Allahabad High Court
The New India Assurance Co. Ltd. vs Smt. Lakshmi And 3 Others on 24 July, 2018
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 26 AFR Case :- FIRST APPEAL FROM ORDER No. - 3112 of 2018 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Lakshmi And 3 Others Counsel for Appellant :- Amit Manohar Hon'ble Ajit Kumar,J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the award dated 11.5.2018 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 10 Kanpur Nagar whereby claim petition no. 560 of 2016 has been allowed for compensation of Rs. 4,83,600/.
2. The facts of the case are that deceased Shivam Kumar @ Shibu suffered fatal injury in an accident caused by truck bearing no. UP 78 BT 4026. The claim petition was filed by the dependent with the allegation that truck was being driven negligently and rashly. Besides accidental death the tribunal framed issues with regard to validity of driving licence, insurance cover and quantum of compensation to which claimants should be entitled.
3. The Tribunal recorded a categorical finding to the effect that accident did occur on account of rash and negligent driving of the truck driver and that truck driver while driving the truck was possessed of a valid licence . The valid insurance cover was there and, therefore, insurance company was held liable to indemnify the ensured in a third party claim and accordingly directed the insurance company to pay compensation.
4. The only argument advanced by counsel for the appellant is that in view of proviso to Section 14 of the Motor Vehicles Act, 1988, the driver who was driving tortfeasor vehicle was not in possession of a valid driving license. According to him in order to drive transport vehicle carrying goods of dangerous or hazardous nature, the validity period of driving license is one year and its renewal would be only in the event driver undergoes one day refresher course of the prescribed syllabus. Further there has to be endorsement on license authorizing to drive vehicle carrying dangerous or hazardous goods.
5. The argument has been developed on the facts of the case that truck that was being driven by the driver was loaded with gas cylinders at the time of accident and for driving a vehicle carrying gas cylinder which is hazardous goods, a driving license must bear note to the effect that driver had the valid license to drive such transport vehicle. The Tribunal discarded the arguments on the ground that accident was caused by truck and not by leakage of gas cylinder so as to attract provisions and further the Tribunal relied upon judgement of this Court in the case of United India Insurance Company Ltd. v. Smt. Sima and Others 2016 (1) AICC 45, wherein it has been held that the accident was caused because of the vehicle hitting another vehicle though vehicle carried gas cylinder but since it was not case of gas leakage, therefore, even if there was no endorsement on the driving license authorizing driving of such carriage, it would not absolve the insurance company from liability to pay in third party claim.
6. Learned counsel for the appellant has relied upon another Judgement of Single Judge of Lucknow Bench, in Krishna Kumar and Another v. United India Insurance Company Ltd. (FAFO No. 20 of 2016 decided on 5.10.2016), in which it has been held that for carrying hazardous goods, there must be endorsement on driving license in view of provisions as contained under Section 14 of the Act, 1988 read with Rule 9 (3) of the Central Motor vehicle Rules, 1989 (hereinafter referred to as "Rules, 1989") and, therefore, driving any vehicle carrying dangerous or hazardous goods without any endorsement of the driving license would render driving license invalid, and so, there would be violation of condition of insurance and ensurer cannot be asked to indemnify the ensured in such circumstances.
7. Having heard learned counsel for the appellant and having perused the records and having gone through the relevant provisions in this regard, I find that Motor Vehicles Act, 1988 vide proviso to sub-section 2 of Section 14 talks of goods of dangerous or hazardous nature.
8. In order to appreciate the arguments Section 14 of the Act, 1988 is reproduced hereunder:
"14. Currency of licenses to drive motor vehicles- (1) A learner's license issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the license.
(2) A driving license issued or renewed under this Act shall-
Provided that in the case of license to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus."
