1.       This revision petition has been filed under section 21(b) of The Consumer Protection Act, 1986 in challenge to the Order dated 30.12.2013 of the State Commission in appeal no. 214 of 2012 arising out of the Order dated 27.02.2012 of the District Commission in complaint no. 401 of 2010.

2.       Heard the learned counsel for the complainant (the petitioner herein) and the learned counsel for the insurance co. (the respondents herein), and perused the record including inter alia the Order dated 27.02.2012 of the District Commission, the impugned Order dated 30.12.2013 of the State Commission and the petition.

3.       Briefly, the complainant’s vehicle, a pick-up, was insured with the insurance co. The premium was paid, the policy was valid. During the subsistence of the policy, the vehicle met with an accident (with a minibus) and suffered complete damage. The claim was repudiated on grounds that at the relevant time the vehicle was being used for carrying diesel, which falls under ‘hazardous goods’, without a valid road permit and without an endorsement on the driver’s license apropos ‘hazardous goods’.

The District Commission allowed the complaint on contest. It held that at the time of the accident the vehicle was carrying empty drums of diesel and ‘hazardous goods’ per se were not being transported, hence there was also no need for any endorsement re ‘hazardous goods’ on the driving licence. It ordered the insurance co. to pay a sum of Rs. 3,51,290/- (75% of the insured value) on non-standard basis for the completely damaged vehicle with interest at the rate of 7% per annum from 26.11.2010 i.e. from the date of institution of the complaint along with compensation of Rs. 1000/- and cost of litigation of Rs. 1000/-.

Appeal filed by the insurance co. was allowed by the State Commission. It held that at the time of the accident the vehicle was transporting drums filled with diesel which falls under ‘hazardous goods’ and its driver was not having an endorsement on his driving licence re ‘hazardous goods’. Consequently the complaint stood dismissed.

4.       The State Commission has given detailed reasons for holding that ‘diesel’ falls under ‘hazardous goods’. In this regard the learned counsel for the two sides do not have any difference of opinion, both agree that ‘diesel’ falls under ‘hazardous goods’. Both of them also agree that for ‘hazardous goods’ relevant road permit and endorsement on the driver’s licence are mandatory. The only point of contention is regarding whether or not the vehicle was in fact carrying diesel. Learned counsel for the complainant primarily relies on the police report filed by the police before the concerned judicial magistrate after completion of its investigation in which it is clearly stated that the vehicle was carrying “empty” diesel drums showing thereby that diesel per se was not being transported. Learned counsel for the insurance co. solely relies on the first information report which according to her gives a connotation that filled diesel drums were actually being transported. In rebuttal learned counsel for the complainant contends that the articulation in the first information report does not give a clear and categorical suggestion that filled diesel drums were being transported, and in any case the subsequent fact finding police investigation conclusively shows that empty drums were in fact being transported.

5.       It is admitted that the claim per se is genuine, there is no dispute on the accident having happened and the vehicle having suffered complete damage. It is also admitted that the subject vehicle’s driver was not in any manner at fault for the accident i.e. lack of expertise on his part was not the reason for the accident. It is further admitted that the vehicle, a pick-up, was, in the ordinary course, transporting normal goods only i.e. it was not being used exclusively or regularly for carrying ‘hazardous goods’. It is not even the insurance co.’s case that the vehicle was solely dedicated to transporting ‘diesel’ / ‘hazardous goods’. In the ordinary course this did not require a road permit or endorsement on the driving licence apropos ‘hazardous goods’. From the first information report (which is in Hindi), though not unambiguously and clearly so stated therein, an impression could also be drawn that the diesel drums being transported were filled with diesel. However, the police report, filed subsequently by the police, after its investigation, and accepted by the concerned judicial magistrate, leaves not much scope for interpretation. It categorically states that “empty” drums were being transported. The facts and circumstances in their entirety weigh in favour of the complainant, the preponderance of probability is that actually empty drums were being transported. That being so, there appears hardly any need for a permit or endorsement re ‘hazardous goods’.

6.       The District Commission appears to have appreciated the facts and evidence in the correct perspective. The State Commission on the other hand appears to have erred by relying solely on the somewhat nebulously articulated first information report and by discarding outright the police report even though it was filed after subsequent fact finding investigation by the police and was even accepted by the concerned judicial magistrate. It also failed to appreciate that the vehicle was not a vehicle dedicated for earmarked for ‘hazardous goods’ and was in the ordinary course a vehicle used for transporting only normal goods for which no permit or endorsement was in fact required.

7.       Learned counsel for the complainant has also tried to touch upon another aspect of the District Commission’s Order wherein, after recording its (correct) findings that the vehicle was not transporting ‘hazardous goods’ at the relevant time of the accident, the District Commission still proceeded to reduce the claim to 75% of the sum insured even when the vehicle had suffered complete damage.

Learned counsel nonetheless submits that perhaps the District Commission intended to convey that since the claim per se was genuine and since the driver was not at fault in the accident i.e. the accident was not due to lack of expertise on his part and since the vehicle was not a dedicated carrier of ‘hazardous goods’ but was transporting normal goods in the ordinary course for which no additional permit or endorsement were required, in all eventualities 75% of the sum insured was fully admissible. He further admits that the complainant has not agitated the District Commission’s award and submits that he would be satisfied if the same is upheld.

In the wake of the above submissions, this aspect is not being examined further.

 8.      Sequel to the above, the revision petition is allowed. The impugned Order dated 30.12.2013 of the State Commission is set aside. The Order dated 27.02.2012 of the District Commission is upheld and confirmed. The insurance co. shall comply with the District Commission’s Order within six weeks from today, failing which the District Commission shall forthwith undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law.      

9.       The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel as well as to the District Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.