Jesdev Singh vs National Insurance Co. Ltd. & Anr

The present Revision Petition has been filed by the Petitioner/Complainant against order dated 31.10.2012 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short “the State Commission”) in First Appeal No.725/2011, whereby the Appeal filed by the Respondents/Opposite Parties was allowed.

Case of the Complainant/Petitioner is that vehicle No.HR-37A-7847 (fuel tanker) of the Complainant was insured with the Respondents/Opposite Parties from 09.08.2007 to 08.08.2008 for Rs.4,50,000/-. On 25.06.2008, the tanker while carrying diesel from Ambala to Kullu met with an accident near Deyol barrier. Entire fuel spread and the tanker got damaged. FIR was lodged with Police Stataion Sadari Mand, Himachal Pradesh. Intimation of accident was also given to the Insurance Company. The Insurance Company deputed a Surveyor, who visited the place of incident on 26.06.2008. The tanker was carried to the service centre of Tata Motors, which gave an estimate of repairs of Rs.10,22,410/-. The Complainant also suffered loss of Rs.3,87,606/- on account of loss of diesel, as the said amount of Rs.3,87,606/- was deducted by Indian Oil Corporation from the bill of the Complainant. The Complainant filed two separate claims before the Opposite Parties, one for loss to the tanker and another for loss of diesel. The Opposite Parties failed to settle the claims of the Complainant. Alleging deficiency in service on the part of the Opposite Parties, the Complainant filed two separate Consumer Complaints i.e. CC/446/2009 and CC/221/2009.

The Complaints were contested by the Opposite Parties by filing the written statements admitting the fact that the Complainant filed the claim for loss caused to the tanker. The Complainant, however, did not report for loss of fuel. The Opposite Parties, therefore, did not appoint the Surveyor for assessment of loss of fuel. It was stated that Tanker No.HR-37-A-7847 was plied in Himachal Pradesh without route permit in violation of the terms and conditions of the Insurance Policy as well as in contravention to the provisions of the Motor Vehicles Act, 1988. The Complainant filed two Complaints to put pressure on the Opposite Party. It was also stated that there was no deficiency in service on the part of the Opposite Party.

The District Forum, vide common order dated 22.04.2011, allowed both Complaints with following direction: -

“(i) To assess the claim for the loss of fuel on the basis of spot survey conducted by the surveyor and to pay 75% of the assessed claim to the complainant treating it on non-standard basis.

(ii)  To pay the total damage claim of the tanker in question to the extent of 75% treating it on non-standard basis.

(iii) To pay Rs.15,000/- for deficiency in service and for litigation expenses.

Aggrieved by the impugned order dated 22.04.2011, the Opposite Parties filed First Appeal No.725/2011 before the State Commission. The State Commission, vide impugned order dated 31.10.2012, allowed the Appeals and dismissed the Complaints.

Aggrieved by the impugned order dated 31.10.2012, the Complainant has filed the instant Revision Petition with following prayer: -

“a. This Hon’ble Commission may kindly be pleased to accept and allow the present Revision and set aside the order dated 31.10.2012 passed by the Ld. State Commission in First Appeal No.725 of 2011 and confirm the order passed by the Ld. District Forum.

b. Pass such any order or further order/relief which this Hon’ble Court deem fit and proper in the facts and circumstances of the case.”

Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Petitioner submitted that the State Commission failed to appreciate the facts on record and passed the impugned order on the basis of conjectures and surmises. The State Commission gravely erred in holding that the Complainant did not have any route permit to ply the vehicle in Himachal Pradesh. The State Commission failed to appreciate that the Complainant was having valid route permit and the same was filed as Annexure C/9. It was also submitted that Indian Oil Corporation had deducted the amount due to loss of diesel from the bills of the Petitioner. The State Commission failed to appreciate this aspect of the matter.

Learned Counsel for the Respondents/Opposite Parties submitted that the Petitioner was having the route permit only for the State of Haryana. It was, however, counter signed by the Regional Transport Authority, Solan, Himachal Pradesh and the same was valid from 30.06.2008 to 29.06.2009.  The accident occurred on 25.06.2008. Thus, on the date of accident, the Petitioner did not have valid route permit. Regarding claim for loss of diesel, it was submitted that the Complainant did not report about such loss. The Opposite Parties, therefore, did not appoint the Surveyor for assessment of loss on account of loss of diesel. The claim of the Petitioner was, thus, rightly repudiated by the Opposite Parties.

The occurrence of accident is admitted by the Parties. It is also admitted that on the date of accident Policy was in force. The dispute relates to the validity of the route permit. The loss of Rs.3,87,606/- suffered by the Complainant on account of diesel spread is also disputed by the Opposite Parties.

Regarding loss of Rs.3,87,606/- on account of diesel spread on the road, the Opposite Parties disputed that the Complainant had not suffered any loss due to diesel spread. In this regard, Spot Survey Report dated 17.07.2008 is relevant, which reads as follows: -

“Please note that during spot survey on 27.06.2008 at 04.00 pm it was found that most of the high speed diesel had been leaked from the badly damaged oil tank. However the insured was trying to recover the saved diesel.

On dated 16-07-2008 insured gave me in writing that he could not recover the high speed diesel & complete 2000 litre high speed diesel got damaged in this mishap.”

From the Spot Survey Report it is clear that the tank was badly damaged and the high speed diesel had been leaked from the tank. The insured also gave in writing to the Spot Surveyor that he could not recover the diesel and complete 1200 litre high speed diesel got damaged in the accident. In the FIR also it is mentioned that the vehicle fell in a big drain and the diesel tanker torn from inside due to which diesel poured. It is the case of the Complainant that the Indian Oil Corporation had deducted Rs.3,87,606/- from the bill of the Complainant. The Opposite Party could not produce any evidence contrary to the above. The loss sustained by the Complainant due to spread of high speed diesel is, thus, established. The District Forum rightly allowed the claim on non-standard basis and directed the Opposite Party Insurance Company to pay 75% of the assessed claim. We uphold the finding of the District Forum in this regard and set aside the finding of the State Commission.

Regarding the dismissal of the Complaint on the ground that the Complainant was not having a valid route permit on the date of the incident, the Opposite Party repudiated the claim of the Complainant. The Complainant had a valid route permit to ply the vehicle in Haryana. The Transport Authority of Haryana had found the vehicle fit for being plied in Haryana. It cannot, therefore, be said that the vehicle was not fit for plying in Himachal Pradesh. Opposite Party had not placed any evidence to show that special requirement is there for plying the vehicle in Himachal Pradesh. The District Forum relied on the judgment of Amalendu Sahoo vs. Oriental Insurance Co. Ltd. and directed the Opposite Party Insurance Company to pay the total damage of the tanker in question to the extent of 75% treating it on non-standard basis. Para-12 of the judgment is relevant, which reads as follows: -

Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh reported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited v. Nitin Khandelwal reported in 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:-

...The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non- standard basis."

From the above, it is clear that the Insurance Company was required to settle the claim on non-standard basis. Following the ratio of the judgment in Amalendu Sahoo (supra), the District Forum had rightly directed the Opposite Party to settle the claim on non-standard basis. The judgment in Amalendu Sahoo (supra) still holds good.

For the foregoing discussion, the Revision Petition stands allowed. The impugned order of the State Commission is set aside and that of the District Forum is upheld. There will be no order as to costs. Opposite Party Insurance Company is directed to comply the order within three months.