DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

BATHINDA

C.C. No. 174 of 5-07-2018

Decided on : 30-11-2021

A.H.M. Infrastructures Pvt. Ltd., SCO 14-15 Utkarsh Complex, Phase 2, Part 1, Model Town, Bathinda, through Inderjit Singh, duly authorized Manager

…...Complainant

Versus

The New India Assurance Co. Ltd., Mall Godown Road, Rampura Phul, District Bathinda 151 103 through its Branch Manager .......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Kanwar Sandeep Singh, President

Sh. Shivdev Singh, Member.

Present :

For the complainant : Sh. Naresh Garg, Advocate

For the opposite party : Sh. Vinod Garg, Advocate.

O R D E R

Kanwar Sandeep Singh, President

1. M/s. A.H.M Infrastructures Pvt. Ltd., (here-in-after referred to as 'complainant') has filed this complaint through its authorized Manager under Section 12 of the Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against New India Assurance Company Limited (here-in-after referred to as 'opposite party').

2. Briefly stated that the complainant firm is Private Limited Company and Mr. Inderjeet Singh is Manager cum duly authorized signatory of the complainant Firm. The complainant is the registered owner of Tanker Regd. No. PB-03-AA-4677. The Complainant purchased Carrier Legal Liability Insurance of Oil Tanker No.PB-03-AA-4677 and in this regard the opposite party issued Insurance Certificate No. 36060436161100000011 w.e.f. 22.06.2016 to 21.06.2017 for the sum of Rs.15,00,000/-. The opposite party never issued any policy to the complainant in this regard.

3. It is alleged that on 14.02.2017 at about 4.30 a.m. the said Tanker of complainant met with an accident Near Lambra, Nakodar-Jalandhar road while the same was going from Bathinda to Jammu. In this regard the DDR No.16 was got registered in the concerned Police Station at P.S. Lambra. At the time of accident, the vehicle was being driven by Jagjit Singh. In this accident, the Tanker of the complainant was badly damaged and total diesel was also lost. The material Diesel was duly insured with the opposite party. At the time of accident the said Tanker was loaded with HSD (Diesel) 24000 Ltrs of Hindustan Petroleum Corporation Ltd. (HPCL), for the amount of Rs.11,70,254.40, which is duly covered under Carrier Legal Liability Insurance of Tanker No. PB-03-AA-4677. In this incident loss of HSD (Diesel) 5506 Ltrs with details of 5000 Ltrs shortage in Chamber No.1 and 506 Ltrs in Chamber No. 2, 3, 4 & 5 to the tune of Rs.3,26,345.79 including Trip Sheet and HPCL deducted the loss amount of Rs.3,26,345.79 from the account of the complainant.

4. It has been pleaded that the driver Jagjit Singh is duly licensed from DTO Bathinda with certificate of Hazardous goods and he duly passed the same and only thereafter Oil Company - Hindustan Petroleum allowed to drive the vehicle with Diesel. The DTO Bathinda office already clarified that the Transport DL is the valid license to drive any type of vehicle even the said truck/tanker and there is no Provision in the software of the DTO Bathinda to mark special endorsement of Hazardous goods. They also clarified that the certificate is sufficient to drive Hazardous goods vehicle and moreover it is common knowledge that the Hindustan Petroleum subsidiary of the Central Govt. of India never allows any driver to drive the vehicle with their material who is not having valid DL and they loaded the tankers only to the valid DL drivers with certificate of Hazardous goods.

5. It is also pleaded that intimation of the accident was immediately given by complainant to the office of opposite party. They appointed spot surveyor Mr. J.K. Kharabanda from Jalandhar, who visited the spot on the same day i.e. 14.02.2017 and confirmed the accident. The said surveyor not provided the report to the complainant whereas under IRDA rules it is mandatory for the surveyor to issue report within 30 Days. The complainant duly supplied all the papers including shortage report to the surveyor which are in their possession. The said tanker was also badly damaged in this accident and the same was shifted with Workshops at Moga by spending Rs. 6,000/-.

6. It has been further pleaded that opposite party again & again demanded the same documents from the complainant which were duly supplied to them. On 19.03.2018 the complainant again sent the documents demanded by opposite party. On 15.05.2018, opposite party again demanded the claim documents and on 02.07.2018 the complainant again sent a letter to the opposite party. The complainant received one letter dated 14.06.2018 in which the Insurance Company illegally in connivance with their surveyor leveled allegations on the complainant that the documents not supplied by the complainant whereas the documents already supplied and the intimation also given to the opposite party. The opposite party in this letter also, illegally remarked that firstly the claim is to be settled by United India Insurance Co., for own damage of Tanker then opposite party will settle the claim. The opposite party through their said surveyor obtained signatures of the complainant on blank Claim Form, different 5-6 blank papers, blank vouchers, blank consent form and blank full and final voucher and gave assurance that the claim will be paid of the HSD (Diesel) under Carrier Legal Liability Insurance as the same is deducted by HPCL. The Surveyors and opposite party never sent any Spot or Final Survey report to the complainant, although the same is mandatory under the regulations of IRDA Rules.

