SUKHBIR SINGH vs ORIENTAL INSURANCE COMPANY LIMITED

THIS is an appeal filed against order dated 3.3.2003 passed by the District Consumer Disputes Redressal Forum-II [for short hereinafter referred to as the District Forum] in Complaint Case No. 1031 of 1991, Sukhbir Singh v. Oriental Insurance Co. Ltd. & Anr.

THE District Forum dismissed the complaint on the finding that there was no deficiency/negligence in performing service by respondent No. 1 - Oriental Insurance Company Limited [for short hereinafter referred to as the Insurance Company] towards the appellant/complainant. An oil tanker bearing registration No. HR-37-4947 was insured with the respondent No. 1 - Insurance Company vide Cover Note No. 2065920622 dated 22.4.1998 for a sum of Rs. 4.5 lacs. THE goods to be carried were separately insured vide Cover Note No. 120675 dated 1.11.1997 to the extent of Rs. 1.5 lacs. This insurance cover for the goods was later on enhanced to Rs. 3 lacs and extra premium was paid by the complainant when cover note/policy No. 48/00/91-98 dated 20.11.1998 was issued. THE insurance policy covered the period from 1.11.1997 to 31.10.1998. Oil tanker aforesaid was attached with the respondent No. 2 M/s. Sharma Traders [Transporters and Approved Govt. Contractors], Chandigarh for the purpose of carrying on the business of transportation of MS and HSD high speed diesel from various locations of the Hindustan Petroleum Corporation Limited. On 26.7.1998, the tanker was carrying MS 14000 Ltrs. from Ambala Depot to Shoghi Depot (HP) vide document No. 603424 dated 25.7.1998. The oil tanker turned turtle near Salogra, Tehsil and District Solan resulting in damage to the tanker and the oil was split to the tune of 1035 litres and thereby causing financial loss to the complainant. The First Information Report was lodged at P.S. Solan being FIR No. 152 of 26.7.1998 the complainant gave information to the respondent No. 1 - Insurance Company which deputed Shri Bhardwaj, Surveyor of Solan to assess the loss. The Surveyor conducted the survey and submitted his report to the Insurance Company. The loss of 1035 litres of oil was valued at Rs. 27,945/- which was paid by O.P. No. 2 M/s. Sharma Traders to M/s. Hindustan Petroleum Corporation Limited on behalf of the complainant. Later on it was reimbursed by the complainant-respondent No. 2.

The respondent No. 1 - Insurance Company required some documents and information to be furnished by the complainant who submitted clarification to the queries by letter dated 30.12.1998. The licence of the driver of the oil tanker, namely Shri Balbir Singh was duly checked by the Surveyor. The claim of the complainant was, however, repudiated by the Insurance Company vide letter dated 8.6.1999. The complainant filed this complaint alleging that the repudiation of the claim was unreasonable, baseless and illogical and amounted to deficiency in service on part of the Insurance Company.

IN the complaint, prayer was made for the recovery of accidental tanker with two recovery vans, towing charges from Salogara to Solan Police Station and various other amounts including loss of reputation, harassment, humiliation and litigation charges. INterest was also claimed @ 24% per annum on Rs. 85,085/- which was the total of the various items mentioned at Item Nos. (i) to (xii) of the list extracted in the impugned order in Para 1. The O.P. No. 2 admitted the claim of the complainant while the complainant''s case was contested by the Insurance Company (O.P. No. 1). On merit, it was contended that the driver of the oil tanker did not hold a valid driving licence for driving the tanker carrying highly hazardous goods as required by Section 14(2)(a) of the Motor Vehicles Act [for short hereinafter referred to as the M.V. Act]. The repudiation of the claim was defended on the ground that the decision was taken in a bona fide manner. The averment regarding deficiency in service on the part of Insurance Company was denied.

THE District Forum upheld the contention of the respondent No. 1 - Insurance Company and held that though the driver of the vehicle Shri Balbir Singh held a driving licence to drive a heavy vehicle on hill roads, but he did not possess a valid driving licence. Since the oil which was being taken was hazardous in nature and the driving licence did not have the endorsement as required by Section 14(2)(a) of the M.V. Act, the driving licence was not valid and the Insurance Company was justified in repudiating the claim. Resultantly the complaint was dismissed. The respondent No. 1 after service of notice of appeal appeared through Mr. Ashwani Talwar, Advocate and contested the case. The record of the complaint case was summoned from the District Forum. We have heard the learned Counsel for the appellant Mr. Sanjay Judge, Advocate and the learned Counsel for respondent No. 1 Mr. Ashwani Talwar, Advocate. We have carefully perused the impugned order and the record of the case.

THE sole contention raised by the learned Counsel for the appellant is that the driver of the vehicle in question possessed a valid driving licence for driving heavy vehicles including the oil tanker. THE learned Counsel for the Insurance Company Mr. Ashwani Talwar, Advocate, on the other hand, contended that the licence held by the driver of the vehicle in question at the time of the accident did not have the required endorsement under Proviso to Section 14(2)(a) of the M.V. Act which could enable him to drive the oil tanker carrying hazardous goods like petrol/high speed diesel which were highly combustible and required proper education and training at a refresher course under Rule 9 of the Central Motor Vehicles Rules, 1989 [for short hereinafter referred to as the Rules, 1989]. Mr. Ashwani Talwar, Advocate further contended that since there was violation of the statute referred to above i.e. violation of the proviso to Section 14(2)(a) of M.V. Act and Rule 9 of Rules, 1989, the prayer of the appellant for treating the case as "Non Standard Claim" could not be accepted.

