State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Pradeep Kumar Agrawal on 7 April, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/666
Instituted on : 22.12.2016
The Oriental Insurance Company Limited,
Through : Branch Manager,
Ambedkar Chowk, Manendragarh,,
Through : Divisional Office No.1, Jail Road,
Raipur (C.G.) ... Appellant/O.P.
Vs.
Pradeep Kumar Agrawal,
S/o Murari Lal Agrawal, Aged about 54 years,
Through : Amar Petrol Pump, Banaras Road,
Ambikapur, District Surguja (C.G.) .... Respondent/Complainant
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri N.K. Thakur, Advocate for the appellant.
Shri C. Jayant K. Rao, Advocate for the respondent.
ORDER
DATED : 07/04/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 24.09.2016, passed by District Consumer Disputes Redressal Forum, Surguja, Ambikapur (C.G.) (henceforth "District Forum") in Complaint Case No.54/2015. By the impugned order, the learned District Forum, has allowed the complaint of the complainant and directed that :-
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(a) The O.P. will determine the compensation according to the Surveyor's Report and will pay the compensation within two months.
(b) The O.P. will pay a sum of Rs.10,000/- towards compensation for mental agony to the complainant.
(c) If the claim amount is not paid by the O.P. to the complainant within two months or the complainant is not satisfied with the amount of compensation determined by the O.P., the complainant will free to again file complaint before the District Forum.
(d) The O.P. will bear its own cost of litigation and will also provide a sum of Rs.1,500/- towards cost of litigation to the complainant.
(e) Accordingly, order has been passed.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is registered owner of tanker bearing registration No.C.G.15-AC- 0429, which was insured with the O.P. Insurance Company and the Insured Declared Value (IDV) of the vehicle was Rs.7,20,000/-. A sum of Rs.31,210/- was paid by the complainant to the O.P. The insurance policy No.191400/31/2014/5073 was issued, which was effective for the period from 03.09.2014 to 02.09.2015. During subsistence of the insurance, the vehicle in question met with an accident at Nandghat, Raipur - Bilaspur road in the night of 20.10.2014. The complainant submitted claim before the O.P. on 21.10.2014. The copies of documents relating to the vehicle and the estimate // 3 // prepared by Adarsh Body Buildrers, Bilaspur have been submitted in which it was informed that a sum of Rs.4,81,800/- would be incurred in repairing of the vehicle. When the amount had not been paid by the O.P. then the vehicle was brought to Bilaspur from the place of accident by tochan. A sum of Rs.4,81,800/- was spent in repairing of the vehicle On 05.06.2015, the O.P. repudiated the claim of the complainant on the ground that the driver of the vehicle was not having any documents relating to experience to drive the vehicle carrying explosive substance, whereas certificate No.004897 dated 08.11.2013 for driving the vehicle carrying explosive substance was issued to driver Parmeshwar Ram Minj. The document relating to validity of the above certificate till 09.11.2014 was submitted along with claim form by the complainant before the O.P., but in spite of submitting documents, the O.P. illegally repudiated the claim of the complainant. Thus, the O.P. did not take any positive action. The above act of the O.P. proved the deficiency in service of the O.P. Hence the complainant has filed the instant complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The O.P. filed its written statement and averred that the tanker bearing registration No.C.G.15-AC-0429 which is a vehicle carrying inflammable substance was insured by the O.P. at the Insured Declared Value Rs.7,20,000/- and the policy was effective for the period from 03.09.2014 to 02.09.2015. On being receiving information regarding the accident occurred // 4 // on 02.10.2014, the Spot Survey was got conducted by the O.P. through Palsule Ashish A and the above Surveyor again inspected the vehicle. Final Survey was conducted by Sheo N. Taori. The driving licence of the driver Parmeshwar Minj was verified by Investigator Nandkishore Dubey. In the Final Survey Report, the loss to the vehicle was assessed to the tune ofRs.1,60,540/-. From the above amount a sum of Rs.1,500/- towards excess and Rs.3,000/- salvage has to be deputed. According the complainant suffered Rs.1,56,040/- and he is entitled to receive the above amount, but the complainant violated the terms and conditions of the insurance policy, therefore, he is not entitled to get the above amount. The insured vehicle is used for transporting petroleum substance and at the time of accident, the vehicle was being driven by driver Parmeshwar Minj. The driver was not having valid and effective driving licence on 02.10.2014 for driving the vehicle which was transporting petroleum substance. At the time of accident, the driver was not having driving licence for driving vehicle carrying hazardous petroleum substance and in the driving licence of the driver there was no endorsement regarding driving the vehicle carrying hazardous petroleum substance, which establishes that at the time of accident, the driver was not having valid and effective driving licence to drive the insured vehicle, which is violation of terms and conditions of the insurance policy. The claim of the complainant was repudiated by the O.P. on valid ground on 10.06.2015. The complainant is not entitled to get any amount from the O.P. The complaint is not maintainable against the O.P. The O.P. did not // 5 // commit any deficiency in service, therefore, the complaint is liable to be dismissed against the O.P.
