DISTRICT CONSUMER FORUM, DUMKA

CC No.09 of 2015

Suresh Ghiria  …………………………….. Complainant

Vs

Branch Manager,  United Insurance Company, Ltd Deoghar and another ………OP

  21.07.2016                                                         ORDER

      By filing this complaint, under the provision of the Consumer Protection Act 1986, the complainant has sought relief to direct the Ops to indemnify the  loss of goods(Diesel) during transportation amounting to Rs.521895/  and damage to the transporting vehicle assessed to Rs128025/total amount Rs.649920/ along with interest @ 18% besides, compensation amount Rs.100000/which he is said to be entitled to. 

      Case of the complainant is that he is the owner of the vehicle Ashok Leyland Oil Tanker bearing registration No.JH04F/6023. He purchased a GCV Public Carrier Package Policy having sum assured Rs.13,10,000/vide Policy No.2103043113P105092753 effective from 26.11.2013 to  25.11.2014. He has alos purchased a   Carrier’s Legal Liability Policy having sum assured to the tune of Rs.07,00,000/vide Policy No.210304/46/13/70/00000124  covering the same period from 26.11.2013 to  25.11.2014e. There was contract of indemnity between the complainant and the OP insurer for which the insurance premium was paid. It is  said that during the validity of the said insurance policy, the said tanker lorry was being used for transportation of petroleum product under licence no. P/EC/JH/11/5272 (P311250) dated29.01.2013 valid up to 28.01.2016 granted by Govt. of India

     It is further said that one Naba Kant Mandal, an authorized Transporter of BPCL, hired the said Tank Lorry for carrying diesel from supply point of BPCL, Dhanbad to delivery point Shree Ram Fuels at village Sukhjora, PS Raneshwar,Dumka. There was loaded 12000 litre I.e 12KL high speed diesel on the said Tanker on 26.11.2013 under invoice no.1211123265 dated26.11.2013 issued by Bharat Petroleum Corporation Ltd. Dhanbad Depot valued Rs.665046/. It said that on the way to its delivery point, Shree Ram Fuels at village Sukhjora, PS Raneshwar,Dumka, on 27.11.2013, it turned turtle  in order to save a bull on the black pitch road near village Kusumghatta as   a result whereof the said Tanker damaged and the loaded diesel licked and spread over the road. The driver Sri Gangadhar Manjhi immediately gave information regarding accident to the jurisdictional PS, Masalia where SD Entry no.494/2013 dated 27.11.13 was recorded. The matter after enquiry, was found true by the Officer-in-charge of the Police Station as per SD Entry no.513/13 dated 28.11.13. An information of the accident was also given to the OP no.1 on 27.11.13 who in its turn appointed its Surveyor to assess the loss. Sri A.K.Jana, the appointed surveyor thoroughly investigated and assessed the loss and submitted his report on26.02.14 having found the claim of the complainant genuine in respect of the damage of  vehicle as well as damage of diesel. Again another surveyor, Sri Ashok Agrawal was deputed to re-inspect the tanker lorry and submitted his report dated 01.04.14 supporting the final survey report of Sri A.K.Jana. The complainant is said to have paid the lost value of licked diesel (9.417 KL)to say Rs.521895/ to the transporter, Sri Naba Kant Mandal.

     It is further said that the Insurance Company (OP) in order to delay the matter again deputed surveyor Sri Nand Kishor Pd. Verma for verifying the Driving Licence of the driver, Gnagadhar Manjhi who in his turn investigated the same and submitted his report dated 29.09.14 having found the DL as well as the permit genuine. Inspite of all of these the OP delayed the matter on some pretext or another and ultimately vide its letter no. 1432/15 dated 10.02.15 closed the claim of the complainant as “No Claim”. It is said to be absolutely wrong that the complainant had withdrawn his claim vide letter dated 06.02.15 and also equally wrong to say that the complainant had not complied the requirements for his claim. It is as such said that the OP company willfully neglected to settled the claim causing mental tension and agony and cause deficiency in service. Hence this complaint.  

