State Consumer Disputes Redressal Commission
Unitedindia Insurance Company Ltd. vs M/S Punjab Carbonic Pvt. Ltd. & Anr. on 16 September, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) First Appeal No.473 of 2022
Date of institution : 01.06.2022
Reserved On : 30.07.2024
Date of decision : 16.09.2024
United India Insurance Company Limited, MCB No.Z-2-11786/001, Ist
Floor, Natha Singh Tower, 100 Ft. Road, near Ghore Wala Chowk,
Bathinda-151001, through its Divisional Manager, through its Regional
Office i.e. United India Insurance Company Limited, Legal Department,
108 Surya Towers, 3rd Floor, Mall Road, Ludhiana-141001, through
Shama Arora, Assistant Manager (Legal), United India Insurance
Company Limited.
....Appellant/OP No.1
Versus
1. M/s Punjab Carbonic Pvt. Ltd., Registered Office at Arya Samaj
Chowk, Bathinda, through Davinder Singh Kohli, duly authorized
Director.
....Respondent/Complainant
2. HDFC Bank Ltd., Guru Kashi Marg, Bathinda, through its
Authorized Signatory/Manager/Incharge.
....Respondent/OP No.2
2) First Appeal No.146 of 2022
Date of institution : 23.02.2022
Reserved On : 30.07.2024
Date of decision : 16.09.2024
M/s Punjab Carbonic Pvt. Ltd., Registered Office at Arya Samaj
Chowk, Bathinda, through Authorized Signatory Sh. Amrit Pal Singh
Kohli, Director.
....Appellant/Complainant
Versus
First Appeal No.473 of 2022 2
1. United India Insurance Co. Ltd., MCB No.Z-2-11786/001, Ist
Floor, Natha Singh Tower, 100 Ft. Road, near Ghore Wala
Chowk, Bathinda-151001, through its Divisional Manager.
2. HDFC Bank Ltd., Guru Kashi Marg, Bathinda, through its
Authorized Signatory/Manager/Incharge.
....Respondent/OPs
First Appeals under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 30.11.2021 passed by the
District Consumer Disputes Redressal
Commission, Bathinda in CC No.79 of 2019.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Mr. Vishav Kant Garg, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present (First Appeal No.473 of 2022):
For the Appellant : Sh. Munish Goel, Advocate
For Respondent No.1 : Sh. Nitish Garg, Advocate
For Respondent No.2 : Ms. Niharika Goel, Advocate.
JUSTICE DAYA CHAUDHARY, PRESIDENT
This order of ours shall dispose off total 10 First Appeals i.e. First Appeal No.473 of 2022 and First Appeal No.146 of 2022 (Cross Appeals), First Appeal No.475 of 2022 and First Appeal No.147 of 2022 (Cross Appeals), First Appeal No.417 of 2022, First Appeal No.469 of 2022¸ First Appeal No.470 of 2022, First Appeal First Appeal No.473 of 2022 3 No.471 of 2022, First Appeal No.472 of 2022 and First Appeal No.474 of 2022, as similar questions of law and facts are involved therein. However, the facts are being extracted from First Appeal No.473 of 2022.
First Appeal No.473 of 2022
Appellant/OP No.1 has filed the present Appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 30.11.2021 passed by the District Consumer Disputes Redressal Commission, Bathinda (in short, "the District Commission"), whereby the Complaint filed by Respondent No.1/Complainant (Appellant in First Appeal No.146 of 2022) was partly allowed by awarding ₹10,000/- towards costs and compensation and OP No.1 was directed to pay an amount of ₹1,50,000/- as assessed by the surveyor along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. 11.03.2019 till its realization.
2. It would be apposite to mention here that hereinafter the parties will be referred, as had been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Respondent No.1/Complainant in the Complaint filed by him before the District Commission are that he was the registered owner of the Gas Tanker bearing Registration No.AP-16-TY-0610, which was comprehensively insured vide Package Policy Certificate First Appeal No.473 of 2022 4 No.2004003117P117173420. The IDV of said vehicle was fixed as ₹15 lac and the said policy was for the period w.e.f. 24.05.2018 to 28.02.2019. It was further mentioned that the Insurance Company had obtained the signatures of the insured on the blank Proposal Form and the IDV of the vehicle was fixed by OP No.1 as per IMT and under GR- 8 of the IMT. Further, it was mentioned that the tanker of the Complainant had met with an accident near Madavramand on 06.08.2018. At that time, the vehicle was stated to be empty and it was being driven by the driver namely Kulwinder Singh, who was having driving licence issued by District Transport Authority with certificate of Hazardous Goods, which he had obtained after getting the required training. The DTO, Bathinda had clarified that the Transport Driving Licence (DL) was valid to drive any type of vehicle including the truck and there was no provision in the software in the District Transport Office to mark special endorsement for hazardous goods. For that purpose, the certificate was sufficient to drive the vehicle carrying hazardous goods. The copies of said driving licence and certificate were supplied to the OPs while lodging the claim. The Insurance Company had appointed the surveyor on the same day i.e. 06.08.2018 and the spot was visited by the surveyor and the loss was assessed. However, inspite of completing all the formalities, still the claim was not settled. The Complaint was filed with the prayer for issuance of directions to OP No.1 to pay the claim amount of ₹15 lav (IDV) being First Appeal No.473 of 2022 5 the total loss along with ₹1,830/- as survey fee and ₹2,500/- as towing charges with interest at the rate of 18% per annum from the date of loss till its realization and also to pay compensation of ₹50,000/- and ₹25,000/- towards litigation expenses.
4. Upon issuance of notice, OPs No.1 & 2 had appeared and filed their separate written versions, wherein certain preliminary objections were raised and other averments as made in the compliant were denied.
5. By considering the contents of the Complaint and written versions thereof filed by the OPs, the Complaint was partly allowed by the District Commission vide impugned order dated 30.11.2021. The relevant portion of said order as mentioned in Paras- 31 to 33 is reproduced as under:
"31. Therefore, this Commission is of the considered opinion that mere endorsement on the driving licence does not increase the profession skill of the driver. The opposite party No.1 cannot escape its liability to pay the claim. Thus, repudiation of claim by the opposite party No. 1without any basis amounts to deficiency in service on their part.
32. Resultantly, this Complaint is partly accepted with Rs. 10,000/- as cost and compensation. The opposite party No. 1 is directed to pay Rs.1,50,000/- as assessed by surveyor with interest @9% P.A. from the date of repudiation of claim i.e. 11-3-2019 till payment.
33. The compliance of this order be made within 45 days from the date of receipt of copy of this order."
6. Being aggrieved by the said order dated 30.11.2021 passed by the District Commission, the Appellant/OP No.1 has filed First Appeal No.473 of 2023 for setting aside of the impugned order, First Appeal No.473 of 2022 6 whereas Respondent No.1/Complainant has also filed First Appeal No.146 of 2022 for enhancement of the compensation already awarded by the District Commission.
7. There was a delay of 94 days in filing of the First Appeal No.473 of 2023. Misc. Application No.793 of 2022 was filed for condonation of delay, which was supported by an affidavit. Said application was allowed vide order dated 06.06.2022 and the delay in filing of the Appeal was condoned.
