Bharatkumar Pandya, Member

Present two revision petitions have been filed by the petitioner/complainant against the orders dated 03.11.2014 passed by the State Commission in FA Nos. 14 and 15 of 2014 whereby orders dated 14.10.2013 and 17.10.2013 passed by the District Forum, Ferozepur in CC Nos. 203 and 204 of 2013 in favour of complainant, have been reversed by the State Commission. Brief facts of the case are that the petitioner owns a transport company under the name and style of M/s. Guru Kripa Transport Company and also a petrol pump under the name and style of M/s. Brar Filling Station. Accordingly, Petitioner is owner of Oil tanker bearing Registration No. PB 05 N 9823. Petitioner purchased a motor vehicle policy in respect of the said vehicle for the period 25.04.2010 to 24.04.2011 for IDV of Rs. 3.8 lacs and another Policy of Carrier's liability/transit on 04.05.2010 valid upto 03.05.2011 for a sum assured of Rs.7.5 lakhs and it was purchased for insurance of petrol and diesel being transported.

2. On 05.06.2010, the insured vehicle was carrying 15,000 Itr. of diesel and 5000 Itr. of petrol from Bathinda to M/s. Brar Filling Station in Jalalabad. The said insured vehicle reached the filling station and after about waiting for 2 hours, the sample testing and decantation process was started. However, due to rise in the temperature, the petrol accidentally got fire and the driver started the Tanker and took the same at a safe distance of 300/400 yards away from the petrol pump and then jumped out from the oil tanker. The tanker caught fire and was destroyed in the fire thereby destroying petrol and diesel also. It is the specific averment in the complaint that such presence of mind and bravery of the driver in driving away the vehicle and help avert a larger accident at the petrol-pump itself, was duly recognised and rewarded by the State Government. On 07.06.2010 the matter was reported to the police and police, after due Investigation, found the Incident to be correct. Fire incident was also reported to the fire service and a fire tender was sent for controlling the fire. Thereafter, the petitioner reported the matter to the respondent/OP insurer and also submitted the relevant documents and requested the insurer to pay the insured amount of Rs.7.5 lakhs. The spot and Final Surveyors were duly appointed and the Final Surveyor, after taking into account the spot survey report, assessed the loss of vehicle under the policy 0006 on total loss at Rs. 3.8 lacs and advised the insurer to dispose the salvage after cancelling the RC, which, as per surveyor, would fetch around Rs. 1.25 lacs. The claim of the petitioner was repudiated by the insurer vide letter dated 12.09.2011. The relevant reports, filed by the petitioner by way of IA/3462/2021 and the repudiation letter of the insurer are reproduced as under:







3. Since, as alleged in the complaint, the OP insurer was deficient in providing the services and had adopted unfair trade practices and had wrongly repudiated the claim of the petitioner after a gap of more than one year and three months from the date of accident, the petitioner filed separate complaints for each of the claim under policy 003 and 106 respectively before the District Forum, Ferozepur. After hearing learned counsel for both the parties and after going through record, District Forum recorded that there is deficiency on the part of the insurance company and passed an order in favour of the complainant. It appears that the survey report is only with regard to claim under the MV policy number 106 which claim the insurer repudiated on the ground that the driver's license was fake, thus invalid, and in any case, had no endorsement on license for carrying hazardous goods, and hence in violation of section 14(2)(a) of MV Act and Rule 9 of the Central MV Rules, and thus in breach of the policy condition. However, that repudiation letter, though mentioned in the letter dated 21.10.2011 (supra) of the insurer, is not on record. The District Forum has dealt with this claim/complaint in CC/204 wherein it has allowed the complaint for Rs. 7.5 lacs (despite the fact that the IDV of the vehicle was only Rs. 3.8 lacs as noted in the Survey Report). The copies of the respective policies have not been placed on record in these petitions to bring or allow for factual clarity. However, it was the categorical averment of the insurer in reply to the complaint CC/203 at para 5 and para 6 that no claim under the carrier's policy (Number 003) has been lodged and hence the complaint itself is pre-mature in as much as there is no case of any deficiency made out in the absence of any repudiation by the insurer. This averment is contrary to insurer's own letter dated 21.10.2011. However, it is clear that the policy 003 for Sum Assured of Rs. 7.5 lacs was stated by the complainant to be "for petrol and diesel", but which in reply by the insurer was stated to be "carrier's liability policy". The rejoinder/additional affidavit filed before the District Forum dated 02.08.2013 (para 2 and 3) make it clear in any case that the HPCL had debited the account of the carrier by Rs. 7,69,547/- as per bill dated 05.06.2010 and certificate dated 29.07.2013. Further, the insurer's letter dated 21.10.2011 (supra) brings clarity that the claim under policy 003 for Rs. 7.5 lacs was not paid because admission of liability and payment of claim under the Motor Vehicle Policy, is a pre-requisite before the liability for claim under the carrier's liability policy can be considered. Thus, it becomes clear that if the claim of Rs. 3.8 lacs for vehicle-tanker is admissible, the further claim under policy 003 would also become payable. Relevant part of the order dated 117.10.2013 passed by District Forum, Ferozepur is reproduced as under:

                   "..

