National Consumer Disputes Redressal
National Insurance Co. Ltd. & Anr. vs M/S. B.L. Jaitwani & Sons (Huf) on 7 September, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1409 OF 2017 (Against the Order dated 27/02/2017 in Appeal No. 177/2015 of the State Commission Punjab) 1. NATIONAL INSURANCE CO. LTD. & ANR. THROUGH CHAIRMAN/MANAGING DIRECTOR, REGD. OFFICE AT 3, MIDDLETON STREET POST OFFICE NO. 9229, KOLKATA-700071 WEST BEGNAL 2. NATIONAL INSURANCE CO. LTD. NATIONAL LEGAL VERTICAL C/O. DELHI REGINAL OFFICE I, 2E/9, JHANDEWALAN, EXTENSION, NEW DELHI-110055 ...........Petitioner(s) Versus 1. M/S. B.L. JAITWANI & SONS (HUF) THROUGH ITS KARTA B.L. JAITWANI, C/O. U.P. CHEMICALS GILI ROAD, LUDHIANA PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Petitioner : Ms. Hetu Arora Sethi, Advocate For the Respondent :
Dated : 07 Sep 2017 ORDER
JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainant/respondent owned a tanker bearing registration no. RJ-31-GA- 1953 which he had got insured with the petitioner for the period from 14.12.2011 to 13.12.2012. On 22.07.2012, the aforesaid tanker was carrying Hydraulic Acid to Pathankot. The acid was unloaded at its destination. It later transpired that some acid still remained in the tanker. Due to leakage in the silencer of the tanker, it was required to be welded. A welder at the destination was requested and when he was welding the silencer, there was a blast as a result of which the vehicle got damaged and the mechanic as well as the driver sustained injuries. The claim lodged by the complainant for reimbursement for damage only to the vehicle was repudiated by the insurer vide letter dated 29.11.2012 which to the extent, it is relevant, reads as under:
"With reference to your above said claim, we are to inform you that the competent authority has deputed M/s R. Goyal & Company, Ludhiana to conduct final survey on the said loss. Now, we have received the detailed survey report from the surveyor and he had recommended that the claim is not payable due to following reasons:-
1. The loss to the vehicle was occurred due to sheet negligence of welder, welding the silencer near the highly inflammable material in tank which has every likelihood to catch fire & welding torch is specifically to be kept away from diesel tank and all the precautions be taken like emptying the diesel tank before welding it etc.
2. Even the HCL is highly inflammable material & is highly acidic & is designated as Hazardous material & every precautions be taken before any repair be taken on hand as it will immediately catch fire, if any live torch is brought near it.
3. The vehicle was standing & its engine/self not running & there was no self-ignition etc.
4. The loss did not occur due to any accidental external means i.e. no vehicle/item hit the vehicle causing damage.
5. At the time of inspection (the tanker was stated to be empty), even then it contained some residual HCL acid as fumes were observed to be coming out of the tap & in our opinion bigger mishap was averted."
Being aggrieved from the rejection of the claim, the complainant/respondent approached the concerned District Forum by way of a consumer complaint.
2. The complaint was resisted by the primarily on the ground on which the claim was repudiated.
3. The District Forum having dismissed the complaint, the complainant/respondent approached the concerned State Commission by way of an appeal. Vide impugned order dated 27.02.2017, the State Commission allowed the appeal and directed the insurer to pay a sum of Rs.1,82,650/- alongwith interest @ 9% per annum and cost of litigation quantified at Rs.10,000/-. Being aggrieved from the order of the State Commission, the insurer is before this Commission by way of this revision petition.
4. The learned counsel for the petitioner has drawn my attention to condition no. 5 of the insurance policy and rule 133 of the Rules applicable to the tanker containing hazardous chemicals, which to the extent it is relevant, read as under:
5. The Insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk. ...........
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2) Every driver of a goods carriage transporting and dangerous or hazardous goods shall observe at all times all the directions necessary for preventing fire, explosion or escape of dangerous or hazardous goods carried by him while the goods carriage is in motion and when it is not being driven he shall ensure that the goods carriage is parked in a place which is safe from fire, explosion and any other risk, and at all times the vehicle remains under the control and supervision of the driver or some other competent person above the age of 18 years.
It would thus be seen that the insured was required to take all steps which a reasonable vehicle owner/driver would take to prevent any loss or damage to the vehicle. In particular, the driver of a vehicle carrying hazardous goods was required to ensure that when the vehicle is not being driven, it should be parked at a place which is safe from fire.
5. In the present case, admittedly the vehicle was stationary and was not being driven at the time the explosion took place. Hence, there is no negligence in driving the vehicle while transporting the goods. This is also not a case of parking the vehicle at a place unsafe from fire explosion etc. The only contention of the learned counsel for the petitioner is that since there was inflammable substance in the tank of the vehicle, welding should not have been undertaken without first emptying the tanker so that there was no reasonable possibility of the inflammable substance catching fire at the time welding was undertaken. Admittedly, the part which was sought to be welded, was the silencer of the vehicle and not its storage tank. If the silencer of the vehicle was giving trouble, it had to be repaired in order to prevent further damage to the vehicle. If welding was the process required for repairing the silencer, that also had to be undertaken.
6. However, unfortunately, the flame generated due to welding reached the storage tank and resulted in fire. In the circumstances in which the silencer was sought to be repaired, the driver of the vehicle cannot be said to be negligent in terms of condition no. 5 of the insurance policy. If the accident did happen, that was not on account of any negligence of the driver of the tanker but it happened because the mechanic/technician while welding the silencer, could not prevent the flame from reaching the storage tank. There is no evidence to show that the technician was aware of some material being still left in the tank, when he was welding the silencer. Therefore, condition no. 5 of the insurance policy cannot be said to have breached by the insured.
7. The complaint shows that though the vehicle had reached the premises of Pioneer Industries Ltd. and had also unloaded the inflammable substance some residue had still remained in the silencer when the driver requested the welder to repair the same. Obviously, the driver was unaware that on account of leakage in the silencer, some part of the inflammable material had still remained inside. Therefore, there could be no occasion for him to make endeavours to empty the vehicle he himself being unaware of some substance having still remained in the tanker on account of leakage in the silencer.
8. For the reasons stated hereinabove, I find no merit in the revision petition. The same is accordingly dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER