DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

Complaint Case No : CC/77/2021

Date of Institution : 01.03.2021

Date of Decision : 02.08.2023

Lalit Dania son of Rakesh Kumar resident of Khudi Gate, Barnala, Tehsil and District Barnala, Punjab, India.  

                     …Complainant

        Versus

1. United India Insurance Company Limited, Head Office 24, Whites Road, Chennai-600014.  

2. Divisional Manager, United India Insurance Company Limited, 1st Floor, Natha Singh Tower Maheshwary Chowk, 100 Ft Road, Bathinda.

3. Branch Manager, United India Insurance Company Limited, Branch Office First Floor, Dhanaula Road, Barnala District Barnala.

               …Opposite Parties.

Complaint under the Consumer Protection Act

Present: Sh. Rajan Chaudhary Adv counsel for complainant.

Sh. NK Singla Adv counsel for opposite parties.

Quorum.-

1. Sh. Jot Naranjan Singh Gill : President

2.Sh. Navdeep Kumar Garg : Member

(ORDER BY      JOT NARANJAN SINGH GILL, PRESIDENT):

    The complainant namely Lalit Dania has filed the present complaint under the Consumer Protection Act against United India Insurance Company Limited, Chennai and others. (in short the opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that he is the owner of truck No. PB-13-U-9428. The complainant employed Harjinder Singh of Barnala as driver of the said truck who was holding valid and effective driving license and was competent to drive the heavy vehicles. It is further alleged that the said vehicle was insured with the opposite parties vide insurance policy No. 2004053118P115756756 dated 6.3.2019 and was valid up to midnight of 5.3.2020. The complainant at the time of giving job to the said Harjinder Singh checked his driving license and produced training certificate No. 12500 which was valid up to 11.4.2020 vide which he undergone training for safe transportation of Hazardous goods. 

3. It is further alleged that on 25.4.2019 driver of the complainant loaded said truck from AB Grain Spirit Private Limited Kiri Afgana Batala with SDS load for Barnala and on the way when said truck duly loaded reached near village Bishanpur Jattan Kapurthala it was single road and suddenly stray animal came from the field and all off sudden came on the road in front of the said tanker and driver in order to save the said tanker moved towards Kutcha path of the road and said tanker turned turtle in the fields and SDS in the truck fell in the fields. The accident reported to the Police Station Kotwali Kapurthala where statement of Harjinder Singh driver was recorded and entered Rapat No. 18 in Roznamcha dated 26.4.2019. It is further alleged that the complainant submitted his claim with the opposite parties who replied dated 21.8.2019 vide which spot photographs of the said vehicle were required which was replied vide reply dated 3.8.2019. The opposite parties obtained a report qua the insured vehicle from BL Goyal Surveyor and Loss Assessor vide letter No. UHC/BO/BNL/19/1012 the opposite party No. 2 called a report from the complainant final bills of parts and labour on account of repair/replacement and location of vehicle. Further, the opposite party No. 3 vide letter dated 27.11.2019 reported that “your claim is not admissible due to non availability of valid driving license at the time of accident, accordingly your said claim is repudiated”. It is further alleged that the loss of SDS has already been paid by the Oriental Insurance Company Limited to the IOL Chemical and Pharmaceutical Limited, Barnala. The said Truck-Tanker No. PB-13U-9248 (actual number 9428) stands parked in the Garage Atma Truck Body Builders Bhikhi Road, Dhanaula for repair and a sum of Rs. 54,000/- was paid as repair charges vide cash memo dated 15.5.2019, Rs. 54,950/- vide cash memo dated 25.10.2019 to the said firm as estimated bills charges and sum of Rs. 2,84,000/- were paid to Guru Nanak Engg. Corporation, Barnala vide bill dated 16.5.2019 as estimated bill and sum of Rs. 1,130/- paid to Shiv auto Parts, Dhanaula vide bill dated 24.10.2019 and total costs of repair comes to Rs. 3,94,080/-. The opposite parties demanding the documents from the complainant which were supplied to them. The complainant also served legal notice dated 27.2.2020 to opposite party No. 2 & replied. The act of the opposite parties is deficiency in service. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to pay Rs. 2,00,000/- being insured sum and Rs. 3,94,080/- as repair charges.   

2) To pay Rs. 50,000/- on account of compensation for mental agony and harassment and Rs. 10,000/- as litigation expenses. 

3) Any other fit relief may also be given. 

4. Upon notice of this complaint, the opposite parties filed written version taking preliminary objections on the grounds that the complaint is bad for non joinder and mis joinder of necessary parties. The complainant has concealed material facts from this Commission and not come to the Commission with clean hands. 

