BALWINDER KAUR vs Reliance General Insurance

PETITIONER /Complainant has filed present revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act'') against impugned order dated 31.1.2014 passed by State Consumer Disputes Redressal Commission, Punjab (for short, ''State Commission'') vide which appeal filed by Respondents/Opposite Parties against order dated 8.12.2009 passed by District Consumer Disputes Redressal Forum, Patiala (for short, ''District Forum'') was allowed. Consequently, complaint filed by petitioner before the District Forum was dismissed.

BRIEF facts are, that Petitioner filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against respondent on the grounds, that she is owner of HTV No.PB -11 -AE -9602 which was insured with the respondents vide policy dated 08.12.2007. This vehicle met with an accident and was got repaired under supervision of respondents. Petitioner spent about Rs.2.00 lacs on its repair. Inspite of various request, ultimately vide their letter dated 01.07.2008, respondents repudiated the claim. Thereafter, complaint was filed.

IN reply, respondents admitted that vehicle was insured with it. However, petitioner gave intimation on 27.03.2008, that is, after 5 days regarding the loss. Shri Rajeev Sharma, Surveyor was deputed who submitted his report dated 09.06.2008. In the claim form submitted by the petitioner, it was stated that vehicle was driven by Kulwant Singh at the time of accident. As per driving licence, driver was entitled to drive LMV and HMV only. The vehicle as per load challan, was transporting 20,000 liters ENA. However, driver was not competent to drive the vehicle loaded with hazardous goods which is violation of the terms and conditions. Therefore, claim was repudiated, vide letter dated 01.07.2008. District Forum allowed the complaint, vide order dated 8.12.2009 and passed following directions;

"The O.Ps are directed to pay the complainant repair charges of the vehicle in question to the tune of Rs.1,28,162/ - with interest thereon @ 9% P.A. w.e.f. 27/06/2008 giving three months time to the O.Ps for processing the claim w.e.f. 27.08.2008, the date on which the claim was submitted to them till the date of actual realization. Since interest on the claim amount is being allowed, no further compensation for deficiency in service or harassment is allowed. The O.Ps should also pay costs of litigation to the tune of Rs.3,000/ - to the complainant."

BEING aggrieved, respondents filed appeal before the State Commission, which was allowed.

HENCE , present revision.

WE have heard the learned counsel for petitioner and gone through the record.

IT is submitted by learned counsel that impugned order is erroneous in law, as non - endorsement on driving licence is of no consequence to the driving skill of the driver. Endorsement with regard to hazardous goods on the driving licence, neither increase the efficiency of driver nor its absence reduce his efficiency for driving. No further expertise or driving skill is required for driving (carrying dangerous or hazardous goods). The State Commission overlooked the fact, that while vehicle had been damaged, but there had been no accident, leading to loss of life or injury to any person.

IN support, learned counsel relied upon a decision of Madhya Pradesh High court, Baghelkhand Filling Station and anr. Vs. Brijbhan Prasad and others, 2007 2 ACC 457.

PETITIONER in the complaint has averred; "that the vehicle in question met with an accident and the vehicle in question was got repaired by the complainant under the supervision of surveyor of the opposite party as the complainant has informed the opposite party regarding the loss to the vehicle in question in accident after the accident and a Surveyor has been appointed by the opposite party under whose supervision the vehicle in question was got repaired by the complainant spending amount in question."

AFTER scanning through the entire complaint, it is manifestly clear, that petitioner has neither mentioned the date of accident nor the manner in which accident took place. These are the material facts which ought to have been disclosed by the petitioner.

IT is well settled that when a litigant approaches the judicial forum after concealing material facts, then her complaint should be thrown away at the threshold. The manner in which the accident took place is of upmost important in order to decide the controversy, since vehicle at the time of so called accident, was loaded with hazardous goods i.e. it was transporting 20,000 liters ENA. Petitioner for first time in the present revision, in the ''SEQUENCES OF EVENTS AND SYNOPSIS'' has stated; "On 22.3.2008 the vehicle met with an accident near Village Adampur when the driver tried to save a buffalo which suddenly darted across the road."

THIS story of saving a buffalo, has been introduced for the first time before us. It would be pertinent to mention here, that petitioner has not placed on record, copy of FIR nor the conditions of Insurance Policy. First Information Report lodged with the police, could have thrown light as to the manner in which accident took place. Thus, inference has to be drawn against the petitioner for not filing the basic document.

BE that as it may, now it is to be seen as to whether any intimation was given to the respondent company immediately after the accident. The complaint is absolutely silent on this material aspect also. But as per written statement, petitioner intimated the respondent only on 27.3.2008, i.e. after five days regarding the loss. It is well settled, that where insured fails to inform the insurance company forthwith about the incident, it is violation of the mandatory conditions of the insurance policy.