8. Mr. Munish Goel, learned Counsel for the Appellant/OP No.1 has submitted that the Complaint was liable to be dismissed not only on the ground of mis-joinder of necessary parties but also on the ground of territorial jurisdiction. The driver and the insurer of the vehicle, with whom the accident had occurred, were not impleaded. Learned Counsel has further submitted that the driving licence of the driver was not having the endorsement and as such he was not competent to drive the tanker having hazardous goods, as the vehicle in dispute was under the definition of 'HGV', whereas the driving licence of the driver was only for driving the transport vehicle. Learned Counsel has further submitted that all these facts were in the knowledge of the Complainant but still he had violated the terms and conditions of the policy. Further, it has been submitted that as per the provisions of Section 14 (2) of the Motor Vehicles Act, 1988, in case of carrying the goods of dangerous or hazardous nature, the driver was First Appeal No.473 of 2022 7 required to undergo one day refresher course of the prescribed syllabus. As per the provisions of Central Vehicles Rules, 1989, the educational qualifications for the driver carrying goods carriages carrying dangerous or hazardous goods were provided. In addition to the driving licence to drive a transport vehicle, the driver was required to possess a certificate of having successfully passed a course of the prescribed syllabus. Further, it has been submitted that as per Section 14 of the Motor Vehicles Act and the Rules framed by the Central Government as well as the State Government under the provisions of Motor Vehicles Act and Rule 9 of the Central Vehicle Rules, the person driving the vehicle carrying hazardous goods was required to have the endorsement on his driving licence but in the present case, the driver of the vehicle in dispute was not having any such endorsement on his driving licence to drive the vehicle having hazardous goods at the time of the accident. At the end, learned Counsel has submitted that all these facts and circumstances were not taken into consideration while passing the impugned order and as such the same is liable to be set aside. Learned Counsel has also relied upon the following judgments in support of his contentions:
i) Oriental Insurance Co. Ltd. v. Sony Cheriyan AIR 1999 SC 3252 (SC);
ii) Ram Asra v. National Insurance Co. Ltd. RP No.1051 of 2015 decided on 25.08.2020 (NC); and
iii) National Insurance Co. Ltd. & Ors. v. S. Amritharaj 2012 STPL 20201 (NC).First Appeal No.473 of 2022 8
9. Mr. Nitish Garg, learned Counsel for Respondent No.1/Complainant (Appellant in First Appeal No.146 of 2022) has submitted that there is no force in the arguments raised by learned Counsel for the Appellant. The driver was having a valid and effective driving licence at the time of accident and he had also undertaken the required training to drive hazardous goods for the period w.e.f. 29.06.2018 to 02.07.2018. It has not been proved on record that the driving licence possessed/held by the driver was fake or otherwise. Furthermore, the vehicle in dispute was empty at the time of accident. In case, there was any fault on the part of the Licensing Authority, the Complainant cannot be denied the benefit under the policy. Learned Counsel has further submitted that the authorized Service Centre had given an estimate of ₹15,87,265/- against the IDV of ₹15 lac. Meaning thereby, it was a case of total loss. However, the Insurance Company had obtained an estimate of ₹10,37,860/- with an intention to keep the estimate under 75% of the IDV, as it is mentioned in the said estimate itself that the engine and gear assembly were yet to be dismantled and thereafter the supplementary estimate was to be given. Therefore, it was an incomplete estimate, which cannot be relied upon. Further, it has been submitted that the surveyor had applied depreciation at the rate of 50% without giving any reason and as such the surveyor report is also not correct. The compensation awarded by the District Commission is on the lower side. The same has not been awarded as First Appeal No.473 of 2022 9 per the entitlement of the Complainant and as such the impugned order is liable to be modified. Learned Counsel has also relied upon the following judgments in support of his contentions:
i) United India Insurance Co. Ltd. v. Sabo 2021 (1) W.L.C. 482;
ii) United India Insurance Co. Ltd. v. Prahallad Rai Sultania & Ors. II (2020) CPJ 415 (NC);
iii) Balwan Singh v. M/s Bajaj Allianz General Insurance Co. Ltd.
& Ors. FAO 6395 of 2016 decided on 21.05.2019;
iv) Hardeep Singh v. United India Insurance Co. Ltd. FAO No.8253/2017 decided on 30.01.2019; and
v) National Insurance Co. Ltd. v. Harbans Kaur & Ors. FAO No.1210 of 2014 decided on 26.03.2018.
10. Ms. Niharika Goel, learned Counsel for Respondent No.2/OP No.2 has submitted that the dispute involved in the present case is between the Complainant and OP No.1-Insurance Company but neither anything has prayed against OP No.2 nor any direction has been issued to it and as such the Appeals against OP No.2 are liable to be dismissed.
11. We have heard the arguments raised by learned Counsel for the parties. We have also carefully perused the impugned order passed by the District Commission and all other documents available on the file.
12. Facts regarding filing of the Complaint by the Complainant before the District Commission, reply thereto filed by the OPs, partly allowing the Complaint and thereafter filing of the present Appeals by First Appeal No.473 of 2022 10 OP No.1 as well as Complainant before this Commission are not in dispute.
13. As far as the objection raised by the appellant regarding territorial jurisdiction of the District Commission is concerned, admittedly, the complainant was running his business at Bathinda and the office of OP No.1 was also situated at Bathinda. Therefore, the District Commission at Bathinda was having the territorial jurisdiction to entertain and decide the complaint as per the provisions of Section 34 (2) (a) (b) & (d) of the Act.
14. Now, coming to merits of the case, admittedly, the tanker in dispute was comprehensively insured with OP No.1 vide Certificate of Insurance (Package Policy), Ex.C-3), which was valid for the period w.e.f. 24.05.2018 to 28.02.2019 for an IDV of ₹15 lac. Said vehicle had met with an accident on 06.08.2018 near Madavramand, while it was being driven by driver namely Kulwinder Singh. As per the version of the Complainant, the vehicle was totally damaged in the said accident. The claim lodged by the Complainant was repudiated by OP No.1 vide letter dated 11.03.2019 on the ground that the driver was not possessing a valid and effective driving licence at the time of accident, as the vehicle was meant for carrying the hazardous goods but no such endorsement was made on the driving licence as per the provisions of the Motor Vehicles Act, 1988 as well as Central Vehicles Rules, 1989.
First Appeal No.473 of 2022 11
15. The first issue/question to be decided in this case is as to whether the driver was competent to drive the vehicle, which was meant for carrying the hazardous goods or not?
16. On perusal of driving licence (Ex.C-4) of driver Kulwinder Singh, it is apparent that he was authorized to drive MCWG, LMV, Transport Vehicle and PSVBUS. It was valid for driving the Transport Vehicle up to 19.02.2021. Said driver Kulwinder Singh had also undertaken the required training for safe transportation of hazardous goods from the Authorized Training Centre w.e.f. 29.06.2018 to 02.07.2018 and this fact is evident from Certificate (Ex.C-5). The stand of OP No.1 is that no endorsement was made in the driving licence of the driver to drive the vehicle carrying hazardous goods and as such, the claim of the Complainant was not payable.