5. On merits, it is admitted that complainant is the registered owner of truck No. PB-13U-9428 and was being used for carrying goods of dangerous or hazardous nature to human life. It is also admitted that Harjinder Singh was the driver on the tanker No. PB-13U/9428. Sh. BL Goyal Surveyor Loss Assessor from Dhuri was deputed by opposite party No. 3 to verify the driving license of Harjinder Singh who visited the RTA, Sangrur and submitted his report dated 4.10.2019 based upon the report of Secretary, Regional Transports Authority, Sangrur there was no endorsement on the driving license of Harjinder Singh for the transportation of goods of dangerous or hazardous nature up to 30.4.2019, so he is not competent to drive said vehicle at the time of alleged accident. The said tanker was insured with the opposite party No. 3 vide GCV Public Carrier other than 3 wheeler package policy valid for the period from 6.3.2019 to 5.3.2020 and as per terms and conditions of the said policy any person including insured provided that a person holds an effective driving license at the time of accident and is not disqualified from holding a license provided also that the person holding an effective learner license may also drive the vehicle and such a person satisfies the requirements of rule 3 of the Central Motor Vehicle Rules, 1989 was entitled to drive the vehicle. It is submitted that vide letter dated 21.8.2019 of BL Goyal spot photographs of the vehicle in overturned condition in hard copy of and duly filled cum signed claim form was required from the complainant and reply to the same was given by the complainant vide letter dated 3.9.2019 alongwith claim form. Sh. Harsh Mohan Markan Surveyor and Loss Assessor from Kapurthala deputed by the branch office Kapurthala to visit the site of the accident for spot survey who visited the spot on 26.4.2019 and submitted his report dated 12.5.2019 subject to terms and conditions of the insurance policy. It is admitted that vide letter dated 25.11.2019 complainant was requested to submit the repair bills towards the loss of the vehicle and further requested to inform the location of the vehicle for re-inspection. But complainant failed to supply the required documents and information. Sh. BL Goyal from Dhuri was deputed to assess the loss to damaged vehicle on 5.6.2019 and he conducted the survey on 5.6.2019 and onwards and submitted his final report dated 31.10.2019 to opposite party No. 3 and assessed the loss to the tune of Rs. 1,62,452/- and loss was assessed on the basis of physical inspection of the vehicle in the absence of repair not carried out of the insured tanker. It is further alleged that Sh. BL Goyal was also deputed to submit the GR Verification report of the vehicle No. PB-13U-9428 who visited M/s Best Enterprises Barnala on 31.10.2019 for the verification of GR and as per report dated 31.10.2019 the vehicle was loaded with specially denatured spirits which is a flammable liquid. The claim of the complainant was not admissible due to non availability of valid DL of driver Harjinder Singh at the time of alleged accident. Further, as per sub section 3 of rule 9 of the Central Motor Vehicles Rules, 1989 the licensing authority on receipt of application referred to in sub rule (2) shall make an endorsement in the driving license of the applicant to the effect that he is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. But there being no such endorsement on the DL of Harjinder Singh the claim has rightly been repudiated and there was violation of the terms and conditions of the policy regarding the persons or class of the persons entitled to drive. The cash memos/bills are forged and fabricated. Rest of averments mentioned in the complaint are denied by the opposite parties. Lastly, prayed for the dismissal of the present complaint with costs. 

6. The complainant also filed rejoinder to the written version filed by the opposite parties vide which he reiterated the averments as mentioned in the complaint. 

7. In support of his complaint, the complainant tendered into evidence copy of RC Ex.C-1, copy of driving license Ex.C-2, copy of policy Ex.C-3, copy of training certificate Ex.C-4, copy of rapat number 18 Ex.C-5, copy of reply Ex.C-6, copy of letter dated 25.11.2019 Ex.C-7, copy of letter dated 27.11.2019 Ex.C-8, copies of bills Ex.C-9 to Ex.C-11, copy of legal notice Ex.C-12, postal receipt Ex.C-13, copy of reply  Ex.C-14, reply to legal notice Ex.C-15, copy of damage certificate dated 10.5.2019 Ex.C-16, copy of report dated 26.4.2019 Ex.C-17, copy of letter dated 5.8.2019 Ex.C-18, copy of letter dated 21.8.2019 Ex.C-19, copy of reply to letter dated 21.8.2019 Ex.C-20, copy of letter dated 19.9.2019 Ex.C-21, copy of reply to letter dated 19.9.2019 Ex.C-22, copy of letter dated 5.1.2020 Ex.C-23, copy of letter dated 25.1.2020 Ex.C-24, copy of letter dated 29.11.2019 Ex.C-25, copy of bill dated 15.5.2019 Ex.C-26 and closed the evidence.  

