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2017 DIGILAW 1086 (JK)

Oriental Insurance Company Ltd. v. Santokh Singh

2017-12-22

D.K.KAPOOR, SUNIL HALI

body2017
JUDGMENT : Sunil Hali (Retd.), President This appeal has been preferred against the order dated 17th April, 2017 of the District Consumer Forum, Jammu whereby direction has been issued to the appellant herein to reimburse an amount of Rs. 1,66,984/- along with interest @ 6% per annum w.e.f. 30th January, 2016 till its final payment. The complainant has also been found entitled to the compensation of Rs. 5,000/- for causing unnecessary harassment and mental agony and litigation charges of Rs. 3,000/-. 2. In order to appreciate the controversy involved in this appeal, it is necessary to state that the complainant is a partner in M/s Allied Friends Transport Company engaged in transportation of petroleum products. Complainant (respondent herein) had obtained two policies bearing Policy No. 262202/31/2015/1686 covering the period from 11th July, 2014 to 10th July, 2015 with Carriers Legal Liability under Policy No.262202/48/2015/ 491 for the period 27th July, 2014 to 26th July, 2015. It is pertinent to mention that both the policies are different as the subject-matter/coverage in' both the policies is different. The Policy No.262202/31/2015/1686 pertains to insurance in respect of loss to the vehicle and the other policy bearing No.262202/ 48/2015/491 is Carriers Legal Liability pertaining to insurance in respect of loss to the product in the vehicle. 3. In the present case we are only concerned with the Carriers Legal Liability Policy, which envisages that in case damage is caused to the vehicle and cargo carried by it on account of fire or explosion or accident arising out of the negligence of the insured or negligence or criminal acts of the employees of the insured. In order to substantiate the plea of loss to the goods, the proof in the shape of the police challan/final police report charging that the vehicle was driven negligently by the driver. It so happened that the respondent (complainant) had obtained these two policies, which remained in force for the period mentioned in the policies. 4. The firm of the complainant had a work contract to carry petroleum product of Indian Oil Corporation as per the contract dated 28th August, 2014. It was engaged for transportation of HSD(diesel) from Jammu to Srinagar. It so happened that the respondent (complainant) had obtained these two policies, which remained in force for the period mentioned in the policies. 4. The firm of the complainant had a work contract to carry petroleum product of Indian Oil Corporation as per the contract dated 28th August, 2014. It was engaged for transportation of HSD(diesel) from Jammu to Srinagar. On 28th August, 2014 the vehicle concerned was proceeding towards Drass driven by the driver Dranter Singh met with an accident near Sumban Morh, which falls under the jurisdiction of Gund Police Station While carrying the diesel from Jammu Depot to Drass the vehicle suffered extensive damage and loss to the product carried therein i.e. HSD (diesel). It is further averred that 2573 liters of product was lost out of the total product loaded in the vehicle. The incident was reported to the Police Station Gund the matter was investigated, case DD No.10 was registered, in which, it was specifically mentioned that the damage has been found caused due to the accident. 5. As a consequence of loss, Indian Oil Corporation recovered an amount of Rs. 1,66,984/- from the complainant. On an intimation being given to the insurance company, a surveyor was deputed to assess the actual loss caused to the vehicle and the product loaded in the said vehicle. 6. A claim for recovery of this amount was lodged with the insurance company, who repudiated the claim on the ground that the essential condition for enforcing the Carriers Legal Liability Policy is that the accident should be on account of negligence of the driver. In case there is no of any court or challan produced by the police that accident was caused due to the negligence of the driver, then the claim cannot be allowed. 7. The District Forum allowed the complaint and directed the insurance company to reimburse to the complainant an amount of Rs. 1,66,984/- (which is the actual loss recovered by the insurance company from the complainant) along with interest @6% per annum w.e.f. 30th January, 2016 till its payment, compensation of Rs. 5,000/- on account of unnecessary harassment and mental agony and litigation charges of Rs. 3,000/-. This order is under challenge in this appeal. 8. While scrutinizing through the appeal and the relevant record, the controversy is within a very narrow compass. 5,000/- on account of unnecessary harassment and mental agony and litigation charges of Rs. 3,000/-. This order is under challenge in this appeal. 