4. The complainant filed documents. Document A-1 is letter dated 05.06.2015 sent by the O.P. to the complainant, A-2(1) is Certificate of Registration of Vehicle bearing registration No.C.G.15-AC-0429, A-2(2) is Certificate of Fitness of vehicle bearing registration No.C.G.15-AC-0429, A-2(3) is Good vehicle permit, A-3(1) and A-3(2), is estimate issued by Adarsh Body Builders in respect of vehicle bearing registration No.C.G.AC-0429, A-3(3) is estimate dated 30.12.2014 is bill issued by Adarsh Body Builders in respect of repairing of the vehicle bearing registration No.C.G.15-AC-0429, A-3(4) is Cash Memo dated 26.12.2014 issued by Tayal Motors, A-4 (1) to (3) is Motor Insurance Certificate Cum Policy Schedule, A-5 (1) is Certificate issued by STI, Jabalpur .
5. The O.P. has also filed documents. Document D-1 (1) is letter dated 10.06.2015 sent by the O.P. to the complainant, D-1 (2) is letter dated 05.06.2015 sent by the O.P. to the complainant, D-2(1) to D-2(3) is Motor Insurance Certificate Cum Policy Schedule, D-3(1) to D-3(3) is Motor (Spot) Survey Report dated 24.10.2014 of Palsule Ashish A, D-3(4) & D-3(5) is Motor (Reinspection) Survey Report dated 22.01.2015 of Palsule Ashish A, D-4(1) to D-4(4) is Motor Survey Report of Sheo N. Taori, D-5(1) to D-5(2) is Motor Claim Form, D-6(1) is letter dated 04.12.2014 sent by Nand Kishor Dubey to The Divisional Manager, The Oriental Insurance Co. Ltd., Divisional Office, // 6 // Ambikapur, D-6(2) is Vehicle particulars of Vehicle bearing registration No.C.G.15-AC-0429 issued by Registering Authority, R.T.O. Ambikapur, Surguja (C.G.), D-6(3) is letter dated 04.12.2014 sent by Nand Kishor Dubey to The Divisional Manager, The Oriental Insurance Company Limited, Divisional Office, Ambikapur, D-6(4) is Goods Vehicle permit, D-6(5) is letter dated 04.12.2014 sent by Nand Kishor Dubey to The Divisional Manager, The Oriental Insurance Company Limited, Divisional Office, Ambikapur, D-6(6) is Certificate issued by R.T.O. Ambikapur, District Surguja (C.G.), D-6(7) is letter dated 04.12.2014 sent by Nand Kishor Dubey to The Divisional Manager, The Oriental Insurance Co. Ltd., Divisional Office, Ambikapur, D-6 (8) is D.L. Extract, D-6(9) is driving licence of Parmeshwar Ram Minj, D-7 is First Information Report.
6. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complainant and directed the O.P. to pay the amounts, as mentioned hereinabove in para 1 of this order.
7. Shri N.K. Thakur, learned counsel appearing for the appellant (O.P.) has argued that tanker of the respondent (complainant) bearing registration No.C.G.15-AC-0429, which is a vehicle carrying inflammable substance, was insured with the O.P. On being receiving information regarding the accident, Palsule Ashish A, was appointed as Spot Surveyor, who inspected the vehicle . Final Surveyor was also appointed by the appellant (O.P.), who conducted final survey and during investigation it was found that driver // 7 // Parmeshwarram Minj was not having valid and effective driving licnece to drive the vehicle carrying hazardous substance. At the time of incident, the vehicle in question was carrying explosive substance, therefore, as per requirement of Rule 9 (3) of Central Motor Vehicles Rules, 1989, the vehicle which carries hazardous substance, special licence is required for the driver for driving such vehicle, but no endorsement was made in the driving licence of driver Parmeshwar Ram Minj to that effect. The driver of the vehicle in question was not having driving licence as required under Rule 9 (3) of the Central Motor Vehicles Rules, 1989 and without valid driving licence, the driver of the vehicle in question was carrying Petroleum substance, therefore, the respondent (complainant) violated the terms and conditions of the insurance policy, hence, the respondent (complainant) is not entitled to get any compensation from the appellant (O.P.), but learned District Forum has not taken this aspect into consideration and has ignored the above fact. The impugned order passed by the District Forum, is erroneous and is liable to be set aside.
