FA.NO.1273 OF 2006 AGAINST C.D.NO.56/2005  District  Forum, ANANTAPUR.

Between:

T.Sainath Guptha, S/o.T.Nagaiah Shresty,

H.No.1`2/72-A-43, Sainagar,

Anantapur, Anantapur Dist.,                                                             ..Appellant/

                                                                                                                          Complainant

           And

The United India Insurance Co. Ltd.,

Divisional Office, Subash Road,

Anantapur Town & Dist.,

Rep. by its Divisonal Manager.                                                                   Respondent/

                                                                                                                        Opp.party.

Counsel for the Appellant     : Mr.Maheswara Rao                                                                                                                                                                                                                                                                                                                                                                                                                                       

Counsel for the Respondent: Mr.V.Krishna Rao.

QUORUM:THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

SMT.M.SHREESHA, MEMBER.

AND

SRI G.BHOOPATHI REDDY,  MEMBER

WEDNESDAY, THE THIRTEENTH DAY OF AUGUST,

TWO THOUSAND EIGHT

Oral Order :  (Per Sri G.Bhoopathi Reddy, Hon’ble Member)

                                                                        ***

            This is an appeal filed by the appellant/complainant under Section 15 of Consumer Protection Act, 1986 to set aside the dismissal order passed by the District Forum, Anantapur in C.D.No.56/2005 dated 31-7-2006.

The brief facts of the complaint are that the complainant is the owner of lorry (oil tanker) bearing No.AP-02-T-8278, which was insured with United India Insurance Co. Ltd., Anantapur vide policy No.051004/31/02/02847 dated 10-11-2003 which was in force on the date of accident.  On 10-11-2003 at about 9.30 p.m. when the lorry was proceeding from Gooty to Guntakal, it met with an accident at Nemathabad cross road near Gooty town and hit stationed vehicle and the front portion of the lorry was badly damaged.  A case in Cr.No.142/2003 was registered by Gooty P.S. against the driver of the lorry.  On intimation, the surveyor of the insurance company came to the accident spot and inspected the vehicle and took photographs and the vehicle was shifted to Dada Engineering Auto Works, Anantapur for repairs.  The complainant submitted that he spent a sum of Rs.96,880/- towards repairs of the vehicle i.e. replacing spare parts and labour charges.  He submitted that inspite of several requests, opposite party failed to settle his claim and repudiated the same on the ground that the driver did not possess valid driving licence and that 6 persons were travelling in the vehicle at the time of accident.  The complainant submitted that the question of possessing valid driving licence by the driver does not arise for the reason that on the date of accident, the driver has surrendered his driving licence and further carrying passengers in the vehicle cannot be a ground to reject the claim of the complainant.   Hence the complaint for a direction to the opposite party claiming compensation of Rs.1,54,653/- towards damages caused to the lorry which includes interest, compensation and costs.

Opposite party filed counter contending that the oil tanker owned by the complainant was used for ‘commercial purpose’ on the alleged date of accident and therefore, the Forum had no jurisdiction to entertain the complaint.  They  submitted that the driver of the vehicle at the time of accident did not possess dangerous or hazardous goods licence to drive the oil tanker and thus the complainant has violated one of the conditions of the policy and rules framed under Motor Vehicles Act, 1988.  They further submitted that the complainant had deliberately allowed more than 7 unauthorized passengers to travel in his oil tanker at the time of accident, who had also contributed to the alleged accident and submitted that there is no deficiency of service on their part and that they are not liable to pay any compensation to the complainant and prayed for dismissal of the complaint.

The District Forum based on the evidence adduced i.e. Exs.A1 to A4 and B1 to B6 and the pleadings put forward dismissed the complaint.

Aggrieved by the said order, the complainant preferred this appeal.

The point for consideration in this appeal is whether the order passed by the District Forum is sustainable?

