Decision

Decision for Shankar Foods Limited

Published 15 October 2024

0.1 SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 27 AUGUST 2024

3. OK2009764 SHANKAR FOODS LIMITED

4. Background

The operator Shankar Foods Limited is the holder of a restricted operator’s licence granted on the 20 February 2018 authorising five vehicles.  The sole director of the company is Ketheeswaran Santhirasegaram. 

Between the grant of the licence and 2022 there appears to have been a mostly satisfactory level of compliance and this was the marking recorded following a DVSA traffic investigation in November 2021. 

Following the issue of prohibitions including one which was “S marked” a maintenance investigation was conducted on the 21 November 2022. The outcome of the investigation was unsatisfactory with significant failings highlighted including PMI intervals exceeded, driver detectable faults found at inspections and an absence of policies and training. As a result of this outcome the operator was called to a public inquiry which took place on the 9 March 2023.

The Traffic Commissioner suspended the licence from the 9 March 2023 until the 13 April 2023 and explained her decision in writing. Her comments were focused on the failure of Mr Santhirasegaram to take personal responsibility for compliance, to increase his level of knowledge and have an awareness of the failings until they were brought to his attention. She also commented in terms of promises that were made at the inquiry and the likelihood that the operator would return to inquiry if the promises were not kept.
A Desk Based Assessment was undertaken by DVSA officers on the 15 May 2024 and this was marked as unsatisfactory. The failings matched several of those found in the 2023 investigation including the preventative maintenance inspections and drivers’ daily walk round processes.  It appeared that promises made at the previous public inquiry to introduce systems and improvements had not been kept. In response to the assessment the operator submitted an e mail detailing improvements that were being made or planned.

In light of the repeat nature and  breadth of the deficiencies it was decided to call the operator to public inquiry.

5. The Public Inquiry

Mr Santhirasegaram attended the public inquiry and was represented by counsel Mr Davies. In advance of the hearing detailed representations and linked documentation had been submitted on behalf of the operator.

6. Evidence

I confirmed at the outset of the hearing that I had read the submissions presented on behalf of the operator as well as the accompanying documentation. Mr Davies highlighted paragraph 92 of the submission where it was conceded that the case fell within the “severe to serious” category and he anticipated that this would be a case where revocation of the licence was a valid consideration. It was accepted on the part of the operator that several of the promises made to the Traffic Commissioner at the previous inquiry had not been carried though and Mr Santhirasegaram had not demonstrated effective management and control of the transport operation.
 Mr Santhirasegaram gave evidence, outlined the nature of his business and agreed that he had not done what he was supposed to do since the previous inquiry. He had engaged a transport consultant “Paul”, although he didn’t have a note of his surname and no formal contract in place. This consultant, who was on holiday, had been attending every three weeks but the frequency of his attendance had increased and could increase further to 14 hours per week if needed.

Mr Santhirasegaram said that his brother had been diagnosed with a brain tumour in May 2023 and this had distracted him from focusing on the transport operation. Between May 2023 and July 2024 he had been attending to the care of his brother and travelling between the USA, India and UK as a consequence. The business had still been operating in his absence but his attention had been elsewhere.

There were three people other than him named in the submission who were involved in the transport side of the business and it was intended to train them so that they could assist a transport manager once appointed. He accepted that the individuals had been appointed prior to the desk based assessment and had not made the necessary improvements before that was carried out.

 Mr Davies submitted that this was a case where revocation might be inevitable, albeit that the written submission asked that a suspension be considered. However he asked that I consider not disqualifying the operator or director to allow a new application for a standard licence to be made. This would provide the additional assurance of a qualified transport manager in addition to undertakings for the appointment of  a transport  consultant, brake testing, training and an audit. Mr Santhirasegaram offered an apology and promises for compliance if allowed to continue in business. Revocation of the licence would mean the company could not trade.

7. Findings and Decision

As I stated during the inquiry this case is unusual in that there has been no attempt by or on behalf of the operator to show that most or even some of the promises made to the Traffic Commissioner at the previous public inquiry have been kept. It is accepted that many of the problems which were identified prior to that inquiry were still prevailing when the desk based assessment took place this year. Whilst the personal circumstances of Mr Santhirasegaram were, no doubt, very distressing the onus was on him as the sole director to ensure that compliance was managed when he was absent from the business. This clearly did not happen and the negative aspects of the case are significant as a result.

It is difficult to find many points on the positive side of the balancing exercise but I note the positive MOT pass rate, the training undertaken by relevant staff and the repeated promises of improvements .

There have been breaches of Sections 26 (1) (e) and (f) of the Goods Vehicles Act, 1995 in this case. As a result of these breaches and my findings detailed above I have to ask myself the question set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words, can the operator be trusted going forward? This is a restricted licence so I have to ask if the operator has the requisite “fitness” to continue to hold a licence. Is this is a case where the operator “deserves to be put out of business”?

In answering these questions I reflect on the fact that up until 2022 the operator had an acceptable level of compliance and that it is since then, with nobody overseeing compliance that problems have occurred. Mr Santhirasegaram has relied on delegating to others without taking responsibility for overseeing the functions being carried out. To allow the licence to continue I need to be satisfied that he now realises that the legal requirement for compliance rests ultimately with him.

Having considered all factors very carefully I have decided to step back from revocation but I emphasise that this is only just. I accept to an extent that the tragic family circumstances affecting Mr Santhirasegaram in the last year impacted on his business focus and I am therefore prepared to allow the licence to continue subject to significant regulatory sanctions and conditions. I emphasise that this licence has come as close as is possible to revocation and I am confident will not survive future inquiries.
 I order a suspension of the licence which will take effect on 00.01 hours on the 16 September 2024 and remain in place until 23.59 hours on the 17 November 2024. However, in addition the suspension will not be lifted until a contract of employment for a CPC qualified transport manager for not less than 8 hour per week has been submitted to the Office of the Traffic Commissioner. The designation of the transport manager  will need to be approved by me before it can be finalised. Despite the fact that this is restricted licence I believe the addition of a qualified transport manager is a reasonable and legitimate requirement. If in due course the operator applies to upgrade the licence this will be a matter for them.

In addition to the suspension of licence I order a curtailment from five authorised vehicles to two with immediate effect  which will not be time limited. Any application for an increase will only be considered after a sustained period at a high level of compliance.

I also agree to the undertaking offered for an audit of the transport operation to be carried out in March 2025. The operator is on notice that if there are significant failings identified by that audit a return to inquiry is highly likely. The full details of the undertaking are as follows:

The operator will arrange an independent audit to be carried out by the RHA, Logistics UK or other suitable independent body in March 2025. The audit will assess the systems for complying with maintenance and drivers’ hours requirements, and the effectiveness with which those systems are implemented. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the Office of the Traffic Commissioner by within 14 days of the date the operator receives it from the auditor.

John Baker

Deputy Traffic Commissioner                       

3 September 2024