17. The judgment rendered by the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Swaran Singh & Ors. is relevant in the present context. The relevant portion of said judgment is reproduced as under:
"Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act."First Appeal No.473 of 2022 12
18. Similar situation had arisen before the Hon'ble Punjab & Haryana High Court in the case of National Insurance Co. Ltd. v. Harbans Kaur & Ors. FAO No.1210 of 2014 decided on 26.03.2018. The Hon'ble High Court while relying upon the aforesaid judgment of the Hon'ble Supreme Court in the case of Swaran Singh (supra) has held as under:
"The question for consideration is whether the insured is guilty of committing breach of terms and conditions of insurance policy constituting a defence in favour of the insurer under Section 149(2) of the Act, thus, entitles the insurer to be exonerated of its liability to pay compensation or press for recovery right against the insured after payment to the claimants.
This Court in Rajesh Singh's case (supra) on consideration of the provisions of Section 14 of the Act coupled with Rule 9 and 132 of the Rules has held that as the owner had engaged the driver and it was his responsibility to see that the licence had the necessary endorsement, he has failed to discharge his duty/responsibility placed upon the transporter/owner of goods carrier. Further held that the Tribunal had rightly exonerated the insurance company since there was a breach of conditions of the insurance policy. The driving licence could not be accepted as a valid licence.
As has been noticed hereinbefore, there is no dispute that the driving licence possessed by the driver did not contain an endorsement authorizing him to drive a vehicle carrying goods of inflammable or hazardous nature. Hon'ble the Supreme Court in National Insurance Company Ltd. Vs. Swaran Singh and others, 2004(2) RCR (Civil) 114 has held that to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. It has further been held, quoted thus:-
"Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is / are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of First Appeal No.473 of 2022 13 "fundamental breach" to allow defences available to the insured under section 149(2) of the Act."
The question that now arises would be whether such a breach of not having obtained necessary endorsement as required under sub-Rule (3) of Rule 9 of the Rules, is so fundamental as to have contributed to the cause of accident. The answer, at the outset, appears to be in the negative. It is nobody's case that the accident took place because of dangerous or hazardous substance being carried in the vehicle. On the contrary, there is no challenge to findings of the Tribunal that the accident occurred due to negligence in driving the offending tanker. In the given scenario, carrying or non-carrying of dangerous or hazardous substance has no nexus with cause of accident that occurred due to rash and negligent driving of the vehicle by its driver. In this view of the matter, it can safely be held that the breach complained of by the insurer is not so fundamental as is found to have contributed to the cause of accident. This apart, perusal of Rule 9 of the Rules would make it evident that before a driver can file an application for obtaining necessary endorsement as required under sub-rule (3) of Rule 9 of the Rules, he is to undergo some training for a period of two to three days but the same does not deal with the professional skill of driving. With regard to professional skill of driving, it has already been clarified by the licensing authority at the time of granting licence to the driver authorizing him to drive a transport vehicle. When the facts and circumstances of the present case are examined in the light of judgment of Hon'ble the Apex Court in Swaran Singh's case (supra) coupled with the discussion made hereinbefore, I am inclined to agree with what has been held by the Division Bench of the Madhya Pradesh High Court in Baghelkhand Filling Station and another's case (supra) and Gujarat High Court in Amarshi Punchanbai Patel and others' case (supra). This Court in Rajesh Singh's case (supra) has neither adverted to judgment of Hon'ble the Supreme Court in Swaran Singh's case (supra) nor judgments by the High Courts of Madhya Pradesh and Gujarat. In this view of the matter, insurance company can neither escape its liability to pay compensation nor press for right of recovery merely for want of endorsement required under Rule 9(3) of the Rules on the licence held by driver of the offending vehicle."
19. Similar law was laid down by the Hon'ble Punjab & Haryana High Court in the cases of Hardeep Singh v. United India Insurance Co. Ltd. FAO No.8253/2017 decided on 30.01.2019 and Balwan Singh v. M/s Bajaj Allianz General Insurance Co. Ltd. & Ors. FAO 6395 of 2016 decided on 21.05.2019.
First Appeal No.473 of 2022 14
20. Further, the Hon'ble National Commission in the case of United India Insurance Co. Ltd. v. Prahallad Rai Sultania & Ors. II (2020) CPJ 415 (NC) has held in Para-7 as under:
"7. I have given my thoughtful consideration to this contention of learned Counsel and have perused the file. From the concurrent findings of the fora below, it apparent that license authority had issued a certificate certifying that driver had underwent training as per Rule 9 of the Central Motor Vehicle Rules during the period 16.01.2014 to 17.01.2014 under OISD conducted by Indian Oil Corporation Ltd., Jharsuguda Bottling Plant, Jharsuguda under the seal and signature of RTO, Jharsuguda and Plant Manager. This certificate duly confirms that driver had underwent training in terms of Rule 9 of the Central Motor Vehicle Rules, 1989 and hence there is no violation of this rule on the part of the driver. The question is can a person be punished and denied his lawful claim simply because the concerned authority who is required to act under the provision of law had failed to act?. This is glaring case where despite the fact that driver Dutia Behera had underwent training as per Rule 9 of Central Motor Vehicles Rule, 1989, the concerned authority did not make any endorsement on his driving license as per Rule 9 Sub Rule 3 of Central Motor Vehicle Rules, 1989. The principle of natural justice does not permit that person be denied its lawful right only on the ground that some authority had failed to discharge its duties properly. These facts clearly show that driver had underwent training and was authorized to drive the hazardous goods."
21. As per the Survey Report dated 19.01.2019, the vehicle was empty at the time of accident. In this regard, the judgment passed by the Hon'ble Rajasthan High Court in the case of United India Insurance Co. Ltd. v. Sabo 2021 (1) W.L.C. 482 is relevant. The relevant portion of said judgment is reproduced as under:
"The findings recorded by the Tribunal that there was no hazardous goods i.e. Diesel in the offending vehicle at the time of accident, has been proved by cogent evidence. The learned Counsel for the Appellant is not in a position to controvert the finding of fact so recorded by the Tribunal. Thus, the findings of the Tribunal that at the time of accident the Tanker was emptied and there was no hazardous goods i.e. Diesel in the Tanker are upheld and call for no interference by this Court.First Appeal No.473 of 2022 15
Table-III appended with Section 137 of the Central Motor Vehicles Rules, 1989, admittedly, does not prescribe "Diesel" as a hazardous goods, though, the list is very exhaustive and about 2319 substances are mentioned. The absence of Diesel in that category specifically shows the intention of the legislator of not including Diesel in the category of hazardous goods. There is no reason for this Court to assume that Diesel is included in Entry No.1656 i.e. Petroleum Crude Oil. Learned Counsel for the Appellant has not brought to the notice of this Court any other provision or any order showing the Diesel to be categorized as a hazardous goods. Therefore, there is no reason for this Court to assume or consider Diesel to be included in the category of hazardous goods as mentioned in Table-III under Rule 137 (Supra). In any case, at the time of accident, the Tanker was emptied and there was no Diesel in it. Therefore, the argument of the Counsel that it should be implied that even if a Tanker is empty, the conditions of the vehicle carrying the hazardous goods should be considered in the present case is only noted to be rejected. It has come on record that Shafi Khan, who was the driver of the Tanker, was holding a valid driving license at the time of accident and therefore, all intents and purposes the same should be considered as the "perfect driving license" even as per the policy. Since, there are no special conditions which have been brought to the notice of this Court the "perfect driving license"should mean a valid driving license issued by the competent authority for driving a heavy motor vehicle. In the present case Shafi Khan was holding the same and therefore, the driver of the Tanker was an eligible person to drive the same at the time of accident.
