JAI HIND KNITTING MACHINE Vs. BRIJ MOHAN

JUDGEMENT

(1.) This order will govern the disposal of F.A. No. 62 of 2002 filed by Prabhakar Transporters and F.A. No. 24 of 2002 preferred by National Insurance Company Limited against the order dated 2.11.2001 of Consumer Disputes Redressal Commission, Punjab, Chandigarh whereby National Insurance Company Limited was directed to pay Rs. 3,98,500/- with interest @ 9% per annum and also cost to Prabhakar Transporters. In F.A. No. 62 of 2002, Prabhakar Transporters seeks payment of enhanced amount while in F.A. No. 24 of 2002, National Insurance Company Limited claims setting aside of the order of State Commission.

(2.) Facts giving rise to these appeals lie in a narrow compass. Prabhakar Transporters was the registered owner of Truck No. PR-08-N-9868 (oil tanker) and the truck was comprehensively insured with National Insurance Company Limited under policy cover No. 97/6303083 dated 27.11.1997, which was valid from 27.11.1997 to 26.11.1998. Insured estimated value of the truck was fixed at Rs. 5,50,000/-. It is alleged that the truck met with an accident on 6.9.1998 as a result whereof it caught fire and was completely damaged. At the time of incident, the truck was being driven by Lakhwinder, driver who was accompanied by Sohan Singh, cleaner and both of them died in the incident. FIR No. 349 dated 7.9.1998 under Section 279/304A, IPC was registered at P.S. Dado(Rajasthan). On being informed about the incident, National Insurance Company Limited deputed Ram Avtar Parashar for spot survey who submitted his report on 15.9.1998. M/s. Arun Kumar & Co. deputed as final Surveyors, submitted their report on 12.1.1999. M/s. Arun Kumar & Co. assessed the loss on total loss basis at Rs. 4 lakhs less Ex-clause Rs. 1,500/- equivalent to Rs. 3,98,500/- subject to policy terms and conditions. It is this amount which has been ordered to be paid with interest in terms of the impugned order. Prabhakar Transporters also got the loss assessed from M/s. Cargo Motors Ltd., Jallandhar and on the basis thereof, it claims enhancement of claim to Rs. 5,48,500/-. Plea taken in the written version by National Insurance Company Limited in so far as it is relevant for deciding these appeals was that, as the oil tanker in question was meant for carrying dangerous and hazardous goods, the driving licence of Lakhwinder Singh, driver was to be duly endorsed as per Rule 9 of the Central Motor Vehicle Rules, 1989 which it was not and so it was not liable to pay any amount under the policy.

(3.) Rule 9(1) of the Central Motor Vehicle Rules, 1989 provides for the educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods. Sub-rule (2) says that the holder of a driving licence possessing the minimum educational qualifications or the certificate referred to in Sub-rule (1) shall make an application in writing on a plain paper alongwith driving licence and the relevant certificate to the Licensing Authority in whose jurisdiction he resides for making necessary endorsement 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 Sl. No. 8 of the table of Rule 32, Sub-rule (3) provides that the Licensing Authority on receipt of 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 and hazardous nature to human life. To be noted that aforesaid plea raised by National Insurance Company Limited was examined by the State Commission but it did not find favour with it mainly on two grounds - that it was for National Insurance Company Limited to have proved by leading cogent evidence that Lakhwinder Singh was not holding licence bearing the endoresment as required by said Rule 9 and that the question of such an endorsement on the driving licence may not be required if the driver was carrying empty oil tanker at the material time. Letter dated 9.6.1999 sent by Prabhakar Transporters to National Insurance Company Limited (copy at p-27 in F.A. 24 of 2002) would show that copy of driving licence of Lakhwinder Singh was also forwarded therewith. Letter dated 12.8.1999 sent by National Insurance Company Limited to Prabhakar Transporters (copy at P-28) would indicate that the latter was asked by the former to furnish information regarding endorsement as required by said Sub-rule (3) in the driving licence of Lakhwinder Singh. It is alleged by Insurance Company that as the information pursuant to this letter was not supplied by Prabhakar Transporters, the company deputed Sanjeev Kumar, Surveyor for verifying the said fact from the Licensing Authority, Jallandhar and the Surveyor submitted his verification report on 25.9.1995 (copy at p-29). It was pointed out by Mr. Kishore Rawat for National Insurance Company Limited that there is reference to this verification report as Annexure R-II in the affidavit dated 26.11.1999 of Amardeep Singh, Assistant Manager filed on behalf of Company before the State Commission. On 20.3.2003, National Insurance Company Limited filed the copies of pleadings and all other documents which were before the State Commission and the averment particularly made in para No. 1 of the affidavit of said Amardeep Singh supports the said statement made by Mr. Rawat. Said verification report notices that Sanjeev Kumar, Surveyor visited DTO office, Jallandhar and after verification of record, he found that the driving licence of said Lakhwinder Singh was not having endorsement as required by said Sub-rule (3). In the face of this evidence, the State Commission erred in reaching the conclusion that National Insurance Company Limited had failed to establish by leading evidence that driving licence of said Lakhwinder Singh did not have the requisite endorsement. During the course of argument, it was urged by Mr. Rajiv Sharma for Prabhakar Transporters that as the oil tanker in question at the time it met with accident was empty, the endorsment as required by Sub-rule (3) on driving licence was not necessary as held by the State Commission. Submission is, however, without any merit. There cannot be two driving licences - one for driving carriage carrying goods of dangerous and hazardous nature and another for driving empty carriage meant for transporting goods of dangerous and hazardous nature. Since the driving licence of Lakhwinder Singh did not have requisite endorsement, the National Insurance Company Limited was fully justified in repudiating the claim of Prabhakar Transporters on aforesaid plea taken in the written version. Order under appeal, thus, cannot be legally sustained.