AT HYDERABAD.

F.A. 1850/2007 against C.C.  555/2007, Dist.. Forum-III, Hyderabad.

Between:

Md. Shamshuddin

S/o. Md. Khayamuddin

Age: 46 years, Lorry Owner

No. AP 13 W 8591.

R/o. Shop No. 6, Mamu Transport

Darussalam, Hyderabad.                            ***                         Appellant/

                                                                                                Complainant.  

.                                                                  And

The  Oriental Insurance Company Ltd.

Branch Office-VIII

Jain Estate, Parklane

Secunderabad – 500 003.

Rep. by its  Branch Manager.                     ***                         Respondent/       

                                                                                                Opposite Party.

Counsel for the Appellant:                          M/s. V. Gourisankara Rao.

Counsel for the Resps:                               M/s.  S. Agastya Sarma.

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

MONDAY,  THIS THE  TWENTY EIGTH DAY OF JUNE TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

*****

1)                 Appellant is unsuccessful  complainant.

2)                The facts leading to filing of the appeal are  that the complainant the appellant herein  insured his goods carrying lorry  with the respondent insurance company covering the period from  16.2.2005 to 15.2.2006  for Rs 8,41,700/- vide  photostat copy of policy  Ex. A7.     While so on 9.10.2005 while it was carrying chemical products it met with accident.   On a report the police registered a case in crime No. 7/2005 followed by panchanama.  When the said fact was intimated to the insurance company  it had appointed a surveyor who found that the driver who was driving the vehicle at the material date of accident  does not contain endorsement to carry hazardous goods endorsement ,  which is required to drive any vehicle carrying  hazardous goods vide Ex. A19.   When the claim was repudiated the complainant filed the complaint claiming compensation of Rs. 8, 41,700/- with interest, business loss of Rs. 6 lakhs and Rs. 50,000/- for  unjust repudiation of claim  in all Rs. 15 lakhs. 

3)                 The insurance company resisted the complaint alleging that the complainant in fact filed O.P. No. 1257/2006 before MACT-cum- IInd Addl. Chief Judge, City Civil Court, claiming compensation of Rs. 12,42,394/- on the same cause of action.   The said fact was suppressed.   The vehicle was carrying hazardous goods besides inflammable material and the driver had no valid driving license as required under M.V. Act and Rules and therefore not entitled to any compensation, and prayed for dismissal of the complaint with costs.

4)                 The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A19 marked while the insurance company filed the affidavit evidence of it Senior Divisional Manager and got Exs. B1 to B17 marked. 

5)                 The Dist. Forum after considering the evidence placed on record opined that the driver was not having requisite valid driving license and therefore not entitled to any compensation and consequently dismissed the complaint. 

6)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.   The complaint  before the MACT-cum- IInd Addl. Chief Judge, City Civil Court, Hyderabad was filed  on a wrong advice.  Later it was withdrawn on 24.9.2007 much before passing of orders on 16.11.2007.    Hypo-porous chemical that was carried in the vehicle was a non-hazardous chemical, and therefore the driver who was having driving license was valid and therefore entitled to compensation. 

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

8)                 The only question that centres around is whether the vehicle was carrying hazardous goods, and the driver was  having requisite and valid driving license to drive the vehicle? 

9)                  The fact that the vehicle was carrying chemicals viz.,   10 drums of  Mythelene Dychloride,  10 drums of Terra Hydro Furen, 20 bags of Pottasium  Permanganate,  10 drums of Benzyle  Chloride, four  drums of  M. Butyle  Acetate,  10 drums of  Sodium Borohydrade,  and 2 carboys of  Ethyle Acetate was  not in dispute.   The lorry was caught fire and was completely damaged.   It was  only goods  carrying commercial vehicle vide policy Ex. A7.    In order to carry hazardous and flammable goods the complainant ought to have taken permit to carry these chemicals.   The list of hazardous and toxic chemicals under table-III of Central Motor Vehicle Rules, 1989  is  as follows:

                    1.       Benzyl chloride              -        Toxic

                   2.       Ethylacetate                   -        Flammable

                   3.       Methyl chloride              -        Toxic

                   4.       Tetrahydrofuran             -        Toxic & flammable.

The chemicals  that were being transported are all toxic and flammable chemicals as per the above list.     The driving license Ex. B1 of the driver does not carry any endorsement that he was authorized to drive the above said vehicle.   Though a certificate was obtained that there is no separate provision to issue permit to carry hazardous goods vide Ex. B13,  Table-III of Central Motor Vehicle Rules contemplates such an endorsement.  When such endorsement is required to carry the hazardous and toxic chemicals,  and that  the driver was carrying the hazardous and toxic chemicals without endorsement it must be held that the driver was not having valid driving license to drive the said vehicle. 

10)               The Dist. Forum after considering that the driver was not having valid driving license to drive the vehicle carrying hazardous and toxic chemicals as stipulated in Table-III of Central Motor Vehicle Rules  justified in rejecting the case of the complainant.    We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard.    There are no merits in the appeal.

11)               In the result the appeal is dismissed.   No costs.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  28. 06.  2010.

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