     The OP entered its appearance and filed their  versions and contested the case of  complaint as not maintainable either in fact or on law. There is formal denial of statements of the complainant petition as a whole.  The emphatically denied fact in para 5 is that the statement made in para 4(vii) of the complaint petition is false and concocted as would be evident from the fact that the driver was authorized to drive hazardous goods vehicle for the period 31.03.14 to 02.08.16, whereas the accident took place on 27.11.2013 i.e four months earlier. Similarly in para 7 of the written version it is pleaded that the statement in para 4(xiv) of the complaint petition is wrong and concocted. As a matter of fact, the OP1 after verifying the documents as submitted by the complainant it were found insufficient and as such the claim of the complainant was rightly repudiated vide letter no.1432/15 dated 10.02.15 

We have heard the parties and have gone through the record.

There is no dispute regarding existence of Policy as referred to above. There is no denial of accident as well. The dispute is only in regard to possessing valid Driving licence by the driver on the date of occurrence (27.11.13). The repudiation letter no. 1432/15 dated 10.02.15 of the OP discloses that it was repudiated on account of serial no.1 and 3.

1. Inspite of letters/reminders sent to you, you have not complied with the required papers/documents
2. We are closing your claim file, on account of the following reason:-

Breach of policy conditions-Material to loss

     So far compliance of serial no. 1 is concerned, it is not pressed nor agitated in the version of the OP. The only reason to repudiate the claim is breach of policy specifically not possessing the valid driving licence by the driver on the date of accident. The original DL of the driver Gangadhar Manjhi is filed before us.

Learned lawyer for the OP drew our attention towards the endorsement made on the DL as 31.03.2014 which is after the alleged accident.(27.11.2013).

     On the other hand the learned lawyer for the complainant submitted that the driver had undergone three days training as per rule 9 of the Central Motor Vehicle Rules,1989in regard to which the certificate has been issued by the competent authorities conducted under the Indian Oil Corporation describing the training period from 17.12.2012 to 19.12.2012 of the trainee Sri Gangadhar Manjhi under licence no. 41/2007/Prof. The original certificate is filed and before us. There is nothing to doubt it. But from scrutiny of DL we find that the endorsement for driving Hazardous goods is made over it by the Licencing authority only on 31.03.2014 i.e much after four months of the accident. An application by the driver said to have been got received in the office of RTO, Dumka is filed showing date 26.09.2013. It appears to be hand written in original. May as it be, the certificate regarding training leaves no doubt that the driver had taken training as perrule 9 of the Central Motor Vehicle Rules,1989 before the alleged incident. The endorsement is however made over the DL late on 31.03.2014. In this regard the case of the complainant is that the driver after completing the training as prescribed under rule 9 of the Central Motor Vehicle Rules,1989 , had applied much earlier on 26.09.2013 a receiving in the office of the DTO, Dumka is filed. The driver Gangadhar Manjhi has sworn in affidavit wherein he has supported the fact of having taken successfultrainingorganized by Indian Oil Corporation Ltd Dhanbad during the period 17.12.12 to 19.12.12 meant for hazardous goods carrier. He has also supported the fact that after got the training he applied for endorsement over his DL with training certificate to the DTO office, Dumka on 26.09.2013, a copy of which he has filed and supported it. The another witness is the complainant himselfwho has supported the facts mentioned in the complaint petition. No evidence is however, filed on behalf of the OP to discard the oath taken statement of the complainant’s witnesses.

     The copies of Surveyor’s report are filed on behalf of the complainant. There were deputed three surveyors by the OP to assess the loss as well asto investigate the genuineness of the DL. Sri Nand KIshorPd Verma (Investigator and Tracer) in his report dated 29.09.14 has observed and reported that on the basis of the Permit certificate (memo) vide no. 543 dt. 23.09.2014 and DL. No. Nil Dt.20.092014 the Permit and D/L are found True and Genuine. There is also filed copy of Particulars of Driving LIcence issued by the Licencing Authority DTO, Dumka. It describes as follows:

