Jammu & Kashmir High Court
Oriental Insurance Co vs M/S. Sital Singh Isher Singh ... on 4 August, 2021
Sr. No. 266
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CJ Court
Case: OWP No. 425 of 2013
Oriental Insurance Co, Ltd ...Petitioner(s)/Appellant(s)
Through: Sh. D.S.Chauhan, Advocate
v/s
M/s. Sital Singh Isher Singh Khorana .... Respondent(s)
Through: Sh. L.K.Sharma, Sr. Advocate with
Sh. Mohit Kumar, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
1. Heard Sh. D.S.Chauhan, learned counsel for the petitioner and Sh.
L.K.Sharma, Senior counsel assisted by Sh. Mohit Kumar, learned counsel for
the respondent.
2. The Insurance Company has preferred this writ petition under Article
226 of the Constitution of India challenging the judgment and order dated
01.06.2011 passed by the Court of Divisional Forum, Jammu under the J&K
Consumers Protection Act and the judgment and order dated 14.01.2013 of the
State Consumers Disputes Redressal Commission, Jammu upholding the above
order with a slight modification with regard to rate of interest.
3. The respondent-claimant, on account of the accident and damage caused
to the vehicle as well as to the goods under transportation, preferred a claim
under the Carrier Legal Liability Policy. The Surveyor of the Insurance
Company on a spot inspection assessed the net amount of loss at Rs. 2,76,907/-
vide his report dated 9.1.2009. On the basis of the said report, the Divisional
Forum awarded compensation of Rs. 2,74,907/- with interest @ 7% per annum
with effect from February 2008 and Rs. 5,000/- as cost of litigation.
4. The State Commission upheld the aforesaid award but held that the
award of interest is not wholly justifiable and the same was reduced.
5. The submission of Sh. Chauhan, learned counsel for the Insurance
Company is two-fold. First, the claim of the respondent fell within the accepted
clause as negligence of the driver was not proved. Secondly, the claimant is
entitled only to the actual loss of kerosene and not for the whole of the
kerosene that was carried in the vehicle.
6. The Divisional Forum upon consideration of the entire material on
record found that the vehicle was being driven recklessly by the driver, he
could not spot the road divider near Fruit Mandi, Narwal, Jammu. The vehicle
collided and climbed over the road divider. It overturned resulting in damage to
the vehicle and leakage of the kerosene. The said finding speaks for itself that
the driver of the vehicle was negligent and careless, even though he may be
driving at a low speed. Thus the negligence of the driver stands proved which
has been confirmed by the appellate forum.
7. In view of the aforesaid submission that the respondent is not entitled to
any claim, as he has failed to prove the negligence of the driver is not
sustainable.
8. In regard to the second submission that the forum could not have
awarded damages on the whole of the kerosene carried in the vehicle rather
ought to have limited to the actual loss, it is to be noted that the damage caused
to the vehicle and on account of the leakage of the kerosene oil was assessed
by the surveyor of the Insurance Company. It is therefore, bound by the said
assessment. It is not the case of the Insurance Company that the surveyor has
committed any error in submitting the report or assessing the loss. It has not
raised any objection against the said assessment. Moreover, it has come on
record that the vehicle was loaded with 12000 litres of kerosene oil and the Oil
Company M/s Indian Oil Corporation Ltd. Jammu deducted an amount of
Rs.2,76,907/- on account of shortage of kerosene due to the above
accident/leakage.
9. It is further important to note that the petitioner has approached this
court in exercise of its extraordinary discretionary jurisdiction and the court in
exercise of the said jurisdiction has limited power of judicial review and cannot
act as a Court of Appeal to minutely consider the evidence and to record its
own finding contrary to those of the authorities below.
10. The amount involved in the matter is too petty and, as such also, we do
not deem it necessary to exercise our discretionary jurisdiction.
11. The writ petition is accordingly dismissed as devoid of merits.
(PUNEET GUPTA) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Jammu
04.08.2021
Tilak
Whether the order is speaking? : Yes/No.
Whether the order is reportable? : Yes/No.
