Jammu and Kashmir

Jammu

CC/315/2017

SHUKLA ROHMETRA - Complainant(s)

Versus

United India Insurance - Opp.Party(s)

RAHUL PANT

15 Dec 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

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

                                                          .

 Case File  No.:                354/DFJ           

 Date of  Institution   :    09-12-2016

 Date of Decision      :      15-12-2018

 

Shukla Rohmetra,

W/O Sh.Yashpal Rohmetra,

R/O 31 A/C,Gandhi Nagar,Jammu.

                                                                                                                                                Complainant

                V/S

1.United India Insurance Co.Ltd.

  Through its Branch Manager

 21-C/B Block, Opposite Convent School,

Gandhi Nagar,Jammu.

2.Divisional Manager, United India Insurance Co.Ltd.

  Divisional Office 21-C/B Block, Opposite Convent School,

Gandhi Nagar,Jammu.

                                                                                                                                                                Opposite parties

CORAM:-

                  Sunit Gupta                     (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer Protection Act 1987.

                             

Mr.Varun Raina,Advocate for complainant, present.

Mr.Sanjay K Dhar Advocate for the OPs,present.

 

ORDER

                                   Grievance of complainant, as disclosed in the complaint is that; he being owner of tanker bearing registration No.JK02BJ-8491,got the same comprehensively insured with OP1 under Policy No.1106003114P108926851 and the complainant had engaged one Gurbaksh Singh S/O Harbhajan Singh as a Driver for the tanker in question and since the Indian Oil Corporation Ltd.with whom the complainant had entered into a carriage contract/bulk transport contract for transportation of petroleum products,trains,the drivers to be engaged for transportation of petroleum products by roads as such the driver,namely,Gurbaksh Singh was also imparted training by the Indian Oil Corporation Ltd.That the fitness of the driver to transport petroleum products had been renewed upto 08-06-2016.That apart from the aforesaid training, the driver in question had also been imparted training by the Institute of Driving and Maintenance, Jammu for driving vehicles carrying hazardous and dangerous nature of goods and the driver had successfully qualified the said training as well and certificate in this behalf was also issued in favour of the driver on 22-10-2015.That the driver engaged by the complainant was possessed Heavy Goods Vehicle (TR)licence and the endorsement on the licence of any driver to carry dangerous and hazardous nature of goods is made by the  Regional Transport Officer on the basis of the certificate issued by any recognized and authorized institute of driving and maintenance and there is no special test  prescribed by the Regional Transport Officer for making endorsement as mentioned above on the licence of the driver except on the basis of training certificate issued by the recognized driving and maintenance institute. The driver, as such, was duly trained and apprised to drive heavy goods vehicle carrying dangerous and hazardous nature of goods as well. That however, the issue of the driver having endorsement of the licence to carry dangerous and hazardous nature of goods is not remotely involved in the present complaint in as much as it is admitted case of the parties that when the tanker was empty and was coming back from Sunderbani to Jammu, it met with an accident and the driver of the tanker lost his life in the said accident. An intimation was given to the OP for processing the claim apart from to provide cover to the complainant on account of the proceedings initiated by the legal heirs of the deceased driver in the Labour Court. That surveyor was appointed by the OPs to assess the loss, but unfortunately the claim of complainant has been rejected on,16-11-2016 on the ground that the driver was not having endorsement for carrying dangerous and hazardous nature of goods on his driving license.That since the vehicle of the complainant suffered extensive damage apart from the death of the driver as such,OPs are under an obligation to meet the claim arising out of the death of the driver under the Works man Compensation  Act as also to satisfy own damage claim of the complainant .The vehicle of the complainant suffered extensive damage and the claim arising out of the same is to the tune of Rs.1,00,000/-That because of the delay in satisfying the claim of the complainant as the accident took place in December,2015 and despite lapse of almost one year, payment has not been made to the complainant arising out of own damage claim, there is a deficiency of service on the part of OPs.Hence the present complaint. In the final analysis, complainant prays for a direction to the OPs to pay an amount of Rs.1.00 lac on account of own damage claim  and in addition prays for compensation of Rs.50,000/for causing mental harassment and torture and Rs.25000/-as litigation expenses.