8. To rebut the case of the complainant the opposite parties   tendered in evidence copy of report dated 4.10.2019 Ex.OPs-1, copy of policy alongwith terms and conditions Ex.OPs-2, copy of claim form Ex.OPs-3, copy of report of Harsh Mohan Markan along photographs Ex.OPs-4, copy of letter dated 18.11.2019 Ex.OPs-5, copy of motor survey final report of BL Goyal alongwith photographs Ex.OPs-6, copy of GR verification report alongwith annexure Ex.OPs-7, copy of letter dated 31.10.2019 Ex.OPs-8, affidavit of Baldev Singh Ex.OPs-9, affidavit of BL Goyal Ex.OPs-10, affidavit of Harsh Mohan Markan Ex.OPs-11 and closed the evidence. 

8. We have heard the learned counsel for the parties and have gone through the record on the file. Written arguments also filed by the parties. 

9. It is admitted case between the parties that the complainant is the registered owner of of Truck No. PB-13-U-9428 (Ex.C-1) and Harjinder Singh of Barnala was the driver of the said Truck. It is also admitted case between the parties that the said Truck was insured with the opposite parties vide insurance policy No. 2004053118P115756756 dated 6.3.2019 vide GCV Public Carrier other than 3 wheeler package policy   which was valid from 6.3.2019 to 5.3.2020 (Ex.C-3) and the accident of the above said Truck is also not not disputed.

10. Ld. Counsel for the complainant argued that on 25.4.2019 driver of the complainant loaded said truck from AB Grain Spirit Private Limited Kiri Afgana Batala with SDS load for Barnala and on the way when said truck duly loaded reached near village Bishanpur Jattan Kapurthala it was single road suddenly a stray animal came on the road in front of the said tanker and driver in order to save the said tanker moved towards Kutcha path of the road and the said tanker turned turtle in the fields and SDS in the truck fell in the fields. It is further argued that the accident reported to the Police Station Kotwali Kapurthala, where statement of Harjinder Singh driver was recorded and entered Rapat No. 18 in Roznamcha dated 26.4.2019 (Ex.C-5). It is further argued that the complainant submitted his claim with the opposite parties who replied dated 21.8.2019 (Ex.C-19) vide which spot photographs of the said vehicle were required which was replied vide reply dated 3.9.2019 Ex.C-20). It is also argued that the opposite parties obtained a report qua the insured vehicle from BL Goyal Surveyor and Loss Assessor vide letter No. UHC/BO/BNL/19/1012 and the opposite party No. 2 called a report from the complainant final bills of parts and labour on account of repair/replacement and location of vehicle. Ld. Counsel for the complainant argued that the opposite party No. 3 vide letter dated 27.11.2019 (Ex.C-8) reported that “your claim is not admissible due to non availability of valid driving license at the time of accident, accordingly your said claim is repudiated”. It is further argued that the said Truck-Tanker No. PB-13U-9428 stands parked in the Garage Atma Truck Body Builders Bhikhi Road, Dhanaula for repair and a sum of Rs. 54,000/- was paid as repair charges vide cash memo dated 15.5.2019, Rs. 54,950/- vide cash memo dated 25.10.2019 to the said firm as estimated bills charges and sum of Rs. 2,84,000/- were paid to Guru Nanak Engg. Corporation, Barnala vide bill dated 16.5.2019 as estimated bill and sum of Rs. 1,130/- paid to Shiv auto Parts, Dhanaula vide bill dated 24.10.2019 and total costs of repair comes to Rs. 3,94,080/- (Ex.C-9 to Ex.C-11). 

11. Ld. Counsel for the opposite parties argued that vide letter dated 25.11.2019 complainant was requested to submit the repair bills towards the loss of the vehicle and further requested to inform the location of the vehicle for re-inspection. But complainant failed to supply the required documents and information. It is also argued that Sh. BL Goyal from Dhuri was deputed to assess the loss to damaged vehicle on 5.6.2019 and he conducted the survey on 5.6.2019 and onwards and submitted his final report dated 31.10.2019 (O.Ps-6) to opposite party No. 3 and assessed the loss to the tune of Rs. 1,62,452/- and loss was assessed on the basis of physical inspection of the vehicle in the absence of repair not carried out of the insured tanker. It is further argued that Sh. BL Goyal was also deputed to submit the GR Verification report of the vehicle No. PB-13U-9428 who visited M/s Best Enterprises Barnala on 31.10.2019  for the verification of GR (Ex.O.Ps-7) and as per report dated 31.10.2019 the vehicle was loaded with specially denatured spirits which is a flammable liquid. It is argued that the claim of the complainant was not admissible due to non availability of valid DL of driver Harjinder Singh at the time of alleged accident and as per sub section 3 of rule 9 of the Central Motor Vehicles Rules, 1989 the licensing authority on receipt of application referred to in sub rule (2) shall make an endorsement in the driving license of the applicant to the effect that he is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life, but there being no such endorsement on the DL of Harjinder Singh the claim has rightly been repudiated and there was violation of the terms and conditions of the policy regarding the persons or class of the persons entitled to drive. 

