DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

BATHINDA

C.C. No. 62 of 27-02-2018

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

1. United India Insurance Company Limited,BO 7-A, Mansa Road, Civil Lines, Bathinda, through its Branch Manager

2. HFC Bank Ltd., 3027-B, Guru Kashi Marg, Near Bus Stand, Bathinda, through its Branch Manager .......Opposite parties

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 parties : Sh. S.M. Goyal, Advocate, for OP No.1

Sh. Sanjay Goyal, Advocate, for OP No.2.

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 United India Insurance Company Limited and another (here-in-after referred to as 'opposite parties').

2. Briefly stated, the case of the complainant is that the complainant firm is Pvt. Ltd. Company and Mr. Inderjeet Singh is Manager cum duly authorized signatory of the complainant firm. The complainant is the registered owner of Tanker Registration No. PB-03-AA-4677. The said tanker is comprehensively insured (Package Policy) with opposite party No. 1 vide Insurance Policy No.2004013116P101495055 w.e.f. 03.05.2016 to 02.05.2017 for the IDV of Rs.13,00,000/- and is duly hypothecated with opposite party No.2, as such opposite party No. 2 is Performa necessary party.

3. It is alleged that on 14.02.2017 at about 4.30 a.m. the said Tanker of the complainant met with an accident Near Lambra, Nakodar-Jalandhar road while the same was going from Bathinda to Jammu. DDR No.16 was registered in the concerned Police Station at P.S. Lambra, in this regard. The vehicle was being driven by Jagjit Singh at the time of accident and it was badly damaged and diesel was totally lost. The material/diesel was duly insured with New India Assurance Co. Ltd., Bathinda. The driver Jagjit Singh is duly licensed from DTO Bathinda with certificate of Hazardous goods and he duly passed the same. Thereafter Oil Company Hindustan Petroleum allowed the driver 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 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. Moreover it is a matter of common knowledge that the Hindustan Petroleum subsidiary of the Central Govt. of India never allow any driver to drive the vehicle with their material who is not having valid DL.

4. It is further alleged that intimation of the accident was immediately given by complainant to the office of opposite party No.1. 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 accident. The said surveyor charged Rs.1,503/- from complainant against the rules whereas survey fee is to be paid Insurance Company. The tanker was badly damaged in this accident and the same was shifted with workshop at Moga by spending Rs. 6,000/- under the instructions of opposite party No.1 through their spot surveyor. Thereafter tanker was moved to Moga and opposite party No.1 appointed final surveyor Mr. Suresh Vashisht from Ludhiana. The complainant spent Rs.5,62,807/- on the repair of the said tanker in the presence of the final surveyor. After repair, tanker was shifted to Pathankot for the repair of oil container which, being special Job, was to be done at Vishal Engg. Works. The complainant spent Rs.61,509/- on the same. In this way, the complainant spent Total Rs.5,70,310/- i.e. Rs.5,62,807/- on repair of Tanker and Rs.1,503/- paid as survey fee & Rs.6,000/- spent as Towing charges. All the payments spent by complainant from his pocket in the presence of the surveyors of opposite party No.1. All the original bills already supplied to opposite party No.1. through final surveyor. The total repair carried out under the supervision of the surveyors of opposite party No.1 under their instructions. At the time of final survey the surveyor of opposite party No.1 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 full claim will be paid. The surveyors and opposite party No.1 never sent any spot or final survey report to the complainant, although the same is mandatory under the regulations of IRDA Rules.

5. It is also alleged that complainant inquired many times regarding his claim of tanker from the office of the opposite party No.,1 but they did not gave any satisfactory reply and sitting over the claim of the complainant without any reason. The opposite party No.1 did not even pay the amount as per report of surveyor which was prepared under their directions by their Surveyor. Due to Non-payment of claim amount by opposite party No.1, the complainant has suffered mental agony and pains for which he claims compensation to the tune of Rs.1,00,000/-.

6. On this backdrop of facts, the complainant has prayed for directions to opposite party No.1 to pay total claim amount of Rs. Rs.5,70,310/- with interest @18% P.A. from the date of loss till payment in addition to Rs. Rs.1,00,000/- as compensation besides Rs.50,000/- as litigation expenses.

7. Upon notice, opposite party No.1 appeared through counsel and contested the claim of the complainant by filing written reply raising legal objections that complaint has not been filed by authorized and competent person. Even no copy of minutes book, memorandum of articles, association, agenda, book etc., have been produced; that the accident in question took place near Lambra Nakodar-Jalandhar Road and as such, this Commission at Bathinda has got no jurisdiction to entertain and try this complaint; that complainant has no locus standi to file present complaint; that the complainant has no cause of action to file this complaint; that the complaint is not maintainable in the present form; that the complaint is not within limitation; that the complainant has concealed true and material facts from this Commission; that the complaint is estopped from filing this complaint due to its acts, conducts, omission, admissions and acquiescence; that the complaint is bad for misjoinder of parties and also bad for non-joinder of necessary parties; that the compliant has not been properly verified and that the complaint is false, frivolous, vexatious and has been filed to get wrongful benefit and to harass and humiliate opposite party No.1.

