BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/10/ 288  of 22.4.2010 

                                                Decided on:          30.8.2011

Parvinder Singh S/o Sh.Teja Singh r/o Dhindsa Logistics,Ambala G.T.Road, Rajpura District Patiala(PB)

                                                                             -----------Complainant

                                      Versus

United India Insurance Company Ltd. Branch Office Calibre Market, SCO no.10-11 E,Patiala Road,Rajpura 140401 through its Branch Manager

                                                                             ----------Opposite party.

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Sh.Amarjit Singh Dhindsa, Member

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:     Sh.S.K.Kaushal, Advocate

For opposite party:                  Sh.S.K.Garg, Advocate

                                         ORDER

D.R.ARORA, PRESIDENT

          The complainant being the owner of tanker bearing No.PB11AE 9815 engaged Jaswant Singh, the driver to ply the tanker being satisfied about the driving licence held by Jaswant Singh and even had taken the road test of Jaswant Singh. The complainant got his tanker comprehensively insured vide cover note no.230896 for the period 24.10.2008 to 23.10.2009 having made the premium of Rs.24090/- to the op.

2.       On 16.10.2009 the tanker had met with an accident at Shahpura District Jaipur resulting into a loss of Rs.1,30,000/- to the tanker. In respect of the accident DDR No.888 dated 16.10.2009 was lodged with P.S.Shahpura.At the time of the accident the tanker was being driven by Jaswant Singh who had valid and effective driving licence and he was fully trained to carry hazardous load.

3.       The matter was reported to the op.The vehicle was got repaired by the complainant having spent an amount of Rs.1,30.000/-.The complainant completed all the formalaities and submitted all the bills and other documents to the op.

4.       The complainant visited the office of the op a number of times to get the claim amount but the op failed to make the payment of the same under the pretext that on the driving licence of the driver there was no endorsement authorizing him to carry hazardous goods and thus wrongly closed the claim case of the complainant as ‘no claim’.

5.       It is also averred that the op had written a frivolous letter dated 23.2.2010 to the complainant for lingering on the matter. At this the complainant got the op served with a legal notice, but even then the claim was not passed. Accordingly the complainant has approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act) for a direction to the op to pay him Rs.1,80,000/-  i.e. Rs.1,30,000/- on account of loss caused to the tanker and Rs.50,000/- by way of compensation on account of harassment and the mental agony experienced by him at the hands of the op and also to pay Rs.11,000/- as costs of the complaint.

6.       On notice, the op appeared and filed its written version. It is admitted by the op that the tanker No.PB 11AE/9815 was insured with it for the period 24.10.2008 to 23.10.2009.It is also admitted that the matter was reported by the complainant to the op regarding the accident on 28.10.2009 the occurrence having taken place on 16.10.2009.The op had appointed Chander Shekhar Surveyor cum loss assessor to assess the loss. The surveyor had written letters dated 3.11.2009, 8.11.2009, 2.12.2009 and 26.12.2009 to the complainant to supply the documents for settlement of the claim but the complainant failed to comply and resultantly the surveyor assessed the loss at Rs.125091/- vide his report dated 22.1.2010 subject to the deduction of the amount of the salvage.

7.       It is further averred that the op had got the driving licence of Jaswant Singh verified and it was found that he was not having a valid and effective driving licence as well as it was not bearing the endorsement of the authority to carry hazardous goods as the tanker was carrying sulphuric acid at the time of the accident.

8.       It is also the plea taken up by the op that from the copy of DDR No.888 dated 16.10.2009, it is found that another DDR No.880 about the accident is referred to and the complainant was requested to produce the same but he failed to supply. It is denied if the complainant had sustained any loss in a sum of Rs.1,30,000/- in respect of tanker. Similarly it is denied if he is entitled to the compensation in a sum of Rs.50,000/-. Ultimately, it was prayed to dismiss the complaint.

9.       In support of his claim, the complainant produced in evidence his sworn affidavit,Ex.C1, alongwith the documents,Exs.C2 to C11 and his learned counsel closed the evidence.

10.     On the other hand, on behalf of the op, its learned counsel produced in evidence,Ex.R1, the sworn affidavit of Sangeeta Karkra,Assistant Manager of the op alongwith documents,Exs.R2 to R31 and the evidence of the op was closed by the order of the Forum.

11.     The parties filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.

12.     It is not disputed by the complainant that at the time of the accident the tanker was loaded with Sulphuric Acid, which is a hazardous material. A perusal of Ex.C7, the copy of the driving licence No.58372/Mkg/Prof/06 of Jaswant Singh s/o Mukhtiar Singh meant for M/C, LMV, MMV and  HMV valid up to 28.2.2012, no endorsement giving the authority to the licence holder to drive a goods carrier carrying goods of dangerous or hazardous nature, human life is made as per the requirement of Rule 9(3) of the Central Motor Vehicle Rules 1989.