ON facts, it is not disputed that there was no endorsement as required by the said proviso to Section 14(2)(a) of the M.V. Act for driving oil tanker carrying hazardous goods. It is also not disputed that the driver of the vehicle did not attend any refresher courses or possessed educational qualification as required by Rule 9 of Rules, 1989. The District Forum considered these submissions in detail and held in Para 8, inter alia, as under : "...The letter of repudiation (C-12) has been referred to above. By this letter O.P. 1 repudiated the claim of the complainant because the driver at the time of the accident was not authorised to drive a tanker as per Rule 9 of the Central Motor Vehicles Rules, 1989. A photocopy of the driving licence of Balbir Singh, driver has been placed on record and as per it he was licensed only to drive LMV/HGV (PE) vehicles. However, Rule 9 of the Central Motor Vehicles Rules, 1989 inter alia stipulates that a driver for driving a tanker carrying hazardous goods should possess a driving licence prescribed under Rule 9 ibid. Admittedly, the tanker which was carrying and transporting MS and high speed diesel was carrying hazardous goods. Therefore, the driver of this tanker was legally required to possess a valid driving licence prescribed under Rule 9 ibid. However, it is not suggested by the learned Counsel for the complainant that said Shri Balbir Singh was holding such a valid licence authorizing him to drive a tanker carrying hazardous goods. Therefore, prima facie it is proved that Balbir Singh, driver was driving the oil tanker carrying hazardous goods in it without a valid driving licence prescribed for that particular type of vehicles carrying hazardous goods...." The District Forum relied on the two authorities reported in the cases of Jagdish Parsad Dagar v. Sr. Divisional Manager, LIC, II (1992) CPJ 493 (NC), and Zenith Computers Ltd. & Ors. v. The New India Insurance Co. Ltd., I (1995) CPJ 144 (NC)=1995 (2) CON.LT 94 (NC), and on the basis of law laid down in these two authorities, the District Forum held that there was no deficiency in service on the part of the Insurance Company in repudiating the claim.

The learned Counsel for the appellant, on the other hand, placed reliance on the judgment of the State Consumer Disputes Redressal Commission, Madhya Pradesh in the case of Oriental Insurance Co. Ltd. v. Laxminarayan Gupta, 2003 (1) Judicial Reports Consumer 487, wherein it was held that Ambulance was a transport vehicle and the driving licence of the driver, driving such a vehicle required an endorsement authorising him to drive a transport vehicle. The State Commission held that the Insurance Company was required to pay the amount of own damage claimed as a non-standard claim. The State Commission upheld the contention of the Insurance Company regarding the driver of the vehicle not possessing a valid licence to drive a transport vehicle as defined under Section 2(47) of the M.V. Act.

IN para 6 of the judgment, the State Commission held that the INsurance Company was also to be blamed for issuing a policy of insurance for private use than a commercial policy which certainly gave an impression that a driver without authorization of transport vehicle holding a driving licence to drive a light motor vehicle can drive the vehicle. The INsurance Company ought to have settled the claim as non-standard claim. The facts of the instant case are clearly distinguishable inasmuch as the vehicle in question in the instant case is an oil tanker carrying hazardous goods. It is not disputed that the motor petrol or high speed diesel are both hazardous goods which are highly combustible and it required proper endorsement under Proviso to Section 14(2)(a) of the M.V. Act and Rules quoted above also required a proper education and undergoing refresher courses by the driver. The other authority relied on is reported in the case of National Insurance Company Ltd. v. Smt. Swarna Soni, I (2001) CPJ 89, wherein the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla held that the very fact that the driving licence of Shri Jindu Ram, as verified by the competent Motor Licensing Authority at Dharamshala/Pathankot entitles him to drive MTV/HMV on all hill roads, would mean that he was authorised to drive the ill-fated truck which fell down in the accident. The State Commission held that non-settlement of the claim by the Insurance Company was wholly unjustified and untenable in law. On facts, the Himachal Pradesh State Commission held the driving licence to be a valid driving licence for driving heavy motor vehicle on hill roads.

IN the instant case, the driving licence was evidently not valid as it lacked requisite endorsement under Proviso to Section 14(2)(a) of the M.V. Act and there was also non-compliance of Rule 9 of Rules, 1989. The District Forum held that the repudiation of the claim by the respondent-INsurance Company was justified and it did not amount to deficiency in service. The finding of the District Forum, in our considered opinion, does not suffer from any infirmity or any illegality either on facts or in law. Since there was no deficiency in service on the part of the respondent-INsurance Company in repudiating the claim of the appellant/complainant, the District Forum rightly dismissed the complaint. Resultantly, the appeal lacks merit and is dismissed. The District Forum has ordered the parties to bear their own costs of the case. We also deem it appropriate to order that the costs of the case shall be borne by the parties themselves. Copies of this order be sent to the parties free of charge. Appeal dismissed.