| Address: Vadodara, Gujarat |
10 April 2010
COMPLAINANT:- AGE OCCUPATION
Ilaben Hasmukhbhai Chokshi Adult Business
C-2 [censored]al Appt, Nr Alka Rest
R C Dutt Road, Alkapuri
Vadodara-390007- Gujarat
Ph.[protected]
m[protected]
ila.[protected]@yahoo.com
V/S
OPPONENT:-
New India Assurance Co. Ltd.
DO-5,
First Floor, Anal Appartment,
Salatwada, Kothi Char Rasta,
Vadodara.
Ph.[protected]
COMPLAINT UNDER THE PROVISION OF CONSUMER PROTECTION ACT
The above named Complainant most humbly submits the fact of the complaint as under.
1. That the Complainant is carrying on the business from the above address mention in the title clause and running her livelihood. The complainant is the owner of a Tanker no GJ06 Z 8619 and has insured her vehicle from the opponent insurance company. The opponent New India Assurance Co. Ltd. is engaged in the business of General Insurance and carrying on its business from the various Branches and Divisional Offices all over India and has also its one of the Divisional Office situated in the title clauses.
2. That the complainant had obtained Motor Policy for her Tanker no GJ06 Z 8619 from the opponent New India Assurance Co. Ltd. for the period 28.04.2008 to 27.04.2009 vide policy no. 222200 / 31 / 08 / 01 / 00001287, which is a goods carrying (other than 3 wheeler policy) and had paid a premium of Rs.23,514/-. The insured declared value as per the policy is Rs.8,78,316/-.
3. That the said Tanker no GJ06 Z 8619 is used by Ashapura Transport Co. for transporting the goods by road. That on 12.05.2008 during night hours in the said Tanker no GJ06 Z 8619 a chemical named to be HCL 16% Diluted (by product) was transported belonging to the consignor Viraj Corporation of Vadodara to be transported at the consignee Raymond UCO Denim Pvt. Ltd. Yavatmal, Maharashtra. It is pertinent to note that this HCL 16 % Diluted (by product) was purchased by Viraj Corporation from Bromofine Chem Pvt. Ltd. situated at plot no. 184, GIDC Estate, Nandesari and as per the tax invoice of Bromofine Chem Pvt. Ltd. the total quantity purchased was 15000 Kgs and the assessable value per unit was Rs.0.001 per Kg and total price of the goods was Rs.15/- and adding all other taxes the gross total of the entire HCL 16% Diluted (by product) was Rs.18/-. Now this goods were to be transported at Yavatmal as per LR no 2129 dated 13.05.2008. It is pertinent to note that this goods were transported in the insured vehicle Tanker no GJ06 Z 8619.
4. That the accident took place on National Highway no 6, near Sujit Hotel, Navapura, Nandarbar between the Tanker no GJ06 Z 8619 and Truck no GJ12 Y 5502. The accident was reported to the Navapur Police Station vide FIR no 64/2008. Because of this accident the insured Tanker no GJ06 Z 8619 was heavily damaged and therefore, the damage vehicle was carried to the Cargo Motors, Ranoli by towing machine and for that complainant had paid Rs.12,000/- in cash to Gurunanak Crain Services, Ranoli, Dist-Baroda on 15.05.2008 and the opponent insurance company was informed about the said accident resulting into the damage of the insured Tanker no GJ06 Z 8619. The complainant submitted the motor claim form along with required papers such as R.C.Book of Tanker no GJ06 Z 8619, Copy of the policy, Driving license of the driver Mr. Rameshwar Malbari Sanat, estimate of the damage parts of the chassis of Tanker quantified in Rupees by Cargo Motor P. Ltd. and also estimate of damaged tank issued by Ishan Equipment Pvt. Ltd.
5. That the opponent insurance company had appointed surveyor who completed his job and has also assessed the loss cause to the Tanker no GJ06 Z 8619. That there were several exchange of letters between the complainant and opponent insurance company as well as personal discussion in the office of the opponent insurance company and all the time all the queries raised by the opponent insurance company were complied by the complainant. The opponent insurance company had raised the query vide their letter dated 25.07.2008 that the driver Mr.Rameshwar Malbari Sanat was not holding endorsement for Hazardous Goods in his driving license and also not taken any training for handling such hazardous material as the HCL was carried in the said Tanker no GJ06 Z 8619 which is considered as a Hazardous and Toxic Chemical. Further the opponent insurance company had also requested to obtain the confirmation from the RTO that whether the material carried in the Tanker no GJ06 Z 8619 was hazardous or non hazardous. In turn the complainant replied their query vide letter dated 31.07.2008 and explained them that the material which was being carried in a Tanker no GJ06 Z 8619 is a HCL 16% diluted by product and the rate is Rs.1 per M ton. Further as per the purchase order of Raymond Uco Pvt. Ltd. where the material was to be dispatched/transported, they have stated that the material is a diluted by product which is used for washing cloths and also the authenticate proof of material was submitted as per the Shreeji Analaytical Lab who has certified that the material carried in the Tanker no GJ06 Z 8619 was non hazardous and non flammable and non toxic. The complainant requested the RTO Vadodara to issue the certificate regarding the goods to be hazardous or non hazardous goods and also submitted the letter issued by the insurance company and chemical analysis report of Shreeji Analytical Lab. The RTO Vadodara has made the endorsement upon the said letter that they cannot issue the certificate as demanded by you.