9. Since Rule 9 of the Rules, 1989 provides for other qualification which a driver must possess and Sub-Rule 3 provides for endorsement on license authorizing driver to drive vehicle carrying dangerous and hazardous goods, it is also necessary to read the same together with Section 14 of the Act, 1988. The Rule 9 is also reproduced as under:
"[9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods.--[(1) 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 VIII Schedule of the Constitution] and English and also possess a certificate of having successfully passed 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
Questionnaire Duration of training for
Cause of accidents A & B--1st and 2nd day
Accidents' statistics
Driver's personal fitness
Car condition
Braking distance
Highway driving
Road/ Pedestrian crossing
Railway crossing
Adapting to weather
Head-on collision
Rear-end collision
Night driving
Films and discussion
B. Advanced driving skills and training
(I) Discussion
Before starting -- Checklist
-- outside/below/near vehicle
-- product side
-- inside vehicle
During driving -- correct speed/gear
-- signalling
-- lane control
-- overtaking/giving side
-- speed limit/safe distance
-- driving on slopes
Before stopping -- sale stopping place, signalling, road width,
condition
After stopping -- preventing vehicle movement
-- wheel clocks
-- vehicle attendance
[Night driving -- mandatory lighting requirements
-- headlamp alignment
-- use of dipped beam]
(ii) Field test/training -- 1 driver at a lime
C. Product safety -- UN classification Duration
UN Panel -- Hazchem Code of training
-- Toxicity, for (C)
flammability, Third day.
other definitions
Product information -- Tremcards
-- CIS/MSDS
-- Importance of temperature pressure level
-- Explosive limits
-- Knowledge about equipment
-- Communication
Emergency Procedure -- Spillage handling
-- Use of PPE
-- Fire fighting
-- First Aid
-- Toxic release control
-- Protection of wells, rivers, lakes, etc.
-- Use of protective equipment
-- Knowledge about valves, etc.]
(2) The holder of a driving licence possessing the minimum educational qualification or the certificate referred to in sub-rule (1), shall make an application in writing on a plain paper alongwith his driving licence and the relevant certificate to the licensing authority in whose jurisdiction he resides for making necessary entries in Ms driving licence and if the driving licence is in Form 7 the application shall be accompanied by the fee as is referred to in Serial No. 8 of the Table to rule 32.
(3) The licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving licence of the applicant to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life.
(4) A licensing authority other than the original licensing authority making any such endorsement shall communicate the fact to the original licensing authority."
10. The very word 'goods' occurring in proviso (supra) would in the opinion of the Court, means any article or substance which by its nature is dangerous or hazardous and, therefore, being driver having license to drive vehicle carrying such goods which are dangerous or hazardous by nature, he is necessarily required to posses a license with a note authorizing him to drive such transport vehicle as per proviso of Act, 1988. Rules, 1989 vide table II provides an indicative criteria of such goods like (A) Explosive, (B) Gas, (C) Flammable chemicals, (D) Reactive Substance, (E) Oxidizing Substances, (F) Toxic, (G) Radioactive and (H) Corrosive. The table III of the Rules provides as many as 2319 entries of such goods. Though, no doubt it is an indicative criteria, but it is defined that goods by nature should be dangerous and hazardous.
11. The object behind the proviso is that a person who is driving vehicle carrying such goods must be trained enough so that no causality of any kind takes place on account of careless or negligent driving. The purpose of endorsement on the license is also same. The question, therefore, is as to whether empty container of such goods by itself to be treated as dangerous or hazardous to human life. In the opinion of the Court an empty container or cylindrical bottle cannot be termed as goods dangerous or hazardous nature to human life. Rule 9 (3) makes endorsement obligatory if one intends to carry goods that are dangerous or hazardous by nature to human life. So emphasis is that goods by very nature should be dangerous or hazardous to human life. A mere container or bottle that might be used to contain dangerous or hazardous goods cannot be treated itself as dangerous or hazardous by nature. It is quite possible that empty containers are carried from one place to another place and, therefore, unless sufficient evidence is led by the parties that those containers that were loaded on a truck carried dangerous or hazardous goods, the driver while driving such vehicle with a valid license entitling him to a drive transport vehicle will not get rendered ineligible just for carrying empty cylinders and in such circumstances the insurance company will not get absolved from its liability in a third party claim. It could be a case where manufacturer transports cylinders to the industry/company and it could equally be a case where containers are transported from production unit to sale unit or to a Go-down at distant place. In such circumstances, transportation of such empty cylinders or containers from one place to another would not require driver to have endorsement under proviso to Section 14 of Act, 1988. Since containers or cylinders are not dangerous or hazardous goods by nature, therefore, in the event of a road accident involving transport vehicle carrying such empty cylinders/containers the insurance company cannot get rid of its liability to meet third party claim as per terms of insurance policy.
