rs.9,31,000/-, an amount of Rs.3,80,391/- i.e. 40.85% determined by the committee, was paid to the complainant on 23.04.2010. 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 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 6 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. Moreover, General Condition No.9.9A of the policy provides that the Insurance Company is not liable to indemnify the claimant, if it is insured by any other policy. In the present matter, the complainant has obtained an insurance policy from the Universal Sompo General Insurance Company Ltd. and hence, Insurance Company is not liable to indemnify the complainant in the present matter. The complainant's Insurance Company has paid an amount of Rs.36,000/- against the present loss.
The authorized Surveyor assessed the loss to complainant to the extent of Rs.69,000/- on reinstatement value and to the tune of Rs.60,000/- on the market value, whereas the complainant has already received a some of Rs.25,000/- + Rs.3,80,391/- against the damages caused on account of the incident, in addition to 7 Rs.36,000/- paid by complainant's Insurance Company. Thus, the complainant had already received a 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 the loss. 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 affidavit of Mrs.Shyama Kapoor and documents Annex.1- 19, whereas Mr.Kamaljeet Singh submitted his affidavit on behalf of the IOCL and 8 Mr.D.K.Sharma submitted his affidavit on behalf of RIICO along with documents Annex.1-6. The Insurance Company submitted the affidavit of Mr.Naveen Jain and documents Ex.OP.3/1 to OP.3/9.
6. We have heard the arguments of the learned counsel for 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's firm/unit is engaged in the manufacturing of corrugated boxes and paper rolls and is situated adjacent to the IOCL Depot and a huge fire took place on 29.10.2009 in the petrol, diesel and kerosene tanks of the IOCL. The complainant suffered damage to it's premises and machines. It is also an admitted fact that the IOCL, along with other Petroleum Companies, were insured against third party claims under the Umbrella Public Liability Insurance for an insured value of rupees One Hundred Crores for a period from 01.04.2009 to 31.03.2010 9 (Ex.OP.3/1). It also appears from the record that the complainant's unit was also independently insured with the Universal Sompo General Insurance Company Ltd. (Ex.OP.3/2) for a period from 27.01.2009 to 26.01.2010 for an insured declared value of Rs.18 Lacs. It is also an admitted fact that the complainant submitted on 04.11.2009, a claim before the IOCL (Annex.5), along with Survey Report (Annex.6 & 7), which was forwarded to the Insurance Company under the Umbrella Policy, but the same could not be settled.
8. One of the contentions 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 10 that took place in the Depot of the 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 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 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 (OP No.2) and therefore, the later 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 of direction of the Hon'ble High 11 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 11.12.2009 (Annex.10) 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 instantly vide Annex.-5 as an ad hoc relief and made a payment of Rs.3,80,391/- on 23.04.2010 out of an amount Rs.9,31,000/- (i.e. 40.85% of the loss as recommended by the Committee appointed at the directions of the Hon'ble High Court) as a loss assessed by the complainant's Surveyor Mr.Manoj Bhargava, who assessed the loss to the extent of Rs.10,13,826/- (Annex.11). Thus, an amount of Rs.4,05,391/- has been paid to the complainant till 23.04.2010 by the RIICO 12 against the loss. It also appears from the Survey Report (Ex.OP.3/3) by Protocol Surveyors of the Insurance Company that the complainant was also paid Rs.36,000/- by the Universal Sompo General Insurance Company Ltd. (with which the complainant's premises was insured) against the claim of Rs.1,50,000/- of the complainant. Thus, the complainant itself claimed damages to the extent of Rs.1,50,000/- from it's Insurance Company for the loss to it's premises on account of the fire that took place at the depot of IOCL. This fact was verbally informed to the Surveyor and payment of this amount by the Insurance Company of the complaint has not been denied or rebutted by the complainant. Thus, the complainant has in all had received an amount of Rs.3,80,391/- + Rs.25,000/- + Rs.36000/- i.e. Rs.4,41,391/- in all against the loss to it's premises.