7. It is pleaded that complainant inquired many times regarding his claim of diesel loss from the office of opposite party, but they did not give any satisfactory reply and sitting over the claim of the complainant without any reason. Due to the non-payment of the said claim of Rs.3,26,345.79 for loss of material HSD (Diesel) under Carrier Legal Liability Insurance by the opposite party, the complainant suffered mental agony and pains for which he claim compensation to the tune of Rs.1,00,000/-.

8. On this backdrop of facts, the complainant has prayed for directions to the opposite party to pay claim amount of Rs. 3,26,345.79 for loss of material HSD (Diesel) under Carrier Legal Liability Insurance, with interest @ 18% P.A. in addition to compensation of Rs. 1,00,000/- besides Rs. 50,000/- as litigation expenses.

9. Upon notice, opposite party appeared through counsel and contested the claim of the claimant by filing written reply raising legal objections that the complainant has concealed material facts and documents from Commission as well as opposite party, therefore, the complainant is not entitled to any relief; that the complaint is bad for non joinder of necessary parties as the complainant has not impleaded United India insurance company Limited with whom the vehicle/Oil Tanker No. PB-03-AA-4677 is insured.; that the complainant is not consumer of the opposite party and that the complainant has no locus standi or cause of action file the present complaint.

10. On merits, opposite party has denied that there was a loss of 5506 litrs diesel as described by the complainant of the value of Rs, 3,26,345-79. It has been pleaded that opposite party deputed Mr. JK Kharbnda, surveyor and loss assessor, who conducted survey and assessed the loss at Rs. 2,43,803/- vide his survey report. As per surveyor, there was leakage of diesel of only 5000 litrs from chamber 1 which was directly related to the accident whereas chambers No. 2,3, and 4 were intact and whatever shortage was that was subsequent due to delay factors when adequate precaution has not been taken by the insured.

11. It has been further pleaded that as per M.V Act and Motor Vehicle Rules, the driver driving a vehicle carrying hazardous goods must be having a training certificate for driving hazardous goods and an endorsement in the driving licence must be there for said training certificate. The complainant has not produced on file any documentary proof to the effect that JagjitSingh alleged drive of the vehicle ever made any efforts by moving any application with requisite fee to the licensing authority for getting endorsement of certificate of training for hazardous goods. In the absence of endorsement, the complainant cannot claim that the driver was having a valid driving licence. Even otherwise, the claim is pending as the own damage claim is still to be settled and decided by United India Insurance Company and the opposite party will decide the claim as per law and as per terms and conditions of policy.

12. The opposite party has further pleaded that it had sent various letters to the complainant for completion of formalities and to submit documents for decision of claim, but the same has not been submitted. Even OD (own damage) claim is pending with United India Insurance Company. It is denied that the letter dated 14-06-2018 issued by the opposite party is illegal and all the documents have been supplied by complainant. After denying all other averments of the complainant, the opposite party prayed for dismissal of the complaint.

13. In support of his complaint, the complainant tendered into evidence affidavit of Inderjit Singh dated 05-07-2018 (Ex.C-1), photocopy of resolution (Ex.C-2 ), photocopy of Insurance Certificate (Ex.C-3) photocopy of RC (Ex.C-4), photocopy of permit (Ex.C-5), photocopy of DDR (Ex.C-6) photocopy of challan (Ex.C-7), photocopy of certificate (Ex.C-8) photocopy of list (Ex.C-9), photocopy of DL (Ex.C-10), photocopy of training certificate (Ex.C-11) and photocopy of letter along with postal receipt (Ex.C-12 to C-15).

14. In order to rebut the evidence of complainant, the opposite party stendered into evidence affidavit of Ashish Pal dated 23-08-2018 (Ex.OP1/1), photocopy of policy (Ex.OP1/2), photocopy of survey report containing 10 pages (Ex.OP1/3) affidavit of JK Kharbanda dated 16-08-2018 (Ex.OP1/4), Photocopy of letters (Ex.OP1/5 to OP-1/9) and photocopy of e-mail ( Ex.OP1/10).