                       On the other hand,OPs filed written version and resisted the complaint on the ground  that the complaint is bad for mis-joinder & non-joinder of necessary parties since 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 and 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 by the OP after thorough investigation and proper application of mind in accordance with the terms & conditions of the contract of Insurance on the ground that the insured vehicle bearing registration No.JK02BJ-8491 (Petrol tanker)registered & permitted for carrying Petroleum products falling under the category of dangerous and hazardous goods was being driven by driver ,namely,Sh.Gurbaksh Singh who at the time of alleged accident was not holding a valid and effective driving licence for driving the subject vehicle as per Section 3 of M.V.Act ,1988 read with Driver’s Clause contained in the Policy of Insurance. The said driver was holding driving licence No.JK0219970168634 issued by RTO,Jammu,but the said D/L was not valid for driving the subject vehicle meant for carrying dangerous and hazardous goods as no endorsement of DHR was obtained or effected on the said D/L,as such breach of policy was committed by the complainant. It is settled law that owner of vehicle has a statutory obligation to see as to whether driver driving the vehicle holds a valid and effective driving licence.In this claim admittedly there was no endorsement of DHR  on the driving licence in question, thus it can safely be concluded that a breach has been committed by the owner of subject vehicle and accordingly she is not entitled to any indemnification under the contract of Insurance. It is submitted that after the receipt of the claim intimation with regard to accident bearing registration No,.JK02BJ-8491 (Petrol tanker),the OPs immediately deputed Sh.A.P.Sangra independent IRDA approved Surveyor for conducting spot survey of the reported loss. The said surveyor after making inspection of the damaged vehicle on spot and carrying out the spot survey in detail submitted his report No.UIIC/ 1617APS/15 dated 22-03-2016 to the OPs company and thereafter Mr.Charanjeet Singh (Surveyors & Loss Assessors)was deputed to conduct the survey and for making the assessment of loss, who after carrying out necessary survey issued and submitted report No.CS/11620/16 dated 30-03-2016,thereby making the actual assessment of damages caused to the said vehicle at Rs.49,232/-.It is submitted that immediately after receipt of the aforesaid surveyor reports alongwith documents the Ops being insurer in order to proceed with the settlement of claim in accordance with the terms and conditions of the policy of insurance examined, verified and scrutinized the claim papers whereupon, it was observed and established that driving licence No. JK-0219970168634 issued in favour of the driver Gurbaksh Singh was not valid and effective as on date of loss i.e.10-12-2015 since the said driver was not authorized to drive the vehicle (Petrol Tanker)used for carrying dangerous and hazardous goods as on date of accident. It is submitted that upon observing the breach of policy condition, the OPs immediately decided to repudiate the claim and this decision was taken after thorough investigation and proper application of mind in good faith and bonafidely in accordance with the terms and conditions of the policy.

       Complainant adduced evidence by way of duly sworn her won evidence affidavit and evidence affidavit of Jernail Singh and Raghubir Singh,respectively.Complainant has placed on record copy of policy ,copy of certificate issued by Safety Training as per OISD-154,copy of certificate issued by Institute of Driving and Maintenance,Jammu,copy of driving licence,copy of FIR and copy of letter issued by OP to complainant.

                     On the other hand,OP adduced evidence by way of duly sworn evidence affidavits of M.L.Verma Divisional Manager ,United India Insurance Company Ltd. Charanjeet Singh Insurance Surveyors & Loss Assessors and Agya Pal Sangra Surveyors & Loss Assessors,respectively.OPs have has placed on record copy of driving licence verification report, copies of communications and  copies of surveyor reports .

                  We have heard L/Cs for the parties and also considered their rival contentions.

             L/C for the complainant has vehemently argued that the insurance company has repudiated the claim of complainant on flimsy grounds to the effect that the driver of the vehicle at the time of accident was not holding valid driving licence having endorsement of authorization to drive the vehicle carrying dangerous and hazardous nature of goods. He has further argued that the said endorsement is only required when at the time of accident the vehicle was carrying dangerous and hazardous goods, but in the present case it is admitted fact that when the vehicle was met with accident, it was not carrying any kind of dangerous and hazardous nature of goods,therefore,absence of endorsement in the licence of the driver of the vehicle should not be a hurdle to release the claim of complainant which was caused due to the accident. He relied upon the judgment of Hon’ble High Court of Karnataka in the case entitled “New India Assurance Co.Ltd.V/S Shri Chandrappa & Ors” delivered on 17-11-2017 wherein it has been held as under:

    “There is no evidence put forth by the insurer that the offending vehicle was carrying dangerous and hazardous goods in nature at the time of accident. It is fact that in order to drive an empty tanker, no endorsement is required by a driver to drive such vehicle which is not carrying any hazardous or combustible material.