12. Here it is also relevant to consider Rules 129 to Rule 137 of the Central Motor Vehicles Rules, 1989 that relied to transport of dangerous or hazardous goods.
13. Relevant Rules 129 to Rule 137 are reproduced hereunder:
"129. Transportation of goods of dangerous or hazardous nature to human life.--(1)Every owner of a goods carriage transporting any dangerous or hazardous goods shall,in addition to complying with the provisions of any law for the time being in force in relation to any category of dangerous or hazardous goods, comply with the following conditions, namely:--
(i) every such goods carriage, carrying the same type of dangerous or hazardous goods (whether in bulk or in packages), shall display a distinct mark of the class lable appropriate to the type of dangerous or hazardous goods specified in column 3 of the Table I to rule 137;
(ii) in the case of packages containing goods listed in Table 111 in rule 137 and which represents two hazards as given in column 2 thereof, such packages shall display distinct labels to indicate both the hazards;
(iii) every package containing dangerous or hazardsou goods shall display the distinct class lavels appropriate to the type of dangerous or hazardous goods specified in column 3 of the Table 1 to rule 137;
(iv) Every goods carriage carrying any dangerous or hazardous goods shall be equipped with safety equipments for preventing fire, explosion or escape of hazardous or dangerous goods.] [(2) One year from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993, every goods carriage carrying goods of dangerous or hazardous nature to human life, shall be fitted with techograph (an instrument to record the lapse of running time of the motor vehicle; time speed maintained, acceleration, deceleration, etc.) conforming to the specifications of the Bureau of Indian Standards.] 129-A. Spark arrester.--Six months from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993, every goods carriage carrying goods of dangerous or hazardous nature to human life shall be fitted with a spark arrester.]"
130. Manner of display of class labels.--(1) Where a class label is required to be displayed on a vehicle, it shall be so positioned that the size of the class label is at an angle of 45 degrees to the vertical and the size of such label shall not be of less than twenty-five millimetres square which may be divided into two portions, the upper half portion being reserved for the pictorial symbol and the lower half for the text:
Provided that in the case of smaller packages a suitable size of the label may be adopted.
(2) Where the class label consists of adhesive material, it shall be waterproof and where it consists of metal or other substance on which the pictorial symbol and the text are printed, painted or affixed, they shall be affixed directly on such material and in every case, the surface of the vehicle surrounding the label shall be of a colour that contrasts vividly with the background of the class label.
(3) Every class label displayed on a vehicle shall be positioned in such a manner that it does not obscure other markings required to be displayed under any other law.
(4) Every goods carriage carrying any dangerous or hazardous goods shall display the class label both in the front and in the rear in a conspicuous manner.
131. Responsibility of the consignor for safe transport of dangerous or hazardous goods.--( 1) It shall be the responsibility of the consignor intending to transport any dangerous or hazardous goods listed in Table III, to ensure the following, namely:--
(a) the goods carriage has a valid registration to carry the said goods;
(b) the vehicle is equipped with necessary first-aid, safety equipment and antidotes as may be necessary to contain any accident;
(c) that the transporter or the owner of the goods carriage has full and adequate information about the dangerous or hazardous goods being transported; and
(d) that the driver of the goods carriage is trained in handling the dangers posed during transport of such goods.