In this view of the matter, the Appellant cannot be escaped from the liability to pay compensation on the ground that driver was having no authority to drive the vehicle at the time of accident. Therefore, the finding of the Tribunal that driver Shafi Khan was eligible to drive the Tanker at the time of accident is perfectly justified and upheld."
22. Furthermore, the New India Assurance Co. Ltd. had issued a Circular No.HO:MTD:CIR:2013:14:IBO:ADMN:72 dated 01.04.2013, which reads as under:
"Re: Clarification on HO Circular No.HO/MTD/CIR No.09/95 dated 17.057.1995-Endorsement on DL of Drivers driving vehicles carrying hazardous goods.
Further, to the above captioned circular, it has been decided that henceforth, wherever the Driving License of the driver, which is not carrying authorization from the RTA, for driving vehicles carrying dangerous or hazardous goods, the claims can be settled on standard basis subject to the following:
The driver concerned has been given training as prescribed under Rule No.9 of Chapter II of Central Motor Vehicles Rules, 1989, by a Government Institute or a Government/Public Sector agency like First Appeal No.473 of 2022 16 M/s IOCL, HPCL, BPCL etc. and is accompanies by 'training certificate' issued by them.
The concerned office must also ensure that the above training certificate confirms the period of training as 3 days minimum and the certificate issuing institute is recognized by the concerned State Government for this purpose.
It has also been decided that:
If the vehicle, in respect of which the OD claim is reported, was meant for transporting dangerous or hazardous goods but at the material time of accident, it was empty or not carrying dangerous or hazardous goods, the OD claim can be settled on standard basis, only on the production of a DL, which was effective to drive that vehicle, without the endorsement or authorization of the RTA for driving vehicles carrying dangerous or hazardous goods or certificate of Training as per Rule 9, provided the claim is otherwise in order."
23. In view of the ratio of the law as laid down in the aforesaid judgments as well as the Circular, it is apparent that the absence of the endorsement on the driving licence is not so fundamental to have contributed towards the cause of accident of the vehicle carrying or not carrying hazardous goods. The vehicle in dispute was transport vehicle and the driver was having the driving licence to drive the same. Mere absence of any such endorsement for driving the vehicle carrying hazardous goods has no nexus with the cause of accident and as such, it cannot be a ground to reject the claim, which has been otherwise proved to be genuine.
24. The next question to be decided is as to whether the Complainant is entitled to the compensation as awarded by the District Commission or the same is to be enhanced or not?
25. As per the version of the Complainant, the vehicle was totally damaged in the accident and the Authorized Service Station had given an estimate of ₹15,87,265/- (Ex.C-9). The IDV of the vehicle First Appeal No.473 of 2022 17 was ₹15 lac and as such he is entitled to the full claim under the policy. On the other hand, OP No.1 has produced on record the estimate of ₹10,37,860/- stating that the same does not exceed 75% of the IDV and as such, the vehicle was repairable.
26. As per the version of the Complainant, OP No.1 had earlier appointed Mr. Ram Prasad Talasila of Vijaywada but when the complainant had corresponded/contacted with him, the letter sent to said surveyor had been received back with report that no such person was residing at the given address. Thereafter, OP No.1 had appointed Rama Prasad V.V.S. as surveyor, who had submitted his report dated 19.01.2019, wherein after applying the depreciation at the rate of 50%, the loss was assessed to be ₹1,50,000/- against the estimate of ₹10,37,860/-, which was obtained by the OP itself but without considering the estimate obtained by the Complainant. However, no cogent and convincing reason/explanation has been given in the Survey Report as to how and on what basis, the assessment was made by the surveyor. How the surveyor had assessed the rates of different parts is not clear from the surveyor report. Therefore, the surveyor report cannot be relied upon, as there are sufficient grounds to discard the same.
27. The Complainant has also rebutted said estimate ₹10,37,860/- produced by OP No.1 on the ground that it is an incomplete estimate. On perusal of said estimate produced by OP First Appeal No.473 of 2022 18 No.1, the plea of the Complainant appears to be weighty. It has been clearly mentioned in the said estimate that engine, gear box, front axle and rear axle assemblies and other parts of the vehicle were yet to be checked and the supplementary estimate would be submitted after dismantling the vehicle, if necessary. It was also mentioned that all the taxes would be extra. However, no evidence has been produced by OP No.1 that the engine was dismantled or not and in absence of such evidence, it cannot be inferred that the said estimate was final. Therefore, it can be easily inferred that OP No.1 has obtained an incomplete estimate, wherein the engine, gear box, front axle and rear axle assemblies and other parts of the vehicle were not included. Had the same been included, the estimate must have been more than 75% of the IDV of the vehicle. Rather, the estimate produced by the Complainant for ₹15,87,265/- includes all the damaged parts of the vehicle and it was more than the IDV. It is also supported by the certificate issued by the said workshop stating therein that the prices are guaranteed. Further, in case the aggregate cost of retrieval or repair of the vehicle exceeds 75% of the IDV, it was to be treated as Constructive Total Loss. In the present case, the repair expenses have exceeded the IDV of the vehicle as per the estimate produced by the Complainant. Even the same was likely to exceed 75% of the IDV keeping in view the incomplete estimate so produced by OP No.1. Therefore, keeping in view the fact that the OP First Appeal No.473 of 2022 19 No.1 had obtained an incomplete estimate, which had not included the engine, gear box, front axle and rear axle assemblies and other parts of the vehicle as well as the estimate obtained by the Complainant for ₹15,87,265/-, it can be inferred that the vehicle was totally damaged in the accident.
28. Identical situation arose before the Hon'ble Punjab and Haryana High Court in the case of Tata AIG Insurance Co. Ltd. v. Vijay Mehra & Ors. CWP No.26777 of 2015 decided on 22.12.2015. The relevant portion of said judgment is reproduced as under:
"I have heard learned Counsel for the petitioner and after perusal of record, am of the considered opinion that there is no merit in the argument of the petitioner because a categoric finding has been returned by Respondent No.3 that as per the invoice issued by Respondent No.3, the loss caused to Respondent No.1 is to the extent of Rs.1,58,160/-, which is more than the insured's declared value of the vehicle i.e. Rs.1,97,000/-, therefore Respondent No.1 has rightly been awarded the total loss of the vehicle on the basis of IDV. No other point has been urged."
29. In another case of Sharda Associates v. United India Insurance Co. Ltd. Civil Appeal No.4910 of 2022 decided on 25.07.2022, the Hon'ble Supreme Court had awarded the IDV of the vehicle in the case of total loss.
30. In view of above discussion as well as the facts and circumstances of the case as well as the ratio of law as laid down in the judgments as discussed above, it is apparent that the vehicle in dispute was totally damaged in the accident. However, the District Commission had failed to take into consideration all these facts and circumstances of the case. Therefore, the impugned order is liable to First Appeal No.473 of 2022 20 be modified to the extent that the Complainant is entitled to the IDV of the vehicle, as it was a case of total loss.
