Jammu and Kashmir

Jammu

CC/538/2017

KASHMIR GOODS SERVICES - Complainant(s)

Versus

United India Insurance - Opp.Party(s)

BALDEV SLATHIA

19 May 2018

ORDER

CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No               117/DFJ           

 Date of  Institution       08-06-2016

 Date of Decision            14-05-2018

 

M/S Kashmir Goods Service,

Prop.Gurvinder Singh,

S/O S.Gurdeep  Singh,

390/6 Transport Nagar,Jammu,

Through its Attorney Holder,

Harpreet Singh S/O S.Jagdev Singh,

R/O Swaran Colony,Gole Gujral,

Jammu.

                                                                                                                                                Complainant

                V/S

Divisional Manager,

United India Insurance Co.Ltd.

Divisional Office-1,Opp.Convent Presentation School,

National Highway 21-C/B Gandhi Nagar,Jammu.

                                                                                                                                                Opposite party

CORAM

                  Khalil Choudhary    (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                       Member

                  Mr.Ghulam Sarwar Chauhan                               Member.

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Baldev Slathia,Advocate for complainant, present.

 Mr.Sanjay K.Dhar Advocate for OP,present.

 

                                                                       ORDER

                      Facts relevant for the disposal of complaint on hand are that S.Gurvinder Singh is Prop.M/S Kashmir Goods Service having fleet of buses, trucks and oil tankers running his business from his office at 390-391 Yard No.6,Transport Nagar,Narwal,Jammu and the said business has been looked after by S.Harpreet Singh S/O S.Jagdev Singh R/O Swaran Colony,Gole Gujral,Jammu.That the complainant had insured his vehicle (Oil Tanker)bearing registration No.JK02X-1295 with the OP Company under Policy No.1106003113ZP103760589 w.e.f.13-09-2013 to 12-09-2014 under GCV Public Carrier other than 3 wheeler Package Policy.According to complainant on,01-04-2014 the insured tanker which was driven by Driver Balvinder Singh S/O S.Bhola Singh R/O Musa Chak,R.S.Pura,Jammu having experience of driving heavy goods vehicle/tanker and had been plying heavy vehicle for last more than 15 years, the said vehicle was going from Jammu to Srinagar met with accident at Thurd near Udhampur National Highway and due to said accident the vehicle feel 30 feet deep in George from the National Highway and got totally damaged and sufficient quantity of product loaded in the said vehicle,i.e.HSD and MS of Hisdustan Petroleum Corporation Ltd.of M/S Hamara Pump which was also insured with OP Company under Product Policy was lost/washed away. Complainant further submitted that the police of Police Station Udhampur registered FIR No.126/2014 and after investigation recorded the statement of witnesses ,prepared the challan and produced before Hon’b le Court at Udhampur against the driver of said vehicle and complainant informed OP Company about the accident, damage of vehicle and loss of material i.e.HSD&MS loaded in the said vehicle and the OP deputed surveyor to assess the loss of said vehicle and material, who visited the spot and after verification asked him to submit the documents of said vehicle alongwith estimate of damage of material loaded in the vehicle. That the complainant submitted all the documents and estimate of Rs.1,95,630/-of the damage caused to the vehicle(Annexure-B).Allegation of complainant is that the surveyor/investigator of the company after spot inspection of ill fated vehicle directed him to lift the vehicle from spot and the product carried in the said damaged vehicle, first shifted to another vehicle and thereafter was taken to Hindustan Petroleum Corporation Ltd.and handed over to the Corporation and the Hindustan Petroleum Corporation Ltd.accepted the said material and asked complainant to pay cost of Rs.3,61,922.01/-of the product washed away due to said accident.Thereafter,complainant shifted the damaged vehicle to workshop for its repair and after repairing the said vehicle, complainant submitted final bills to surveyor/investigator and requested OP company to release the amount assessed by their surveyor, but OP Company has not released the said amount in favour of complainant. That to the utter dismay of complainant, the OP Company vide its letter dated 22-01-2016 intimated him that his claim has been repudiated and closed as No Claim(Annexure-3). In the final analysis, non settling of claim by OPs,according to complainant, amounts to deficiency in service, therefore, complainant prays for sum of Rs.1,95,630/-as repair value of the damaged vehicle and in addition also prays for compensation of Rs.1,85,000/- under different heads.

