State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance Co.Ltd ... vs Raju Hawge on 30 December, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/12/214
Instituted on : 30.04.2012
1) Bajaj Allianz General Insurance Co. Ltd.,
Through : Branch Manager,
Station Road,
Durg (C.G.)
2) Bajaj Allianz General Insurance Co. Ltd.,
Through - Branch Manager,
Shivmohan Bhawan, Vidhan Sabha Road, Pandri,
Raipur (C.G.) ... Appellants.
Vs.
Raju Hawge, S/o Narayan Rao Hawge,
R/o : Quarter No.37, Basant Vihar,
Jawahar Nagar, Supela,
Bhilai, District Durg (C.G.) ... Respondent.
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Manoj Prasad, for appellants.
Shri Anurag Thaker, for respondent.
ORDER
Dated : /12/2013 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 27.02.2012, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth called "District Forum") in Complaint Case No.401/2010, whereby the complaint filed by the respondent/complainant has been allowed and appellants/OPs were directed to pay a sum of Rs.3,51,290/- along with interest @ 7% p.a. from the date of filing of the complaint till date of //2 // payment and also to pay Rs.1,000/- as compensation for mental agony and Rs.1,000/- as cost of litigation to the complainant. It has also been directed that the OPs will be eligible for receiving the salvage of damaged vehicle bearing No.C.G.07C.A.1228. The amount which has been incurred for keeping the vehicle, will be paid by the OPs.
2. Briefly stated the facts of the case are that the complainant is owner of a vehicle bolero pick up bearing registration no. C.G.07- C.A.1228. The said vehicle was insured with the OPs under Commercial Vehicle Package Policy bearing No.OG-11-2303-1803-000033 for the period from 16.03.2010 to 15.03.2011. The Insured Declared Value (henceforth called "I.D.V.) of the vehicle was Rs.4,68,390/-. The OPs received Rs.15,276/- towards premium of insurance of the vehicle. On 22.05.2010, near Maharana Pratap Bhavan Chowk, one mini bus bearing registration no.C.G.04-5430 being driven by its driver rashly and negligently dashed against the vehicle of the complainant whereby the vehicle suffered extensive damages. The complainant lodged report with Police Station, Bhilai Nagar. The entire parts of the vehicle as well its engine were damaged. A criminal case was registered against the driver of the mini bus bearing registration No. C.G.04-5430. The complainant immediately intimated about incident to the OPs. The Surveyor appointed by the Insurance Company visited the spot and conducted survey. The vehicle was brought to authorized dealer of Mahindra Company, namely Ralas Motors, Raipur. On 14.06.2010, an //3 // estimate was prepared for repairing of the vehicle. The approximate expenses has been stated as Rs.4,66,369/-. The copy of the said estimate was provided by the complainant to the OPs. The complainant also provided final report of the police as well as load challan. The complainant went to the office of the OPs and requested to pay the compensation. The complainant sent a notice through advocate on 15.09.2010 by regd. Post. The OPs had not paid the amount of compensation Rs.4,68,390/- to the complainant. Ralas Motors is also demanding Rs.50/- per day from the complainant as garage rent. The complainant filed complaint before the District Forum, claiming compensation of Rs.4,68,390/- along with interest @ 18% p.a., Rs.1,00,000/- as compensation for financial and mental agony and Rs.10,000/- as cost of litigation.
3. The OPs resisted the complaint and denied the allegations levelled by the complainant in the complaint and prayed for dismissal of the complaint. It has been further averred in the written version that driver of the vehicle in question was carrying diesel drums for its supply, which is hazardous substance. The driver of the vehicle in question was not having effective driving licence for carrying hazardous substance, therefore, the complainant has breached the conditions of the insurance policy, therefore, the complainant is not entitled for any compensation and the Insurance Company has rightly repudiated the claim of the complainant.
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4. Learned District Forum after having considered the material placed before it by both the parties allowed the complaint of the complainant and directed to the OPs to pay a sum of Rs.3,51,290/- along with interest @ 7% p.a. from the date of filing of the complaint till date of payment and also to pay Rs.1,000/- as compensation for mental agony and Rs.1,000/- as cost of litigation to the complainant. It has also been directed that the OPs will be eligible for receiving the salvage of the damage vehicle bearing No.C.G.07-C.A.1228. The amount which has been incurred for keeping the vehicle, will be paid by the OPs.
5. In the instant case, the respondent / complainant filed an application under Order 41 Rule 27 CPC for taking a document i.e. Final Report submitted by Police before Judicial Magistrate First Class, Durg, on record as additional evidence at the appellate stage. Firstly we have considered the aforesaid application. The applicable is liable to be allowed.