8. While scrutinizing through the appeal and the relevant record, the controversy is within a very narrow compass. For the purpose of delineating the actual controversy, following question is framed: Whether in absence of evidence in the shape of conviction order or police report that the driver was negligent, due to which, accident caused, can the insurance company be burdened with the liability to reimburse the amount deducted by the Indian Oil Corporation from the complainant? 9. As already submitted herein above, the Carriers Legal Liability Policy is distinct from policy, which governs loss to a vehicle on account of accident. The Carriers Legal Liability Policy pertains to the insurance of loss of the product in the vehicle. According to appellant that liability to pay arises only in case the accident is caused on account of negligence of the driver. 10. We have scrutinized the report in the shape of DD No. 10 dated 26th September, 2014 registered by the Police Station, Gund. It reveals that the vehicle suffered damage, as a result of accident. The appellant states that there is no such finding recorded by the police concerned that it was due to negligent driving of the driver, which resulted in the accident. Unless there is such a finding or report or any evidence to suggest that the accident is caused by negligence of the driver, no liability can be fastened on the insurance company. The question that calls for consideration is as to whether the liability can be raised against the appellant unless and until the negligence of the driver is proved. 11. Once a FIR is registered and the facts therein suggest that an offence is committed, the investigation in the matter has to be initiated. The process of investigation will ultimately conclude in filing of final report, which may either be closed for want of evidence or a challan may be produced after investigation. 12. The police report submitted thereby is only in the realm of allegations and not a conclusive proof of guilt of the accused. It has further scrutiny to a judicial finding, which ultimately clinches the issue. 12. The police report submitted thereby is only in the realm of allegations and not a conclusive proof of guilt of the accused. It has further scrutiny to a judicial finding, which ultimately clinches the issue. If the intention of the legislature was to await final decision of the court then it is not possible for any claimant to file a claim under these circumstances in the absence of a finding by the court. As already stated herein above, the final report which is filed in the court is already in the realm of allegations, therefore, is not a conclusive of the fact that the accused is guilty of negligence. 13. Therefore, the contention of the appellant that since there is no finding of the court nor final report submitted with respect to the alleged cause of the accident, the claim cannot be acceded. What is intended in the policy is that the accident must have caused due to negligence of the driver. The word 'negligence' has been used only to ensure that the accident was not caused by any intention but due to casualness of the driver. Therefore, at this stage when the claim is preferred, the registration of the FIR by itself is sufficient to prove that there was sufficient material to register the case, for which the investigation was launched. It is not necessary that there has to be a finding that he was negligent. It is not in dispute that vehicle has suffered damage due to the accident. This all itself is sufficient that it was due to the negligence that such accident was caused. The determination of the fact whether it was due to negligence of the driver is to be done by the court. Therefore, the findings recorded by the court below that since the accident has taken place on account of the vehicle striking the stone is sufficient to prima facie establish the negligence of the driver. 14. There is no dispute with respect to the preposition of law laid down by various judgments produced by the learned counsel titled Suraj Mai Ram Niwasil Mills (P) Ltd. vs. United India Insurance Co. Ltd and Anr. Dealing with the question that 'in a contract of insurance, the rights and obligations are governed by the terms of the said contract. There is no dispute with respect to the preposition of law laid down by various judgments produced by the learned counsel titled Suraj Mai Ram Niwasil Mills (P) Ltd. vs. United India Insurance Co. Ltd and Anr. Dealing with the question that 'in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity. There is no dispute with this preposition of law. 15. In view of this we find no error in the finding recorded by the court below. The proof in this behalf is the DD report, which acknowledges that the vehicle has suffered damage on account of accident. This is the only main issue raised in this appeal. In view of this, we do not find any force in this appeal and the same is dismissed.