Tamil Nadu

South Chennai

CC/16/2015

M/s.K.Karuppaiah - Complainant(s)

Versus

M/s.Universel Sompo General Insurance Co Ltd., - Opp.Party(s)

M/s.R.Dhanalakshmi

03 Mar 2020

ORDER

Date of filing      : 07.01.2015                                                                                                                       Date of disposal : 03.03.2020

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.16/2015

DATED THIS TUESDAY THE 03^RD DAY OF MARCH 2020

                                 

Mr. K. Karuppaiah,

S/o. Mr. Karuppaiah Thevar,

No.45, Gandhi Road,

Sankar Nagar,

Pammal,

Chennai – 600 075.                                                       .. Complainant.                          

..Versus..

 

Universal Sompo General Insurance Co. Ltd.,                                                    Represented by its Zonal Manager,

Branch / Zonal Office,

Flat No.103, Vajram Towers, 1^st Floor,

New Door No.44, Old Door No.39, Halls Road,

Egmore,

Chennai – 600 008.                                                  ..  Opposite party.

 

Counsel for the complainant     : M/s. R. Dhanalakshmi & others

Counsel for the opposite party : M/s. R. Ravichandran & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.15,00,000/- towards compensation for deficiency in service with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he is a Transport Operator having lorry and goods carrier, tankers, Petroleum Tankers vehicles plying in and around Tamil Nadu transporting products including Bitumen and Ashphalt from various refineries to all over India.   The complainant submits that the lorry bearing Registration No.TN 22 AV 0276 was involved in an accident while transporting Bitumen resulting damages to the tune of Rs.5,49,208/-.   The complainant submitted the claim petition No.CL 12050332.   The vehicle was insured with the opposite party policy No.2315/52009343/01/000 for the period from 31.01.2013 to 30.01.2014.   Another, lorry bearing Registration No.TN 22 CC 7032 while plying empty and driven by its driver namely; Mr. Karnan from Madurai to Chennai met with an accident resulting damages to the tune of Rs.54,850/-.   The complainant submitted a claim petition No.CL 1307767.  The vehicle was insured with the opposite party vide policy No.2315/51658968/01/000.   The lorry bearing Registration No.TN 22 BH 5879 while plying empty and driven by Mr. Sathish from Tavanikare-Karnataka to Chennai also involved in an accident resulted damages to the tune of Rs.2,63,870/-.   The complainant submitted a claim petition No.CL 13049715.  The vehicle was insured with the opposite party vide policy No.2315/52003750/01/000.  The complainant submits that all the three accidents were duly informed to the opposite party.   The complainant was in the fond hope that the above said claims would be duly honoured and the claim amount would be disbursed. But the opposite party issued a communication repudiating the claim in respect of the above said three vehicles namely;

(i) dated:03.06.2014 related to the vehicle bearing Registration TN 22 AV 0276

(ii) dated:03.06.2014 related to the vehicle bearing Registration TN 22 CC 7032

(iii) dated:15.05.2014 related to the vehicle bearing Registration No.TN 22 BH 5879 without verifying the nature of claim, name of the driver, mechanically as a verbatim for all the 3 vehicles stating that

        “the driver of the said vehicle is not having valid License to drive vehicle which carries Hazardous materials”  for which, the complainant sent reply dated:04.07.2014 in clear terms that the said products like Bitumen is not a hazardous one in this context, letters and certificates as issued by the respective refineries establishing the fact.   The driver of the lorry is having valid driving license.   The complainant submits that the rejection of the claim by the opposite party caused great inconvenience.  The complainant submits that due to the rejection of the claims, the complainant incurred a loss which cannot be quantified and it is roughly estimated the loss for each vehicle of Rs.1,00,000/- per month.   Hence, the complainant is entitled to claim a sum of Rs.4,00,000/-, Rs.2,00,000/- and Rs.31,982/- respectively for which, the pecuniary loss is calculated from the date of accidents on 25.02.2013, 13.01.2014 & 11.05.2013.   Since, the opposite party has not come forward to pay the claim amount, the complainant issued Advocate notice for which, the opposite party has not sent any reply.   The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The opposite party states that the complainant has availed three Goods Carrying Package Policy namely; No.2315/52009343/01/000, No.2315/51658968/01/000 & No.2315/52003750/01/000 in respect of the vehicles bearing Registration Nos.TN 22 AV 0276, No.TN 22 CC 7032 & No.TN 22 BH 5879 with the opposite party.   The policy specifically provided for a Driver’s clause which stipulates that the driver of the insured vehicle should hold a proper and effective license at the time of accident as required under Rule 3 of Central Motor Vehicles Rules, 1989.   The opposite party states that the complainant has made three claims with the opposite party in respect of the accident caused to the aforesaid insured vehicles on various dates namely;25.02.2013, 11.05.2013 & 13.01.2014 respectively.   The claim was made by the complainant after appointment of individual Surveyor for assessment of loss and damages.  The opposite party states that as per the documents and photographs in the Survey Report, it was found that the Insured vehicle is a ‘Bitumen carrier’ which falls under hazardous transport category and the driver of the insured vehicle should possess special endorsement in his driving license to drive such vehicle.   But the driving license produced by the complainant having no such endorsement hence, the Driver is not having valid license for driving transport vehicle of hazardous category.  

