State Consumer Disputes Redressal Commission
United India Insurance Co.Ltd. vs Smt.Maya Devi Agrawal on 5 August, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/261
Instituted on : 28.04.2017
United India Insurance Company Limited,
Divisional Manager, Divisional Office,
Second Floor, Gurukripa Tower,
Vyapar Vihar Road, Bilaspur (C.G.)
Through : Senior Divisional Manager,
Divisional Office No.1,
City and District Raipur (C.G.) .... Appellant (O.P.)
Vs.
Smt. Maya Devi Agrawal, Aged 67 years,
W/o Shri Mahesh Agrawal,
R/o : Indu Udyan Chowk, Jarhabhatha, Bilaspur,
Post, Tehsil & District Bilaspur (C.G.). ......Respondent (Complainant)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Aditya Tiwari, Advocate for the appellant (O.P.).
Shri K.K. Verma,, Advocate for the respondent (complainant).
ORDER
DATED : 05/08/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 06.02.2017, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum") in Complaint Case No.CC/20/2015. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that :-
1. The O.P. (Insurance Company) will pay a sum of Rs.2,54,557/-
(Rupees Two Lakhs Fifty Four Thousand Five Hundred Fifty // 2 // Seven) as assessed by the Surveyor, to the complainant within a period of one month from the date of order along with interest @ 9% p.a. from date of filing of the complaint i.e. 21.01.2015 till realization.
2. The O.P. (Insurance Company) will pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand) towards compensation for mental agony to the complainant.
3. The O.P. (Insurance Company) will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards cost of litigation to the complainant.
2. Briefly stated, the facts of the complaint of the complainant are that the complainant is registered owner of Heavy Goods Vehicle / Tanker bearing registration No.C.G.10-K-3057. The said vehicle was insured with the O.P. for all damages/loss for the period from 29.07.2012 to 28.07.2013 under Insurance Policy No.191600/31/12/01/00003355. On 22.07.2013 at about 5 P.M. during heavy rain under Police Station Basna, District Mahasamund, during giving side to the truck, whose driver was driving the vehicle speedily, the vehicle of the complainant came down in the road and was turtled. In the accident, the vehicle of the complainant was badly damaged. The driver of the vehicle gave intimation regarding the accident to the Police Station Basna, in writing on 22.07.2013 and the complainant also intimated regarding the accident to the O.P. On 22.07.2013, the vehicle in question was being driven by the driver Lochan Patel, who was // 3 // having valid and effective driving licence. His driving licence number is CG10/2010051849 and was valid for the period from 30.01.2010 to 29.01.2030. The driver Lochan Patel had obtained training and obtained Certificate for training on Safe Road Transportation of Dangerous and Hazardous Goods, before the accident. The Certificate No.C/001973, was valid for the period from 18.03.2012 to 17.03.2014. From the information received from the Website of Chhattisgarh Transport Department regarding driving licence No.C.G.1020100051849 of driver Lochan Patel, it is proved that he was authorized to drive M/HMV/RIGID- CHASSIS /GOODS. It is pertinent to mention that in the driving licence issued by Transport Department for driving heavy goods vehicle, there is no separate endorsement for driving Dangerous and Hazardous Goods and is not mentioned in the driving licence. For this purpose, the driver is required to keep with him Permit for Goods Vehicle separately given by the Transport Officer and Explosive Control Officer, at the time of driving the vehicle. The permit for goods vehicle in the name of the complainant for vehicle bearing registration No.C.G.10-K-3057 was valid for the period from 14.08.2010 to 13.08.2015 and at the time of accident, the above certificate was available with the driver Lochan Patel. On the date of accident i.e. 22.07.2013, the vehicle in question was authorized from transporting petroleum by road for the period from 27.10.2010 to 31.12.2015 In the certificate issued, vehicle bearing registration No.C.G.10-K-3057 is endorsed. In spite of all documents, the O.P. kept the claim of the complainant pending for two and half years and misled her that the // 4 // amount would be paid. After the accident, on being estimate demanded by the O.P., the complainant submitted estimate of Shivam Motors, Bilaspur for Rs.6,71,928/- to the O.P. and after satisfaction of the O.P. with the consent of the O.P. the complainant got repaired her vehicle and expected from the O.P. that it will pay actual expenditure spent to the tune of Rs.5,77,942/-. The complainant submitted all receipts regarding repairing of the vehicle and labour charges with an expectation that the O.P. will pay the claim amount, but instead of making payment of the claim amount, on 16.06.2014, the O.P. sent intimation to the complainant to the effect that the claim (File No.90/2013-14) had been repudiated by the O.P. The O.P. repudiated the