Order 41 Rule 27 CPC reads as under :-
"27. Production of additional evidence in Appellate Court -
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be //5 // produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
6. It is well settled law in that no parties should be permitted at the appellate stage to remove the lacuna in presenting it's case. It is equally well settled law that Order 41 Rule 27 of Code of Civil Procedure confers discretion on appellate court to receive additional evidence which is judicially one of the circumscribe by the limitation specified in Order 41 Rule 27 CPC. The true tests to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgement on the material before it, without taking into consideration additional evidence sought to be adduced.
7. In the instant case, the document sought to be adduced as additional evidence by the respondent is Final Report. Looking to the facts and circumstances of the case, the above document is relevant for proper adjudication of the case, therefore, the application filed by the respondent / complainant under Order 41 Rule 27 CPC is allowed and respondent/complainant is permitted to file additional evidence (document) at the appellate stage and document is taken on record as additional evidence.
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8. Shri Manoj Prasad, learned counsel for the appellants/OPs argued that the respondent/complainant was carrying diesel in the said vehicle and diesel is a hazardous substance and therefore as per requirement of Motor Vehicles Act, 1988 the vehicle which carries such hazardous substance is a vehicle, to drive which a special licence is required. He further argued that the District Forum has not taken into consideration this aspect of the matter and has ignored the fact that the driver of the vehicle in question was not having valid driving licence as per Rule 9 (3) of the Central Motor Vehicles Rules, 1989 and without valid and effective driving licence, the driver of the said vehicle was carrying dangerous and hazardous substance, therefore, the complainant had violated & breached the conditions of the insurance policy. He further argued that the driver of the vehicle was required to undergo a training programme from a recognized training institute and then only endorsement to that effect can be made on the driving licence of the driver. Therefore the driver of the said vehicle was not having effective driving licence for carrying the vehicle containing hazardous substance, and therefore the order passed by the learned District Forum is erroneous and is not sustainable.
9. Learned counsel for the respondent/complainant has supported the impugned order and submitted that it does not call for any interference by this Commission. He argued that looking to Final Report, it is established that the vehicle was transporting empty drums //7 // and the drums were not filled with diesel. He further argued that in case of The Oriental Insurance Co. Ltd. v. Shri S. Gurmeet Singh, Appeal No.355/2010 decided on 20.04.2011, this Commission held that the diesel cannot be said to be a hazardous substance. In above case, this Commission further held that Diesel is also a Petroleum Product, but, nevertheless unless it is specifically named in the list containing names of hazardous and toxic chemical or substances, it cannot be said that Diesel, itself was hazardous or dangerous substance. Therefore, if the driver of the vehicle in question was carrying diesel in the vehicle, then it cannot be said that the driver was carrying hazardous substance in the vehicle and violated the conditions of the insurance policy. Therefore, the order passed by learned District Forum is reasonable and passed after due appreciation of material available before it an it does not call for any interference by this Commission.
10. We have heard learned counsel for both parties and have also perused the record of the District Forum.
11. Firstly, we have to decide whether the diesel comes within purview of hazardous substance or not.
12. In The Central Motor Vehicles Rules,1989 Rule 137, list of flammable, reactive and oxidising substances are mentioned in Table III. In table III, at Sl.No.1656 Petroleum Crude Oil is mentioned and in the said column, it is also mentioned that Petroleum Crude Oil is flammable //8 // substance. In Petroleum Products (Maintenance of Production, Storage and Supply) Order 1999, Rule 2 (g) describes Petroleum Product. According to above Rules, the Petroleum Product means "Crude Oil or any product manufactured out of Crude Oil or from any Petroleum Product including Aviation Turbine Oil, Motor Spirit, High Speed Diesel, Liquefied Petroleum Gas, Superior Kerosene Oil, Naphtha and Solvent or any derivative.
13. In Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition 2005 at page 3580, the petroleum product is described as :
'Petroleum Product' means any commodity made from petroleum or natural gas and shall include refined crude oil, processed crude petroleum, residuum from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil residuum, casing head gasoline, natural gas gasoline, naphtha, distillate gasoline, kerosene, waste oil, blended gasoline, lubricating oil, blends or mixture of oil with one or more liquid products or by-products derived from oil condensate, gas or petroleum hydrocarbons, whether herein enumerated or not. 'Natural gas' falls within the ambit of the expression 'petroleum product' under Entry 22(9) of the Rules. O.N.G.C. of India v. Municipal Corporation of Greater Bombay, AIR 2002 Bombay 231, 237, paras 23 and 27. [Bombay Municipal Corporation (Leave of Octroi) Rules, 1965, Sccch. 'H', Entry 22(9)]"
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14. In Bakshi's The Lax Lexicon 2005 edition at page 2002 Petroleum Product is described as :
'Petroleum Products" means crude oil or any product manufactured out of crude oil or from another petroleum product including Aviation Turbine Oil, Motor Spirit, High Speed Diesel, Liquefied Petroleum Gas, Superior Kerosene Oil, Naphtha and Solvent or any derivative. See Petroleum Products (Maintenance of Production, Storage and Supply) Order 1999, Rule 2 (g).