3.     The opposite party states that he repudiated the three claims vide letters dated:15.05.2014 & 03.06.2014.   In Rule 9 of Central Motor Vehicle Rules, 1989 stipulates the qualifications to be fulfilled by a driver for driving a vehicle with hazardous goods and the license of such drivers should possess an endorsement for driving hazardous goods obtained from licensing authority.   The Policy has to be read in harmony with such rules and it cannot over-ride the statutory rules and regulations.   Hence, the insured driver on the date of accident not possessing effective license to drive vehicle with hazardous substance is disqualified under driver’s clause specified in the policy, thereby he has committed breach of Policy condition.   The repudiation of claims by the insurer is therefore proper and does  not amounts to any deficiency in service.   On receipt of claims, the opposite party scrutinized the documents filed by the complainant and appointed Independent Surveyor to assess the loss.   The denial of claim was based on proper reasoning on the ground of breach of policy conditions.  Therefore there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A9 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.B3 are marked on the side of the opposite party.

5.      The point for consideration is:-

Whether the complainant is entitled to a sum of Rs.15,00,000/- towards compensation for deficiency in service with cost as prayed for?

6.      On point:-

Both parties filed their respective written arguments.   Heard their Counsels also.  Perused the records namely; the complaint, written version, proof affidavits and documents.   The complainant pleaded and contended that he is a Transport Operator having lorry and goods carrier, tankers, Petroleum Tankers vehicles plying in and around Tamil Nadu transporting products including Bitumen and Ashphalt from various refineries to all over India for his livelihood.   Further the contention of the complainant is that the lorry bearing Registration No.TN 22 AV 0276 was involved in an accident while transporting Bitumen resulting damages to the tune of Rs.5,49,208/-; was insured with the opposite party vide policy No.2315/52009343/01/000 as per Ex.A1 for the period from 31.01.2013 to 30.01.2014.   Similarly, lorry bearing Registration No.TN 22 CC 7032 while plying empty and driven by its driver, Mr. Kannan from Madurai to Chennai met with an accident resulting damages to the tune of Rs.54,850/-; was insured with the opposite party vide policy No.2315/51658968/01/000 as per Ex.A2.   Likewise, lorry bearing Registration No.TN 22 BH 5879 while plying empty and driven by its driver, Mr. Sathish from Tavanikare-Karnataka to Chennai involved in an accident resulted damages to the tune of Rs.2,63,870/-; was insured with the opposite party vide policy No.2315/52003750/01/000 as per Ex.A3.   

7.     Further the complainant contended that all the three accidents were duly informed to the opposite party and the claims were made as per claim petition Nos.CL12050322, No.CL13007767 & No. CL13049715 claiming various amounts like Rs.5,49,208/-, Rs.54,850/- & Rs.2,63,870/- respectively towards damages.   But the opposite party refused to pay the claim amount and rejected the claim stating that