31. On perusal of the policy, it shows that an amount of ₹1,500/- was received from the Complainant towards additional towing charges at the time of issuing the policy. As per version of the Complainant, he had spent an amount of ₹2,500/- on shifting the vehicle to the workshop. The surveyor in his report had also mentioned/assessed the towing charges of ₹2,500/-. The complainant was not required to pay any towing charges, as he had already paid the requisite premium for the same while taking the policy. Therefore, said amount is liable to be refunded to the Complainant along with the interest.
32. The surveyor had received an amount of ₹1,830/- towards survey fee from the Complainant vide receipt (Ex.C-8). However, the Complainant had obtained the Package Policy by paying the premium of ₹52,018/-. The liability to pay the survey fee is of the insurer and not of the insured. As such, the survey fee of ₹1,830/- is liable to be refunded by OP No.1 to the Complainant along with interest, as the same was received from the Complainant against the principles of natural justice.
33. It is a case of total loss and as such, the RC and salvage are to be protected/disposed off by bringing this fact to the notice of the Registering Authority. The RC of the vehicle is to be deposited with First Appeal No.473 of 2022 21 the concerned Registering Authority, so that it may not be misused by any person.
34. Section 55 of the Motor Vehicles Act, 1988 is relevant, which is reproduced as under:
"55. Cancellation of registration:
(1) If a motor vehicle has been destroyed or has been rendered permanently incapable of use, the owner shall, within fourteen days or as soon as may be, report the fact to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward to the authority the certificate of registration of the vehicle.
(2) The registering authority shall, if it is the original registering authority, cancel the registration and the certificate of registration, or, if it is not, shall forward the report and the certificate of registration to the original registering authority and that authority shall cancel the registration."
35. On perusal of said provision, it is apparent that in case the motor vehicle has been damaged/destroyed or it has been rendered permanently incapable of use, the owner of the vehicle is to report to the Registering Authority within the specified period, within whose jurisdiction, the owner has residence or place of business, or where the vehicle is normally kept, as the case may, and he/she is to forward to the Registering Authority the certificate of registration of the vehicle. As per Sub Section (2) of Section 55, an action is to be taken by the Registering Authority, as it is the responsibility of the Registering Authority to cancel the registration. The Registering Authority is to forward the report and certificate of registration to the original Registering Authority for cancellation. Meaning thereby, the Registering Authority is the ultimate Authority to cancel that registration. By relying upon the provisions of Section 55 of the Motor First Appeal No.473 of 2022 22 Vehicles Act, 1988, a letter bearing Ref:IRDA/NL/CIR/MOTOD/ 118/07/2019 dated 26.07.2019 was circulated by Insurance Regulatory and Development Authority (IRDA) of India to all General Insurers (other than Stand-Alone Health Insurers and Specialized Insurers) regarding the misuse of total loss accidental vehicle documents over the stolen vehicles. Through said letter, the insurer was advised to ensure cancellation of certificate of registration of the vehicle in case of total loss claim settlement. Therefore, a direction is also required to be issued to OP No.1 to get the RC of the vehicle in question cancelled and dispose off the salvage of the damaged vehicle with the assistance/cooperation of the Complainant. The judgments relied upon by learned Counsel for the Appellant No.1/OP are distinguishable and are not applicable to the facts and circumstances of the present case.
36. Accordingly, the First Appeal No.473 of 2022 filed by OP No.1 is dismissed and the First Appeal No.146 of 2022 filed by the Complainant is allowed. The impugned order dated 30.11.2021 passed by the District Commission is modified to the extent that OP No.1 shall pay the IDV of the vehicle i.e. ₹15 lac to the Complainant along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. 11.03.2019 till its realization. OP No.1 shall also refund ₹1,830/- and ₹2,500/- (received from the Complainant towards survey fee and towing First Appeal No.473 of 2022 23 charges respectively) along with interest at the rate of 9% per annum from the date of receipt till its realization. Remaining part of the impugned order qua to award of cost and compensation is upheld. It is made clear that the Complainant shall transfer the ownership of the vehicle in dispute in favour of OP No.1- Insurance Company within a period of 15 days from the date of receipt of certified copy of this order. Thereafter, the claim amount along with other reliefs shall be paid by the Insurance Company to the Complainant within a period of 1 month. OP No.1 shall get the RC of the vehicle in question cancelled and dispose off the salvage of the damaged vehicle in accordance with the provisions of Section 55 of the Motor Vehicles Act, 1988 and Circular No.IRDA/NL/CIR/MOTOD/ 118/07/2019 dated 26.07.2019 issued by IRDA) within a period of 15 days and the Complainant shall also cooperate with OP No.1 in this regard. After cancellation of RC and disposal of salvage, the intimation to this effect shall also be sent by OP No.1 to the District Commission.
37. In some of the cases as mentioned/discussed henceforth, both the parties i.e. the Insurance Company and the Complainant have filed separate/Cross Appeals to challenge the impugned order. District Commission had awarded the claim amount as assessed by the surveyor but there are sufficient reasons to discard the survey reports. The Complainant has produced on record certain bills/invoices to show First Appeal No.473 of 2022 24 that certain amount was spent on the repair of the vehicle but the same were not taken into consideration. In such Appeals, the impugned order passed by the District Commission is to be modified and amount spent on repairs of the vehicle is to be awarded along interest etc.
38. In some of the cases as mentioned/discussed henceforth, the amount has been awarded by the District Commission on the basis of survey reports but no Appeals have been filed by the Complainant. In such cases, the impugned orders passed by the District Commission are liable to be upheld.
First Appeal No.475 of 2022 and First Appeal No.147 of 2022 (Cross Appeals):
39. Similarly, in the said Appeals, the Complainant was the owner of tanker No.AP-16-TE-4560. Said tanker was comprehensively insured with the OP vide Cover Note No.2001013117N100201438, which was valid for the period w.e.f. 01.08.2017 to 31.07.2018. Said vehicle had met with an accident on 09.01.2018 at about 1.30 p.m. near Kanuparthipadu Cross Road, NH-16, Nellore. The claim lodged by the Complainant was repudiated vide letter dated 17.05.2018 on the ground that the driver was not having the valid and effective driving licence to drive the vehicle carrying hazardous goods at the time of accident. Other averments of the Complaint were similar to as mentioned in First Appeal No.473 of 2022. A prayer was made for issuance of directions to the OP to pay claim amount of ₹10,10,752/- First Appeal No.473 of 2022 25 i.e. ₹9,85,752/- spent on the repair of the vehicle and ₹25,000/- as paid towards towing charges along with interest at the rate of 18% per annum and also to pay compensation of ₹50,000/- and litigation expenses of ₹25,000/-.
40. The OP had also filed the reply on the similar lines of the reply as mentioned in First Appeal No.473 of 2022.
41. By considering the contents of the Complaint and written versions thereof filed by the OP, the Complaint was partly allowed by the District Commission vide impugned order dated 30.11.2021. The relevant portion of said order as mentioned in Paras-28 to 30 is reproduced as under:
"28. Therefore, this Commission is of the considered opinion that mere endorsement on the driving licence does not increase the profession skill of the driver. The opposite party cannot escape its liability to pay the claim. Thus, repudiation of claim by the opposite party without any basis amounts to deficiency in service on their part.