                   5. It is the admitted case of the parties that Oil Tanker of the complainant bearing Registration No.PB-05-N/9823 was insured with the opposite party vide insurance policy No.360702/31/10/00106 Ex.C-2 for the period from 25.4.2010 to 24.4.2011. Occurrence of fire and damage to Oil Tanker and loss of Petrol and Diesel due to fire has also been admitted. However, claim of the complainant on account of damage to the Oil Tanker due to fire has been repudiated by the opposite party vide letter dated 12.9.2011 Ex.C-6 on the ground that Driver Chanchai Singh, who was driving the vehicle at the time of accident, was holding fake/false driving licence. The complainant has produced on the file copy of Rapat No. 25 dated 7.6.2010 Ex.C-3, which was recorded in the Police Station City, Jalalabad regarding breaking out of fire to Tanker No.PB-05-N-9823 and loss of Petrol and Diesel filled up therein due to fire. A perusal of this Rapat shows that the cause of accident was that on 5.6.2010, when Oil Tanker No. PB-05-N-9823 was being decanted, petrol filled therein caught fire, as a result of which Tanker and Petrol and Diesel filled therein were also destroyed. Fire Report dated 11.6.2010 issued by Fire Station Officer, Municipal Council, Fazilka Ex.C-4 also corroborates this fact. Moreover, occurrence of fire and damage to Oil Tanker and loss of Petrol and Diesel due to that fire has also not been disputed by the opposite party. However, claim of the complainant has been repudiated by the opposite party exclusively on the ground for want of driving licence of Driver Chanchai Singh. The complainant has pleaded that the accident had occurred at the time when the vehicle was stationed at Brar Petrol Pump and was in the process of decanting. In "National Insurance Company Limited Versus Swaran Singh and others" 2004 (2) RCR (Civil) 114 (SC), the Hon'ble Supreme Court of India has laid down a law that a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle was the main or contributory cause of accident. The Hon'ble Supreme Court has further held that if on facts, it is found that accident was caused solely because of some other unforeseen or intervening cause like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. In the present case also, accident was not occurred due to any negligence on the part of Driver Chanchai Singh, rather the same was occurred at the time decanting the Oil Tanker, as is evident from the copy of Rapat Ex. C-3, and the absence of driving licence of Driver Chanchai Singh was not the main or contributory cause of accident. Therefore, in the light of the above referred to ruling of the Hon'ble Supreme Court of India, it is held that the opposite party was not justified in repudiating the claim of the complainant on account of damage to Oil Tanker No.PB-05-N-9823 due to fire. The opposite party has been proved to be deficient in rendering services to the complainant. The complainant is entitled to the claim amount on account of damage to Oil Tanker No.PB-05-N-9823 due to fire. As per Fire Report Ex.C-4, vehicle NO.PB-05-N/9823 was damaged and Diesel and Petrol worth Rs.11,40,000/- were destroyed due to fire. The said Oil Tanker was insured for Rs.7,50,000/- vide insurance policy Ex.C-2, as such the complainant is entitled to insurance claim of Rs.7,50,000/- on account of damage to Oil Tanker NO.PB-05-N-9823 due to fire.

                   6. In view of the above discussion, this complaint is accepted with Rs. 5000/-litigation expenses and the opposite party is directed to pay the sum assured of Rs. 7,50,000/- on account of damage to Oil Tanker NO.PB-05-N-9823 to the complainant along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. 12.9.2011 till realization. This order is directed to be complied with by the opposite party within a period of thirty days from the date of receipt of a copy of this order. File be consigned to the record room. "

4. The matter was taken to the State Commission in appeal by the OP insurer - New India Assurance Co. Ltd. The State Commission, after hearing the parties, reversed the order of the District Forum and passed the following order:--

                   "10. It is pertinent to note that in the Tanker diesel and petrol were being transported, which are hazardous substances. As per Section 10 of the Motor Vehicles Act, 1988, the driver of the complainant was required to possess a driving licence for driving vehicle of that specific description. According to Section 14(2)(a) of that Act, in case of a driving licence to drive a transport vehicle carrying goods of dangerous or hazardous nature is effective only for the period of one year and renewal thereof is subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus. According to Rule 9 of the Central Motor Vehicles Rules, 1989, a person driving goods carriage carrying goods of dangerous or hazardous nature to human life in addition to being the holder of a driving licence to drive a transport vehicle is required to possess the ability to read and write at least one Indian languages out of those specified in VIII Schedule of the Constitution and English and possess a certificate of having successfully passed the course containing the syllabus prescribed therein and the periodicity connected with the transport of such goods.

