State Consumer Disputes Redressal Commission
M/S Jayanti Gas Service vs The National Insurance Company Limited on 15 May, 2013
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.232/2012
Date of Decision: 15.05.2013
M/s Jayanti Gas Service,
Shop No.1-2, Sainik Rest House,
Kangra, Himachal Pradesh,
Through its Partner, Sh. Bhagwan Dass, S/o Sh. Daulat Ram,
Resident of Hospital Gali, Kangra,
District Kangra, Himachal Pradesh.
..........
Appellant
Versus
The National Insurance Company Limited,
Registered Office, 3, Middleton Street,
Post Box No.9229, Kolkata-700 071,
Through its Branch Manager,
National Insurance Company Limited,
Near Bus Stand, Kangra, Himachal Pradesh.
..........
Respondent
..
Coram
Honble Mr. Justice (Retd.)
Surjit Singh, President
Honble Mr. Chander Shekhar Sharma, Member
Honble Mrs. Prem Chauhan, Member
Whether
approved for reporting?[1]
Yes.
For the Appellant:
Mr. Peeyush Verma,
Advocate
For the Respondent: Mr. Lalit K.
Sharma, Advocate
O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Appellant, M/s Jayanti Gas Service, is aggrieved by the order dated 16.07.2012, of learned District Consumer Disputes Redressal Forum, Kangra at Dharamshala, whereby its complaint, under Section 12 of the Consumer Protection Act, 1986, which it filed against the respondent, National Insurance Company Limited, has been dismissed with the finding that the person, who was driving the insured vehicle at the relevant time, did not possess a valid and effective driving licence to drive the vehicle, meant for carriage of LPG.
2. Appellant had a truck, which it used for the purpose of carriage of LPG cylinders. The truck was insured with the respondent in the sum of `11,15,300/- for the period from 26.04.2010 to 25.04.2011. On 09.09.2010, the truck met with an accident, when a stray cattle, allegedly appeared before it, all of a sudden and was damaged. Damage was extensive, which required the chassis to be replaced and denting, painting of body and replacement of several other parts. Intimation of the accident was given to the respondent. A surveyor was deputed by the respondent. Respondent did not pay anything, on account of insurance money.
3. Complainant, therefore, filed a complaint, under Section 12 of the Consumer Protection Act, 1986, seeking issuance of a direction to the respondent to pay a sum of `1,93,732/-, on account of insurance money with interest at the rate of 12% per annum, `50,000/- as compensation for business loss and `20,000/- as compensation for mental tension, pains, sufferings and harassment, besides seeking litigation expenses.
4. Complaint was contested by the respondent, mainly on the ground that Shri Surinder Kumar, who was driving the vehicle at the relevant time, did not have the endorsement, authorizing him to drive the vehicle, carrying hazardous goods and thus, the licence was not valid and effective and this amounted to not only breach of conditions of policy, but also fundamental breach of law.
5. Learned District Forum has accepted the respondents plea and dismissed the complaint.
6. We have gone through the record and heard learned counsel for the parties.
7. It is not in dispute that the vehicle was being driven by Shri Surinder Kumar, copy of whose licence, Annexure OP-6, has been relied upon by the respondent. It is also not in dispute that licence does not bear an endorsement, in accordance with Rule-9 of the Central Motor Vehicles Rules, 1989, authorizing the holder to derive a vehicle carrying hazardous goods, included in table-III of Rule 137 of the Central Motor Vehicles Rules, 1989.
8. Learned counsel representing the appellant/ complainant submits that at the time, when accident took place, empty cylinders were being carried in the vehicle and, therefore, non-endorsement of the licence, authorizing its holder to drive a vehicle carrying hazardous goods, within the meaning of Rule 137 of the Central Motor Vehicles Rules, 1989, is irrelevant.
Submission, cannot be accepted, in view of a precedent of Honble National Consumer Disputes Redressal Commission in Prabhakar Transporters versus National Insurance Company Limited III (2003) CPJ 125 (NC), wherein it has been held that there cannot be two driving licences for driving the some carriage, one for carrying dangerous and hazardous goods and another for driving empty carriage, designed for carriage of dangerous and hazardous goods.
When the driver is found to be not authorized to drive that kind of vehicle, the person so driving the vehicle would be a person not possessing a valid and effective driving licence, irrespective of the fact whether at the time of accident, the vehicle was carrying dangerous and hazardous goods or it was empty.
9. Learned counsel submits that in the aforesaid precedent of the Honble National Consumer Disputes Redressal Commission, vehicle was an oil tanker, specially designed to carry inflammable goods, but in the present case, the vehicle is a truck, meant for carriage of goods of any kind, including LPG cylinders. Submission cannot be accepted for two reasons. First, at the time when accident took place, LPG cylinders were being carried in the truck, in question, though the same were empty. The fact that the cylinders were being carried in the truck, at the time, when accident took place, suggests that the truck was meant for carriage of LPG cylinders only. Secondly, it is made out from the averments in the complaint, as also the evidence on record that the complainant is engaged in the business of supply of LPG cylinders as a distributor. The truck, in question, was a private carriage vehicle, which means that it was to be used only by the appellant/complainant for carriage of his own goods. We have the photographs of the truck, which are Annexures OP-8 and OP-9. On the body of the truck, it is mentioned that it is meant for carriage of LPG cylinders. Also, we find from the photographs, label of inflammable gases painted on the front as also a side of the truck. The label is similar to one required to be painted, per requirement of entry 2.2 of table-I of Rule 137 of the Central Motor Vehicles Rules, 1989.
That means, the truck, in question, was also specially designed or at least exclusively intended for carriage of LPG cylinders.
10. LPG is included in the list of category of hazardous goods, vide serial No.1173 of table-3 to Rule-137 of the Central Motor Vehicles Rules, 1989.
11. In view of the above stated position, we see no reason to interfere with the impugned order of the learned District Forum. Hence, the appeal is dismissed.
12. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member May 15, 2013 *dinesh* [1] Whether Reporters of the local papers may be allowed to see the order?