IN First Appeal No.321 of 2005 titled as "New India Assurance Company Ltd. Versus Trilochan Jane" decided on 9.12.2009, this Commission held as under; "Learned counsel for the respondent, relying upon the Judgment of Hon''ble Supreme Court in National Insurance Company Limited Versus Nitin Khandelwal reported in (2008) 11 SC 256 contended that in the case of theft of vehicle, breach of condition is not germane. The said judgment was in a totally different context. In the said case, the plea taken by the Insurance Company was that the vehicle though insured for personal use was being used as a taxi in violation of the terms of the Policy. The plea raised by the Insurance Company was rejected and it was observed that in the case of theft breach of condition is not germane. In the present case, the respondent did not care to inform the Insurance Company about the theft for a period of 9 days, which could be fatal to the investigation. The delay in lodging the FIR after two days on the coming to know of the theft and 9 days to the Insurance Company, can be fatal as, in the meantime, the car could have travelled a long distance or may have beer, dismantled by that time and sold to kabadi (scrap dealer). In our view, the State Commission erred in holding that the respondent/complainant had reported the theft of the vehicle to the appellant -Insurance Company within a reasonable time. We are not going into the other question regarding violation of Condition No.5 of the Insurance Policy as we have non -suited the respondent/ complainant on the first ground."

SIMILARLY , Hon''ble Supreme Court in Civil Appeal No.6739 of 2010 (Oriental Insurance Co. Ltd. Vs. Parvesh Chander Chadha decided on 17.8.2010, observed; "In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavour to recover the same. Unfortunately, all the consumer fora omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non -standard basis."

IT is also well settled, that the terms of the policy have to be construed as it is and we cannot add or subtract something. Policy contract is between the parties and both parties are bound by terms of contracts. This view was taken in Hon''ble Supreme Court in United India Insurance Company Ltd. V. M/s. Harchand Rai Chandan Lal, 2004 4 CPJ 15.

THUS , in the present case there has been violation of mandatory conditions of the insurance policy.

NOW coming to the impugned order, the State Commission observed; "15. Respondent No.1 is owner of the vehicle bearing Registration NoPB -11 -A# -9602 and the description of the vehicle is mentioned in survey report Ex.R -2 and the Make and Model of this HTV vehicle is Tata LPT -2515/2006 and is a tanker. The respondent has just mentioned it as HTV, but the above description is required to know that it is a tanker and is a Heavy Transport Vehicle Tata PT -2515/2006. The said vehicle met with an accident and the surveyor was appointed and as per report of the surveyor, the vehicle met with an accident on 22.03.2008 at around 5.30 a.m. near Village Adampur, near Dadri (Haryana). At the time of accident, 20000 liters ENA was loaded in the vehicle and it was going towards Pondicherry from Banur. The ENA is an hazardous substance and to drive a vehicle, loaded with hazardous substance, a special endorsement on the licence is required to be made. Section 14 of the Motor Vehicle Act, 1988 is with regard to the Currency of licence to drive motor vehicles and U/s 14(2) (a), it is provided as follows: -

"14. Currency of licences to drive motor vehicles: -

A learner''s licence issued under this Act shall, subject to the other provisions of this act, be effective for a period of six months from the date of issue of the licence A Driving licence issued or renewed under this Act shall: 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 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."

Rule 9 of the Central Motor Vehicle Rules, 1989 provides as follows; 9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods:

(1) One year from the date of commencement of Central Motor Vehicle (Amendment) Rules, 1993, any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life share, in addition to being the holder of a driving licence to drive a transport vehicle, also have the ability to read and write at least one Indian language out of those specified in the VII Schedule of the Constitution and English and also possess a certificate of having successful), passed a course consisting of following syllabus and periodicity connected with the transport of such goods:

Period of training 3 days Place of training At any institute recognised by the State Government A. Defencive driving Questionnaire Duration of training for Cause of accidents A and B -Ist and 2nd day Accidents statistics Driver''s personal fitness Car Condition Braking Distance Highway Driving Road Pedestria crossing Railway crossing Adapting to weather

From the reading of the provisions of the Act and the above rules, it is clear that a person driving the transport vehicle, carrying goods of hazardous nature, is required to have the endorsement for the same and the licence can be effective for a period of one year only. The Rule 9 further adds that such driver should have the ability to read and write at least one language specified in 7th schedule of the Constitution and English and also possess a certificate, having successfully passed the course, consisting of syllabus as described above under the rules. 18. In the present case, the driver of the vehicle in question was holding a licence which was valid for LTV and HTV only, but there was no endorsement on the driving licence for driving the vehicle loaded with hazardous goods, nor he was possessing the requisite qualification or the certificate as provided under Rule 9 of the Central Motor Vehicle Rules, 1989. The District Forum has not taken notice of these facts which are mandatory and has passed the impugned order which is not sustainable in the eyes of law and is against the provisions of the Motor Vehicles Act and Rules. 19. Sequal to the above discussion, the appeal is accepted and the impugned order under appeal dated 08.12.2009 passed by District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed."

ADMITTEDLY , vehicle involved in question was carrying hazardous goods and driver was not having any endorsement as per the provisions of Motor Vehicle Act and Rules. Therefore, we find no reasons to disagree with the above reasonings given by the State Commission.

DECISION of Baghelkhand Filling Station is not applicable to the facts of present case. In that case, there was a collusion between the tanker and the jeep, which resulted in death of five persons.

IN the case in hand, it has nowhere been stated as to how the accident took place, which goes to the root of the matter.

HENCE , we do not find any infirmity or ambiguity in the impugned order. The present revision petition stand dismissed with cost of Rs.10,000/ - (Rupees Ten Thousand only).

PETITIONER is directed to deposit above cost by way of demand draft in the name of "Consumer Legal Aid Account" within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then she shall be liable to pay interest @ 9% p.a. till realization. List on 22.5.2015 for compliance.