                   11. The driving licence of the driver furnished by the complainant to the opposite party and which was only for driving the transport vehicle, vide verification report Ex.OP-7 was found to have been issued in the name of some Gurjant Singh. Neither it was the case of the complainant nor any evidence was produced by him for proving that the driver was possessing above said additional driving licence for driving the carriage goods carrying the goods of dangerous or hazardous nature. In these circumstances, even if it is assumed that the Tanker was stationary after having been brought to the Petrol Pump by the said driver, the opposite party was competent to repudiate the claim of the complainant on the ground that the driver was not holding a valid and effective driving licence. Had that driver possessing the additional driving licence having knowledge of the said languages and having passed the test, he would not have taken the risk of the transfer of the petrol from the Tanker to the underground tanker of the Petrol Pump when the temperature was high; as there was every possibility of the petrol catching the fire. In all these circumstances, it is to be held that there was breach of fundamental condition of the insurance policy, which required the Tanker to be driven by a person possessing valid and effective driving licence. The District Forum wrongly invoked the ratio of Swaran Singh's case (supra), which has no applicability to 'own damage' cases and is applicable only to third party cases. The insurance policy was proved on the record by the complainant himself as Ex.C-2. The District Forum without looking into that Policy that the Tanker was insured for a value of Rs.3,80,000/-, allowed the insurance amount to the tune of Rs. 7,50,000/-. In view of the above discussion, the findings recorded by the District Forum cannot be sustained and the same are set aside.

                   12. Accordingly the appeal is allowed, the order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed.

                   13. The appellant/opposite party deposited the sum of Rs.25,000/ at the time of filing of the appeal on 6.1.2014. It deposited another sum of Rs.3,55,000/- on 13.2.2014 in compliance with the order dated 17.1.2014. Both these sums along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant/opposite party by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them. "

5. Both the revision petitions, challenges the respective orders of the State Commission. The District Forum fundamentally observed that the ground of fake/forged driving license of the driver wherein also there is no endorsement for hazardous goods, as taken by the insurer is not sustainable or valid for the reason that the vehicle was stationary and off-road and also on account of the principle laid down in National Insurance Co. Ltd. Vs. Swaran Singh 2004 (2) RCR (Civil) 114 (SC) and hence allowed the respective claims. The District Forum also accepted the complaints on the grounds that (i) the accident had not taken place on account of the rash and negligent driving on the part of the driver but because of high temperature in the month of June and the said accident is not because of any human lapse on the part of the driver and the petitioner, (ii) After investigation, the police authorities found the occurrence of incident of fire to be correct, therefore the repudiation of the claim on account of the fact that the driver was not holding a valid Driving License is not sustainable, (iii) District Forum interpreted and applied the ratio of the decision in case of National Insurance Company Vs. Swaran Singh in which it has been held that insurer cannot avoid his liability unless the breach of policy condition is proved to be so fundamental to have played a main role in causing the accident, (iv) the accident was on account of the fact that due to the rise in temperature the petrol accidently got fire. The State Commission reversed these findings and held, after relying on provisions of the Motor Vehicle Act and the Rules framed thereunder that the validity of the driving license as also the endorsement thereon for hazardous goods was a cardinal requirement to raise successful insurance claim. It also observed that the decision of Swaran Singh (supra) has been wrongly applied by the District Forum. Accordingly, the State Commission allowed the insurer's respective appeals.

