Dr. S.K. Kakade, President

1. Aggrieved by the order passed by the South Mumbai District Consumer Disputes Redressal Forum (now Commission) in Consumer Complaint No. SMF/MUM/200/2004 decided on 11th January, 2008, dismissing the complaint the original complainant has filed this appeal before this Commission in 2008.

2. Brief facts of this appeal are as follows:

Complainant was the owner of a Tata Tanker as a commercial goods carrying vehicle for which he had purchased insurance policy bearing No. 120100/31/02/01436. The insurance policy was in existence from 08/06/2002 to 07/06/2003. This appellant was covering the liability of the insured vehicle when in operation as well as during unloading of, the motor vehicle. The cover was of Rs. 3,00,000/- in addition to third party property damage to an unlimited amount. The said vehicle was used for transporting liquid products and was approved by R.T.O. On 17th November, 2002 the said vehicle was loaded with 12000 litres of HEXENE in a stationery and idle condition that was within the safe factory premises of Suven Pharmaceuticals Ltd., Industrial Estate in Andhra Pradesh. While unloading suddenly fire broke out and spread out to an entire tanker and in which two persons including driver were seriously injured. The complainant lodged insurance claim with the respondent i.e. United India Insurance. Company Limited, but, the respondent insurance company repudiated the claim by giving reason that the driving' licence of the driver was not endorsed for carriage and transport of hazardous goods. The repudiation letter is dated 11th December, 2003. Aggrieved by this repudiation the complainant filed complaint before the Ld. District Commission praying for the insurance claim of Rs. 3,00,000/- and Rs. 2,25,000/- towards loss of his livelihood from February, 2003 to May, 2004 along with interest, and costs of litigation of Rs. 25,000/-.
3. The complaint was defended by the opponent, the present respondent and by referring Rule 9 of Central Motor Vehicles Rules only trained drivers were entitled to handle the hazardous goods with proper and valid endorsement on the driving licence. As per the contention of respondent/opponent in the complaint before the District Commission the driver of the said vehicle was not qualified to drive the vehicle containing hazardous goods as the licence was not endorsed. Ld. District Commission after hearing both the parties was pleased to dismiss the complaint stating that the repudiation of the claim was proper and accepted the reason of the repudiation that the driver of this vehicle was not having endorsement on his driving licence. This order was passed on 11th January, 2008.

4. Aggrieved by the order passed by the Ld. District Commission the original complainant has filed this appeal before this Commission.

5. For some time this appeal was in sine-die list and it was brought before the Commission only after it was taken out of sine-die list i.e. in the year 2018 and after hearing rival contentions of both the parties, submissions made by Ld. Advocates representing both the parties, perusal of record following points arise for our determination and we record our findings against them for the reasons given against them:

Reasons:

As to point No. (i) to (iii):

6. Ld. Advocate for the appellant/original complainant has brought to our notice that the explosion of the tanker took place when tanker was in a stationary and idle condition and was within the safe factory premises of Suven Pharmaceuticals Ltd., Industrial Estate in Andhra Pradesh. This explosion took place while unloading. At that time the driver was not driving vehicle since, he was with the vehicle and he also got injuries due to explosion. As per the submission of learned advocate the respondents were wrong in repudiating the insurance claim filed by complainant (now appellant). Further he invited our attention to the letter from the Divisional Manager of United India Insurance Co. Ltd., which is at page 52 of the appeal memo addressed to the Manager Shri K.R. Pavri of the Insurance Company, strongly recommending that this claim should be allowed and also admitted that the explosion took place while the vehicle was stationary the question of endorsement in the licence for carrying hazardous goods does not arise. As per the submission of Ld. Advocate for the appellant this letter of the Senior Officer of the opponent/respondent was not taken into consideration and the claim was repudiated. Additionally, even the third party claim was rejected by the Insurance Company. As per the further submission, the Ld. District Commission failed to consider this fact that the tanker was stationary while got exploded. The Ld. District Commission erred in not considering this fact and hence, he prayed for setting aside the order passed by the District Commission and make appropriate order as necessary.