29. Resultantly, this Complaint is partly accepted with Rs. 10,000/- as cost and compensation. The opposite party is directed to pay Rs. 4,97,500/- as assessed by surveyor with interest @9% P.A. from the date of repudiation of claim i.e. 17-5-2018 till payment.
30. The compliance of this order be made within 45 days from the date of receipt of copy of this order."
42. Being aggrieved by the said order dated 30.11.2021 passed by the District Commission, the Appellant/OP has filed First Appeal No.475 of 2023 for setting aside of the impugned order, whereas Respondent/Complainant has filed First Appeal No.147 of 2022 for enhancement of the compensation as already awarded by the District Commission.
First Appeal No.473 of 2022 26
43. On perusal of record, it is apparent that at the time of accident, the vehicle was being driven by Vijay Yadav, who was having the valid and effective driving licence (Ex.C-7) for driving the transport vehicle. He had also undergone training w.e.f. 06.04.2017 to 08.04.2017 for safe transportation of hazardous goods, as is apparent from Certificate Ex.C-8. The vehicle was damaged in the said accident and as per estimate (Ex.C-12), an amount of ₹18,92,019/- was assessed for its repairs. However, the District Commission has awarded an amount of ₹4,97,500/- as assessed by the surveyor along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. 17.05.2018 till its realization and also to pay ₹10,000/- towards compensation and cost.
44. The surveyor had given his report dated 20.07.2018 (Ex.OP-1/12), whereby the loss was assessed as ₹4,97,500/- only. No reasons have been given in the survey report as to how the loss had been assessed. On the last page of assessment sheet, figures are mentioned but other figures are mentioned in circle close to the original figures. How and why this has been done has not been explained. Therefore, the surveyor report cannot be relied upon. On the other hand, the Complainant has produced on record the copies of the bills/invoices (Ex.C-14 to Ex.C-36) to prove that an amount of ₹9,24,152/- was spent on the repairs of the vehicle. Said bills/invoices were also endorsed/signed by the OP itself. Therefore, the First Appeal No.473 of 2022 27 Complainant is held entitled to ₹9,24,152/- towards the amount spent on repairs of the vehicle as per aforesaid bills/invoices.
45. The Complainant had paid the towing charges of ₹25,000/- to the vehicle towing agency vide receipt (Ex.C-11). As per email dated 05.11.2018 (Ex.C-6) issued by the OP, the Complainant had paid an amount of ₹20,000/- towards additional towing charges in addition to ₹2,500/- while purchasing the policy. Since the Complainant had already paid the premium towards said charges, so he was not required to pay any towing charges. Therefore, he is entitled to the refund of ₹25,000/- paid by him towards towing charges along with interest, as the same was received from him, which is contrary to the principles of natural justice.
46. In view of the relevant reasons as mentioned in First Appeal No.473 of 2022 as well as the above discussion, First Appeal No.475 of 2022 filed by the OP is dismissed and the First Appeal No.147 of 2022 filed by the Complainant is partly allowed. The impugned order dated 30.11.2021 passed by the District Commission is modified to the extent that the OP shall pay an amount of ₹9,24,152/- spent on repair of the vehicle as per aforesaid bills/invoices along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. 17.05.2018 till its realization. The OP shall also refund ₹25,000/-, received from the Complainant towards towing charges, along with interest at First Appeal No.473 of 2022 28 the rate of 9% per annum from the date of receipt till its realization. Rest of the impugned order qua to award of cost and compensation is upheld.
First Appeal No.417 of 2022
47. Similarly, in this Appeal, the Complainant was the owner of tanker No.PB-03-AA-4677. Said tanker was comprehensively insured with OP No.1 vide Package Policy No.2004013116P101495055, which was valid for the period w.e.f. 03.05.2016 to 02.05.2017 for an IDV of ₹13 lac. Said vehicle was hypothecated with OP No.2-Bank. Said vehicle had met with an accident on 14.02.2017 at about 4.30 p.m. near Lambra, Nakodar-Jalandhar Road, while going from Bathinda to Jammu. DDR No.16 was lodged with the police in this regard. The claim lodged by the Complainant was repudiated vide letter dated 18.04.2018 on the ground that the driver was not possessing the valid and effective driving licence to drive the vehicle carrying hazardous goods at the time of accident. Other averments of the Complaint were similar to as mentioned in First Appeal No.473 of 2022. A prayer was made for issuance of directions to the OP to pay claim amount of ₹5,70,310/- i.e. ₹5,62,807/- spent on repair of the vehicle, ₹1,503/- towards the fee paid to the surveyor and ₹6,000/- paid towards towing charges along with interest at the rate of 18% per annum and also to pay compensation of ₹1,00,000/- and litigation expenses of ₹50,000/-. First Appeal No.473 of 2022 29
48. The OPs had filed their separate replies on the similar lines of the reply as mentioned in First Appeal No.473 of 2022.
49. By considering the contents of the Complaint and written versions thereof filed by the OPs, the Complaint was partly allowed by the District Commission vide impugned order dated 30.11.2021. The relevant portion of said order as mentioned in Paras- 27 to 29 is reproduced as under:
"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."
50. Being aggrieved by the said order dated 30.11.2021, the Appellant/OP No.1 has filed the present Appeal. However, no Appeal has been filed by the Respondent/Complainant.
51. The driving licence of the driver (Ex.C-9) was valid and effective to drive LMV, LMV/GV, MCGW and transport vehicle. He had also undergone training for the period w.e.f. 15.12.2016 to 17.12.2016 as is evident from certificate (Ex.C-10) for driving the vehicle carrying hazardous goods i.e. prior to the date of the accident. The District Commission had awarded an amount of ₹2,72,500/- as assessed by First Appeal No.473 of 2022 30 the surveyor along with interest at the rate of 9% per annum from the date of institution of the Complaint till it realization and also to pay ₹10,000/- towards costs and compensation. No Appeal has been filed by the Complainant. Even there is no ground to set aside the impugned order passed by the District Commission and as such, the impugned order is liable to be upheld.
52. In view of the relevant discussion as held in First Appeal No.473 of 2022 as well as above discussion, the First Appeal No.417 of 2022 filed by Appellant/OP No.1 is dismissed and the impugned order dated 30.11.2021 passed by the District Commission is upheld.
First Appeal No.469 of 2022
53. Similarly, in this Appeal, the Complainant was the owner of gas tanker No.PB-03-V-0613. Said tanker was comprehensively insured with OP No.1 vide Package Policy No.2004003116P116699547, which was valid for the period w.e.f. 11.03.2017 to 10.03.2018. Said vehicle was hypothecated with OP No.2-Bank. Said vehicle had met with an accident on 31.07.2017 at about 3.00 a.m. at G.T. Road, near Samana (Karnal). The claim lodged by the Complainant was repudiated vide letter dated 27.07.2018 on the ground that the driver was not holding the valid and effective driving licence to drive the vehicle carrying hazardous goods at the time of accident. Other averments of the Complaint were similar First Appeal No.473 of 2022 31 to as mentioned in First Appeal No.473 of 2022. A prayer was made for issuance of directions to the OP to pay claim amount of ₹1,42,678/- i.e. ₹1,34,000/- spent on repair of the vehicle, ₹2,678/- towards the fee paid to the surveyor and ₹6,000/- paid towards towing charges along with interest at the rate of 18% per annum and also to pay compensation of ₹50,000/- and litigation expenses of ₹25,000/-.