        “the driver of the said vehicle is not having valid License to drive vehicle which carries Hazardous materials”  for which, the complainant sent reply dated:04.07.2014 as per Ex.A7 in clear terms that the said products like Bitumen is not a hazardous one.  The letters and certificates issued by the respective refineries as per Ex.A4 proves that Bitumen is not a hazardous one.   The driver of the lorry having valid and effective driving license on the date of accident.   The fact also absolutely clear that Bitumen is not coming under a hazardous substance.   Hence, the complainant is entitled to the claim of damages towards the accident.   Further the contention of the complainant is that the rejection of the claim by the opposite party caused great inconvenience establishes deficiency in service.   Further the contention of the complainant is that due to the rejection of the claims, the complainant incurred huge loss which cannot be quantified and it is roughly estimated the loss for each vehicle Rs.1,00,000/- per month.   Hence, the complainant is entitled to claim a sum of Rs.4,00,000/-, Rs.2,00,000/- and Rs.31,982/- respectively towards pecuniary loss; which is calculated from the date of accidents (viz.) 25.02.2013, 13.01.2014 & 11.05.2013 respectively. Since, the opposite party has not come forward to pay the claim amount the complainant was compelled to issue Advocate notice as per Ex.A8 for which, the opposite party has not sent reply.  Ex.A9, bills shows the goods carried by the vehicle.   Hence, the complainant filed this case.

8.     The learned Counsel for the opposite party would contend that the complainant has availed three Goods Carrying Package Policy namely; No.2315/52009343/01/000, No.2315/51658968/01/000 & No.2315/52003750/01/000 in respect of the vehicles bearing Registration Nos.TN 22 AV 0276, No.TN 22 CC 7032 & No.TN 22 BH 5879 with the opposite party.   The policy specifically provided for a Driver’s clause which stipulates that the driver of the insured vehicle should hold a proper and effective license at the time of accident as required under Rule 3 of Central Motor Vehicles Rules, 1989.   Admittedly, the above said vehicles were insured with this opposite party were met with an accident on various dates namely; 25.02.2013, 11.05.2013 & 13.01.2014.   Due claim was made by the complainant after appointment of individual Surveyor for assessment of loss and damages.  Ex.B2 is the copy of Survey Report.  Further the contention of the opposite party is that as per the documents and photographs in the Survey Report, it was found that the Insured vehicle is a ‘Bitumen carrier’ which falls under hazardous transport category and the driver of the insured vehicle should possess special endorsement in his driving license to drive such vehicle.   But the driving license produced by the complainant having no such endorsement hence, the Driver is not having valid license for driving transport vehicle of hazardous category.   Hence, the opposite party repudiated the three claims vide letters dated:15.05.2014 & 10.07.2014 as per Ex.B3. Rule 9 of Central Motor Vehicle Rules, 1989 stipulates the qualifications to be fulfilled by a driver for driving a vehicle with hazardous goods and the license of such drivers should possess an endorsement for driving hazardous goods obtained from licensing authority.   The Policy has to be read in harmony with such rules and it cannot over-ride the statutory rules and regulations.   Hence, the insured’s driver on the date of accident not possessing effective license to drive vehicle with hazardous substance is disqualified under driver’s clause specified in the policy, thereby has committed breach of Policy condition.  

9.     But on a careful perusal of Ex.A4, copy of certificate issued by the refineries dated:18.09.2009 which reads as follows:-

        “This is to certify that Bitumen (Asphalt) comes under unclassified petroleum product as per explosive norms, and it is non-dangerous and non-hazardous product”.

The copy of certificate issued by the refineries dated:22.05.2014 which reads as follows:-

          “This is to certify that Bitumen Grade VG10 (80/100) and VG30 (60/70) Comes under the category of NON DANGEROUS PETROLEUM / HEAVY PETROLEUM and is not HAZARDOUS by nature”.

The copy of certificate issued by the refineries dated:07.08.2002 which reads as follows:-

          “This is to certify that Bitumen grade 80/100 comes under the category of NON DANGEROUS PETROLEUM/HEAVY PETROLEUM and is not HAZARDOUS by nature”.

The copy of certificate issued by the refineries dated:23.07.2014 which reads as follows:-

          “This is to certify that BITUMEN GRADES VG 10(80/100) and VG 30 (60/70) comes under the category of NON DANGEROUS PETROLEUM / HEAVY PETROLEUM and is not HAZAROUS by nature”.