8. On merits, opposite party No.1 denied that Sh. Inderjeet Singh is duly authorized signatory. It has been pleaded that the insurance policy was duly given to the complainant and it is subject to its specific terms, conditions and exceptions. Intimation qua alleged accident was given and concocted DDR was got registered.

9. It has been further pleaded that alleged driver of Tanker namely Jagjit Singh was not having legal, valid effective and proper driving licence to drive the same. The tanker was being plied with Hazardous goods so its driver should have obtained mandatory, proper training certificate from duly recognized college in this regard, for driving Hazardous goods Tanker and further the training certificate is not only to be obtained or kept, but on the basis of such certificate, a legal, valid proper endorsement from competent Transport Office,was required to be got made. The alleged DL of driver of tanker does not find mentioned any such endorsement authorizing him to drive Hazardous goods Tanker inquisition. As per RC vehicles ( Tankers) is HGV, but alleged DL of Jagjit Singh was only for Transport vehicle and all these facts were well within knowledge of insured from the very beginning. The DTO Bathinda was not approached for making mandatory, legal and required endorsement of Hazardous goods vehicle, driving on the DL of Jagjit Singh, on the basis of alleged training certificate, so question of refusal by DTO does not arise at all. It is denied that there is no provision in software of DTO Bathinda to make special endorsement of Hazardous goods. Even in case of nonworking of any such software, same can be made even manually and provision of MV Act and Rules in this regard cannot be made redundant by complainant. Neither alleged school of training appears to be legally authorized or approved nor legal and valid training certificate was ever possessed by driver Jagjit Singh and alleged certificate is merely a waste paper and corries no value in the eyes of law.

10. It has been further pleaded that spot survey was conducted by Mr. JK Kharbanda from Jalanadhar after making visit and he had submitted his report dated 25-07-2017. Thereafter opposite party No.1 appointed final surveyor He calculated the alleged loss of Rs. 2,72,500/-, after deducting the salvage and excess clause amount, subject to its acceptance by the company and the company has not accepted the said report and its liability as the driver of vehicle/Tanker was not holding a legal, valid and proper driving licence with mandatory endorsement authorized him to driver the Hazardous goods vehicle. The policy of insurance was not cashless and as such the payment if any, is to be made by the insurance company only in accordance with terms and conditions of policy. The opposite party No.1 is not liable to pay any amount in this case as the terms and conditions of insurance policy have been violated by insured and his driver knowingly, willfully and intentionally. After controverting all other averments, the opposite party No. 1 has prayed for dismissal of complaint.

11. The opposite party No. 2 put an appearance through counsel and filed separate written reply raising legal objections that the complaint is not maintainable qua opposite party No. 2 as no relief has been claimed against it. In case complaint is allowed qua opposite party No.1, then payment be given to opposite party No. 2 being the financier of the vehicle as vehicle is mortgagee with opposite party No. 2. It has been pleaded that there is no deficiency in service on the part of opposite party No. 2.

12. On merits, opposite party No. 2 pleaded that complaint is not connected with it and prayed for the dismissal of the complaint with special costs.

13. In support of his complaint, the complainant tendered into evidence affidavit of Inderjit Singh dated 14-05-2018 (Ex.C-1), photocopy of statements (Ex.C-2 & C-3), photocopy of verification of DL (Ex.C-4) photocopy of policy (Ex.C-5), photocopy of RC (Ex.C-6), photocopy of fitness certificate (Ex.C-7) photocopy of permit (Ex.C-8), photocopy of DL (Ex.C-9) photocopy of training certificate (Ex.C-10), photocopy of DDR (Ex.C-11), photocopy of receipt (Ex.C-12), photocopy of towing bill (Ex.C-13), photo copy bills (Ex.C-14 to C-24) and closed the evidence.

14. In order to rebut the evidence of complainant, the opposite party No. 1 tendered into evidence affidavit of Baldev Singh dated 21-02-2019 (Ex.OP1/1), photocopy of DL (Ex.OP1/2), photocopy of reports (Ex.OP1/3 to OP1/5,) photocopy policy (Ex.OP1/6), Photocopy of final survey report (Ex.OP1/7), photocopy of RC (Ex.OP1/8), photocopy of verification reports (Ex.OP1/9 & OP1/10) and closed the evidence.

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 w.e.f. 3-05-2016 to 2-05-2017. 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 the claim of the complainant has been repudiated.

17. It is further submitted that 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-10) and photocopy of DL of Jagjit Singh as Ex. C-9. 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-9). 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.