(2) Every consignor shall supply to the owner of the goods carriage, full and adequate information about the dangerous or hazardous goods being transported as to enable such owner and its driver to,--
(a) comply with the requirements of rules 129 to 137 (both inclusive) of these rules; and
(b) be aware of the risks created by such goods to health or safety of any person.
(3) It shall be the duty of the consignor to ensure that the information is accurate and sufficient for the purpose of complying with the provisions of rules 129 to 137 (both inclusive) of these rules.] [132. Responsibility of the transporter or owner of goods carriage. --(1) It shall be the responsibility of the owner of the goods carriage transporting any dangerous or hazardous goods to ensure the following, namely:-- (a) that the goods carriage has a valid registration to carry the said goods and the said carriage is safe for the transport of the said goods; and
(b) the vehicle is equipped with necessary first-aid, safety equipment, tool box and antidotes as may be necessary to contain any accident.
(2) Every owner of a goods carriage shall, before undertaking the transportation of dangerous or hazardous goods in his goods carriage, satisfy himself that the information given by the consignor is full and accurate in all respects and correspond to the classification of such goods specified in rule 137.
(3) The owner of a goods carriage shall ensure that the driver of such carriage is given all the relevant information in writing as given in Annexure V of these rules in relation to the dangerous or hazardous goods entrusted to him for transport and satisfy himself that such driver has sufficient understanding of the nature of such goods and the nature of the risks involved in the transport of such goods and is capable of taking appropriate action in case of an emergency.
(4) The owner of the goods carriage carrying dangerous or hazardous goods, and the consignor of such goods shall lay down the route for each trip which the driver shall be bound to take unless directed or pennitted otherwise by the Police Authorities. They shall also fix a time table for each trip to the destination and back with reference to the route so laid down.
(5) It shall be the duty of the owner to ensure that the driver of the goods carriage carrying dangerous or hazardous goods holds a driving licence as per provisions of rule 9 of these rules. 132 substituted by G.S.R. 338(E), dated 26-3-1993 (w.e.f. 26-3-1993).
(6) Notwithstanding anything contained in rules 131 and 132, it shall be sufficient compliance of the provisions of these rules if the consignor transporting dangerous or hazardous goods and the owner of the goods carriage or the transporter, abides by these conditions within six months after the date of coming into force of the Central Motor Vehicles (Amendment) Rules, 1993.]
133. Responsibility of the driver.--(1) The driver of a goods carriage transporting dangerous or hazardous goods shall ensure that the information given to him in writing under sub-rule (3) of rule 132 is kept in the driver's cabin and is available at all time while the dangerous or hazardous goods to which it relates, are being transported.
(2) Every driver of a goods carriage transporting any dangerous or hazardous goods shall observe at all times all the directions necessary for preventing fire, explosion or escape of dangerous or hazardous goods carried by him while the goods carriage is in motion, and when it is not being driven he shall ensure that the goods carriage is parked in a place which is safe from fire, explosion and any other risk, and at all times the vehicle remains under the control and supervision of the driver or some other competent person above the age of 18 years.]
134. Emergency information panel.--(1) Every goods carriage used for transporting any dangerous or hazardous goods shall be legibly and conspicuously marked with an emergency information panel in each of the three places indicated in the Table below so that the emergency information panel faces to each side of the carriage and to its rear and such panel shall contain the following infonnation, namely:--
(i) the correct technical name of the dangerous or hazardous goods in letters not less than 50 millimetres high;
(ii) the United Nations class number for the dangerous or hazardous goods as given in Column 1, Table 1 appended with rule 137, in numerals not less than 100 milimetres high;
(iii) the class label of the dangerous or hazardous goods of the size of not less than 250 millimetres square;
(iv) the name and telephone number of the emergency services to be contacted in the event of fire or any other accident in letters and numerals that are not less than 50 millimetres high and the name and telephone number of the consignor of the dangerous or hazardous goods or of some other person from whom expert information and advice R. 133 substituted by G.S.R. 338(E), dated 26-3-1993 (w.e.f. 26-3- 1993). 145 can be obtained concerning the measures that should be taken in the event of an emergency involving such goods.