The letter of the Registrar, Indian Institute of Technology Madras dated:21.06.2018 which reads as follows:

          “6.    During compaction, the bituminous mixtures are spread and compacted in the temperature range of around 135 to 90 degrees C.  During this stage, bitumen available in the bituminous mixture is not a hazardous material as long as the required safety precaution related to compaction are followed”.

10.    The learned Counsel for the complainant cited the decision reported in:

THE HIGH COURT OF JUDICATURE AT MADRAS

CMA Nos.2154 & 21555 of 2014

and MP Nos.1 & 2 of 2014 in CMA No.2154 of 2014

Between

M. Sivalingam

-Versus-

Mrs. Revathy & others

Held that

          “The opinion of the experts in the field alone is final and even this Court cannot substitute the opinion of the experts.   When such is the position, unnecessarily the experts need not be called to the trial Court and they need not undergo cross examination by the other side, when an expert, that too, from a neutral Government Institution, gives an opinion, looking upon the nature of the material transported by the owner of the vehicle”.

11.    Further, the driver of the vehicle having valid driving license do not require the alleged endorsement proves the deficiency in service of the opposite party.  Since, the Bitumen is a Petroleum product and not a hazardous material vide expert opinion dated:21.06.2018 which reads as follows:

“6. During compaction, the bituminous mixtures are spread and compacted in the temperature range of around 135 to 90 degrees C.   During this stage, bitumen available in the bituminous mixture is not a hazardous material as long as the required safely precaution related to compaction are followed”.

Further the contention of the opposite party is that the compensation claimed is exorbitant and imaginary.   The manner of assessment of damages is unknown to law.   But on a careful perusal of Ex.A6 rejection of the claim which is absolutely silent regarding the quantum of damage.   Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall pay a sum of Rs.5,49,208/-, Rs.54,850/- & Rs.2,63,870/- being the three claims of the complainant along with interest at the rate of 9% p.a. from the date of filing of this complaint (i.e.) 07.01.2015 to till the date of this order (i.e.) 03.03.2020 and to pay a sum of Rs.50,000/- towards compensation with cost of Rs.10,000/- to the complainant.

In the result, this complaint is allowed in part.  The opposite party is directed to pay a sum of Rs.5,49,208/-, Rs.54,850/- & Rs.2,63,870/- totalling a sum of Rs.8,67,928/- (Rupees Eight lakhs sixty seven thousand nine hundred and twenty eight only) being the three claims of the complainant along with interest at the rate of 9% p.a. from the date of filing of this complaint (i.e.) 07.01.2015 to till the date of this order (i.e.) 03.03.2020 and to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for mental agony with cost of Rs.10,000/-  (Rupees Ten thousand only) to the complainant.

 The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 03^rd day  March 2020. 

 

MEMBER                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	02.02.2013	Copy of insurance cover and Policy No.2315/52 009343/01/00 for vehicle No.TN 22 AV 0276
Ex.A2	18.09.2012	Copy of insurance cover and policy No.2315/51658968/01/000 for vehicle Number TN 22 CC 7032
Ex.A3	02.02.2013	Copy of insurance cover and policy No.2315/52003750/01/000 for vehicle Number TN 22 BH 5879
Ex.A4	03.08.2011 & 23.07.2014 issued by IOC, 05.08.2011, 07.08.2002 & 22.05.2014 issued by BPC & 18.09.2009 issued by HPC	Copy of Certificates issued by the Refineries
Ex.A5	31.03.2014	Copy of the sanction order given by the opposite party relating to the similar claim made earlier with the same opposite party in respect of vehicle bearing Registration No.TN 22 BH 9504 and awarded damages of Rs.97,308/- in favour of the complainant
Ex.A6	15.05.2014 & 03.06.2014	Copy of letters issued by the opposite party rejecting the claim petition
Ex.A7	04.07.2014	Copy of explanation letter sent by the complainant to the opposite party
Ex.A8	01.08.2014	Copy of legal notice with acknowledgement card
Ex.A9		Copy of receipts

 

 

OPPOSITE PARTY SIDE DOCUMENTS:- 

Ex.B1		Copy of goods carrying Vehicle Insurance Policy with terms and conditions
Ex.B2	22.03.2014 & 18.09.2013	Copy of Survey Reports
Ex.B3	10.07.2014 & 15.05.2014	Copy of repudiation letters

 

 

MEMBER                                                                                                                                                                                     PRESIDENT