15. We have heard learned counsel for the parties and gone through the record.

16. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that material facts are not in dispute. It is not disputed that complainant is the owner of vehicle in question and the vehicle was insured with the opposite party under Carrier Legal Liability Insurance w.e.f. 22-06-2016 to 21-06-2017. It is also not disputed that vehicle met with an accident on 14-02-2017 and intimation was given to opposite party No. 1. The surveyor was appointed. Loss was got assessed. The complainant submitted claim and till date opposite party did not settle the claim on the ground that Own Damage claim of Tanker in question is still pending with United India Insurance Co. Ltd.,

17. It is further submitted by learned counsel for the complainant that own damage claim is not being paid by United India Insurance Company on the ground of no endorsement of hazardous goods vehicle on the DL whereas there is nothing on record to prove that driver was not holding a valid and effective driving licence or he has not obtained training for hazardous goods vehicles. The complainant has also produced on record copy of Training Certificate of Driver Jagjit Singh (Ex.C-11) and photocopy of DL of Jagjit Singh as Ex. C-10. As per this certificate, the driver Jagjit Singh has obtained training from 15-12-2016 to 17-12-2016. There is nothing to show that this certificate was found fake. Therefore, it is proved that driver Jagjit Singh has obtained training and is holding valid licence (Ex. C-10). No separate licence is required to be issued for different vehicle as per Motor Vehicle Act also. As such, complainant is not liable for any breach of insurance term and insurance company is liable to pay insurance claim to complainant. The complainant has suffered loss on account of material loss i.e. diesel (HSD) to the tune of Rs. 3,26.345.79. Thus, he is entitled to said claim against material loss in addition to other reliefs claim by him in prayer clause.

18. To support these submissions, learned counsel for the complainant has cited following case law which are summarized as under :-

    (i) 2020 (2) CPJ 415 NC UIIC Vs Prahallad Rai (ii) FAQ No. 3295 of 2016 decoded on 21-5-2019 P&H HC, Balwan Singh Vs. Bajaj Allianz (iii) FAO No. 8253 of 2017 decided on 30-01-2019 P&H HC Hardeep Singh Vs. UIIC (iv) FAO 1210 of 2014 decided on 26-3-2018 P&H HC, NIV Vs. Harbans Kaur (v) 2004 (1) CPJ 22 SC, UIIC Vs. M/s Pushpalaya Printers (vi) Jitendra Kumar Vs. OIC SC Civil Appeal No. 4647 of 2003 decided on 17-7-2003 (vii) NIC Vs. Mata Naina Devi NC Revision petition No. 805 of 2016 decided on 12-5-2017 (viii) UIIC Vs. Sabo Civil Appeal No. 893 of 2020 decided on 18-01-2021 Rajasthan High Court (ix) 2008 (4) CPJ 1 SC NIC Vs Nitin Khandewal (x) 2015 (4) CPJ 426 NC Jitendrainh Vs. Iffco Tokio (xi) 2016 (2) CPJ 2 C (CN) Rajesh Bajaj Vs Bajaj Allianz GIC (xii) 2007 (1) CPJ 341 NC, NIA Vs. Jhankar Singh (xiii) 2008 ACJ 516 NIC Vs. Ramasamy (xiv) 2017 ACJ 1386 NIC Vs. Savita Katiyar (xv) 2015 (4) TAC 31 UIIC Vs. Seema (xvi) 2015 ACJ 132 UIIC Vs. A Verlaxmi (xvii) 2018 ACJ 1462 Vijayakumar Vs. Kalpana (xviii) FAO 4535 of 2014 NIA Vs Kanta Devi.

19. On the other hand, learned counsel for opposite party has submitted that there is no illegality in holding the claim of the complainant as the Own Damage Claim of tanker in question is still pending with United India Insurance Company Limited. Admittedly at the time of accident, the vehicle was loaded with diesel which is flamable and hazardous. Therefore, only person having special training for driving the vehicle carrying flamable and hazardous goods was entitled to drive the vehicle. The complainant is also aware of the fact that only driver having special training is competent to drive the vehicle. The complainant has produced on record certificate got issued from District G B Nagar (Ex. C-11). The driver of heavy goods vehicle carrying dangerous and hazardous goods, should be qualified and having taken training from duly authorized and competent driving school for driving the same and an endorsement regrading the same should have been got made by such driver, on his legal,valid driving licence. But admittedly no such training certificate was produced or given by the alleged driver to concerned transport authorities along with his original driving licence nor any such endorsement has been got made and this fact was well within the knowledge of owner of the vehicle/insured. Hence, he has knowingly and willfully violated the terms and conditions of the policy in question. Thus, complainant is not entitled to any claim under Carrier Legal Liability Insurance.

20. We have carefully gone through, the record, case law cited by learned counsel for the complainant and have considered the rival contentions.

