BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:
HYDERABAD.
FA.NO.711 OF 2005 AGAINST C.D.NO.930 OF 2004 District Forum-I, HYDERABAD
Between:
M/s.Rajkamal Transport (South Division)
Rep. by its Managing Partner Sri D.H.Joshi,
D.No.5-4-10/2, J.N.Road, Abids, Hyderabad. Appellant/
Complainant
And
National Insurance Company Limited
Regd. Office 3, Middleton Street,
Kolkata, Policy No,550100/2000/6302424
Claim No.550100/6300171/02
Divisional Office-1, at Jhaveri Mansion
Bank Street, Koti, Hyderabad-1. Respondent/
Opp.party
Counsel for the Appellant : Sri S.Asif Pasha
Counsel for the Respondent: Mr.M.Jeevan Reddy
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
AND
SMT.M.SHREESHA, MEMBER
TUESDAY, THE EIGHTH DAY OF JULY
TWO THOUSAND EIGHT
Oral Order : (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.D.No.930/2004 on the file of District Forum-I, Hyderabad, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant is the owner of heavy goods vehicle i.e. lorry registered under M.V.Act, 1939 engaged in the business of goods from one place to another. The lorry was insured with the opposite party vide policy No.550100/2000/6302424 for a period of one year from 24-3-2001 to 23-3-2002. The complainant submitted that his lorry was carrying goods of different consignors was covered with tarpaulin tightly tied with rope coming to Hyderabad from Bhavandi, halted at Rajole in Basava Kalyan rural P.S. of Karnataka State. The vehicle suddenly caught fire. It was also carrying arsenic acid in powder form and arsenic acid does not ignite itself into flames but the vehicle was not in movement and it lead to ignition. The lorry caught fire for no fault of driver as the vehicle was stationed and it could be an act of miscreants. A police case was registered at Basava Kalyan rural police station. The cost of the lorry was estimated at Rs./4,51,118/-. The complainant made a claim to the opposite party and the opposite party deputed a surveyor to conduct spot survey and the surveyor filed his report. The opposite party repudiated the claim by letter dated 24-1-2003 on the ground that the vehicle was carrying arsenic acid as a part of parcel of goods, which are hazardous and requirement special endorsement on R.C. as well as driving lice for which they relied on the letter of R.T.A. dated 9-1-2003 wherein R.T.A. informed that driving license needs a separate endorsement authorizing the driver to drive with hazardous goods. It is the complainant’s case that the vehicle was stationed and the accident did not occur due to any act of the driver and the driver is no way responsible for the accident and there is no relevancy to the driver’s license and the grounds stated by the opposite party are not justified. Hence the complaint for a direction to the opposite party to pay Rs.4,17,118/- with 12% nterest from 1-2-2002 till the date of fire accident together with costs.
Opposite party filed counter admitted that Policy No.550100/2000/6302424 dated 23-3-2002 was issued in respect of lorry AP T 3037 and the policy is valid from 24-3-2002 to 23-3-2003. They submitted that as per the policy condition, the vehicle can be driven by an person including the insured provided the person driving holds an effective driving license and is not disqualified from holding such license. Further the vehicle must be used for carrying goods within the meaning of M.V.Act by holding a valid permit. The driver stooped the vehicle in front of his house in open area while taking meals during which time the vehicle got fire and was totally damaged. Immediately a police complaint was lodged in P.S. Basava Kalyan. They submitted that they appointed a surveyor to assess the loss and the surveyor submitted his report dated 26-12-2002. As per the survey report, the vehicle was transporting Arsenic Acid in powder form and the accident occurred due to intense external heat due to which engine might have sustained internal damages like warping etc. They submitted that at the time of accident one Mr.Anyappa, S/o.Gadappa resident of Rajol Village of Karnataka is driving the vehicle and as per the driving license he is authorized to drive HGV only and since the vehicle is carrying toxic chemical, the driver must have a valid endorsement authorizing to drive the vehicle with such hazardous chemical and also must have valid permit to transport such hazardous goods. But in this case the vehicle has no valid permit to carry such goods and without a valid permit, the owner is transporting such goods along with other articles, which is a violation of the provisions of M.V.Act and M.V.Rules and therefore the opposite party is not liable to pay the amount. However, they addressed a letter dated 1-8-2002 to Regional Joint Transport Commissioner, Hyderabad, who gave a reply on 9-1-2002 stating that if the goods are hazardous, the driving license needs separate endorsement authorizing the driver to drive under M.V.Rules. Opposite party therefore instructed the complainant to furnish such letter of authorization from the transport department and the complainant to produce any document and they have rightly repudiated the claim. Opposite party submitted that the complainant also did not file copy of F.I.R., Panchanama, final report of the concerned P.S and in the absence of such documents, no claim can be entertained. Opposite party further submitted that the Inspector’s report clearly stated that the fire accident occurred due to intense external heat due to transporting such hazardous goods and it is not correct to state that the said powder does not ignite itself into flames and submitted that there is no deficiency of service. They submitted that the complainant has to approach the arbitrator and without availing such remedy filed the complaint and also submitted that the vehicle was used for commercial purpose and therefore the complainant is not a ‘consumer’ and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A21 and B1 to B6 and the pleadings put forward, the District Forum dismissed the complaint.