claim on the ground that the driving licence No.C.G. /2010/0051849 which has been issued in the name of Lochan Patel and the above driving licence was being used for plying the vehicle bearing registration No.C.G.10-K-3057 was not valid and effective, which is the violation of terms and conditions of the insurance policy. The ground taken by the O.P. for repudiation of the claim of the complainant is illegal. The act of the O.P. comes in the category of deficiency in service. To escape from its liability, the O.P. took false ground to repudiate the claim of the complainant and did not pay the claim amount. If the O.P. had to repudiate the claim of the complainant, then the O.P. would not have allowed the complainant to get the vehicle repaired and did not expect to obtain estimate. By above act of the O.P., the complainant suffered physical and mental agony and also suffered financial loss. The complainant submitted all original documents / receipt in the office of the O.P., but the same were // 5 // not returned by the O.P. along with intimation of repudiation of her claim. Hence the complainant has filed instant complaint and prayed for granting reliefs, as prayer by her in the relief clause of the complaint.
3. The O.P. filed its written statement and denied the allegations made by the complainant against it. The O.P. averred that for getting compensation, the claim has been filed exaggeratedly. The vehicle in question was petrol diesel tanker, which was being used for carrying petrol diesel which is Hazardous Goods (Explosive Van) for which in the driving licence of the driver endorsement regarding Hazardous Goods (Explosive Van) is made by the Transport Office, and it is essential for driving the vehicle in question, but in the driving licence of vehicle in question endorsement of Hazardous Goods (Explosive Van) was not made from the Transport Authority, therefore, on the date of accident, the driver of the vehicle in question was not having valid and effective driving licence. The Certificate for training taken by the driver on Safe Road Transportation of Dangerous and Hazardous Goods which was valid for the period from 18.03.2012 to 17.03.2012 was issued by the private institution. After any training or study, the student/person is required to pass from Government Institution or office, and thereafter the Government Institution is issuing certificate to such student / person. Therefore, the driver is required to pass in the examination conducted by the Transport Office and thereafter in the licence which was earlier issued, endorsement regarding driving Hazardous Goods (Explosive Van) is made. The above certificate was valid // 6 // till 17.03.2013 where the accident took place on 22.07.2013, therefore, above certificate was not valid on the date of accident. The accident took place on 23.07.2013 and intimation to the effect that the claim is not payable was given on 16.06.2014. After completion of all formalities and when the documents of the vehicle and driving licence of the driver is valid and effective, on the date of accident, then only the claim amount is paid. The driver of the vehicle in question was not having licence for driving Hazardous Goods (Explosive Van) , which is run by diesel - petrol, and there is violation of the terms and conditions of the insurance policy, therefore, the claim of the complainant was repudiated for which she herself is responsible. Thus, the O.P. did not commit any deficiency in service and also did not take any false ground to escape from its liability. The complainant violated terms and conditions of the policy, therefore, she is not entitled to get any compensation. The complaint is liable to be dismissed.
4. The complainant has filed documents. The documents are details regarding driving licence No.CG10 2010051489, Certificate of Registration of vehicle bearing registration No.C.G.10-K-3057, Goods Carrying (Other Than 3 Wh) - Public Carriers Package Policy Schedule, intimation given by Lochan to Incharge Officer, Police Basna, District Mahasamund (C.G.), driving licence of Lochan Patel, Certificate in respect of One Day Refresher Course, permit for goods vehicle, estimate/quotation issued by Shivam Motors Pvt. Ltd., Cash/Credit Memo dated 23.07.2013 issued by Shri // 7 // Shyam Hydra Company, bill dated 21.11.2013 issued by Babulal, Cash /Credit Memo dated 20.11.2013 issued by New Indian Motor Garage, Bilaspur bill dated 23.12.2013 issued by Karamson Automobiles and Motor Body Works, Challan dated 15.11.2013 issued by Shivam Motors (P) Ltd., Tax Invoice issued by Shivam Motors (P) Ltd., Cash/Credit Memo dated 12.12.2013 issued by Raipur Engineering Works, bill dated 14.12.2013 issued by Hari Patta Mistri, Bill dated 24.11.2013 issued by Gajraj Cranes Service, bill dated 29.08.2013 issued by Gajraj Cranes Service, bill dated 3.12.2013 issued by Sun Batteries, bill No.089 issued by Maa Durga Engineering Works, bills issued by Goyal Motors on different dates, letter dated 16.06.2014 sent by the O.P. to the complainant.
