State Consumer Disputes Redressal Commission
B.L. Jaitwani vs National Insurance Company Ltd. on 1 October, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 926 of 2015
Date of institution: 19.8.2015
Date of Decision: 1.10.2015
Bansi Lal Jaitwani s/o Sh. Uttam Chand Jaitwani, R/o 1068/02, PWD
Colony, Civil Lines, Ludhiana C/o U.P. Chemicals, Gill Road, Ludhiana.
Appellant/Complainant
Versus
1. National Insurance Company, through Chairman/Managing Director,
Regd. Office at 3, Middleton Street, Post Office No. 9229, Kolkatta -
700 071.
2. National Insurance Company through Branch Manager, G.T. Road,
Miller Ganj, Ludhiana.
Respondents/OPs
First Appeal against the order dated 29.6.2015
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Naresh Dilawari, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant(hereinafter referred as "complainant") has filed the present appeal against the order dated First Appeal No. 926 of 2015 2 29.6.2015 passed by the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter referred as the District Forum) in consumer complaint No.657 dated 18.9.2014 vide which the complaint filed by the complainant was dismissed. Misc. Application No. 1746 of 2015 for delay
2. There is delay of 5 days in filing the appeal. Keeping in view the reasons as stated in the application and seeing the period of delay, which is just 5 days, the delay in filing the appeal is hereby condoned.
Misc. Application stands disposed of.
MAIN CASE
3. A consumer complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the respondents/OPs(hereinafter referred as OPs) on the averments that the complainant had obtained the insurance of their vehicle bearing No. RJ-31-GA-2655 vide policy No. 401104118968 from the OPs. Unfortunately, it met with an accident on 14.9.2012 near Sangrur and vehicle of the complainant was got damaged. The claim was lodged with Ops. The total estimated loss came to Rs. 5,39,748/- and bills of repair to the tune of Rs. 2,95,167/- were produced but the Surveyor assessed the loss to the tune of Rs. 1,28,913/- and not explained why Rs. 1,66,254.35P were not included in the sanction. The loss assessed by the Surveyor was on the lower side. The towing charges paid by the complainant were Rs. 6,500/- but Surveyor sanctioned just Rs. 2500/-. He did not take into consideration cost of fuel, labour and other incidental charges. The Ops during the process First Appeal No. 926 of 2015 3 of claim demanded number of documents. They also demanded driving licence with an endorsement of hazardous article. However, he submitted that DTO/STC did not issue any such certificate despite the request and they stated that there was no practice of endorsing the driving licence. He was informed that Training Certificate issued by the Driver was valid for one year and was proof of eligibility of the driver, who carried out hazardous goods. OPs arbitrarily closed the case without affording any opportunity of being heard. The act of the Ops amounted to deficiency in services. Hence, the complaint.
4. On notice, OPs appeared and filed the written reply taking preliminary objections that the complaint was barred under Section 26 of the Act; complaint was not maintainable as immediately on receipt of the complaint, it was processed. Sh. Rajesh Aggarwal was appointed as Surveyor and Loss Assessor, who personally inspected the truck in question, took the photographs, documents and thereafter prepared his interim report dated 10.10.2012. Even Mr. Kailash Chander, Engineer, Surveyor & Valuer was appointed, who inspected the vehicle, took the photographs and documents and prepared the report dated 28.3.2013 and assessed the loss to the tune of Rs. 1,28,913.65p less the salvage value of Rs. 2,700/- i.e. Rs. 1,26,213/-. It was clearly stated that the salvage was property of the insurer. He was again asked to re-inspect the truck and prepared his report dated 28.3.2013. Sh. Sanjeev Narula, Surveyor and Loss Assessor was appointed to verify the genuineness and validity of driving licence No. 4193/FZR dated 20.8.2010. The said report was received. The complainant was called upon vide letter dated 21.2.2014, 14.3.2014 First Appeal No. 926 of 2015 4 and 21.3.2014 to submit the driving licence with endorsement on the driving licence to the effect that driver was authorized to drive the goods of dangerous or hazardous goods as the Tanker was used for carrying hazardous goods. However, the complainant had failed to supply the said licence and accordingly, the claim of the complainant was repudiated as 'no claim' vide their letter dated 26.3.2014; so the complaint was not maintainable as the complicated questions of law and facts were required, which required elaborate evidence, oral as well as documentary evidence, which was not possible through summary procedure under this act, therefore, the matter was required to be relegated to the Civil Court; complainant was estopped by his act and conduct to file this complaint as they had not come to the Forum with clean hands. On merits, the averments taken in the preliminary objections were reiterated. It was again reiterated that the driver of the complainant was not having an endorsement on his driving licence that he was competent to drive the vehicle carrying goods of dangerous or hazardous nature as required under Rule 9 of the Central Motor Vehicle Rules, 1989(in short 'rules'), therefore, the complaint was without merit and it be dismissed.