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 No. 1 submitted that there is no illegality in repudiating the claim. The complainant has admitted that vehicle in question is a gas tanker. Admittedly, the gas 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-10). 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.

20. In support of his submissions, learned counsel for the opposite party has relied upon the following authorities :

    (i) 2018 (2) Recent Civil Reports 42 SC Pappu & Ors Vs. Vinod Kumar Lamba (ii) 2019 (4) Accident and Compensation Cases 409 UIIC Vs. Saminuddin & Ors (iii) 2016 (4) JKJ 36 UIIC Vs Pawan Sumbly and Ors (iv) 2019 (1) TNMAC 105 Karnataka High Court Divisional Manager, New India Assurance Co. Ltd., Vs. Shabana and Ors (v) 1999 (4) Recent Civil Reports 111 SC OIC Vs. Sony Cheriyan (vi) 2003 (3) CPJ 633 Chandigarh State Commission Sukhbir Singh Vs. OIC (vii) 2003(3) CPJ 125 Prabhakar Transporter Vs. National Insurance Co. (viii) 2008(3) CPJ 439 OIC Vs. Surendra Kumar Jain (ix) 2008(3) Recent Apex Judgement (RAJ) 215 G M Haryana Roadways Vs. Jai Bhagwan & Anr (x) 2010(84) ACJ 1912 Nagamani Vs. Singarabvelu (xi) 2012 (3) CPJ 492 NC NIC Vs. S Amirtharaj (xii) 2013 Latest HLJ (HP) 705 Jayanti Gas Service Vs. NIC (xiii) FAO 420002912 (O&M) decided on 18-2-2014 Sajjan Singh & another Vs. Ramesh Kumar and others (P&H High Court) (xiv) 2012 (2) CPR 389 Balwinder Kaur Vs. Reliance General Insurance & Anr (NC) (xv) 2015 (4) PLR 619 Hanuman Singh Vs. Sona Devi (xvi) 2016 (4) JKJ 36 UIIC Vs. Pawan Sumbly & Ors (xvii) 2017 (5) JKJ 399 NIC Vs. Mehraj-ud-din-Bagwa & Ors (xviii) 2017 (5) Recent Civil Reports 370 Joginder Kaur & Ors Vs. Mangal & Ors (xix) 2017(6) Allahabad Daily Judgement 25 Baburam Verma Vs. Additional District Judge No. 9 Sitapur & Ors. (xx) 2018 Accidents Claims Journal 1250 UIIC Vs. Subash Singh & Ors (xxi) 2018 (3) CLT 329 M/s. Dutta Service Station Vs. NIC (xxii) 2018 (3) Punjab Law Repoter 415 NIAC Vs. Sunita Makol & Ors (xxiii) First Appeal No. 347 of 2018 decided 20-12-2018 NIC Vs. Arinderbeer Singh (xxiv) 2019 ACC 608 Sarabjit Kaur & Ors. Vs. Mohan Singh & Ors. (xxv) Revision Petition No. 1051 of 2015 decided on 25-8-2010 (NC) Ram Asra Vs. NIC (xxvi) CMA No. 1164 of 2012 & MP No. 1 of 2012 NIC Vs Kasambu decided on 27-4-2021(Madras High Court) (xxvii) 2021(1) Air Karnataka High Court Reports 18 H Kumari & Ors Vs. B C Sridhara & Ors. (xxviii) 2021(1) Transport and Accidents Claims Cases 492 Sarabjit Kaur & Ors. Vs. Mohan Singh & Ors.

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

22. Some facts are not in dispute. It is not disputed that complainant got insured his vehicle with opposite party No. 1. The insurance was valid from 3-5-2016 to 2-5-2017. The vehicle/tanker in question met with an accident on 14-2-2017 wherein the insured tanker was damaged. The complainant submitted claim and completed the material formalities but the opposite party No. 1 repudiated the claim.

23. As per repudiation letter dated 18-4-2018 (Ex. OP-1/11), plea of opposite party No. 1 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.

24. 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.

25. The complainant has placed on file photocopy of driving licence of driver (Ex. C-9) and training certificate (Ex. C-10) 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 No. 1 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-10. The opposite party No. 1 has neither proved that driving licence of driver is not genuine nor that training certificate produced by complainant is fake.

26. 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 fundamental as to have contributed to the cause of accident.

27. 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 No. 1 cannot escape its liability to pay the claim. Thus, repudiation of claim by opposite party No. 1 without any basis amounts to deficiency in service on their part.

28. Resultantly, this complaint is partly accepted with Rs. 10,000/- as cost and compensation against opposite party No 1 and dismissed qua opposite party No. 2. The opposite party No. 1 is directed to pay Rs. 2,72,500/- as assessed by surveyor with interest @9% P.A. from the date of institution of complaint i.e. 27-2-2018 till payment.

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

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

31. 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