The counsel for appellant contended that the District Forum has not properly appreciated the evidence on record.  Repudiation of the claim by the insurance company was confirmed by the District Forum and it is not sustainable.  The finding of the District Forum was that Ex.B3, driving licence did not contain requisite endorsement by R.T.A as per Sub Rule (3) and 9 of Central Motor Vehicle Rules but the said finding is not sustainable.  The complainant has filed Ex.A4, a certificate issued by ICS of Driver Development, Anantapur to show that the driver of the vehicle, Mr.S.K.Baba had undergone intensive training in the said institution in carrying hazardous goods/chemicals  from 9-9-2003 to 11-9-2003.  The driver is authorized to drive hazardous goods/chemicals transporting vehicle.  The District Forum erred in holding that the complainant hiring the vehicle for purpose of goods carriage i.e. transport of petroleum products from one place to another for hire and is being used for commercial purpose.  The order passed by the District Forum may be set aside. 

The respondent resisted the plea of the appellant that the appellant, owner of the vehicle engaged a driver who was not having a valid licence to drive the vehicle carrying hazardous goods.

There is no dispute that the appellant is the owner of oil tanker bearing No.AP-02-T8278 which was insured with the insurance company.  On the date of accident i.e.10-11-2003 there was a valid insurance policy.  On account of the accident, damages were caused to the vehicle and the complainant submitted that he incurred an expenditure of Rs.96,880/- towards repair and labour charges.  The complainant had endorsed his heavy goods carrier/oil tanker to the driver.  The appellant submits that he has not violated the terms and conditions of the insurance policy by employing a driver, who has already obtained a certificate but there was no endorsement on the licence of the driver. 

There is no doubt as per Rule 9 of Central Motor Vehicles (Amendment) Rules, 1993,

1. Any person driving a goods carriage carrying goods of dangerous and hazardous nature to human life shall, in addition to being the holder of a driving licence to drive a transport vehicle…..Also possess a certificate of having successfully passed a course consisting of following syllabus and periodicity connected with the transport of such goods.

2. The holder of a driving licence possessing the minimum educational qualification or the certificate referred to in sub-rule (1), shall make an application in writing on a plain paper alongwith his driving licence and the relevant certificate to the licensing authority in whose jurisdiction he resides for making necessary entries in his driving licence.

3. The licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving licence of the application to the effect that he is authorized to drive a good carriage carrying goods of dangerous or hazardous nature to human life.

The complainant has filed Ex.A4, which is a certificate issued by ICS institute of Driver Development, Anantapur.  The said certificate discloses that S.K.Baba, driver, had undergone intensive training in the said institute to transport hazardous goods and chemicals from 9-9-2003 to 11-9-2003.  The driver had undergone the said training and obtained certificate but had not applied to R.T.A. to make an endorsement on the licence.  The respondent also filed Ex.B3 issued by Secretary, R.T.A. Anantapur.  As per the said licence, he is authorized to drive heavy transport vehicle but there is no endorsement on Ex.B3 that S.K.Baba, driver of the vehicle in question is authorized to drive goods carriage of dangerous or hazardous in nature as contemplated under Rule 9(3) of Central Motor Vehicle Rules (Amendment Rules) 1993.

            In the present case, the driver was holding heavy vehicle licence and he himself had driven the vehicle in a rash and negligent manner and dashed a stationed vehicle and on account of that damages were caused to the vehicle and the owner has incurred expenditure for carrying repairs to the vehicle.  The documentary evidence filed by the appellant himself goes to show that the oil tanker was transporting hazardous goods and the owner engaged a driver, who was not having an endorsement on the licence, Ex.B3, to drive the said vehicle at the time of accident.  The accident was caused by the negligent act of the driver and we have gone through the terms and conditions of the insurance policy and are of the opinion that the insurance company is not liable to pay the claim amount.  The District Forum has elaborately discussed the evidence on record and gave a finding and there are no reasonable grounds to interfere with the order of the District Forum.

            In the result the appeal fails and is accordingly dismissed. The order of the District Forum is confirmed.  No order as to costs. 

                                                PRESIDENT.    LADY MEMBER.    MALE MEMBER.

JM                                                                   Dated 08-8-2008