[(2) The information contained in sub-rule (1) shall also be displayed on the vehicle by means of a sticker relating to the particular dangerous or hazardous goods carried in that particular trip.] [(3)] Every class label and emergency information panel shall be marked on the goods carriage and shall be kept free and clean from obstructions at all times.
135. Driver to be instructed.--The owner of every goods carriage transporting dangerous or hazardous goods shall ensure to the satisfaction of the consignor that the driver of the goods carriage has received adequate instructions and training to enable him to understand the nature of the goods being transported, by him, the nature of the risks arising out of such goods, precautions he should take while the goods carriage is in motion or stationary and the action he has to take in case of any emergency.
[136. Driver to report to the police station about accident.--The driver of a goods carriage transporting any dangerous or hazardous goods shall, on the occurrence of an accident involving any dangerous or hazardous goods transported by this carriage, report forthwith to the nearest police station and also inform the owner of the goods carriage or the transporter regarding the accident.]
137. Class labels.--In respect of the dangerous or hazardous goods specified in column (II) of the Table below, the labels specified in the corresponding entry in column (III) shall be the class labels, namely:--
(A) Explosives:
An explosive means a solid or liquid or pyrotechnic substance (or a mixture of substances) or an article,--
(i) which is in itself capable by chemical reaction of production of gas at such a temperature and as such a speed as to cause damage to the surroundings;
(ii) which is designed to produce an effect, by heat, light, sound, gas or smoke or a combination of these, of non-detonative self-sustaining exothermic chemical reaction.
(B) Gas:
(1) A gas is a substance which--
(i) at 50°C has a vapour pressure greater than 300 kPa; or
(ii) is completely gaseous at 20°C at a standard pressure of 101.3 kPa.
(2) Substances of gas are assigned to one of three following divisions based on the primary hazard of the gas during transport;
(a) Flammable gases:- Gases which at 20°C and a standard pressure of 101.3 kPa,--
(i) are ignitable when a mixture of 13 per cent or less by volume with air; or
(ii) have a flammable range with air of at least 12 percentage points regardless of the lower flammable limit. Flammability shall be determined by tests or by calculation in accordance with methods adopted by International Standards Organization [ISO:
10156:1996] or by Bureau of Indian Standards [IS: 1446-1985 ];
(b) Non-flammable, non-toxic gases:- Gases which are transported a pressure not less than 280 kPa at 20°C, or as refrigerated liquids and which,--
(i) are asphyxiant-gases which dilute or replace the oxygen normally in the atmosphere;
(ii) are oxidizing-gases which may, generally by providing oxygen, cause or contribute to the combustion of other material more than air does; or {Hi) do not come under the other divisions;
(c) Toxic gases: Gases which are known to be so toxic or corrosive to humans as to pose a hazard to health.
Note.--Gases meeting the above criteria owing to their corrosivity are classified as toxic with a subsidiary corrosive risk.
(C) Flammable chemicals:
(i) Flammable gases.--Gases which at 20°C and at standard pressure of 101.3 kPa are:--
(a) ignitable when a mixture of 13 per cent or less by volume with air, or (b) have a flammable range with air of at least 12 percentage points regardless of the lower flammable limits.
Note.--The flammability shall be determined by tests or by calculation in accordance with methods adopted by International Standards Organization (ISO: 10156: 1996) or by Bureau of Indian Standards (IS: 1446-1985).
(ii) Extremely flammable liquids.--Chemicals which have flash point lower than or equal to 23°C and boiling point less than 35°C.
(iii) Very highly flammable liquids.--Chemicals which have a flash point lower than or equal to 23°C and initial boiling point higher than 35°C.