                   He has also referred another judgment of Karnataka High Court in the case titled New India Assurance Co. Ltd.V/S Shri Velumurugan & Ors.delivered on,24-11-2014 wherein it has been held that:

              If the tanker is not carrying of goods of dangerous or hazardous nature, there is no necessity to obtain such special licence to drive an empty tanker.Therefore,argument of Sh.Jaiparkash that the driver did not possess any endorsement is not acceptable. Accordingly we hold that in order to drive empty tanker no such licence is required because the vehicle did not carry any dangerous or hazardous nature of goods.

                With such like submissions,L/C for the complainant has submitted that Ops i.e. the insurance company cannot be absolved from their liability to reimburse the damage caused to the vehicle owned by the complainant.

              On the other hand,L/C for OPs has argued that complainant has violated the terms and conditions of insurance policy by allowing non authorized person to drive the vehicle i.e. tanker in whose driving licence the endorsement of driving the vehicle carrying hazardous and dangerous goods is conspicuously absent in the driving licence,therefore,insurance company is not liable to pay damages occurred to the vehicle in question due to the accident.

                  We have considered rival contentions of both sides and also perused the judgments referred by them.

                 It is not in dispute that the vehicle in question is a petrol tanker for transportation of petroleum products from one place to another, but the complainant is reiterated his claim from the Ops on the ground that at the time of accident the tanker in question was not carrying any kind of petroleum products and it was empty at the time when the ill fated vehicle met with an accident on 10-12-2015.Therefore,the question arise before this Forum is precisely on the point that whether the vehicle which is meant for carrying dangerous and hazardous nature of goods is required to be driven by a driver in whose driving licence there must be an endorsement of authorization of driving vehicle carrying dangerous and hazardous goods. It has no where been denied by the complainant that the vehicle in question was exclusively used for carrying dangerous and hazardous nature of goods,i.e.petroleum products from one place to another, but the objection raised by the complainant in repudiation of claim by the OP is only to the extent that at the time of accident in which the claim was raised towards the complainant, the vehicle was not loaded with diesel and hazardous goods. In this respect we would like to refer the judgment of our own High Court in the case entitled National Insurance Company Ltd.V/S Mehraj-ud-din Bagwa and others,wherein it has been held:

       If the vehicle was being driven by a person who did not hold a valid driving licence that in itself would amount to a  breach of conditions of the policy and that such a plea was available to be raised as defence by the Insurance Company. In the given case the Hon’ble Court has held that since the vehicle in question was carrying 264 gas cylinders which were regarded as hazardous goods, the driver of the said vehicle clearly did not have an effective driving licence,as such, there is a clear breach of conditions of the policy 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 at the time of accident.

              The specific plea taken by the complainant in the instant complaint is that since the tanker in question was not carrying dangerous and hazardous nature of goods at the time of alleged accident, as such, it does not amount to breach of conditions of insurance policy and therefore,the licence of the driver was not required to have any endorsement to drive the vehicle carrying dangerous and hazardous nature of goods. This contention of the L/C for complainant has been sufficiently answered by the Hon’ble High Court of Karnataka in the case entitled Syed Azhar Hussaini V/S Sharanappa Saibanna and ors,wherein it has been held:

           That the vehicle was loaded with petrol in Gulbarga and was sent to Shahapur for unloading and the accident occurred while returning to Gulbarga after unloading .From this it may be said that at the time of accident, the vehicle was not loaded with petroleum products nor with any other substance of dangerous and hazardous nature, Nevertheless the fact remains that the vehicle when loaded with petroleum products was entrusted to said Saibanna for being driven to Shahapur for unloading. Thus the very entrustment of the vehicle to Saibanna by the owner when the said driver did not possess an endorsement authorizing him to drive the said vehicle itself was opposed to the law and in violation of terms and conditions of the policy.Therefore,the insurer cannot be fastened with the liability of indemnifying the insured.

