Research › Search › Judgment

Uttarakhand High Court · body

2006 DIGILAW 278 (UTT)

GIRISH SEHGAL v. NEW INDIA ASSURANCE CO. LTD.

2006-06-05

IRSHAD HUSSAIN, SURENDRA KUMAR

body2006
ORDER (Per: Mr. Justice Irshad Hussain, President): This is complainant’s appeal against the order dated 28.11.2003 passed by the District Forum, Haridwar dismissing the complaint filed for grant of damages / compensation under Carrier’s Liability Insurance Scheme on account of alleged loss by way of spilling of petrol from the two chambers of oil tanker No. UP 10B / 8118 which met with an accident on 24.10.2001 at about 5:00 p.m. near Sanoli Khurd, Panipat. 2. We have heard the Learned Counsel for the appellant – complainant, to be referred as appellant and the Learned Counsel for the respondent – insurer, to be referred as respondent in the later part of the judgment and have carefully perused the material on record in the light of the factual and legal aspects of the case. 3. The District Forum was of the view that the appellant failed to adduce reliable evidence to show that 7000 litres of oil spilled from the tanker at the time of the accident. In arriving to the said conclusion, reference was made to the evidence of the spot surveyor who had not noticed any sign of spill over of large quantity of petrol at the site of the accident. Learned Counsel for the appellant persuasively argued that the District Forum did not consider the evidence in proper prospective and merely went by the observation of the spot surveyor who failed to notice that the petrol spilled from the tanker after the accident. Having considered the evidence on record, it need to be stated at the outset that the submission of the Learned Counsel for the appellant is not sustainable. The reason being that the bonafides of spot surveyor Sh. Manmeet Singh Makkar could not be questioned on the basis of the material on record. His report dated 29.10.2001 (Paper Nos. 64 to 66) is elaborate and categorical to show that the spot survey was made at about 10:30 A.M. on 25.10.2001, whereas the accident had taken place at about 5:00 P.M. the preceding day i.e. 24.10.2001 and by the time the spot survey was made, the appellant had shifted the tanker from the site of the accident on the pretext that the shifting was done to avoid leakage of petrol. The surveyor has, however, not noticed any sign of spilling of petrol on the road or at the accident site. The surveyor has, however, not noticed any sign of spilling of petrol on the road or at the accident site. The spot survey was made within few hours from the accident and spilling of large quantity of 7000 litres of petrol would not have gone unnoticed in view of the fact that the inflammable liquid must have spread over in a very large area at the accident site. As is not disputed, the appellant had not lodged any FIR of the accident and it is immaterial if non-filing of the FIR did not detract the respondent from finalizing the claim preferred for the damage caused to the vehicle / tanker. Nevertheless, the omission to lodge an FIR of the accident has material bearing in the matter of the instant claim based on Carrier’s Legal Liability Insurance. The reasons being that the petrol is a highly inflammable substance and is also hazardous in nature; that in case large quantity of 7000 litres of petrol were to be spilled from the tanker at the site of the accident there was an apprehension of some unfortunate incident of fire taking place thereby causing considerable damage to the property, life and also the environment in and around the site of the accident and that the expected unfortunate incident or event was bound to prompt the appellant to report the matter to the police so that he may not be held liable for any rash and negligent attitude if being booked for such act of commission and omission. Therefore, non-lodging of the FIR in the peculiar circumstances of the case assume great importance and it in turn tell upon the credibility and bonafides of the appellant as regards his claim about the loss due to spilling of petrol is concerned. This fact coupled with no sign of spilling of petrol at the site of the accident therefore can safely be taken to belie the claim of the appellant and considering the facts and circumstances of the case, the District Forum, in our opinion was fully justified in coming to the conclusion that the spot survey report of Sh. Manmeet Singh Makkar sufficiently establish falsity of the claim of the appellant. It need to be stated here that the spot surveyor by his affidavit dated 21.02.2003 (Paper Nos. Manmeet Singh Makkar sufficiently establish falsity of the claim of the appellant. It need to be stated here that the spot surveyor by his affidavit dated 21.02.2003 (Paper Nos. 62-63) reiterated the correctness of his survey report and the factual aspects, as regards the accident, observed and reported by him in his report referred above. 4. Learned Counsel for the appellant drew our attention to the report of the surveyor Sh. Arvind Yadav to bring home his point of view that the leakage of 7000 litres of petrol from the accidental tanker was confirmed by the surveyor and that this piece of evidence support the appellant’s case. We see no merit in this argument because as is evident from surveyor’s report dated 12.02.2002 (Paper Nos. 68 to 71), 7000 litres shortage of the petrol was confirmed on the basis of the inspection of the compartments of the tanker as conducted by the authorities of the depot of the oil company and where the tanker had been shifted by the appellant. The surveyor made the inspection on 30.10.2001, i.e., after six days of the accident when the tanker had been shifted to the depot of the oil company and he could not ascertain independently as to what actually had happened to the quantity of petrol of the two compartments of the tanker during these six days and particularly when no sign of spilling of petrol was noticed at the site of the accident that too even after few hours of the accident by the spot surveyor Sh. Manmeet Singh Makkar. Therefore, the report of the surveyor Sh. Arvind Yadav who was entrusted the job under Carrier’s Legal Liability Insurance claim also failed to salvage the situation for the appellant. Here it need to be mentioned that there is nothing on record to indicate that soon after the accident or we may say within few days, the appellant reported the matter of alleged spilling of petrol from the tanker to the respondent and thus the conduct of the appellant also run counter to his apparently afterthought and made up claim about the loss by spilling of petrol at the time of the accident. 5. Further, six photographs of the accidental vehicle/tanker (Paper Nos. 5. Further, six photographs of the accidental vehicle/tanker (Paper Nos. 91 to 93) brought on record by the appellant no doubt show the vehicle lying at left side down position but no sign of spilling of petrol is visible in these photographs. We cannot imagine that despite alleged spill over of large quantity of 7000 litres of petrol, no sign of the inflammable liquid at the site was possible in the photographs which had been taken soon after the accident and before the vehicle was, with the help of crane, brought to natural position to be shifted in haste from there even before the arrival of the spot surveyor. In fact, these photographs relied upon by the appellant also militate against his claim and lent credence to the inference drawn above against the appellant. 6. For the reasons aforesaid and the material on record, we do not think that the District Forum returned an incorrect finding that there was no deficiency in service on the part of the respondent in repudiating the claim of the appellant. We are convinced that the appellant’s claim was not bonafide and it was rightly repudiated by the respondent. There is no merit in this appeal and the same is liable to be dismissed. 7. Appeal is dismissed. No order as to costs.