54. The OPs had filed their separate replies on the similar lines of the reply as mentioned in First Appeal No.473 of 2022.
55. By considering the contents of the Complaint and written versions thereof filed by the OPs, the Complaint was partly allowed by the District Commission vide impugned order dated 30.11.2021. The relevant portion of said order as mentioned in Paras- 31 to 33 is reproduced as under:
"31. 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.
32. 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.59,200/- as assessed by surveyor with interest @ 9% P.A. from the date of institution of Complaint i.e. 27-7-2018 till payment.
33. The compliance of this order be made by opposite party No.1 within 45 days from the date of receipt of copy of this order."
56. Being aggrieved by the said order dated 30.11.2021, the Appellant/OP No.1 has filed the present Appeal. However, no Appeal has been filed by the Respondent/Complainant.
First Appeal No.473 of 2022 32
57. The driving licence of the driver (Ex.C-5) was valid and effective to drive LMV, LMV/GV and transport vehicle. He had also undergone training for the period w.e.f. 06.04.2017 to 07.04.2017 as is evident from certificate (Ex.C-6) for driving the vehicle carrying hazardous goods i.e. prior to the date of the accident. The District Commission had awarded an amount of ₹59,200/- as assessed by the surveyor along with interest at the rate of 9% per annum from the date of repudiation of claim i.e. 27.07.2018 till its realization and also to pay ₹10,000/- towards costs and compensation. However, no Appeal has been filed by the Complainant. Even there is no ground to set aside the impugned order passed by the District Commission, so the impugned order is upheld.
58. In view of the relevant discussion as held in First Appeal No.473 of 2022 as well as above discussion, the First Appeal No.469 of 2022 filed by Appellant/OP No.1 is dismissed and the impugned order dated 30.11.2021 passed by the District Commission is upheld.
First Appeal No.470 of 2022
59. Similarly, in this Appeal, the Complainant was the owner of gas tanker No.PB-03-U-9713. Said tanker was comprehensively insured with OP No.1 vide Package Policy No.2001013117P113898831, which was valid for the period w.e.f. 31.12.2017 to 30.12.2018. Said vehicle was hypothecated with OP First Appeal No.473 of 2022 33 No.2-Bank. Said vehicle had met with an accident in the intervening night of 26/27.05.2018 near Beas Dera, Village Ghumana. The claim lodged by the Complainant was repudiated vide letter dated 17.05.2018 on the ground that the driver was not holding the valid and effective driving licence to drive the vehicle carrying hazardous goods at the time of accident. Other averments of the Complaint were similar to as mentioned in First Appeal No.473 of 2022. A prayer was made for issuance of directions to the OP to pay claim amount of ₹4,41,820/- (₹4,24,820/- plus ₹17,000/-) along with interest at the rate of 18% per annum from the date of loss till its realization and also to pay compensation of ₹50,000/- and litigation expenses of ₹25,000/-.
60. The OPs had filed their separate replies on the similar lines of the reply as mentioned in First Appeal No.473 of 2022.
61. By considering the contents of the Complaint and written versions thereof filed by the OPs, the Complaint was partly allowed by the District Commission vide impugned order dated 30.11.2021. The relevant portion of said order as mentioned in Paras- 33 to 35 is reproduced as under:
"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.2,01,650/- as assessed by surveyor with interest @ 9% P.A. from the date of institution of Complaint i.e. 1-5-2019 till payment.First Appeal No.473 of 2022 34
29. The compliance of this order be made within 45 days from the date of receipt of copy of this order."
62. Being aggrieved by the said order dated 30.11.2021, the Appellant/OP No.1 has filed the present Appeal. However, no Appeal has been filed by the Respondent No.1/Complainant.
63. The driving licence of the driver (Ex.C-6) was valid and effective to drive LMV, LMV/TR and the transport vehicle. He had also undergone training for the period w.e.f. 25.03.2018 to 27.03.2018 as is evident from certificate (Ex.C-7) for driving the vehicle, which was carrying the hazardous goods i.e. prior to the date of the accident. The driver had also moved an application with the concerned department for making necessary endorsement on his licence for driving the vehicle carrying hazardous goods, as is apparent from document Ex.C-8. The District Commission had awarded an amount of ₹2,01,650/- as assessed by the surveyor along with interest at the rate of 9% per annum from the date of institution of the Complaint till its realization and also to pay ₹10,000/- towards costs and compensation. However, no Appeal has been filed by the Complainant. Even there is no ground to set aside the impugned order passed by the District Commission, so the impugned order is liable to be upheld.
64. In view of the relevant discussion as held in First Appeal No.473 of 2022 as well as above discussion, the First Appeal No.470 of 2022 filed by Appellant/OP No.1 is dismissed First Appeal No.473 of 2022 35 and the impugned order dated 30.11.2021 passed by the District Commission is upheld.
First Appeal No.471 of 2022
65. Similarly, in this Appeal, the Complainant was the owner of gas tanker No.PB-03-X-3013. Said tanker was comprehensively insured with the OP vide Package Policy having Cover Note No.2004003117P115137704, which was valid for the period w.e.f. 25.01.2018 to 24.01.2019. Said vehicle had met with an accident on 13.02.2018 at Rampur-Bareilley Bypass. The claim lodged by the Complainant was repudiated on the ground that the driver was not holding the valid and effective driving licence to drive the vehicle carrying hazardous goods at the time of accident. The other averments of the Complaint were similar to as mentioned in First Appeal No.473 of 2022. A prayer was made for issuance of directions to the OP to pay claim amount of ₹1,83,376/- (₹1,75,266/- as per the bills after depreciation on repair of the vehicle, ₹2,110/- as fee paid to the surveyor and ₹6,000/- as towing charges) along with interest at the rate of 18% per annum and also to pay compensation of ₹50,000/- and litigation expenses of ₹25,000/-.
66. The OP had filed its reply on the similar lines of the reply as mentioned in First Appeal No.473 of 2022.
67. By considering the contents of the Complaint and written version thereof filed by the OP, the Complaint was partly allowed by First Appeal No.473 of 2022 36 the District Commission vide impugned order dated 30.11.2021. The relevant portion of said order as mentioned in Paras-28 to 31 is reproduced as under:
"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, repudiation of claim by opposite party without any basis amounts to deficiency in service on their part.
29. Resultantly, this Complaint is partly accepted with Rs. 10,000/- as cost and compensation.
30. The opposite party is directed to pay Rs.1,20,594/- as assessed by surveyor with interest @ 9% P.A. from the date of institution of Complaint i.e. 13-9-2018 till payment.
31. The compliance of this order be made within 45 days from the date of receipt of copy of this order."
68. Being aggrieved by the said order dated 30.11.2021, the Appellant/OP has filed the present Appeal. However, no Appeal has been filed by the Respondent/Complainant.
