ABHAY CARRIERS (P) LIMITED vs THE ORIENTAL INSURANCE CO. LIMITED

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the order dated 31.08.2012, passed by the West Bengal State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in First Appeal No. 359/2011, "Abhay Carriers (P) Ltd. versus The Oriental Insurance Company Ltd.", vide which, while dismissing the appeal, the order dated 25.05.2011, passed by the District Forum Kolkata Unit II, in consumer complaint No. 1179/2009, filed by the petitioner/complainant company, partly allowing the said complaint by majority judgment, was upheld.

The facts of the case are that the petitioner/complainant company which is in the business of transporting petroleum products including HSD (High Speed Diesel) by means of oil tankers obtained a Carriers'' Liability Policy from the OP Insurance Company for their oil-tanker, bearing No. NL-01A 9164 for an insured sum of 6 lakh, valid from 20.04.2004 to 19.04.2005. It is the case of the complainants that on the date of incident, the said oil tanker driven by the driver, Lalan Prasad Yadav was carrying diesel (HSD) and moving from New Jalpaiguri to Ranchi, on behalf of Bharat Petroleum Corporation Limited (BPCL). When the tanker reached a place called Bireedia near Air Force Station under Kanksa P.S., District Burdwan, West Bengal at about 4:00 PM, some roaming cattle came upon the road suddenly. The complainant says that at that time, the driver of the vehicle was driving the same in a rash and negligent manner and hence, he could not control the vehicle, because of which, the vehicle capsized that resulted in damage to the vehicle and leakage of 10737.10 litres of HSD valued at 3,08,799/-. The local police was informed in writing immediately and they registered motor accident case No. 01/2005 dated 20.01.2005 under section 183 of the Motor Vehicles Act against the driver, punishable under section 112 of the Motor Vehicles Act. On their part, the BPCL recovered the said amount of 3,08,799/- from the transport bill of the petitioner/complainant. The insurance company was informed about the incident and a claim was also lodged with them on 27.01.2005. However, the claim was repudiated by the OP Insurance Company after a long gap of about four years, through their letter dated 21.02.2009, taking the plea that the incident was not covered under the terms and conditions of the Carriers'' Liability Policy. The complainants sent a legal notice to the OP Insurance Company on 24.06.2009, but there was no response from them. The consumer complaint in question was then filed, seeking directions to the insurance company to pay them a sum of 3,08,799/- alongwith interest @18% p.a. and also to provide 15,000/- as compensation for mental harassment etc. and 10,000/- as cost of litigation.

The complaint was resisted by the OP Insurance Company by filing a written reply before District Forum, in which they denied that the driver was driving the vehicle in a rash and negligent manner. They stated that the Police had not conducted any inquiry or investigation in the matter. The incident is reported to have taken place on 18.01.2005, but information to the Police was given on 20.01.2005. Moreover, the driver was not authorised for driving such type of vehicles as oil tankers. The insurance company maintained that the claim was not payable under the terms and conditions of the policy.

The District Forum after considering the averments of the parties, passed their order on 25.05.2011, in which they concluded through majority judgment that the complainant had not produced any material to show that the driver was acting in a rash and negligent manner. The District Forum concluded that the insurer was guilty of not disposing off the claim within a reasonable time and thus, liable to compensate the complainant. They directed the OP Insurance Company to pay a compensation of 50,000/- for mental harassment, agony etc. The President of the District Forum stated in the order recorded by him that the insurance company was liable to pay the amount stated above for the delay in disposing of the claim. However, the other Member of the District Forum on the Bench, expressed his disagreement with the President, saying that the claim was not payable at all. The matter was referred to the third Member of the Forum, who is a lady Member. Since she agreed with the views of the President, the Insurance Company was held liable to pay a compensation of 50,000/- for mental agony etc. as per majority judgment. Being aggrieved against the said order of the District Forum, the complainants challenged the same by way of an appeal before the State Commission, and the said appeal having been dismissed vide impugned order, the petitioner/complainant is before this Commission by way of the present revision petition.