              The facts of the aforesaid case were similar to the facts of the present case. In the present case also the driver of the tanker,namely,Gurbaksh Singh was driving the tanker in question from Jammu towards Sunderbani and at that time the vehicle was loaded with petroleum products. After unloading the said petroleum products at Sunderbani the vehicle was coming back to Jammu and on the way it met with accident and damage was occurred to the tanker in question for which the complainant is claiming compensation from the Insurance Company. Keeping in view the aforesaid judgment of Hon’ble High Court of Karnataka even if at the time of accident, vehicle was not loaded with dangerous and hazardous nature of goods like petroleum products, but it was mend for that an endorsement in the driving licence of the driver of the said vehicle must be there by virtue of which he should be authorized to drive such like vehicle which is being used for transporting dangerous and hazardous substance. Even in the case entitled United India Insurance Company Ltd.V/S Pawan Sumbly & Ors.the Hon’ble High Court of J&K has opined that

       There is no denial of the fact that the offending tanker is a tanker designed for carrying dangerous and hazardous goods, but the driving licence possessed by the offending driver did not any endorsement authorizing him to drive the vehicle used for carrying dangerous and hazardous substances. Owners of such vehicles must exercise special care to ensure that such vehicle are entrusted for driving and given in the charge of persons, who are duly trained and specifically authorized to take charge of such vehicles and Insurance Company cannot be held liable.

                 In the instant case from the perusal of the file it reveals that the complainant is relying upon the certificate issued by Indian Oil Corporation Ltd.Jammu Depot whereby it was certified that the driver of the tanker,namely,Gurbaksh Singh S/O Harbhajan Singh has attended Safety Training of driving the vehicle carrying hazardous of petroleum products on,09-12-2015.The complainant has also annexed a certificate issued by the Institute of Driving & Maintenance Jammu whereby it was certified that Gurbaksh Singh S/O Harbhajan Singh is a qualified driver and was enrolled in the said institute on,22-10-2015 and he has undergone the course of Educational Training in driving of vehicles carrying dangerous and hazardous nature of goods.But on the other hand,L/C for OPs has produced a communication between the Licencing Authority MVD Jammu to the Surveyor of the Insurance Company whereby it was communicated that as per the records of the Regional Transport Office Jammu, they had not authorized the Indian Oil Corporation Jammu to issue the certificate in respect of hazardous or petroleum products and safety in transportation of petroleum products by road. In the light of the said communication by the Licencing Authorities MVD Jammu, Indian Oil Corporation Ltd.Jammu was not authorized to conduct any such like training programmes and issue certificate in this respect,therefore,the certificate issued by the complainant in this respect has no bearing in the present case.

               As per Rule 9 of Motor Vehicle Rules 1989 there must be an endorsement on the driving licence of the driver who used to drive goods vehicle carrying goods of dangerous and hazardous nature authorizing him to drive goods carriage carrying goods of dangerous or hazardous nature to human life and in the absence of such endorsement, the driver is said to have possessed no valid or effective licence to drive said class of vehicle. Since in the present case, the aforesaid mandatory endorsement is conspicuously absent in the driving licence of the driver,namely,Gurbaksh Singh who was allegedly driving the tanker in question at the time of accident,therefore,it could safely be said that the said driver was not holding a valid and effective driving licence to drive the tanker in question which was meant for transportation of petroleum products.

                  Since this is a case of personal damage to the insured vis-à-vis vehicle which was insured with the Insurance Company, as such, the breach of any condition of the Insurance Policy would disentitle him to claim reimbursement of damaged occurred to his vehicle. Since the Insurance Policy is a privity of contract between the insured and the Insurance Company, as such, insured cannot come out from the terms and conditions of the Insurance Policy depicted in the document of Insurance Policy. One of the terms and conditions of the said policy is that if the vehicle which is insured with the Insurance Company must be driven by a duly authorized and licenced person and in case it is not found to be driven by any authorized or licenced person, the Insurance Company shall not be liable to pay any loss or damage occurred to the said vehicle.

               Hence keeping in view the aforesaid observations, we are of the opinion that OPs are not liable to pay damages to the complainant vis-à-vis the vehicle i.e. the tanker bearing registration No.JK02BJ-8491 and the Ops have rightly repudiated the claim of the complainant.Therefore,we do not find any deficiency in service on the part of OPs,therefore,present complaint is dismissed However, 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                                                    (Sunit Gupta)                               

                                                                                 (Distt.& Sessions Judge)

                                                                                       President

Announced                                                             District Consumer Forum

15-12-2018                                                                   Jammu.

 

Agreed by                                                                

                                                               

  Ms.Vijay Angral          

  Member                                                                                              

 

Mr.Ghulam Sarwar Chauhan

Member