5. The O.P. has filed documents. NA Annexure 1 is Motor Claim Form, NA Annexure 2 is intimation given by the Lochan to the Incharge Officer, Police Station, Basna, District Mahasamund on 23.07.201 NA annexure 3 is permit for goods vehicle, NA Annexure 4 is Certificate of Registration, NA Annexure 5 is Goods Carrying (Other Than 3 Wh) Public Carriers Package Policy issued by the O.P., NA Annexure 6 is report dated 30.08.2013 sent by Vivek Kumar Vishwakarma, Insurance Investigator to the O.P., NA Annexure 7 is Driving Licence particulars of Lochan Patel, Annexure NA 8 is driving licence of Lochan Patel, Annexure NA 9 is report dated 04.02.2014 sent by Vivek Kumar Vishwakarma to the O.P., NA Annexure 10 is Survey Report dated 04.05.2014 of Brijesh Kumar, Surveyor and Loss Assessor, NA Annexure 11 is Reinspection Report dated 16.05.2014 of Ajit // 8 // Kumar Jaiswal and NA Annexure 12 is repudiation letter dated 16.06.2014 sent by the O.P. to the complainant.
6. Learned District Forum after having considered the material placed before it by the parties, has allowed the complaint and directed the O.P. to pay the amounts to the O.P., as mentioned in para 1 of this order.
7. Shri Aditya Tiwari, learned counsel for the appellant (O.P.) has filed written arguments on behalf of the appellant (O.P.) and taken ground that the vehicle in question is carrying inflammable substance like petrol and diesel, which are hazardous goods (explosive substance). At the time of accident, the driver of the vehicle was not holding valid and effective driving licence, as per requirement of Rule 9 (3) of Central Motor Vehicles Rules, 1989, the vehicle which carries hazardous substance, special licence is required for the driver for driving such vehicle and endorsement to that effect is also required, but no endorsement was made in the driving licence of driver Lochan Patel. The driver of the vehicle in question was not having driving licence as required under Rule 9 (3) of Central Motor Vehicles Rules, 1989 without valid driving licence, the driver of the vehicle was carrying petroleum substance, therefore, the respondent (complainant) violated the terms and conditions of the insurance policy, hence the respondent (complainant) is not entitled to get any compensation from the appellant (O.P.), but learned District Forum has not taken this aspect into consideration and has ignored this fact. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. He placed reliance // 9 // on National Insurance Company Limited V. S. Amirthraj, III (2012) CPJ 492 (NC), Appeal No.FA/2013/413 Mahesh Gupta Vs. United India Insurance Company Limited, decided by this Commission vide order dated 16.10.2014 and Apeal No.FA/2015/92 - The Oriental Insurance Co. Ltd. Vs. Shri Rakesh Pratap Singh and another, decided by this Commission vide order dated 02.11.2015.
8. Shri K. K. Verma, learned counsel appearing for the respondent (complainant) has argued that the driver of the vehicle in question Lochan Patel was having valid and effective driving lice and he had taken training for driving transport vehicle, which is carrying hazardous substance, therefore, he is also competent to drive the vehicle in question. The vehicle in question met with an accident on 22.07.20123 near Basna, District Mahasamund (C.G.). The matter was reported to the Police Station Basna, District Mahasamund and intimation regarding the accident was also given to the O.P. The driver of the vehicle Lochan Patel obtained training for "Safe Road Transportation of Dangerous & Hazardous Goods, therefore, he was having valid and effective driving licence to drive the vehicle in question. The impugned order passed by the District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality. The appeal filed by the appellant (O.P.) may be dismissed.