During arguments, the learned counsel for the petitioner/complainant submitted that as a result of the accident in question, the petitioner was put to huge loss, as a sum of 3,08,799/- was deducted from their bills by the BPCL. A copy of the certificate to this effect dated 10.06.2005 has been produced on record. The learned counsel stated that the accident took place, when stray cattle came in the way of the vehicle, because of which it turned turtle. The Insurance Company had taken an unreasonable attitude in repudiating the claim vide their letter dated 25.02.2009, in which they stated that the claim could be paid only if accident had arisen on account of negligence or criminal act of servants of the policy holder. Moreover, the said letter was issued after 3? years of the incident, which was not desirable by any standard. The Insurance Company should be made to pay the claim as per the assessment report of the surveyor. The learned counsel for the OP Insurance Company took the preliminary objection that the scope for the exercise of a revisional jurisdiction was limited. Referring to the order passed by the Hon''ble Supreme Court in " Rubi (Chandra) Dutta v. United India Insurance Co. Ltd., [(2011) 11 SCC 269] ", the learned counsel stated that since there were two concurrent judgments of the consumer fora below, there was no justification for taking a different view in the revision petition. The learned counsel has further drawn attention to the terms and conditions of the policy in question, saying that the claim was not covered under the Carriers'' Liability Policy, because the negligence or criminal act on the part of the driver had not been proved. The complainant had wrongfully paid the amount to the BPCL, but it did not imply that the insurance company was duty bound to reimburse him for the same. The learned counsel has placed reliance on the report of the police, saying that the driver had been proceeded against for criminal act on his part and hence, the claim was payable.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The main point for consideration in the matter is whether there is liability on the part of the Insurance Company to pay the claim, keeping in view the terms and conditions stated in the insurance policy. The case of the insurance company is that their liability to make payment arises only if actual physical loss or damage to goods takes place on account of negligence of the insured or negligence or criminal act of his servants. The State Commission after thoroughly examining the evidence brought on record, concluded that there was no proof that the accident had arisen on account of negligence of the insured or negligence or criminal act of the servant of the complainant, as stipulated in the Carriers'' Liability Policy. The State Commission concluded that there was no evidence that the driver was driving the vehicle rashly and speedily. Even if some stray cattle came in the way of the vehicle, it definitely does not lead to the conclusion that the vehicle was being driven in a rash and negligent manner. The State Commission observed that there was a certificate in favour of the driver for his successful completion of one day refresher training course on "safe transportation of hazardous petroleum products" on 22.11.2004, organised under the auspices of the BPCL.

A perusal of the order passed by the District Forum indicates that the President of the Forum concluded in his detailed order that there was no material to show that the driver was acting in a rash and negligent manner at the time of the accident. The President stated in his order that the insurance company sent a written communication for repudiation of the claim only on 25.02.2009 which was beyond reasonable time, because the claim was submitted on 27.1.2005. The President concluded that the insurance company was guilty of not disposing of the claim within a reasonable time and thus liable to pay compensation of 50,000/- for harassment, mental agony etc. The other Member of the District Forum, who gave dissenting note, found that the insurance company was not at all liable to pay the claim, not even any amount for the delay in taking a decision about the claim. When the matter went to the third Member of the Forum, who is a lady Member, she expressed concurrence with the views of the President. The final order passed by the District Forum enables the complainant to get a compensation of 50,000/- for mental harassment only. This order has been upheld by the State Commission in the appeal filed by the complainant before them and they did not find any justification to enhance the said amount. It is evident from these facts that none of the members of the District Forum including the one who wrote dissenting order, as well as the State Commission held anywhere that the driver was driving the vehicle in a rash or negligent manner, or there was any criminal act on his part.

Under the given set of facts and circumstances of the case, I do not find any illegality, irregularity or jurisdictional error in the orders passed by the Consumer Fora below, which may necessitate modification in the order so passed by way of enhancement of compensation awarded by them. The orders passed by the Fora below have not been challenged by the OP Insurance Company at all.

Further, I tend to agree with the arguments taken by the learned counsel for the insurance company that the scope of interference in the exercise of revisional jurisdiction is limited as held by the Hon''ble Apex Court in their judgment in "" Rubi (Chandra) Dutta v. United India Insurance Co. Ltd., " (supra). Such jurisdiction can be exercised only if there is a patent error of jurisdiction or material defect in the order passed by the Consumer Fora below. In the present case, therefore, there is no justification for interfering with the orders of the consumer fora below in the present revision petition.

Based on the discussion above, it is held that the revision petition is without any merit and the same is ordered to be dismissed and the orders passed by the Consumer Fora below are upheld. There shall be no order as to costs.