(ORAL)
(ORAL) 1 This revision petition has been filed against the order dated 31.10.2019 in appeal no. 466. of 2016 of the petitioner / insurance company. Vide the said appeal, the insurance company had challenged the order of the District Forum dated 18.08.2016 in CC No. 3/2016 of the respondent / complainant.
2. The brief facts of the case are that complainant Prahallad Rai Sultania ( now deceased) was the owner of the truck no.OR-16-D-8377 which was insured with the petitioner for the period 13.06.2013 to 12.06.2014 for a sum of Rs.7,70,000/-. On 01.05.2014, the said truck got damaged since another loaded truck dashed against it while it had been parked on the left side of the road. Driver on the said truck on that day was Dutia Behera. The fact of accident was informed to the insurance company who deputed a surveyor to assess the loss. The vehicle was repaired by Sri Jagannath Motors who estimated the cost of Rs.7,09,482/-. The bills were submitted with the insurance company but the insurance company repudiated the claim on the ground that driver was not holding a valid effective driving license permitting him to carry in his vehicle dangerous and hazardous LPG Gas cylinder. Hence, there was contravention of the policy condition.
3. Parties led their evidences before the District Forum. The District Forum after perusing the evidence on record and hearing the arguments of the counsel, held as under:
3. The OP- insurance company has repudiated the claim on the ground that the driver of the vehicle was not having valid and effective driving license at the time of accident on 1 May, 2014. Annexure-1 is the copy of Driving License issuedst by the designated Authority in the name of Dutia Behera who was driving the insured vehicle at the time of the accident. The said License was issued on 02.08.2004 and is valid upto 17.11.2017 to drive transport vehicle. Admittedly, the insured vehicle was used for transport of LPG cylinders (hazardous) on the date of accident. The OP claims that the driving license issued by RTO, Raygada was not having endorsement to drive dangerous and hazardous goods but the driver on the date of accident was driving the vehicle with hazardous goods i.e. LPG cylinders. On perusal of the annexure-1, it cannot be denied that the driving license No.OR-1820040007476 is not carrying any endorsement to drive the vehicle carrying hazardous goods. It is clear to us that the driving license of the driver Sri Behera is though valid up to 17.11.2017 to drive transport vehicle but on perusal of the annexure-1 it was not effective. Annexure-2 is the copy of certificate issued by RTO, Jharsuguda jointly with Plant Manager, IOCL, LPG Bottling Plant Jharsuguda in favour of the driver Dutta Behera. In that annexure-2, the designated authority who used to issue driving license to the intending personnel, viz Regional Transport Officer (RTO) Jharsuguda has certified that the driver namely Dutia Behera having heavy motor vehicle driving license No.OR-1820040007476 (Annexure-1) had successfully, completed two days full training course on safe Transportation of Hazardous POL products as per rule of LMV 1989 from 16.01.2014 to 17.01.2014. Now question arises when RTO, Jharsuguda has approved the driver Sri Behera to have trained for safe transportation of hazardous POL products, non-endorsement to drive dangerous and hazardous goods in the annexure-1, can be taken as violation of policy condition. No because in our opinion, designated authority who usually issue driving license as RTO has issued both the annexure-1 can be a substitute on the annexure-1. We therefore, do not agree with the grounds of repudiation to be justified. We hold that the driver of the insured vehicle at the time of accident was having valid and effective driving license.
4. After reaching to the conclusion that driver was having a valid driving license, the District Forum directed as under: The complaint is allowed. The OP-insurance company is directed to pay a sum of Rs.4,60,000/- (Rupees four lakh sixty thousand) only to the complainant towards full and final settlement of his claim along with interest @9% per annum from 06.10.2014 till payment. The OP-insurance company also directed to pay Rs.2,000/- (Rs.two thousand) only towards cost to the complainant. The above stated directions shall be complied within 30 days from the date of this order.
