B.P.KATAKEY, J. - (1.) The petitioner, who is doing the business of transporting petroleum products under the name and style of M/s Betala Transport Organisation and who entered into a contract of insurance with the respondent insurance company, for which a carriers liability policy was issued for the period from 14.05.1990 to 13.05.1991, has by the present petition prayed for declaring a clause in such policy to the effect that the insurance company would be liable only if the fire or accident has arisen on account of negligence of the Insured or negligence or criminal act of his servants, ultra vires Section 23 of the Contract Act and Section 55 of the Marine Insurance Act, with a further prayer to direct the respondent insurance company to satisfy the claim of the petitioner to the tune of Rs. 5,62,999/- with interest.
(2.) The petitioner entered into a contract of insurance with the respondent insurance company, for which the Carriers Liability Policy No. 321107/000/00007/46/00016/91 had been issued effective from 14.05.1990 to 13.05.1991, whereby and whereunder the company agreed to indemnify the Insured against his legal liability for actual physical loss of or damage to goods or merchandise directly caused by fire and/or accident to the vehicle bearing Registration No. AMZ-5798, of which the petitioner is the registered owner, while such goods or merchandise are actually transported through the said vehicle. Such indemnification, however, was subject to the condition that the fire or accident has arisen on account of the negligence of the Insured or negligence or criminal act of his servants and the vehicle is damaged by such fire or explosion or accident and the claim in respect thereof is admitted under the motor comprehensive insurance policy covering the vehicle. The relevant portion of such policy of insurance is reproduced below: Now 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 or endorsed thereon the Company hereby agrees to indemnify the Insured against his legal liability for actual physical loss of or damage to goods or merchandise directly caused by fire and/or accident to the vehicle registered under No. AMZ 5798 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 leading of cargo on the vehicle and will be inforce until unloading of the cargo at the discharging point or expiry of 3 days after the first arrival of the vehicle at the destination town whichever may first occur. Provided that the liability of the Company shall not exceed the sum of Rupees One lac in respect of any one accident or series of accidents arising out of any one event or occurrence nor the sum of Rupees One lac in respect of all claims arising during any one period of insurance but the Company will, in addition, pay all costs and expenses incurred with its written consent in defending any claim made against the Insured.
(3.) On 19.10.1990 i.e. during continuance of such policy the said vehicle bearing Registration No. AMZ-5798 met with an accident near Chowrnguri village, Bijni when it proceeded towards Guwahati from Bongaigaon loaded with 14000 litres of ATF (Petroleum Products) of Indian Oil Corporation Ltd., for which the petitioner lodged the claim before the respondent insurance company. Since the claim of the petitioner had not been settled, he approached the State Consumers Dispute Redressal Commission (State Commission) at Guwahati complaining deficiency in service on the part of the respondent insurance company, which proceeding was registered as C.P. Case No. 12/1996, claiming an amount of Rs. 5,62,999/-, which includes the principal claim amount and the interest and the damages. In the said proceeding the respondent insurance company filed the written statement taking the stand that since the accident did not occur on account of the negligence of the Insured or negligence or criminal act of his servants, the insurance company is not liable to indemnify the insured for the actual damages caused, in view of the conditions in the Carriers Liability Policy issued. The State Forum thereafter, on 07.04.2001 by following its earlier decision in Betala Transport Organisation (M/s.) Vs. The Oriental Insurance Co. Ltd. & Ors. : 1998 (4) GLT (CP) 6 has dismissed the said proceeding, against which the petitioner however did not file appeal before the National Consumers Disputes Redressal Commission (National Commission) under Section 19 of the Consumer Protection Act, 1986. The petitioner thereafter filed the present writ petition with the prayer as noticed above.;