(iv) Highly flammable liquids.--Chemicals with a flash point lower than or equal to 60°C but higher than 23°C.
(v) Flammable liquids.--Chemicals which have a flash point higher than 60°C but lower than 90°C. (D) Reactive Substances:
Reactive substances are those substances which start reacting chemically with any other material and reducing gases through their own decomposition. Such substances are Inorganic Alkalies (for example NaoH, Iodine and the like) and Acids (for example H2S04, HN03, HCL and the like) (E) Oxidizing Substances:
(a) Oxidizing substances:
Substances which, while in themselves not necessarily combustible, may generally by yielding oxygen, cause or contribute to the combustion of other material. Such substances may be contained in an article;
(b) Organic peroxides:
Organic substances which contain the bivalent-0-0- structure and may be considered derivative of hydrogen peroxide, where one or both of the hydrogen atoms have been replaced by organic radials. Organic peroxides are thermally unstable substances which may undergo exothermic self-accelerating decomposition. In addition, they may have one or more of the following properties, --
(i) be liable to explosive decomposition; (ii) burn rapidly;
(iii) be sensitive to impact or friction; (iv) react dangerously with other substances; (v) cause damage to the eyes.
(F) Toxic:
Toxic chemicals:--Chemical having the following values of acute toxicity and which owing to their physical and chemical properties, are capable of producing major accident (G) Radioactive:
Radioactive materials mean any material containing radionuclide where both the activity concentration and the total activity in the consignment exceed the values specified, depending on the type of material by the Atomic Energy Commission of India.
(H) Corrosive:
Corrosive substances are substances which by chemical action will cause severe damage when in contact with living tissue or in the case of leakage will materially damage or even destroy other goods or the means of transport. They may also cause other hazards.
14. From the above what I find that Rule 129 provides for certain conditions to be followed while carrying goods of dangerous or hazardous nature to human life. Rule 129 (1) provides that when such goods carriage shall display a distinct mark of the class label apropriate to the type of dangerous or hazardous goods. Rule 129 (A) provides for such carriage to be fitted with spark arrester. Rule 131 provides that class has to be displayed on the vehicle on certain definite size then Rule 131 (a) provides that goods carriage must have a valid registration to carry such goods besides other requirement. Rule 131 imposes obligation upon the transporter or owner of the goods carriage in terms of registration of vehicle and the vehicle being equipped with necessary first aid safety etc. Rule 135 is very relevant which provides that " it shall be duty of the owner or driver of goods carriage carrying dangerous and hazardous goods as far as driving license as per the provision of Rule of these Rules". As earlier discussed, Rule 9 of Educational qualification of drivers of goods carriage so there is use both in Rule 132 (5) and Rule 9 (supra) is goods carriage carrying dangerous or hazardous goods. The words "carrying " acquires significance as it definitely connotes that vehicle must be carrying dangerous or hazardous goods for such conditions (supra) to be complied with. So ultimately it is not transport vehicle as such that requires a driver to have driving license with some specialized endorsement, but it is the use, to which a vehicle was put when the accident occurs, will be determining factor.