8. Shri C. Jayant K. Rao, learned counsel appearing for the respondent (complainant) has argued that Parmeshwarram Minj, the driver of the vehicle in question was having valid and effective driving licence. Parmeshwarram Minj had taken training for driving transporting vehicle, which is carrying hazardous substance and he is also competent to drive the vehicle in question. The vehicle of the respondent (complainant) met with an accident on // 8 // 20.10.2014 in which the vehicle was damaged. The vehicle in question was brought to Bilaspur for repairing by tochan and sum of Rs.4,81,800/- was spent by the respondent (complainant) in repairing of the vehicle. The respondent (complainant) submitted his claim before the appellant (O.P.), but the appellant (O.P.) repudiated his claim on the ground that the driver of the vehicle in question was not having any document relating to experience to drive the vehicle carrying explosive substance. The appellant (O.P.) committed deficiency in service by repudiating the claim of the respondent (complainant). The Surveyor also assessed loss, but the assessment made by the Surveyor is on lower side. The respondent (complainant) had actually incurred a sum of Rs.4,81,800/- in repairing of the vehicle, but learned District Forum ordered that the respondent (complainant) is only entitled for the amount as assessed by the Surveyor towards compensation. Learned District Forum has only awarded a sum of Rs.10,000/- towards compensation for mental agony to the respondent (complainant) instead of Rs.50,000/-, therefore, the respondent (complainant) is entitled to get Rs.4,81,800/- towards compensation and Rs.50,000/- towards compensation for mental agony. The appeal filed by the appellant (O.P.) is liable to be dismissed.
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as impugned order.
10. So far as the enhancement of the compensation awarded by the District Forum, is concerned, as the respondent (complainant), has not filed any // 9 // appeal against the impugned order, therefore, the respondent (complainant) is not entitled for any enhancement in the awarded amount.
11. Firstly, we shall examine whether the Motor Spirit (Petrol) and HSD (High Speed Diesel) come within purview of hazardous substance or not ?
12. Document D-3 (1) to D-3(3) is Motor (Spot) Survey Report dated 24.10.2014 given by Palsule Ashish A, Investigator. In his report, he mentioned that "the subject vehicle was loaded with 5000 KL MS 'Motor Spirit' (Petrol) & 15000 KL HSD (High Speed Diesel) BS-III". The respondent (complainant) did not specifically plead which substance was carrying in the vehicle at the time of incident, but he pleaded that explosive substance, was loaded in the vehicle in question.
13. The Central Motor Vehicles Rules, 1989, Rule 137, is relating to flammable, reactive and oxidising substances etc. and the same are mentioned in Table III. In Table III, at Sl. No.1656, Petroleum Crude Oil is mentioned and in the said column, it is also mentioned that Petroleum Crude Oil is flammable substance. In Petroleum Products (Maintenance of Production, Storage and Supply) Order 1999, Rule 2 (g) describes Petroleum Product. According to above Rules, the Petroleum Product means "Crude Oil or any product manufactured out of Crude Oil or from any Petroleum Product including Aviation Turbine Oil, Motor Spirit, High Speed Diesel, // 10 // Liquefied Petroleum Gas, Superior Kerosene Oil, Naptha and Solvent or any derivative."
14. In Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition 2005 at page 3580, the petroleum product is described as :
"Petroleum Product means any commodity made from petroleum or natural gas and shall include refined crude oil, processed crude petroleum, residuum from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil residuum, casing head gasoline, natural gas gasoline, naphtha, distillate gasoline, kerosene, waste oil, blended gasoline, lubricating oil, blends or mixture of oil with one or more liquid products or by-products derived from oil condensate, gas or petroleum hydrocarbons, whether herein enumerated or not."
'Natural gas' falls within the ambit of the expression 'petroleum product' under Entry 22(9) of the Rules. O.N.G.C. of India v. Municipal Corporation of Greater Bombay, AIR 2002 Bombay 231, 237, paras 23 and 27. [Bombay Municipal Corporation (Leave of Octroi) Rules, 1965, Sccch. 'H', Entry 22(9)]"
15. In Bakshi's The Lax Lexicon 2005 edition at page 2002 Petroleum Product is described as :
"Petroleum Products means crude oil or any product manufactured out of crude oil or from another petroleum product including Aviation Turbine Oil, Motor Spirit, High Speed Diesel, Liquefied Petroleum Gas, Superior Kerosene Oil, Naphtha and Solvent or any derivative. See Petroleum Products (Maintenance of Production, Storage and Supply) Order 1999, Rule 2 (g)."] // 11 //
16. In Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition 2005 at page 2095 Hazardous Chemical and Hazardous Substance are described as :
"Hazardous Chemical "means -
(i) any chemical which satisfies any of the criteria laid down in Part 1 of Schedule 1 or listed in Column 2 of Part II of this Schedule;
(ii) any chemical listed in column 2 of Schedule 2;
(iii)any chemical listed in Column 2 of Schedule 3 [Hazardous Waste (Management and Handling) Rules, 1989, R. 2(e)] "
"Hazardous Substance" means any substance or preparation which by reason of its chemical or physio-chemical properties or handling is liable to cause harm to human beings, other living creatures, plants, microorganism, property or the environment.