7. The Advocate for respondent Ms. Varsha Chavan pointed out that the insurance company investigated this and received communication from the R.T.O. which is at page 69 of appeal memo. When there was no endorsement on the driving licence of the driver it is contrary to Rule 9-of Central Motor Vehicles Rules. When the driver was not having appropriate licences till he carried hazardous goods. Further the advocate of the respondent/opponent submitted that the cause of fire was not known and the explosion took place when the vehicle was stationary. Further, on questioning she submitted that the investigator report and the survey report are not on record. She strongly defended that the Ld. District Commission has passed just, appropriate and proper order.

8. Ld. Advocate for appellant/complainant in support of his contentions invited our attention to the order passed by the Hon'ble Allahabad High Court in First Appeal No. 349 of 2002 in the case of National Insurance Co. Ltd. V/s. Ram Pher and Another, on 12th February, 2019 in which in para 15 of the judgment the Hon'ble National Commission has given reference of the judgment of the Hon'ble Supreme Court, which is as under:

"15. In this regard, in the case of (National Insurance Company Ltd. Vs. Swaran Singh & Ors.) reported in (2004) 3 SCC 297] [LQ/SC/2004/2] Hon'ble Supreme Court considered the case like the present one before this Court. Para 64 of the said judgment of Hon'ble Supreme Court runs as under:-

64. There may be a case where an accident takes place without there being fault on the part of the driver. In such an event, the question as to whether a driver was holding a valid license or not would become redundant."

The Ld. Advocate for the Appellant/complainant submitted it is under similar circumstances when the cause of fire is not known in case of stationary vehicle the question of valid licence with endorsement does not arise.

9. In reply to this, the Ld. Advocate for respondent/opponent referred to the judgment of the Hon'ble National Commission In Revision Petition No. 1051 of 2015 in the case of Ram Asra V/s National Insurance Company Ltd., decided on 25th August, 2020, in which the Hon'ble National Commission said that special endorsement required in the case of driving a vehicle with hazardous goods. In another judgment of the Hon'ble Supreme Court in Civil Appeal Nos. 7220-7221 of 2011 in the case of Beli Ram V/s. Rajinder Kumar & Anr., decided on 23rd September, 2020, in para 21 the Hon'ble Supreme Court has referred to another case in which it is also confirmed that the driver must have endorsement on his driving licence.

10. In view of the submissions made by both the advocates, after perusal of record and after going through the rulings filed by both the parties it is concluded that the explosion took place while the vehicle was stationary for unloading at the factory premises. The cause of fire was not known and the driver cannot be held responsible for this. Hence, we are of the opinion that since the vehicle was insured for loss due to fire it was the legal responsibility of the Insurance Company to settle the claim. We are of the opinion that the Ld. District Commission also erred in interpreting the provision for endorsement on the driving licence. Hence, it is very much clear that unfair trade practice followed by the Insurance Company, so also deficiency in service, specifically referring to the letter written by the Divisional Manager of the Respondent/opponent insurance Company to their Manager - Shri K.R. Pavri. The said letter is at page 52 of the appeal memo. Though the Divisional Manager of the Insurance Company has clearly accepted that the question of obtaining endorsement on the driving licence does not arise still the claim was repudiated. Hence, appellant/complainant is entitled to get insured value along with interest, compensation for mental agony and harassment and costs of litigation.

11. On perusal of record it is crystal clear that in spite of communication from the Divisional Manager, i.e. "the question of endorsement on the licence does not arise in this case", the Manager of the respondent/opponent Insurance Company Shri K.R. Pavri repudiated the claim. Therefore, we find that the insurance company is at liberty to recover the amount of compensation from Shri K.R. Pavri.

12. In view of the above, we proceed to pass the following order:

ORDER

(i) The appeal is hereby partly allowed with costs quantified at Rs. 25,000/- to be paid by the respondent/opponent to the appellant/complainant.

(ii) The respondent/opponent-United India Insurance Co. Ltd. is hereby directed to pay Rs. 3,00,000/- (insured value) with interest @9% per annum from the date of repudiating the claim till the date of realisation of the entire amount within two months from the date of this order, failing which the amount shall carry interest @12% per annum.

(iii) The respondent/opponent Insurance Company is hereby also directed to pay compensation of Rs. 2,00,000/- to the appellant/complainant for the mental agony and harassment within two months from the date of this order, failing which the amount shall carry interest @ 12% per annum from the date of this order till realisation of the entire amount.

(iv) Copies of the order be furnished to the parties.