K.C. Gupta, President:
1. This appeal has been directed by the opposite parties against order dated 18.9.2000 passed by Consumer Disputes Redressal Forum, Sirsa (hereinafter to be referred as District Consumer Forum), vide which the complaint of respondent (complainant) was accepted with costs of Rs. 1,000 and appellants were directed to pay compensation equivalent to price of 4200 ltrs. of the product and as assessed by Bharat Petroleum to the tune of Rs. 90,678.
2. Briefly stated the facts are that respondent (complainant) is a sole proprietorship firm whose proprietor is Subash Chander. It carries on business of transportation at Mandi Kalanwali. It is owner of truck tanker No. HR-39/2725 which is being used for transporting high speed diesel oil and petrol from Mumbai to any place in India.
3. It was next averred that respondent purchased a carrier legal liability policy from the appellants from their branch at Mandi Dabwali for the aforesaid tanker vide cover note No. 844772 effective from 11.12.1996 to 10.12.1997 on consignment of all kinds of diesel, A.T.F., petroleum products and all other types of oil and liquid products in the course of transit by tank lorry to anywhere in India, for a sum of Rs. 5,25,000.
4. It was next averred that the said tanker was carrying 24000 litres low lead M.S. from Mumbai to Hisar and the same was consigned by M/s. Bharat Petroleum Corporation Ltd. to be transported to M/s. Bharat Petroleum Corporation Ltd., Hisar Depot, on 6.1.1997. In the way, there was breakdown of the tanker truck on 9.1.1997 and it was parked on the road by the driver without caring traffic rules and a T.P. Recovery van (crane) bearing No. RJ 27-E-0511 came from rear side and hit the tanker truck negligently parked by the driver, resulting in loss of low lead M.S. which spread over the road. However, the driver in order to escape from his criminal liability colluded with the local police and got recorded a FIR against the crane driver. On receiving information on 21.1.1997, it approached branch office of appellants at Mandi Dabwali which appointed Mr. Nilesh Vanawat, surveyor and loss assessor, Udaipur who inspected and surveyed the spot and found that there was a total loss of 20153.43 litres which had flown on road causing loss of Rs. 75,495.30. Besides this loss, there was damage to the truck tanker but the appellants repudiated the claim vide letter dated 29.1.1998 on the ground that there was no negligence on the part of the respondent firm, so, there was violation of condition No. 5 of the policy and as such it was not entitled to any claim but they granted claim to the respondent in respect of own damage considering the licence of the driver of respondent firm to be valid one.
5. Alleging deficiency in service, the complaint was filed.
6. Appellants contested the complaint and stated that since, accident had taken place due to negligence of the crane driver and the driver of respondent firm was not at fault, so, the claim has been rightly repudiated and as such there was no deficiency on its part.
7. Parties adduced their evidence by way of affidavits.
8. After hearing Counsel for the parties, District Consumer Forum vide order dated 18.9.2000 accepted the complaint with costs of Rs. 1,000 as stated in the earlier part of the judgment.
9. Aggrieved by the said order, opposite parties have filed the appeal.
10. We have heard Counsel for appellant Mr. Ajay Sood, Counsel for respondent Mr. Niranjan Singh and carefully gone through the file.
11. Ex. C-2 is the complaint which was lodged by Roop Singh, driver of the respondent firm on 18.1.1997 at about 10.15 p.m. It is stated in it that tanker No. HR-39-2725 started on 9.1.1997 from Mumbai after filling petrol in it for going to Hissar and he was the driver of the said tanker and near bay-bridge situated on National Highway 8, the gear broken down and it was parked on the roadside and repair of gear box was being carried on 18.1.1997 when crane No.RJ 27E 0511 came from rear which was being driven at high speed, struck against the back side of the tanker and, thus, caused the accident and petrol started leaking from the tanker and spread over the road. Upon his statement case under Section 279, 337, IPC bearing No. 18/97 was registered by the police. Thus, according to the version contained in Ex. C-2, accident had been caused by the rash and negligent driving of the driver of crane bearing No. RJ 27E0511 and the version of proprietor of respondent firm that the driver had colluded with the police and had falsely got challanned the crane driver and in fact accident had taken placed due to negligence of driver of the tanker near Keshriaji on Udaipur-Ratanpur route, MHW-8 is not believable. Therefore, the truck tanker was standing on the roadside and work was being carried to repair the gear box but all of sudden the TP recovery van (crane) which was being driven rashly and negligently came from behind and struck the tanker from the rear side. Possibly there cannot be any negligence on the part of truck tanker driver if some vehicle had struck the truck tanker behind when it was not in motion.
12. Ex. R.11 cover note shows that it was subject to terms and conditions of the company policy. Ex. R.10 contains terms and conditions of carriers liability insurance policy. It reads as under :
âNow this policy witnesseth that during the currency of this policy or any further period for which it may be in force, subject to the limits, terms, provisions, exclusions, exceptions, and conditions contained herein endorsed thereon the company hereby agrees to indemnify the insured against his legal liability for actual physical loss or damages to goods or merchandise directly caused by fire and/or accident to the vehicle registered under the No.ââ whilst such goods or merchandise are actually transported in the said vehicle provided that fire or accident has arisen on account of negligence of the insured or negligence or criminal act of his servants and further provided that the vehicle is damaged by such fire or explosion or accident, and a claim in respect thereof is admitted under the motor comprehensive insurance policy covering the vehicle. The cover will commence with the loading of cargo on the vehicle and will be in force until unloading of the cargo on the discharge point or expiry of 7 days after the first arrival of the vehicle at the destination town whichever may first occur.â
13. Therefore, according to it, the Insurance Company is only liable when there is loss or damage to the case property by fire or accident and further the accident had taken place due to negligence of insured or criminal act of servant and further the vehicle is damaged due to fire or explosion or accident. Since, the accident had taken place due to negligence of crane driver and not the truck tanker driver, so, there is violation of the terms of the policy and as such appellants are not liable under carriers liability insurance policy.
14. There is another aspect of the matter also. The oil belongs to M/s. Bharat Petroleum Corporation Ltd. There is no subrogation/assignment letter from M/s. Bharat Petroleum Corporation Ltd. that with respect to the goods they had allowed the respondent to file complaint. The present complaint had not been admittedly filed by M/s. Bharat Petroleum Corporation Ltd. There is no allegation or evidence that Bharat Petroleum Corporation had claimed amount for the loss of oil from the respondent. In such circumstances we are doubtful that respondent is entitled to file the complaint, being carrier. The damage to its vehicle has already been paid.
15. Hence, in view of the discussion above, we hold that the order of District Consumer Forum is illegal and same is set aside. Consequently, appeal is accepted and the complaint is dismissed.
16. Copies of this order be communicated to the parties, free of charge.