6. We have heard the learned counsels for the parties and have minutely gone through the entire material on record. The respondent/OP insurer raised their preliminary objections before the District Forum. The learned counsel for the petitioner has contended that the State Commission has failed to consider that the accident has not taken place when the insured vehicle was being run on the road. The accident took place when the petrol from the vehicle was getting transferred and filled in the underground tank from the tanker. In other words, the State Commission overlooked the fact that at the time of accident of fire, the insured vehicle was stationary and off-road and it was only after the accident of fire took place that the driver of the vehicle, in an attempt to save the petrol pump itself, drove the vehicle to the safe place at a nearby field for about 1000-1500 ft. Therefore, as a matter of fact, the whole issue whether the driver was holding any valid driving license is wholly irrelevant because the accident neither took place on the on the public driving road nor when the vehicle was being driven. The Ld. State Commission also erred in placing reliance on the fact that the driving license was fake and also lacked the endorsement to drive vehicle carrying hazardous substance. The owner of the vehicle had verified the driving license as it was presented and as held in Rishi Pal Singh Vs. New India Assurance Co. (2022) SCC Online SC 2119, once the owner has been satisfied with the driving skills of the driver and has relied on a driving license presented to him by the driver, the insurance company cannot repudiate the claim on the ground of invalid license or absence of a valid license of the driver. However, in the present case, in any case, because the vehicle was stationary at the time of the accident, the issue of valid driving license is itself irrelevant. Similarly, the State Commission also erred in holding that the decision of National Insurance Co. Vs. Swaran Singh (2004) 3 SCC 297 is not applicable to the facts because the decision would be applicable merely to third party claims. The State Commission wrongly held that the District Forum wrongly followed the ratio of the said decision. The State Commission also erroneously ignored the fact that the incident was duly reported to the police who after investigation found the accident and fire to be genuine and the contents of the FIR to be factually true.

7. On the other hand, the insurance company has relied on the report of the investigator which has brought out the fact that the driving license of the driver Mr. Chanchai Singh issued from Guwahati is a fake driving license and hence, the vehicle was being driven under an invalid license. This, being in violation of the provisions of Motor Vehicle Act, the claim of loss due to accident is not payable under the policy and hence the claim for loss to the vehicle is rightly rejected. Otherwise also the purported fake driving license also did not have the endorsement for driving of vehicle carrying hazardous goods. Thus, no error can be found either in the repudiation by the insurance company or in the orders of the State Commission, which has upheld the action of the insurance company. As per respondent, the primary condition of the contract of insurance of Motor Vehicle is that the driver must have held a valid and effective driving license at the time of the accident. In the present case, Chanchai Singh driver was holding the license which was allegedly issued by Guwahati licensing authority, and on verification, the same was found to be fake/false. Additionally, the driver was also required to possess driving licence for carrying dangerous or hazardous goods before getting authorised to drive the transport vehicle carrying hazardous material like petrol. The driver had no such other licence and, thus, there was breach of the terms and conditions of the insurance policy by the petitioner. As per the M.V. Act 1988, the driver must posses a driving license for carrying goods of dangerous or hazardous nature in addition to the driving license authorizing to him to drive transport vehicle. The carrying of diesel/petrol comes under hazardous goods. Since the owner committed breach of the terms and conditions of the insurance policy, viz-a-viz the driver not holding a valid and effective driving license, the claim has been rightly repudiated. As per insurer, the petitioner had not lodged any claim with regard to the loss of diesel and petrol and claim was lodged only with respect to the damage to the vehicle. Further, the claim regarding loss of Patrol and diesel under the policy in question can only be lodged or allowed, if the complainant has paid the claim to the consigner or consignee of the petrol and diesel. As such, the complainant has got no locus standi to file any complaint. Under the policy, the insurer is to indemnify and reimburse the loss which has been caused to the insured-carrier due to claim made by the consignor or consignee. But in this case, the insured was not the owner of the patrol and diesel and rather was just the carrier. So the loss if any, was caused to the consigner/consignee and not to the insured. No claim has been lodged by the consigner i.e. the oil company or by the consignee i.e. patrol pump owner to whom the oil was to be delivered against the insured or has been paid by the insured. There is no deficiency in service on the part of the insurer in rightly repudiating the claim. It is further the contention of the insurer that with regard to the loss of petrol and diesel under the policy in question, no claim was at all raised and in any case the claim under the carriers policy obtained by the insured is payable only if the liability of the claim under the Motor Vehicle policy firstly arises and the claim thereunder becomes payable.

8. Having heard the counsels and having gone through the entire material, we are of the considered opinion that both the petitions need to be partly allowed primarily on the facts as obtaining and which, on the basis of rival evidence and contentions and on preponderance of probability, appear to be established. First, the insured has two policies, one MV policy 106 for SA/IDV of Rs. 3.8 lacs and another "carrier's liability" for SA of Rs. 7.5 lacs. There is no dispute that the vehicle got wholly lost, and there does not appear any possibility that any part of the petrol/diesel worth Rs. 7.69 lacs could have been saved or not lost. Second is that the petitioner, owner of the vehicle, is also the "owner" or proprietor of the filling station. It also appears that the HPCL has debited the amount of Rs. 7.69 lacs to the account of the petitioner, towards price/liability of the petrol and diesel which was carried in the tanker, and which got destroyed in fire, thus, direct or indirect loss to the petitioner due to fire qua this amount of Rs. 7.69 is established. The carrier (petitioner) and the recipient (filling station) of the material, both appear to be the proprietary concerns of the complainant and therefore the eligibility of the petitioner under the carrier's liability policy does not appear to be in doubt. In any case, such ground does not appear to have been taken for repudiating the claims.