5. The parties adduce evidence in support of their pleadings.
6. After going through the allegations as alleged in the complaint, written reply filed by OPs, evidence and documents brought on the record, it was observed by the District Forum that under Rule 9 of the Central Motor Vehicles Rules, endorsement of carrying dangerous and hazardous goods on the driving licence of Sukhwinder Singh was required, who was driver at the time of First Appeal No. 926 of 2015 5 accident. The vehicle was carrying hazardous goods. The endorsement was necessary according to Rule 9 of the Rules, which was material violation of the policy document and accordingly, the District Forum did not see any merit in the complaint, it was dismissed.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the appellant.
9. In the appeal, it was argued by the counsel for the appellant that the order passed by the District Forum is based upon surmises and conjectures on the ground that the driver of the vehicle was not having any endorsement or authorization to carry goods of dangerous or hazardous nature on his driving licence as per Rule 9 of the Rules but it was not a policy condition. Otherwise, the claim should have been adjudicated on non-standard basis.
10. We have considered the contention as raised by the counsel for the appellant.
11. The copy of the policy has not been placed on the record otherwise in every policy condition of valid driving licence by the Driver is a pre-condition. As per the facts of the case, the complainant was carrying hazardous goods in his Truck bearing No. RJ-31-GA- 2655 and according to Rule 9 of the rules, endorsement was necessary on the driving licence. For ready reference, Rule 9 of the Rules is reproduced as under:-
"9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods.--[(1) First Appeal No. 926 of 2015 6 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.
xxxx xxxx xxxx xxxx (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 his 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.First Appeal No. 926 of 2015 7
(4) A licensing authority other than the original licensing authority making any such endorsement shall communicate the fact to the original licensing authority.]"
12. Perusal of this rule will make it clear that holder of the driving licence shall make an application in writing alongwith relevant certificate to the Licensing Authority in whose jurisdiction he was residing, for making necessary entries in his driving licence alongwith the requisite fee and then Licensing Authority shall make an endorsement on that licence that he is authorised to drive a goods carrying vehicle carrying goods of dangerous or hazardous nature. But no such driving licence was produced before the District Forum. Even during the appeal, the counsel for the appellant was unable to produce any such licence with an endorsement of authorisation to carry the goods of dangerous or hazardous nature, which was a condition according to Rule 9 of the rules. In that way, he was not authorised to drive the vehicle carrying dangerous or hazardous goods. The violation of Driving Licence is a material violation. In the judgment "New India Assurance Co. Ltd. Vs. Prabhu Lal", I (2008) CPJ 1 (SC) it was held that 'category specifies that no person shall drive a Motor Vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab hired for his own use or rented under any scheme entitles him so to do. There is another latest judgment of the Hon'ble National Commission titled as "National Insurance Company Ltd. Vs. Luxmi Food", II (2013) CPJ 495 (NC). In that case 'the driver was not First Appeal No. 926 of 2015 8 possessing valid driving licence to drive transport vehicle on the date of accident and that the driving licence did not contain endorsement regarding permission to drive transport vehicle. The claim was rightly repudiated.'
13. In view of the above discussion and settled law, we are of the opinion that the order so passed by the District Forum is quite detailed and elaborate order indicating the violation committed by the Driver of the complainant for not having authorisation of carrying goods of dangerous or hazardous nature as required under Rule 9 of the Rules. The view is justified and we uphold the same.
14. The counsel for the appellant was unable to make point for admission of the appeal. Therefore, we dismiss the appeal in limine.
15. The arguments in this appeal were heard on 24.9.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
October 1, 2015. (Surinder Pal Kaur)
as Member