69. The driving licence of the driver (Ex.C-5) was valid and effective to drive LMV, MCWG and transport vehicle. He had also undergone training for the period w.e.f. 06.04.2017 to 08.04.2017 as is evident from certificate (Ex.C-6) for driving the vehicle carrying hazardous goods i.e. prior to the date of the accident. The District Commission had awarded an amount of ₹1,20,594/- as assessed by the surveyor along with interest at the rate of 9% per annum from the date of institution of the Complaint till its realization and also to pay ₹10,000/- towards costs and compensation. However, no Appeal has been filed by the Complainant. Even there is no ground to set aside First Appeal No.473 of 2022 37 the impugned order passed by the District Commission, so the impugned order is liable to be upheld.
70. In view of the relevant discussion as held in First Appeal No.473 of 2022 as well as above discussion, the First Appeal No.471 of 2022 filed by the Appellant/OP is dismissed and the impugned order dated 30.11.2021 passed by the District Commission is upheld.
First Appeal No.472 of 2022
71. Similarly, in this Appeal, the Complainant was the owner of gas tanker No.PB-03-W-9945. Said tanker was comprehensively insured with OP No.1 vide Package Policy having Cover Note, which was valid for the period w.e.f. 09.02.2017 to 08.02.2018. Said vehicle had met with an accident on 07.10.2017 at about 3 p.m. near Manikpur Sidhuauli, Sitapur, UP. The claim lodged by the Complainant was repudiated on the ground that the driver was not holding the valid and effective driving licence to drive the vehicle carrying hazardous goods at the time of accident. The other averments of the Complaint were similar to as mentioned in First Appeal No.473 of 2022. A prayer was made for issuance of directions to the OP to pay claim amount of ₹2,95,540/- (₹2,86,000/- spent on repair of the vehicle, ₹3,540/- as fee paid to the surveyor and ₹6,000/- a towing charges) along with interest at the rate of 18% per annum and also to pay compensation of ₹50,000/- and litigation expenses of ₹25,000/-. First Appeal No.473 of 2022 38
72. The OPs had filed their separate replies on the similar lines of the reply as mentioned in First Appeal No.473 of 2022.
73. By considering the contents of the Complaint and written versions thereof filed by the OPs, the Complaint was partly allowed by the District Commission vide impugned order dated 30.11.2021. The relevant portion of said order as mentioned in Paras- 20 to 22 is reproduced as under:
"20. 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.
21. 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.85,100/- as assessed by surveyor with interest @ 9% P.A. from the date of institution of Complaint i.e. 12-9-2018 till payment.
22. The compliance of this order be made within 45 days from the date of receipt of copy of this order."
74. Being aggrieved by the said order dated 30.11.2021, the Appellant/OP No.1 has filed the present Appeal. However, no Appeal has been filed by the Respondent No.1/Complainant.
75. The driving licence of the driver (Ex.C-6) was valid and effective to drive LMV, LMV/Cab. MCWG and transport vehicle. He had also undergone training for the period w.e.f. 06.04.2017 to 07.04.2017 as is evident from certificate (Ex.C-7) for driving the vehicle carrying hazardous goods i.e. prior to the date of the accident. The District Commission had awarded an amount of ₹85,100/- as First Appeal No.473 of 2022 39 assessed by the surveyor along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e.12.09.2018 till its realization and also to pay ₹10,000/- towards costs and compensation. However, no Appeal has been filed by the Complainant. Even there is no ground to set aside the impugned order passed by the District Commission, so the impugned order is liable to be upheld.
76. In view of the relevant discussion as held in First Appeal No.473 of 2022 as well as above discussion, the First Appeal No.472 of 2022 filed by Appellant/OP No.1 is dismissed and the impugned order dated 30.11.2021 passed by the District Commission is upheld.
First Appeal No.474 of 2022
77. Similarly, in this Appeal, the Complainant was the owner of tanker No.HR-55-G-6661. Said tanker was comprehensively insured with the OP vide Package Policy, which was valid for the period w.e.f. 21.01.2017 to 20.01.2018. Said vehicle had met with an accident on 09.01.2018 at about 6.30 p.m. at Sahzadpur Saha Road, Nr. Karason. The claim lodged by the Complainant was repudiated on the ground that the driver was not holding the valid and effective driving licence to drive the vehicle carrying hazardous goods at the time of accident. The other averments of the Complaint were similar to as mentioned in First Appeal No.473 of 2022. A prayer was made for issuance of directions to the OP to pay claim amount of ₹1,35,564/- (₹1,27,730- spent on First Appeal No.473 of 2022 40 repair of the vehicle, ₹1,834/- as fee paid to the surveyor and ₹6,000/- as towing charges) along with interest at the rate of 18% per annum and also to pay compensation of ₹50,000/- and litigation expenses of ₹25,000/-.
78. The OP had filed its reply on the similar lines of the reply as mentioned in First Appeal No.473 of 2022.
79. By considering the contents of the Complaint and written version thereof filed by the OP, the Complaint was partly allowed by the District Commission vide impugned order dated 30.11.2021. The relevant portion of said order as mentioned in Paras-24 to 26 is reproduced as under:
"24. 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, repudiation of claim by opposite party without any basis amounts to deficiency in service on their part.
25. Resultantly, this Complaint is partly accepted with Rs. 10,000/- as cost and compensation. The opposite party is directed to pay Rs.41,439/- as assessed by surveyor with interest @ 9% P.A. from the date of repudiation of claim i.e. 20-7-2018 till payment.
26. The compliance of this order be made within 45 days from the date of receipt of copy of this order."
80. Being aggrieved by the said order dated 30.11.2021, the Appellant/OP has filed the present Appeal. However, no Appeal has been filed by the Respondent/Complainant.
81. The driving licence of the driver (Ex.C-5) was valid and effective to drive LMV, MCWG and transport vehicle. He had also First Appeal No.473 of 2022 41 undergone training for the period w.e.f. 04.10.2017 to 06.10.2017 as is evident from certificate (Ex.C-6) for driving the vehicle carrying hazardous goods i.e. prior to the date of the accident. The District Commission had awarded an amount of ₹41,439/- as assessed by the surveyor along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. 20.07.2018 till its realization and also to pay ₹10,000/- towards costs and compensation. However, no Appeal has been filed by the Complainant. Even there is no ground to set aside the impugned order passed by the District Commission, so the impugned order is liable to be upheld.
82. In view of the relevant discussion as held in First Appeal No.473 of 2022 as well as above discussion, the First Appeal No.474 of 2022 filed by the Appellant/OP is dismissed and the impugned order dated 30.11.2021 passed by the District Commission is upheld.
83. All the Appeals are disposed off accordingly.
84. Since the main cases have been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
85. The amount(s) deposited by the Appellant(s) at the time of filing of the Appeals or in connection with grant of stay as per order(s) passed by this Commission, if any, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District First Appeal No.473 of 2022 42 Commission forthwith separately in each Appeal. The District Commission(s) may pass appropriate order(s) in this regard in accordance with law.
86. The Appeals could not be decided and pronounced within the statutory period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER (VISHAV KANT GARG) MEMBER September 16, 2024.
(Gurmeet S)