15. In Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition 2005 at page 2095 Hazardous Chemical and Hazardous Substance are described as :
"Hazardous Chemical "means -
(i) any chemical which satisfies any of the criteria laid down in Part 1 of Schedule 1 or listed in Column 2 of Part II of this Schedule;
(ii) any chemical listed in column 2 of Schedule 2;
(iii) any chemical listed in Column 2 of Schedule 3 [Hazardous Waste (Management and Handling) Rules, 1989, R. 2(e)] "
"Hazardous Substance" means any substance or preparation which by reason of its chemical or physio-chemical properties or handling is liable to cause harm to human beings, other living creatures, plants, microorganism, property or the environment.
//10 // "Hazardous Substance means any substance or preparation which is defined as hazardous substance under the Environment (Protection) Act, 1986 and exceeding such quantity as may be specified, by notification, by the Central Government. [Public Liability Insurance Act (6 of 1991), S. 2(d)]."
16. Looking to the above definition, it appears that diesel is one of derivative substance of the petroleum product and it comes within the purview of hazardous and flammable substance.
17. Learned counsel for the complainant/respondent submitted that the empty drums were carrying on vehicle bearing registration No.C.G.07-C.A.1228. He drew our attention towards Final Report submitted by Police Station, Bhilainagar. The certified copy of the above document has been obtained from Claim Case No.38/2011 in the Court of First Additional Motor Accident Claims Tribunal, Durg (C.G.) in which it has been mentioned that "fnukad 22-05-2010 dks ,;jVsy daiuh esa Mhty lIykbZ djus [kkyh Mªe ysdj nqxZ tk jgk FkkA** He further argued that the drums were empty therefore, the complainant has not violated the conditions of the insurance policy.
18. Final Report of the Police has been filed by the complainant/respondent before this Commission at the appellate stage but the complainant/respondent filed document No.7 before the District Forum, i.e. First Information Report (F.I.R). First Information No.181/10 //11 // was lodged by the complainant/respondent Raju Hawge. The F.I.R. was lodged by the complainant / respondent no.22.05.2010 and the complainant/respondent himself filed documents in support of his case, therefore, the contents of the said document can be used against the complainant/respondent and the complainant/respondent cannot deny the contents of the said document. In F.I.R., it is mentioned "fnukad 22- 05-2010 dks ,;jVsy daiuh esa Mhty lIykbZ djus [kkyh Mªe ysdj nqxZ tk jgk FkkA**
19. The F.I.R. is a material document and in the F.I.R. it has been specifically mentioned that diesel drums were carrying in the vehicle by the driver for supplying the diesel. It appears that drums were filled with diesel when they were carrying in the vehicle by the driver of the vehicle.
20. Rule 9 of the Central Motor Vehicles Rules, 1989 runs thus :
"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. (2) ...................................
//12 // (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.
21. The particulars of driving licence of the driver Arun Patil, (document no.6), which has been filed by the complainant/respondent before the District Forum shows that driving licence was issued to the driver Arun Patil for driving motorcycle with gear, Light Motor Vehicle, transport vehicle and heavy goods vehicle and the driving licence was valid upto 30.12.2012. Initially, the original driving licence was issued for the period from 26.09.2005 to 31.12.2009. In the said driving licence there is no endorsement of the licensing authority that the driver was authorized to drive goods carriage carrying goods of dangerous or hazardous nature, therefore, the driver of the said vehicle was not having valid driving licence for driving the vehicle containing dangerous or hazardous substance.
22. It appears that on the date of accident i.e. 22.05.2010 driver Arun Patil, was not having any endorsement on his driving licence permitting him to drive the vehicle containing dangerous and hazardous substance. From the copy of driving licence of the driver, it appears there is no endorsement in the driving licence to drive the vehicle containing hazardous substance. Thus, we find that the driver of the vehicle in question was not competent to drive the vehicle containing //13 // dangerous or hazardous substance and there was no endorsement in his driving licence at the time of incident permitting him to drive vehicle containing dangerous and hazardous substance. It is established that the driver of the vehicle was carrying diesel and was going to Supela, Bhilai, for supplying the diesel. It is also established that the diesel is a flammable and hazardous substance, therefore, the complainant/respondent has violated the conditions of the insurance policy. The appellants/OPs have rightly repudiated the claim of the complainant/respondent in toto. Therefore, the impugned order passed by the District Forum, is erroneous and it deserves to be set aside.
23. In view of above discussions, we allow the appeal of the appellants/Insurance Company and set aside the impugned order dated 27.02.2012. Consequently, the complaint filed by the complainant/respondent before the District Forum, stands dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/12/2013 /12/2013