Aggrieved by the said order, the complainant preferred this appeal.
The learned counsel for the appellant submitted that the District Forum erred in refusing the claim of the complainant. He submitted that the appellant’s vehicle was insured with the respondent and the policy was in force when the vehicle was burnt and the Forum erroneously held that the RTA authorities confirmed that the routine drivers should not drive vehicle carrying hazardous goods for which separate endorsement authorizing the driver to drive the vehicle is required and hence the appellant has violated the terms and conditions of the policy. The learned counsel for the appellant submitted that the vehicle was stationed and the act of driver is not at all a determining factor to negative the claim of the appellant and relied on the decision of Supreme Court in 2003 (5) Supreme Court at Page 69 wherein it was ‘when the driver of the vehicle had in no way contributed in any manner of the accident, the claim cannot be repudiated by the insurance company’ and therefore the finding of the Forum that the driver does not posses the required endorsement on the driving license to drive hazardous goods has to be set aside. He also submitted that the Forum wrongly noted that the appellant did not supply the F.I.R. Fire Brigade report, classification report of hazardous and non-hazardous goods report and original driving license for verification. He submitted that the appellant filed a claim which contains all details and all relevant papers such as driving licence copy etc. He submitted that the vehicle is burnt along with the permit, R.C. etc and the copies of F.I.R., driving license permit etc., available with the appellant and furnished along with the claim form. The learned counsel further submitted that the Forum held that the accident occurred due to external heat of dangerous goods and it is not a regular fire accident. The appellant contended that the vehicle was in stationary condition and the accident is not caused due to transport of acid power. He also submitted that the Forum wrongly held that arsenic acid powder is prohibited goods and cannot be transported against the terms of the policy. He submitted that according to M.V. Act or Rules, arsenic acid powder is categorized as hazardous goods but not prohibited goods and in the absence of any proof, the Forum held that the said powder is a prohibited item. He also submitted that Ex.A15, driver’s license needs a separate endorsement to drive the vehicle which is relied by the Forum is incorrect and submit that the permit allows the vehicle to carry all goods except prohibited ones and in the present case, hazardous goods are not prohibited goods. He also submitted that the vehicle in question is registered with RTA authorities under M.V. Act, 1939 and in the new Act which came to force in 1988, when a vehicle came up for registration, the RTA authorities have to consider the nature of goods to be carried in the said vehicle with reference to dangerous or hazardous nature to human life. He submitted that the appellant vehicle is registered prior to coming into force of the new Act and as such consideration of showing hazardous goods does not arise and relied on the decision of Supreme Court in 2003 (1) ALT page 35 (SC) wherein it was held that “there is change in definition of the ‘goods vehicle’ in 1939 Act and ‘goods carriage’ in 1988 Act” and prayed to allow the appeal.
The learned counsel for the respondent submitted that the mere fact that there was violation of the terms and conditions is substantial ground for repudiation. He relied on the judgement of the apex court in Civil Appeal No.1731/2006 in NATIONAL INSURANCE CO. LTD., v. KUSUM RAI & ORS. in which facts are as follows:
‘One Mr.Ramlal was working as a Khalasa in a taxi and was driving the
Vehicle when he possessed a licence for Light Motor Vehicle. The Apex
Court discussed the Swaran Singh & Others case reported in (2004) 3
SCC 297 and held that the owner of the vehicle cannot contend that he is
not liable to verify the fact whether the driver of the vehicle possessed
a valid licence or not? The court also observed that the victim was aged 12
years only with a poor family back ground and they might have suffered
severe mental agony and it was not appropriate to push them into another
round of litigation and held that the insurance company was not liable to
pay the claim amount as the driver was not possessing valid licence.
