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Judgment
-THIS is an appeal under Section 15 of the Consumer Protection Act, 1986, directed against the order passed by the District Consumer Disputes Redressal Forum, Bastar (hereinafter referred to as the District Forum for convenience) in Complaint No. 5/2004. The District Forum allowing the complaint and holding the appellant/o. P. deficient in service has directed the appellant/o. P. to pay Rs. 4,17,600 as compensation, Rs. 1,000 towards inconvenience and Rs. 500 as cost of complaint with interest at 9% from 12. 2. 2004.
THE complaint was filed with the District Forum Bastar, praying for award of compensation of Rs. 600,000 for loss of truck along with contents thereof. It is alleged that the complainant''s truck No. 17 ZC 0717 was insured with the O. P. , comprehensively covering all losses and damages. Said truck caught fire on 8. 10. 2002 and the truck as well as the goods loaded got burnt. The police was also informed of the incident. Intimation to the insurer/o. P. was also given and the claim lodged. The incident was got investigated by the O. P. and the surveyor has asessed the loss at Rs. 86,360. However, no amount was paid to the complainant.
In the written version submitted by the O. P. it is stated that the claim was got investigated. The complainant has not submitted the loading challan of the truck. It is reported by the surveyor that said truck was carrying fire crackers along with coconuts at the time of the accident. The truck was carrying hazardous goods although carriage of hazardous goods was not covered by policy term. Moreover, the driver of the truck was not authorized to drive vehicle carrying hazardous goods. Thus at the time of accident the vehicle was being driven and used in violation of the terms of the policy.
THE District Forum has allowing the claim disbelieved the surveyor''s report that the vehicle was carrying fire works along with the crackers. Learned Counsel for the appellant submitted that the District Forum has erred in disbelieving the surveyor''s report. It is also submitted that the driver of the truck did not possess a driving licence even for driving a heavy goods vehicle. It was also submitted that the complainant has failed to produce the loading challan of the vehicle. A Hindi translation of the FIR lodged with the Police Station Bommuru on 8. 2. 2002 has been filed on behalf of the appellant. The document being essential for deciding the appeal is being taken on record.
THE report was lodged by the Panchayat Secretary, Pidimgoyee. It is stated in the report that on 8. 2. 2002 at about 8. 45 p. m. a truck number CG17 ZC 0717 a truck Diwali like ''phataka'' was reported burnt. Fire crackers loaded on coconuts in the Diwali phataka were totally burnt and scattered on the road. It is also learnt that the accident occurred while carrying partakes on coconuts. Coconut load has also burnt to some extent. In the meanwhile the Fire Service people from Rajmahendri arrived and controlled the fire. Surveyor P. Choudhary has also stated in his report that the truck was carrying fire crackers and has also filed an affidavit in support. The contentions to this effect in the O. Ps. written version and the surveyor''s report have gone unrebutted. It is also noted that the complainant has not filed the loading challan of the truck. The intimation to the police was made by the Secretary of the Panchayat. The said Secretary is a public servant and there is no reason to disbelieve his report and FIR. In view of the aforesaid documents we are inclined to believe the surveyor''s report that the truck was carrying fire crackers. Fire crackers are classified as ''explosive'' as defined under Section 4 (d) of the Explosive Act, 1884. Definition is reproduced below: (d) ''explosive'' means gunpowder, nitroglycerine, nitroglycol, gun-cotton, di-nitro-toluene, tri-nitro-toluene, picric acid, di-nitro-phenol, tri-nitro-resorcinol (styphnic acid), cyclotrimethylene-trinitramine, penta-erythritol-tetranitrate, tetryl, nitro-guanidine, lead azide, lead styphynate, fulminate of mercury or any metal, diazo-di-nitro-phenol, coloured fires or any other substance whether a single chemical compound or a mixture of substances, whether a solid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect; and includes fog-signals, fireworks, fuses, rockets, percussion-caps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosive as defined in this clause. "
UNDER Rule 9 of the Motor Vehicles Act, 1986, it is laid down that any person driving goods carriages carrying goods of dangerous or hazardous nature to human life, is required to obtain an endorsement of his driving licence to the effect that he is authorised to drive goods carriages carrying goods dangerous or hazardous to human life. No such endorsement is found on the driving licence of the driver of the vehicle in question. Thus the driver of the vehicle was not authorised to drive the said vehicle carrying fire-crackers.
IT is also interesting to note that regarding the validity of the driving licence contradictory letters from the RTO have been filed. However, on perusal of the duplicate driving licence we find that there is an overwriting in the licence. Even if the manipulated entry as above is ignored it appears that the driver Durbaram was authorised to drive only a LMV. In view of the above, the breach of the terms of policy by the insured is obvious in the present instance. Therefore, in our opinion the appellant/o. P. cannot be held liable for deficiency in service. Therefore, the appeal is allowed and the impugned order is set aside. Complainant shall bear his own cost of the complaint as well as that of the appeal and also pay Rs. 3,000 (Rupees three thousand) on this count to the appellant/o. P. The complainant, shall, however, be at liberty to avail of such other legal remedy as may be available to him. Appeal allowed.