15. From the perusal of aforesaid Rules, it clearly further transpires that emphasis has been on transporting or carrying of goods. The words and phrase appearing under Rule, 129 " every owner of goods carriage transporting any dangerous or dangerous goods shall"; the words and expression appearing under Section 129 A- "every goods carriage carrying goods of dangerous or hazardous nature to human life"; under Rule 130 (4) -"every goods carriage carrying any dangerous or hazardous goods shall display the class label"; under Rule 131 (1) "intending to transport any dangerous or hazardous goods"; words under Rule 132 (1) "goods carriage transporting any dangerous or hazardous goods"; Rule 133 (1), "the driver of goods carriage transporting dangerous or hazardous goods shall"; under Rule 134 (1) "every goods carriage used for transporting any dangerous or hazardous goods shall"; Rule 135 "every goods carriage transporting dangerous or hazardous goods shall"; and under Rule 136, "the driver of a goods carriage transporting any dangerous or hazardous goods shall" also indicate that emphasis has been that the goods carriage must either be transporting or carrying dangerous or hazardous goods. Further the manner of displaying class labels as provided for under Section 130 for "various labels prescribed under Rule 137" clearly indicates that goods carriage shall be such a goods carriage that is virtually carrying or transporting flammable or non flammable or explosive gas or liquid or any other chemical dangerous or hazardous to human life provided under the Table I and II of the Rules and such vehicles are liable to follow the norms and, therefore, any transport vehicle if carrying only container which does not have filled in it or packed in it any such goods which are dangerous or hazardous, cannot be classified as goods carriage carrying dangerous or hazardous goods and, therefore, are not required to follow norms. Thus, these rules read with Section 14 of the Act, 1988 inter alia required certain conditions to be followed in case if goods carriage is loaded with such substance/material which is dangerous or hazardous by its nature to human life.
16. The very purpose of display of class labels under Rule 130 and the class labels as prescribed under Rule 137 are clearly indicative of an idea that people on road will themselves maintain distance and shall avoid coming in conflict with such goods carriage carrying dangerous and hazardous goods classified in two tables. So labeling is mandatory on containers/ boxes with dangerous or hazardous goods inside and not otherwise. It is the content which is material and not the container.
17. Thus, situation would be different in case if a vehicle is registered as 'hazardous goods carriage', driving of which would have to meet necessary conditions as per Rule 9 of the Rules read with Rules 129 to 137.
18. The owner of the vehicle certainly owed an explanation to the evidence if in case led that vehicle was carrying cylinder filled with inflammable gas, flammable/ toxic or flammable chemicals of category detailed in table 2 and 3 but this is also not the case here. Virtually, there is no evidence led to the effect that the tortfeasor vehicle was carrying any dangerous or hazardous goods which may be classified as such to human life.
19. The case relied upon by learned counsel for the appellant of the Lucknow Bench Judgment of this court in Krishna Kumar (supra) is distinguishable on facts. In that case vehicle involved in accident was a 'hazardous goods transport vehicle'. Meaning thereby, there was no dispute that vehicle involved in accident was carrying hazardous goods. It was admitted so because defence taken by the owner of the vehicle was that driver was having valid endorsement on his driving license as required under the Rules. The argument for consideration before the Court in that case was that endorsement as required to be made under the Rules, once made is valid and no further requirement of renewal of such endorsement more especially in the absence of any provision under the Act, 1989 for registration of Transport Vehicle in a particular class like, 'hazardous goods transport vehicle'. But in the present case, there is no such issue. Even on facts there was no plea that vehicle was carrying dangerous or hazardous goods. It is also not the case of the appellant herein this appeal that tortfeasor vehicle was infact hazardous goods carriage vehicle nor, any evidence to that effect has been led. What Section 11 of the Act talks about is of a vehicle of a particular class for driving of which a license may be applied before the licensing authority and it is in that context Rule 9 becomes relevant in driving a particular class of vehicle for the purpose of endorsement of license and other additional qualifications which are prescribed under the said Rule. So on facts, the judgment relied by learned counsel for the appellant in Krishna Kumar (supra), in the opinion of the Court has no application in the present case.
20. In the present case, The Tribunal has come to record a categorical finding to the effect that no evidence was led as to whether cylinder that were loaded with such gas or not that could be said as hazardous. In the absence of any such evidence being led, the plea taken by the insurance company does not stand substantiated.
21. On repeated query being made from the learned counsel for the appellant as to whether there was any such substantial peace of evidence which has been ignored to hold findings returned by the Tribunal as perverse, learned counsel for the appellant could not point out any such evidence.
22. No other argument has been raised by the learned counsel for the appellant.
23. In view of above, the appeal lacks merit and is accordingly dismissed.
Order Date :- 24.7.2018 Sanjeev