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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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