But, however, in the circumstances, directed the insurance company to
recover the amount from the owner in the same manner as directed
in Nanjappan’s case.
The learned counsel for the respondents further contended that since the driver was not possessing an endorsement or permission to drive the vehicle with hazardous goods, their repudiation is justified.
We have gone through the material on record. The issuance of the policy for the said lorry and its coverage is not in dispute.
The brief point that falls for consideration in this case is whether there was any breach of the terms of contract by the driver, who had a valid driving licence, but did not have an endorsement authorizing him to drive the vehicle with hazardous chemicals?
It is not in dispute that the vehicle was carrying arsenic acid power. The learned counsel for the appellant filed the chemical properties of arsenic acid powder stating that the commercial applications of arsenic acid are limited by its toxicity. It has found occasional use as a wood preservative, a finishing agent for glass and metal and a reagent in the synthesis of some dyestuffs and organic arsenic compounds. Boiling point is ‘decom > 100 degree C’. Under hazards, it is stated that it is non-flammable.
Based on this document, the learned counsel for the appellant submitted that arsenic acid powder is categorized as hazardous goods but not prohibited goods and that the permit allows the vehicle to carry all goods except prohibited goods. In the instant case, arsenic acid powder is hazardous goods but not prohibited goods. It is pertinent to note that the driver stopped the vehicle in front of his house in an open area and while taking meals, the vehicle caught fire and was totally damaged. The learned counsel for the appellant relied on the decision of the apex court reported in 2003 (5) SUPREME 71 in GHANCHI PUBINA SALIMBHAI v. METUBHA DIWANSINGH SOLANKI & ORS. in which the court observed as follows:
‘For the purpose of argument, we may also proceed on the basis
that the driver of the car did not have a valid driving licence.
Question then is: can the Insurance Company repudiate a claim
made by the owner of the vehicle which is duly insured with the
company, solely on the ground the driver of the vehicle who had
nothing to do with the accident did not hold a valid licence? Answer
to this question, in our opinion, should be in the negative. Section 149
of the Motor Vehicles Act, 1988 on which reliance was placed by the
State Commission, in our opinion, does not come to the aid of the
Insurance company in repudiating a claim where driver of the vehicle
has not contributed in any manner to the accident. Section 149(2)(a)(ii)
of the Motor Vehicles Act empowers the Insurance Company to repudiate
a claim wherein the vehicle in question is damaged due to an accident
to which driver of the vehicle who does not hold a valid driving licence
is responsible in any manner. It does not empower the Insurance Company
to repudiate a claim for damages which has occurred due to acts to which
the driver has not, in any manner, contributed i.e. damages incurred due
to reasons other than the act of the driver’.
In the instant case, the vehicle caught fire not because of any negligent act of the driver but because of some extraneous factor which is not because of any fault of the driver. Therefore, the contention of the insurance company that the appellant’s driver did not hold valid license cannot be a ground for repudiation of the claim. It is also the case of the appellant that the fire in question which caused damage to the vehicle is not due to any fault or act or omission of the driver.
The surveyor in his report stated that the vehicle was totally burnt and beyond reasonable repairs and it is highly impossible to comment bout the pre accident condition. Keeping in view that the sum assured is Rs.2,00,000/- and the surveyor had assessed at Rs.1,85,000/- on total loss basis and deducted Rs.40,000/- towards value of wreck and arrived at Rs.1,45,000/- on salvage loss basis. We see no reason to interfere with the surveyor’s assessment and direct the insurance company to pay the said amount with interest at 9% p.a. from the date of repudiation i.e. 24-1-2003 till the date of realization together with costs of Rs.3,000/-.
In the result, we allow the appeal and set aside the order of the District Forum directing the insurance company to pay Rs.1,45,000/- with interest at 9% p.a. from the date of repudiation i.e. 24-1-2003 till the date of realization together with costs of Rs.3,000/-. Time for compliance four weeks.
PRESIDENT. LADY MEMBER.
JM Dated 08-7-2008