9. In view of these facts, in our opinion, the issue which really arose for the fora below to consider was whether the accident took place in a running vehicle or in a stationery vehicle. We are inclined accept the description of the incident, particularly that the vehicle was in stationary position at the time of accident, as provided by the insured and as recorded in the survey report, which is as under:





10. There is no evidence on record or reason to believe that the incident took place in a running vehicle. As such, it appears established on record and completely plausible that only after the incident of fire took place when the vehicle was . stationary, the driver as a spontaneous decision and showing the presence of mind, and risking his own life, took away the vehicle to some open filed only 300-400 yards away to avoid the larger tragedy or loss. In other words, we agree with the insured that the accident took place when the vehicle was stationary. Therefore, we also agree that once it is averred by the insured that the accident took place in a stationary vehicle, supported by circumstantial and other contemporaneous evidence, and which is not contradicted by any positive evidence by the insurer, the question of validity of the license or the the fake nature of the license or the absence of endorsement in the license for carrying hazardous goods all become irrelevant and merely academic in view of the fact that the accident and loss to the stationery or parked vehicle does not at all have any connection with the driver, his license or his skill. The incident or the fact that the driver admittedly drove the vehicle for 300-400 yards is not only after the event of accident, it was a spontaneous act of presence of mind of the driver which was a loss-mitigation effort after the accident and hence not material for deciding the violation of policy conditions. Otherwise also, the repudiation, including the ground of endorsement for driving vehicle with hazardous goods, is fundamentally based on the fact that the license of the driver Chanchai Singh was found to be fake or forged. This aspect is duly and fully covered in favour of the insured by decision of apex court in Rishi Pal Singh Vs. New India Assurance Co. (2022) SCC Online SC 2119.

11. In view of this factual finding and discussion as above, the repudiation of the claim as reproduced supra loses its foundation and therefore we hold that there is deficiency in service in not honouring the claim under the MV policy having SA of Rs. 3.8 lacs. Similarly, in view of this conclusion, the basis for repudiating or objecting to the claim of or upto Rs. 7.5 lacs under carrier's liability policy no. 003 having sum assured of Rs. 7.5 lacs, also loses its validity. On facts also, there cannot be dispute that the loss of petrol/diesel worth more than Rs. 7.5 lacs has occurred, the amount has been debited by HPCL and the carrier and the consignee both are owned by the petitioner himself. In view of this, there cannot be any doubt on the loss and the legal and factual liability of the insured as a carrier. Coverage under the policy is also not expressly disputed by the insurer in the repudiation. Therefore, the only substantive ground of repudiation no more remains valid. Thus, there is deficiency of service on the part of the insurer in repudiating this claim as well. We, however, before parting with the issue, may state that after perusal of the orders of the fora below, we are in agreement with the legal principles and the provisions of Motor Vehicle Act quoted and relied upon by the State Commission. The State Commission is also right that the District Forum has wrongly relied upon the decision in National Insurance Co. Vs. Swaran Singh (2004) 3 SCC 297 and has awarded the claim amount which is higher than the respective sum assured under the motor vehicle policy. We, however, do not agree, on facts, that those principles or provisions of Motor Vehicles Act had applicability in the facts of the present case when the insured vehicle was stationary and off-road and not being driven by the driver. Also, the State Commission expanded the scope of the relevant considerations beyond those emanating strictly from the grounds of repudiation as taken by the Insurer in repudiation letter dated 21.10.2010 which agitates against the law laid down in Galada Power & Telecommunication Ltd. v. United India Insurance Co. Ltd., (2016) 14 SCC 161.

12. We therefore in view of discussion as above, partly allow both the petitions. In suppression of the orders of both the fora below, we direct the insurance company to admit the liability and reimburse the loss suffered by the insured under both the subject policies. Accordingly, subject to excess as provided under the respective policies, the insurer shall pay a sum of Rs. 11.3 lacs with simple interest at the rate of 6% from 01.01.2011 (six months from the date of loss) till the date of payment, within two months from the date of this order, failing which from 20.03.2026, the rate of simple interest thereafter shall be 9%.

13. Revision Petitions are partly allowed.