5. In appeal when this order was impugned, similar plea that driver of the vehicle was not carrying a valid driving license, had been raised. After re-appreciating and re-assessing the evidence on record, the State Commission held as under:
10. On perusal of materials available on record it is found that the Driving Licence issued by Licensing Authority was for Light Motor Vehicle and Transport Vehicle, but there was no endorsement made permitting for driving vehicle for the purpose of transporting hazardous goods. Though the driver had obtained one certificate upon two days training course on, safe transportation of hazardous POL products as per rule-9 of CMV1989 from 16.01.2014 to 17.01.2014, and endorsed by RTO, Jharsuguda, but it was not incorporated in the Licence of the Driver. It is evident from the Driving Licence that the Driver had valid licence to drive transport vehicle form 22.08.2005 to 22.09.2028. The certificate for transporting hazardous goods was obtained during the policy period of the insured vehicle. As the driving licence was issued in the year 2005 for transport vehicle, there was no endorsement made by the licensing authority with regard to transporting hazardous goods. In absence of such endorsement insurance company repudiated the claim of respondent on the ground of violation of policy condition. 11. In the present case the specific case of the complainant is that the alleged accident occurred when the insured vehicle was parked on the left side of the road and another loaded truck dashed from behind and fled away. Though the allegations are vaguely denied in the written version, the insurance company has not taken any specific stand regarding the manner in which the accident took place. In such circumstances, there is no reason to disbelieve the complainants version regarding the manner in which the accident took place. Since accident was caused by the offending vehicle, when the insured vehicle was parked on the road side, the driver had nothing to do with the accident. Possession of certificate with endorsement for driving vehicle carrying hazardous materials is irrelevant.
12. Moreover, the concerned driver was having license for driving heavy transport vehicle and that he had undergone required training course on safe Transportation of Hazardous POL products when the driving license issued to the driver was valid, non-inclusion of an endorsement in the driving license for driving vehicle carrying hazardous products is nothing but a technical or formal flow which should not come on come on the way of the insured vehicle owner to get indemnified in terms of the insurance policy.
6. This order is impugned before me. It is argued that Fora below had not exercised its jurisdiction properly and that findings are perverse since they have not considered Rule 9 of Central Motor Vehicle Rules, 1989. It is submitted that as per rule 9, while the license holder is required to undergo training, it is also necessary that licensing authority should make an endorsement on the driving license of the license holder and since driving license of the driver was not having any such endorsement, the driving license was not valid in terms of the Central Motor Vehicle Rules, 1989.
7. I have given my thoughtful consideration to this contention of learned counsel and have perused the file. From the concurrent findings of the fora below, it apparent that license authority had issued a certificate certifying that driver had underwent training as per Rule 9 of the Central Motor Vehicle Rules during the period 16.01.2014 to 17.01.2014 under OISD conducted by Indian Oil Corporation Ltd., Jharsuguda Bottling Plant, Jharsuguda under the seal and signature of RTO, Jharsuguda and Plant Manager. This certificate duly confirms that driver had underwent training in terms of Rule 9 of the Central Motor Vehicle Rules, 1989 and hence there is no violation of this rule on the part of the driver. The question is. can a person be punished and denied his lawful claim simply because the concerned authority who is required to act under the provision of law had failed to act?. This is glaring case where despite the fact that driver Dutia Behera had underwent training as per Rule 9 of Central Motor Vehicles Rule, 1989, the concerned authority did not make any endorsement on his driving license as per Rule 9 Sub Rule 3 of Central Motor Vehicle Rules, 1989. The principle of natural justice does not permit that person be denied its lawful right only on the ground that some authority had failed to discharge its duties properly. These facts clearly show that driver had underwent training and was authorized to driver the hazardous goods.
8. Counsel has failed to point out any perversity in the findings of the Fora below. It is settled proposition of law that this Commission under section 21 (b) of the Act is not authorized to re-appreciate or re-assess the findings and substitute its own findings especially when findings of the Fora below are concurrent findings on facts. It has been so held by the Honble Supreme Court in which is , Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. (2011) 11 SCC 269 as under:
23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora. 9. Again in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson the Honble Supreme Court has(India) Ltd. and others, (2016) 8 Supreme Court Cases 286 ,
reiterated the same principle and has held as under:
17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. In 10. T.Ramalingeswara Rao (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Honble Supreme CourtOrs. has held as under:
12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.