A.  P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD

FA  701/2013   against  CC. No. 188 OF 2012   on the file of the District Consumer Forum II, Krishna District at Vijayawada.

Between   :

Smt. C. V. N. Rajeswari,

W/o Mallikharjuna rao,

Hindu, 58 years,

D. no. 54-18-3/4, Sivapuram colony

Bharat Gas Lane,

Vijayawada -8                                               ..          Appellant/complainant

And

1. M/s. Shriram  General Insurance Company Limited

BE-8 EPIP, RIICO Industrial area,

Sitapura, Jaipur - 302 022, Rajasthan               

1. M/s. Shriram General Insurance Company Ltd

Divisional office, D. No. 52-1/1-1, Ring road,

Veterinary colony, Vijayawada -8 ..          Respondents/Opp. Parties

Counsel for the Appellant              :           M/s. GVNRSSS Vara Prasad

Counsel for the Respondents       :           M/s. S. N. Padmini

Coram           :

                        Sri S.Bhujanga Rao                .     ……Hon’ble Member

                    And

Sri R. Lakshminarasimha Rao…       Hon’ble Member

                                    Thursday, the Fifteenth Day of May

Two Thousand Fourteen

  Oral Order   :   ( As per Sri R. Lakshminarasimha Rao , Hon’ble Member )

****

1)                The  appeal preferred by the complainant against the order of the District Forum dismissing the complaint on the premise that the driver of the insured vehicle did not possess endorsement in his driving licence  to drive the vehicle carrying hazardous goods at the time  the Lorry met with accident.

2)                The case of the complainant in brief is that  she got her tanker bearing registration number AP 16 TB 6611 of EICHER -35, 31 KHDS make insured for a sum of Rs.16  lakhs covering the period from 14.03.2011 to mid night of 31.03.2012 .  The Lorry met with an accident on 06.05.2011 near Yerravaram junction  while it was transporting Bitumen from Hindustan Petroleum Corporation Limited, Visakhapatnam to SIPCOT, Industrial park in Sriperambadur taluk, Kanchipura district,

3)       The Tanker was damaged in the accident. When the fact of accident was intimated,   the insurance company appointed a surveyor.   The appellant got the vehicle repaired by M/s Sudhir Motor Works, Vijayawada by spending an amount of Rs.6,04,130/-.The respondent-insurance company repudiated the claim on 6.05.2011 on the ground that the driver was not eligible to drive such class of vehicle. The appellant got issued notice dated 19.12.2012 and assailing the  repudiation  of her claim she  filed the complaint claiming Rs. 6,04,130/-with interest @ 24% p.a. from 6.5.2011  together with compensation of Rs.1,00,000/- towards mental agony etc  and costs.

4)                The respondent-insurance company resisted the case admitting issuance of the issuance of policy, it has contended  that the vehicle no. A P 16 TB 6611  Eicher Motor Tanker was a goods carrying vehicle.  On receipt of intimation of accident it had appointed V. Srinivas, B.E. (Mech), surveyor and loss assessor.   He conducted survey and submitted his report. Later the appellant submitted claim on 23.08.2011. At the time of the accident, the insured vehicle was carrying Bitumen coal which is hazardous goods and the driver of the vehicle did not possess any endorsement in his driving licence which was issued authorizing him to drive LMV(non-transport),HGV, HPV(transport).  Hence, its repudiation was just and therefore prayed for dismissal of the complaint with costs. 

5)                The appellant in proof of her case filed her affidavit  and got Exs. A1 to A-13 marked while on behalf of the respondent- insurance company,  its Divisional Manager filed his affidavit and got Exs. B1 to B 13 marked. 

6)                The District Forum after considering the evidence placed on record opined that the goods that was transported was not  hazardous goods, and therefore it opined that  the driver need  to have endorsement as required under Rule 9(3) of Central Motor Vehicle Rules, and dismissed the complaint.

7)                Aggrieved by the order of the Forum, the complainant has filed appeal contending that the District Forum did not appreciate either facts or law in correct perspective Therefore she  prayed for allowing  of the complaint with costs. 

8)                The learned counsel for the respondent has filed written arguments.

9)                The point that arises for consideration is whether the order of the District Forum is vitiated by mis-appreciation of fact or law? 

10)              It is an undisputed fact that the vehicle which was insured is a goods carrying commercial vehicle covering  the period from 14.03.2011 to 13.3.2012  for a sum of Rs. 16 lakhs.    It is also not in dispute that  on the date of accident i.e., on  06.05.2011   it was carrying Bitumen coal.

11)              On receipt of claim intimation the respondent had appointed V. Srinivas , surveyor in the first instance to make spot survey.    He noted that the vehicle was carrying Bitumen.  The driver was having driving license to drive LMV ( non-transport) and HGV, HPC ( transport)only.     He assessed the loss at Rs.2,21,700/-.   The insurance company after receipt of report repudiated the claim on the ground that  the vehicle was carrying hazardous goods.  The driver holding license was not having requisite license to drive the vehicle loaded with  hazardous goods.    In order to prove that the driver was not holding requisite endorsement in his driving licence, the respondent filed Ex. B-6 issued by the licensing authority, Vijayawada.   

12)              The learned counsel for the respondent has relied on the following decisions:

i)        National Insurance Company Ltd through its Deputy Manager Vs. S. Amritharaj, 2012 (3) CPR 316 (NC)

ii)       Oriental Insurance Co. ltd through its Branch Manager Vs. Valsa George rep. by her Power of Attorney holder and another 2012 (3) CPR 390 (NC)

13)              In both the above decisions it was held that an endorsement in driving licence of the driver of a vehicle transporting hazardous goods is essential.

14).             It  may state that Rule  137 of  Central Motor Rules  mention various goods specified as dangerous or hazardous  goods  under table-III.    Bitumen  is noted at Sl. No. 2028 appended to the description of list of hazardous goods.   It is described as  flammable, hazardous goods.   

15).             In her   affidavit, the senior executive   of  the  respondent insurance company at para (3) classified   Bitumen as hazardous goods.  The appellant has not denied that Bitumen  does not come under table-III appended to  Rule 137(4) of  CMV Rules, 1989.   Even otherwise Bitumen  is also  hazardous mentioned at Sl. No. 2028.     It is not in dispute that the driver who was driving the vehicle at the time of accident  was only holding LMV(non-transport),HGV, HPV(transport) heavy goods vehicle  (Transport)  license  without endorsement as required under Rule  9(3) of CMV Rules, 1989 which  reads as follows: 

9 (3) The licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving license of the applicant to the effect that he is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life.

16).             The driver as such cannot be said to be having the requisite driving license to drive the lorry carrying hazardous goods.    The appellant ought to have got the endorsement on the driving license of the driver while he was employed to carry the hazardous goods.   Undoubtedly it is fundamental breach of the conditions of the insurance policy.  

17)              In the result the appeal is dismissed confirming the order of the District Forum. There shall be no separate order as to costs.

1)   

MEMBER             

2)         

 MEMBER            

                                                                             Dated : 15/05/2014.