21. Some facts are not in dispute. It is not disputed that complainant got insured his vehicle under Carrier Legal Liability with the opposite party. The insurance was valid from 22-6-2016 to 21-6-2017. The vehicle/tanker in question met with an accident on 14-2-2017 wherein the insured tanker was damaged and complainant suffered loss of material i.e. diesel (HSD). The complainant submitted claim and completed the material formalities but the opposite party did not settle the claim of the complainant on the ground that Own Damage claim is still pending with United India Insurance Company and material loss claim will be settled after settlement of Own Damage claim and further driver was not qualified to drive vehicle carrying dangerous and hazardous goods, hence terms and conditions of policy were violated and claim was not payable.

22. The opposite party has placed on file a letter dated 14-6-2018 (Ex. OP-1/8) which reveals that opposite party has informed the complainant that until OD (own damage) claim of United India Insurance Company is paid, opposite party cannot settle the claim.

23. The opposite party could not show any term or condition of policy under which present claim cannot be settled until own damage claim of vehicle in question is not settled. This Commission is of the opinion that opposite party is making excuses just to sit over the claim of complainant for indefinite period. Therefore, this plea of the opposite party is not sustainable.

24. The other contention of the opposite party in repudiating the claim of the complainant is that there is no endorsement on the DL of driver for driving the hazardous goods carrying vehicle which is required as per Central Motor Vehicle Rule 9 of 1989. The DL of the driver was not valid and effective at the time of accident to drive the hazardous goods carrying vehicle and policy condition and the statutory requirement of valid DL has been violated. Therefore, claim is not maintainable under the policy, hence repudiated.

25. Rule 9 of The Central Motor Vehicles Rules, 1989 deals with the education qualification for driver of goods carriage carrying dangerous or hazardous goods. As per this rules, in addition to education qualification, a certificate of having successfully passed course consisting of syllabus and periodicity connected with the transport of such goods is also required. The Motor Vehicles Rules are statutory rules. The compliance of these rules is also required. As per these rules, course consisting of syllabus and periodicity connected with the transport of such goods is also required.

26. The complainant has placed on file photocopy of driving licence of driver (Ex. C-10) and training certificate (Ex. C-11) issued by Om Sai Motor Driving Training School, District G.B. Nagar (U.P.) of the driver Jagjit Singh to prove that the driver was having valid, legal and effective driving licence and he has obtained special training also. The opposite party has not produced any evidence on file to establish that this endorsement is necessary whereas as per rule 9 of Central Motor Vehicles Rules, 1989, as detailed above, training for driving Hazardous goods is necessary and complainant has produced on file training certificate Ex. C-11. The opposite party has neither proved that driving licence of driver is not genuine nor that training certificate produced by complainant is fake.

27. It is evident that the driver was having valid driving licence to drive transport vehicle and also the driver had undertaken a training programme for safe transportation of hazardous goods as per Motor Vehicle Rule 9, but without having endorsement on the DL. However, mere absence of endorsement on driving licence would not have disqualified the driver to drive the vehicle carrying goods of hazardous nature. Carrying or Non-carrying of hazardous substance have no nexus with the cause of accident. In such circumstances, the breach of not having obtained endorsement is not so fundamental as to have contributed to the cause of accident.

28. Therefore, this Commission is of the considered opinion that mere endorsement on the driving licence does not increase the professional skill of the driver. The opposite party cannot escape its liability to pay the claim. Thus, non-settlement of claim by opposite party without any basis amounts to deficiency in service on their part.

29. The complainant has claimed net shortage of High Speed Diesel 5506 Ltrs with details of 5000 Ltrs shortage in Chamber No. 1 & 506 Ltrs in Chamber No. 2,3, 4 & 5 to the tune of Rs. 3,26,345.79 (The calculation done by complainant is not correct). The final surveyor J K Kharbanda in his final survey report (Ex. OP-1/3) as opined that impact was only at front RH side portion of the vehicle which resulted in the leakage of chamber No. 1 which contains loss of 5000 Ltrs diesel, thus he allowed the same in his assessment. DDR (Ex. C-6) also indicates loss of Diesel from chamber No. 1 only. Therefore, the complainant is entitled to the claim as assessed by surveyor.

30. Resultantly, this complaint is partly accepted with Rs. 10,000/- as cost and compensation against the opposite party. The opposite party is directed to pay Rs. 2,43,803/- as assessed by surveyor with interest @9% P.A. from the date of institution of complaint i.e. 5-7-2018 till payment.

31. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

32. The complaint could not be decided within the statutory period due to heavy pendency of cases.

33. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    30-11-2021

    (Kanwar Sandeep Singh)

    President

     

     

    (Shivdev Singh)

    Member