9. We have heard learned counsel appearing for the respondent (complainant) and perused the written arguments submitted by learned // 10 // counsel for the appellant (O.P.) and have also perused the record of the District Forum, as well as impugned order.
10. The respondent (complainant) has filed copy of Certificate of Registration of vehicle bearing registration No.C.G.10-K-3057, insurance policy, permit and Certificate issued regarding transporting petroleum substance. Looking to the above, documents, it appears that the respondent (complainant) is registered owner of tanker bearing registration No.C.G.10-K-3057. The vehicle in question was insured with the appellant (O.P.) for the period from 29.07.2012 to 28.07.2013. The respondent (complainant) pleaded that the vehicle in question met with accident on 22.07.2013. The respondent (complainant) has filed copy of written report made to Police Station, Basna, District Mahasamund (C.G.) on 23.07.2013. Looking to the written report, it appears that the vehicle met with accident and the matter was reported to the Police Station, Basna, District Mahasamund, without delay.
11. In National Insurance Company Limited Vs. S. Amirtharaj (Supra), Hon'ble National Commission has observed that "Wherever an endorsement is required on driving licence for driving particular class of vehicles, absence of such endorsement will constitute non-possession of effective licence to drive that particular vehicles. Driving licence did not have endorsement to drive hazardous vehicles. Fora below erred in deciding claim in favour of complainant on non- standard basis."
// 11 //
12. In Appeal No.FA/2013/413 Mahesh Gupta Vs. United India Insurance Company Limited (Supra), this Commission has observed thus :-
"22. Looking to the document Annexure D-1 and Annexure D-2 it appears that on the date of accident i.e. 12.05.2011 the driver of the vehicle in question Premchand Dewangan, did not possess the valid and effective driving licence to drive the vehicle containing dangerous and hazardous substance. Thus, we find that the driver of the vehicle in question was not competent to drive the vehicle containing dangerous and hazardous substance like Radnol Ignite Oil. It is established that driver of the vehicle in question was carrying Rad Ignite Oil which is inflammable and hazardous substance, therefore, the appellant (complainant), has violated the terms and conditions of the insurance policy. The respondent (O.P.) has rightly repudiated the claim of the appellant (complainant) in toto."
13. In Apeal No.FA/2015/92 - The Oriental Insurance Co. Ltd. Vs. Shri Rakesh Pratap Singh and another (Supra), this Commission has observed thus :-
"20. It appears that on the date of accident i.e. 01.01.2011 the driver of the vehicle in question was not having any endorsement on his driving licence permitting him to drive the vehicle containing dangerous and hazardous substance. From the copy of the driving licence of the driver, it appears that there is no endorsement in his 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 dangerous or hazardous substance and there was no endorsement in his driving licence at the time of accident permitting him to drive vehicle containing dangerous and hazardous substance. It is established that the // 12 // driver of the vehicle in question was carrying petrol and diesel and was going to Raigarh Petrol Pump for supplying petrol and diesel. It is also established that the petrol and diesel are flammable and hazardous substance, therefore, the respondent No.1 (complainant) has violated the terms and conditions of the insurance policy. The appellant (O.P. No.1) has rightly repudiated the claim of the respondent No.1 (complainant) in toto, therefore, the impugned order passed by the District Forum, is erroneous and is liable to be set aside."
14. The facts of the above cited judgments are quite distinguishable from the facts of the instant case. In the instant case, the respondent (complainant) has filed particulars regarding driving licence No..CG10 20100051849, issued by Chhattisgarh Transport Department according to which Lochan Patel is authorised to drive Motor Cycle with Gear (Non- Transport), LMV-NT-Car, Transport vehicle, M/HMV (Rigid Chassis). The respondent (complainant) has also filed copy of Certificate issued for training taken by driver on Safe Road Transportation of Dangerous and Hazardous Goods. According to the Certificate the driver Lochan Patel had taken training for the period from 16.03.2012 to 18.03.2012 at STI, Jabalpur for Safe Road Transportation of Dangerous & Hazardous Goods".