PATRICULARS OF DRIVING LICENSE

                                                                                                           Date:- 20/09/2014

1. Driving license No.                            D/UN0- 41/07/Proff/Dumka
2. Date of issue.                                    07/02/07
3. Name of driver.                                 Sri Gangadhar Manjhi
4. Father’s Name                                  S/o Dumeshwar Manjhi
5. Address                                            At Tora  Ps. Jama , Dist – Dumka.
6. Allowed to drive                               Light motor vehiclel 
7. Endorsement if any                            Allowed to  drive HMV only ; Approved to drive Hazardous                                                                                                                                                                     Goods vehicle also  
8. Badge No./P.S.V.                            
9. Renewal & Validity                           Renewal up to 02/08/2016

Learned lawyer for the complainant relied upon a decision of the Hon’ble Madras High Court rendered in National Insurance Co. Ltd vs K.Ramasamy on 27 October,2006 in Civil Miscellaneous Appeal No.1988 of 1999. In that case the Hon’ble Court has considered the implication of rule 9 of the Central Motor Vehicle Rules,1989 though for the third party claim. Extracts of para 13. of the decision may be referred to herein:

13. Even otherwise the absence of endorsement as provided for in Rule 9 of the Rules in Ex.R-2- licence will not enable the insurer/appellant herein to avoid its liability for the following reasons:-

1. In 2004 ACJ 1 (referred to supra) the Honourable Supreme Court has observed that if on facts, it is found that accident was caused solely because of some other unforeseen of intervening causes like mechanical failures and similar other causes having nexus with driver not possessing requisite type of  licence , the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence . In the same decision, it has been further observed that minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches or inconsequential deviation in the matter of use of vehicles and such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground of denying benefit of coverage of insurance to the third parties.
2. If the facts of the case on hand are considered in the light of the above said observations of the Honourable Supreme Court, it has to be pointed out that it has not been established by acceptable evidence that the want of above said endorsement was the main or contributory cause for the accident. The absence of the said endorsement in the driving licence-Ex.R-2 is only a minor and inconsequential deviation. With regard to licensing conditions and therefore it would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties. Further, it has to be pointed out that to avoid its liability to the insured, the insurer has to prove that the insured was guilty of negligence and failed to exerecise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. The insurer must also establish Breach on the part of the owner of the vehicle and the burden of proof where for would be on the insurer. Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant time, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident.

     No any other breach of contract is brought to our notice except the endorsement on the DL on 31.03.14 although the required training was successfully certified by the Indian Oil Corporation Ltd to the driver prior to the occurrence. There is no evidence brought on behalf of the OP to show that the main cause or contributory cause to the accident was due to want of endorsement on the DL.

Considering the facts and circumstances of the present case at hand we are of  the view that repudiation of the claim of the complainant by the OP insurer  is based on technical ground which in our view is not legally sustainable.

The two Survey reports dated  26.02.14 of Mr. Ashok Kumar Jana who have assessed the loss to the vehicle insured is estimated to the tune of Rs.128025/ whereas on account of loss goods he has remarked and opined as follows:

1. The Tanker Jh- 04F / 6023 of Mr. Suresh Kumar Ghiria was coming from BPCL, Dhanbad towards Shree Ram Ruels, Ranishwar and in the way at Kusumghata village the vehicle capsized into LD side and caused the Vehicle sustained various damages and about 73.2% of Diesels (HSD) was blown out & lost.
2. The Tanker Driver Mr. Gangadhar Manjhi holding the Driving Licence allowed with LMV & HMV vehicles and he had also completed the Training for Safe Transportation of Hazardous IOC Products from Indian Oil Corporation Limited in December 2012.

    Assessing the product lost, he has calculated lost quantity 8778 Lts.  and its value @ 55.495 per litre Invoice rate, it is Rs.487135.00/ only.

    The Surveyor report is to be preferred to and safely be relied upon. In this way we direct the OP ,  United Insurance Company, Ltd Deoghar to pay the amount Rs. 128025/ on account of damage to the vehicle and Rs.487135/ on account of product lost total Rs.6,15,160/ (six lac fifteen thousand one hundred and sixty). We also allow Rs.12000/ (twelve thousand) as compensation and two thousand as litigation cost.              

       The order shall be complied within one month from receiving the copy of this order or from the date of producing a copy to the  OP , United Insurance Company Ltd, Deoghar by the complainant failing which the Complainant will be at liberty to take  recourse u/s25 and 27 of the consumer Protection Act, 1986.

    Let free copy of the order be supplied to the parties.                     .