12. On the other hand, Ld. Counsel for the opposite parties relied upon the Central Motor Vehicles Rules, 1989. In Rule 9 Educational qualifications for drivers of goods carriage carrying dangerous or hazardous goods it is mentioned as under;- 

(1) On and from the date of commencement of this rule, any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall in addition to being the holder of driving licence to drive a transport vehicle, also possess minimum educational qualification of a pass in the 10th standard or possess a certificate of having undergone a course connected with the transport of such goods, for such period and from such establishments as may be specified by notification in the Official Gazette by the State Government from time to time. 

(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 and if the driving licence is in Form 7, the application shall be accompanied by the fee as is referred to in Sl. No. 8 of the Table to Rule 32. 

(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 applicant to the effect that he is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life.

(4) A licensing authority other than the original licensing authority making any such endorsement shall communicate the fact to the original licensing authority.

13. In order to prove the case Ld. Counsel for the complainant has relied upon the Judgment of the Hon'ble Madras High Court in case tiltled National Insurance Co. Ltd. Vs K. Ramasamy Civil Miscellaneous Appeal No. 1988 of 1999, decided on 27 October, 2006, vide which it is held that it is not the case of the appellant that the driver of the tanker lorry was not having a licence to drive the heavy goods vehicle. But the only contention was that the necessary endorsement as provided in Rule 9 of the Rules has not been made in the licence. The absence of the said endorsement in the driving licence 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 parties. The insurer/appellant has not established breach on the part of the owner of the vehicle and in the absence of said endorsement licence is not so fundamental. Further, it has neither been pleaded nor established by the acceptable evidence that failure on the part of the holder of licence to undergo the training prescribed under Rule 9 of the Rules is in any way contributed to the cause of accident. The main purpose of the qualification and training prescribed in Rule of the Rules seems to equip the driver of the tanker lorries transporting hazardous substances to meet certain emergencies and to make him aware of certain basic emergency procedures, in case if any spillage of hazardous substances transported in the vehicle is caused due to an accident. It is held that the insurer/appellant herein is not entitled to avoid its liability to indemnify the insured and the contention of the insurer is liable to be rejected.   

14. From the perusal of Certificate Ex.C-4 of driver Harjinder Singh it shows that the certificate was valid upto 11.4.2020. It is further shows that the driver Harjinder Singh got training programme for hazardous goods vehicle as per CMV1989 Rule 9 by a gazette notified school vide his gazette notification No. 865/301/2012-99/98 And licence No. 57/Meerut Zone/2001. From Ex.C-4 it further shows that the driver Harjinder Singh has attended the 3 days training programme for Safe Transportation of Hazardous Goods which was conducted from 10.4.2019 to 12.4.2019. So, no doubt it is proved that the driver Harjinder Singh has a valid driving licence and valid training certificate for the transportation of hazardous goods at the time of accident, therefore we are of the view that only in absence of endorsement in driving licence as provided for in Rule 9 of the Rules will not enable the insurance company/opposite parties to avoid its liability to indemnify the insured. Further, from the perusal of Ex.O.P-6 Motor Survey Final Report dated 31.10.2019 it shows that the surveyor of the opposite parties has assessed the loss to the tune of Rs. 1,62,452/- and the same was assessed on the basis of physical inspection of the vehicle in the absence of repair not carried out of the insured tanker. 

15. In view of the above discussion, the present complaint is partly allowed and the opposite parties are directed to pay Rs. 1,62,452/-  alongwith interest at the rate of 7% per annum from the date of filing the present complaint till realization. The opposite parties are further directed to pay Rs. 5,500/- on the account of consolidated amount of compensation alongwith litigation expenses to the complainant. 

16. Compliance of the order be made within the period of 45 days from the date of the receipt of the copy of this order.

17. Copy of this order be supplied to the parties free of costs as per rules. File be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN COMMISSION:

        2nd Day of August, 2023

 

 

            (Jot Naranjan Singh Gill)

            President

              

(Navdeep Kumar Garg)

Member