15. The respondent (complainant) filed Certificate issued by Managing Director, STI, Jabalpur and Training Coordinator, in which it is mentioned that Lochan Patel had taken training for Safe Road Transportation of Dangerous and Hazardous Good and it was renewed upto 17.03.2014 and thereafter it was again renewed upto 12.04.2015.
// 13 //
16. As per Rule 9 of the Central Motor Vehicles Rules, 1989, educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods, is as follows :-
"9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods - (i) One year from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993 any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall, in addition to being the holder of a driving licence to drive a transport vehicle, also has the ability to read and write at least one Indian language out of those specified in the VII Schedule of the Constitution and English and also possess a Certificate of having successfully pass a course consisting of following syllabus and periodicity connected with the transport of such goods.
Period of training 3 days
Place of training At any institute recognised
by the State Government.
Syllabus --
A Defensive driving Duration of training for
Questionnaire A & B - 1st and 2nd day.
Cause of accidents.
........................
.........................
B. ..........................
..........................
C. ...........................
..........................."
17. The appellant (O.P.) has taken an objection that Certificate has been issued by a Private Institution and the Certificate was not issued by a Government Department. The above objection, is not acceptable. According to Rule 9(3) of Central Motor Vehicles Rules, 1989, three days training can be obtained at any institution recognized by the State Government. It means that any private institution, who is recognized by the State Government, can give training. The appellant (O.P.) has not filed any document to prove that STI, Jabalpur is not recognized institution.
// 14 //
18. In the instant case, the respondent (complainant) has filed Certificate issued by STI, Jabalpur in favour of driver Lochan Patel, in which it is mentioned that Lochan Patel taken training for "Safe Road Transportation of Dangerous & Hazardous Goods" from 16.03.2012 to 18.03.2012. It appears that Lochan Patel, had taken training of 3 days for "Safe Road Transportation of Dangerous & Hazardous Goods" for the period from 16.03.2012 to 18.03.2012, therefore, according to Rule 9 (3) of the Central Motor Vehicles Rules, 1989, the driver Lochan Patel,, is competent to drive vehicle which is carrying goods of dangerous or hazardous nature to human life.
19. The respondent (complainant) has also filed copy of driving licence of Lochan Patel, in which it is mentioned that he is authorised to drive LM, MCWG and Trans. Vehicles. Document NA Annexure 7 is extract of driving licence of Lochan Patel. Looking to the extract of driving licence of Lochan Patel, it appears that he is competent to drive transport vehicle till 19.03.2015 and non transport vehicle till 29.01.2030. At the time of accident, the driver Lochan Patel was having valid and effective driving licence to drive the vehicle in question and he had duly obtained training for driving vehicle carrying hazardous and dangerous goods.
20. It appears that driver Lochan Patel has duly obtained training for driving vehicle carrying dangerous and hazardous goods. He driver // 15 // Lochan Patel was having valid and effective driving licence to drive the vehicle in question.
21. The appellant (O.P. ) has filed Survey Report dated 04.05.2014 of Brijesh Kumar, Surveyor and Loss Assessor, which is marked as NA Annexure 10. The Surveyor and Loss Assessor assessed the loss to the tune of Rs.2,54,556.80 (rounded off Rs.2,54,557). The Surveyor Report has been filed by the appellant (O.P.) itself and Surveyor has been appointed by the appellant (O.P.), therefore, Surveyor's report is binding on the appellant (O.P.). On the basis of the Surveyor's Report, the respondent (complainant) is entitled to get compensation of Rs.2,54,557/- from the appellant (O.P.). The District Forum, has also awarded the above amount to the respondent (complainant).
22. Learned District Forum has awarded a sum of Rs.25,000/- towards compensation for mental agony to the respondent (complainant). The appellant (O.P.) repudiated the claim of the respondent (complainant) on the ground that the driver of the vehicle was not having valid and effective driving licence. Looking to the facts and circumstances of the case, the District Forum, has rightly awarded compensation for mental agony to the respondent (complainant). The District Forum has rightly awarded a sum of Rs.5,000/- towards cost of litigation to the respondent (complainant).
// 16 //
23. Therefore, the impugned order dated 06.02.2017, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality, hence does not call for any interference.
24. Hence, the appeal filed by the appellant (O.P.) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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