10. It appears from two Survey Reports of the complainant that Mr.Manoj Bhargava assessed the loss to the extent of 13 Rs.10,13,826/-, whereas the Second Surveyor Nav Bharat Nirman Company assessed the loss to the extent of Rs.10,92,400/-. On the other hand, the Protocol Surveyors and Engineers Pvt. Ltd., the Surveyor of the Insurance Company, who is licensed surveyor of the IRDA assessed the loss to the complainant's premises to the extent of only Rs.69,000/- on the reinstatement value basis and to Rs.60,720/- on the market value basis. It also appears that the Survey Report (Ex.OP.3/3) of the Protocol Surveyor is based on physical verification of the premises, the stock, photographs and other documents, whereas the Survey Report (Annex.6) prepared by Nav Bharat Nirman Company and Survey Report prepared by Manoj Bhargava (Annex.11) is not substantiated by any document or report of physical verification, therefore, the Survey Report prepared by Protocol Surveyor submitted by the Insurance Company is more reliable and trustworthy as compared to the reports 14 submitted by the complainant. 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. Moreover, the complainant did not submit any objections or protest against the Survey Report (Ex.OP.3/3) of the Protocol Surveyors of the Insurance Company. Therefore, the report of Protocol Surveyor (Ex.OP.3/3) is more reliable then the report (Annex.11) of Mr.Manoj Bhargava, the Surveyor of the complainant.
11. 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.3/1) that this policy is an indemnification policy, which seeks to indemnify the IOCL against any liability fastened upon it in 15 pursuance of any legal action brought against it in a Court of 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 shoes of the IOCL to seek indemnification directly from the Insurance Company. Moreover, the general condition No.9.9A of the policy provides that "this policy does not cover liability, which at the time of happening of any event resulting into such liability, be insured by any other policy:
except, in respect of any excess beyond the amount which would have been payable under such policy, had this Insurance not been effected." Thus, the aforesaid condition implies that if the complainant/ any claimant is insured with any other Insurance Company, then the present 16 insurer is not liable to indemnify the complainant for the loss suffered due to any accident, which took place on account of an accident at the premises of the IOCL. It is an admitted fact that the complainant's premises were insured with the Universal Sompo General Insurance Company Ltd. and this Company has indemnified the complainant by making a payment of Rs.36,000/- against the claim submitted by it for an assessed loss of Rs.1,50,000/-.
12. Thus, it is amply clear that the complainant has not only been compensated by it's own Insurance Company by making a payment of Rs.36,000/-, but the RIICO (OP No.2) has also made a payment of Rs.3,80,391/- + Rs.25,000/- i.e. Rs.4,05,391/- against the loss to it's premises due to fire that took place at the Depot of IOCL. As discussed earlier, Mr.Manoj Bhargava, complainant's surveyor assessed the loss to the extent of Rs.10,13,826/- and Nav Bharat Nirman Company another surveyor of the 17 complainant assessed the loss to the extent of Rs.10,92,400/- against the repairs and reconstruction. On the other hand the Protocol Surveyor, the IRDA licensed surveyor assessed the loss to the extent of Rs.69,000/- on the reinstatement value basis and Rs.60,720/- on the market value basis. As discussed earlier, the Survey Report submitted by the Insurance Company is more reliable and which has not been controverted by the complainant and therefore, there is nothing on record to disbelieve the Survey Report of Protocol Surveyor, who assessed the loss only to the extent of Rs.69,000/-. It is noteworthy to mention here that the complainant's Insurance Company itself indemnified the complainant only to the extent of Rs.36,000/- against the claim of Rs.1,50,000/- by the complainant and he has further been compensated to the extent of Rs.4,05,391/- by the RIICO as ad hoc relief and thus, the complainant has already received compensation in excess to the loss suffered by it. Therefore, we are 18 in agreement with the contention of the learned counsels for the OPs that the complainant cannot be allowed to unjustly enrich itself at the cost of public exchequer.
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 19 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 from the Opposite Parties and the present complaint of the complainant is liable to be dismissed.
ORDER
14. The present complaint of M/s Star Packaging is dismissed. Both the parties shall bear their own cost for the proceeding.
(KAILASH SOYAL) (ANIL KUMAR MISHRA) MEMBER PRESIDING MEMBER PINKKY JAIN, UDC