                        On the other hand,OP filed version and while denying its liability in toto,went on to submit that complaint is bad for mis-joinder & non-joinder of necessary parties since the same is filed against the officer of the Company and no suit or complaint lies against the official of a registered company being a legal entity that can sue and be sued in its own name. That the complaint is not maintainable and deserves out right dismissal in view of the fact that the claim of complainant under Motor Insurance Policy has in good faith and bonafidely been repudiated and closed as No-Claim by the Op after thorough investigation and proper application of mind in accordance with the terms and conditions of contract of insurance and law on the ground firstly, that the insured vehicle bearing registration No.JK02X-1295 (Petrol Tanker)carrying petroleum products falling under the category of dangerous and hazardous goods was being driven by the driver,namely,Balvinder Singh at the time of alleged accident without holding a valid and effective driving licence for driving the category of vehicle insured as per Section 3 of M.V.Act,1988 read with Driver’s Clause contained in the Policy of Insurance and the policy of insurance and provisions of M.V.Act,1988 since the insured vehicle was not plied in accordance with its limitation as to use. The liability of OP is excluded in terms of General Exception (3)(a)of the policy condition. It is submitted that the subject vehicle is registered and insured as  a goods carrying commercial vehicle (Petrol Tanker)for carrying petroleum products and is not meant for carrying the passengers, but at the time of accident four passengers,namely,Ishad Ahmed,Razia Begum,Ishtyhak Ahmed and Modh.Guggar in addition to driver were being carried in the subject vehicle in violation of the Policy terms conditions, permit and its Registration Certificate when admittedly the said vehicle was having seating capacity of only two persons and there was no permission sought from the Regional Transport Authority to carry passengers beyond seating capacity. In the instant case, four persons as gratuitous passengers were being carried in the subject vehicle un-authorisedly as on date of accident, thus carrying of persons/passengers in the goods carrying vehicle amounts to breach of terms and conditions of the policy of insurance which manifestly disentitles the complainant from indemnification(Annexure-RA).That the Honble Apex Court in Oriental Insurance Company Ltd.V/S Sony Cheriyan has held that The Insurance Policy between the insurer and insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein. .Lastly it is prayed that there is no deficiency of service or unfair trade practice on the part of OP and the complaint is liable to be dismissed.  

                        Complainant adduced evidence by way of duly sworn his own affidavit and affidavit of Balvinder Singh.Complainant has placed on record, copy of General Power of Attorney, copy of estimate, copy of repudiation letter  issued by  OP to complainant and copy of driving licence.

                 On the other hand,OP adduced evidence by way of duly sworn affidavits of Rajesh Gupta,Surveyor and Loss Assessor and M.L.Verma Divisional Manager United India Insurance Co.OP has placed on record copy of policy with its terms and conditions, copies of surveyors report, copy of driving licence,verification report and police challan.

                     We have perused case file and heard L/Cs for the parties at length.

                          To be brief, allegation of complainant is that the insured tanker suffered damage during currency of Insurance Policy, but OP failed to indemnify the loss. On the other hand, version of OP is that at the time of accident, insured tanker was being driven by the driver, who was not holding valid and effective driving licence,as during investigation it was found that insured vehicle was loaded with hazardous goods at the time of accident and the driving licence of driver,namely,Balvinder Singh for driving the vehicle for hazardous goods was valid from 24-04-2014 to 23-04-2015,while as, accident took place on,01-04-2014,therefore,there was breach of policy terms and conditions, hence Op rightly repudiated the claim.

             After hearing L/Cs for parties and perusing the case file, in our opinion dispute purely hinges on the point, as to whether or not at the time of accident, driver of insured tanker,namely,Balvinder Singh was holding valid and effective driving licence.

               In support of its contention that driver was not holding valid and effective driving licence at the time of accident,OP relied upon certificate dated,15-05-2014 issued by Licencing Authority,Jammu.Perusal of certificate dated,15-05-2014  and surveyor report would reveal that the driver,namely,Balvinder Singh was holding driving licence with DHR endorsement valid from 24-04-2014 to 23-04-2015 and the driving licence of the driver,namely,Balvinder Singh was not having any endorsement of DHR as the endorsement DHR/75/MVD/RTOJ on the copy of driving licence is effective from 24-04-2014  and valid upto 23-04-2015,whileas,accident took place on,01-04-2014,therefore,there was no endorsement as on the date of accident, which amounts to breach of policy, terms and conditions, hence OP rightly repudiated the claim.Admittedly,tanker in question met with accident on,01-04-2014.Therefore,admittedly at the time of accident, driving licence was without endorsement of DHR to drive the vehicle, carrying hazardous and dangerous goods at the time of accident, as per Section 14 of Motor Vehicles Act,1988.

