Full Judgment Text
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PETITIONER:
ORIENTAL INSURANCE CO. LTD.
Vs.
RESPONDENT:
SONY CHERIYAN
DATE OF JUDGMENT: 19/08/1999
BENCH:
S.Saghir Ahmad, R.P.Sethi
JUDGMENT:
S. SAGHIR AHMAD, J.
Respondent’s truck was insured with the appellant. On
19.4.1994, while the truck was on its way from Bombay to
Allapuzha carrying 15 barrels of Ether Solvent, it caught
fire at Bisalkoppa near Hubli, which gave rise to a Claim
Petition being filed by the respondent before the District
Consumer Disputes Redressal Forum, Allapuzha, in the sum of
Rs.2,75,000/-, along with interest @ 18 per cent per annum
from 19.4.1994, but the Complaint was dismissed on
30.9.1995. An appeal, which was thereafter filed by the
respondent before the Kerala State Consumer Disputes
Redressal Commission, was allowed on 24.4.1996 directing the
appellant to pay a sum of Rs.1,93,500/- together with
interest @ 12 per cent from 19.4.1994 to the respondent. A
Revision filed by the appellant before the National Consumer
Disputes Redressal Commission was dismissed on 10.2.1997 and
now the matter is in appeal before this Court.
The claim of the respondent was resisted by the
appellant before the District Consumer Disputes Redressal
Forum on the ground, inter alia, that the claim was not
covered by the terms of the insurance policy as the
respondent, in his vehicle, was carrying Ethyl Ether, a
hazardous and highly inflammable substance, which could not
be legally carried by the respondent in his truck in terms
of the permit granted to him under the Motor Vehicles Act,
1988. It was precisely on this ground that the District
Forum had rejected the claim which, as mentioned above, was
allowed by the State Commission. The National Commission
before which it was argued that the Ether Solvent and Ethyl
Ether were the same substance, dismissed the Revision on the
ground that what was prohibited under the Central Motor
Vehicle Rules was Ethyl Ether and that there was no material
on record to indicate that Ethyl Ether was the same
substance as Ether Solvent.
The insurance policy issued to the respondent in
respect of his Mahindra Alwin Nisan Truck No. KL-04 A 4683,
which was registered as a public carrier, clearly stipulated
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under the heading "LIMITATION AS TO USE" as under :
"Only for carriage of goods within the meaning of the
Motor Vehicles Act, 1988."
Section 2 (13) of the Motor Vehicles Act, 1988
(the ‘Act’ for short) defines "goods" as under :
" ’Goods’ includes live-stock, and anything, (other
than equipment ordinarily used with the vehicle) carried by
a vehicle except living persons, but does not include
luggage or personal effects carried in a motor car or in a
trailer attached to a motor car or the personal luggage of
passengers travelling in the vehicle."
Section 2 (14) defines "goods carriage" as under :
" ’Goods carriage’ means any motor vehicle constructed
or adapted for use solely for the carriage of goods, or any
motor vehicle not so constructed or adapted when used for
the carriage of goods."
"Permit" is defined in Section 2(31) as under:
" ’Permit’ means a permit issued by a State or
Regional Transport Authority or an authority prescribed in
this behalf under this Act authorising the use of a motor
vehicle as a transport vehicle."
This definition stipulates that a motor vehicle cannot
be used as a transport vehicle unless a permit is issued
either by the State Transport Authority or the Regional
Transport Authority or any other Authority prescribed in
that behalf under the Act.
Chapter 5 of the Act deals with control of transport
vehicles. Section 66 (1), together with the third proviso
which is relevant for this case, lays down as under :
"66. Necessity for permit -- (1) No owner of a motor
vehicle shall use or permit the use of the vehicle as a
transport vehicle in any public place whether or not such
vehicle is actually carrying any passengers or goods save in
accordance with the conditions of a permit granted or
countersigned by a Regional or State Transport Authority or
any prescribed authority authorising him the use of the
vehicle in that place in the manner in which the vehicle is
being used:
Provided that...................
Provided further that...........
Provided also that a goods carriage permit shall,
subject to any conditions that may be specified in the
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permit, authorise the holder to use the vehicle for the
carriage of goods for or in connection with a trade or
business carried on by him."
Section 77 contemplates that an application for a
’permit’ to use a motor vehicle for the carriage of goods
shall contain, amongst other particular, the nature of goods
it is proposed to carry.
Section 78 provides that a Regional Transport
Authority, while considering an application for a ’goods
carrier permit’, shall have regard to the matters, namely:
"(a) the nature of the goods to be carried with
special reference to their dangerous or hazardous nature to
human life;
(b) the nature of the chemicals or explosives to be
carried with special reference to the safety to human life."
Section 79 provides that a Regional Transport
Authority may grant a ’goods carrier permit’ and may attach
to the ’permit’ any one or more of the conditions specified
in sub-section (2) thereof. The relevant portion of
sub-section (2) is reproduced below:
"(2) The Regional Transport Authority, if it decides
to grant a goods carriage permit, may grant the permit and
may, subject to any rules that may be made under this Act,
attach to the permit any one or more of the following
conditions, namely :
(i) ....................... (ii)
....................... (iii) that goods of a specified
nature shall not be carried. (iv) .......................
(v) ....................... (vi) .......................
(vii) ....................... (viii).......................
(ix) ......................."