"Hazardous Substance means any substance or preparation which is defined as hazardous substance under the Environment (Protection) Act, 1986 and exceeding such quantity as may be specified, by notification, by the Central Government. [Public Liability Insurance Act (6 of 1991), S. 2(d)]."
17. Looking to the above definition, it appears that 'Motor Spirit' (Petrol) & HSD (High Speed Diesel) BS-III, are derivative substances of Petroleum and they come within the purview of hazardous and flammable substance.
18. Now, we shall examine whether the driver Parmeshwar Ram Minj, is competent to drive vehicle carrying hazardous goods ?
19. As per Rule 9 of the Central Motor Vehicles Rules, 1989, educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods, is as follows :-
// 12 // "9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods - (i) One year from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993 any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall, in addition to being the holder of a driving licence to drive a transport vehicle, also has 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 successfully pass 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.
Syllabus --
A Defensive driving Duration of training for
Questionnaire A & B - 1st and 2nd day.
Cause of accidents.
........................
.........................
B. ..........................
..........................
C. ...........................
..........................."
20. In the instant case, the respondent (complainant) has filed Certificate issued by STI, Jabalpur in favour of driver Parmeshwar Ram Minj, in which it is mentioned that Parmeshwar Ram Minjhad taken training for "Safe Road // 13 // Transportation of Dangerous & Hazardous Goods" from 08.11.2013 to 10.11.2013. It appears that Parmeshwar Ram Minj, had taken training of 3 days for "Safe Road Transportation of Dangerous & Hazardous Goods" for the period from 08.11.2013 to 10.11.2013, therefore, according to Rule 9 (3) of the Central Motor Vehicles Rules, 1989, the driver Parmeshwar Ram Minj, is competent to drive vehicle which is carrying goods of dangerous or hazardous nature to human life.
21. Document D-6(7) is letter dated 04.12.2014 sent by Nandkishor Dubey to Divisioal Manager, The Oriental Insurance Co. Ltd., Divisional Office, Ambikapur. Document D-6(8) is extract of driving licence of Parmeshwar Ram Minj. Looking to the extract of driving licence of Parmeshwar Ram Minj, it appears that he is competent to drive transport vehicle. The driving licence was renewed for the period from 06.08.2014 to 05.08.2017. At the time of accident, the driver Parmeshwar Ram Minj was having valid and effective driving licence to drive the vehicle in question and he had duly obtained training for driving vehicle carrying hazardous and dangerous goods.
22. The learned District Forum did not specifically award amount to the respondent (complainant) and it simply ordered that the appellant (O.P.) will determine the compensation according to the Surveyor's Report and will pay the compensation within to the respondent (complainant) within two months.
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23. Mr. Sheo N. Taori, was appointed by the appellant (O.P.) as Surveyor & Loss Assessor, who assessed the loss to the tune of Rs.1,59,040/-. The report of the Surveyor, is a reliable evidence, therefore, the Surveyor's report is genuine and dependable. The report of the Surveyor can be given due weightage and it cannot be discarded lightly.
24. In Devendra Malhotra Vs. United India Insurance Co. Ltd. & Anr. 2016 (3) CLT 525 (NC), Hon'ble National Commission, has observed thus :-
"Consumer Protection Act, 1986, Sections 2 (1) (g), 19 & 21 (a) (ii)- Insurance claim Surveyor report Held It is a established legal proposition that the report made by the surveyor, who is a professional in his field, cannot disbelieved, unless there are cogent and convincing reasons to do so."
25. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises & Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus :-
"12. I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report. The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. & Ors., 2014 (SLT Soft) 1 = 2014 (CPJ Soft) 1 = (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."
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26. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
27. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
28. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
"17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
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29. Therefore, the respondent (complainant) is only entitled to get Rs.1,59,040/- as assessed by the Surveyor, from the appellant (O.P.) and he is not entitled to get Rs.4,81,800/- .
30. Learned District Forum has rightly awarded Rs.10,000/- towards compensation for mental agony and Rs.1,500/- towards cost of litigation to the respondent (complainant).
31. Therefore, the finding recorded by the District Forum, is just and proper and does not suffer from any infirmity, irregularity and illegality, hence does not call for any interference by this Commission.
32. Hence, the appeal filed by the appellant (O.P.) being devoid of any merits, deserves to be and is hereby dismissed. The appellant (O.P.) will pay a sum of Rs.5,000/- to the respondent (complainant) towards cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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