13.     It was however, submitted by Sh.S.K.Kaushal, the learned counsel for the complainant that in the case of the citation National Insurance Company Ltd. versus K.Ramasamy and others 2008 ACJ 516, the Hon’ble High Court of Judicature at Madras,  placed reliance upon National Insurance Co.Ltd. Vs.Swaran Singh  2004 ACJ1(SC) for the observations that “(ii) If the facts of the case in hand are considered in the light of the above said observations of the Hon’ble Apex Court, it has to be pointed out that it has not been established by acceptable evidence that the want of above said endorsement was the main or contributory cause for the accident. The absence of the said endorsement in the driving licence,Exh.R2, 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 third parties. Further, it has to be pointed out that to avoid its liability to the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. The insure must also establish ‘breach’ on the part of the owner of vehicle and the burden of proof thereof would be on the insurer. Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant time, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the conditions of driving licence is/are so fundamental as are found to have contributed to the cause of the accident.

(iii) In this case the insurer appellant herein has not established breach on the part of the owner of the vehicle. In the considered view of this court the absence of the said endorsement in licence,Exh.R2 is not so fundamental. Further, it has neither been pleaded nor established by acceptable evidence that failure on the part of the holder of licence, Exh.R2, to undergo the training prescribed under rule 9 of the rules is in any way contributed to the cause of the accident. The main purpose of the qualification and training prescribed in rule 9 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. In this case the evidence discloses that the tanker lorry was driven rashly and negligently by its driver and hit against the deceased who was attending to the tyre of the lorry in which he was working as a cleaner near the lorry which was parked on the side of the road. The failure on the part of the driver of the tanker lorry to undergo the training prescribed under rule 9 of the Rules does not seem to have in any way contributed to the cause of the accident. The Tribunal has recorded a finding of negligence on the part of the driver of the tanker lorry. The evidence on record does not show that the absence of endorsement under rule 9 of the Rules in licence, Exh.R2 has contributed to the accident. Hence in the light of the law laid down by the Apex Court in Swaran Singh’s case,2004 ACJ 1(SC) , it has to be 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.     On the other hand, the learned counsel for the op placed reliance upon the citation Nagamani and another V. Singaravelu and another 2010 ACJ 1912 of the Hon’ble High Court of Judicature at Madras for the observations, “ as far as the present case is concerned, it is the categorical evidence of RW2 that the driver of the offending lorry was not possessing the licence to drive the transport vehicle or the hazardous goods vehicle and even the Exh.R2 Xerox copy of badge register refers to No.11134/81307 standing in the name of T.G.Sundarajan,  s/o Gopal Mesthray, No.4,7^th Cross Street, Devi Karumari Nagar, Madras 42. Indeed, in investigator’s report Exh.21, the driver of the lorry was authorized to drive light motor vehicle and from 30.10.91 was authorized to drive heavy goods vehicle also and the same was renewed from 28.6.1995. Suffice it to point out for this court that the offending lorry driver Elayasamy was not in possession of a licence/endorsement to drive the hazardous goods vehicle and that he was only possessed of a licence to drive heavy goods vehicle w.e.f.30.10.1991 and, therefore, there was a violation of policy condition and as such, the Tribunal was quite correct in exonerating the insurance company, respondent no.2 from its liability to pay and moreover, the appellants petitioners have not proved that the driver Elayasamy had the valid licence in regard to the type of vehicle vis., hazardous goods vehicle involved in the accident and consequently, the appeal fails and the same is hereby dismissed.”

Here, it may be noted that in the case of the citation, the driver of the offending lorry was driving an oil tanker.

15.     We have considered the submissions. The Hon’ble High Court of Judicature at Madras having observed the absence of the endorsement in the driving licence regarding the authority of the driver to drive a goods carrier carrying goods of dangerous or hazardous nature to human life being only a minor and in consequential deviations  and that  the same does not disqualify the driver to drive the vehicle at the relevant time and the same does not amount to a breach on the part of the owner of the vehicle, we are of the considered view that indifferent view taken up by the Hon’ble High Court of Judicature of Madras, the subsequent view i.e. Nagamani and another Vs. Singaravelu and another (Supra) without having discussed  and distinguished the earlier citation i.e. National Insurance Co.Ltd. Versus K.Ramasamy and others(Supra) can not go to oblitrate the impact of the earlier citation. Consequently, we come to the finding that the op was not justified in having repudiated the claim of the complainant.

16.     Admittedly the surveyor of the op assessed the loss in a sum of Rs.1,25091/- as would appear from the surveyor’s report,Ex.R8. To the contrary the complainant claims the loss in a sum of Rs.1,30,000/- , but no bill in that regard is produced by the complainant. We therefore, accept the surveyor’s report in this regard.

17.     As an upshot of our aforesaid discussion ,we accept the complaint and give a direction to the op to pay the amount of Rs.1,25091/- and since the matter has been decided purely on the basis of the law involved in the matter, no order as to costs. The op shall make the payment of the said amount to the complainant within a period of one month from the receipt of the certified copy of the order.

Pronounced.

Dated:30.8.2011

                             Neelam Gupta      Amarjit Singh Dhindsa    D.R.Arora

                             Member                Member                            President