The respondent, under the ’permit’ granted to him
could, admittedly, carry "All kinds of unhazardous goods,
including fish, except those prohibited."
Chapter V of Central Motor Vehicles Rules, 1989 deals
with construction, equipment and maintenance of motor
vehicles. Rule 91(c) defines "dangerous or hazardous goods"
as under :
" ‘dangerous or hazardous goods’ means the goods of
dangerous or hazardous nature to human life specified in
Tables I, II and III to Rule 137."
Rule 129 deals with transportation of goods of
dangerous or hazardous nature to human life.
Table I to Rule 137 contains the labels which have to
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be displayed on the vehicle in relation to the dangerous or
hazardous goods carried by them. Table II describes
indicative criteria in respect of flammable chemicals. The
following is the criteria:
"(b) Flammable chemicals :
(i) flammable gases: chemicals which in the gaseous
state at normal pressure and mixed with air become flammable
and the boiling point of which at normal pressure is 20
Degree C or below;
(ii) highly flammable liquids: chemicals which have a
flash point lower than 21 Degree C and the boiling point of
which at normal pressure is above 20 Degree C;
(iii) flammable liquids: chemicals which have a flash
point lower than 55 Degree C and which remain liquids under
pressure, where particular processing conditions, such as
high pressure and high temperature, may create major
accident hazards.
Table III contains the list of hazardous and toxic
chemicals. One of the items described in this Table is
’Ethyl Ether’ which is classified as flammable in the same
Table.
Admittedly, respondent was carrying Ether Solvent
which has been described as a hazardous and highly flammable
article. Since under the ’permit’ granted to the respondent
he could transport only non-hazardous articles, and the
insurance policy covered only those goods which were
permissible under the Motor Vehicles Act to be carried by
the respondent, the judgments dated 24.4.1996 and 10.2.1997
passed by the State and National Commissions respectively,
are incorrect.
The insurance policy between the insurer and the
insured represents a contract between the parties. Since
the insurer undertakes to compensate the loss suffered by
the insured on account of risks covered by the insurance
policy, the terms of the agreement have to be strictly
construed to determine the extent of liability of the
insurer. The insured cannot claim anything more than what
is covered by the insurance policy. That being so, the
insured has also to act strictly in accordance with the
statutory limitations or terms of the policy expressly set
out therein.
In the instant case, while specifying the "LIMITATIONS
AS TO USE", it was clearly mentioned that the policy was
meant to cover only carriage of goods as defined within the
meaning of Motor Vehicles Act, 1988. The ‘permit’ granted
to the respondent under the Act specifies the nature of
goods which he could carry on the vehicle. It was provided
in the ‘permit’ itself that the respondent could carry "all
kinds of unhazardous goods including fish except those
prohibited." It is obvious that the ‘permit’ was not granted
for carrying hazardous goods. It has already been specified
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above that Ether which was being transported by the
respondent in his vehicle is hazardous substance indicated
in Table III under Rule 137. There was, therefore, a
specific prohibition operating against the respondent from
carrying a hazardous, and that too, flammable substance in
his vehicle which, under the ‘permit’ granted to him, could
be utilised only for carrying unhazardous goods under the
Motor Vehicles Act.
Mr. T.L. Vishwanatha Iyer, learned Senior Counsel
appearing on behalf of the respondent has contended that
what was being carried by the respondent was ETHER SOLVENT
which is not specified in Table III appended to Rule 137 and
what is specified therein is ETHYL ETHER which is a
different substance altogether and, therefore, carrying of
ETHER SOLVENT was not and it could not be treated to be a
hazardous substance as it was not specified as such in Table
III.
We are not prepared to accept this contention. Ether
is a chemical substance. In Hawley’s Condensed Chemical
Dictionary, Eleventh Edition, ‘Ether’ is described as under
:
"ether - A class of organic compounds in which an
oxygen atom is interposed between two carbon atoms (organic
groups) in the molecular structure giving the generic
formula ROR. They may be derived from alcohols by
elimination of water, but the major method is catalytic
hydration of olefins. Only the lowest member of the series,
methyl ether, is gaseous; most are liquid and the highest
members are solid (cellulose ethers). The term "ether" is
often used synonymously with "ethyl ether" and is the legal
label name for it."
In Mcgraw-Hill Encyclopedia of Chemistry, Second
Edition, it is described that "Ethers" are used widely as
solvents, both in chemical manufacture and in the research
laboratory. It is also mentioned therein that the most
important Ether is Ethyl Ether. While describing Ethyl
Ether, it is mentioned in this Encylopedia as under :
"The best known of the ethers is ethyl ether,
sometimes, called diethyl ether or simply ether, CH3 CH2
OCH2 CH3. It is used in industry as a solvent and in
medicine as an anesthetic."
In view of the above, it is apparent that Ether
Solvent is only a descriptive name for Ether which is widely
used as a solvent not only in the industry, but also in
chemical manufacture and in research laboratories. Ether
and Ethyl Ether are the same substance and the term "Ether"
is used synonymously with the "Ethyl Ether".
In view of the above, the appeal is allowed. The
judgment and orders dated 24.4.1996 and 10.2.1997 passed by
the State and National Commissions respectively are set
aside, while the judgment dated 30.9.1995 passed by the
District Consumer Disputes Redressal Forum, Alappuzha, is
restored by which the Complaint (the Claim Petition of the
respondent) was rightly dismissed. There will be no order
as to costs.
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