        L/C for OP placed reliance on the judgment of Division Bench of Honble High Court of Jammu & Kashmir at Srinagar passed in a case titled National Insurance Company Ltd.V/S Mehraj-ud-din Bagaw & Ors.reported as 2017(5)JKJ 399{HC},wherein it has been held as:

         Accident Claim

          Invalid licence-Hazardous transport vehicle-Driver of the vehicle had a licence to drive a transport vehicle and did not have a licence to drive a transport vehicle carrying goods of a dangerous or hazardous nature-Last renewal of the drivers licence prior to the accident which occurred on 09-07-2008,was granted w.e.f.05-04-2006 and was for a period of three years upto 05-04-2009-This was a licence to drive a transport vehicle and not a licence for carrying goods of dangerous or hazardous nature-since the vehicle in question was carrying 264 gas cylinders which were regarded as hazardous goods even by the said Commission,the driver of the said vehicle clearly did not have an ‘effective driving licence’and this was a specific condition of the policy which was breached-Respondent was not entitled to the claim that it submitted and the insurance company was well within its right to have rejected the claim on the ground that the driver of the vehicle did not hold an effective driving licence-Impugned decision set aside-Appeal allowed.

   Section 14 of the said Act and in particular sub-Section (2) thereof,specifically provides as under:-

       (2) A driving licence issued or renewed under this Act shall,

1. In the case of a licence to drive a transport vehicle, be effective for a period of three years:

   Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective e for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus:and

                

                             Admittedly, complainant is alleging deficiency in service on the part of OP,on the strength of Contract of Insurance, under which insurer is bound to indemnify the loss, if any occurred ,during currency of Insurance Policy. Perusal of Insurance Policy inter alia, reveals that under the heading,Persons or Class of Persons entitled to drive, it has been categorically laid down that any person holding valid and effective driving licence and is not disqualified from holding or obtaining such licence is entitled to drive insured vehicle.       

           Moreover the Op has also raised the plea that at the time of accident four passengers were being carried in the goods vehicle and this plea is proved as per challan on record. The complainant has not rebutted it,therefore,complainant has committed the breach of policy condition as settled law is that no passenger can be carried in a goods carriage vehicle ,as such plea of OP is substantiated by the documentary evidence placed on record.           

                 Further L/C for Op placed reliance on the judgment of Honble Supreme Court of India at New Delhi passed in case titled M.V.Jayadevappa and another V/S Oriental Fire & Genl.Ins.Co.Ltd.and others reported as 2005 ACJ 1801,wherein their Lordships have been pleased to hold as:

         Motor Vehicles Act,1988,Section 147-Motor Insurance-Goods Vehicle-Policy-Passenger risk-Liability of insurance company-Policy describes the vehicle as commercial vehicle, lorry with open body and licensed carrying capacity of goods is specified as 2 tons-Vehicle is a goods vehicle and not authorized to carry passengers-Whether insurance company is liable for death/injury to passengers-Held :no.

  

                  

                      Therefore, from above proposition of law laid down by Hon’ble High Court, it is settled that driver driving the vehicle carried dangerous and hazardous goods shall hold the driving licence with the endorsement of DHR as on date of accident.

                    The case law submitted by the L/C for complainant have no relevance to the facts of this case in view of the judgment passed by Hon’ble High Court of J&K as discussed above.

                           Be it further noted that driver’s clause contained in Insurance Policy, provides that the person driving the vehicle should hold effective driving licence at the time of accident,therefore,in view of certificate of Licencing Authority, we are of the opinion that driver of insured vehicle in question was not holding valid and effective driving licence at the time of accident and same constitutes breach of policy terms and conditions in respect of Drivers clause, as admittedly, at the time of accident, insured tanker was carrying hazardous goods, which undoubtedly falls within dangerous and hazardous goods. Therefore, we see no reasoning to differ with the reasoning prevailed with Op in repudiating the claim.

                       In the afore quoted back drop, complaint fails, accordingly, same is dismissed. In the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records.

Order per President                                   Khalil Choudhary

                                                                (Distt.& Sessions Judge)

Announced                                                     President

14-05-2018                                           District Consumer Forum

Agreed by                                                      Jammu.

                                                              

  Ms.Vijay Angral          

  Member                                                                                              

.               

 Mr.Ghulam Sarwar Chauhan

Member