Motor Vehicles; Hindustan Petroleum Corporation Ltd. Vs. State [Kerala High Court, 29-06-2016]

Motor Vehicles Rules, 1989 (Kerala) – Rules 134 & 191 – Transporting any dangerous or hazardous goods – Name of the company is written in large bold letters on the Tank Trucks – Fee for such advertising or writing – Held, the public safety and liberty should be given prominent and predominant consideration rather than generation of revenue by the State by imposing fee on writings made on such transport vehicles – the writings contained in Tank Trucks operated by the petitioner by exhibiting its name in large and bold letters, even though has the characteristics of imposing with fee as prescribed under Rule 191, in view of the stipulations and prescriptions contained under Rule 134 of CMV Rules, are not liable to be imposed with fee for such writings made on the Tank Trucks – State not empowered to impose fee on mere writing of name of the petitioner company on vehicles transporting hazardous goods.

Tank Trucks


IN THE HIGH COURT OF KERALA AT ERNAKULAM

SHAJI P. CHALY, J.

W.P.(C) No.35755 of 2015

Dated this the 29th day of June, 2016

PETITIONER(S)

HINDUSTAN PETROLEUM CORPORATION LTD., IRUMPANAM TERMINAL, P.B. NO. 7, IRUMPANAM, KALAMASSERY ROAD, IRUMPANAM PO, KOCHI-682 309, REPRESENTED BY ITS CHIEF INSTALLATION MANAGER.

BY ADVS.SRI.E.K.NANDAKUMAR (SR.) SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.M.GOPIKRISHNAN NAMBIAR

RESPONDENT(S)

1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM-695 001.

2. MINISTRY OF TRNASPORT, GOVT. OF KERALA, RERPRESENTED BY SECRETARY, TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM-695 001.

3. THE MOTOR VEHICLES DEPARTMENT, GOVT. OF KERALA, REPRESENTED BY THE TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, 2ND FLOOR, TRANS TOWERS VAZHUTHACAUD, THYCAUD PO, THIRUVANANTHAPURAM, PIN-695 014.

BY SENIOR GOVERNMENT PLEADER SMT.K.A.SANJEETHA

JUDGMENT

This writ petition is filed by the petitioner seeking to declare that petitioner’s trade mark on Tank Trucks under contract with the petitioners, evident from Ext.P1 series of photographs does not amount to advertisement or exhibition of the advertisement as envisaged under

Rule 191 of the Kerala Motor Vehicles Rules, 1989

[hereinafter called the ‘KMV Rules’] and also to quash Ext.P12 by which it was held that petitioner is liable to pay advertising charges as provided under Rule 191 of the KMV Rules, and for other related reliefs.

2. Shorn of unnecessary details, material facts for the disposal of the writ petition are thus:

3. Petitioner is a Public Sector Oil Marketing Company involved in refining and retail sale of petroleum products such as petrol, diesel, auto LPG, cooking LPG etc., which are commodities under the Essential Commodities Act, 1955. Petitioner has set up a Terminal for storage and supply of petroleum products to retail outlets, at Irumpanam in Ernakulam District, which has commenced its operation in the year 2004. Petitioner has also a storage depot at Elathur, Calicut. From the Irumpanam Terminal and Elathur Depot, petroleum products including Aviation Turbine Fuel are transported to various retail outlets and other consumers through contracted Tank Trucks. Across India, these Tank Trucks are taken on exclusive contract through public tender and as per the terms of such tender, the Tank Trucks are supposed to have the HPCL trademark clearly advertised on the tank and cabin for distinguishing the petitioner’s Tank Trucks from that of other Trucks on contract with other Oil Marketing Companies. That apart, it is contended that, such a system has been prevalent for several decades and more than 400 Tank Trucks are under contract with petitioner for transport and supply of petroleum products in the State of Kerala.

4. Therefore, it is the contention of the petitioner that, permanent advertising of the petitioner’s trademark on Trucks exclusively transporting petroleum products is necessary to differentiate the Tankers with that of the other similarly operated companies. That apart, it is also contended that, such easily recognizable and visual differentiation is necessary for several reasons such as checking unfair practices like adulteration, pilferage etc. by the contractors apart from alerting the company in the event of any accident. Other contentions are raised to justify the writings made in the Tank Trucks to contend and canvass the proposition that, they are not advertisement but are requirements under law. That apart, it is also contended that, no manner of advertisement is done by incorporating such materials on the Tank Trucks. That, there is no element of advertising, since no writings are provided to attract consumers for the products of the company.

5. The issue started pursuant to Ext.P2 check report of Assistant Motor Vehicle Inspector, to which petitioner has submitted Ext.P3 dated 01.07.2014 and Ext.P4 dated 16.09.2014 to the State Minister concerned and the Transport Commissioner respectively. Anyhow, according to the petitioner, thereafter no action was further pursued based on Ext.P2. However, by Exts.P5 to P10 issued by Assistant Motor Vehicles Inspector, Regional Transport Office, Ernakulam and Sub R.T. Office, Tripunithura respectively, petitioner was directed to remit advertising charges as provided under Rule 191. It is in that background, petitioner has submitted a representation before the Transport Commissioner. The Transport Commissioner, after considering the representation submitted by the petitioner, issued Ext.P12 declining permission for displaying of unauthorised advertisement of any form in the vehicles for various purposes operated by the petitioner otherwise than as provided under Rule 191 of KMV Rules. It is thus aggrieved by Ext.P12, petitioner has filed this writ petition.

6. Heard learned Senior Counsel, Sri. E.K. Nandakumar appearing for the petitioner and Smt. K.A. Sanjeetha, learned Senior Government Pleader appearing for the respondents.

7. Since the subject involved in this writ petition is a pure question of law, learned Senior Government Pleader has offered to argue the matter without filing a counter affidavit.

8. Learned Senior Counsel for the petitioner reiterated the contentions raised in the writ petition. The predominant contention raised by learned Senior Counsel is that, Rule 191 of the KMV Rules will not apply since there is no advertising done by the petitioner in the Tank Trucks, but the inscriptions are made on the Tank Trucks to meet with emergent and other situations in order to alert any officer of the company by the public. It is also contended that, by merely writing the name of the petitioner company on the Tank, there is no advertisement, especially due to the fact that the quality of product is not advertised in order to attract the public and inure benefit out of the same.

9. Learned Senior Counsel has also invited my attention to