6. The complainant had produced a report of Shreeji Analytical Lab dated 05.07.2008. This certificate was issued to Bromofine Chem Pvt. Ltd, Nandesari, Baroda who had given the sample of Dilute Hydrochloric Acid on 04.07.2008. This certificate also suggest that it is only 16% concentrated. Therefore this material is non toxic and non hazardous and non flammable and this material is used for domestic purpose (cleaning).
7. The complainant requested the officers of the opponent insurance company vide their several letters to settle her legitimate claim supported by documentary evidence. However the opponent insurance company vide their letter dated 26.09.2008 repudiated the liability under the guise of “That the vehicle at the time of accident was carrying HCL. As per M.V. Act HCL 30% comes under hazardous category material for which endorsement for hazardous material is required on motor driving license. The driver of the vehicle at the material time of accident Mr. Rameshwar Sanat was holding MDL no MH[protected] which was not endorsed for carriage of hazardous goods nor has the driver under gone the required training for this purpose. As such the driver at the material time of accident was not holding a valid and effective driving license and the vehicle was therefore being driven in contravention of M.V. Act and the breach of policy conditions.”
8. It is most humbly submits that the opponent insurance company has repudiated the liability under the policy and the complainant is deprived of her legitimate claim. The complainant states and submits that the material carried in the Tanker no GJ06 Z 8619 was a non hazardous, non toxic, non flammable goods. Therefore, the endorsement in the driving license of the driver driving the Tanker no GJ 06 Z 8619 was never required. Further a delivery challan and Tax invoice issued by Bromofine Chem P. Ltd. to the Viraj Corporation dated 12.05.2008 proves on the record that the material is HCL Dilute by product which is15000 kgs and it is dispatched through Tanker no GJ06 Z 8619. Further as per the certificate dated 22.06.2008 issued by Bromofine Chem P. Ltd to Viraj Corporation also proves that the material was dilute hydrochloric acid is of by product. The same is in diluted form with very mild concentration and normally used for cleaning purpose. Even as per the Shreeji Analytical Lab Report the material is non hazardous, non toxic, non flammable goods and used for domestic purpose cleaning and by handling this material there is no irritation and burning on hands and in eyes. Further it is most humbly submitted that GACL is dealing in the business of production and selling of hazardous chemicals. Particularly in the case of Hydrochloric Acid 30% concentrated, instructions for transportation of Hazardous chemicals are given by the company itself. Therefore, whenever the HCL which carries 30% concentrated then it becomes hazardous goods. In the present case as per the Shreeji Analytical Lab the material carried in the Tanker no GJ06 Z 8619 at the time of accident was 16% which is in diluted form by product HCL and therefore it is not a hazardous goods.
9. The complainant’s Tanker no GJ06 Z 8619 after accident was never a road worthy and it was totally damaged and it cannot be used and therefore it was total loss to the complainant, which the opponent insurance company were supposed to indemnify. However the opponent insurance company has repudiated the liability under the policy. Therefore, the entire damaged chassis of the tanker along with the damaged tank of insured vehicle no GJ6 Z 8619 was sold to Shivam Traders of Ranoli on 16.10.2008 for Rs.4,30,000/- and the said amount has been received by the complainant. The value of the insured vehicle no GJ06 Z 8619 as per the policy was Rs.8,78,316/- and the present complainant has received an amount of Rs.4,30,000/- by way of salvage value of the said tanker. Therefore the complainant is entitle for Rs.8,78,316 – Rs.4,30,000 = Rs.4,48,316/- from the opponent insurance company. Further the damaged insured vehicle was kept in the godown of the Cargo Motors Pvt. Ltd. and the complainant had to pay holding charges (Demurrage Charges) of Rs.10,000/-. The details of amount claimed is as under
(a) Under the head of total loss Rs.4,48,316/-
(b) Under the head of towing charges Rs. 12,000/-
(c) Under the head of Demurrage Charges Rs. 10,000/-
(d) Under the head of Mental agony Rs. 30,000/-
Total Rs.5,00,316/-
10. The opponent insurance company has repudiated the liability in spite of all these legal and valid grounds were submitted by way of documentary evidence and thereby has shown the deficiency in the services by not settling the legitimate claim of the complainant.
11. That the contract of insurance was concluded within the jurisdiction of this Hon’ble Forum and the opponent’s office is also situated within the jurisdiction of this Hon’ble Forum. Further the complainant is the consumer within the definition of Consumer Protection Act. Hence the Hon’ble Forum has the jurisdiction to entertain and hear the present complaint.
12. That the applicant reserves his right to add, amend or alter the complaint or any part thereof as and when required.
13. That more will be submitted at the time as when need.
PRAYER :
IT IS THEREFORE PRAYED THAT
A) Allow this complaint and order the opponent to reimburse the amounts of Rs.5,00,316/- to the complainant under the policy along with interest and cost.
B) Any other relief, which this Hon’ble Forum deems fit in the interest of justice.
PALCE :- VADODARA
DATE :- 10 April 2010
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